Abdallah v Canterbury City Council - [2005] NSWLEC 499

Land and Environment Court

of New South Wales

CITATION:
Abdallah v Canterbury City Council [2005] NSWLEC 499

PARTIES:
APPLICANT
Sam Abdallah
RESPONDENT
Canterbury City Council

FILE NUMBER(S):
10634 of 2005

CORAM:
Bly C

KEY ISSUES:
Subdivision :- Detached dual occupancy development

LEGISLATION CITED:
Environmental Planning & Assessment Act 1979
Development Control Plan No. 14 - Dual Occupancy Development Code
Development Control Plan No. 30 - Subdivision of Land

CASES CITED:
Segal & Anor. v Waverley Council [2004] NSWLEC 363

DATES OF HEARING: 07/09/2005

EX TEMPORE JUDGMENT DATE:
09/07/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough
RESPONDENT
Mr J Reilly, solicitor
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

7 September 2005

10634 of 2005 Sam Abdallah v Canterbury City Council
JUDGMENT

1 This appeal under s 96 of the Environmental Planning and Assessment Act 1979 relates to a detached dual occupancy development at 28 Moreton Street, Lakemba.

2 The dual occupancy development has now been constructed in accordance with Development Consent No. Z8620/96 granted by the council on 8 May 1997. Condition 16 of that consent provides that the property not be subdivided.

3 The applicant subsequently lodged a development application to subdivide the site so that each of the two dwellings has its own Torrens Title. An appeal to the Court was subsequently lodged on the basis of the deemed refusal of this application. This appeal was heard by Moore C who, having considered the merits of the subdivision application in the light of the issues identified by the council decided that a deferred commencement consent pursuant to s 80(3) of the Environmental Planning Act 1979 should be granted. The first deferred commencement condition involves the provision of vehicular access. The second condition provides that:

"Council provides notification in writing that it has granted consent to a s 96 application lodged by the applicant to remove Condition 16 of development consent Z8620/96 determined by council on 8 May 1997."

4 The applicant subsequently lodged a s 96 application that was determined by refusal on 2 June 2005. The reasons for refusal relate to: vehicular access; subdivision prohibition by Development Control Plan 14 - Dual Occupancy Code (“DCP 14”); insufficient site width as required by DCP 14 and Development Control Plan 30 - Subdivision of Land Code (“DCP 30”); and the deletion of Condition 16 would be contrary to the intent of the consent.

5 The applicant has now appealed against this decision.

6 In his submissions Mr Gough for the applicant explained that the matter of comity as dealt with by Lloyd J in Segal & Anor. v Waverley Council [2004] NSWLEC 363 was important in terms of taking into account the decision of Commissioner Moore. Arising from this there are three tests which can assist in determining whether or not Commissioner Moore’s decision should be followed.

7 The first test is whether the issue of comity was raised and obviously it was. In this regard I note…

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: [2005] NSWLEC 499
Decision Date: 09/07/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Sam Abdallah appealed against the Canterbury City Council's refusal of his application to remove a condition from a development consent that prohibited the subdivision of a property located at 28 Moreton Street, Lakemba. The dual occupancy development had been constructed in accordance with a development consent granted by the council on 8 May 1997, which included a condition prohibiting the subdivision of the property. Abdallah subsequently lodged a development application to subdivide the site so that each of the two dwellings would have its own Torrens Title. The council deemed this application to be refused and Abdallah appealed this decision to the Court.

The court had to determine whether the applicant's appeal should be upheld and the condition prohibiting the subdivision of the property should be removed. The court considered whether the matter of comity, as discussed in Segal & Anor. v Waverley Council, applied to the circumstances of the case. The court found that the matter of comity was relevant and that the earlier decision of Commissioner Moore, who had granted a deferred commencement consent, should be followed. The court found that the application was factually similar and temporally proximate to the earlier application and that there were no distinguishing features.

The court also considered the objectives of the relevant development control plans, specifically the Dual Occupancy Development Code and the Subdivision of Land Code. The court found that the objectives of these plans were met by the proposed subdivision and that Commissioner Moore had applied appropriate weight to the plans in his earlier decision. The court was thus obliged to uphold the appeal and amend the existing consent as sought by the applicant.

The final orders of the court were that the appeal was upheld, the development consent was amended by the deletion of the condition prohibiting the subdivision of the property, and the exhibits were returned to the parties except for Exhibits B and 3. No order was made as to costs.

Orders