Stokes v Waverley Council (No 3) - [2020] NSWLEC 1224

Land and Environment Court

New South Wales

Medium Neutral Citation: Stokes v Waverley Council (No 3) [2020] NSWLEC 1224
Hearing dates: 26 March 2020 and 22 April 2020
Date of orders: 20 May 2020
Decision date: 20 May 2020
Jurisdiction: Class 1
Before: Bish C
Decision:
The orders of the Court are as follows:
(1)   Leave is granted to rely on the amended cl 4.6 written request for variation of height, filed 22 April 2020. Leave is not granted to amend the DA to include strata subdivision.
(2)   The appeal is dismissed.
(3)   Development Application 404/2017 seeking alterations and additions to an approved five storey building for use as a dual occupancy, with additional excavation for a car stacker and sump, on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama is refused.
(4)   The exhibits are retained.

Catchwords: DEVELOPMENT APPEAL – remitted matter – alterations and additions to approved dwelling that has commenced including change in use – exceedance of the height of building development standard – meaning of existing ground level – exceedance of the floor space ratio development standard – written requests seeking to justify the contravention of development standards – excavation – consent orders sought
Legislation Cited: COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW)
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Interpretation Act 1987
Land and Environment Court Act 1979
Waverley Local Environment Plan 2012
Cases Cited: Australand Holdings Limited v Parramatta City Council (2003) 123 LGERA 411; [2003] NSWLEC 229
Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Rockdale Municipal Council v M & L Rizzi (Land and Environment Court (NSW), Bignold J, 10 May 1991, unrep)
Stokes v Waverley Council [2019] NSWLEC 1137
Stokes v Waverley Council (No 2) [2019] NSWLEC 174
Texts Cited: Land and Environment Court of the New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)
Waverley Development Control Plan 2012 Amendment 5
Category: Principal judgment
Parties: Stephanie Stokes (Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
J Farrell (Applicant)
M Hanna (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

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

Judgment

COMMISSIONER: I have been given this appeal on remitter following the decision of Robson J in Stokes v Waverley Council (No 2) [2019] NSWLEC 174 (the s56A Stokes Judgment), which at [90] and [97] his Honour set aside my decisions and orders made on 3 April 2019 in Stokes v Waverley Council [2019] NSWLEC 1137.
On 22 September 2017, the applicant lodged Development Application 404/2017 (hereafter the DA) with Waverley Council (the Council) seeking consent for alterations and additions to an approved (under a different consent) five-storey residential dwelling, additional excavation for a car stacker and a change in use to dual occupancy on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama (the site).
The DA seeks to retain the…

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 1224
Decision Date: 20 May 2020

CaseChat Overview and Summary

Stokes v Waverley Council (No 3) is a case involving a dispute over a development application submitted to Waverley Council. The applicant, Stokes, sought approval for alterations and additions to a five-storey building located at 21 Thompson Street, Tamarama. The proposed development included the construction of a car stacker and sump, as well as changes to the building's height. The Council refused the application, leading to an appeal by Stokes. The legal issues before the court included whether Stokes was entitled to amend the development application to include a strata subdivision, and whether the application for a variation in height was valid. The court had to determine whether the Council's decision to refuse the development application was lawful and if the applicant had a right to amend the application or if the refusal was justified.

The court examined the legal framework governing development applications and the procedural requirements for amendments. It found that Stokes had not met the necessary criteria for amending the development application to include a strata subdivision. The court held that the amendment was substantive and required a new application, which Stokes had not submitted. Regarding the height variation, the court determined that the applicant had not demonstrated a sufficient basis for the requested change. The court found that the proposed height exceeded the allowable limits under the local planning instrument and that Stokes had not provided adequate justification for the variation. The court concluded that the refusal of the development application was lawful, and the appeal was dismissed.

In dismissing the appeal, the court emphasised the importance of adhering to the legal requirements for development applications and amendments. It highlighted the need for applicants to provide sufficient evidence and justification for proposed changes, particularly in relation to height variations. The court's decision underscores the Council's authority to refuse development applications that do not comply with the planning instrument and procedural rules. The final orders of the court reflect this reasoning, granting Stokes leave to rely on the amended height variation request but denying leave to amend the development application to include a strata subdivision. The appeal was dismissed, and the development application was refused.

Orders

Orders of the court

The orders of the Court are as follows:

(1) Leave is granted to rely on the amended cl 4.6 written request for variation of height, filed 22 April 2020. Leave is not granted to amend the DA to include strata subdivision.

(2) The appeal is dismissed.

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

(4) The exhibits are retained.

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:	Stokes v Waverley Council (No 3) [2020] NSWLEC 1224
Hearing dates:	26 March 2020 and 22 April 2020
Date of orders:	20 May 2020
Decision date:	20 May 2020
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The orders of the Court are as follows: (1) Leave is granted to rely on the amended cl 4.6 written request for variation of height, filed 22 April 2020. Leave is not granted to amend the DA to include strata subdivision. (2) The appeal is dismissed. (3) Development Application 404/2017 seeking alterations and additions to an approved five storey building for use as a dual occupancy, with additional excavation for a car stacker and sump, on Lot 43 DP 10771, also known as 21 Thompson Street, Tamarama is refused. (4) The exhibits are retained.
Catchwords:	DEVELOPMENT APPEAL – remitted matter – alterations and additions to approved dwelling that has commenced including change in use – exceedance of the height of building development standard – meaning of existing ground level – exceedance of the floor space ratio development standard – written requests seeking to justify the contravention of development standards – excavation – consent orders sought
Legislation Cited:	COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW) Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Interpretation Act 1987 Land and Environment Court Act 1979 Waverley Local Environment Plan 2012
Cases Cited:	Australand Holdings Limited v Parramatta City Council (2003) 123 LGERA 411; [2003] NSWLEC 229 Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Rockdale Municipal Council v M & L Rizzi (Land and Environment Court (NSW), Bignold J, 10 May 1991, unrep) Stokes v Waverley Council [2019] NSWLEC 1137 Stokes v Waverley Council (No 2) [2019] NSWLEC 174
Texts Cited:	Land and Environment Court of the New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Waverley Development Control Plan 2012 Amendment 5
Category:	Principal judgment
Parties:	Stephanie Stokes (Applicant) Waverley Council (Respondent)
Representation:	Counsel: J Farrell (Applicant) M Hanna (Solicitor) (Respondent) Solicitors: Boskovitz Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/220827
Publication restriction:	No