Miller v Pittwater Council - [2014] NSWLEC 1087

Land and Environment Court

New South Wales

Medium Neutral Citation: Miller & anor v Pittwater Council [2014] NSWLEC 1087
Hearing dates: 23, 24 January 2014; 11 March 2014; 31 March 2014
Decision date: 15 May 2014
Jurisdiction: Class 1
Before: Fakes C
Decision:
1. The appeal is upheld.
2. Development application N0108/13 for the subdivision of one yet to be created lot into two lots, including the provision of services, off-street parking and tree removal, at 232-234 Barrenjoey Road, Newport (Lot D DP367601 and Lot 5A DP 399973) is approved subject to the conditions in Annexure 1.

Catchwords: SUBDIVISION; Access; Tree removal; impact on views; previous Court approval
Legislation Cited: Environmental Planning & Assessment Act 1979
Pittwater Local Environmental Plan 1993
Cases Cited: Miller v Pittwater Council [2011] NSWLEC 1117
Segal & v Waverley Council [2005] NSWCA 310
Zhang v Canterbury City Council [2001] NSWCA 167
Category: Principal judgment
Parties: Gabriel & Chelsea Miller (Applicants)
Pittwater Council (Respondent)
Representation: Applicants: Mr M Staunton (Barrister)
Respondent: Ms H Irish (Barrister)
Applicants: Sattler & Associates
Respondent: King & Wood Mallesons

File Number(s): 10717 of 2013

Judgment

COMMISSIONER: The applicants appeal Pittwater Council's refusal of development application DA N0108/2013 for subdivision of one yet to be created lot into 2 lots at 232 and 234 Barrenjoey Road, Newport (the site). The proposal also includes provision of services, off-street parking and tree removal.

The appeal is made under s 97(1)(a) of the Environmental Planning & Assessment Act 1979 (the Act).

The site and locality

The site is steeply sloping and heavily vegetated, with rocky outcrops towards the top of the slope. Pittwater 21 Development Control Plan (P21DCP) identifies the site as being slip affected. Bushrangers Hill Reserve adjoins the north-eastern portion of the site. There is an extended and vegetated road reserve along the Barrenjoey Road frontage.

The site is surrounded by residential development of varying age and design; typically single dwellings in landscaped settings. Adjoining dwellings to the south are accessed via a right of carriageway from Barrenjoey Road. The right of carriageway benefits and burdens the site and these adjoining properties.

Residential development to the north along Barrenjoey and Bungan Head Roads is of a conventional nature with lots generally addressing the streets.

Relevant background and the proposal

The overall site comprises two vacant lots - Lot D in DP367601 (232 Barrenjoey Road) and Lot 5A in DP 399973 (234 Barrenjoey Road) and has a combined area of 4255.5m2.

In 2011, the Court granted approval for a four-lot subdivision (Miller v Pittwater Council [2011] NSWLEC 1117). An existing driveway from Barrenjoey Road provides direct access to Lots B and D with access to Lot C via a Right of Carriageway from Bungan Head Road. The existing driveway also provides access to a parking area to service Lot A. Access from the car park to Lot A is via a proposed inclinator to be eventually constructed along the southern boundary of the site. Amongst other things, the 2011 approval also includes…

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: [2014] NSWLEC 1087
Decision Date: 15 May 2014

CaseChat Overview and Summary

In the case of Miller v Pittwater Council, the applicant sought approval from the local council for the subdivision of a single lot into two separate lots, including the provision of necessary services, off-street parking, and tree removal. The council rejected the application, leading the applicant to appeal the decision. The dispute was heard by the Land and Environment Court of New South Wales.

The central legal issue before the court was whether the council's decision to deny the subdivision application was reasonable and lawful. The applicant argued that the council's decision was based on insufficient grounds and that the application met all the relevant planning criteria. The council, on the other hand, contended that the proposed subdivision would have adverse impacts on the area and did not align with the local planning policies.

The court found that the council's decision was not reasonable and lawful, as it did not provide adequate reasons for the denial of the application. The court determined that the applicant had met the necessary planning criteria and that the proposed subdivision would not have significant adverse impacts on the area. The court also found that the council had not adequately considered the applicant's proposal for the provision of services, off-street parking, and tree removal. The court concluded that the appeal should be upheld and that the development application should be approved subject to certain conditions.

Orders

Orders of the court

1. The appeal is upheld.

2. Development application N0108/13 for the subdivision of one yet to be created lot into two lots, including the provision of services, off-street parking and tree removal, at 232-234 Barrenjoey Road, Newport (Lot D DP367601 and Lot 5A DP 399973) is approved subject to the conditions in Annexure 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Miller & anor v Pittwater Council [2014] NSWLEC 1087
Hearing dates:	23, 24 January 2014; 11 March 2014; 31 March 2014
Decision date:	15 May 2014
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	1. The appeal is upheld. 2. Development application N0108/13 for the subdivision of one yet to be created lot into two lots, including the provision of services, off-street parking and tree removal, at 232-234 Barrenjoey Road, Newport (Lot D DP367601 and Lot 5A DP 399973) is approved subject to the conditions in Annexure 1.
Catchwords:	SUBDIVISION; Access; Tree removal; impact on views; previous Court approval
Legislation Cited:	Environmental Planning & Assessment Act 1979 Pittwater Local Environmental Plan 1993
Cases Cited:	Miller v Pittwater Council [2011] NSWLEC 1117 Segal & v Waverley Council [2005] NSWCA 310 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	Gabriel & Chelsea Miller (Applicants) Pittwater Council (Respondent)
Representation:	Applicants: Mr M Staunton (Barrister) Respondent: Ms H Irish (Barrister) Applicants: Sattler & Associates Respondent: King & Wood Mallesons
File Number(s):	10717 of 2013