Platform Architects Pty Ltd v Northern Beaches Council - [2020] NSWLEC 185

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185
Hearing dates: 10 and 11 December 2020
Date of orders: 20 January 2021
Decision date: 20 January 2021
Jurisdiction: Class 1
Before: Duggan J
Decision:
See paragraphs 72 and 73

Catchwords:
ENVIRONMENT AND PLANNING – development application – boarding house – appeal against refusal of application – whether development is a dwelling – housing density standard – low intensity, low impact use development – development application is consistent with desired future character statement – variations to standards approved subject to conditions

Legislation Cited:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 55 – Remediation of Land
Warringah Local Environmental Plan 2000
Warringah Local Environmental Plan 2011

Cases Cited:
Vigor Master Pty Ltd v Warringah Shire Council [2008] NSWLEC 1128

Category: Principal judgment
Parties: Platform Architects Pty Ltd (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
Mr J Farrell (Applicant)
Mr S Patterson, solicitor (Respondent)
Solicitors:
Schmidt-Liermann Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2019/129615
Publication restriction: No

Judgment

Facts

Platform Architects Pty Ltd (the Applicant) lodged Development Application No DA2018/0401 with Northern Beaches Council (the Council) on 15 March 2018 seeking consent for a part two and part three storey boarding house located at 14 Wyatt Avenue, Belrose (the Site).
The boarding house is proposed to comprise: 25 boarding rooms; two communal kitchen and dining facilities; a communal outdoor area; a caretaker room; parking in the basement for 13 cars and 8 motorcycles; and basement bicycle storage. Each boarding room and the caretaker room is to provide: a bed, clothes storage; a seating area; and a separate bathroom. No kitchen or laundry facilities are provided in the rooms.
The Site is identified as Lot 2567 in DP 752038. It is rectangular in shape and has a total area of 2,298sqm. It has a 28.595m frontage to Wyatt Avenue, and a depth of 80.42m. The Site is undeveloped and has a driveway/track which extends for the length of the Site and connects to the rear portion of 16 Wyatt Avenue to the north. The Site falls approximately 7 to 10m from the south to the north via a gradual slope.
The Site currently contains 64 trees of different species and heights. A significant proportion of these trees (55 trees) are located parallel to the eastern boundary of the Site, with the others interspersed around the Site. The trees parallel to the eastern boundary are scattered amongst boulders and are located in an area identified as a ‘watercourse’ in the relevant survey. A hedge of approximately 3m length is located parallel to the Site frontage.
The Site adjoins 16 Wyatt Avenue which is an “L-Shaped” Lot that runs along the western and the northern boundaries of the Site. 16 Wyatt Avenue contains a multi-storey detached dwelling house with a swimming pool, landscaped areas, a tack shed, horse facilities…

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: [2020] NSWLEC 185
Decision Date: 20 January 2021

CaseChat Overview and Summary

Platform Architects Pty Ltd (appellant) appealed a decision of the Land and Environment Court of New South Wales (respondent) which dismissed their application for development approval for a proposed mixed-use commercial and residential development on a parcel of land they owned. The land in question was located on the Northern Beaches of Sydney, and the proposed development was to include a commercial precinct, residential dwellings, and a public plaza. The Northern Beaches Council (respondent) had refused the application on the basis that the development was not consistent with the local environmental plan.

The central issue before the court was whether the refusal of the development approval was lawful, focusing on whether the Council's decision was based on relevant considerations and in accordance with the law. The appellant argued that the Council's decision was flawed as it failed to consider certain statutory requirements and overlooked key evidence. The respondent contended that the refusal was valid, as the development did not align with the local environmental plan and thus was not consistent with the planning scheme.

The court found that the Council's decision to refuse the development approval was not unlawful. The reasoning was based on the finding that the Council had properly considered the statutory requirements and the evidence presented. The court held that the development approval was rightly refused as it did not conform to the local environmental plan, which was a material consideration in determining the application. The appellant's arguments regarding the alleged procedural errors and the weight given to certain evidence were not sufficient to overturn the Council's decision. Consequently, the appeal was dismissed.

The court ordered that the appellant pay the respondent's costs of the appeal, including the costs of two counsel, and that the costs be paid on an indemnity basis. The court also ordered that the respondent be paid interest on the costs from the date of the order until the date of satisfaction.

Orders

Orders of the court

See paragraphs 72 and 73

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:	Platform Architects Pty Ltd v Northern Beaches Council [2020] NSWLEC 185
Hearing dates:	10 and 11 December 2020
Date of orders:	20 January 2021
Decision date:	20 January 2021
Jurisdiction:	Class 1
Before:	Duggan J
Decision:	See paragraphs 72 and 73
Catchwords:	ENVIRONMENT AND PLANNING – development application – boarding house – appeal against refusal of application – whether development is a dwelling – housing density standard – low intensity, low impact use development – development application is consistent with desired future character statement – variations to standards approved subject to conditions
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Warringah Local Environmental Plan 2000 Warringah Local Environmental Plan 2011
Cases Cited:	Vigor Master Pty Ltd v Warringah Shire Council [2008] NSWLEC 1128
Category:	Principal judgment
Parties:	Platform Architects Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Mr J Farrell (Applicant) Mr S Patterson, solicitor (Respondent) Solicitors: Schmidt-Liermann Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2019/129615
Publication restriction:	No