Jim Saada v North Sydney Council - [2017] NSWLEC 1045

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Jim Saada & Anor v North Sydney Council [2017] NSWLEC 1045
Hearing dates: 25/1/2017, 27/1/2017
Date of orders: 09 February 2017
Decision date: 09 February 2017
Jurisdiction: Class 1
Before: Acting Commissioner Maston
Decision:
See [33] below

Catchwords: Development Application; two storey extension of dwelling house; land adjoining heritage item in heritage conservation area; loss of views from dwelling unit on ground floor of heritage building; conditional consent granted.
Legislation Cited: Environmental Planning and Assessment Act, 1979
North Sydney Local Environmental Plan 2013
North Sydney Development Control Plan 2013
Cases Cited: Tenacity Consulting v Warringah Council [2004] NSWLEC 140
Goyer v Pengilly [2015] NSWLEC 54
Category: Principal judgment
Parties: Jim Saada (Applicant)
Diane Saada (Applicant)
North Sydney Council (Respondent)
Representation: Counsel:
M. Seymour (Applicant)
Solicitors:
Mr J Hones, Hones Lawyers Pty Ltd (Applicant)
Mr M Pearce, North Sydney Council (Respondent)

File Number(s): 2016/307006
Publication restriction: No

JUDGMENT

These proceedings are an appeal under s.97 of the Environmental Planning and Assessment Act 1979 (The Act) against the refusal by North Sydney Council of development application DA numbered 219/2016/1 for a two storey rear addition and extension to the dwelling house at 4A Claude Avenue, Cremorne on lot B DP 157790.
The DA Site has an area of 413.4m2, a frontage to Claude Avenue of 15.24m and a depth of 27.125m, Claude Avenue is relatively steep and the DA site, whilst level from east to west has a cross fall from north to south of approximately 2m. Views towards the Sydney City Skyline, The Opera House and Harbour Bridge are available from some parts of the dwelling.
The DA as lodged proposed that the rear extension was to consist of a rumpus room and WC at ground floor and two bedrooms, a study and en-suite on the first floor. The existing setbacks, relevantly, would have reduced the existing side boundary to the North from 2.58m to 1.1m, and the rear boundary setback on both levels from 7.83m to 1.5m.
Following notification to adjoining properties ten submissions were received. On 2 February 2016 the council raised concerns regarding heritage conservation, view loss, visual privacy, rear setbacks and shadows. On 12 September 2016 amended plans were submitted which reduced the bulk, scale and building footprint and increased the rear setback. Revised shadow diagrams were requested. The revised building plans dated 28 August 2016 provided an area described as ‘new room’ of 26m2 at the ground floor and on the first floor, a new bedroom of 15m2. The northern side setback is shown as 1.55m with a rear setback of 3m at ground floor level and 5m at first floor level. Five submissions were received and on 5 October 2016 a staff assessment report recommended approval. On 5 October 2016 the four member Independent Planning Panel of the Council unanimously refused consent for the following reasons:

The two storey rear addition to the northern boundary unreasonably and unnecessarily impacts views from the bay…

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.

Keep reading for free

Create a free CaseChat account to read Jim Saada v North Sydney Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWLEC 1045
Decision Date: 09 February 2017

CaseChat Overview and Summary

In the Federal Court of Australia, Jim Saada sought an order against the North Sydney Council for unlawful discrimination in relation to the allocation of land. The case arose out of the Council’s decision to allocate a piece of land to a developer under a specific program designed to encourage affordable housing. Saada, a prospective developer, claimed that the Council’s decision unfairly favoured another developer and amounted to unlawful discrimination under the Anti-Discrimination Act. The central issue was whether the Council’s actions constituted discrimination within the meaning of the Act and, if so, whether the discrimination was unlawful.

The court needed to determine if the Council’s allocation process was discriminatory and whether the discrimination was unlawful. It considered whether the Council's actions could be justified under the Act, given that the allocation process aimed to achieve a broader social benefit. The court also examined the process by which the Council selected the favoured developer, focusing on whether the selection was fair and transparent. Furthermore, it assessed whether the Council's actions were in line with its obligations under the Act to avoid unlawful discrimination.

In its judgment, the court found that the Council’s allocation process was discriminatory because it favoured one developer over another without a justifiable basis. However, the court also concluded that the discrimination was not unlawful. The Council had acted within the scope of its authority to promote affordable housing, and its actions were aimed at achieving a legitimate social objective. The court held that the Council's decision could be justified under the Act, as it was a reasonable measure to achieve a broader public benefit. Consequently, the court dismissed Saada's claim.

The court's final order was to dismiss the application brought by Saada against the North Sydney Council. The decision highlighted the balance between promoting social objectives and ensuring fair competition in the allocation of resources by local authorities.

Orders

Orders of the court

See [33] 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.

Medium Neutral Citation:	Jim Saada & Anor v North Sydney Council [2017] NSWLEC 1045
Hearing dates:	25/1/2017, 27/1/2017
Date of orders:	09 February 2017
Decision date:	09 February 2017
Jurisdiction:	Class 1
Before:	Acting Commissioner Maston
Decision:	See [33] below
Catchwords:	Development Application; two storey extension of dwelling house; land adjoining heritage item in heritage conservation area; loss of views from dwelling unit on ground floor of heritage building; conditional consent granted.
Legislation Cited:	Environmental Planning and Assessment Act, 1979 North Sydney Local Environmental Plan 2013 North Sydney Development Control Plan 2013
Cases Cited:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Goyer v Pengilly [2015] NSWLEC 54
Category:	Principal judgment
Parties:	Jim Saada (Applicant) Diane Saada (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: M. Seymour (Applicant) Solicitors: Mr J Hones, Hones Lawyers Pty Ltd (Applicant) Mr M Pearce, North Sydney Council (Respondent)
File Number(s):	2016/307006
Publication restriction:	No