Whitfield & McLenaghan v Northern Beaches Council (No 2)

[2024] NSWLEC 1288

Land and Environment Court

New South Wales

Medium Neutral Citation:

Whitfield & McLenaghan v Northern Beaches Council (No 2) [2024] NSWLEC 1288

Hearing dates:

6 May 2024

Date of orders:

31 May 2024

Decision date:

31 May 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders that:

(1) The Appeal is upheld;

(2) Applicants granted leave to rely on the following plans:

a. Site Analysis Plans drawing DA.01; Rev F dated 16 August 2023;

b. Proposed West Elevation Sheet 1, DA.11, Rev F dated 16 August 2023;

c. Proposed First Floor Plan DA.09, Rev F dated 16 August 2023;

(3) Development consent is granted to development application No DA2022/0409 for alterations and additions to a dwelling at 79 Riverview Rd Avalon Beach NSW 2107, being Lot 21 DP 18005 subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – procedural and final orders – self represented litigant – failure to disclose all plans at hearing – additional plan filed after hearing – slip rule not applicable - leave granted and final orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, ss 17, 38

Cases Cited:

Whitfield & McLenaghan v Northern Beaches Council [2023] NSWLEC 1795

Category:

Principal judgment

Parties:

Vivienne Whitfield (First Applicant)
Anthony McLenaghan (Second Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
V Whitfield (self-represented) (Applicants)
H Grace (barrister) (Respondent)

Solicitors:
nil (Applicants)
M Domingo, Northern Beaches Council (Respondent)

File Number(s):

2023/142770

Publication restriction:

No

JudgmenT

1. COMMISSIONER: On 22 December 2023 I allowed an appeal to grant consent to DA2022/0409 for alterations and additions to a dwelling house at 79 Riverview Rd, Avalon Beach, NSW 2107, being Lot 21 in DP 18005 (the Site): Whitfield & McLenaghan v Northern Beaches Council [2023] NSWLEC 1795 (Whitfield). The detailed facts and circumstances of the case are set out in my judgment and I will not repeat them here.

2. My decision was to uphold the appeal in reliance on the Applicants ‘fallback position’ which enabled changes to the rear decks as set out in their amended plans (2 sheets). However, I could not make final orders because the Applicants specifically stated at the hearing on 14 November 2023 that they did not want to file the amended plans but wished to solely press their primary position. At the hearing I relied on my powers under s 38(2) of the Land and Environment Court Act 1979 (LEC Act) to take into consideration the amended plans [see Whitfield, para 43-48] but I could not make orders until the amended plans were filed, served on the Respondent, and leave formally granted.

3. These procedural steps could have been done in chambers but unfortunately the Applicants filed with the 2 sheets of plans a 3^rd sheet titled “Proposed First Floor Plan, drawing DA.09, Rev F” dated 16 August 2023. This plan was not before me at the hearing, not referenced in the judgment and to my knowledge not provided to the Council at that time. Council does not object to leave being granted for the Applicants to rely on the 3^rd plan but such an addition does not fall within the slip rule as suggested by Council but is new evidence. Accordingly, I heard from the parties on 6 May 2024 to confirm their positions and explain that a short second judgment was necessary. I also note that arising largely because the Applicants were not legally represented in presenting their case, some confusion arose in my judgment. At the end I directed draft orders akin to a modification appeal and in the second last paragraph I made a passing comment quoting s 4.55(2) of the Environmental Planning & Assessment Act 1979 (EPA Act). This was not relevant and in any event had no material effect as I was not granting final orders at that stage. To be clear, the appeal was made under s 8.7(1) of the EPA Act, (Whitfield para [1]), dealt with by me pursuant to s 4.15(1) of the EPA Act and s 17(d) of the LEC Act, and by the making of the orders below, consent is granted pursuant to s 4.16(1)(a) of the EPA Act.

In conclusion I make the following orders by consent to regularise the evidentiary issue and finalise the Orders in this Appeal.

Orders

4. The Court orders:

1. The Appeal is upheld;

2. The Applicants are granted leave to rely on the following plans:

1. Site Analysis Plans drawing DA.01; Rev F dated 16 August 2023;

2. Proposed West Elevation Sheet 1, DA.11, Rev F dated 16 August 2023;

3. Proposed First Floor Plan DA.09, Rev F dated 16 August 2023;

3. Development consent granted to development application No DA2022/0409 for alterations and additions to a dwelling at 79 Riverview Rd Avalon Beach NSW 2107, being Lot 21 DP 18005, subject to the conditions of consent in Annexure A.

L Byrne

Acting Commissioner of the Court

Annexure A

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Decision last updated: 31 May 2024