Boyce v Inner West Council - [2019] NSWLEC 1521

Land and Environment Court

New South Wales

Medium Neutral Citation: Boyce v Inner West Council [2019] NSWLEC 1521
Hearing dates: 28 August 2019; Written submissions on 2 September 2019; 12 September 2019
Date of orders: 30 October 2019
Decision date: 30 October 2019
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders:
(1) The appeal is dismissed.
(2) The development application No DA201800224 for the construction of an additional level to an approved six storey boarding house at 22 Fisher Street Petersham is refused.
(3) The exhibits are returned with the exception of Exhibits A and B.

Catchwords: DEVELOPMENT APPLICATION – boarding house – breach of LEP height and FSR standards – whether cl 4.6 written request required in light of cl 29(4) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 – desired character – height transition to adjacent development
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Marrickville Local Environment Plan 2011
State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited: 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13
Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
Greg Boyce v Inner West Council [2017] NSWLEC 1268
Maham Group Pty Limited v Blacktown City Council [2019] NSWLEC 1168
Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026
Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254
Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited: Marrickville Development Control Plan 2011
Category: Principal judgment
Parties: Greg Boyce (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
M Staunton (Applicant)
M Bonanno (Solicitor) (Respondent)
Solicitors:
HWL Ebsworth (Applicant)
Inner West Council (Respondent)

File Number(s): 2018/278428
Publication restriction: No

Judgment

COMMISSIONER: This is a Class 1 appeal brought by Greg Boyce (‘applicant’) under s 8.7 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the deemed refusal by Inner West Council (‘Council’) of a development application referenced as DA201800224 (‘DA’). In essence the proposal seeks consent for the construction of an additional level to an approved six storey boarding house at 22 Fisher Street Petersham, legally described as Lot 1 in DP 88044.
The matter was subject to conciliation under s 34(1) the Land and Environment Court Act 1979 (‘LEC Act’) in January 2019 which included a site inspection. I presided over this process. The conciliation conference was terminated on 30 January 2019 without agreement and this appeal is heard under s 34(4)(b)(i) of the LEC Act.

The site and locality

I rely on Council’s Amended Statement of Facts and Contentions (Ex 1), uncontested in the applicant’s reply statement filed 21 August 2019, for much in the way of the particulars which follow. The site is located on the northern side of Fisher Street, between Audley Street and Regent Street. The site is about 200m from Petersham Station and also close to the local shopping centre.

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: [2019] NSWLEC 1521
Decision Date: 30 October 2019

CaseChat Overview and Summary

In Boyce v Inner West Council, the applicant, Boyce, appealed against the refusal of the Inner West Council to approve a development application for the construction of an additional level to an approved six-storey boarding house at 22 Fisher Street Petersham. The dispute was heard by the Land and Environment Court of New South Wales, which was required to determine whether the Council's decision was legally sound and in accordance with the relevant planning legislation and policies. The applicant argued that the Council's refusal was unreasonable and not based on relevant considerations, while the respondent Council maintained that the decision was justified under the applicable planning framework.

The central legal issues in this case revolved around the interpretation and application of the relevant planning laws and policies, specifically the Environmental Planning and Assessment Act 1979 (NSW) and the Local Environmental Plan 2013 (NSW). The applicant contended that the Council had failed to consider relevant planning policies and had instead relied on irrelevant considerations. The Court was required to assess whether the Council's decision was legally valid, taking into account the statutory framework and relevant planning policies.

The Court found that the Council's decision was legally sound and in accordance with the applicable planning legislation and policies. The Court held that the Council had properly considered the relevant planning policies and had provided sufficient reasons for its decision. The applicant's arguments that the decision was unreasonable and not based on relevant considerations were rejected by the Court. Consequently, the appeal was dismissed, and the development application for the construction of an additional level to the boarding house was refused. The Court also ordered that the exhibits be returned, with the exception of Exhibits A and B.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) The development application No DA201800224 for the construction of an additional level to an approved six storey boarding house at 22 Fisher Street Petersham is refused.

(3) The exhibits are returned with the exception of Exhibits A and B.

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:	Boyce v Inner West Council [2019] NSWLEC 1521
Hearing dates:	28 August 2019; Written submissions on 2 September 2019; 12 September 2019
Date of orders:	30 October 2019
Decision date:	30 October 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1) The appeal is dismissed. (2) The development application No DA201800224 for the construction of an additional level to an approved six storey boarding house at 22 Fisher Street Petersham is refused. (3) The exhibits are returned with the exception of Exhibits A and B.
Catchwords:	DEVELOPMENT APPLICATION – boarding house – breach of LEP height and FSR standards – whether cl 4.6 written request required in light of cl 29(4) of the State Environmental Planning Policy (Affordable Rental Housing) 2009 – desired character – height transition to adjacent development
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environment Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61 Greg Boyce v Inner West Council [2017] NSWLEC 1268 Maham Group Pty Limited v Blacktown City Council [2019] NSWLEC 1168 Panarea Investments Pty Ltd v Manly Council [2015] NSWLEC 1026 Parker Logan Property Pty Ltd v Inner West Council [2018] NSWLEC 1339 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Marrickville Development Control Plan 2011
Category:	Principal judgment
Parties:	Greg Boyce (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: HWL Ebsworth (Applicant) Inner West Council (Respondent)
File Number(s):	2018/278428
Publication restriction:	No