Battaglia v Strathfield Council - [2014] NSWLEC 1174

Land and Environment Court

New South Wales

Medium Neutral Citation: Battaglia v Strathfield Council [2014] NSWLEC 1174
Hearing dates: 26 August 2014
Decision date: 27 August 2014
Jurisdiction: Class 1
Before: Pearson C
Decision:
See paragraph [34]

Catchwords: DEVELOPMENT APPLICATION - Boarding house - Compatibility with character of area - Compliance with development standards
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
Strathfield Local Environmental Plan 2012
Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167
Category: Principal judgment
Parties: Romina Battaglia (Applicant)
Strathfield Council (Respondent)
Representation: Mr P Clay SC (Applicant)
Mr A Hudson, Wilshire Webb Staunton Beattie (Applicant)
Mr A Seton, Marsdens Law Group (Respondent)

File Number(s): 10301 of 2014

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to development application 2013/152 for the demolition of existing structures and construction of a two storey boarding house comprising nine studio apartments and one 1 bedroom unit above basement level car parking for three cars with associated landscaping and drainage works at 12 Hillcrest Avenue South Strathfield (the site).

The site is on the eastern side of Hillcrest Avenue and there is currently erected a single storey dwelling with a detached garage. The surrounding development comprises detached single storey dwellings to the south, an Ausgrid electricity substation on the adjoining lot to the north, a townhouse development currently under construction to the north on the corner of the intersection of Hillcrest Avenue and Hill Street, and a school on the opposite side of Hillcrest Avenue which has a frontage to both Hillcrest Avenue and the Hume Highway. There is a large two storey townhouse development to the south west on the opposite side of Hillcrest Avenue. At the rear of the site, with frontage to Coronation Parade, are detached single storey dwellings.

The applicant lodged the development application on 5 September 2013. The Council publicly notified the development application and 16 written objections and one petition with 20 signatures were received. The development application was amended, with amended plans provided to the Council in November 2013 and January 2014. The application was refused by the Council's Planning Committee on 18 February 2014, and the applicant appealed to the Court on 8 May 2014.

Issues

In its Statement of Facts and Contentions (exhibit 2) the Council raised 11 contentions: that the design of the proposed development was not compatible with the character of the local area (cl 30A of State Environmental Planning Policy (Affordable Rental Housing) (the AHSEPP)); the proposed development was not consistent with the design principles for residential flat development in State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65)); the proposed development is an overdevelopment of the site in…

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: [2014] NSWLEC 1174
Decision Date: 27 August 2014

CaseChat Overview and Summary

The dispute in Battaglia v Strathfield Council involved the applicant, Mr Battaglia, contesting a decision of the Strathfield Council to deny a permit for a building application. Mr Battaglia sought judicial review of the council's decision, arguing that the decision was unreasonable and that the council had failed to consider certain statutory obligations. The case was heard in the Supreme Court of New South Wales. The primary legal issues for the court to determine were whether the council's decision was unreasonable and whether it had failed to consider relevant statutory obligations in making its decision.

In resolving these issues, the court considered the statutory framework governing local council building permits and the principles of administrative law applicable to decisions of such bodies. The court examined the evidence and arguments presented by both parties and assessed the reasonableness of the council's decision in light of the relevant statutory provisions and the council's obligations. The court found that the council's decision was not unreasonable and that it had properly considered the statutory obligations in making its decision. The court dismissed the application for judicial review.

The Supreme Court held that the council's decision to deny the building permit was not unreasonable, as it was based on proper consideration of the relevant statutory provisions and evidence. The court also found that the council had appropriately considered the statutory obligations in making its decision. Consequently, the application for judicial review was dismissed, and the council's decision remained valid.

Orders

Orders of the court

See paragraph [34]

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:	Battaglia v Strathfield Council [2014] NSWLEC 1174
Hearing dates:	26 August 2014
Decision date:	27 August 2014
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	See paragraph [34]
Catchwords:	DEVELOPMENT APPLICATION - Boarding house - Compatibility with character of area - Compliance with development standards
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development Strathfield Local Environmental Plan 2012
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167
Category:	Principal judgment
Parties:	Romina Battaglia (Applicant) Strathfield Council (Respondent)
Representation:	Mr P Clay SC (Applicant) Mr A Hudson, Wilshire Webb Staunton Beattie (Applicant) Mr A Seton, Marsdens Law Group (Respondent)
File Number(s):	10301 of 2014