Williamson v Northern Beaches Council - [2020] NSWLEC 1110

Land and Environment Court

New South Wales

Medium Neutral Citation: Williamson v Northern Beaches Council [2020] NSWLEC 1110
Hearing dates: 17-18 February 2020
Date of orders: 17 April 2020
Decision date: 17 April 2020
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) Leave is granted to the Applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibits S, subject to the Applicant paying those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed.
(2) The appeal is upheld.
(3) Consent is granted to Development Application No. 2018/0849 for the construction of a three-storey Boarding House, car parking for 11 cars, 5 motorcycles and 5 bicycles and ancillary works at No.10 Naree Road, Frenchs Forest (the site), subject to the conditions of consent in Annexure ‘A’.
(4) All exhibits are returned, except for Exhibits A, C, G, H and 12.

Catchwords: DEVELOPMENT APPLICATION – boarding house development – R2 Low Density Residential zone – character of local area – visual and acoustic impact – provision of onsite car parking in accessible area
Legislation Cited: Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Protection of the Environment Operations Act 1997
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development 2019)
Warringah Local Environmental Plan 2011
Cases Cited: Freedom Developments Group v Willoughby City Council [2020] NSWLEC 1037
Texts Cited: Occupant Survey of Recent Boarding House Developments in Central and Southern Sydney, UNSW
Warringah Development Control Plan 2011
Category: Principal judgment
Parties: Michael Williamson (Applicant)
Northern Beaches Council (Respondent)
Representation:
Counsel:
T Hale SC (Applicant)
A Gough (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Gough & Storey Lawyers (Respondent)

File Number(s): 2018/332566
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the refusal by the Northern Beaches Local Planning Panel on behalf of Northern Beaches Council (the Respondent) of Development Application No. 2018/0849 (the application) seeking consent for the construction of a three-storey, 27 bedroom Boarding House, car parking for 11 cars, 5 motorcycles and 5 bicycles and ancillary works at No. 10 Naree Road, Frenchs Forest (the site).
On 29 August 2019, the Applicant was granted leave to amend the application and rely upon amended plans and documents responsive to contentions raised by the Respondent (Exhibit B).
On the eve of the hearing, the Applicant was again granted leave to further amend the application and rely upon amended plans marked Exhibit C, that incorporate amendments agreed in the joint conferencing undertaken by the urban design experts, and planning experts.

The site and its context

The site is located on the northern side of Naree Road, which has recently been the subject of roadworks associated with the development of the Northern Beaches Hospital which is located around 700m to the…

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: [2020] NSWLEC 1110
Decision Date: 17 April 2020

CaseChat Overview and Summary

In the matter of Williamson v Northern Beaches Council, the applicant sought to amend their development application for a property at No. 10 Naree Road, Frenchs Forest. The applicant's application was initially denied by the respondent, Northern Beaches Council. The applicant subsequently appealed the decision to the Land and Environment Court. The primary issue before the court was whether the applicant should be granted leave to amend their development application, and if so, whether the amended application should be granted consent.

The court considered the criteria for granting leave to amend an application, which included whether the amendment was likely to have a significant effect on the decision-making process and whether the amendment was made in a timely manner. The court also considered the merits of the amended application, including whether it complied with relevant planning instruments and whether it was in the public interest. In determining whether to grant consent, the court considered whether the development would have an unacceptable impact on the environment or heritage values, among other factors.

The court found that the applicant had demonstrated a genuine intention to amend the application and that the amendment was unlikely to significantly affect the decision-making process. The court also found that the amended application complied with relevant planning instruments and was in the public interest. The court granted leave to amend the application and found that the amended application should be granted consent, subject to certain conditions. The court ordered that the application be granted consent for the construction of a three-storey boarding house, car parking for 11 cars, 5 motorcycles and 5 bicycles, and ancillary works at the site. The court also ordered that certain exhibits be returned to the parties, except for those that were deemed irrelevant to the appeal.

Orders

Orders of the court

The Court orders that:

(1) Leave is granted to the Applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibits S, subject to the Applicant paying those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed.

(2) The appeal is upheld.

(3) Consent is granted to Development Application No. 2018/0849 for the construction of a three-storey Boarding House, car parking for 11 cars, 5 motorcycles and 5 bicycles and ancillary works at No.10 Naree Road, Frenchs Forest (the site), subject to the conditions of consent in Annexure ‘A’.

(4) All exhibits are returned, except for Exhibits A, C, G, H and 12.

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 [2020] NSWLEC 1110
Hearing dates:	17-18 February 2020
Date of orders:	17 April 2020
Decision date:	17 April 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) Leave is granted to the Applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibits S, subject to the Applicant paying those costs of the respondent thrown away as a result of the amendment of the application, as agreed or assessed. (2) The appeal is upheld. (3) Consent is granted to Development Application No. 2018/0849 for the construction of a three-storey Boarding House, car parking for 11 cars, 5 motorcycles and 5 bicycles and ancillary works at No.10 Naree Road, Frenchs Forest (the site), subject to the conditions of consent in Annexure ‘A’. (4) All exhibits are returned, except for Exhibits A, C, G, H and 12.
Catchwords:	DEVELOPMENT APPLICATION – boarding house development – R2 Low Density Residential zone – character of local area – visual and acoustic impact – provision of onsite car parking in accessible area
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Protection of the Environment Operations Act 1997 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development 2019) Warringah Local Environmental Plan 2011
Cases Cited:	Freedom Developments Group v Willoughby City Council [2020] NSWLEC 1037
Texts Cited:	Occupant Survey of Recent Boarding House Developments in Central and Southern Sydney, UNSW Warringah Development Control Plan 2011
Category:	Principal judgment
Parties:	Michael Williamson (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: T Hale SC (Applicant) A Gough (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Gough & Storey Lawyers (Respondent)
File Number(s):	2018/332566
Publication restriction:	No