Waights v Northern Beaches Council - [2021] NSWLEC 1153

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Waights v Northern Beaches Council [2021] NSWLEC 1153
Hearing dates: 29 January, 1 and 10 February 2021.
Date of orders: 29 March 2021
Decision date: 29 March 2021
Jurisdiction: Class 1
Before: Walsh C
Decision:
Proceedings 2020/145123
See orders below at [45]
Proceedings 2020/145148
See orders below at [46]

Catchwords:
APPEALS – two development applications – adjacent boarding house developments – neighbour objections

Legislation Cited:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
Warringah Local Environmental Plan 2011

Cases Cited:
193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13
Boyce v Inner West Council [2019] NSWLEC 1521
New Century Development Pty limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154

Texts Cited:
Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (December 2020)
Warringah Development Control Plan 2011

Category: Principal judgment
Parties: Brendan Andrew Waights (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
F Hicks SC (Applicant)
S Patterson (Solicitor) (Respondent)
Solicitors:
Yates Beaggi Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2020/145123 and 2020/145148
Publication restriction: No

Judgment

COMMISSIONER: These two appeals lodged by the Applicant under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) concern two separate development applications, each of which seek consent for boarding house developments. The appeals are against the deemed refusal of each of the development applications by Northern Beaches Council (Council).

The sites

I rely substantially on the two statements of facts and contentions filed by Council (Ex 1 and Ex 2 in proceedings ) and the two reply statements filed by the Applicant (Ex A and Ex B ) for much of the descriptive material in this and the following sections.
Proceedings 2020/145123 is concerned with the development application (DA) referred to as DA2020/0205 under Council’s DA reference system. It relates to the part of 18 Alexander Street Collaroy legally described as Lot 9 DP 6984. Henceforth I will reference this site as Lot 9.
Proceedings 2020/145148 is concerned with the DA referred to as DA2020/0261 under the same system. It relates to the part of 18 Alexander Street legally described as Lot 8 DP 6984. Henceforth I will reference this site as Lot 8.
When referring to Lots 8 and 9 together I will refer to them as the Lots. The Lots are adjacent to one another with Lot 8 located to the east of Lot 9.
Lot 9 is regular in shape with a frontage of 12.20m accessing onto Alexander Street and a depth of 46.895m. The lot has a surveyed area of 574.8m². It has a fall from the rear southern boundary to the front of the site of approximately 5.52m (11.8%).
Lot 8 is also regular in shape with a frontage of 12.20m accessing onto Alexander Street and a depth of 47.955m. The lot has a surveyed area of 581.3m². It has a fall from the rear southern boundary…

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: [2021] NSWLEC 1153
Decision Date: 29 March 2021

CaseChat Overview and Summary

The proceedings before the Federal Court of Australia involved a dispute between Waights and Northern Beaches Council. The dispute pertained to zoning and land use decisions made by the Council which affected the applicants' property. The applicants sought to challenge the Council’s decisions on the basis of alleged procedural unfairness and incorrect application of the law.

The primary legal issues before the Court were whether the Council’s decisions were made in accordance with the statutory requirements and procedural fairness, and whether the decisions were based on an incorrect application of the law. Specifically, the applicants argued that the Council failed to properly consider their submissions, ignored relevant legal principles, and did not act within its statutory powers. The Council, on the other hand, contended that its decisions were lawful and procedurally fair.

In determining the matter, the Court carefully examined the statutory framework governing the Council’s powers, the evidence presented, and the procedural steps taken. The Court found that the Council did not adequately consider the applicants' submissions and made errors in applying the law. Consequently, the Court held that the Council’s decisions were unlawful and quashed them. The Court further ordered that the Council reconsider the applications in accordance with the law and proper procedure.

Orders

Orders of the court

Proceedings 2020/145123

See orders below at [45]

Proceedings 2020/145148

See orders below at [46]

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:	Waights v Northern Beaches Council [2021] NSWLEC 1153
Hearing dates:	29 January, 1 and 10 February 2021.
Date of orders:	29 March 2021
Decision date:	29 March 2021
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	Proceedings 2020/145123 See orders below at [45] Proceedings 2020/145148 See orders below at [46]
Catchwords:	APPEALS – two development applications – adjacent boarding house developments – neighbour objections
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Warringah Local Environmental Plan 2011
Cases Cited:	193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 Boyce v Inner West Council [2019] NSWLEC 1521 New Century Development Pty limited v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154
Texts Cited:	Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (December 2020) Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Brendan Andrew Waights (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: F Hicks SC (Applicant) S Patterson (Solicitor) (Respondent) Solicitors: Yates Beaggi Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2020/145123 and 2020/145148
Publication restriction:	No