Vujicic v Northern Beaches Council - [2019] NSWLEC 1349

Land and Environment Court

New South Wales

Medium Neutral Citation: Vujicic v Northern Beaches Council [2019] NSWLEC 1349
Hearing dates: 11 July 2019
Date of orders: 26 July 2019
Decision date: 26 July 2019
Jurisdiction: Class 1
Before: Bish C
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development Application 2017/1191 by the Northern Beaches Council to demolish existing structures, and construct a two storey, 14 room boarding house, with 4 space car parking at Lot 1 DP 200542, also known as 139 Allambie Road, Allambie Heights is approved subject to conditions set out in Annexure A.
(3) The exhibits, except for Exhibits 1, 6, A, B, E and F are returned.

Catchwords: DEVELOPMENT APPLICATION – boarding house –consent orders – character – owners consent – easement – amenity
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
State Environmental Planning Policy – Building Sustainability Index (BASIX) 2004
State Environmental Planning Policy (Affordable Rental Housing) 2009
Warringah Local Environmental Plan 2011
Cases Cited: Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302
Texts Cited: The Practice Note - Class 1 Development Appeals, Land and Environment Court
Warringah Development Control Plan 2011
Category: Principal judgment
Parties: Bob Vujicic (Applicant)
Northern Beaches Council (Respondent)
Representation: Solicitors:
V Conomos, Conomos Legal (Applicant)
S Patterson, Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2018/107470
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against refusal of Development Application (DA) 2017/1191 by the Northern Beaches Council (hereafter the Council) to demolish existing structures, and construct a two storey, 14 room boarding house, with four space car parking at Lot 1 DP 200542, also known as 139 Allambie Road, Allambie Heights (hereafter the site).

Background

DA 2017/1191 was submitted to Council on 5 December 2017, and following notification, 493 written objections were received.
The applicant sought to appeal against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), which was formally refused by the Northern Beaches Local Planning Panel on 2 May 2018.
The Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (the Court Act), which commenced as a site view on 12 October 2018, and terminated on the same day after the parties agreed they could not reach an agreement.
The applicant further amended the plans and supporting documents of the DA, as provided in Exhibits A and B, which was renotified to residents (except the Landscape Plan in Exhibit B). In response, 106 submissions in objection were received, specifically on issues relating to parking, traffic, road safety, character and suitability.
On 5 July 2019, leave was granted by the Court, at the parties request to rely on the amended plans, tendered as Exhibit A. The amendments are made consistent with s 8.15(3) of the EPA Act.
Further to this, as tendered in…

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: [2019] NSWLEC 1349
Decision Date: 26 July 2019

CaseChat Overview and Summary

Vujicic v Northern Beaches Council is a case concerning a dispute over a development application submitted by the Northern Beaches Council to demolish existing structures on a property and construct a two-storey, 14-room boarding house. The case was heard in the Land and Environment Court of New South Wales. The primary issue before the court was whether the development application should be approved or denied, and whether the decision of the Council to approve the application was in accordance with the relevant legislative and planning frameworks.

The court considered various factors, including the zoning of the property, the impact of the proposed development on the character of the area, and the compliance of the application with the relevant planning policies and guidelines. The applicant argued that the proposed development was in line with the council’s planning policies and that it would not have a detrimental effect on the character of the area. The respondent, on the other hand, argued that the proposed development was not in accordance with the planning policies and that it would have a negative impact on the surrounding environment.

In its decision, the court found that the proposed development was consistent with the planning policies and would not have a significant negative impact on the character of the area. The court held that the decision of the Council to approve the development application was reasonable and in accordance with the relevant legislative and planning frameworks. The court also found that the respondent’s arguments regarding the impact of the proposed development on the character of the area were not well-founded. The court subsequently upheld the appeal and approved the development application, subject to certain conditions.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development Application 2017/1191 by the Northern Beaches Council to demolish existing structures, and construct a two storey, 14 room boarding house, with 4 space car parking at Lot 1 DP 200542, also known as 139 Allambie Road, Allambie Heights is approved subject to conditions set out in Annexure A.

(3) The exhibits, except for Exhibits 1, 6, A, B, E and F are returned.

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:	Vujicic v Northern Beaches Council [2019] NSWLEC 1349
Hearing dates:	11 July 2019
Date of orders:	26 July 2019
Decision date:	26 July 2019
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development Application 2017/1191 by the Northern Beaches Council to demolish existing structures, and construct a two storey, 14 room boarding house, with 4 space car parking at Lot 1 DP 200542, also known as 139 Allambie Road, Allambie Heights is approved subject to conditions set out in Annexure A. (3) The exhibits, except for Exhibits 1, 6, A, B, E and F are returned.
Catchwords:	DEVELOPMENT APPLICATION – boarding house –consent orders – character – owners consent – easement – amenity
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy – Building Sustainability Index (BASIX) 2004 State Environmental Planning Policy (Affordable Rental Housing) 2009 Warringah Local Environmental Plan 2011
Cases Cited:	Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302
Texts Cited:	The Practice Note - Class 1 Development Appeals, Land and Environment Court Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Bob Vujicic (Applicant) Northern Beaches Council (Respondent)
Representation:	Solicitors: V Conomos, Conomos Legal (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/107470
Publication restriction:	No