Anprisa Pty Ltd v Inner West Council - [2023] NSWLEC 1768

Land and Environment Court

New South Wales

Medium Neutral Citation: Anprisa Pty Ltd v Inner West Council [2023] NSWLEC 1768
Hearing dates: 6 and 8 June 2022, 26-28 April 2023, 3 November 2023, 7-8 November 2023
Date of orders: 19 December 2023
Decision date: 19 December 2023
Jurisdiction: Class 1
Before: O’Neill C
Decision:
Proceedings 2021/228923:
The orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application No DA/2021/0437 for a Stage 1 concept plan to adaptively reuse the existing site for a residential flat building development, at 40 – 76 William Street, Leichhardt, is refused.
Proceedings 2021/73128
The orders of the Court are:
(1) The appeal is dismissed.
(2) Development Application No DA/2020/0501 for a Stage 2 development to adaptively reuse the existing site for a residential flat building development, at 40 – 76 William Street, Leichhardt, is refused.
(3) The Exhibits, other than Exhibits A, 32 and 33, are returned.

Catchwords:
CONCEPT DEVELOPMENT APPLICATION AND DEVELOPMENT APPLICATION – adaptive reuse of existing industrial warehouse buildings to a residential flat building development – exceedance of the floor space ratio development standard – non-compliance with the adaptive reuse of existing buildings development standard requiring any increase in the floor space ratio to be generally contained within the envelope of the existing building – non-compliance with the landscaped areas for residential accommodation in Zone R1 development standard

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.23, 4.24, 8.7
Land and Environment Court Act 1979, ss 34, 39
Leichhardt Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 6.2, 6.4, 6.8, 6.11, 6.14, Sch 5
Inner West Local Environmental Plan 2022, cl 1.8A, Sch 5
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 4, 28

Cases Cited:
Cumming v Cumberland Council (No 2) [2021] NSWLEC 117
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Australia ICOMOS, The Burra Charter: Australian ICOMOS Charter for Places of Cultural Significance, October 2013
Department of Planning and Environment, Apartment Design Guide, July 2015
Leichhardt Development Control Plan 2013
Our Inner West Housing Strategy 2020

Category: Principal judgment
Parties: Anprisa Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
M Staunton (Applicant)
C Norton (Respondent)
Solicitors:
Jaku Legal (Applicant)
Inner West Council (Respondent)

File Number(s): 2021/228923
2021/73128
Publication restriction: No

Judgment

COMMISSIONER: These are two appeals pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of two development applications, at 40-76 William Street, Leichhardt (the site), by the Inner West Council (the Council), as follows:

Development Application No DA/2021/0437 (File No 2021/228923) for the Stage 1 Concept Plan for the adaptive reuse of an existing industrial warehouse development and conversion to a residential flat…

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: [2023] NSWLEC 1768
Decision Date: 19 December 2023

CaseChat Overview and Summary

Anprisa Pty Ltd sought to appeal decisions made by the Inner West Council regarding two separate development applications for the adaptive reuse of a site at 40 – 76 William Street, Leichhardt, which sought to convert the existing site into a residential flat building. The appeals were heard in the Land and Environment Court of New South Wales. The primary issues before the court were whether the council's decisions to refuse the development applications were legally sound and if the proposed developments aligned with the relevant planning policies and legislative requirements.

The court examined the submissions from both Anprisa and the council, considering various planning and legislative frameworks, including the Environmental Planning and Assessment Act 1979 and the Inner West Local Environment Plan 2016. The court assessed whether the proposed developments met the criteria for approval, including compliance with zoning requirements, the impact on the character of the area, and adherence to planning policies. Key concerns raised by the council included the scale and density of the proposed developments, the impact on neighbouring properties, and the preservation of heritage aspects of the site.

After careful deliberation, the court concluded that the council's decisions to refuse the development applications were justified. The court found that the proposed developments did not adequately address the concerns raised regarding the scale and density of the buildings, the impact on neighbouring properties, and the preservation of the site's heritage. The court upheld the council's decisions, dismissing the appeals and refusing both development applications. Additionally, the court ordered that all exhibits, except for specified ones, be returned to the parties involved.

Orders

Orders of the court

Proceedings 2021/228923:

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No DA/2021/0437 for a Stage 1 concept plan to adaptively reuse the existing site for a residential flat building development, at 40 – 76 William Street, Leichhardt, is refused.

Proceedings 2021/73128

The orders of the Court are:

(1) The appeal is dismissed.

(2) Development Application No DA/2020/0501 for a Stage 2 development to adaptively reuse the existing site for a residential flat building development, at 40 – 76 William Street, Leichhardt, is refused.

(3) The Exhibits, other than Exhibits A, 32 and 33, are returned.

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:	Anprisa Pty Ltd v Inner West Council [2023] NSWLEC 1768
Hearing dates:	6 and 8 June 2022, 26-28 April 2023, 3 November 2023, 7-8 November 2023
Date of orders:	19 December 2023
Decision date:	19 December 2023
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	Proceedings 2021/228923: The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No DA/2021/0437 for a Stage 1 concept plan to adaptively reuse the existing site for a residential flat building development, at 40 – 76 William Street, Leichhardt, is refused. Proceedings 2021/73128 The orders of the Court are: (1) The appeal is dismissed. (2) Development Application No DA/2020/0501 for a Stage 2 development to adaptively reuse the existing site for a residential flat building development, at 40 – 76 William Street, Leichhardt, is refused. (3) The Exhibits, other than Exhibits A, 32 and 33, are returned.
Catchwords:	CONCEPT DEVELOPMENT APPLICATION AND DEVELOPMENT APPLICATION – adaptive reuse of existing industrial warehouse buildings to a residential flat building development – exceedance of the floor space ratio development standard – non-compliance with the adaptive reuse of existing buildings development standard requiring any increase in the floor space ratio to be generally contained within the envelope of the existing building – non-compliance with the landscaped areas for residential accommodation in Zone R1 development standard
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.23, 4.24, 8.7 Land and Environment Court Act 1979, ss 34, 39 Leichhardt Local Environmental Plan 2013, cll 4.3, 4.4, 4.6, 6.2, 6.4, 6.8, 6.11, 6.14, Sch 5 Inner West Local Environmental Plan 2022, cl 1.8A, Sch 5 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cll 4, 28
Cases Cited:	Cumming v Cumberland Council (No 2) [2021] NSWLEC 117 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Australia ICOMOS, The Burra Charter: Australian ICOMOS Charter for Places of Cultural Significance, October 2013 Department of Planning and Environment, Apartment Design Guide, July 2015 Leichhardt Development Control Plan 2013 Our Inner West Housing Strategy 2020
Category:	Principal judgment
Parties:	Anprisa Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) C Norton (Respondent) Solicitors: Jaku Legal (Applicant) Inner West Council (Respondent)
File Number(s):	2021/228923 2021/73128
Publication restriction:	No