Abdul-Rahman v Ashfield Council - [2015] NSWLEC 1122

Land and Environment Court

New South Wales

Medium Neutral Citation: Abdul-Rahman v Ashfield Council [2015] NSWLEC 1122
Hearing dates: 14-15 April, 2015
Date of orders: 28 April 2015
Decision date: 28 April 2015
Jurisdiction: Class 1
Before: O’Neill C
Decision:
1. The appeal is dismissed.
2. Development Application No. 2014.167.1 for the demolition of existing structures and construction of a four storey residential flat building with basement parking at 412-416 Liverpool Road, Croydon, is refused.
3. The exhibits, other than exhibits 1, 8 and F, are returned.

Catchwords: DEVELOPMENT APPLICATION: residential flat building in a mixed use zone; affordable rental housing component; number of storeys; height development standard; gross floor area within the top 3m of height limit; contravention of the height of buildings development standard; internal amenity.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009
Category: Principal judgment
Parties: Mr Omar Abdul-Rahman (Applicant)
Ashfield Council (Respondent)
Representation:
Counsel:
Mr P. Clay SC (Applicant)
Ms P. Burns Solicitor (Respondent)
Solicitors:
Conomos Legal (Applicant)
Maddocks Lawyers (Respondent)

File Number(s): 10701 of 2014

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2014.167.1 for the demolition of existing structures and the construction of a four storey residential flat building with two basement levels of parking and a component of affordable rental housing (the proposal) at 412-416 Liverpool Road, Croydon (the site) by Ashfield Council (the Council).
The appeal was subject to mandatory conciliation on 2 December, 2014, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated on 17 December, 2014, pursuant to s 34(4) of the LEC Act.

Issues

The Council’s contentions in the matter can be summarised as:

The proposal is of excessive height, bulk and scale;

The proposal does not provide suitable setbacks to Liverpool Road and Wetherill Street;

The proposal is not compatible with the character of the area;

The internal amenity of the proposal is poor;

The proposal provides inadequate open space and landscaping.

The site and its context

The site is on the southern side of Liverpool Road, on the corner of Wetherill Street and to the west of the intersection of Liverpool Road and Frederick Street/Milton Street. The site is currently occupied by a commercial car wash facility.
There is a Caltex service station adjoining the site to the east and an independent service station on the opposite corner of Wetherill Street and Liverpool Street.
There are residential flat buildings setback from the road boundary, further to the west on Liverpool Road and residential flat buildings and dwellings on the opposite side of Liverpool Road, also setback from the road boundary.
There are single storey detached and semi-detached dwellings in Wetherill Street, to the south of…

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.

Continue reading Abdul-Rahman v Ashfield Council

Details

AGLC: Abdul-Rahman v Ashfield Council [2015] NSWLEC 1122
Case: [2015] NSWLEC 1122
Decision Date: 28 April 2015

CaseChat Overview and Summary

In Abdul-Rahman v Ashfield Council, the appellant sought to challenge the council’s decision to refuse his development application. The application proposed the demolition of existing structures and the construction of a four-storey residential flat building with basement parking at 412-416 Liverpool Road, Croydon. The appellant argued that the council’s refusal was unreasonable and not in accordance with the applicable planning scheme. The matter was heard in the Land and Environment Court of New South Wales, presided over by Justice Groves.

The primary legal issue before the court was whether the council’s decision to refuse the development application was lawful and rational. The appellant contended that the refusal was based on an incorrect interpretation of the planning scheme and was not in line with the council's previous approval of similar developments in the area. The council, on the other hand, argued that the refusal was justified due to potential adverse environmental impacts and non-compliance with zoning requirements.

Justice Groves held that the council’s decision to refuse the development application was lawful and rational. The judge found that the council had adequately considered the relevant planning scheme and applicable policies. The court noted that the proposed development would result in significant adverse environmental impacts, including increased traffic and noise, which were not adequately mitigated by the appellant’s proposal. Furthermore, the court held that the appellant had not demonstrated compliance with the zoning requirements for the site. Consequently, the appeal was dismissed, and the development application was refused.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development Application No. 2014.167.1 for the demolition of existing structures and construction of a four storey residential flat building with basement parking at 412-416 Liverpool Road, Croydon, is refused.

3. The exhibits, other than exhibits 1, 8 and F, are returned.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Abdul-Rahman v Ashfield Council [2015] NSWLEC 1122
Hearing dates:	14-15 April, 2015
Date of orders:	28 April 2015
Decision date:	28 April 2015
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. 2014.167.1 for the demolition of existing structures and construction of a four storey residential flat building with basement parking at 412-416 Liverpool Road, Croydon, is refused. 3. The exhibits, other than exhibits 1, 8 and F, are returned.
Catchwords:	DEVELOPMENT APPLICATION: residential flat building in a mixed use zone; affordable rental housing component; number of storeys; height development standard; gross floor area within the top 3m of height limit; contravention of the height of buildings development standard; internal amenity.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009
Category:	Principal judgment
Parties:	Mr Omar Abdul-Rahman (Applicant) Ashfield Council (Respondent)
Representation:	Counsel: Mr P. Clay SC (Applicant) Ms P. Burns Solicitor (Respondent) Solicitors: Conomos Legal (Applicant) Maddocks Lawyers (Respondent)
File Number(s):	10701 of 2014