Legowski v Snowy River Shire Council (No 2)

[2016] NSWLEC 1162

Land and Environment Court

New South Wales

Medium Neutral Citation:	Legowski & anor v Snowy River Shire Council (No 2) [2016] NSWLEC 1162
Hearing dates:	22 March 2016, 1 April 2016, 22 April 2016
Date of orders:	04 May 2016
Decision date:	04 May 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Conditions 6, 7 and 8 of DA0036/2015 imposed by the council for the use of an existing 4 bedroom dwelling for a “serviced apartment” at 7 Twynam Street, Jindabyne are reviewed under s 82A of the Environmental Planning and Assessment Act 1979 in the terms set out in the consolidated conditions and marked as Annexure A. 3. The exhibits are returned with the exception of exhibit A.
Catchwords:	DEVELOPMENT APPLICATION: appeal against application for review of conditions of approval for “serviced apartment” – whether “serviced apartment” can accommodate 15 people – submissions on conditions
Legislation Cited:	Environmental Planning and Assessment Act 1979
Cases Cited:	Legowski & anor v Snowy River Shire Council [2016] NSWLEC 1110
Category:	Principal judgment
Parties:	Sylvia Legowski and Ian Cameron (Applicants) Snowy River Shire Council (Respondent)
Representation:	Counsel: Mr C Drury, solicitor (Applicants) Mr S Simington, solicitor (Respondent)   Solicitors: Sparke Helmore (Applicants) Lindsay Taylor Lawyers (Respondent)
File Number(s):	11171 of 2015
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of an application for review by the Snowy River Shire Council on 11 August 2015, under s 82A of the Environmental Planning and Assessment Act 1979, seeking a review of conditions 6, 7 and 8 of DA0036/2015 imposed by the council for the use of an existing 4 bedroom dwelling for a “serviced apartment” at 7 Twynam Street, Jindabyne (the site). These conditions dealt with the maximum number of people that can occupy the “serviced apartment”.

2. Conditions 6, 7 and 8 are:

6. The developer is to ensure that each bedroom in the holiday dwelling is to be occupied by the number of persons not exceeding the number listed in the following schedule:

Bedroom 1= 2persons

Bedroom 2 = 2persons

Bedroom 3 = 2 persons

Bedroom 4 = 2 persons

7. The developer shall ensure that the holiday dwelling is not used to accommodate more than eight (8) persons.

8. The development shall ensure that a sign be erected on the back of the main entrance door(s) into the premises or holiday dwelling stating the following:

"The maximum number of persons permitted to be accommodated in the holiday dwelling is eight (8)".

Note: the developer may obtain the abovementioned sign (i.e. sticker) from Council. Please contact Council's Department of Environmental Services on [phone].

3. The review by the applicant sought to increase the number of persons using the “serviced apartment” from 8 persons to 15 persons in conditions 6, 7 and 8. The development application sought 15 persons to occupy the “serviced apartment” however the number was reduced to 8 persons as a result of the council assessment of the application.

4. With the agreement of the parties, findings on the central issue were provided to the parties on 1 April 2016 (Legowski & anor v Snowy River Shire Council [2016] NSWLEC 1110) were it was found that the maximum number of persons could be 15 persons but subject to a trial period of 12 months. The following directions were made at this time:

Conditions of consent are to be formulated following the Courts determination of the matters in dispute. The conditions are to be filed by 15 April 2016 following which final orders will be made in Chambers

5. In response to this direction and on 22 April 2016 the parties advised the Court that they had agreed on conditions with the exception of part condition 8F that deals with the process after the completion of the trial period. .

6. The applicant proposes the following part condition 8F:-

In the event that such application is not determined by Council (or, if determined by Council adversely to the Applicant, the Applicant commences legal proceedings in the Land and Environment Court of NSW), then the developer may continue to use the premises as a serviced apartment for not more than fifteen (15) persons until the later of determination of such application by the Council or the final determination of any such legal proceedings.

7. The council proposes the following part condition 8F:

Upon completion of the twelve (12) month trial period referred to in Condition 8A, the developer shall cease use of the property as a serviced apartment accommodating fifteen (15) persons and the approved occupancy rates will revert to those stipulated in conditions 6, 7 and 8.

8. In considering the different versions of part condition 8F, I accept the applicant’s version as it provides a more reasonable approach to determining whether the maximum 15 persons should be allowed on a permanent basis, particularly if it has been established that no adverse impacts had occurred during the trial period.

Orders

9. The orders of the Court are:

1. The appeal is upheld.

2. Conditions 6, 7 and 8 of DA0036/2015 imposed by the council for the use of an existing 4 bedroom dwelling for a “serviced apartment” at 7 Twynam Street, Jindabyne are reviewed under s 82A of the Environmental Planning and Assessment Act 1979 in the terms set out in the consolidated conditions and marked as Annexure A.

3. The exhibits are returned with the exception of exhibit A.

________________

G T Brown

Commissioner of the Court

11171 of 2015 (C) gtb (296 KB, pdf)