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 DevelopmentCases 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 438Texts Cited: Residential Flat Design Code
Parramatta Road Corridor Urban Transformation StrategyCategory: 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
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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.
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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.
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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…
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- Case
- [2017] NSWLEC 1083
- Decision Date
CaseChat Overview and Summary
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
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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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