Pritchard v Northern Beaches Council - [2020] NSWLEC 1310

Land and Environment Court

New South Wales

Medium Neutral Citation: Pritchard v Northern Beaches Council [2020] NSWLEC 1310
Hearing dates: 19, 22 June 2020
Date of orders: 21 July 2020
Decision date: 21 July 2020
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1)   The appeal is dismissed.
(2)   The development application for alterations and additions to a dwelling at 11 Adelaide Street, Balgowlah Heights (DA2019/1303) is refused.
(3)   The exhibits are returned, except for Exhibit A.

Catchwords:
APPEAL – development application – alterations and additions to a dwelling house approved by a complying development certificate – whether a development application can be made with respect to a dwelling approved by a complying development certificate – breach of floor space ratio development standard – clause 4.6 of the local environmental plan – whether written request adequate

Legislation Cited:
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Interpretation Act 1987
Land and Environment Court Act 1979
Manly Local Environmental Plan 2013
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Cases Cited:
Abrams v Council of the City of Sydney [2019] NSWLEC 1583
Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
Chambers v Maclean Shire Council (2003) 57 NSWLR 152; (2003) 126 LGERA 7; [2003] NSWCA 100
Dean v Minister for Planning and Andros Australia Pty Limited [2007] NSWLEC 779
Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712
Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) v Minister for Planning [2018] NSWLEC 130
Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Waverley Council v C M Hairis Architects (2002) 100 LGERA 123; [2002] NSWLEC 180
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSWLEC 240

Category: Principal judgment
Parties: John Pritchard (First Applicant)
Leanne Pritchard (Second Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
M Staunton (Applicants)
J Lazarus SC (Respondent)
Solicitors:
Sattler and Associates Pty Ltd (Applicants)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2020/19060
Publication restriction: No

Judgment

COMMISSIONER: The applicants, John and Leanne Pritchard seek development consent for alterations and additions to a dwelling at 11 Adelaide Street, Balgowlah Heights. The dwelling to which alterations and additions are sought is in the process of construction. The approval to construct the dwelling was given through a Complying Development Certificate (“CDC”), issued pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (“SEPP ECDC”) and Div 4.5 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). They lodged a development application with Northern Beaches Council (“the Council”) on…

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 1310
Decision Date: 21 July 2020

CaseChat Overview and Summary

The appeal was brought by the owner of a property located at 11 Adelaide Street, Balgowlah Heights, against a decision of the Northern Beaches Council to refuse a development application for alterations and additions to a dwelling. The application was made under the Environmental Planning and Assessment Act 1979 (NSW) and was ultimately dismissed by the Land and Environment Court of New South Wales.

The central legal issue before the court was whether the council had acted lawfully and rationally in refusing the development application. The applicant argued that the decision was unreasonable and not in accordance with the relevant legislative provisions and policies. The applicant contended that the council had failed to properly consider the merits of the proposal and had instead relied on irrelevant factors. The council, on the other hand, maintained that the decision was lawful and that the development proposal did not comply with the relevant planning controls and was not in the public interest.

The court found that the council had exercised its powers correctly and had not acted unreasonably in refusing the development application. The court held that the council had considered all relevant factors and had provided adequate reasons for its decision. The court further found that the applicant had not demonstrated that the council's decision was in any way irrational or unlawful. The applicant's arguments regarding the council's consideration of irrelevant factors were dismissed as lacking merit. The court concluded that the council's decision was reasonable and in accordance with the law.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) The development application for alterations and additions to a dwelling at 11 Adelaide Street, Balgowlah Heights (DA2019/1303) is refused.

(3) The exhibits are returned, except for Exhibit A.

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:	Pritchard v Northern Beaches Council [2020] NSWLEC 1310
Hearing dates:	19, 22 June 2020
Date of orders:	21 July 2020
Decision date:	21 July 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) The development application for alterations and additions to a dwelling at 11 Adelaide Street, Balgowlah Heights (DA2019/1303) is refused. (3) The exhibits are returned, except for Exhibit A.
Catchwords:	APPEAL – development application – alterations and additions to a dwelling house approved by a complying development certificate – whether a development application can be made with respect to a dwelling approved by a complying development certificate – breach of floor space ratio development standard – clause 4.6 of the local environmental plan – whether written request adequate
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Interpretation Act 1987 Land and Environment Court Act 1979 Manly Local Environmental Plan 2013 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Abrams v Council of the City of Sydney [2019] NSWLEC 1583 Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 Chambers v Maclean Shire Council (2003) 57 NSWLR 152; (2003) 126 LGERA 7; [2003] NSWCA 100 Dean v Minister for Planning and Andros Australia Pty Limited [2007] NSWLEC 779 Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) v Minister for Planning [2018] NSWLEC 130 Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Waverley Council v C M Hairis Architects (2002) 100 LGERA 123; [2002] NSWLEC 180 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299; [2000] NSWLEC 240
Category:	Principal judgment
Parties:	John Pritchard (First Applicant) Leanne Pritchard (Second Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: M Staunton (Applicants) J Lazarus SC (Respondent) Solicitors: Sattler and Associates Pty Ltd (Applicants) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2020/19060
Publication restriction:	No