Tobias Partners Pty Ltd v Waverley Council - [2009] NSWLEC 1274

Land and Environment Court

of New South Wales

CITATION: Tobias Partners Pty Ltd v Waverley Council [2009] NSWLEC 1274

PARTIES:
APPLICANT
Tobias Partners Pty Ltd
RESPONDENT
Waverley Council

FILE NUMBER(S): 10910 of 2008

CORAM: Tuor C

KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION :- Residential Flat Building
View loss and privacy impacts
Impact on coastal walk

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
State Environmental Planning Policy No 71 - Coastal Protection
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006 - Amendment 2

CASES CITED: Woronora Investments Pty Limited v Waverley Council 2005 NSW LEC 679
Woronora Investments Pty Limited v Waverley Council number 2, 2007 NSW LEC 562
CG Australasia v Waverley Council 2007 NSW LEC 868
Zhang v Canterbury Council (2001) 51 NSWLR 589
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 4

DATES OF HEARING: 20/04/2009

EX TEMPORE JUDGMENT DATE: 21 April 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr N Hemmings, QC
SOLICITORS
Allens Arthur Robinson

RESPONDENT
Mr M Staunton
SOLICITORS
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

TUOR C

21 April 2009

10910 of 2008 Tobias Partners Pty Limited v Waverley Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal by Waverley Council (the council) of a development application to demolish an existing residential flat building and construct a new residential flat building at 15 Kenneth Street, Tamarama (the site).

2 The issues between the parties have been resolved through amended plans and they are seeking consent orders from the Court.

3 Adjoining neighbours were notified of the amended plans and the consent orders. Although there was some confusion in the notification process, I am satisfied, on the advice of the parties, that it is not an impediment to the determination of the application.

4 The concerns of the residents have been largely resolved through the amended plans and conditions of consent with the exception of Mr and Mrs Hall who are purchasers of units 3 and 4 at 11 Kenneth Street. They currently have a licence to occupy the units and will settle when the strata is finalised at the end of the month. As they are not registered owners, they were not notified of the amended plans. They had reviewed the original plans as part of their purchase of the property. Their principal concern is that the amended plans project balconies forward of the original existing building, which will impact on their privacy and views. Their understanding of the original plans (upon which they relied to purchase the property) was that the development was within the envelope of the existing building on the site.

5 With the parties’ agreement, Mr Green spoke on behalf of the Halls, but I did not grant leave to Mr Green to cross-examine witnesses…

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 Tobias Partners Pty Ltd v Waverley Council

Details

AGLC: Tobias Partners Pty Ltd v Waverley Council [2009] NSWLEC 1274
Case: [2009] NSWLEC 1274
Decision Date: 21 April 2009

CaseChat Overview and Summary

Tobias Partners Pty Ltd sought approval from Waverley Council to demolish an existing residential flat building and construct a new residential flat building at 15 Kenneth Street, Tamarama. The Council had deemed the application refused, leading to an appeal by Tobias Partners. The Land and Environment Court of New South Wales was tasked with resolving the dispute. The key legal issues involved determining whether the amended plans complied with the Environmental Planning and Assessment Act 1979, the Land and Environment Court Act 1979, and relevant state environmental planning policies, particularly regarding the design quality of residential flat development and coastal protection. Additionally, the court had to assess the impact of the proposed development on view loss, privacy, and the coastal walk.

The Court acknowledged that the parties had largely resolved their issues through amended plans and sought consent orders. While concerns remained from Mr and Mrs Hall, who had purchased units at 11 Kenneth Street, the Court found their objections could be addressed through the proposed conditions. The Court found that the applicant's expert had adequately addressed most contentions, but disagreed with the assessment that the balcony extensions would not add to the building's bulk. The Court held that the proposal should not extend past the existing building line and should not intrude further into the view. The consent orders were granted subject to the plans being amended so that the balconies on levels 3, 4, and 5 did not extend any further than as shown on the original plans. The Court also mandated that the depth of the balconies be increased to ensure a minimum dimension of 2 m for an area of 12 sqm. The consent orders included granting development consent to the applicant, subject to specific conditions, and directed the applicant to pay the council's costs.

Orders