Stokes v Waverley Council - [2019] NSWLEC 1137

Land and Environment Court

New South Wales

Medium Neutral Citation: Stokes v Waverley Council [2019] NSWLEC 1137
Hearing dates: 18 – 19 February 2019 and 5 March 2019
Date of orders: 03 April 2019
Decision date: 03 April 2019
Jurisdiction: Class 1
Before: Bish C
Decision:
The orders of the Court are as follows:
(1) The appeal is dismissed.
(2) Development Application 404/2017 seeking alterations and additions to an approved five storey building for use as a dual occupancy, with additional excavation, on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama is refused.
(3) The exhibits, except for Exhibits 1, 2 and K are returned.

Catchwords: DEVELOPMENT APPLICATION: owners consent; existing works on adjoining land; dual occupancy; breach in FSR and height standards; excessive excavation; structural integrity; non-compliance with FSR and height.
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Waverley Local Environment Plan 2012
Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245
Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Texts Cited: Waverley Development Control Plan 2012 Amendment 5
Category: Principal judgment
Parties: Stephanie Stokes (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
C Leggat (Applicant)
Solicitors:
Boskovitz Lawyers (Applicant)
S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2018/220827
Publication restriction: No

JudgEment

COMMISSIONER: This is an appeal against refusal of Development Application (DA) 404/2017 by Waverley Council (the Council) seeking alterations and additions to an approved five storey building for use as a dual occupancy and for additional excavation, on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama (the site).

The site

The site adjoins two streets, with Thompson Street forming the southern boundary having a frontage of 12.95 m and considered the ‘front’, elevated side of the site. Tamarama Drive, which faces towards Tamarama Park and Beach forms the northern boundary of similar frontage and forms the ‘rear’, lower side of the site. The western and eastern boundaries adjoin other residential properties for a length of 49.45 m equally.
The site is underlain primarily by sandstone which, predevelopment, formed a ‘natural’ slope with a crossfall of ~17 m towards the north (and Tamarama Beach/Drive). However, currently on this site, the bulk of the sandstone terrain that formed the natural slope has since been excavated to a depth below surface of ~13 m in the south tapering to ~8 m in the centre of the site. The entry point to the site, into the driveway on Thompson Street, remains at the predevelopment elevation.
The site currently has steep sandstone rock faces along the southern, eastern and western boundaries. From the southern to central portion of the site the sandstone walls are self-supporting, after which the rock faces are supported by steel joists and shotcrete on the eastern boundary, and piles along the north-western boundary. In the central portion of the site, a mound of…

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.

Continue reading Stokes v Waverley Council

Details

AGLC: Stokes v Waverley Council [2019] NSWLEC 1137
Case: [2019] NSWLEC 1137
Decision Date: 03 April 2019

CaseChat Overview and Summary

Stokes v Waverley Council was a case before the Land and Environment Court of New South Wales, involving a dispute over a development application. The applicant, Stokes, sought to make alterations and additions to an existing building, located on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama. The application, numbered 404/2017, included plans for an additional storey, further excavation, and changes to the building's use. Waverley Council, the respondent, opposed the application on several grounds, including concerns about the impact on neighbouring properties and compliance with planning regulations.

The legal issues before the court centred on whether the proposed alterations and additions complied with the local planning scheme and whether the applicant had demonstrated that the development would not adversely affect neighbouring properties. The court had to consider whether the proposed changes were consistent with the approved design and whether the additional excavation and changes to the building's use were in accordance with the planning scheme. Additionally, the court needed to assess whether the applicant had adequately addressed concerns about the impact on neighbouring properties, including issues related to light, privacy, and overshadowing.

In its decision, the court found that the proposed alterations and additions did not comply with the approved design and the planning scheme. The court held that the additional storey and excavation were not consistent with the previously approved development, and the changes to the building's use were not permissible under the relevant planning controls. Furthermore, the court determined that the applicant had not adequately addressed concerns about the impact on neighbouring properties, particularly in relation to overshadowing and loss of light. Consequently, the court dismissed the appeal and refused the development application.

Orders

Orders of the court

The orders of the Court are as follows:

(1) The appeal is dismissed.

(2) Development Application 404/2017 seeking alterations and additions to an approved five storey building for use as a dual occupancy, with additional excavation, on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama is refused.

(3) The exhibits, except for Exhibits 1, 2 and K are returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Stokes v Waverley Council [2019] NSWLEC 1137
Hearing dates:	18 – 19 February 2019 and 5 March 2019
Date of orders:	03 April 2019
Decision date:	03 April 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The orders of the Court are as follows: (1) The appeal is dismissed. (2) Development Application 404/2017 seeking alterations and additions to an approved five storey building for use as a dual occupancy, with additional excavation, on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama is refused. (3) The exhibits, except for Exhibits 1, 2 and K are returned.
Catchwords:	DEVELOPMENT APPLICATION: owners consent; existing works on adjoining land; dual occupancy; breach in FSR and height standards; excessive excavation; structural integrity; non-compliance with FSR and height.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Waverley Local Environment Plan 2012
Cases Cited:	Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Texts Cited:	Waverley Development Control Plan 2012 Amendment 5
Category:	Principal judgment
Parties:	Stephanie Stokes (Applicant) Waverley Council (Respondent)
Representation:	Counsel: C Leggat (Applicant) Solicitors: Boskovitz Lawyers (Applicant) S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/220827
Publication restriction:	No