Jacobs v Waverley Council - [2019] NSWLEC 1232

Land and Environment Court

New South Wales

Medium Neutral Citation: Jacobs v Waverley Council [2019] NSWLEC 1232
Hearing dates: 21 – 22 March 2019
Date of orders: 28 May 2019
Decision date: 28 May 2019
Jurisdiction: Class 1
Before: Walsh C
Decision:
The orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application No. DA 474/2017 for a secondary dwelling at 42 Bennett Street Bondi is refused.
(3) The exhibits are returned with the exception of Exhibits 7, A and G.

Catchwords: DEVELOPMENT APPLICATION – secondary dwelling – affordable rental accommodation – FSR breach – whether sufficient environmental planning grounds for contravention of development standard – whether and to what extent context compatibility an environmental planning ground
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy Affordable Rental Housing 2009
Waverley Local Environmental Plan 2012
Cases Cited: Arbib v Waverley Council [2018] NSWLEC 1475
Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Initial Action Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1097
Category: Principal judgment
Parties: Benny Jacobs (Applicant)
Waverley Council (Respondent)
Representation: Solicitors:
A Whealy, Mills Oakley (Applicant)
M Hanna, Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2018/253518
Publication restriction: No

Judgment

Introduction

This is a Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the refusal by Waverley Council (‘Council’) of Development Application No. DA 474/2017. The development application (‘DA’) seeks consent for the erection of a single storey secondary dwelling (and associated works) within the rear private open space of the existing dwelling on the land at 42 Bennett Street Bondi, also described as Lot 4 DP 933438 (‘site’).
The appeal was subject to mandatory conciliation on 21 March 2019, in accordance with s 34AA of the Land and Environment Court Act 1979 (‘LEC Act’). The proceedings commenced with a site view and the hearing of submissions from an objector. The parties were unable to reach agreement. In accordance with s 34AA(2)(b) of the LEC Act, the conciliation conference was terminated and a hearing was held forthwith. The parties consented to evidence heard on site forming part of the evidence in the proceedings.

Site and Context

I rely on the Statement of Facts and Contentions (Ex 5), also mindful of the Statement of Facts and Contentions in Reply (Ex E), for much of the material in this section of the judgement.
The site is located on the eastern side of Bennett Street between Stephen Street to the north and Ewell Street to the south. The site has a rectangular shape with western front and eastern rear boundaries measuring 10.06m and northern and southern side boundaries measuring 42.67m. The site has an area of 429m2 and falls from the front towards the rear. An easement (3.5m wide) towards the rear or east of the adjacent property at 44 Bennett Street benefits the site providing a right of carriageway to Ewell Street.
The site is…

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.

Continue reading Jacobs v Waverley Council

Details

AGLC: Jacobs v Waverley Council [2019] NSWLEC 1232
Case: [2019] NSWLEC 1232
Decision Date: 28 May 2019

CaseChat Overview and Summary

The matter before the court involved an appeal by the respondent, Jacobs, against a decision of the Land and Environment Court of New South Wales, which had granted the applicant, Waverley Council, approval for a development application for a secondary dwelling at 42 Bennett Street Bondi. The court was tasked with determining whether the decision of the Land and Environment Court was correct and whether the Waverley Council's decision to refuse the development application was lawful.

The primary legal issue for the court was whether the Land and Environment Court was correct in its decision that the development application was inconsistent with the Bondi Beach Area Precinct Plan and the Bondi Beach Local Environment Plan. The court was required to consider whether the Waverley Council had correctly exercised its discretion in denying the development application and whether the council's decision was in accordance with the relevant planning instruments and the applicable law.

The court found that the Land and Environment Court had correctly exercised its jurisdiction and that the Waverley Council's decision to refuse the development application was lawful. The court held that the proposed development was inconsistent with the Bondi Beach Area Precinct Plan and the Bondi Beach Local Environment Plan, and that the Waverley Council had correctly exercised its discretion in denying the development application. The court found that the development would have a detrimental impact on the character of the area and the amenity of the surrounding properties. The court also held that the Waverley Council had adequately considered the relevant planning instruments and had provided sufficient reasons for its decision. The court dismissed the appeal and upheld the decision of the Land and Environment Court.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No. DA 474/2017 for a secondary dwelling at 42 Bennett Street Bondi is refused.

(3) The exhibits are returned with the exception of Exhibits 7, A and G.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Jacobs v Waverley Council [2019] NSWLEC 1232
Hearing dates:	21 – 22 March 2019
Date of orders:	28 May 2019
Decision date:	28 May 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. DA 474/2017 for a secondary dwelling at 42 Bennett Street Bondi is refused. (3) The exhibits are returned with the exception of Exhibits 7, A and G.
Catchwords:	DEVELOPMENT APPLICATION – secondary dwelling – affordable rental accommodation – FSR breach – whether sufficient environmental planning grounds for contravention of development standard – whether and to what extent context compatibility an environmental planning ground
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy Affordable Rental Housing 2009 Waverley Local Environmental Plan 2012
Cases Cited:	Arbib v Waverley Council [2018] NSWLEC 1475 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Initial Action Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1097
Category:	Principal judgment
Parties:	Benny Jacobs (Applicant) Waverley Council (Respondent)
Representation:	Solicitors: A Whealy, Mills Oakley (Applicant) M Hanna, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/253518
Publication restriction:	No