Kaplan v Waverley Council - [2021] NSWLEC 1013

Land and Environment Court

New South Wales

Medium Neutral Citation: Kaplan v Waverley Council [2021] NSWLEC 1013
Hearing dates: Conciliation conference on 7 December 2020; Hearing on 7 December 2020
Date of orders: 12 January 2021
Decision date: 12 January 2021
Jurisdiction: Class 1
Before: Bindon AC
Decision:
The Court orders:
(1) The appeal is dismissed.
(2) Waverley Council Development Application No. DA-318/2019 for alterations and additions to a secondary dwelling at 28 Macdonald Street Vaucluse is refused.
(3) The exhibits are returned with the exception of Exhibits A, B and 3.

Catchwords:
DEVELOPMENT APPLICATION – secondary dwelling – DCP compliance

Legislation Cited:
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
State Environmental Planning Policy Affordable Rental Housing 2009
Waverley Local Environmental Plan 2012

Cases Cited:
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised - 01/10/2004
Zhang v Canterbury City Council [2001] NSWCA 167

Texts Cited:
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)
Waverley Development Control Plan 2012

Category: Principal judgment
Parties: Deborah Kaplan (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
M Kaplan – (Agent) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2020/83727
Publication restriction: No

Judgment

COMMISSIONER: This is a Class 1 appeal filed with the Land and Environment Court (the Court) on 16 March 2020 under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Waverley Council (Council) of Development Application DA-318/2019 (the DA). The DA seeks consent for alterations and additions to an existing studio at the rear of 28 Macdonald Street Vaucluse involving the construction of an additional level to form a two-storey secondary dwelling. In exercising the functions of consent authority the Court has the power to determine the modification DA pursuant to ss 4.15 and 4.16 of the EPA Act.

The site and existing development

The DA relates to a 695.6m² allotment of land identified as Lot 1 in DP 82195 at 28 Macdonald Street Vaucluse (the site). The site is located on the northern side of Macdonald Street approximately 15 metres to the east of its intersection with Marne Street. The site sits on top of a cliff and enjoys uninterrupted views of the Pacific Ocean to the east. It is bounded by the Pacific Ocean to the east, Macdonald Street to the south and adjoining dwelling houses to the west (26 Macdonald Street) and north (11 Marne Street).
The site is occupied by:

a two storey brick rendered detached dwelling house, with a hipped tiled roof (the principal dwelling),

a secondary dwelling in the form of a detached single storey studio located in the north-west corner of the site (the existing studio), and

a swimming pool to the east and lawn area to the north-east of the principal dwelling.

The existing studio was approved by Council in June 2010 as part of a development application (reference DA-175/2010) for alterations…

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 Kaplan v Waverley Council

Details

AGLC: Kaplan v Waverley Council [2021] NSWLEC 1013
Case: [2021] NSWLEC 1013
Decision Date: 12 January 2021

CaseChat Overview and Summary

Kaplan, the appellant, brought an appeal against Waverley Council, the respondent, challenging the refusal of a development application for alterations and additions to a secondary dwelling at 28 Macdonald Street Vaucluse. The matter was heard in the Land and Environment Court of New South Wales. The appellant sought to build a granny flat at the rear of the property, which was zoned as a Residential Medium Density (RMD) zone, and had previously been approved for a smaller secondary dwelling. The council refused the application on the grounds that the proposed development did not comply with the local environmental plan and that it would have adverse effects on neighbouring properties.

The primary legal issue before the court was whether the respondent's decision to refuse the development application was lawful. The appellant argued that the council had not provided sufficient reasons for the refusal and that the decision was unreasonable. The court was required to consider whether the council's decision was based on the relevant planning instruments and whether the appellant had provided sufficient evidence to support the development. The court also had to determine whether the council's decision was unreasonable or arbitrary.

The court found that the council's decision to refuse the development application was lawful. The court held that the council had provided sufficient reasons for the refusal and that the decision was based on the relevant planning instruments. The court found that the proposed development did not comply with the local environmental plan and that it would have adverse effects on neighbouring properties. The court also found that the appellant had not provided sufficient evidence to support the development, and that the council's decision was not unreasonable or arbitrary. The court dismissed the appeal and refused the development application. The exhibits were returned with the exception of Exhibits A, B and 3.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) Waverley Council Development Application No. DA-318/2019 for alterations and additions to a secondary dwelling at 28 Macdonald Street Vaucluse is refused.

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

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:	Kaplan v Waverley Council [2021] NSWLEC 1013
Hearing dates:	Conciliation conference on 7 December 2020; Hearing on 7 December 2020
Date of orders:	12 January 2021
Decision date:	12 January 2021
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court orders: (1) The appeal is dismissed. (2) Waverley Council Development Application No. DA-318/2019 for alterations and additions to a secondary dwelling at 28 Macdonald Street Vaucluse is refused. (3) The exhibits are returned with the exception of Exhibits A, B and 3.
Catchwords:	DEVELOPMENT APPLICATION – secondary dwelling – DCP compliance
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy Affordable Rental Housing 2009 Waverley Local Environmental Plan 2012
Cases Cited:	Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 revised - 01/10/2004 Zhang v Canterbury City Council [2001] NSWCA 167
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Deborah Kaplan (Applicant) Waverley Council (Respondent)
Representation:	Counsel: M Kaplan – (Agent) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2020/83727
Publication restriction:	No