Ali v Liverpool City Council - [2009] NSWLEC 1327

Land and Environment Court

of New South Wales

CITATION: Ali v Liverpool City Council [2009] NSWLEC 1327

PARTIES:
APPLICANT
Ashraf Ali
RESPONDENT
Liverpool City Council
INTERVENOR
Federation of Hellenic Associations Limited

FILE NUMBER(S): 10193 of 2009

CORAM: Moore SC

KEY ISSUES: CONSENT ORDERS - DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN - SECTION 97 APPEAL :-
Odour
Future character
Growth Centres strategy

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Protection of the Environment Operations Act 1997
Uniform Civil Procedure Rules 2005
Liverpool Local Environmental Plan 2008
Liverpool Local Environmental Plan 1997
Development Control Plan 40 Intensive Livestock Agriculture (Poultry Farming) and Intensive Plant Agriculture (Greenhouses / Igloos / Market Gardening)
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
Sydney Regional Environmental Plan No. 20 - Hawkesbury–Nepean River

CASES CITED: Ali v Liverpool City Council [2009] NSWLEC 107
Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195
Warnes v Muswellbrook Shire Council [2009] NSWLEC 1284
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Tenacity Consulting v Waringah [2004] NSWLEC 140

DATES OF HEARING: 15, 16, 17 and 18 September 2009

DATE OF JUDGMENT:
8 October 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Ayling SC
INSTRUCTED BY
HWL Ebsworth
RESPONDENT
Mr P Marincowitz, solicitor
DLA Phillips Fox
Intervenor
Mr C Leggat SC
Mr N Eastman, barrister
INSTRUCTED BY CA Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

8 October 2009
09/10193 Ashraf Ali v Liverpool City Council

JUDGMENT

Introduction

1 SENIOR COMMISSIONER: Gurner Avenue at Austral forms the spine of a locality identified by the expert planners in these proceedings as being the relevant local area within the Austral Precinct (a land area designation described later in this decision). They were asked to consider what constituted the locality for the purposes of this objective. They considered this and marked, on an aerial photograph with their supplementary joint report, their agreed locality for these purposes. This photograph is reproduced below.

2 The locality is to the north of a gentle east-west running ridge between Gurner Avenue and Fifteenth Avenue (to the south).

3 About 50 m to the south of the intersection of Fourth Avenue and Gurner Avenue is the crest of this ridge from which it is possible to see the parcel of land on the north-eastern corner of the intersection. This parcel of land has, in its own south-western quarter, a somewhat dilapidated dwelling and an assortment of rural structures. The remainder of the ~ 3.99 ha parcel upon which the house is located is vacant. The vacant land is virtually entirely grassed with only three or four trees located on it. It is upon this complete parcel of land (the site), the housing and occupied area and the vacant land (that doglegs around the occupied portion), that the applicant proposes to erect, in stages, a…

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: [2009] NSWLEC 1327
Decision Date: 8 October 2009

CaseChat Overview and Summary

The appeal was brought by Ashraf Ali, the applicant, against a decision of Liverpool City Council, the respondent, to refuse development consent to the applicant's development application. The proposed development was to demolish existing structures on a site in Austral and to erect a school in eight stages. The proposed school would have, when completed, primary and secondary school elements with 360 pupils in the primary school and 240 pupils in the secondary school. The Federation of Hellenic Associations Limited, an owner of a parcel of land to the north and north-east in the vicinity of the site, was granted leave to intervene in the proceedings. The applicant and the council had reached agreement to the terms of consent orders to be made by the Court. The court was required to decide whether the proposed school was appropriate for the site and whether it would be consistent with the relevant planning framework. The court found that the proposed school was appropriate for the site and that it was consistent with the relevant planning framework. The court found that there were no issues with the proposed school being in conflict with the long-term planning outcomes for the Austral precinct or any other relevant planning instrument. The court also found that the proposed school would not have any significant impact on the locality, including its agricultural potential, and that any minor issues with the proposal could be remedied by modifications to the proposal. The court concluded that the proposed school was appropriate for the site and that it should be approved subject to certain conditions, including modifications to the proposal and conditions relating to bus movements and road upgrades. The court made orders granting development consent to the applicant subject to the conditions in Annexure A and gave directions for the filing of revised plans and conditions of consent.

Orders