Compage Group Pty Ltd v Georges River Council - [2021] NSWLEC 1475

Land and Environment Court

New South Wales

Medium Neutral Citation: Compage Group Pty Ltd v Georges River Council [2021] NSWLEC 1475
Hearing dates: 31 May and 1 June 2021, supplementary written submissions 10, 16, 29 June and 1 July 2021
Date of orders: 20 August 2021
Decision date: 20 August 2021
Jurisdiction: Class 1
Before: Bradbury AC
Decision:
The Court orders that:
(1)   The appeal is dismissed.
(2)   Development Application No. DA2020/0133 for the demolition of an existing single storey brick and tiled roof dwelling house and associated structures and the construction of a five (5) storey boarding house comprising 23 rooms (including a manager’s room) on the land described as Lot 1 DP 951678 and known as 31 Garfield St Carlton is refused.
(3)   The exhibits are returned with the exception of Exhibits A, B, J, L, 1 and 10.

Catchwords:
APPEAL – development application – boarding house – whether compatible with character of local area – visual impact - side setbacks – landscaping – appeal dismissed

Legislation Cited:
Environmental Planning and Assessment Act 1979, s 8.7, 4.15
Kogarah Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6 and 6.2
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30 and 30A
State Environmental Planning Policy No 55–Remediation of Land

Cases Cited:
193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13
BCMA Investments Pty Ltd v North Sydney Council [2021] NSWLEC 1046
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Charalambous v Canterbury-Bankstown Council [2016] NSWLEC 1576
Elcheikh v Cumberland Council [2018] NSWLEC 1165
Gregory v Central Coast Council [2017] NSWLEC 1400
Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457
Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; [2017] NSWCA 54
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Qian v Willoughby City Council [2020] NSWLEC 1069
Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:
Apartment Design Guide
Draft Georges River Local Environmental Plan 2020
Kogarah Development Control Plan 2013

Category: Principal judgment
Parties: Compage Group Pty Ltd (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
J Farrell (Applicant)
K Mortimer (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2020/240194
Publication restriction: No

Judgment

COMMISSIONER: This appeal concerns a proposal to construct a boarding house in Carlton. The development site is Lot 1 DP 951678 and is known as 31 Garfield St Carlton (the Land).
The development application (DA2020/0133) (DA) seeks approval for the demolition of an existing single storey brick and tiled roof dwelling house and associated structures and the construction on the Land of a five (5) storey boarding house comprising 23 rooms (including a manager’s room) above a level of ground…

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: [2021] NSWLEC 1475
Decision Date: 20 August 2021

CaseChat Overview and Summary

Compage Group Pty Ltd, the appellant, appealed against a decision of Georges River Council, the respondent, which refused the approval of a development application submitted by Compage. The application sought to demolish an existing house and construct a five-storey boarding house on the site. Compage contended that the council’s decision was unreasonable and that it failed to properly consider the merits of the application. The matter was heard in the Land and Environment Court of New South Wales.

The primary issue for the court was whether the council's decision to refuse the development application was lawful and reasonable. The court needed to consider whether the council's decision was made according to the correct legal principles, whether it was based on irrelevant considerations, and whether it failed to take into account relevant considerations. The court also needed to assess whether the council's decision was unreasonable in the sense that no reasonable person could have made it.

The court found that the council's decision was lawful and reasonable. The court held that the council had properly considered the relevant planning policies and legislation, and had given adequate reasons for its decision. The court also found that the council's decision was not based on irrelevant considerations, and that it had taken into account all relevant considerations. The court further held that the council's decision was not unreasonable, as it was open to the council to conclude that the proposed development was not in accordance with the relevant planning policies and would have significant adverse impacts on the character of the area. The court therefore dismissed the appeal and upheld the council's decision to refuse the development application.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application No. DA2020/0133 for the demolition of an existing single storey brick and tiled roof dwelling house and associated structures and the construction of a five (5) storey boarding house comprising 23 rooms (including a manager’s room) on the land described as Lot 1 DP 951678 and known as 31 Garfield St Carlton is refused.

(3) The exhibits are returned with the exception of Exhibits A, B, J, L, 1 and 10.

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:	Compage Group Pty Ltd v Georges River Council [2021] NSWLEC 1475
Hearing dates:	31 May and 1 June 2021, supplementary written submissions 10, 16, 29 June and 1 July 2021
Date of orders:	20 August 2021
Decision date:	20 August 2021
Jurisdiction:	Class 1
Before:	Bradbury AC
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development Application No. DA2020/0133 for the demolition of an existing single storey brick and tiled roof dwelling house and associated structures and the construction of a five (5) storey boarding house comprising 23 rooms (including a manager’s room) on the land described as Lot 1 DP 951678 and known as 31 Garfield St Carlton is refused. (3) The exhibits are returned with the exception of Exhibits A, B, J, L, 1 and 10.
Catchwords:	APPEAL – development application – boarding house – whether compatible with character of local area – visual impact - side setbacks – landscaping – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 8.7, 4.15 Kogarah Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 4.6 and 6.2 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30 and 30A State Environmental Planning Policy No 55–Remediation of Land
Cases Cited:	193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 BCMA Investments Pty Ltd v North Sydney Council [2021] NSWLEC 1046 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Charalambous v Canterbury-Bankstown Council [2016] NSWLEC 1576 Elcheikh v Cumberland Council [2018] NSWLEC 1165 Gregory v Central Coast Council [2017] NSWLEC 1400 Khan v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457 Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government (2017) 95 NSWLR 1; [2017] NSWCA 54 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Qian v Willoughby City Council [2020] NSWLEC 1069 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Texts Cited:	Apartment Design Guide Draft Georges River Local Environmental Plan 2020 Kogarah Development Control Plan 2013
Category:	Principal judgment
Parties:	Compage Group Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: J Farrell (Applicant) K Mortimer (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2020/240194
Publication restriction:	No