Warringah Council v Windy Dropdown Pty Limited - [2000] NSWLEC 110

Land and Environment Court

of New South Wales

CITATION: Warringah Council v Windy Dropdown Pty Limited & Anor [2000] NSWLEC 110

PARTIES:
APPLICANT
Warringah Council
RESPONDENT
Windy Dropdown Pty Limited & Anor

FILE NUMBER(S): 40027 of 2000

CORAM: Cowdroy J

KEY ISSUES: Development :- development consent for subdivision creating land preservation area upon heritage site - developer filling land contained in the land preservation area without approval - orders for removal of ill and for re-instatement of land preservation area - unauthorised removal of trees - order for re-instatement of trees.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 76A(1)(b)

CASES CITED: F Hannan Pty Ltd v Electricity Commission of New South Wales (1985) 66 LGRA 306 ;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 ;
Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40

DATES OF HEARING: 19/4/00, 20/4/00, 29/5/00, 30/5/00, 31/5/00, 1/6/00, 2/6/00

DATE OF JUDGMENT:
06/14/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr D Wilson (Barrister)
SOLICITORS
Wilshire Webb
FIRST AND SECOND RESPONDENT
Mr C Leggat (Barrister)
SOLICITORS (FIRST AND SECOND RESPONDENT)
D Troden

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 40027 of 2000
CORAM: Cowdroy J
DECISION DATE: 14/6/00

Warringah Council

Applicant

Windy Dropdown Pty Limited

First Respondent

and

Phillip Franks

Second Respondent

JUDGMENT

Background

1. In these proceedings Warringah Council (“the council”) seeks various orders against Windy Dropdown Pty Limited (“the first respondent”) and its director Mr Phillip Franks (“Mr Franks”). The council seeks the removal of fill which it claims was placed unlawfully upon land known as 1 Molong Street, North Curl Curl (“the land”). The council also seeks the re-planting of trees which it alleges have been unlawfully removed from the land.

2. In 1948 a house known as Windy Dropdown (“the house”) was constructed upon the land. The land is situated on the top of a headland overlooking the Tasman Sea. The house is of heritage significance. It was constructed following approval granted by the Land and Valuation Court in 1948 and represents a structure of architectural importance. The house and the land were the subject of a detailed study prepared by Graham Brooks and Associates Pty Limited dated January 1998. Such study was conducted in relation to the conservation of both the house and the land in the event that the land was developed (“the Conservation Plan”).

3. The land is approximately 2 acres in area and enjoys spectacular views of the coastline north to Broken Bay and beyond. The land was surrounded by a concrete block wall, approximately 2 m in height which was erected at the time the house was constructed. Such wall is located adjacent to a public reserve (“the public reserve”). The public reserve has a lookout and walking track which runs adjacent to the steep cliffs of the coastline. The public reserve is an unmade road reserve.

4. The land is affected by the provisions of the Warringah Local Environmental Plan 1995 (“the LEP”) and pursuant thereto zoned No…

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: [2000] NSWLEC 110
Decision Date: 06/14/2000

CaseChat Overview and Summary

The case of Warringah Council v Windy Dropdown Pty Limited concerns proceedings brought by Warringah Council against Windy Dropdown Pty Limited and its director, Mr Phillip Franks, seeking various orders against them for the removal of fill and the re-planting of trees on a property located at 1 Molong Street, North Curl Curl. The property is of heritage significance and was subject to a Conservation Plan prepared by Graham Brooks and Associates Pty Limited dated January 1998. The land is approximately 2 acres in area and enjoys spectacular views of the coastline north to Broken Bay and beyond. The key issues in this case are whether the development consent granted for the subdivision of the land and the subsequent filling of the land preservation area and removal of trees were in breach of the conditions of the consent and whether the Court should exercise its discretion to order the removal of the fill and re-planting of the trees.

The Court found that the fill placed within the landscape preservation area of the property was in breach of the conditions of the consent granted by the council. The conditions of the consent were formulated with the intention of preserving both the house and coastal heath vegetation of the land, and the fill placed within the landscape preservation area was inconsistent with the council's plan for the development of the land. The Court considered the evidence of the council's witnesses, who opined that the increased level of fill on the land was not in keeping with the overall topography and vegetation on the land and that the sense of enclosure of the land was lost due to the fill. The Court found that the cost of removal of the fill was warranted and ordered the removal of the fill within the landscape preservation area.

In relation to the removal of trees, the Court found that 19 trees had been removed from the land for reasons unrelated to the consents and that appropriate orders were warranted to ensure the re-planting of substitute trees on the land. The Court also ordered the removal of a concrete block wall erected without council consent and the removal of fig trees planted outside the land adjacent to the boundary wall. The Court further ordered that the fill on lots 16, 17, and 18 of the subdivision be removed before the transfer of any such lots is effected or prior to any building approval being granted for such lots.

In conclusion, the Court found that the respondents had breached the conditions of the consent granted by the council and exercised its discretion to order the removal of the fill within the landscape preservation area and the re-planting of substitute trees on the land. The Court also ordered the removal of a concrete block wall and fig trees planted outside the land. The council was directed to prepare draft declarations and orders to implement the findings of the Court, and leave was granted to the parties to approach the Registrar to obtain a date for the purpose of final orders and costs.

Orders