24/04/2015
**NSW Land & Environment Court Dismisses Appeal by Neighbour Impacted by 'Devastating' Loss of Views**
In the recent Land & Environment Court case of Goyer v Pengilly, an appeal was made by a neighbour, Wendy Goyer, to set aside a development consent issued by Warringah Council on the grounds that the development would result in the devastating loss of ocean views from her dwelling.
The case highlights the difficulty in challenging consents based on what are essentially merit issues.
THE MATTER:
Ms Goyer, a neighbouring property owner from the development, claimed that the Council made a legal error in granting consent by failing to take into consideration s79C of the Environmental Planning and Assessment Act 1979, requiring consideration of any development control plan applying to the land, one provision which stated that 'development shall provide for the reasonable sharing of views'.
In consideration of the provisions of the development control plan the Council did not find the development unreasonable and determined that it was generally compliant with the objectives and design guidelines of the development control plan. The council also noted that the view loss was the result of an existing subdivision pattern. It was clear from the assessment report that the Council had considered the relevant development control provision although the application was not delivered in accordance with the provision which required view sharing between properties.
As the appeal was made under judicial review and could not challenge the merits of the Council's decision, the Court found that there was no legal error made in the Council's determination of the development application.
What may be of most interest to many home owners is that the Court did not accept the neighbour’s argument that the development control which required a ‘reasonable sharing of views’ meant that a proposed development MUST permit the sharing of views where those views are pre-existing and cannot remove an existing view altogether. The Court held that a development could still be deemed generally 'reasonable' even if a loss of views would eventuate.
The non-mandatory nature of planning controls in development control plans must be considered. Where a control is in a development control plan, it must be taken into consideration, the controls are not required to be strictly followed (as is required under the provisions of a Local Environmental Plan, for example). To do so would breach the provisions of the Environmental Planning & Assessment Act 1979 which require development control plans to be applied as guidelines only.
The full judgement can be read at: http://www.caselaw.nsw.gov.au/decision/55233dc0e4b0fc828c995295
In this litigation, commenced by way of summons filed on 17 September 2013, the applicant, Mrs Wendy Goyer, seeks to set aside a development consent granted by the second respondent, Warringah Council (“the council”), to the first respondents, Mr Kirk Pengilly and Ms Layne Beachley (“the first respo…
