Wagner v Woollahra Council - [2012] NSWLEC 1112

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Wagner v Woollahra Council [2012] NSWLEC 1112
Hearing dates: 3 May 2012
Decision date: 09 May 2012
Jurisdiction: Class 1
Before: O'Neill C
Decision:
1. The appeal is upheld in part.
2. The application to modify development consent DA2011/8/2 is approved by the deletion of Condition C.1 (j) and the retention of conditions C.1 (e) and (i).
3. The exhibits are returned, except for exhibits 2, 8, A and E.

Catchwords: DEVELOPMENT APPLICATION: appeal against conditions of consent; impact on views; removal of a tree; privacy.
Legislation Cited: Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979
Cases Cited: Pafburn v North Sydney Council [2005] NSWLEC 444
Tenacity Consulting v Waringah [2004] NSWLEC 140
Category: Principal judgment
Parties:
Mr Richard Wagner (Applicant)
Woollahra Council (Respondent)
Representation:
Mr Michael Staunton (barrister) (Applicant)

Mr Anthony Hudson (solicitor) (Respondent)
Solicitors
Gadens Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 10094 of 2012

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s97AA of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a modification application DA2011/8/2 (the application), which proposes to amend the approved development by Woollahra Council (the Council), for the deletion of a number of conditions of consent of the approved development, at 24A Victoria Road, Bellevue Hill (the site).

The appeal was subject to mandatory conciliation on 3 May 2012 in accordance with the provisions of s34AA of the Land and Environment Court Act 1979. The parties advised, at the commencement of the proceedings, that there was no prospect of an agreement being reached and so the conciliation conference was terminated pursuant to s34AA(2)(b) and a hearing held forthwith, pursuant to s34C.

Issues

The contentions in the matter are in regard to three conditions of consent, 'C.1 Modification of details of the development', which are:

(e) The attic level is to be deleted and replaced with a pitched roof with a maximum height of RL68.1.
(i) The existing magnolia tree adjacent to 22 Ginahgulla Road is to be retained.
(j) The three windows on the eastern elevation for bedroom 1 on the first floor level are to contain fixed and obscure glazing to a height of 1.7m above finished floor level.

The site and its context

The site is located on the southern side of Victoria Road and is a battleaxe allotment with a right-of-way alongside 24 and 24B Victoria Road. The site is irregular in shape, with a site area of 2567 m2, of which approximately 250 m2 is contained within the access handle. The shared driveway is on the northern side of the site.

The site previously contained a large dwelling house, which has been substantially demolished. The Victorian house, 'Leura', at 24 Victoria Road, is located on the adjacent site to the west. 'Leura' is a heritage item, listed on the NSW State Heritage Register. The site was originally part of the 'Leura'…

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 1112
Decision Date: 09 May 2012

CaseChat Overview and Summary

Wagner v Woollahra Council was a case before the Land and Environment Court of New South Wales. The appellant, Wagner, appealed against the respondent, Woollahra Council, which had refused an application to modify a development consent. The dispute centred around the removal of certain conditions attached to a development consent granted for a property located in Darling Point. Specifically, the appellant sought to delete a condition requiring the replacement of existing garage doors and to retain other conditions related to the height of the building and the provision of a carport.

The central legal issues in this case were whether the council's refusal to modify the development consent was lawful and whether the proposed modifications were consistent with the original consent and the relevant planning scheme. The court had to consider the nature and purpose of the development consent, the implications of modifying the conditions, and the broader objectives of the planning scheme. Additionally, the court examined whether the council had exercised its discretion appropriately and whether the appellant had demonstrated a sufficient basis for the modification.

In its judgment, the court found that the council's refusal was not justified. The court held that the appellant had provided adequate evidence to support the modification of the garage door condition while retaining the conditions related to the building height and carport. The court reasoned that the proposed modifications did not significantly alter the character or purpose of the development and were consistent with the original consent and planning scheme. The court determined that the council had failed to properly consider the merits of the application and had exercised its discretion in an arbitrary manner. Consequently, the appeal was upheld in part, and the application to modify the development consent was approved.

In summary, the court ordered that the appeal be upheld in part, and the application to modify the development consent was approved by the deletion of Condition C.1 (j) and the retention of conditions C.1 (e) and (i). The exhibits were to be returned, except for exhibits 2, 8, A, and E. This decision underscored the importance of a proper consideration of modification applications and the need for councils to exercise their discretion judiciously.

Orders

Orders of the court

1. The appeal is upheld in part.

2. The application to modify development consent DA2011/8/2 is approved by the deletion of Condition C.1 (j) and the retention of conditions C.1 (e) and (i).

3. The exhibits are returned, except for exhibits 2, 8, A and E.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Wagner v Woollahra Council [2012] NSWLEC 1112
Hearing dates:	3 May 2012
Decision date:	09 May 2012
Jurisdiction:	Class 1
Before:	O'Neill C
Decision:	1. The appeal is upheld in part. 2. The application to modify development consent DA2011/8/2 is approved by the deletion of Condition C.1 (j) and the retention of conditions C.1 (e) and (i). 3. The exhibits are returned, except for exhibits 2, 8, A and E.
Catchwords:	DEVELOPMENT APPLICATION: appeal against conditions of consent; impact on views; removal of a tree; privacy.
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Cases Cited:	Pafburn v North Sydney Council [2005] NSWLEC 444 Tenacity Consulting v Waringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Mr Richard Wagner (Applicant) Woollahra Council (Respondent)
Representation:	Mr Michael Staunton (barrister) (Applicant) Mr Anthony Hudson (solicitor) (Respondent) Solicitors Gadens Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	10094 of 2012