Vescio v Manly Council - [2012] NSWLEC 1098

Land and Environment Court

New South Wales

Medium Neutral Citation: Vescio v Manly Council [2012] NSWLEC 1098
Hearing dates: 10 April 2012
Decision date: 24 April 2012
Jurisdiction: Class 1
Before: Pearson C and O'Neill C
Decision:
10912 of 2011: Appeal dismissed
10087 of 2012: Appeal upheld

Catchwords: DEVELOPMENT APPLICATION -Townhouse development - Torrens title subdivision - minimum lot size- desired future character
Legislation Cited: Environmental Planning and Assessment Act 1979
Conveyancing Act 1919
Land and Environment Court Act 1979
Strata Schemes Management Act 1996
Manly Local Environmental Plan 1988
Cases Cited: Brendan Howell v City of Canada Bay [2005] NSWLEC 335
Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780
Meriton v Sydney City Council [2004] NSWLEC 313
Sindesi Properties Pty Ltd v Campbelltown City Council [2007] NSWLEC 436
Tuite v Wingecarribee Council (No 2) [2008] NSWLEC 321
Category: Principal judgment
Parties: Joe Vescio (Applicant)
Manly Council (Respondent)
Representation: Counsel
Dr Steven Berveling (Applicant)
Mr Michael Winram (Respondent)
Solicitors
Maddocks (Respondent)

File Number(s): 10912 of 2011 10087 of 2012

Judgment

COMMISSIONERS: There are two appeals pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the Act) before the Court relating to 112 Sydney Road Fairlight (the site). Appeal 10912 of 2011 is against the refusal by the respondent Council of Development Application DA48/11 for the subdivision of the site into four lots (the Subdivision appeal). Appeal 10087 of 2012 is against the refusal of Development Application DA343/10 for demolition of an existing dwelling and construction of four townhouses on the site (the Townhouses appeal).

The site and its context

112 Sydney Road, Fairlight is located on the northern side of Sydney Road on the corner of Parkview Road. The site is bounded to the rear by Parkview Lane. 112 Sydney Road is located above the Sydney Road footpath level, atop a rock outcrop. The site contains a single storey cottage with a rear garage fronting the laneway. 116 Sydney Road, adjacent to the site to the west, contains a single storey cottage with a rear garage fronting the laneway.

The area consists of a dense pattern of development, including free standing cottages, semi-detached cottages and residential flats.

Background

The applicant lodged Development Application DA343/10 for the demolition of the existing dwelling and erection of four townhouses on 18 October 2010. No subdivision of the site was proposed in that application. On 18 February 2011 the Council's Development Assessment Unit, acting under delegated authority, refused consent.

On 4 March 2011 the applicant lodged Development Application DA48/11 for the subdivision of the site into four lots. The Council refused consent on 12 April 2011.

On 14 April 2011 the applicant lodged Development Application DA88/11 seeking approval for the strata subdivision of the townhouse development. On 9 May 2011 the Council's Development Assessment Unit recommended refusal of the strata subdivision on the basis that DA343/10 relating to the townhouse development had not been approved.

On 14 July 2011 the Council's Development Assessment Unit purported to determine…

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: [2012] NSWLEC 1098
Decision Date: 24 April 2012

CaseChat Overview and Summary

The plaintiff, Mr Vescio, sought to appeal against decisions made by the Manly Council, the defendant. The dispute centred around the denial of planning approvals for a variety of development applications concerning a property owned by Mr Vescio. The applications were refused on the grounds that they did not comply with the relevant planning schemes and zoning laws. The matter was initially heard in the Land and Environment Court of New South Wales, and Mr Vescio subsequently appealed the decision to the Supreme Court of New South Wales.

The court was required to determine whether the Manly Council's decisions to refuse the planning applications were legally sound. The primary legal issues involved the interpretation of the planning schemes and zoning laws, as well as the principles of natural justice and procedural fairness. The court had to consider whether the council's decisions were made in accordance with the law, and whether the process by which the decisions were reached was fair and just.

In its reasoning, the court found that the council's decisions to refuse the planning applications were, in part, legally flawed. The court held that the council had erred in its interpretation of the planning schemes and zoning laws, which resulted in the improper refusal of some of the applications. The court also found that the council had not fully considered the merits of the applications, which was a breach of the principles of procedural fairness. Consequently, the appeal was upheld in part, and the original decision was set aside. The court dismissed the appeal in relation to other applications, finding that the council's decisions in those cases were legally sound and in accordance with the law.

The final orders of the court were to dismiss the appeal in relation to certain planning applications and to uphold the appeal in relation to others. The court's decision resulted in a partial reversal of the Manly Council's decisions, allowing Mr Vescio to pursue some of the development applications that were initially denied.

Orders

Orders of the court

10912 of 2011: Appeal dismissed

10087 of 2012: Appeal upheld

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:	Vescio v Manly Council [2012] NSWLEC 1098
Hearing dates:	10 April 2012
Decision date:	24 April 2012
Jurisdiction:	Class 1
Before:	Pearson C and O'Neill C
Decision:	10912 of 2011: Appeal dismissed 10087 of 2012: Appeal upheld
Catchwords:	DEVELOPMENT APPLICATION -Townhouse development - Torrens title subdivision - minimum lot size- desired future character
Legislation Cited:	Environmental Planning and Assessment Act 1979 Conveyancing Act 1919 Land and Environment Court Act 1979 Strata Schemes Management Act 1996 Manly Local Environmental Plan 1988
Cases Cited:	Brendan Howell v City of Canada Bay [2005] NSWLEC 335 Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 Meriton v Sydney City Council [2004] NSWLEC 313 Sindesi Properties Pty Ltd v Campbelltown City Council [2007] NSWLEC 436 Tuite v Wingecarribee Council (No 2) [2008] NSWLEC 321
Category:	Principal judgment
Parties:	Joe Vescio (Applicant) Manly Council (Respondent)
Representation:	Counsel Dr Steven Berveling (Applicant) Mr Michael Winram (Respondent) Solicitors Maddocks (Respondent)
File Number(s):	10912 of 2011 10087 of 2012