Vigor Master Pty Ltd v Warringah Council - [2004] NSWLEC 162

Land and Environment Court

of New South Wales

CITATION: Vigor Master Pty Ltd v Warringah Council [2004] NSWLEC 162

PARTIES:
APPLICANT
Vigor Master Pty Ltd
RESPONDENT
Warringah Council

FILE NUMBER(S): 11177 of 2003

CORAM: Hoffman C

KEY ISSUES: Development Application :- Threatened species - need for a species Impact Statement - access - desired future character for B2 Oxford Falls Valley Locality - bushfire protection - visual impact

LEGISLATION CITED: Environmental Planning & Assessment Act 1979
Warringah Local Environmental Plan 2000

CASES CITED:

DATES OF HEARING: 24-27/02/2004 and 04/03/2004

DATE OF JUDGMENT: 06/21/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr T F Robertson, barrister
SOLICITORS
Woolf Associates
RESPONDENT
Mr P W Larkin, barrister
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11177 of 2003

Hoffman C

21 June 2004

Vigor Master Pty Ltd
Applicant

Warringah Council

Judgment

Introduction.

Warringah Local Environmental Plan 2000

The site, surroundings and ownerships
2. The house was proposed on a 2.72 ha lot called Portion 1092 and is part of the “existing parcel” under the statute. An existing parcel allowed only one house per 20 ha on the combined Portions 1086, 1088, 1089, 1090, 1091 and 1093. They formed a parcel in the same ownership at 8 March 1974. They are situated partly on the eastern ridge above Oxford Falls and on bushland sloping down westwards into the valley between a Crown road reservation off Brooker Avenue, and Oxford Falls Road. The applicant acts for the owners of Portions 1091 and 1092. Portion 1091 has 3 tenants in common, Portion 1092 has 6 tenants in common.
3. There is an existing development consent for a house on Portion 1091 on the lower slopes of the parcel close to Oxford Falls Road. The house has not been built, as yet.
4. The applicant had an undertaking from the 3 owners of Portion 1091 to surrender the existing development consent No. 2000/4472 for the house on the Oxford Falls Road frontage, if after this appeal, a consent for the proposed house on Portion 1092 is forthcoming. The Court was told, the surrender of that existing consent would allow a valid consent for the proposal to issue.
5. The proposed house was on the ridge of the coastal range and the site gave views eastwards out to the ocean, and to Manly on the southeast and also through Sydney Harbour heads.
6. To the west were extensive views over the bushland rural properties in the valley towards French's Forest and northwest towards Belrose including Kur-ring-gai Chase beyond.
7. It is important to understand part of the dispute was whether the ridge on which the house was proposed could be categorised as a…

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: [2004] NSWLEC 162
Decision Date: 06/21/2004

CaseChat Overview and Summary

Vigor Master Pty Ltd sought to appeal the refusal by Warringah Council to consent to the construction of a dwelling on a lot in the Oxford Falls Valley locality of the Warringah Local Environment Plan 2000. The appeal was dismissed by Hoffman C. The applicant had proposed to build a single dwelling on a lot of 2.72 ha in an existing parcel under the Environmental Planning and Assessment Act 1979. The site was on a ridge and the proposed house was mainly single storey with an attic space. The proposal was for a driveway and road access to the site, and associated works. The site gave views eastwards out to the ocean, and to Manly on the southeast and also through Sydney Harbour heads. The surrounding land was bushland sloping down westwards into the valley. There were existing development consents for houses on two other lots in the existing parcel. The site was of high hazard from bushfires. The applicant had an undertaking from the owners of the other lots in the existing parcel to surrender their existing development consent if a consent for the proposed house was forthcoming. The applicant argued the proposal was consistent with the desired future character of the locality, and that the site was not a ridge top. The council argued the proposal would have a high impact on flora and fauna, and that the site was a ridge top. The council also argued the proposal would be visible from the Wakehurst Parkway, and that the proposal was inconsistent with the housing density standards. The court found that the proposal would have a significant effect on a local significant population of a threatened species, tetratheca glandulosa, and that the construction process and the continued existence of the proposal would be a threatening process to the tetratheca species and its habitat. The court found that the 8 part test under s 5A of the Environmental Planning and Assessment Act 1979 had not been properly carried out in regard to the Southern Brown Bandicoot. The court found that the impact of the house and its use and the IPZ and OPZ and revegetation program would kill any Red Crowned Toadlet on site. The court concluded that the proposal should be refused. The appeal was dismissed.

Orders