Notaras, Irene v Waverly Council and Levitt, Erroll Wilfred [2006] NSWLEC 669

Land and Environment Court of New South Wales

CITATION : Notaras, Irene v Waverly Council and Levitt, Erroll Wilfred [2006] NSWLEC 669

APPLICANT Irene Notaras

PARTIES : FIRST RESPONDENT Waverly Council

SECOND RESPONDENT Errol Wilfred Levitt

FILE NUMBER(S) : 40331 of 2006

CORAM: Talbot J

KEY ISSUES: Judicial Review :- whether decision to grant development consent manifestly unreasonable.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Associated Provisional Picture Houses Limited v Wednesbury Corporation [1949] 1 KB 223; King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505

DATES OF HEARING: 11/10/2006, 12/10/2006

DATE OF JUDGMENT: 10/27/2006

APPLICANT Mr P Gargan (agent)

FIRST RESONDENT Mr G Newport (barrister) LEGAL REPRESENTATIVES: SOLICITORS Staunton Beattie

SECOND RESPONDENT Mr N Hemmings QC SOLICITORS Allens Arthur Robinson

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

27 October 2006

40331 of 2006 Notaras, Irene v Waverley Council and Levitt, Errol Wilfred

JUDGMENT

1 Talbot J: On 25 November 2004 the second respondent, the owner of 15 Rodney Street, Dover Heights, caused a development application to be lodged with Waverley Council seeking consent to demolish an existing house and construct a new three storey house, garage and swimming pool. After the development application was advertised several submissions were received. Ultimately the application was refused by the Development and Building Unit under delegated authority. 2 Following the lodgement of an application for review pursuant s 82A of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and the submission of amended plans, the development application was readvertised. A number of councillors inspected the site and met with the architects as a consequence of which further amended plans were submitted on at least two occasions before a meeting of the Development Control Committee on 27 September 2005 where consideration of the application was deferred to allow the applicant to submit amended plans showing the following:- 1. A reduction of the length of the building by at least 1 metre on the western side and; 2. A reduction of the depth of the rear deck from 3.5 metres to 2.5 metres. 3 Further amended plans were submitted reflecting the changes. The applicant in these proceedings, Mrs Irene Notaras, was consulted and she made submissions regarding alleged errors in the plans in respect of natural ground level, height and front and rear setbacks. Further information relating to natural ground level and rear setbacks was thereafter provided by the architects. 4 The development application was further considered at a meeting of the Development Control Committee on 6 December 2005 when Mrs Notaras and other neighbours attended and were given the opportunity to make submissions. 5 The following motion was put to the meeting: