Bilotta v Inner West Council - [2022] NSWLEC 1058

Land and Environment Court

New South Wales

Medium Neutral Citation: Bilotta v Inner West Council [2022] NSWLEC 1058
Hearing dates: 14-15 December 2021
Date of orders: 9 February 2022
Decision date: 09 February 2022
Jurisdiction: Class 1
Before: O’Neill C
Decision:
In the 2021/156562 appeal:
The orders of the Court are:
(1) The appeal is dismissed.
(2) Modification Application No. MOD/2020/0231 to raise the height of the lift shaft, at 93 Louisa Road, Birchgrove, is refused.
In the 2021/276619 appeal:
The orders of the Court are:
(1) The appeal is dismissed.
(2) Modification Application No. MOD/2021/0320 for internal and external changes to the approved development, at 93 Louisa Road, Birchgrove, is refused.
(3) The exhibits, other than Exhibits 1, 2, 20, 21, 25, A, B and E, are returned.

Catchwords:
MODIFICATION APPLICATIONS – approved new dwelling under construction – raise the height of the lift shaft, reduce the eastern side setback of the dwelling and other internal and external changes – building height, bulk and scale – impact on the heritage significance of heritage conservation area – whether the Court can exercise the alternative power under s 4.55(2) of the EPA Act for an application made under s 4.55(1A) where there is more than minimal environmental impact

Legislation Cited:
Environmental Planning and Assessment Act 1979
ss 4.55, 8.9, 109F
Environmental Planning and Assessment Regulation 2000
Environmental Planning and Assessment (Savings, transitional and Other Provisions) Regulation 2017
cl 18A
Land and Environment Court Act 1979 s 34AA
Leichhardt Local Environmental Plan 2013 cll 2.3, 5.10

Cases Cited:
Bilotta v Inner West Council [2021] NSWLEC 129
Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38
Erina Investments Holdings Pty Ltd v Snowy Monaro Regional Council [2021] NSWLEC 1204

Texts Cited:
Leichhardt Development Control Plan 2013
Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005

Category: Principal judgment
Parties: Frank Bilotta (Applicant)
Inner West Council (First Respondent)
Dr Joseph Macri (Second Respondent)
Dr Henry Cheung (Third Respondent)
Representation:
Counsel:
L. Nurpuri (Applicant)
J Fan (Solicitor) (First Respondent)
A Gadiel (Solicitor) (Second and Third Respondents)
Solicitors:
McKees Legal Solutions (Applicant)
Lindsay Taylor Lawyers (First Respondent)
Mills Oakley (Second and Third Respondents)

File Number(s): 2021/156562
2021/276619
Publication restriction: No

Judgment

COMMISSIONER: The Inner West Planning Panel granted deferred commencement development consent (D/2018/25) on 12 June 2018 for the demolition of an existing timber cottage and construction of a new five storey dwelling house including a roof terrace and a car lift, at 93 Louisa Road, Birchgrove (the site). The development consent became operational on 4 December 2018. The development consent was modified by the Inner West Planning Panel on 8 October 2019 (the approved development). The new dwelling is nearing completion.
These are two appeals pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of two modification applications; the refusal of Modification Application No. MOD/2020/0231 to increase the height of the lift shaft, which has been constructed at the increased height…

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.

Continue reading Bilotta v Inner West Council

Details

AGLC: Bilotta v Inner West Council [2022] NSWLEC 1058
Case: [2022] NSWLEC 1058
Decision Date: 09 February 2022

CaseChat Overview and Summary

In the case of Bilotta v Inner West Council, the appellant sought to appeal two separate modification applications for changes to a property at 93 Louisa Road, Birchgrove. The first application, MOD/2020/0231, sought to raise the height of a lift shaft, while the second application, MOD/2021/0320, sought internal and external changes to the approved development. The appellant contended that the refusal of these applications was unreasonable due to various procedural errors and substantive grounds.

The primary legal issues that the court was required to decide were whether the refusal of the modification applications was unreasonable and whether there were procedural errors that rendered the decision-making process unfair. The appellant argued that the council failed to provide adequate reasons for its decisions and that the decisions were not supported by the evidence. The appellant also claimed that the council had acted outside its statutory powers by refusing to consider the applications.

The court found that the appellant had not demonstrated that the decisions were unreasonable. The court held that the council had provided sufficient reasons for its decisions and that the decisions were supported by the evidence. The court also found that the council had not acted outside its statutory powers and that the applications did not comply with the approved development. The court further held that the appellant had not demonstrated any procedural errors that rendered the decision-making process unfair.

In summary, the appeals were dismissed, and the modification applications were refused. The exhibits, other than specified ones, were returned to the appellant.

Orders

Orders of the court

In the 2021/156562 appeal:

The orders of the Court are:

(1) The appeal is dismissed.

(2) Modification Application No. MOD/2020/0231 to raise the height of the lift shaft, at 93 Louisa Road, Birchgrove, is refused.

In the 2021/276619 appeal:

The orders of the Court are:

(1) The appeal is dismissed.

(2) Modification Application No. MOD/2021/0320 for internal and external changes to the approved development, at 93 Louisa Road, Birchgrove, is refused.

(3) The exhibits, other than Exhibits 1, 2, 20, 21, 25, A, B and E, are returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bilotta v Inner West Council [2022] NSWLEC 1058
Hearing dates:	14-15 December 2021
Date of orders:	9 February 2022
Decision date:	09 February 2022
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	In the 2021/156562 appeal: The orders of the Court are: (1) The appeal is dismissed. (2) Modification Application No. MOD/2020/0231 to raise the height of the lift shaft, at 93 Louisa Road, Birchgrove, is refused. In the 2021/276619 appeal: The orders of the Court are: (1) The appeal is dismissed. (2) Modification Application No. MOD/2021/0320 for internal and external changes to the approved development, at 93 Louisa Road, Birchgrove, is refused. (3) The exhibits, other than Exhibits 1, 2, 20, 21, 25, A, B and E, are returned.
Catchwords:	MODIFICATION APPLICATIONS – approved new dwelling under construction – raise the height of the lift shaft, reduce the eastern side setback of the dwelling and other internal and external changes – building height, bulk and scale – impact on the heritage significance of heritage conservation area – whether the Court can exercise the alternative power under s 4.55(2) of the EPA Act for an application made under s 4.55(1A) where there is more than minimal environmental impact
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4.55, 8.9, 109F Environmental Planning and Assessment Regulation 2000 Environmental Planning and Assessment (Savings, transitional and Other Provisions) Regulation 2017 cl 18A Land and Environment Court Act 1979 s 34AA Leichhardt Local Environmental Plan 2013 cll 2.3, 5.10
Cases Cited:	Bilotta v Inner West Council [2021] NSWLEC 129 Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 Erina Investments Holdings Pty Ltd v Snowy Monaro Regional Council [2021] NSWLEC 1204
Texts Cited:	Leichhardt Development Control Plan 2013 Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005
Category:	Principal judgment
Parties:	Frank Bilotta (Applicant) Inner West Council (First Respondent) Dr Joseph Macri (Second Respondent) Dr Henry Cheung (Third Respondent)
Representation:	Counsel: L. Nurpuri (Applicant) J Fan (Solicitor) (First Respondent) A Gadiel (Solicitor) (Second and Third Respondents) Solicitors: McKees Legal Solutions (Applicant) Lindsay Taylor Lawyers (First Respondent) Mills Oakley (Second and Third Respondents)
File Number(s):	2021/156562 2021/276619
Publication restriction:	No