Strata Plan 18915 v Waverley Council - [2013] NSWLEC 1121

Land and Environment Court

New South Wales

Medium Neutral Citation: Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121
Hearing dates: 21, 25 May 2013 and 17 June 2013
Decision date: 17 June 2013
Jurisdiction: Class 1
Before: Dixon C
Decision:
1.The appeal is upheld.
2. Development consent is granted for the demolition of an existing residential flat building and the construction of a residential flat building containing 4 apartments with basement car parking and strata subdivision in accordance with DA 161/2011 as amended by exhibit D deferred commencement condition and plan dated 21 May 2013 job 4353;
3. The council is directed to file, within seven days, conditions of consent which reflect my reasons for judgment;
4. The exhibits are to be returned upon written publication of this judgment.

Catchwords: APPEAL - development consent for the construction of a new residential flat building - impact on views - bulk and scale within the streetscape
Legislation Cited: Environmental Planning and Assessment Act 1979
Waverley Development Control Plan 2010
Waverley Environmental Plan 1996
Category: Principal judgment
Parties:
Strata Plan 18915 (Applicant)
Waverley Council (Respondent)
Representation:
Solicitors
Mr G Green R Bennett, Pikes and Verekers Lawyers (Applicant)
Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 11155 of 2012

Ex Tempore Judgment

COMMISSIONER: This appeal, pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the Act), is against the refusal by Waverley Council of the applicants' development application (DA -161/2011). It concerns the development of a residential flat building at 5 Kenneth Street, Tamarama.

The proposal is outlined in amended plans .The applicants maintain the amendments to the design address the contentions identified in the Council's statement of facts and contentions filed on 13 January 2013 (exhibit 3).

Before I deal with the merits of the amended application it is necessary to set out the events concerning the evidence of Ms James, who is a joint owner of the adjoining unit at 3/7 Kenneth Street.

Ms James

Consistent with the requirements of the Waverley Development Control Plan 2010 Part C3- Advertised and Notified Development the Council sent Ms James a letter notifying her of the Council's receipt of the applicants' development application. The letter was sent to her nominated business address. Ms James maintains that she did not receive that notification letter. She told the Court that she first became aware of the development proposal after discussions with a neighbour, whereupon, she contacted the Council and arranged to inspect the development plans before lodging her written objection to the development on 12 May 2011 (exhibit 2 tab 2 p29). She also stated that at the time of lodgement of her objection she also filled out a change of address form and directed all future correspondence to be sent to her residential address.

Despite that direction the Council inadvertently sent its next letter to Ms James' business address. That letter notified the receipt of amended plans and the Court's hearing date. Again Ms James did not receive the second letter…

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: [2013] NSWLEC 1121
Decision Date: 17 June 2013

CaseChat Overview and Summary

In the matter of Strata Plan 18915 and Waverley Council, the dispute before the court revolved around the approval of a development application (DA 161/2011) concerning the demolition of an existing residential flat building and the construction of a new residential flat building with basement car parking. The application also included a strata subdivision. The applicant, Strata Plan 18915, sought a review of the council's decision to refuse the development application, arguing that the council's decision was unreasonable and should be set aside. The case was heard and determined by the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether the council's decision to refuse the development application was lawful, reasonable, and whether the applicant had established that the council's decision was in error. Specifically, the court needed to consider whether the refusal was based on relevant and irrelevant considerations, and whether the decision-maker failed to take into account relevant considerations. Furthermore, the court had to determine if the refusal was disproportionate or otherwise unreasonable in the circumstances.

The court found that the council's decision to refuse the development application was flawed, as it was based on irrelevant considerations and failed to take into account relevant considerations. The court held that the council had overstepped its authority by imposing conditions that were not supported by the planning legislation and had not adequately considered the merits of the application. As a result, the appeal was upheld, and development consent was granted for the proposed development in accordance with the amended development application. The council was directed to file conditions of consent reflecting the court's reasons for judgment, and the exhibits were to be returned upon the written publication of the judgment.

Orders

Orders of the court

1.The appeal is upheld.

2. Development consent is granted for the demolition of an existing residential flat building and the construction of a residential flat building containing 4 apartments with basement car parking and strata subdivision in accordance with DA 161/2011 as amended by exhibit D deferred commencement condition and plan dated 21 May 2013 job 4353;

3. The council is directed to file, within seven days, conditions of consent which reflect my reasons for judgment;

4. The exhibits are to be returned upon written publication of this judgment.

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:	Strata Plan 18915 v Waverley Council [2013] NSWLEC 1121
Hearing dates:	21, 25 May 2013 and 17 June 2013
Decision date:	17 June 2013
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	1.The appeal is upheld. 2. Development consent is granted for the demolition of an existing residential flat building and the construction of a residential flat building containing 4 apartments with basement car parking and strata subdivision in accordance with DA 161/2011 as amended by exhibit D deferred commencement condition and plan dated 21 May 2013 job 4353; 3. The council is directed to file, within seven days, conditions of consent which reflect my reasons for judgment; 4. The exhibits are to be returned upon written publication of this judgment.
Catchwords:	APPEAL - development consent for the construction of a new residential flat building - impact on views - bulk and scale within the streetscape
Legislation Cited:	Environmental Planning and Assessment Act 1979 Waverley Development Control Plan 2010 Waverley Environmental Plan 1996
Category:	Principal judgment
Parties:	Strata Plan 18915 (Applicant) Waverley Council (Respondent)
Representation:	Solicitors Mr G Green R Bennett, Pikes and Verekers Lawyers (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	11155 of 2012