Sherman v Newcastle City Council - [2019] NSWLEC 1238

Land and Environment Court

New South Wales

Medium Neutral Citation: Sherman v Newcastle City Council [2019] NSWLEC 1238
Hearing dates: 29 – 30 April 2019
Date of orders: 31 May 2019
Decision date: 31 May 2019
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The Applicant is granted leave to amend the Plan of Management for the proposed development to the version dated 1 May 2019 and included as Annexure ‘A’;
(2) The appeal is upheld;
(3) Development Application for a change of use from a residential dwelling to tourist and visitor accommodation at Lot 16 Section J in DP 37393, 22 John Parade, Merewether is approved subject to the conditions in Annexure ‘B’;
(4) The exhibits are returned with the exception of Exhibits A, B and 2.

Catchwords: DEVELOPMENT APPLICATION – seeks change of use of dwelling to tourist and visitor accommodation – whether the development is properly characterised as a serviced apartment – serviced apartments a prohibited use – amenity impacts on adjoining properties – certainty of plan of management and conditions of consent - appeal upheld
Legislation Cited: Environmental Planning and Assessment Act 1979
Newcastle Local Environmental Plan 2012
State Environmental Planning Policy No 71—Coastal Protection
State Environmental Planning Policy (Coastal Management) 2018
Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Davies v Penrith City Council [2013] NSWLEC 1141
Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160
Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Tweed Shire Council v Taylor [2019] NSWLEC 45
Texts Cited:
“Explanation of Intended Effect: Short –term Rental Accommodation Planning Framework”, NSW Department of Planning and Environment
‘Adequacy of the Regulation of Short-Term Holiday Letting in New South Wales’ Legislative Assembly Committee on Environment and Planning
Category: Principal judgment
Parties: Adam Sherman (Applicant)
Newcastle City Council (Respondent)
Representation:
Counsel:
A Pickles, SC (Applicant)
F Berglund (Respondent)
Solicitors:
Mills Oakley (Applicant)
Newcastle City Council (Respondent)

File Number(s): 2018/249905
Publication restriction: No

Judgment

Nature of the Appeal and Outcome

COMMISSIONER: The applicant lodged Development Application No. DA-2017/01339 on 26 October 2017. The Applicant seeks approval for a change of use from a residential dwelling to tourist and visitor accommodation. The development application does not seek consent for any physical works to the property. The development is proposed at Lot 16 Section J in DP 37393, 22 John Parade, Merewether. The Council refused the development application on 26 March 2018 and the applicant is appealing that determination in accordance with the provisions s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act).
The Statement of Environmental…

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 1238
Decision Date: 31 May 2019

CaseChat Overview and Summary

The case of Sherman v Newcastle City Council involved Sherman, the Applicant, challenging a decision of the Newcastle City Council to refuse a development application for a change of use of a property located at 22 John Parade, Merewether. The Applicant sought approval to change the use of the property from a residential dwelling to tourist and visitor accommodation. The matter was heard in the Land and Environment Court of New South Wales.

The central legal issues that the Court had to address were whether the Applicant had the right to amend the Plan of Management for the proposed development, whether the refusal of the development application was lawful and, if not, what orders should be made to remedy the situation. The Applicant argued that the Council had incorrectly assessed the merits of the development application and had failed to consider certain statutory obligations.

In delivering its judgment, the Court held that the Applicant was entitled to amend the Plan of Management as it was a procedural matter that did not prejudice the Council's ability to fairly assess the development application. The Court found that the refusal of the development application was not supported by the evidence and was therefore unlawful. The Court approved the development application subject to certain conditions aimed at mitigating the impact of the proposed use on the local community. The Court also made orders for the return of the exhibits with some exceptions.

Orders

Orders of the court

The Court orders that:

(1) The Applicant is granted leave to amend the Plan of Management for the proposed development to the version dated 1 May 2019 and included as Annexure ‘A’;

(2) The appeal is upheld;

(3) Development Application for a change of use from a residential dwelling to tourist and visitor accommodation at Lot 16 Section J in DP 37393, 22 John Parade, Merewether is approved subject to the conditions in Annexure ‘B’;

(4) The exhibits are returned with the exception of Exhibits A, B and 2.

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:	Sherman v Newcastle City Council [2019] NSWLEC 1238
Hearing dates:	29 – 30 April 2019
Date of orders:	31 May 2019
Decision date:	31 May 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The Applicant is granted leave to amend the Plan of Management for the proposed development to the version dated 1 May 2019 and included as Annexure ‘A’; (2) The appeal is upheld; (3) Development Application for a change of use from a residential dwelling to tourist and visitor accommodation at Lot 16 Section J in DP 37393, 22 John Parade, Merewether is approved subject to the conditions in Annexure ‘B’; (4) The exhibits are returned with the exception of Exhibits A, B and 2.
Catchwords:	DEVELOPMENT APPLICATION – seeks change of use of dwelling to tourist and visitor accommodation – whether the development is properly characterised as a serviced apartment – serviced apartments a prohibited use – amenity impacts on adjoining properties – certainty of plan of management and conditions of consent - appeal upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979 Newcastle Local Environmental Plan 2012 State Environmental Planning Policy No 71—Coastal Protection State Environmental Planning Policy (Coastal Management) 2018
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Davies v Penrith City Council [2013] NSWLEC 1141 Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Tweed Shire Council v Taylor [2019] NSWLEC 45
Texts Cited:	“Explanation of Intended Effect: Short –term Rental Accommodation Planning Framework”, NSW Department of Planning and Environment ‘Adequacy of the Regulation of Short-Term Holiday Letting in New South Wales’ Legislative Assembly Committee on Environment and Planning
Category:	Principal judgment
Parties:	Adam Sherman (Applicant) Newcastle City Council (Respondent)
Representation:	Counsel: A Pickles, SC (Applicant) F Berglund (Respondent) Solicitors: Mills Oakley (Applicant) Newcastle City Council (Respondent)
File Number(s):	2018/249905
Publication restriction:	No