Mackay v Newcastle City Council - [2007] NSWLEC 377

Land and Environment Court

of New South Wales

CITATION: Mackay v Newcastle City Council [2007] NSWLEC 377

PARTIES:
APPLICANT
Anthony Mackay
RESPONDENT
Newcastle City Council

FILE NUMBER(S): 11177 of 2006

CORAM: Brown C

KEY ISSUES: Development Application :- alterations and additions to an existing dwelling - categorisation of use - whether a dwelling house or a boarding house - car parking - open space

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Newcastle Local Environmental Plan 2003

CASES CITED: Kouflidis and Jenquin Pty Ltd v Corporation of the City of Salisbury (1982) 29 SASR 321;
Hornsby Shire Council v Monk [2001] NSWLEC 248;
South Sydney Municipal Council v James [1977] 35 LGRA 432;
Ashfield Municipal Council v Australian College of Physical Education Ltd [1992] 76 LGRA 151 ;
Londish v Knox Grammar School [1997] 97 LGERA 1;
Burwood Municipal Council v Aboriginal Hostels [1979] 39 LGERA 150 ;
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472

DATES OF HEARING: 18/05/07

DATE OF JUDGMENT:
27 June 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Fraser, barrister
SOLICITORS
Moray & Agnew
RESPONDENT
Ms A Pearman, barrister
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

27 June 2007

11177 of 2007 Anthony Mackay v Newcastle City Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Newcastle City Council (the council) of Development Application 06/1416 for alterations and additions to an existing dwelling at 135 University Drive, North Lambton (the site).

The site and locality

2 The site is Lot 19 in DP 219717. It has a frontage of 19.6 m and a depth of 29.5 m giving a site area of 579.9 sq m. An existing 104 sq m brick and tiled roof dwelling and a single car garage are located on the site. The site contains are no significant trees.

3 The site is located opposite Newcastle University although the area surrounding the site is predominantly residential in character.

The proposal

4 The proposal provides for alterations and additions to increase the size of the dwelling by extending the ground floor area towards the rear and constructing a first floor addition. The proposal will provide for 12 bedrooms consisting of 6 bedrooms with en suite facilities and 6 bedrooms with shared facilities. A laundry, kitchen, dining room, sitting room, living room, open patio areas and 4 bedrooms are provided on the ground floor and 8 bedrooms are provided on the first floor.

Relevant planning controls

5 The site is within Zone 2(a) Residential under Newcastle Local Environmental Plan 2003 (LEP 2003). The development application form identifies the proposed use as “Residential”. Dwelling houses are a permissible use within this zone. Boarding houses are prohibited within this zone. The categorisation of the use is a preliminary issue in the proceedings.

6 Clause 8 provides that regard must be given to the relevant aims and general objectives of the plan (cl 8(a)), the zone objectives (cl 8(b)) and any other relevant provision of…

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.

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Details

Case: [2007] NSWLEC 377
Decision Date: 27 June 2007

CaseChat Overview and Summary

Mackay v Newcastle City Council involved an appeal by Anthony Mackay against the refusal of a Development Application by Newcastle City Council. The application sought alterations and additions to an existing dwelling at 135 University Drive, North Lambton, including an increase in size, the addition of a first floor, and the creation of 12 bedrooms, some with en suite facilities. The primary legal issues concerned whether the proposed use of the building as a dwelling house or boarding house was permissible, and if the proposed development complied with the council's planning controls regarding density, car parking, and open space.

The court found that the proposal, while described as a "residential" use, was in fact intended to be used as a boarding house, as it would be leased to students or other occupants, likely in a shared living arrangement. The court relied on the definition of a "boarding house" as a building let as lodgings and concluded that the proposed use fell within this definition, making it a prohibited use in the residential zone. Furthermore, the court found the proposal to be excessively dense, with a building size and layout that exceeded the council's planning controls, even considering proximity to a neighbourhood centre. The court also found insufficient evidence regarding the provision of adequate off-street car parking and open space for the proposed use, leading to the conclusion that the application did not meet the necessary planning standards.

In summary, the court dismissed the appeal and refused the development application. The court's orders included the dismissal of the appeal, the refusal of the development application, and the return of the exhibits.

Orders