McGhee v Northern Beaches Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

McGhee v Northern Beaches Council [2023] NSWLEC 1405

Hearing dates:

23 and 24 February 2023 and 28 April 2023

Date of orders:

27 July 2023

Decision date:

27 July 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development application No DA2021/1734 for demolition of existing dwelling and construction of a dwelling house and associated landscaping works at 21 Headland Road, North Curl Curl legally described as Lot 107 in DP6143 is determined by granting consent to the application subject to the conditions in Annexure A.

(3) The exhibits are retained.

Catchwords:

DEVELOPMENT APPEAL – residential development – demolition – construction of new dwelling – reasonable view sharing – conciliation conference – agreement between the parties –- orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Trees (Disputes Between Neighbours) Act 2006, ss 14E, 14F

Warringah Local Environmental Plan 2011

Cases Cited:

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107

White v Baird [2014] NSWLEC 1189

Texts Cited:

Warringah Development Control Plan 2012

Category:

Principal judgment

Parties:

Thomas Michael David McGhee (First Applicant)
Carmen Maureen McGhee (Second Applicant)
Norther Beaches Council (Respondent)

Representation:

Counsel:
F Berglund (Applicant)
C Gough (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Storey and Gough (Respondent)

File Number(s):

2022/303118

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA2021/1734 for demolition of existing dwelling and construction of a dwelling house and associated landscaping works (the Proposed Development) at 21 Headland Road, North Curl Curl legally described as Lot 107 in DP6143 (the Site).

2. This case is about views and whether the Proposed Development will result in reasonable view sharing between the Site and the property at 20 Headland Road, North Curl Curl (the Property) in accordance with the planning principle set out in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity). It is agreed that the Proposed Development does not have any additional impact other than the impact on the views from the Property.

3. The Site and the Property are located opposite each other on Headland Road, North Curl Curl where the Site is located to the south and down hill from the Property. In the Statement of Environmental Effects filed with the Class 1 Application, at page 21, the Site is described as having “approx. 2m fall from front to rear”.

4. The Property’s southern boundary fronts onto Headland Road and currently enjoys a number of views, but the view that will be impacted by the Proposed Development is part of the panoramic southern view from the Property, namely, from its…