Teoh v Hunters Hill Council - [2008] NSWLEC 263

Land and Environment Court

of New South Wales

CITATION: Teoh v Hunters Hill Council and Another [2008] NSWLEC 263

PARTIES: APPLICANT
Elaine Teoh
FIRST RESPONDENT
Hunters Hill Council
SECOND RESPONDENT
Ross Williams

FILE NUMBER(S): 40246 of 2008

CORAM: Sheahan J

KEY ISSUES: Injunctions and Declarations :- judicial review of development consent; impact on solar access.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s.79C

CASES CITED: Bruce v Cole and Others (1998) 45 NSWLR 163
Centro Properties Limited v Hurstville City Council and Another (2004) 135 LGERA 257
MCC Energy Pty Ltd v Wyong Shire Council and Others (2006) 149 LGERA 59
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources (2005) 138 LGERA 11
Re Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Telstra Corporation Ltd and Another v Hurstville City Council and Others (2002) 118 FCR 198
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DATES OF HEARING: 5 June 2008

DATE OF JUDGMENT:
16 September 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr R O'Gorman-Hughes, Barrister
FIRST RESPONDENT
Mr P McEwen SC
SOLICITORS
H W L Ebsworth Lawyers
SECOND RESPONDENT
Mr M Baird, Barrister
SOLICITORS
Ronald S Czinner & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

16 September 2008

40246 of 2008 Teoh v Hunters Hill Council and Another
JUDGMENT

Introduction

1 His Honour: Mr Williams resides at 70 Mary Street Hunters Hill, and Mrs Teoh and her husband have resided for 35 years at No.68, immediately to the south.

2 Mrs Teoh has brought this Class 4 challenge to a consent granted by the Council in favour of Mr Williams for a second storey addition to his house (see Exhibit C1, fol 52ff).

3 She asserts that Council misapplied the solar access control set out in s.7.4 of its Development Control Plan No.15 (Exhibit T1), which became operative on 2 March 2000. Council’s Manager – Development & Environment, Steve Kaurepis, testified (affidavit par 16) that throughout his time at Hunters Hill Council those provisions of the DCP have “always been assessed to the whole of a site”. Mrs Teoh submits that that is the wrong approach.

4 Mr Williams’s relevant development application was lodged with the Council, with a Statement of Environmental Effects, on 13 August 2007, and notified to residents on 15 August 2007. Council received an objection from Mrs Teoh and her husband on 30 August and a further objection on 7 September 2007. Mr Williams’s plans were amended to deal with an alleged non-compliance concerning the site setback and Council notified those amendments on 19 October 2007.

5 Mrs Teoh submitted a series of written objections (see Exhibit C1) to the amended proposal, the major issue being its impact on the solar access of No.68. In addition to her written objections, the agreed chronology indicates that Mrs Teoh addressed the Council’s…

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: [2008] NSWLEC 263
Decision Date: 16 September 2008

CaseChat Overview and Summary

Elaine Teoh sought to challenge a decision of the Hunters Hill Council to grant Ross Williams development consent for a second storey addition to his house. Mrs Teoh argued that the Council misapplied the solar access control set out in section 7.4 of its Development Control Plan No.15, resulting in a significant impact on the solar access to her property. The primary issue before the court was whether the Council had properly assessed the solar access impact of the proposed development in accordance with the Development Control Plan. Mrs Teoh contended that the Council's assessment was unreasonable and failed to properly consider the solar access requirements. The court considered the evidence before the Council, including shadow diagrams, plans, and submissions from Mrs Teoh. The court held that the Council had followed a proper process and had considered all relevant information in making its assessment. The court found no reviewable error in the Council's decision and dismissed Mrs Teoh's application. The court ordered that the application be dismissed and reserved the question of costs.

Orders