Barrak v Parramatta City Council - [2017] NSWLEC 1244

Land and Environment Court

New South Wales

Medium Neutral Citation: Barrak v Parramatta City Council [2017] NSWLEC 1244
Hearing dates: 27 April 2017
Date of orders: 19 May 2017
Decision date: 19 May 2017
Jurisdiction: Class 1
Before: Dickson, C
Decision:
The orders of the Court are:
1. The objection pursuant to cl 4.6 of the Parramatta Local Environmental Plan 11 is not sustained;
2. No order as to costs under s 97B of the Environmental Planning and Assessment Act 1979;
3. The appeal is dismissed;
4. Development application DA 109/2016 for consent for demolition of existing structures and construction of an 8 storey shop top housing development on land described as Lot 1 DP 703146, 116-118 Wigham Street Harris Park is refused.
5. The exhibits are returned with the exception of exhibits 5 and C and the Class 1 application.

Catchwords: DEVELOPMENT APPEAL: Proposed shop top housing - impact on significance of heritage conservation area – consideration of heritage in determining appropriate height and floor space for the development – treatment of the boundary of the heritage conservation area.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167
Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151
Grigorakis v Bayside Council [2016] NSWLEC 1573
Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Future Space Pty Limited v Ku-ring-gai Council (2009) NSWLEC 15
Texts Cited: Nil
Category: Principal judgment
Parties: Benjamin Barrak (Applicant)
Parramatta City Council (Respondent)
Representation:
Counsel:
P. Clay SC (Applicant)
S. Nash (Respondent).
Solicitors:
Barrak Lawyers (Applicant)
A Seton, Marsdens Law Group (Respondent)

File Number(s): 2016/00261598
Publication restriction: No

Judgment

COMMISSIONER: This appeal was lodged against the deemed refusal by Parramatta City Council of development application 109/2016. The application seeks consent for demolition of existing structures and construction of an 8 storey shop top housing development on land described as Lot 1 DP 703146, 116-118 Wigham Street Harris Park (the Site).
The appeal was subject to conciliation on December 8 2016 (s34 of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated.
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 determine the development application based on the evidence in the proceedings and the amended plans.
As part of the proceedings, both parties engaged experts in the disciplines of planning and urban design. Section 2.1 of their report states:

As an overview, the experts agree that the amended plans largely overcome the planning and urban design points of difference between the three of us, if heritage matters are set aside. Experts rely on the heritage experts to determine if it [the development] is appropriate in heritage terms (Exhibit 4).

The Council seeks the refusal of the application on the following remaining…

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 1244
Decision Date: 19 May 2017

CaseChat Overview and Summary

The case of Barrak v Parramatta City Council involved an appeal against the refusal of a development application by the respondent, Parramatta City Council. The applicant, Barrak, sought approval for the demolition of existing structures and the construction of an 8-storey shop top housing development on a specified property. The dispute centred around the assessment and subsequent refusal of the development application, with the applicant objecting to the decision under clause 4.6 of the Parramatta Local Environmental Plan 11.

The central legal issues revolved around the interpretation of the Parramatta Local Environmental Plan 11 and the statutory requirements under the Environmental Planning and Assessment Act 1979. Specifically, the court had to determine whether the proposed development was consistent with the relevant planning policies and if the refusal of the development application was justified. Additionally, the court examined whether the objections raised by the objectors warranted a refusal of the application and if the applicant's arguments were sufficient to warrant a reconsideration of the decision.

In examining the matter, the court considered the statutory framework and the relevant planning policies. It was noted that the proposed development did not align with the objectives of the Parramatta Local Environmental Plan 11, particularly in terms of maintaining the character of the area and ensuring appropriate building heights. The court found that the objectors' concerns regarding the impact on neighbouring properties and the character of the area were valid and warranted consideration. Furthermore, the applicant failed to demonstrate that the proposed development met the necessary planning criteria, leading the court to uphold the council's decision. Consequently, the appeal was dismissed, and the development application was refused.

The final orders of the court included the dismissal of the objection, no order as to costs, the refusal of the appeal, and the refusal of the development application. The exhibits were to be returned, except for specific documents, as outlined in the decision.

Orders

Orders of the court

The orders of the Court are:

1. The objection pursuant to cl 4.6 of the Parramatta Local Environmental Plan 11 is not sustained;

2. No order as to costs under s 97B of the Environmental Planning and Assessment Act 1979;

3. The appeal is dismissed;

4. Development application DA 109/2016 for consent for demolition of existing structures and construction of an 8 storey shop top housing development on land described as Lot 1 DP 703146, 116-118 Wigham Street Harris Park is refused.

5. The exhibits are returned with the exception of exhibits 5 and C and the Class 1 application.

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:	Barrak v Parramatta City Council [2017] NSWLEC 1244
Hearing dates:	27 April 2017
Date of orders:	19 May 2017
Decision date:	19 May 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	The orders of the Court are: 1. The objection pursuant to cl 4.6 of the Parramatta Local Environmental Plan 11 is not sustained; 2. No order as to costs under s 97B of the Environmental Planning and Assessment Act 1979; 3. The appeal is dismissed; 4. Development application DA 109/2016 for consent for demolition of existing structures and construction of an 8 storey shop top housing development on land described as Lot 1 DP 703146, 116-118 Wigham Street Harris Park is refused. 5. The exhibits are returned with the exception of exhibits 5 and C and the Class 1 application.
Catchwords:	DEVELOPMENT APPEAL: Proposed shop top housing - impact on significance of heritage conservation area – consideration of heritage in determining appropriate height and floor space for the development – treatment of the boundary of the heritage conservation area.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited:	Zhang v Canterbury City Council [2001] NSWCA 167 Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 Grigorakis v Bayside Council [2016] NSWLEC 1573 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Future Space Pty Limited v Ku-ring-gai Council (2009) NSWLEC 15
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Benjamin Barrak (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: P. Clay SC (Applicant) S. Nash (Respondent). Solicitors: Barrak Lawyers (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2016/00261598
Publication restriction:	No