Midvena Pty Ltd v Northern Beaches Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Midvena Pty Ltd v Northern Beaches Council [2021] NSWLEC 1217

Hearing dates:

30 March 2021

Date of orders:

30 April 2021

Decision date:

30 April 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

In proceedings 2020/314960, the Court orders that:

(1) The appeal is dismissed.

(2) The building information certification application BC2020/0099 in relation to the mailbox structure located on the road reserve adjacent to 173-175 Riverview Road, Avalon Beach, is refused.

(3) The exhibits are returned, except for exhibits B, D, E, F and G.

In proceedings 2020/314961, the Court orders that:

(1) The appeal is dismissed.

(2) The application to modify the development consent 2020/0332 for the construction of the dwelling house at 173-175 Riverview Road, Avalon Beach, to incorporate a mailbox structure on the adjacent road reserve, is refused.

Catchwords:

APPEAL – modification application – building information certificate – sandstone clad wall containing letterbox – encroachment into the road reserve – adjacent to stairs leading to public reserve – whether modification application should be granted in the circumstances – whether building information certificate should be issued

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 4.15, 4.56, 6.25, 8.25

Environmental Planning and Assessment Regulation 2000 cl 115

Land and Environment Court Act 1979 ss 34, 34AA, 39

Local Government Act 1993

Pittwater Local Environmental Plan 2014

Roads Act 1993 ss 138-139

Cases Cited:

Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 5) (2012) 211 LGERA 81; [2012] NSWLEC 53

Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99

Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167

Texts Cited:

Australian Standard for Mailboxes (AS 4253:2019)

Pittwater 21 Development Control Plan

Category:

Principal judgment

Parties:

Midvena Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
T Howard SC (Applicant)
J Reid (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/314960, 2020/314961

Publication restriction:

No

Judgment

1. COMMISSIONER: These two appeals concern the construction of a sandstone clad wall containing a letter box on a road reserve owned by Northern Beaches Council (“the Council”) and adjacent to 173-175 Riverview Road, Avalon Beach. The wall is not yet completely constructed, and it is adjacent to stairs that have also been constructed by the applicant, Midvena Pty Ltd (“Midvena”) on land within the road reserve. Midvena is the owner of 173-175 Riverview Road, which benefits from a development consent granted on 19 December 2014 for the construction of a dwelling house, swimming pool and driveway. Midvena seeks to modify the development consent to incorporate the sandstone clad wall containing the letter box (“mailbox wall”), which includes carrying out some works to reduce its size and complete its construction. In proceedings 2020/314961, Midvena appeals against the Council’s refusal of its application to modify the consent (“the modification appeal”). Midvena also seeks a building information certificate for the mailbox wall, and in proceedings…