Oates v Northern Beaches Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Oates v Northern Beaches Council [2021] NSWLEC 1684

Hearing dates:

4 November 2021

Date of orders:

9 November 2021

Decision date:

09 November 2021

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

1) The appeal is dismissed.

2) Development Application No. 2020/1684 for alterations and additions to a group home to enlarge the northern balconies, at 89 Wyadra Avenue, North Manly, is refused.

3) The exhibits, other than Exhibits 1 and C, are returned.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to an existing group home to enlarge balconies – amended development application – visual privacy and amenity impacts – building bulk uncharacteristic of the low density residential locality

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Warringah Local Environmental Plan 2011

Cases Cited:

Davies v Penrith City Council [2013] NSWLEC 1141

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Texts Cited:

Warringah Development Control Plan 2011

Category:

Principal judgment

Parties:

Tom Oates (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Farrell (Respondent)

Solicitors:
Self-represented (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2021/177837

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2020/1684 for alterations and additions to a group home known as Manly House to enlarge the northern balconies, including opaque or solid balustrades, privacy screens and planter boxes (the proposal), at 89 Wyadra Avenue, North Manly (the site) by Northern Beaches Council (the Council) on 16 June 2021.

2. The appeal was subject to conciliation on 9 August 2021, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, pursuant to s 34(4) of the LEC Act.

The development application is amended

3. The applicant sought leave to amend the development application to rely on the amended sketches in the Class 1 Application bundle (Ex C). The Council, as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agreed to the applicant amending the application.

4. I made the following orders on 4 November 2021:

“(1) The applicant is granted leave to amend Development Application No. 2020/1684 to rely on the sketches in the Class 1 Application bundle, Exhibit C.

(2) The parties are to facilitate the amended application being lodged the on the NSW planning portal by 11 November 2021, and the applicant is to file a copy of the amended development application after the amendment has been lodged on the NSW planning portal.”

5. The Council uploaded the amended development application on 4 November 2011 and filed the sketches shortly afterwards.

Issues

6. The Council’s contentions can be summarised as:

The proposal would provide inadequate visual privacy to…