Sixto Properties Pty Ltd v Waverley Council - [2019] NSWLEC 1171

Land and Environment Court

New South Wales

Medium Neutral Citation: Sixto Properties Pty Ltd v Waverley Council [2019] NSWLEC 1171
Hearing dates: 25 March 2019
Date of orders: 16 April 2019
Decision date: 16 April 2019
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) By agreement the applicant is granted leave to amend the development application and rely on the plans in Annexure ‘A’;
(2) By agreement the applicant is granted leave to amend the written variation requests and rely on the documentation contained in Exhibit D;
(3) The appeal is upheld;
(4) Development Application DA/448/2017 for demolition and construction of an attached dual occupancy including associated landscaping and Torrens title subdivision into two lots at 25 Glasgow Avenue, Bondi Beach is approved subject to the conditions in Annexure ‘B’;
(5) The exhibits are returned with the exception of Exhibits 3, B and D.

Catchwords: DEVELOPMENT APPLICATION: new attached dual occupancies – Torrens title subdivision – variation to minimum lot size – variation to floor space ratio – planning experts agree development warrants approval – appeal upheld
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Waverley Local Environmental Plan 2012
Cases Cited: Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83
Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248
Initial Action v Woollahra Municipal Council [2018] NSWLEC 118
Sharp v Hunters Hill Council [2002] NSWLEC 27
Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151
Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited: Waverley Development Control Plan 2012
Category: Principal judgment
Parties: Sixto Properties Pty Ltd (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
J Reid (Applicant)
Solicitors:
Mills Oakley (Applicant)
J Ede, Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2018/246713
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of the Applicant’s development application number: DA-448/2017. The Applicant seeks approval for: the demolition of the existing buildings; construction of an attached dual occupancy including associated landscaping; and the Torrens title subdivision of the existing lot into two lots. The development is proposed at 25 Glasgow Avenue, Bondi Beach.
The appeal was subject to mandatory conciliation on 25 March 2019 (34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with forthwith, with the consent of the parties as a hearing pursuant to s 34AA(2)(b)(ii) LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing.
The Applicant sought and was granted leave by the Court to rely on an amended set of architectural plans and an updated written variation request. The amendments to the development incorporate changes agreed to by the planning experts in their joint conference. The Council raised no objection to…

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 1171
Decision Date: 16 April 2019

CaseChat Overview and Summary

The case before the court involved Sixto Properties Pty Ltd as the applicant, and Waverley Council as the respondent. The dispute centred on the applicant's development application for the demolition and construction of a dual occupancy building at 25 Glasgow Avenue, Bondi Beach. The applicant sought to amend its development application and associated documents to align with specific plans and variations. The Waverley Council opposed the amendments and the development application itself, leading to an appeal by the applicant to the Land and Environment Court.

The court was tasked with determining whether the applicant should be granted leave to amend its development application and associated documentation. Additionally, the court had to decide whether the applicant's development application should be approved, and if so, under what conditions. The legal issues involved interpreting the relevant planning legislation and development control rules to assess the validity and merits of the amendments and the development application.

The court found that the applicant's proposed amendments were reasonable and did not significantly alter the nature of the development. The court acknowledged that the applicant's plans and variations were consistent with the council's planning policies and did not present any substantial issues that would warrant denial of the amendments. Furthermore, the court determined that the development application met the necessary criteria for approval. The court held that the proposed development would not adversely affect the character of the area and would comply with relevant planning controls. Therefore, the court granted the applicant leave to amend its development application and associated documentation, approved the development application subject to specific conditions, and ordered the exhibits be returned with certain exceptions.

Orders

Orders of the court

The Court orders that:

(1) By agreement the applicant is granted leave to amend the development application and rely on the plans in Annexure ‘A’;

(2) By agreement the applicant is granted leave to amend the written variation requests and rely on the documentation contained in Exhibit D;

(3) The appeal is upheld;

(4) Development Application DA/448/2017 for demolition and construction of an attached dual occupancy including associated landscaping and Torrens title subdivision into two lots at 25 Glasgow Avenue, Bondi Beach is approved subject to the conditions in Annexure ‘B’;

(5) The exhibits are returned with the exception of Exhibits 3, B and D.

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:	Sixto Properties Pty Ltd v Waverley Council [2019] NSWLEC 1171
Hearing dates:	25 March 2019
Date of orders:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) By agreement the applicant is granted leave to amend the development application and rely on the plans in Annexure ‘A’; (2) By agreement the applicant is granted leave to amend the written variation requests and rely on the documentation contained in Exhibit D; (3) The appeal is upheld; (4) Development Application DA/448/2017 for demolition and construction of an attached dual occupancy including associated landscaping and Torrens title subdivision into two lots at 25 Glasgow Avenue, Bondi Beach is approved subject to the conditions in Annexure ‘B’; (5) The exhibits are returned with the exception of Exhibits 3, B and D.
Catchwords:	DEVELOPMENT APPLICATION: new attached dual occupancies – Torrens title subdivision – variation to minimum lot size – variation to floor space ratio – planning experts agree development warrants approval – appeal upheld
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Waverley Local Environmental Plan 2012
Cases Cited:	Cumberland Council v Cando Management and Maintenance Pty Ltd [2018] NSWLEC 83 Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Sharp v Hunters Hill Council [2002] NSWLEC 27 Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Waverley Development Control Plan 2012
Category:	Principal judgment
Parties:	Sixto Properties Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Counsel: J Reid (Applicant) Solicitors: Mills Oakley (Applicant) J Ede, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/246713
Publication restriction:	No