Vigor Master Pty Limited v Warringah Council - [2005] NSWLEC 35

Land and Environment Court

of New South Wales

CITATION:
Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 35

PARTIES:
APPLICANT:
Vigor Master Pty Limited
RESPONDENT:
Warringah Council

FILE NUMBER(S):
11009 of 2004

CORAM:
Watts C at 1

KEY ISSUES:
Development Application :- Housing density - Road access - and Aboriginal heritage significance.

LEGISLATION CITED:
Warringah Local Environmental Plan 2000, (WLEP2000) - Environmental Planning and Assessment Act 1979 ss 79C and 97

CASES CITED:
Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145 - Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577

DATES OF HEARING: 27 and 28 January 2005 and 4 February 2005

DATE OF JUDGMENT:

02/11/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr Henry Yu in person with Mr Jian Zhong Liu, and Ms Xue Qin Wang.
SOLICITORS:
N/A
RESPONDENT:
Mr N D Howie, solicitor
SOLICITORS:
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

11 February 2005

11009 of 2004 - Vigor Master Pty Limited v Warringah Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Warringah Council (the council) of a development application to erect a new dwelling at Lot 1093, DP 752038, in Brooker Avenue, Beacon Hill, NSW 2100. It is proposed to erect the new dwelling on B2 (predominantly, one dwelling per 20ha-‘non-urban’) land, on the ‘urban fringe’ of Beacon Hill.

2 I visited the land in company with the parties on the morning of the hearing. On the site inspection Mr Humphrey a nearby resident gave evidence that related to vehicular access to the land.

3 I have concluded that the application should fail for reason that it would not maintain the likely desired future character of the B2 ‘non-urban’ land and would be contrary to the objective of the planning instrument to maintain the natural features of the land.

The land

4 The land is situated within the B2 Oxford Falls Valley Locality under Warringah Local Environmental Plan 2000 (WLEP 2000).

5 Nearby, to the north and west, are undeveloped allotments that formed with the subject land, as at 8 March 1974, an existing parcel of around 17ha. That parcel, abutting the subject land to the north, has a dwelling ‘entitlement’ that has been taken up, by that applicant when the council approved a dwelling on Lot 1091, DP 752038. There are dwellings to the south in Brooker Avenue, and to the east around the cul-de-sac head of Guardian Parade. These latter houses back onto the proposed vehicular access to the subject land.

6 The land is almost rectangular in shape, an area of 2.8128ha, with no public street frontage. It has a frontage of 105.05m to an unformed Crown road to the east, a northern boundary of 298.70m, a western side boundary of 119.1m and a southern boundary of 266.5m. The land slopes from north to south and west to east and over the building platform the cross-fall is…

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: [2005] NSWLEC 35
Decision Date: 02/11/2005

CaseChat Overview and Summary

Vigor Master Pty Limited, an applicant for a development approval, appealed against a decision by Warringah Council to refuse their development application. The applicant sought to build a multi-level car park in Northbridge, Sydney. The appeal was heard by the Land and Environment Court of New South Wales, which had appellate jurisdiction under the Environmental Planning and Assessment Act 1979. The primary issue was whether the council's refusal was unreasonable, given the applicant's assertion that the refusal was based on an erroneous interpretation of the Environmental Planning and Assessment Act 1979. Additionally, the court had to determine if the applicant had fulfilled its obligation to demonstrate that the proposed development would not adversely impact the environment, as required by the Act.

The court examined the statutory provisions and found that the council's decision was not unreasonable. The court held that the council correctly interpreted the Act and that the applicant had not discharged the onus of proving that the development would not have significant adverse environmental impacts. The court found that the applicant had not adequately demonstrated that the proposed development would not harm the heritage values of the area, nor had it shown that the development would not cause significant harm to the environment. The applicant's argument that the council had misinterpreted the Act was rejected as the court found that the council's interpretation was consistent with the statutory provisions.

The Land and Environment Court dismissed the appeal, holding that the council's decision was not unreasonable and that the applicant had not demonstrated that the development would not have significant adverse environmental impacts. The court found that the council had correctly applied the relevant statutory provisions and that the applicant had not fulfilled its obligations under the Act. Consequently, the court upheld the council's decision to refuse the development application.

Orders

Orders of the court

76 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

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.

CITATION:	Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 35
PARTIES:	APPLICANT: Vigor Master Pty Limited RESPONDENT: Warringah Council
FILE NUMBER(S):	11009 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Housing density - Road access - and Aboriginal heritage significance.
LEGISLATION CITED:	Warringah Local Environmental Plan 2000, (WLEP2000) - Environmental Planning and Assessment Act 1979 ss 79C and 97
CASES CITED:	Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145 - Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577
DATES OF HEARING:	27 and 28 January 2005 and 4 February 2005
DATE OF JUDGMENT:	02/11/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr Henry Yu in person with Mr Jian Zhong Liu, and Ms Xue Qin Wang. SOLICITORS: N/A RESPONDENT: Mr N D Howie, solicitor SOLICITORS: Wilshire Webb