Ceerose Pty Ltd v Inner West Council - [2017] NSWLEC 1474

Land and Environment Court

New South Wales

Medium Neutral Citation: Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1474
Hearing dates: 23 and 24 August 2017
Date of orders: 01 September 2017
Decision date: 01 September 2017
Jurisdiction: Class 1
Before: Dixon C
Decision:
1. The appeal is dismissed.
2. Development application no D/2016/504 seeking approval of a four storey residential flat building - including penthouse at 173 Norton Street is refused consent.
3. The exhibits are returned apart from Exhibits A and 1.

Catchwords: DEVELOPMENT APPLICATION - Mixed use development - compatibility with the desired future character of the area – non-compliance with the floor space ratio development standard – whether contravention of development standard justified
Legislation Cited: Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2013
Leichhardt Development Control Plan 2013
Cases Cited: Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Four2Five Pty v Ashfield Council [2015] NSWLEC 1009
Texts Cited: Nil
Category: Principal judgment
Parties: Ceerose Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
T To (Applicant)
Solicitors:
M Jaku, Jaku Legal (Applicant)
M Bonanno, Inner West Council (Respondent)

File Number(s): 2016/353072
Publication restriction: No

Judgment

The Inner West Council has granted development consent for a mixed use development over three storeys at 173-175 Norton Street, Leichhardt (the site) - which is under construction D/2014/717 (the original consent). Rather than lodge an application under s 96 of the Environmental Planning and Assessment Act 1979 (‘EPA Act’), to amend the original consent the applicant has proceeded along the path of a new DA - D/2016/504 (new DA) - seeking consent for the approved development with an additional fourth floor containing a penthouse.
The Council has refused development consent to the new DA and the applicant has appealed that decision to the Court under s 97 of the EPA Act. As the construction works on the site are at a point where they can be completed under the original consent; or proceed in line with this DA, I must determine how the development will be completed.
In approving the original consent the Council allowed a development with a floor space ratio (FSR) of 1.69:1 - notwithstanding, the development standard in cl 4.4 of the Leichardt Local Environmental Plan 2013 (‘LEP’) provided an FSR of 1.0:1 for the site. As it happened the applicant was given the benefit of the bonus floor space allowance under cl 4.4A up to 1.5:1 - and some. The proposed development has an FSR of 1.96:1; and, again the approval is reliant upon the Court upholding the applicant’s cl 4.6 written request to contravene the development standard in cl 4.4A of the LEP.

The central issue

What is in contention is the fourth level containing the 3 bedroom penthouse.
The Council maintains on the evidence of Kerry Gordon (the Council’s consultant planner) that the cl 4.6 written request prepared by the applicant’s town planner, Andrew Darrock (Appendix B, Exhibit B) seeking to justify the contravention of…

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 1474
Decision Date: 01 September 2017

CaseChat Overview and Summary

Ceerose Pty Ltd sought judicial review of a decision by the Inner West Council to refuse consent to their development application. The proposed development involved a four storey residential flat building, including a penthouse, at 173 Norton Street. The Supreme Court of New South Wales was tasked with determining the validity of the council's decision.

The primary legal issue was whether the council's decision to refuse consent was unreasonable and whether the council had properly exercised its discretion under the relevant planning legislation. Specifically, the court needed to consider whether the council had correctly applied the relevant planning instruments and whether its reasons for refusal were rational and lawful.

The court found that the council had acted within its statutory powers and that its decision was not unreasonable. The evidence showed that the proposed development did not comply with the local planning scheme and that the council's concerns about the impact on the character of the area were valid. The court also noted that the applicant had not demonstrated that the council had acted in bad faith or had failed to consider relevant matters. Therefore, the appeal was dismissed, and the development application was refused consent.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development application no D/2016/504 seeking approval of a four storey residential flat building - including penthouse at 173 Norton Street is refused consent.

3. The exhibits are returned apart from Exhibits A and 1.

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:	Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1474
Hearing dates:	23 and 24 August 2017
Date of orders:	01 September 2017
Decision date:	01 September 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	1. The appeal is dismissed. 2. Development application no D/2016/504 seeking approval of a four storey residential flat building - including penthouse at 173 Norton Street is refused consent. 3. The exhibits are returned apart from Exhibits A and 1.
Catchwords:	DEVELOPMENT APPLICATION - Mixed use development - compatibility with the desired future character of the area – non-compliance with the floor space ratio development standard – whether contravention of development standard justified
Legislation Cited:	Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2013 Leichhardt Development Control Plan 2013
Cases Cited:	Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Four2Five Pty v Ashfield Council [2015] NSWLEC 1009
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ceerose Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: T To (Applicant) Solicitors: M Jaku, Jaku Legal (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2016/353072
Publication restriction:	No