Williamson v Northern Beaches Council - [2021] NSWLEC 1038

Land and Environment Court

New South Wales

Medium Neutral Citation: Williamson v Northern Beaches Council [2021] NSWLEC 1038
Hearing dates: 10-11 December 2020
Date of orders: 22 January 2021
Decision date: 22 January 2021
Jurisdiction: Class 1
Before: Smithson AC
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development Application DA2018/2019 seeking demolition of existing structures and construction of a boarding house with associated works at 16 Gladys Avenue, Frenchs Forest is approved subject to conditions, as outlined in Annexure A.
(3) The exhibits are returned except for Exhibits A, B, E, 2 and 8.

Catchwords:
DEVELOPMENT APPLICATION – boarding house –size of development – compatibility with character of local area – amenity impacts for neighbours –objections – public interest

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

Cases Cited:
ACN 603 361 940 Pty Ltd v Northern Beaches Council [2019] NSWLEC 1012
Haynes v Northern Beaches Council [2020] NSWLEC 1600
Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146
Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191

Texts Cited:
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy
New South Wales Department of Planning, Industry and Environment, Northern Beaches Hospital Precinct Structure Plan
Northern Beaches Section 7.12 Contributions Plan 2019
Warringah Development Control Plan 2011

Category: Principal judgment
Parties: Michael Williamson (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
S Berveling (Applicant)
C Gough (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s): 2019/41528
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). It is against the refusal of Development Application DA2018/2019 (the application) by Northern Beaches Council (the Council) of a boarding house at 16 Gladys Avenue, Frenchs Forest (the site).

Background

As lodged in December 2018, the application proposed a 3-4 storey development with 81 rooms, a manager’s residence and a basement car park containing 21 parking spaces, 17 motorcycle spaces, and 17 bicycle spaces. Four canopy trees were retained within the front setback, including 2 native trees exceeding 16m in height with a 12m canopy spread.
Although classified as a ‘boarding house’, the development was described in the application plans as key worker housing associated with the Northern Beaches Hospital which is within 200m of the site.
The application was notified to nearby residents, with 117 submissions lodged in response. The majority objected to the development citing: issues associated with the character of the area; traffic and parking impacts; overdevelopment given the size and scale; and impacts on property values and the amenity of adjoining properties. Many residents raised concerns with the impact the hospital’s opening has had on traffic and parking in Gladys Avenue and the form of associated development now proposed (and approved) in their street.
On 17 December 2019, Leave was granted by the Court for…

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 1038
Decision Date: 22 January 2021

CaseChat Overview and Summary

Williamson commenced proceedings against Northern Beaches Council, seeking approval for a development application (DA2018/2019) that involved the demolition of existing structures on a property at 16 Gladys Avenue, Frenchs Forest, and the construction of a boarding house. The dispute reached the Land and Environment Court of New South Wales, which was required to determine the validity of the application in accordance with relevant planning laws and policies.

The court was tasked with deciding whether the proposed development complied with the relevant planning instruments, including the local environmental plan, and whether the application met the necessary criteria for approval. This included assessing the impact of the proposed development on the character of the area, the compliance with zoning requirements, and whether the development was consistent with any relevant development control mechanisms.

In its decision, the court found that the proposed development was consistent with the local environmental plan and did not adversely impact the character of the area. The court also determined that the applicant had met the necessary criteria for approval, including demonstrating compliance with relevant development control mechanisms. Consequently, the court upheld the appeal and approved the development application, subject to certain conditions outlined in Annexure A. The exhibits were ordered to be returned, except for those specified.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA2018/2019 seeking demolition of existing structures and construction of a boarding house with associated works at 16 Gladys Avenue, Frenchs Forest is approved subject to conditions, as outlined in Annexure A.

(3) The exhibits are returned except for Exhibits A, B, E, 2 and 8.

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:	Williamson v Northern Beaches Council [2021] NSWLEC 1038
Hearing dates:	10-11 December 2020
Date of orders:	22 January 2021
Decision date:	22 January 2021
Jurisdiction:	Class 1
Before:	Smithson AC
Decision:	The Court orders: (1) The appeal is upheld. (2) Development Application DA2018/2019 seeking demolition of existing structures and construction of a boarding house with associated works at 16 Gladys Avenue, Frenchs Forest is approved subject to conditions, as outlined in Annexure A. (3) The exhibits are returned except for Exhibits A, B, E, 2 and 8.
Catchwords:	DEVELOPMENT APPLICATION – boarding house –size of development – compatibility with character of local area – amenity impacts for neighbours –objections – public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Warringah Local Environmental Plan 2011
Cases Cited:	ACN 603 361 940 Pty Ltd v Northern Beaches Council [2019] NSWLEC 1012 Haynes v Northern Beaches Council [2020] NSWLEC 1600 Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146 Project Venture Developments Pty Ltd v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy New South Wales Department of Planning, Industry and Environment, Northern Beaches Hospital Precinct Structure Plan Northern Beaches Section 7.12 Contributions Plan 2019 Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Michael Williamson (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: S Berveling (Applicant) C Gough (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Storey & Gough Lawyers (Respondent)
File Number(s):	2019/41528
Publication restriction:	No