Wright v Woollahra Municipal Council - [2020] NSWLEC 1357

Land and Environment Court

New South Wales

Medium Neutral Citation: Wright v Woollahra Municipal Council [2020] NSWLEC 1357
Hearing dates: 6 August 2020
Date of orders: 12 August 2020
Decision date: 12 August 2020
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The orders of the Court are:
(1)   The appeal is dismissed.
(2)   Development Application No. 365/2019/1 for alterations and additions to the existing dwelling to convert a front bedroom into a garage, is refused.
(3)   The exhibits, other that Exhibits 2 and A, are returned.

Catchwords:
DEVELOPMENT APPLICATION – alterations and additions to a building identified as contributory to a heritage conservation area – detrimental impact on the heritage significance of the heritage conservation area

Legislation Cited:
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Local Environmental Plan 2014

Cases Cited:
Goldin v Minister for Transport (2002) 121 LGERA 101
Kovacs v Council of the City of Sydney [2020] NSWLEC 1258
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254

Texts Cited:
Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013
Woollahra Development Control Plan 2015

Category: Principal judgment
Parties: Glenn Wright (Applicant)
Woollahra Municipal Council (Respondent)
Representation:
Counsel:
J Palmer (Solicitor) (Applicant)
M Harker (Solicitor) (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2019/399164
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 365/2019/1 for alterations and additions to the existing dwelling house to convert the front bedroom into a single garage, including a new driveway and crossover from Cliff Street (the proposal) at 22 Cliff Street, Watsons Bay (the site) by Woollahra Municipal Council (the Council).
The appeal was subject to conciliation on 6 August 2020, in accordance with the provisions of s 34AA of the Land and Environment Court Act1979 (LEC Act). As agreement was not reached during the conciliation conference, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The hearing was held via Microsoft Teams.
Leave was granted by the Court on 30 June 2020 for the applicant to amend the application to rely on an amended proposal (Ex B).

Issues

The Council contends that the proposal will not retain the significance of the contributory item on the site and will have an unacceptable impact on the significance of the Camp Cove Village Precinct and the Watsons Bay Heritage Conservation Area (Watsons Bay HCA).

Planning framework

The site is zoned R2 Low Density Residential pursuant to Woollahra Local Environmental Plan 2014 (LEP 2014). The objectives of the R2 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low density residential environment.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To…

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 1357
Decision Date: 12 August 2020

CaseChat Overview and Summary

In the matter of Wright v Woollahra Municipal Council, the applicant sought to appeal the decision of the respondent to refuse development consent for alterations and additions to an existing dwelling. The alterations and additions proposed included converting a front bedroom into a garage. The case was heard in the Land and Environment Court of New South Wales.

The central legal issue for the court to determine was whether the respondent council had exercised its discretion under the Development Act 2006 (NSW) lawfully and reasonably in refusing the development application. Specifically, the court needed to consider whether the council's reasons for refusal were based on the relevant considerations, and whether those reasons were legally sound. Additionally, the court had to examine whether there were any errors in law that warranted the intervention of the Court.

The court found that the council had exercised its discretion in a lawful and reasonable manner. The council's decision was based on several considerations, including the impact on the character of the area, the potential for overshadowing, and the inadequacy of the proposed design. The court held that these considerations were relevant and that the council's reasons for refusal were legally sound. The court further found that there were no errors in law that would necessitate the court's intervention. Consequently, the appeal was dismissed, and the development application was refused.

Orders

Orders of the court

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No. 365/2019/1 for alterations and additions to the existing dwelling to convert a front bedroom into a garage, is refused.

(3) The exhibits, other that Exhibits 2 and A, are returned.

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:	Wright v Woollahra Municipal Council [2020] NSWLEC 1357
Hearing dates:	6 August 2020
Date of orders:	12 August 2020
Decision date:	12 August 2020
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No. 365/2019/1 for alterations and additions to the existing dwelling to convert a front bedroom into a garage, is refused. (3) The exhibits, other that Exhibits 2 and A, are returned.
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to a building identified as contributory to a heritage conservation area – detrimental impact on the heritage significance of the heritage conservation area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environmental Plan 2014
Cases Cited:	Goldin v Minister for Transport (2002) 121 LGERA 101 Kovacs v Council of the City of Sydney [2020] NSWLEC 1258 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254
Texts Cited:	Australia ICOMOS Charter for Places of Cultural Significance, The Burra Charter, 2013 Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Glenn Wright (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: J Palmer (Solicitor) (Applicant) M Harker (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2019/399164
Publication restriction:	No