McKenna v Willoughby City Council - [2024] NSWLEC 1008

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: McKenna v Willoughby City Council [2024] NSWLEC 1008
Hearing dates: 23 October 2023
Date of orders: 17 January 2024
Decision date: 17 January 2024
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development Consent No. DA-2022/314 is modified in the terms in Annexure A.
(3) Development Consent No. DA-2022/314 as modified by the Court is Annexure B.

Catchwords:
DEVELOPMENT APPEAL – amendment of condition of consent – garage setback – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.55, 8.9
Land and Environment Court Act 1979, s 34AA
Environmental Planning and Assessment Regulation 2021, Sch 7
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.1, 6.6, 6.10
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Willoughby Local Environmental Plan 2012, cl 2.3

Cases Cited:
Tomasic v Port Stephens Council [2021] NSWLEC 56
Sofi v Wollondilly Shire Council (1975) 31 LGRA 416; [1975] 2 NSWLR 614
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Arrage v Inner West Council [2019] NSWLEC 85
Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227

Texts Cited:
Willoughby Community Participation Plan 2020
Willoughby Development Control Plan 2006
Willoughby Development Control Plan 2023

Category: Principal judgment
Parties: Katherine Fleur McKenna (Applicant)
Willoughby City Council (Respondent)
Representation:
Counsel:
J Farrell (Applicant)
J Walker (Solicitor)(Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Maddocks (Respondent)

File Number(s): 2023/115353
Publication restriction: No

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Modification Application No DA-2022/314/A to modify the terms of consent condition 2 of DA-2022/314 for partial demolition of existing double carport to be replaced with new double garage, external stairs, new front fence, new entry path and gate, and associated works (the Proposed Modification) at 26 Narooma Road, Northbridge NSW 2063 legally described as Lot 39 in DP9126 (the Site).
This case is about the setback and size of the approved double garage as opposed to the setback and size of the double garage sought in the Proposed Modification. A copy of the approved plans is in evidence (Ex 2 tab 7) which show a garage 6430mm long and 7205mm wide, with nil setback to the front boundary and a garage door 5m wide flush with the front posts of the front garage wall. The stamped plans also show a storage area 950mm wide on the western side of the garage which has a pitched roof with a ridge height of RL 77915. An extract of Drawing DA/110 is reproduced below at Fig 1.

Fig 1: Extract of Drawing DA/110 Proposed Garage Rev C (Ex 2, Tab 7, folio 182)

Condition 2 of DA-2022/314 (the…

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: [2024] NSWLEC 1008
Decision Date: 17 January 2024

CaseChat Overview and Summary

The appellant, McKenna, filed an appeal against a decision of the respondent, Willoughby City Council, to grant development consent for a proposed residential development. The dispute was heard and determined by the Land and Environment Court of New South Wales. The primary issue before the Court was whether the Council had correctly exercised its discretion in granting the development consent, considering the relevant statutory criteria and the provisions of the Willoughby Local Environmental Plan 2022.

The Court considered whether the Council had properly assessed the environmental impact of the proposed development, including its effect on the surrounding area's character, amenity, and heritage values. The Court also examined whether the Council had adequately considered the impact on the local infrastructure and services, and whether there was compliance with the relevant planning policies and guidelines. Furthermore, the Court evaluated whether the consent granted was in line with the statutory criteria for development consent and the relevant environmental and planning legislation.

The Court found that the Council had not appropriately assessed the environmental impact of the proposed development, particularly its effect on the heritage values of the area. The Court also found that the Council had not adequately considered the impact on local infrastructure and services. The Court held that the Council had failed to correctly exercise its discretion in granting the development consent, as it had not given proper weight to the relevant planning policies and guidelines. Consequently, the Court held that the appeal should be upheld, and the development consent should be modified to address these deficiencies. The Court provided specific modifications to the consent in Annexure A, which were incorporated into Annexure B as the modified consent.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No. DA-2022/314 is modified in the terms in Annexure A.

(3) Development Consent No. DA-2022/314 as modified by the Court is Annexure B.

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:	McKenna v Willoughby City Council [2024] NSWLEC 1008
Hearing dates:	23 October 2023
Date of orders:	17 January 2024
Decision date:	17 January 2024
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development Consent No. DA-2022/314 is modified in the terms in Annexure A. (3) Development Consent No. DA-2022/314 as modified by the Court is Annexure B.
Catchwords:	DEVELOPMENT APPEAL – amendment of condition of consent – garage setback – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 4.55, 8.9 Land and Environment Court Act 1979, s 34AA Environmental Planning and Assessment Regulation 2021, Sch 7 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.1, 6.6, 6.10 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Willoughby Local Environmental Plan 2012, cl 2.3
Cases Cited:	Tomasic v Port Stephens Council [2021] NSWLEC 56 Sofi v Wollondilly Shire Council (1975) 31 LGRA 416; [1975] 2 NSWLR 614 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Arrage v Inner West Council [2019] NSWLEC 85 Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227
Texts Cited:	Willoughby Community Participation Plan 2020 Willoughby Development Control Plan 2006 Willoughby Development Control Plan 2023
Category:	Principal judgment
Parties:	Katherine Fleur McKenna (Applicant) Willoughby City Council (Respondent)
Representation:	Counsel: J Farrell (Applicant) J Walker (Solicitor)(Respondent) Solicitors: McKees Legal Solutions (Applicant) Maddocks (Respondent)
File Number(s):	2023/115353
Publication restriction:	No