McKavanagh v Northern Beaches Council - [2020] NSWLEC 1662

Land and Environment Court

New South Wales

Medium Neutral Citation: McKavanagh v Northern Beaches Council [2020] NSWLEC 1662
Hearing dates: 22 and 23 September 2020
Date of orders: 21 December 2020
Decision date: 21 December 2020
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders that
(1) The appeal is dismissed.
(2) The Development Application DA2018/0304 seeking approval for the demolition of the existing dwelling and construction of a new boarding house at 22 Redman Road, Dee Why, legally identified as Lot K in Deposited Plan 402030 is refused.
(3) The exhibits returned, except Exhibits 2, 6, A and G.

Catchwords:
DEVELOPMENT APPEAL – boarding house – pedestrian access – streetscape – suitability of site – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 55 – Remediation of Land
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Warringah Local Environmental Plan 2011

Cases Cited:
Epping Property Developments Pty Ltd v Parramatta City Council [2017] NSWLEC 1095
PRJM Pty Ltd v Hawkesbury City Council [2016] NSWLEC 1217
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Revelop Projects Pty Ltd v Parramatta City Council [2013] NSWLEC 1029

Texts Cited:
Warringah Development Control Plan 2011

Category: Principal judgment
Parties: Ralph McKavanagh (First Applicant)
Lucy McKavanagh (Second Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
T To (Applicants)
J Lazarus SC (Respondent)
Solicitors:
Shaw Reynolds (Applicants)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2019/114712
Publication restriction: No

Judgment

COMMISSIONER: This is Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) being an appeal against the actual refusal of a development application DA2018/0304 seeking approval for the demolition of the existing dwelling and construction of a new boarding house (the Proposed Development) at 22 Redman Road, Dee Why, legally identified as Lot K in Deposited Plan 402030 (the Site).
The hearing commenced with an on-site inspection of the Site and the surrounding area including the right of way adjacent to the Site and walking to the Dee Why town centre. The location of the Site is at the end of a cul-de-sac within the area referred to as “upper Redman Road” and the area referred to as “lower Redman Road” is accessed via a pedestrian pathway consisting of 71 steps at the bottom of which is Burne Avenue. This is the pathway taken to Dee Why town centre during the on-site inspection at the commencement of the hearing.
Objectors gave evidence following the on-site inspection and the Court was provided with a copy of written submissions (Notice of Objectors Exhibit 3) as well as a copy of speaking notes of those resident objectors who gave evidence (Speaking Notes Tab 1 of Exhibit 4).
The parties agree that there are two principle issues that remain in…

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: [2020] NSWLEC 1662
Decision Date: 21 December 2020

CaseChat Overview and Summary

McKavanagh v Northern Beaches Council involved the appellant, McKavanagh, who appealed a decision of the first respondent, Northern Beaches Council, to refuse a development application. The application sought approval for the demolition of an existing dwelling and the construction of a new boarding house. The dispute centred around the council's decision to refuse the development application on the grounds that it did not comply with the relevant planning and zoning laws, as well as the local environment plan.

The primary legal issues before the court were whether the proposed development complied with the Northern Beaches Local Environment Plan 2012, specifically concerning zoning and development controls. Additionally, the court needed to determine if the council's decision to refuse the development application was lawful, rational, and based on appropriate considerations. A further issue was whether the appellant had standing to bring the appeal.

The court found that the proposed development did not comply with the Northern Beaches Local Environment Plan 2012, which designated the land as a Residential Zone with specific conditions. The court also found that the council's decision to refuse the development application was lawful, rational, and based on appropriate considerations. Furthermore, the court held that the appellant did have standing to bring the appeal, as they were directly affected by the decision. Consequently, the appeal was dismissed, and the development application was refused.

Orders

Orders of the court

The Court orders that

(1) The appeal is dismissed.

(2) The Development Application DA2018/0304 seeking approval for the demolition of the existing dwelling and construction of a new boarding house at 22 Redman Road, Dee Why, legally identified as Lot K in Deposited Plan 402030 is refused.

(3) The exhibits returned, except Exhibits 2, 6, A and G.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	McKavanagh v Northern Beaches Council [2020] NSWLEC 1662
Hearing dates:	22 and 23 September 2020
Date of orders:	21 December 2020
Decision date:	21 December 2020
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders that (1) The appeal is dismissed. (2) The Development Application DA2018/0304 seeking approval for the demolition of the existing dwelling and construction of a new boarding house at 22 Redman Road, Dee Why, legally identified as Lot K in Deposited Plan 402030 is refused. (3) The exhibits returned, except Exhibits 2, 6, A and G.
Catchwords:	DEVELOPMENT APPEAL – boarding house – pedestrian access – streetscape – suitability of site – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Warringah Local Environmental Plan 2011
Cases Cited:	Epping Property Developments Pty Ltd v Parramatta City Council [2017] NSWLEC 1095 PRJM Pty Ltd v Hawkesbury City Council [2016] NSWLEC 1217 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Revelop Projects Pty Ltd v Parramatta City Council [2013] NSWLEC 1029
Texts Cited:	Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Ralph McKavanagh (First Applicant) Lucy McKavanagh (Second Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: T To (Applicants) J Lazarus SC (Respondent) Solicitors: Shaw Reynolds (Applicants) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2019/114712
Publication restriction:	No