Notaras v Waverley Council

Case [2007] NSWCA 333

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Notaras v Waverley Council & Anor [2007]  NSWCA 333

FILE NUMBER(S):
40748/06

HEARING DATE(S):               12 October 2007

JUDGMENT DATE: 26 November 2007

PARTIES:
Irene Notaras
Waverley Council
Errol Wilfred Levitt

JUDGMENT OF:       Mason P Hodgson JA Tobias JA   

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S):          LE 40331/06

LOWER COURT JUDICIAL OFFICER:     Talbot J

LOWER COURT DATE OF DECISION:    27 October 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
Notaras, Irene v Waverley Council and Levitt, Erroll Wilfred [2006] NSWLEC 669

COUNSEL:
A: Mr P King QC / Dr J Walsh, Branagh
1R: C Newport / M Stanton
2R: N Hemmings QC / Mr D Miller

SOLICITORS:
A:  JPR Legal,  Bondi Junction
1R: Staunton Beattie, Sydney
2R: Allens Arthur Robinson, Sydney

CATCHWORDS:
BUILDING CONTROL AND TOWN PLANNING – Environmental planning instruments – Whether Development Control Plans binding on Council
BUILDING CONTROL AND TOWN PLANNING – Consent and approval of councils – Whether Council decision to allow development which exceeds restrictions in Development Control Plans is Wednesbury unreasonable
PRACTICE AND PROCEDURE – Submissions – Where limited leave granted to submit further submissions on certain points after judgment reserved – Where further submissions exceed scope of leave granted without further leave applied for or given – Submissions to be ignored insofar as they exceed scope of leave granted

LEGISLATION CITED:
Environmental Planning and Assessment Act 1987
Environmental Planning and Assessment Regulation 2000
Local Government Act 1993

CASES CITED:
Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211
Belmorgan Property Development Pty v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450
Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246
Chapmann v Caska [2005] NSWCA 113
Coulton v Holcombe (1986) 162 CLR 1
Dwyer v Commonwealth of Australia (1995) 31 ATR 48
Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7
In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881
Insurance Australia Ltd t/a NRMA Insurance v Motor Accidents Authority of New South Wales [2007] NSWCA 314
Jones v Dunkel (1959) 101 CLR 298
Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291
Kindimindi v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277
King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362
King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362
Kirwan v Cresvale Far East Ltd (In liq) [2002] NSWCA 395; (2002) 44 ACSR 21
MCC Energy v Wyong Shire Council [2006] NSWLEC 581; (2006) 149 LGERA 59
Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11
R v Chief Constable of Sussex ex parte International Trader’s Ferry Ltd [1999] 2 AC 418
Save our Street Inc v Setteree & Anor [2006] NSWLEC 570; (2006) 149 LGERA 30

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AGLC
Notaras v Waverley Council [2007] NSWCA 333
Case
[2007] NSWCA 333
Decision Date

CaseChat Overview and Summary

The case of *Notaras v Waverley Council* concerned an appeal to the Supreme Court of New South Wales against a development consent granted by Waverley Council. The appellant, Mr Notaras, sought to challenge the Council's decision to approve a development that allegedly exceeded the restrictions outlined in the relevant Development Control Plans (DCPs).

The primary legal issues before the Court were whether the Development Control Plans were binding on the Council, and if the Council's decision to permit development exceeding these restrictions was *Wednesbury* unreasonable. Additionally, the Court considered the procedural issue of whether further submissions made by a party after judgment had been reserved, and which exceeded the scope of leave granted for such submissions, should be considered.

The Court reasoned that Development Control Plans, while containing objectives and guidelines, were not always strictly binding in the same way as a Local Environmental Plan. The Court found that the Council had a discretion to depart from the DCP where it considered it appropriate, provided that such a departure was not *Wednesbury* unreasonable. In this instance, the Court determined that the Council's decision to grant consent, despite some non-compliance with the DCP, was not unreasonable. The Court also held that any submissions made by a party that fell outside the scope of the limited leave granted for further submissions, without obtaining further leave, should be disregarded.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs

