Ceerose Pty Ltd v Inner West Council - [2017] NSWLEC 1289

Land and Environment Court

New South Wales

Medium Neutral Citation: Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1289
Hearing dates: 29 - 31 March 2017
Date of orders: 08 June 2017
Decision date: 08 June 2017
Jurisdiction: Class 1
Before: Dickson, C
Decision:
The orders of the Court are:
1. The variation request pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 is not sustained;
2. The appeal is dismissed;
3. Development application DA/2016/242 for the demolition of all existing buildings, and construction of a mixed-use housing development comprising 42 apartments above ground floor commercial/ retail spaces at 305-313 Parramatta Road Leichhardt is refused.
4. The exhibits are returned with the exception of Exhibits 1, A and H.

Catchwords: DEVELOPMENT APPEAL: appeal against refusal of mixed use housing development – Parramatta Road Urban Transformation Strategy – variation to floor space ratio – impact on heritage conservation area – right of access to the site over Council land – reasonableness of impact on amenity of adjoining properties – resident objections – appropriateness of solar access for future residents.
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning And Assessment Regulation 2000
State Environmental Planning Policy 65: Design Quality of Residential Apartment Development
State Environmental Planning Policy: Infrastructure
Land and Environment Court Act 1979
State Environmental Planning Policy 55 - Remediation of Land
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited: Zhang v Canterbury City Council [2001] NSWCA 167
Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151
Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1808
Segal and Anor v Waverley Council [2005] NSWCA 310
ROI Properties Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1023
Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21
Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
GHD Danks Pty Ltd and CR Danks Pty Ltd v Council of the City of Sydney [2015] NSWLEC1521
Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577
Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438
Texts Cited: Parramatta Road Corridor Urban Transformation Strategy
Apartment Design Guide
Category: Principal judgment
Parties: Ceerose Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
Ms Reid (Applicant)
Solicitors:
Mr M. Jaku, Jaku Legal (Applicant)
Mr M Bonanno, Lindsay Taylor Lawyers (Respondent)

File Number(s): 2016/ 257682
Publication restriction: No

Judgment

COMMISSIONER: This appeal was lodged against the deemed refusal by the Inner West Council of development application DA/2016/242. The application sought approval for demolition of all existing buildings, and construction of a mixed-use housing development comprising 42 apartments above ground-floor commercial/retail space, and basement car parking. The development is proposed at 305 – 313 Parramatta Road Leichhardt (the Site).
The matter commenced by way of a conciliation conference however after participation of the parties in the conference, resolution was not able to be achieved and the conciliation phase was terminated on 9 December 2016. A considerable…

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 1289
Decision Date: 08 June 2017

CaseChat Overview and Summary

Ceerose Pty Ltd sought to appeal a decision of Inner West Council to refuse a development application for the demolition of existing buildings on their property at 305-313 Parramatta Road Leichhardt, and the construction of a mixed-use housing development. The applicant argued that the refusal was unreasonable and that the council's decision should be set aside. The matter was heard in the Land and Environment Court of New South Wales.

The court had to determine whether the council's refusal of the development application was unreasonable, whether the applicant's argument for a variation of the Leichhardt Local Environmental Plan 2013 was valid, and whether the council's decision should be set aside. The court also had to consider the impact of the proposed development on the surrounding environment, including heritage, noise, and traffic.

The court found that the council's decision was not unreasonable and that the applicant had not demonstrated that the decision was wrong. The court held that the proposed development would have significant adverse impacts on the surrounding environment and heritage, and that the applicant had not demonstrated that these impacts could be mitigated. The court also found that the applicant's argument for a variation of the Leichhardt Local Environmental Plan 2013 was not valid. Accordingly, the court dismissed the appeal and refused the development application.

Orders

Orders of the court

The orders of the Court are:

1. The variation request pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 is not sustained;

2. The appeal is dismissed;

3. Development application DA/2016/242 for the demolition of all existing buildings, and construction of a mixed-use housing development comprising 42 apartments above ground floor commercial/ retail spaces at 305-313 Parramatta Road Leichhardt is refused.

4. The exhibits are returned with the exception of Exhibits 1, A and H.

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 1289
Hearing dates:	29 - 31 March 2017
Date of orders:	08 June 2017
Decision date:	08 June 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	The orders of the Court are: 1. The variation request pursuant to cl 4.6 of the Leichhardt Local Environmental Plan 2013 is not sustained; 2. The appeal is dismissed; 3. Development application DA/2016/242 for the demolition of all existing buildings, and construction of a mixed-use housing development comprising 42 apartments above ground floor commercial/ retail spaces at 305-313 Parramatta Road Leichhardt is refused. 4. The exhibits are returned with the exception of Exhibits 1, A and H.
Catchwords:	DEVELOPMENT APPEAL: appeal against refusal of mixed use housing development – Parramatta Road Urban Transformation Strategy – variation to floor space ratio – impact on heritage conservation area – right of access to the site over Council land – reasonableness of impact on amenity of adjoining properties – resident objections – appropriateness of solar access for future residents.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning And Assessment Regulation 2000 State Environmental Planning Policy 65: Design Quality of Residential Apartment Development State Environmental Planning Policy: Infrastructure Land and Environment Court Act 1979 State Environmental Planning Policy 55 - Remediation of Land State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Cases Cited:	Zhang v Canterbury City Council [2001] NSWCA 167 Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 Ceerose Pty Ltd v Inner West Council [2017] NSWLEC 1808 Segal and Anor v Waverley Council [2005] NSWCA 310 ROI Properties Pty Ltd v Council of the City of Sydney [2011] NSWLEC 1023 Schaffer Corporation v Hawkesbury City Council (1992) 77 LGERA 21 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 GHD Danks Pty Ltd and CR Danks Pty Ltd v Council of the City of Sydney [2015] NSWLEC1521 Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438
Texts Cited:	Parramatta Road Corridor Urban Transformation Strategy Apartment Design Guide
Category:	Principal judgment
Parties:	Ceerose Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Ms Reid (Applicant) Solicitors: Mr M. Jaku, Jaku Legal (Applicant) Mr M Bonanno, Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/ 257682
Publication restriction:	No