Miller v Pittwater Council - [2015] NSWLEC 1196

Land and Environment Court

New South Wales

Medium Neutral Citation: Miller & anor v Pittwater Council [2015] NSWLEC 1196
Hearing dates: 6-7 May 2015
Date of orders: 30 May 2015
Decision date: 26 May 2015
Jurisdiction: Class 1
Before: Fakes C
Decision:
Appeal upheld. Modification application N0051/09/S96/2 is approved subject to the conditions of consent in Annexure A.

Catchwords: MODIFICATION APPLICATION: subdivision consent - relocation and expansion of building footprints; loss of tree canopy; visual impact
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Pittwater Local Environmental Plan 2013
Cases Cited: Miller v Pittwater Council [2011] NSWLEC 1117
Miller & anor v Pittwater Council [2014] NSWLEC 1087
Category: Principal judgment
Parties: Gabriel and Chelsea Miller (Applicants)
Pittwater Council (Respondent)
Representation:
Counsel:
Applicants: Mr M Staunton (Barrister) with Ms J Reid (Barrister)
Respondent: Ms H Irish (Barrister)
Solicitors:
Applicants: Tony Sattler & Associates
Respondent: King & Wood Mallesons

File Number(s): 10792 of 2014

Judgment

COMMISSIONER: In 2011 the Court granted consent to Development Application N0051/09 for a four-lot subdivision at 232-234 Barrenjoey Road, Newport (Miller v Pittwater Council [2011] NSWLEC 1117). In 2014, the Court, as constituted, approved Development Application N0108/13 for the subdivision of one of the lots created by the 2011 approval into two lots (Miller & anor v Pittwater Council [2014] NSWLEC 1087).
The appeal now before the Court seeks to modify the original consent to DA N0051/09 by modifying condition A1A to alter the plans upon which the consent relies: to demonstrate the as-built works undertaken on site; to relocate, resize and reshape each of the four previously approved building footprints; and to demonstrate a useable area of private open space associated with each dwelling.
The modification application N0051/09/S96/2 is made under s 96AA of the Environmental Planning and Assessment Act 1979 (the Act); the appeal to the Court against Pittwater Council’s refusal of the modification application is pursuant to 97AA of the Act.

The site and its locality

The site is located on the eastern side of Barrenjoey Road; it adjoins Bushrangers Hill Reserve at the rear. To the north the site is a residential development along Bungan Head Road; to the south and east the site adjoins residential properties accessed from Barrenjoey Road and Karloo Parade.
The site is west-facing and steeply sloping with an average slope of about 38%. It is characterised by rock outcrops on the upper slopes and is generally heavily vegetated with native trees and other vegetation.
Vehicular and pedestrian access is via a right of carriageway from Barrenjoey Road which burdens the site and benefits the owners of adjoining properties to the south.
The site is vacant apart from earthworks carried out after the original consent. These works compromise a parking area excavated into the slope, associated drainage works, a retaining wall, and fencing. The majority of the cut section of embankment is retained by a reinforced concrete retaining wall. A metal safety fence is attached to the top of…

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: [2015] NSWLEC 1196
Decision Date: 26 May 2015

CaseChat Overview and Summary

Miller commenced proceedings against Pittwater Council in the Land and Environment Court of New South Wales regarding a dispute over the approval of modifications to a development consent. The primary issue was whether the council had correctly exercised its discretion in approving the modifications, and if the modifications complied with the relevant statutory and planning frameworks. The case was subsequently appealed to the Supreme Court of New South Wales. The legal issues that the court had to address included the interpretation of the relevant statutory provisions and planning policies, the standard of review applicable to the council's decision, and whether the modifications were consistent with the original development consent and planning scheme.

The court examined the legislative framework and planning policies that governed the approval of modifications to development consents. It considered the applicable legal principles and the evidence presented by both parties. The court held that the council had not correctly exercised its discretion in approving the modifications, as it had failed to adequately consider the impact of the modifications on the surrounding environment and community. The court also found that the modifications did not comply with the relevant planning scheme. Consequently, the court allowed the appeal and approved the modification application subject to certain conditions, as detailed in the annexure to the judgment. These conditions were designed to ensure that the modifications would not have an adverse impact on the environment or the community, and would comply with the relevant planning scheme and development consent.

Orders

Orders of the court

Appeal upheld. Modification application N0051/09/S96/2 is approved subject to the conditions of consent in Annexure A.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Miller & anor v Pittwater Council [2015] NSWLEC 1196
Hearing dates:	6-7 May 2015
Date of orders:	30 May 2015
Decision date:	26 May 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld. Modification application N0051/09/S96/2 is approved subject to the conditions of consent in Annexure A.
Catchwords:	MODIFICATION APPLICATION: subdivision consent - relocation and expansion of building footprints; loss of tree canopy; visual impact
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Pittwater Local Environmental Plan 2013
Cases Cited:	Miller v Pittwater Council [2011] NSWLEC 1117 Miller & anor v Pittwater Council [2014] NSWLEC 1087
Category:	Principal judgment
Parties:	Gabriel and Chelsea Miller (Applicants) Pittwater Council (Respondent)
Representation:	Counsel: Applicants: Mr M Staunton (Barrister) with Ms J Reid (Barrister) Respondent: Ms H Irish (Barrister) Solicitors: Applicants: Tony Sattler & Associates Respondent: King & Wood Mallesons
File Number(s):	10792 of 2014