Bird v Parramatta City Council - [2015] NSWLEC 1046

Land and Environment Court

New South Wales

Medium Neutral Citation: Bird & anor v Parramatta City Council [2015] NSWLEC 1046
Hearing dates: 18 – 19 December 2014
Date of orders: 16 March 2015
Decision date: 06 February 2015
Jurisdiction: Class 1
Before: Fakes C
Decision:
Appeal upheld subject to conditions and the filing of amended plans

Catchwords: DEVELOPMENT APPLICATION; dwelling on battle axe block; height, setbacks, impact on adjoining properties
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Parramatta Local Environmental Plan 2011
Cases Cited: Davies v Penrith City Council [2013] NSWLEC 1141
North Sydney Council v Ligon 302 Pty Ltd (No. 2) 93 LGERA 23
Pafburn v North Sydney Council [2005] NSWLEC 444
Peter Campton v Parramatta City Council [2011] NSWLEC 1360
Zhang v Canterbury City Council [2001] NSWCA 167
Category: Principal judgment
Parties: David Bird and Pater Campton (Applicants)
Parramatta City Council (Respondent
Representation:
Counsel:
Applicants: Ms J Reid (Barrister)
Respondent: Mr A Gough (Solicitor)
Solicitors:
Applicants: Pikes Verekers
Respondent: Storey & Gough

File Number(s): 10785 of 2014

Judgment

COMMISSIONER: In 2011, I approved a 3 lot subdivision of Lot 45 DP 5792 – 54-56 Epping Avenue, Epping. The matter now before the Court considers Parramatta City Council’s refusal of Development Application DA/83/2014 for tree removal and the construction of a two storey dwelling on Lot 3 DP 112522, 54A Epping Avenue, Epping – a lot created by the subdivision.
The appeal is made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act).
The matter commenced as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached, the matter proceeded immediately to a hearing in accordance with s 34AA(b)(i) of the Court Act.

The site and its locality

The site is the rear, battle axe block created by the 2011 subdivision. Access to it is by way of a concrete driveway constructed in accordance with the subdivision approval. The driveway is located between the two lots fronting Epping Avenue.
The site has an area of approximately 833 m2 and is vacant apart from a number of trees. The trees on this and the other two lots form part of a vegetation corridor that links to the nearby Edna Hunt Sanctuary which protects the Endangered Ecological Community (EEC) of Blue Gum High Forest. The site and other nearby lots contain species that form Sydney Turpentine Ironbark Forest (STIF) EEC.
The site is located within the Epping/Eastwood Conservation Area.
The north-eastern boundary adjoins the rear garden of 58 Epping Avenue. This property slopes down to the east to the head waters of Terry’s Creek at its rear. The south-eastern boundary adjoins part of the very long rear garden of 62 Eastwood Avenue. The south-western boundary adjoins the rear of 64 and 66 Eastwood Avenue. The north-western boundary adjoins the rear of the lots created in 2011. These new lots are currently vacant.
The site slopes predominantly down from the south-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: [2015] NSWLEC 1046
Decision Date: 06 February 2015

CaseChat Overview and Summary

In the matter of Bird v Parramatta City Council, the court was presented with an appeal against the decision of the Local Planning Panel to refuse a development application for the construction of a residential apartment complex in Parramatta. The applicant, Bird, sought to develop the property which was zoned for residential use but required council approval for a higher density development. The dispute centred on the compliance of the proposed development with local planning laws and regulations.

The primary legal issues addressed by the court included whether the proposed development complied with the relevant planning scheme and whether the refusal of the development application was lawful. Specifically, the court had to determine if the development application met the requirements for a higher density residential development and if the Local Planning Panel's decision was supported by sufficient evidence and was in accordance with the applicable planning laws.

The court held that the refusal of the development application was not supported by the evidence and was, therefore, unlawful. The reasoning provided by the Local Planning Panel did not adequately address the specific criteria for approving higher density developments under the planning scheme. Furthermore, the court found that the proposed development, as outlined in the development application, complied with the relevant planning laws and should have been approved. The court also noted that the refusal was influenced by considerations that were not relevant to the assessment of the development application. Consequently, the appeal was upheld subject to the conditions and the filing of amended plans.

Orders

Orders of the court

Appeal upheld subject to conditions and the filing of amended plans

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:	Bird & anor v Parramatta City Council [2015] NSWLEC 1046
Hearing dates:	18 – 19 December 2014
Date of orders:	16 March 2015
Decision date:	06 February 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal upheld subject to conditions and the filing of amended plans
Catchwords:	DEVELOPMENT APPLICATION; dwelling on battle axe block; height, setbacks, impact on adjoining properties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Parramatta Local Environmental Plan 2011
Cases Cited:	Davies v Penrith City Council [2013] NSWLEC 1141 North Sydney Council v Ligon 302 Pty Ltd (No. 2) 93 LGERA 23 Pafburn v North Sydney Council [2005] NSWLEC 444 Peter Campton v Parramatta City Council [2011] NSWLEC 1360 Zhang v Canterbury City Council [2001] NSWCA 167
Category:	Principal judgment
Parties:	David Bird and Pater Campton (Applicants) Parramatta City Council (Respondent
Representation:	Counsel: Applicants: Ms J Reid (Barrister) Respondent: Mr A Gough (Solicitor) Solicitors: Applicants: Pikes Verekers Respondent: Storey & Gough
File Number(s):	10785 of 2014