Nattrass v Northern Beaches Council - [2021] NSWLEC 1079

Land and Environment Court

New South Wales

Medium Neutral Citation: Nattrass v Northern Beaches Council [2021] NSWLEC 1079
Hearing dates: 4 December 2020
Date of orders: 18 February 2021
Decision date: 18 February 2021
Jurisdiction: Class 1
Before: Espinosa C
Decision:
The court orders that:
(1) The appeal is dismissed.
(2) The Applicant’s Cl 4.6 written request justifying the contravention of cl 4.1 of the PLEP minimum subdivision lot size development standard is not upheld.
(3) Development Application No DA2018/1066 for the subdivision of one lot into two lots, demolition works and construction of a driveway at 27 Kevin Avenue, Avalon, NSW legally identified as Lot 11 in Deposited Plan 12435 is refused.
(4) Exhibits are returned except Exhibits A, 1 and 5.

Catchwords:
DEVELOPMENT APPEAL – subdivision – cl 4.6 variation request to vary minimum subdivision lot size development standard – tree canopy – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979
Pittwater Local Environmental Plan 2014

Cases Cited:
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Miller v Pittwater Council [2014] NSWLEC 1087
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
STM 123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Pittwater 21 Development Control Plan

Category: Principal judgment
Parties: Gregory Nattrass (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
T Sattler (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Sattler & Associates Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2018/385228
Publication restriction: No

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal by the Northern Beaches Planning Panel of development application No DA2018/1066 for the subdivision of one lot into two lots, demolition works, tree removal and construction of a driveway (the Proposed Development) at 27 Kevin Avenue, Avalon, NSW legally identified as Lot 11 in Deposited Plan 12435 (the Site).
The hearing commenced with a view of the Site and the street. The legal representatives and the experts attended the site view and we walked up the street to have a look at some of the items that were identified in the Applicant’s cl 4.6 written request referred to in this Judgment. The trees in the location of the proposed driveway of the Proposed Development were identified and described and we then walked behind the existing dwelling on the Site and I was shown the approximate boundary line of the proposed subdivision which runs on an angular form behind the existing building. There were a number of approved secondary dwelling or studios at 25 Kevin Avenue and at 23 Kevin Avenue that were pointed out as well as a demonstration of the size of 50.3 square metres, which is the shortfall in area below the lot size development standard of the Proposed Development. Finally,…

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: [2021] NSWLEC 1079
Decision Date: 18 February 2021

CaseChat Overview and Summary

The case involves the Applicant, Nattrass, who sought to appeal a decision made by the Northern Beaches Council to refuse a development application concerning a property located at 27 Kevin Avenue, Avalon, NSW. The Applicant contested the Council’s decision to deny the development application, which sought to subdivide one lot into two, along with associated demolition and driveway construction works. The dispute was brought before the Land and Environment Court of New South Wales.

The primary legal issues before the court included whether the Council's decision was lawful and if the Applicant's written request, which justified the contravention of a minimum subdivision lot size, was valid. The court needed to assess the adherence to the planning legislation and the relevant development standards set out in the Pittwater Local Environment Plan (PLEP).

The court examined the statutory framework and the procedural fairness of the Council’s decision-making process. It determined that the Council's decision was consistent with the relevant legislative and planning framework. The court found that the Applicant had not provided sufficient justification for the contravention of the minimum lot size requirement under cl 4.1 of the PLEP. Consequently, the Applicant's request was not upheld, and the development application was refused. The court concluded that the decision of the Council was lawful and did not contain any errors warranting an appeal.

Orders

Orders of the court

The court orders that:

(1) The appeal is dismissed.

(2) The Applicant’s Cl 4.6 written request justifying the contravention of cl 4.1 of the PLEP minimum subdivision lot size development standard is not upheld.

(3) Development Application No DA2018/1066 for the subdivision of one lot into two lots, demolition works and construction of a driveway at 27 Kevin Avenue, Avalon, NSW legally identified as Lot 11 in Deposited Plan 12435 is refused.

(4) Exhibits are returned except Exhibits A, 1 and 5.

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:	Nattrass v Northern Beaches Council [2021] NSWLEC 1079
Hearing dates:	4 December 2020
Date of orders:	18 February 2021
Decision date:	18 February 2021
Jurisdiction:	Class 1
Before:	Espinosa C
Decision:	The court orders that: (1) The appeal is dismissed. (2) The Applicant’s Cl 4.6 written request justifying the contravention of cl 4.1 of the PLEP minimum subdivision lot size development standard is not upheld. (3) Development Application No DA2018/1066 for the subdivision of one lot into two lots, demolition works and construction of a driveway at 27 Kevin Avenue, Avalon, NSW legally identified as Lot 11 in Deposited Plan 12435 is refused. (4) Exhibits are returned except Exhibits A, 1 and 5.
Catchwords:	DEVELOPMENT APPEAL – subdivision – cl 4.6 variation request to vary minimum subdivision lot size development standard – tree canopy – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 2014
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Miller v Pittwater Council [2014] NSWLEC 1087 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 STM 123 No. 7 Pty Ltd v Waverley Council [2020] NSWLEC 1495 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Pittwater 21 Development Control Plan
Category:	Principal judgment
Parties:	Gregory Nattrass (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: T Sattler (Solicitor) (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Sattler & Associates Pty Ltd (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/385228
Publication restriction:	No