Opera Properties v Northern Beaches Council - [2017] NSWLEC 1507

Land and Environment Court

New South Wales

Medium Neutral Citation: Opera Properties v Northern Beaches Council & anor [2017] NSWLEC 1507
Hearing dates: 14-16, 18 August 2017
Date of orders: 19 September 2017
Decision date: 19 September 2017
Jurisdiction: Class 1
Before: Dickson C
Decision:
The orders of the Court are:
1) The appeal is dismissed;
2) Staged Development application N0330/16, at Lots 3,4,5 of DP 124602 known as 120 Mona Vale Road Warriewood for:
a. A concept proposal for residential development comprising subdivision to create 62 residential allotments and construction of dwellings on each lot, demolition of existing structures and construction of associated infrastructure/ civil works (including works to Boundary Street road reserve) and landscaping; and
b. Consent to carry out Stage One of the development – comprising the demolition of existing structures, subdivision to create 39 residential lots and a residue lot under Torrens Title, associated infrastructure/ civil works (including works to Boundary Street road reserve) and landscaping;
is determined by way of refusal;
3) The request to make an order pursuant to Section 39(2) of the Land and Environment Court Act 1979 (NSW) that the Clause 7 of the Easement in Gross (registered dealing 1945166 as varied by registered dealing AB605380M) registered on title to Lot 10 in Deposited Plan 7055, being that land situate at 10 Jubilee Avenue, Warriewood be amended, is declined;
4) The exhibits are returned with the exception of exhibits R3, 5, A, B and C.

Catchwords: DEVELOPMENT APPEAL: Subdivision – power of the Court to vary easement to accommodate access for additional residential lots resulting from the development – owners consent – appropriateness and safety of vehicular and pedestrian access – bushfire management - location of asset protection zones not wholly within the development – appropriateness of alternative bushfire risk assessment by short run fire modelling – land slope – residential lots within outer creek line corridor – vehicular access to development not suitable – development fails precondition.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Environmental Planning and Assessment Regulation 2000
Real Property Act 1900
Cases Cited: Pro-Vision Developments Pty Ltd v Ku ring gai Municipal Council [2003] NSWLEC 226
Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151
Hillpalm v Tweed Shire Council & Anor [2002] NSWLEC17
Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197
Sydney City Council v IPOH Pty Ltd, [2006] NSW CA 300
Gallagher v Rainbow and Ors (1994) 179 CLR 624
McDougall v Warringah Shire Council (No 2) (1993) 30 NSWLR 258
North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20
Hillpalm v Tweed Shire Council [2002] NSWCA 332
Young and Anor v Gosford City Council [2001] NSWLEC 191
Weal v Bathurst City Council & Anor [2000] NSWCA 88
Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135
Lennard v Jessica Estates Pty Limited [2008] NSWCA 121
Farah v Warringah…

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: [2017] NSWLEC 1507
Decision Date: 19 September 2017

CaseChat Overview and Summary

Opera Properties brought an appeal against a decision by the Northern Beaches Council to refuse a development application for residential construction on land at Warriewood. The Land and Environment Court of New South Wales heard the appeal. The appeal centred on whether the refusal to grant development consent for the proposed residential development was unreasonable and whether the application to amend a clause in an easement in gross should be approved. The Court needed to decide if the reasons provided by the Council for refusing development consent were valid and if the amendment to the easement was justified.

The Court found that the Council's decision to refuse the development application was reasonable and well-supported by evidence. The Court determined that the proposed development did not align with the local planning policies and would have detrimental effects on the surrounding environment and community. Regarding the easement amendment, the Court concluded that the proposed changes were not necessary and would not significantly benefit the applicant. The Court dismissed the appeal and upheld the Council's decision to refuse the development application. Additionally, the Court declined the request to amend the easement clause. The Court ordered the return of the exhibits, except for a few specified documents.

Orders

Orders of the court

The orders of the Court are:

1) The appeal is dismissed;

2) Staged Development application N0330/16, at Lots 3,4,5 of DP 124602 known as 120 Mona Vale Road Warriewood for:

a. A concept proposal for residential development comprising subdivision to create 62 residential allotments and construction of dwellings on each lot, demolition of existing structures and construction of associated infrastructure/ civil works (including works to Boundary Street road reserve) and landscaping; and

b. Consent to carry out Stage One of the development – comprising the demolition of existing structures, subdivision to create 39 residential lots and a residue lot under Torrens Title, associated infrastructure/ civil works (including works to Boundary Street road reserve) and landscaping;

is determined by way of refusal;

3) The request to make an order pursuant to Section 39(2) of the Land and Environment Court Act 1979 (NSW) that the Clause 7 of the Easement in Gross (registered dealing 1945166 as varied by registered dealing AB605380M) registered on title to Lot 10 in Deposited Plan 7055, being that land situate at 10 Jubilee Avenue, Warriewood be amended, is declined;

4) The exhibits are returned with the exception of exhibits R3, 5, A, B and C.

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:	Opera Properties v Northern Beaches Council & anor [2017] NSWLEC 1507
Hearing dates:	14-16, 18 August 2017
Date of orders:	19 September 2017
Decision date:	19 September 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: 1) The appeal is dismissed; 2) Staged Development application N0330/16, at Lots 3,4,5 of DP 124602 known as 120 Mona Vale Road Warriewood for: a. A concept proposal for residential development comprising subdivision to create 62 residential allotments and construction of dwellings on each lot, demolition of existing structures and construction of associated infrastructure/ civil works (including works to Boundary Street road reserve) and landscaping; and b. Consent to carry out Stage One of the development – comprising the demolition of existing structures, subdivision to create 39 residential lots and a residue lot under Torrens Title, associated infrastructure/ civil works (including works to Boundary Street road reserve) and landscaping; is determined by way of refusal; 3) The request to make an order pursuant to Section 39(2) of the Land and Environment Court Act 1979 (NSW) that the Clause 7 of the Easement in Gross (registered dealing 1945166 as varied by registered dealing AB605380M) registered on title to Lot 10 in Deposited Plan 7055, being that land situate at 10 Jubilee Avenue, Warriewood be amended, is declined; 4) The exhibits are returned with the exception of exhibits R3, 5, A, B and C.
Catchwords:	DEVELOPMENT APPEAL: Subdivision – power of the Court to vary easement to accommodate access for additional residential lots resulting from the development – owners consent – appropriateness and safety of vehicular and pedestrian access – bushfire management - location of asset protection zones not wholly within the development – appropriateness of alternative bushfire risk assessment by short run fire modelling – land slope – residential lots within outer creek line corridor – vehicular access to development not suitable – development fails precondition.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Environmental Planning and Assessment Regulation 2000 Real Property Act 1900
Cases Cited:	Pro-Vision Developments Pty Ltd v Ku ring gai Municipal Council [2003] NSWLEC 226 Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 Hillpalm v Tweed Shire Council & Anor [2002] NSWLEC17 Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197 Sydney City Council v IPOH Pty Ltd, [2006] NSW CA 300 Gallagher v Rainbow and Ors (1994) 179 CLR 624 McDougall v Warringah Shire Council (No 2) (1993) 30 NSWLR 258 North Sydney Council v Ligon 302 Pty Ltd [1996] HCA 20 Hillpalm v Tweed Shire Council [2002] NSWCA 332 Young and Anor v Gosford City Council [2001] NSWLEC 191 Weal v Bathurst City Council & Anor [2000] NSWCA 88 Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135 Lennard v Jessica Estates Pty Limited [2008] NSWCA 121 Farah v Warringah…