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

Finally, under the heading CONCLUSION the following was stated:“The second amended plan submitted with this application had made some significant changes when compared to the proposal refused by the DBU on 17 February 2005. It is considered that this has satisfactorily overcome the reasons for refusal. Approval is therefore now recommended.”Revision D On 28 June 2005 the architects emailed Mr Faruqi proposing further amendments to the plans which would reduce the overall height of the proposed dwelling by 200mm and the moving of the stairs leading from the rear ground floor terrace to the rear garden in an easterly direction by two metres to be in line with the western wall of the ground floor. The architects then lodged revised drawings with Mr Faruqi incorporating these amendments on 5 July 2005 (Revision D). At its meeting on 14 September 2005 the DBU, after acknowledging the amendments that had been made to the application, assessed it in the following terms:“…However the proposal is still considered to be unacceptable given that the floor space ratio breaches Council’s maximum permissible limit by a significant degree and combined with the non-compliance with building height at the rear will have negative impact on the adjoining properties. The proposed partial under ground car parking area together with study, spa room and change room are considered to be excessive in size, which adds to the overall bulk and scale of the dwelling. Council policy requires that for sloping sites, the development should step down with the slope of the land. In this regard the proposal is unsatisfactory given that the ground floor is raised above the natural ground level by 1.5m to 2m and is contrary to Council policy. It is also considered that the elevated rear deck will also have privacy impact on the neighbouring properties and is unsatisfactory in this regard.”It then recommended refusal for five reasons including excessive floor space ratio, excessive building height at the rear, excessive size of the carpark and the size and location of the elevated deck at the rear which would have a negative impact on the adjoining properties. It should be noted in passing that the reference in the DBU’s assessment to Council’s policy that with respect to sloping sites the development should step down with the slope of the land, was to cl 3 of DCP2 where, under the heading BUILDING HEIGHT, the design criteria requiring dwelling houses to follow the contours of their site provided for a design solution in the following terms:“Building on steep sites are stepped down to avoid high columns, elevated platforms of large undercroft areas …” There follows in Figure 2 an illustration of “dwelling houses stepping down ‘steep sites’ “. The point that needs to be made is that the slope of the site in the present case was not steep but as the northern and southern elevations and the east-west sections reveal, involved a fairly gentle slope of 2.2m between the east and west boundaries over a distance of 42.67m which is an average slope of 5%.

Ratio Decidendi

Legal Principle Established

Mr Biller’s report then set out various comments under the following headings:· Floor Space Ratio, Bulk and Scale - reference was made to the maximum permissible floor space ratio of 0.51:1 and to the floor space ratio proposed. The report noted that the floor space ratio non-compliance resulted in a building with unacceptable bulk and scale for the locality and recommended three measures to reduce its impact. Subject to those measures being accepted, the author considered that the new dwelling would be consistent with the objectives with respect to the size and bulk of dwelling houses as set out in DCP2. · Height – reference was made to the maximum permissible wall height of 7.5m and noted that the heights proposed were 7.6m and 9m with the non-compliance increasing towards the rear of the site. Adoption of the measures referred to under the heading of floor space ratio would, however, reduce the overall height of the development to “a more acceptable wall height of between 7.2m and 8.6m”. Reducing the height would also decrease the loss of solar access to the property to the south [being that of the appellant].· Setbacks – reference was made under this heading to the set backs on all sides of the site in relation to the requirements of DCP2. So far as the side set backs were concerned, the report noted that in general they had been “appropriately articulated to reduce the bulk impact on adjoining properties”. The rear and front set backs were then referred to, it being noted that there was a significant non-compliance with the rear set backs of adjoining dwellings which was unacceptable. The report noted that the rear set back of the proposed dwelling should reflect that of the adjoining building to the north and that this could be achieved. Under the heading Car Parking and Access the report referred to the requirement in DCP2 that the proposal generated a requirement for two car parking spaces but that four were provided. There was no reference to DCP14. The number of car spaces was not objected to although the author of the report made reference to the requirement that the length of the basement parking area be decreased by two metres to reduce the overall floor space by 19m². Under the heading “MERIT ASSESSMENT AND OTHER MATTERS”, Mr Biller dealt with that part of DCP2 that related to the residential character study of Dover Heights, dealing with each of the desired future character objectives set out in that document with respect to streetscape and architectural style including cl 4.2 under the heading “Desired Future Character Objectives”, noting that it was considered that villa style housing with a pitched roof was no longer the predominant architectural style in this particular part of Dover Heights. The report then dealt with the issue of privacy and overshadowing. After summarising some 15 concerns extracted from the submissions from the owners of Nos. 13, 15, 17, 19 and 21 Rodney Street (the only objectors), the report agreed with the objectors that in its current form the proposal generated unacceptable impacts on adjoining properties and on the existing streetscape but noted that it could be amended to reduce those impacts and result in a solution which better fitted the context and was more responsible to the constraints of the site. Mr Biller therefore recommended that the Council defer the application and allow the applicant the opportunity to submit amended plans incorporating the following measures:1.Decrease the internal height of the basement level (currently 3.3m) by 400mm to 2.9m. This will reduce the overall height of the building by 400mm.2.Reduce the length of the basement parking area by a further 2m from the street alignment to reduce the overall FSR, increase the amount of deep soil landscaping at the front of the site and improve the interface of the building with the street.3.Increase the rear set back at first floor level to the same alignment as that of the adjoining residence to the north. The first floor could be more efficiently configured to achieve this.4.Increase the side set back in the area of bedroom 5 (south elevation) to 1500mm.5.Delete the sandstone wall above basement level adjoining the external stairs at the rear (southern elevation).6.Delete the vertical retractable louvre blinds proposed along the outer edges of terraces 3 and 4 at first floor level to allow a more open aspect, and in the case of terrace 4, a better visual connection with the street.7.Delete the solid wall and BBQ in the southern side of Terrace 1 to be replaced with 1m high open style balustrades.