McGowan v Leichhardt Council - [2008] NSWLEC 60

Land and Environment Court

of New South Wales

CITATION: McGowan v Leichhardt Council [2008] NSWLEC 60

PARTIES:
APPLICANT
Robert Bruce McGowan
RESPONDENT
Leichhardt Council

FILE NUMBER(S): 10978 of 2007

CORAM: Moore C

KEY ISSUES: Development Consent :-
Modification application

CASES CITED: Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240
Jones v Dunkel (1959) 101 CLR 298

EX TEMPORE JUDGMENT DATE: 14 January 2008

LEGAL REPRESENTATIVES:
APPLICANT
In person
RESPONDENT
Ms R McCulloch, solicitor
Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

14 January 2008

10978 of 2007 Robert Bruce McGowan v Leichhardt Council

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The consequence of the Court’s decision in this appeal is the modification of the conditions of a development consent. These modified conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the modified conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (the Act) concerning a development application for alterations and additions to a property known as 6 Waterview Street, Balmain (the site). On 26 November 2007, I attended the site with the applicant (who appears in person) and with Ms McCulloch, solicitor for Leichhardt Council (the Council) and those advising and instructing her.

2 On that occasion, I had no plans that showed those matters which departed from the original consent for which retrospective approval, pursuant to s 96 of the Act, was being sought. Consistent with the approach adopted by Talbot J in Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240, it is open to the Court under those circumstances to grant retrospective consent to an amendment to a development application to reflect works as actually executed.

3 Because I had no plans that enabled me to consider the matter, I directed that Mr McGowan file and serve plans showing the “as built” structure demonstrating the variations for which approval was sought together with any additional unconstructed variations for which approval was sought. I set the matter down for further hearing (including a further view) and that took place on 6 December 2007 with the parties being represented as before.

4 On the second site attendance, Mr McGowan had with him Mr Peter Lonergan, of Cracknell Lonergan Architects Pty Limited, giving expert evidence on that occasion, concerning the variations for which Mr McGowan was seeking consent. The Council expert on that occasion was Mr Andrew Smith, an expert town planner.

5 I undertook that hearing on the basis of walking through the site and viewing with the parties all the matters that…

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: [2008] NSWLEC 60
Decision Date: 14 January 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was asked to decide whether to modify the conditions of a development consent in the case of McGowan v Leichhardt Council. The applicant, Robert Bruce McGowan, sought retrospective approval for alterations and additions to a property in Balmain. The Council objected to certain modifications, specifically the species of plants to be used in planter boxes and the height of a sandstone wall surrounding a non-trafficable area. The Court had to determine whether to uphold the Council's objections and modify the conditions of the development consent accordingly.

The key legal issue was whether the modifications proposed by Mr McGowan complied with the conditions of the original development consent and the relevant planning controls. The Court had to balance Mr McGowan's desire to maintain his constructed works with the need to protect the privacy and scale of surrounding properties. The Court also had to consider the evidence provided by the experts and the statutory declaration submitted by Mr McGowan.

The Court found that the removal of one course of sandstone blocks from the wall was appropriate to ensure the area remained non-trafficable and to maintain the appropriate scale and presentation of the wall. The Court also decided that the planting of lilli pillis in the planter boxes was necessary to provide adequate privacy screening for surrounding properties, despite Mr McGowan's preference for grevilleas. The Court rejected Mr McGowan's statutory declaration as it did not provide sufficient evidence to support his claim.

In conclusion, the Court modified the conditions of the development consent to require the removal of one course of sandstone blocks and the planting of lilli pillis in the planter boxes. The appeal was upheld in part, with the modifications reflecting the agreed matters between the parties.

Orders