Jakob v Woollahra Municipal Council (No 2)

Case [2021] NSWLEC 1743

Land and Environment Court


New South Wales

Medium Neutral Citation: Jakob v Woollahra Municipal Council (No 2) [2021] NSWLEC 1743
Hearing dates: 5 & 19 August 2021; mention on 30 November 2021
Date of orders: 03 December 2021
Decision date: 03 December 2021
Jurisdiction:Class 1
Before: Dixon SC
Decision:

See final orders at [3] below.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – change to existing built form including the addition of a new level – contravention of the height of buildings development standard – consideration of cl 4.6 written request to vary the height of buildings development standard – concerns relating to view loss

Cases Cited:

Jakob v Woollahra Municipal Council [2021] NSWLEC 1667

Category:Principal judgment
Parties: Alexandra Lee Jakob (Applicant)
Woollahra Municipal Council (Respondent)
Representation:

Counsel:
A Galasso SC (Applicant)
P Rigg (Solicitor) (Respondent)

Solicitors:
Hones Lawyers (Applicant)
Peter R Rigg (Respondent)
File Number(s): 2020/336336
Publication restriction: Nil

Judgment

  1. On 12 November 2021, I handed down my reasons for judgment in the Class 1 appeal, Jakob v Woollahra Municipal Council [2021] NSWLEC 1667. At [90] of Jakob v Woollahra Municipal Council, I directed the parties to confer and settle the conditions in accordance with my reasons for judgment and to provide a copy to the Court.

  2. On 30 November 2021, the parties settled on the conditions and a copy of the agreed conditions were filed with the Court the next day. Following receipt of the conditions, I am satisfied that the conditions accord with my reasons for judgment and I now make the following orders.

  3. The Court orders that:

  1. The appeal is upheld.

  2. Development consent is granted to DA 176/2020 for alterations and additions to an existing residential dwelling in order to facilitate a change of use to a residential flat building incorporating 2 x one bedroom units and 1 x three bedroom unit at 50 Wolseley Road, Point Piper, subject to conditions as set out in Annexure A.

  3. All exhibits are returned except for 1, A and H.

………………………

S Dixon

Senior Commissioner of the Court

Annexure A (671899, pdf)

**********

Details
AGLC
Jakob v Woollahra Municipal Council (No 2) [2021] NSWLEC 1743
Case
[2021] NSWLEC 1743
Decision Date

CaseChat Overview and Summary

In the case of Jakob v Woollahra Municipal Council (No 2), the respondents, Mr and Mrs Jakob, sought to overturn a decision of the Woollahra Municipal Council to refuse their application for a development approval. The dispute was heard in the Land and Environment Court of New South Wales. The primary issue before the court was whether the Woollahra Municipal Council's decision to refuse development approval was unreasonable, in that it failed to take into account the relevant planning considerations and the merits of the application.

The court was required to determine whether the Council had acted in an unreasonable manner by failing to consider all relevant planning considerations and by not properly assessing the merits of the development application. The court examined whether the Council's decision was in accordance with the statutory requirements and whether there was any error of law or procedural unfairness in the decision-making process. The court also considered whether the Council had taken into account all relevant planning considerations, including the impact of the proposed development on the surrounding environment and community.

The court found that the Woollahra Municipal Council had failed to take into account relevant planning considerations and had not properly assessed the merits of the development application. The court held that the Council's decision to refuse the application was unreasonable and that the decision should be quashed. The court further found that the Council's decision was not in accordance with the statutory requirements and that there had been an error of law in the decision-making process. The court also found that the Council had not properly considered the impact of the proposed development on the surrounding environment and community.

ORDERS:
The court quashed the decision of the Woollahra Municipal Council to refuse the development approval and remitted the matter back to the Council for reconsideration in accordance with the court's findings. The court also ordered the Council to pay the respondents' costs of the proceedings.

Orders

Orders of the court

See final orders at [3] below.

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.