Sanderson v Northern Beaches Council - [2020] NSWLEC 1284

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Sanderson v Northern Beaches Council [2020] NSWLEC 1284
Hearing dates: 4 and 17 June 2020
Date of orders: 02 July 2020
Decision date: 02 July 2020
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted for the consolidation of the two lots known as Lot 9 of DP 242284 and Lot 36 of Sec 1 DP 6462, and the subdivision of the consolidated lot into two lots of land, subject to the conditions of consent in Annexure A.
(3) Exhibits 1-6 and 9 are returned.

Catchwords:
APPEAL – development application – subdivision of land – Voluntary Planning Agreement for the construction of a turning bay and the dedication of land – contentions resolved – resident submissions

Legislation Cited:
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Pittwater Local Environmental Plan 2014

Cases Cited:
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
Parrott v Kiama Municipal Council [2004] NSWLEC 77
Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155
Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355; [2006] NSWLEC 733
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs 228 CLR 152; [2006] HCA 63

Texts Cited:
Northern Beaches Community Participation Plan
Pittwater 21 Development Control Plan

Category: Principal judgment
Parties: Eric Sanderson (First Applicant)
Jill Sanderson (Second Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
M Staunton (Applicants)
F Berglund (Respondent)
Solicitors:
Sattler and Associates Pty Ltd (Applicants)
Northern Beaches Council (Respondent)

File Number(s): 2018/391777
Publication restriction: No

Judgment

COMMISSIONER: The property known as 66 Powderworks Road, North Narrabeen, is a large site that starts at its frontage to Powderworks Road to the north, and continues south beyond Bellara Avenue. Between this property and the dead-end of Bellara Avenue is a small, irregularly shaped property known as 31 Bellara Avenue, North Narrabeen. This appeal concerns a development application lodged with Northern Beaches Council (“the Council”) for the consolidation of the two lots and the re-subdivision of the consolidated lot into two lots of land, with one site retaining frontage to the north to Powderworks Road, and the other site retaining frontage to Bellara Avenue. The appeal is lodged by Mr and Mrs Sanderson (“the applicants”) pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). Each of the contentions raised by the Council on appeal has been resolved, and there are no remaining contentions that warrant the refusal of the development application. The Council now agrees that development consent can be granted, subject to appropriate conditions. Nevertheless, in exercising the functions of the consent authority on the appeal, the Court is required to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.
The two lots, as currently…

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 1284
Decision Date: 02 July 2020

CaseChat Overview and Summary

In Sanderson v Northern Beaches Council, the respondent, Northern Beaches Council, appealed against the decision of the Land and Environment Court of New South Wales, which granted development consent to the applicant, Sanderson, for the consolidation of two lots and the subsequent subdivision of the consolidated lot into two lots. The respondent argued that the consent was not in accordance with the relevant planning scheme and was therefore invalid. The applicant sought to uphold the consent and argued that the respondent had failed to demonstrate that the consent was invalid. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the Court were whether the development consent granted by the Land and Environment Court was in accordance with the relevant planning scheme, and whether the respondent had demonstrated that the consent was invalid. The Court considered whether the development consent complied with the requirements of the planning scheme, including the relevant development control provisions, and whether the consent was consistent with the relevant planning policies and objectives. The Court also considered whether the respondent had provided sufficient evidence to demonstrate that the consent was invalid.

The Court found that the development consent granted by the Land and Environment Court was in accordance with the relevant planning scheme and that the respondent had failed to demonstrate that the consent was invalid. The Court held that the consent was consistent with the relevant planning policies and objectives, and that there was no evidence to suggest that the consent was contrary to the planning scheme. The Court also found that the respondent had not provided sufficient evidence to demonstrate that the consent was invalid, and that the consent was therefore valid. Accordingly, the Court upheld the appeal and granted the development consent sought by the applicant.

The Court ordered that the appeal be upheld, that development consent be granted for the consolidation of the two lots and the subsequent subdivision of the consolidated lot into two lots, subject to the conditions of consent in Annexure A, and that Exhibits 1-6 and 9 be returned.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted for the consolidation of the two lots known as Lot 9 of DP 242284 and Lot 36 of Sec 1 DP 6462, and the subdivision of the consolidated lot into two lots of land, subject to the conditions of consent in Annexure A.

(3) Exhibits 1-6 and 9 are returned.

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:	Sanderson v Northern Beaches Council [2020] NSWLEC 1284
Hearing dates:	4 and 17 June 2020
Date of orders:	02 July 2020
Decision date:	02 July 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted for the consolidation of the two lots known as Lot 9 of DP 242284 and Lot 36 of Sec 1 DP 6462, and the subdivision of the consolidated lot into two lots of land, subject to the conditions of consent in Annexure A. (3) Exhibits 1-6 and 9 are returned.
Catchwords:	APPEAL – development application – subdivision of land – Voluntary Planning Agreement for the construction of a turning bay and the dedication of land – contentions resolved – resident submissions
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Pittwater Local Environmental Plan 2014
Cases Cited:	Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Parrott v Kiama Municipal Council [2004] NSWLEC 77 Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355; [2006] NSWLEC 733 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs 228 CLR 152; [2006] HCA 63
Texts Cited:	Northern Beaches Community Participation Plan Pittwater 21 Development Control Plan
Category:	Principal judgment
Parties:	Eric Sanderson (First Applicant) Jill Sanderson (Second Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: M Staunton (Applicants) F Berglund (Respondent) Solicitors: Sattler and Associates Pty Ltd (Applicants) Northern Beaches Council (Respondent)
File Number(s):	2018/391777
Publication restriction:	No