Initial Action Pty Ltd v Woollahra Council - [2017] NSWLEC 1734

Land and Environment Court

New South Wales

Medium Neutral Citation: Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734
Hearing dates: 7 and 8 November, 2017
Date of orders: 20 December 2017
Decision date: 20 December 2017
Jurisdiction: Class 1
Before: Smithson C
Decision:
1. The appeal is dismissed
2. Development Application DA2016/367/1 for a residential flat building at 12-16 William Street, Double Bay is refused.
3. The exhibits, except Exhibits A and 4, are returned.

Catchwords: DEVELOPMENT APPLICATION: residential flat building; height exceedence; FSR calculation; view loss; clause 4.6 variation requirements; desired future character; transition between zones; amenity impacts; extent of excavation; front fence design; resident objections; adequacy of evidence
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 2014
Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited: Woollahra Development Control Plan 2015
Category: Principal judgment
Parties: Initial Action Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)
Representation:
Counsel:
Mr I Hemmings, SC (Applicant)
Mr P Rigg (Respondent)
Solicitors:
Hones Lawyers (Applicant)
Peter Rigg (Respondent)

File Number(s): 2017/63470
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979 (‘the Act’) lodged in February 2017 against the deemed refusal by Woollahra Municipal Council (the Council) of a development application for a residential flat building (RFB) at 12-16 William Street, Double Bay (the site).
The application as lodged comprised a 4 storey RFB with 14 apartments and two roof terraces over two levels of basement parking for 28 cars. New fencing, landscaping and site works were also proposed.
The application was notified and 23 submissions were received including one letter with 15 signatories, raising a variety of concerns primarily associated with the height of development and use of an adjoining private laneway.
The Council subsequently refused the application in March 2017 and the officer’s delegated Council report on the application (Exhibit 6) advised that the development, as lodged, had a proposed height of 14.25m relative to a maximum permitted height under the LEP of 10.5m and an FSR of 1.05:1 relative to a maximum permissible FSR of 1:1. The report identified a number of other non-compliances in terms of communal open space, building separation, setbacks, extent of excavation, storage facilities and fencing.
The officer’s report concluded that the development did not meet the objectives of Council’s planning controls exceeding the prescribed envelope controls in terms of height, floor space, building depth and setbacks, was not compatible with the character and amenity of the surrounding neighbourhood, would be of a height and scale which did not achieve the desired future character of the neighbourhood, and would result in detrimental impacts on the amenity of adjoining residents with respect to scale, bulk, privacy and views. The report recommended refusal accordingly.
In response to the Council’s concerns, the application was amended in June 2017, July 2017 and August…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWLEC 1734
Decision Date: 20 December 2017

CaseChat Overview and Summary

In this case, Initial Action Pty Ltd, the appellant, sought to appeal the decision of Woollahra Council, the respondent, to refuse their development application for a residential flat building at 12-16 William Street, Double Bay. The application was dismissed by the Land and Environment Court, and the matter is now before the court on appeal. The appellant contends that the refusal of the development application was unreasonable, given the applicant's compliance with the council's requirements and the benefits of the proposed development.

The primary legal issue before the court was whether the decision of the council to refuse the development application was unreasonable, and whether the applicant had established a case for the grant of a certificate under section 96 of the Environmental Planning and Assessment Act 1979. The court also needed to consider whether the applicant had demonstrated that the refusal of the development application was unreasonable in the circumstances of the case. Additionally, the court had to assess whether the proposed development would be consistent with the relevant planning instruments and whether it would have any adverse environmental impacts.

The court found that the decision of the council to refuse the development application was not unreasonable, as it was based on the overall character of the area and the impact the proposed development would have on the surrounding environment. The court also held that the applicant had not established a case for the grant of a certificate under section 96 of the Environmental Planning and Assessment Act 1979. Furthermore, the court found that the proposed development would not be consistent with the relevant planning instruments, and would have adverse environmental impacts on the area. Therefore, the appeal was dismissed, and the development application was refused.

Orders

Orders of the court

1. The appeal is dismissed

2. Development Application DA2016/367/1 for a residential flat building at 12-16 William Street, Double Bay is refused.

3. The exhibits, except Exhibits A and 4, are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Initial Action Pty Ltd v Woollahra Council [2017] NSWLEC 1734
Hearing dates:	7 and 8 November, 2017
Date of orders:	20 December 2017
Decision date:	20 December 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is dismissed 2. Development Application DA2016/367/1 for a residential flat building at 12-16 William Street, Double Bay is refused. 3. The exhibits, except Exhibits A and 4, are returned.
Catchwords:	DEVELOPMENT APPLICATION: residential flat building; height exceedence; FSR calculation; view loss; clause 4.6 variation requirements; desired future character; transition between zones; amenity impacts; extent of excavation; front fence design; resident objections; adequacy of evidence
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Cases Cited:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Initial Action Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: Mr I Hemmings, SC (Applicant) Mr P Rigg (Respondent) Solicitors: Hones Lawyers (Applicant) Peter Rigg (Respondent)
File Number(s):	2017/63470
Publication restriction:	No