Morgan v Lane Cove Council [2018] NSWLEC 58

Land and Environment Court New South Wales

Medium Neutral Citation: Morgan v Lane Cove Council [2018] NSWLEC 58 Hearing dates: 16 and 20 April 2018 Date of orders: 20 April 2018 Decision date: 20 April 2018 Jurisdiction: Class 1 Before: Molesworth AJ Decision: See orders at [26] Catchwords: Referral of proceeding to Court by Registrar pursuant to r 49.16 of the Uniform Civil Procedure Rules 2005 - Contentions regarding alleged inconsistency and changes to original Court orders should preferably be heard by Commissioner who made original orders - Insufficient reasons for expedition to upset Registrar's orders that matter be listed before the Commissioner. Legislation Cited: Uniform Civil Procedure Rules 2005 rr 49.16, 49.19, 49.20 Cases Cited: Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 June Morgan v Lane Cove Council [2017] NSWLEC 1687 Malek v Woollahra Municipal Council [2017] NSWLEC 124 TC (Tallwoods) Pty Ltd v Liverpool City Council [2018] NSWLEC 48 Category: Procedural and other rulings Parties: June Morgan (Applicant) Lane Cove Council (Respondent) Representation: Counsel: Ms June Morgan (Litigant in person) (Applicant) Dr James Smith (Respondent)

Solicitors: Ms June Morgan (Litigant in person) (Applicant) Marsdens Law Goup (Respondent) File Number(s): 2017/63578 Publication restriction: N/A

JUDGMENT

Background 1. This judgment is in relation to two Class 1 proceedings: Appeal No 17/63578 in relation to a subdivision proposal and Appeal No 17/211667 in relation to a proposal to construct a three storey dwelling and an associated driveway. Both proceedings were the subject of a judgment given by Commissioner Dixon (as she then was) on 1 December 2017, being June Morgan v Lane Cove Council [2017] NSWLEC 1687. 2. It is convenient to provide a brief summary of the proposals in the proceedings before the Commissioner by simply quoting from paragraphs [1]-[8], omitting parts that are unnecessary for present purposes. The applicant, June Morgan, lodged two development applications with the Lane Cove Council in respect of her property at 7 Dettmann Avenue, Longueville ('the site'): Development application number (DA 170/2016) sought consent for the subdivision of the site into two (2) Torrens title allotments. Lot 1 fronts Dettmann Avenue and is 654 m2. Lot 2 adjoins the foreshore to Tambourine Bay and is 917 m² including a 3m wide access handle off Dettmann Avenue; and Development application number (DA 213/20166) sought consent for the construction of a three storey dwelling and access driveway on Lot 2. The Council … refused development consent to the applications and the applicant … exercised, in each case, her right of appeal to the Court under s 97 (now s 8.7) of the Environmental Planning and Assessment Act 1979 ('EPA Act'). The proceedings were heard together pursuant to s 34AA of the Land and Environment Court Act 1979 ('the Court Act'). The site is located on the lower western side of Dettmann Avenue and is a foreshore property of Tambourine Bay. The land falls steeply approximately 20m from the street to the water. There is a depression in the topography toward the rear half of the site that is a remnant of sandstone quarrying that occurred during the 1930s. The Warraroon Reserve is located to the north of the site and is identified as bushland under State Environmental Planning Policy 19 – Bushland in Urban Area. …. The Lane Cove Local Environmental Plan 2009 ('LEP') identifies the site as zoned R2 Low Density Residential with the rear portion of the land (approximately 412m2) zoned E2 Environmental Conservation zone (Map LZN _002) and Environmental Protection Land (Map CL1 _002). The rear portion is also identified as Coastal Wetlands and identified as a Proximity Area for Coastal Wetlands in the Draft Coastal Management State Environmental Planning Policy Map entitled The Coastal Wetlands and Littoral Rainforests Area Map. Development for the purpose of a "dwelling" is permitted with consent within the R2 zone but prohibited in the E2 zone. The site is rectangular in shape and has a total land area of 1571 m². The width of the site is 18.29 m and the depth is 88.43 m along the northern boundary and 83.36m along the southern boundary. The subdivision will create a battle axe allotment behind the parent lot with an access handle running along the southern boundary. The proposed dwelling is to be located on the flat area on Lot 2 below the terrace and forward of the E2 land 1. The Commissioner determined to uphold the Applicant's appeals and did so with the following words at [61]: "After careful consideration of the evidence of the experts and the objectors it is my considered opinion that there is no planning basis to refuse the applications after assessment under s 79C of the EPA Act. The developments are permissible and comply with the current numerical requirements of the LEP and the relevant zone objectives". The Commissioner then ordered that each application be approved subject to "the conditions in Exhibit 8 as amended by this judgment". 2. Since the date of the judgment there arose a need to make a minor amendment to the judgment, being the correction of a typographical error in a BASIX certificate number. That amendment was effected by order made in chambers by the Senior Commissioner on 1 March 2018 pursuant to the "slip rule" under r 36.17 of the Uniform Civil Procedure Rules 2005 (UCPR). Subsequent to that amendment, issues have arisen between the parties as to whether other changes have or have not been made to the judgment. Those issues are yet to be examined and resolved.