Picciau v Georges River Council - [2019] NSWLEC 1114

Land and Environment Court

New South Wales

Medium Neutral Citation: Picciau v Georges River Council [2019] NSWLEC 1114
Hearing dates: 7 March 2019
Date of orders: 26 March 2019
Decision date: 26 March 2019
Jurisdiction: Class 1
Before: Dickson C
Decision:
The orders of the Court are:
(1) The applicant is granted leave to rely on amended plans;
(2) No order as to costs;
(3) The appeal is upheld;
(4) Consent is granted to Development Application No. No 2018/0081 for demolition of the existing dwelling and outbuildings and the construction of a new two storey dual occupancy development at 44 Caloola Crescent, Beverley Hills, Lot 694 DP 13496, subject to conditions in Annexure A;
(5) The exhibits are returned with the exception of Exhibit 2, A, C, E, G and L.

Catchwords: DEVELOPMENT APPLICATION: Attached dual occupancy development – variation to minimum lot width control – whether the development is a reasonable alternative solution that achieves the objects of the standard – appeal upheld.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Hurstville Local Environmental Plan 2012
Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151
Texts Cited: Hurstville Development Control Plan 1
Category: Principal judgment
Parties: Oscar Picciau (First Applicant)
Xianyong Zhang (Second Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
N Eastman (Applicants)
Solicitors:
A Berry, Georges River Council (Respondent)
Mills Oakley Law Firm (Applicants)

File Number(s): 2018/246704
Publication restriction: No

Judgment

COMMISSIONER: The applicants lodged development application No 2018/0081 with Georges River Council (Council) on 9 March 2018. They seek consent for the demolition of the existing dwelling and outbuildings, and for the construction of a new two storey dual occupancy development. The Council refused consent on 4 April 2018 and the applicant is appealing that determination in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).
The development is proposed at 44 Caloola Crescent, Beverley Hills. The proposed dual occupancy is configured so that both dwellings front Caloola Crescent and are attached with a common wall.
The appeal was subject to mandatory conciliation under s 34AA of the Land and Environment Court Act 1979. No agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing.
At the commencement of the proceedings the applicant sought and was granted leave to rely on a further amended set of plans. The amendments include: the relocation of the pool in the rear yard of Dwelling 2 away from a substantial tree on the adjoining property; relocation of the proposed building closer to the street to align with the predominate building line; and the provision of highlight windows and obscure glazing to a number of windows in proximity to the side boundaries. Leave…

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: [2019] NSWLEC 1114
Decision Date: 26 March 2019

CaseChat Overview and Summary

The applicants in Picciau v Georges River Council were seeking to have their development application approved for the demolition of an existing dwelling and outbuildings, and the construction of a new two-storey dual occupancy development at 44 Caloola Crescent, Beverley Hills. The respondents, Georges River Council, had previously refused the development application, which led to the applicants appealing to the Land and Environment Court. The Court was tasked with determining whether the refusal of the development application was correct or if it should be overturned in favour of the applicants.

The central legal issues before the Court were whether the refusal of the development application was justified and whether the applicants had provided sufficient evidence to support their case. The Court had to consider the statutory criteria outlined in the Environmental Planning and Assessment Act 1979, including whether the proposed development was consistent with the relevant local environmental plan, whether it would have an unacceptable impact on the character of the area, and whether there were any other relevant considerations that should be taken into account.

The Court found that the refusal of the development application was not justified and that the applicants had provided sufficient evidence to support their case. The Court held that the proposed development was consistent with the relevant local environmental plan and that it would not have an unacceptable impact on the character of the area. The Court also found that there were no other relevant considerations that would outweigh the benefits of the proposed development. The Court was satisfied that the applicants had addressed the concerns raised by the respondents in their previous refusal and that the proposed development was in the best interests of the community. As a result, the Court granted the applicants leave to rely on amended plans, upheld the appeal, and granted consent to the development application subject to conditions in Annexure A.

The Court also made orders regarding the exhibits, granting consent for the return of all exhibits except for Exhibit 2, A, C, E, G, and L. The Court did not make any orders as to costs. Overall, the Court's decision in Picciau v Georges River Council provides important guidance for applicants seeking to have their development applications approved, and highlights the importance of providing sufficient evidence to support a case before the Land and Environment Court.

Orders

Orders of the court

The orders of the Court are:

(1) The applicant is granted leave to rely on amended plans;

(2) No order as to costs;

(3) The appeal is upheld;

(4) Consent is granted to Development Application No. No 2018/0081 for demolition of the existing dwelling and outbuildings and the construction of a new two storey dual occupancy development at 44 Caloola Crescent, Beverley Hills, Lot 694 DP 13496, subject to conditions in Annexure A;

(5) The exhibits are returned with the exception of Exhibit 2, A, C, E, G and L.

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:	Picciau v Georges River Council [2019] NSWLEC 1114
Hearing dates:	7 March 2019
Date of orders:	26 March 2019
Decision date:	26 March 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1) The applicant is granted leave to rely on amended plans; (2) No order as to costs; (3) The appeal is upheld; (4) Consent is granted to Development Application No. No 2018/0081 for demolition of the existing dwelling and outbuildings and the construction of a new two storey dual occupancy development at 44 Caloola Crescent, Beverley Hills, Lot 694 DP 13496, subject to conditions in Annexure A; (5) The exhibits are returned with the exception of Exhibit 2, A, C, E, G and L.
Catchwords:	DEVELOPMENT APPLICATION: Attached dual occupancy development – variation to minimum lot width control – whether the development is a reasonable alternative solution that achieves the objects of the standard – appeal upheld.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Hurstville Local Environmental Plan 2012
Cases Cited:	Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151
Texts Cited:	Hurstville Development Control Plan 1
Category:	Principal judgment
Parties:	Oscar Picciau (First Applicant) Xianyong Zhang (Second Applicant) Georges River Council (Respondent)
Representation:	Counsel: N Eastman (Applicants) Solicitors: A Berry, Georges River Council (Respondent) Mills Oakley Law Firm (Applicants)
File Number(s):	2018/246704
Publication restriction:	No