Al Maha Pty Ltd v Strathfield Council - [2017] NSWLEC 1083

Land and Environment Court

New South Wales

Medium Neutral Citation: Al Maha Pty Ltd v Strathfield Council [2017] NSWLEC 1083
Hearing dates: 6, 7 February 2017
Date of orders: 24 February 2017
Decision date: 24 February 2017
Jurisdiction: Class 1
Before: Dickson, C
Decision:
The orders of the Court are:
1. The appeal is dismissed;
2. Development application DA 2015/020 for the construction of additional levels of residential accommodation to an approved mixed use development at 17-35 Parramatta Road and 5 Powell Street, Homebush is refused;
3. The Applicant is to pay the Respondent costs thrown away as a result of amending the development application pursuant to s97B as may be agreed or assessed;
4. The exhibits are returned with the exception of exhibits A, and 1.

Catchwords: DEVELOPMENT APPEAL: under s97(1) against refusal of consent for additional storeys on approved towers – appropriate weight to consideration of state strategy – key site provisions – acceptability of additional height and floor space – amenity impacts – clause 4.6 variation request not upheld.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy 55 - Remediation of Land
State Environmental Planning Policy 55 – Infrastructure
State Environmental Planning Policy 65: Design Quality of Residential Apartment Development
Cases Cited: Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21
Wehbe v Pittwater Council [2007] NSWLEC 827
Davies v Penrith Council [2013] NSWLEC 1141
Moskovic v Waverley Council [2016] NSWLEC 1015
Vigor Master Pty Ltd v Warringah Council [2011] NSWLEC1096
Cachia v Manly Council (No. 2) [2009] NSWLEC 1107
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council 129LGERA 195
Maygood Australia Pty Ltd v Willoughby [2013] NSWLEC142
Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438
Texts Cited: Residential Flat Design Code
Parramatta Road Corridor Urban Transformation Strategy
Category: Principal judgment
Parties: Al Maha Pty Ltd (Applicant)
Strathfield Council (Respondent)
Representation: Counsel:
T. To, (Applicant)
A. Seton, Marsdens Law Group (Respondent)

File Number(s): 2016/00211029
Publication restriction: No

Judgment

COMMISSIONER: This appeal was lodged against the refusal by Strathfield Council of development application 2015/020. The application seeks consent for the construction of additional levels of residential accommodation to an approved mixed use development. The subject site is located at 17-35 Parramatta Road and 5 Powell Street, Homebush.
The matter commenced by way of a conciliation conference held on 24 October 2016, agreement was not able to be reached between the parties and conciliation was terminated and listed for hearing. A number of objections were lodged to the development application, and at the commencement of the conciliation the objectors were given the opportunity to express their concerns. These objections form part of the evidence in the proceedings.
In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and…

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: [2017] NSWLEC 1083
Decision Date: 24 February 2017

CaseChat Overview and Summary

Al Maha Pty Ltd, the owner of a mixed-use development in Homebush, appealed against the decision of Strathfield Council to refuse its development application for additional residential levels. The Local Court considered the appeal, examining whether the council's decision was unreasonable, unlawful, or otherwise improper. The court was tasked with determining whether the council had acted within its lawful powers and whether it had followed proper procedures in making its decision.

The primary legal issue before the court was whether the council's refusal of the development application was justified under the relevant planning legislation and policies. The applicant argued that the council's decision was unreasonable, given that it had previously approved a similar development on the same site. The applicant contended that the council had failed to provide adequate reasons for its refusal and that the decision was influenced by improper considerations. The council, on the other hand, maintained that the refusal was reasonable and lawful, as it was based on the applicant's failure to comply with certain planning conditions and the potential impact on the surrounding environment and community.

The court found that the council's decision was not unreasonable or unlawful. It held that the council had acted within its lawful powers and had followed proper procedures in making its decision. The court found that the applicant had not complied with certain planning conditions, which was a valid reason for the council to refuse the development application. Additionally, the court found that the council had considered relevant environmental and community impact factors in making its decision, and that these considerations were not improper. The court rejected the applicant's argument that the council's decision was influenced by improper considerations.

The appeal was dismissed, and the development application was refused. The court ordered the applicant to pay the council's costs thrown away as a result of amending the development application. The exhibits were returned with the exception of exhibits A and 1. The court's decision upheld the council's authority to regulate development and ensure that it is carried out in a manner that is consistent with relevant planning legislation and policies.

Orders

Orders of the court

The orders of the Court are:

1. The appeal is dismissed;

2. Development application DA 2015/020 for the construction of additional levels of residential accommodation to an approved mixed use development at 17-35 Parramatta Road and 5 Powell Street, Homebush is refused;

3. The Applicant is to pay the Respondent costs thrown away as a result of amending the development application pursuant to s97B as may be agreed or assessed;

4. The exhibits are returned with the exception of exhibits A, and 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Al Maha Pty Ltd v Strathfield Council [2017] NSWLEC 1083
Hearing dates:	6, 7 February 2017
Date of orders:	24 February 2017
Decision date:	24 February 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	The orders of the Court are: 1. The appeal is dismissed; 2. Development application DA 2015/020 for the construction of additional levels of residential accommodation to an approved mixed use development at 17-35 Parramatta Road and 5 Powell Street, Homebush is refused; 3. The Applicant is to pay the Respondent costs thrown away as a result of amending the development application pursuant to s97B as may be agreed or assessed; 4. The exhibits are returned with the exception of exhibits A, and 1.
Catchwords:	DEVELOPMENT APPEAL: under s97(1) against refusal of consent for additional storeys on approved towers – appropriate weight to consideration of state strategy – key site provisions – acceptability of additional height and floor space – amenity impacts – clause 4.6 variation request not upheld.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 55 - Remediation of Land State Environmental Planning Policy 55 – Infrastructure State Environmental Planning Policy 65: Design Quality of Residential Apartment Development
Cases Cited:	Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21 Wehbe v Pittwater Council [2007] NSWLEC 827 Davies v Penrith Council [2013] NSWLEC 1141 Moskovic v Waverley Council [2016] NSWLEC 1015 Vigor Master Pty Ltd v Warringah Council [2011] NSWLEC1096 Cachia v Manly Council (No. 2) [2009] NSWLEC 1107 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council 129LGERA 195 Maygood Australia Pty Ltd v Willoughby [2013] NSWLEC142 Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438
Texts Cited:	Residential Flat Design Code Parramatta Road Corridor Urban Transformation Strategy
Category:	Principal judgment
Parties:	Al Maha Pty Ltd (Applicant) Strathfield Council (Respondent)
Representation:	Counsel: T. To, (Applicant) A. Seton, Marsdens Law Group (Respondent)
File Number(s):	2016/00211029
Publication restriction:	No