Ayache v Bayside Council - [2020] NSWLEC 1295

Land and Environment Court

New South Wales

Medium Neutral Citation: Ayache v Bayside Council [2020] NSWLEC 1295
Hearing dates: 17 and 18 June 2020
Date of orders: 13 July 2020
Decision date: 13 July 2020
Jurisdiction: Class 1
Before: Morris AC
Decision:
The Orders of the Court are:
(1) The appeal is dismissed.
(2) Development application No. 2018/120 is refused consent.
(3) The exhibits, other than Exhibits 3 and G are returned.

Catchwords:
DEVELOPMENT APPLICATION – affordable rental housing – mixed use development – scale – streetscape

Legislation Cited:
Environmental Planning and Assessment Act 1979
Rockdale Local Environmental Plan 2011
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Cases Cited:
Cornerstone Property Group Pty Ltd v Warringah Council (2004) 139 LGERA 245; [2004] NSWLEC 189
Karavellas v Sutherland Shire Council [2004] NSWLEC 251

Texts Cited:
Apartment Design Guide
Building Code of Australia
Rockdale Development Control Plan 2011

Category: Principal judgment
Parties: Sam Ayache (Applicant)
Bayside Council (Respondent)
Representation:
Counsel:
Dr S Berveling (Applicant)
J Antonopoulos (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)
Solicitors:
One Group Legal (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2019/14920
Publication restriction: No

Judgment

COMMISSIONER: Development Application 2018/120 was lodged with Bayside Council (the Council) on 15 May 2018 seeking consent for demolition of existing buildings and construction of a mixed-use development at 7-9 Kingsland Road South, Bexley. The council refused consent and the applicant has appealed that determination pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
The applicant was granted leave to rely on amended plans on 19 May 2020 and it is those plans now before the Court.
The contentions in the case are summarised as whether the development proposed is suitable for the site and is an appropriate design. The isolation of an adjoining site, No. 11 Kingsland Road South is also in contention. That site is an allotment of land containing a detached dwelling and has an approximate frontage of 12.625m to Kingsland Road South, northern boundary of 25.3m fronting Abercorn Street and site area of around 277.7m².

The site and its context

The site comprises two allotments with an angled frontage of 25.585m to Kingsland Road and site area of 812m². It is irregular in shape and has a crossfall from the front boundary to the rear of around 1.5m.
Two dwelling houses are currently erected on the land with some trees in the rear yards. All would be demolished to allow redevelopment of the site.
Adjoining the site to the north is a single storey dwelling house which is sited on the corner of Kingsland Road South and Abercorn Street, known as No 11 Kingsland Road South. There are three vacant lots to the south of the site that separate the property from the Forest Inn Hotel, located on the corner with Stoney Creek Road.
Two dwelling houses that front Abercorn Street, to the rear or west…

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: [2020] NSWLEC 1295
Decision Date: 13 July 2020

CaseChat Overview and Summary

The matter before the Court was an appeal by the appellant, Mr Ayache, against the decision of the Bayside Council to refuse consent to a development application for a single-unit residential apartment. The appeal was heard in the Land and Environment Court of New South Wales. The appellant contended that the refusal of consent was unreasonable and that the decision-maker failed to properly consider relevant statutory and policy considerations.

The central legal issue before the Court was whether the Bayside Council's decision to refuse consent to the development application was lawful, reasonable, and in accordance with the relevant statutory and policy frameworks. The Court was required to assess the evidence and arguments presented by both parties, and determine whether the decision-maker had properly exercised their discretion in accordance with the law.

In delivering the judgment, the Court found that the Bayside Council's decision to refuse consent was lawful and reasonable. The Court held that the decision-maker had properly considered the relevant statutory and policy considerations, and had provided adequate reasons for their decision. The Court further found that the appellant had not established that the decision was unreasonable or that there had been a failure to consider relevant matters. The appeal was therefore dismissed, and the development application was refused consent.

The Court also made an order returning the exhibits, except for Exhibits 3 and G, to the Bayside Council.

Orders

Orders of the court

The Orders of the Court are:

(1) The appeal is dismissed.

(2) Development application No. 2018/120 is refused consent.

(3) The exhibits, other than Exhibits 3 and G 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:	Ayache v Bayside Council [2020] NSWLEC 1295
Hearing dates:	17 and 18 June 2020
Date of orders:	13 July 2020
Decision date:	13 July 2020
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The Orders of the Court are: (1) The appeal is dismissed. (2) Development application No. 2018/120 is refused consent. (3) The exhibits, other than Exhibits 3 and G are returned.
Catchwords:	DEVELOPMENT APPLICATION – affordable rental housing – mixed use development – scale – streetscape
Legislation Cited:	Environmental Planning and Assessment Act 1979 Rockdale Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited:	Cornerstone Property Group Pty Ltd v Warringah Council (2004) 139 LGERA 245; [2004] NSWLEC 189 Karavellas v Sutherland Shire Council [2004] NSWLEC 251
Texts Cited:	Apartment Design Guide Building Code of Australia Rockdale Development Control Plan 2011
Category:	Principal judgment
Parties:	Sam Ayache (Applicant) Bayside Council (Respondent)
Representation:	Counsel: Dr S Berveling (Applicant) J Antonopoulos (Solicitor) (Applicant) J Cole (Solicitor) (Respondent) Solicitors: One Group Legal (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2019/14920
Publication restriction:	No