Deancliff Developments v Hornsby Shire Council - [2005] NSWCA 271

NEW SOUTH WALES COURT OF APPEAL

CITATION: Deancliff Developments v Hornsby Shire Council [2005] NSWCA 271

FILE NUMBER(S):
40815/04

HEARING DATE(S): 1 August 2005

JUDGMENT DATE: 18/08/2005

PARTIES:
Deancliff Developments Pty Limited
Hornsby Shire Council
May Harlow Pty Limited
Felix Fei Chui

JUDGMENT OF: Beazley JA Tobias JA Brownie AJA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): L&E 10184/04

LOWER COURT JUDICIAL OFFICER: Pain J

COUNSEL:
A: M Craig QC / H Irish
1R: A Galasso
2&3R: B J Preston SC / J E Robson SC

SOLICITORS:
A: Baker & McKenzie, Sydney
1R: Storey & Gough, Parramatta
2&3R: Adam Darke & Co, Berowra Heights

CATCHWORDS:
ENVIRONMENT AND PLANNING - Development consent - Refusal of development application for failure to comply with relevant development control plan (DCP) - Weight to be given to DCP in determining whether to grant consent - Proper construction of objectives of DCP - Whether application met objectives

LEGISLATION CITED:
Land and Environment Court Act 1979
Hornsby Shire Council Local Environmental Plan 1994
Hornsby Shire Council High Density Multi-Unit Housing Development Control Plan 1998

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40815/04
L&E 10184/04
BEAZLEY JA
TOBIAS JA
BROWNIE AJA
Thursday 18 August 2005

DEANCLIFF DEVELOPMENTS PTY LTD v HORNSBY SHIRE COUNCIL & ANOR

Judgment

BEAZLEY JA: I agree with Tobias JA.
TOBIAS JA: The appellant, Deancliff Developments Pty Ltd (Deancliff), was at all material times the owner of Lots 1 and 2 in DP211638 being Nos. 24-26 Orara Street, Waitara (the subject land). The second respondent, May Harlow Pty Ltd (May Harlow), is the owner of a number of parcels of land both in Orara Street and Waitara Street, Waitara including Nos. 22 and 28 Orara Street, Waitara (No. 22 and No. 28 or, together, Nos. 22 and 28). The third respondent, Felix Fei Chui (Mr Chui), is the owner of No. 20 Orara Street, Waitara (No. 20).
On 11 September 2003, Deancliff lodged with the first respondent, Hornsby Shire Council (the Council), a development application with respect to the subject land in which it sought the Council's consent to demolish the existing buildings thereon and to erect a multi-unit housing development containing nine levels of residential accommodation comprising 26 dwelling units, three levels of basement car parking and one level of basement storage for the residential units (the proposal). On 17 March 2004 the Council refused that application.
According to Pain J, the primary judge, the two reasons underlying the Council's decision to refuse the application were summarised as being the proposal's failure to amalgamate certain allotments as contemplated by the relevant development control plan and its failure to comply with State Environmental Planning Policy No. 65 (SEPP 65) with respect to urban design issues.
Although the Council had refused the application on 17 March 2004, on 18 February 2004 Deancliff filed a Class 1 application in the Land and Environment Court appealing against the Council's deemed refusal…

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: [2005] NSWCA 271
Decision Date: 18 August 2005

CaseChat Overview and Summary

Deancliff Developments appealed a decision of the primary judge who had dismissed its appeal against the refusal of a development application by Hornsby Shire Council. The dispute concerned the weight to be given to a Development Control Plan (DCP) and the proper construction of its objectives and performance criteria in determining whether to grant development consent.

The court was required to determine whether the primary judge had erred in law in their construction of the objective and performance criteria of the Site Amalgamation Element within the DCP. Specifically, the appeal questioned how the development potential of existing properties within Development Site 4 should be equitably distributed, and whether locational advantages and disadvantages were relevant considerations in this distribution.

The court reasoned that the objective of the Site Amalgamation Element, which sought to equitably distribute development potential, necessarily required consideration of locational advantages and disadvantages. These factors have an economic impact on landowners, but the court found this to be of no consequence to the legal interpretation of the DCP. The court found no error in the primary judge's construction of the objective or performance criteria, concluding that the development potential must be distributed equitably over all existing properties within Development Site 4, taking into account these locational aspects.

As Deancliff Developments conceded that the appeal would be dismissed if it was unsuccessful on this point, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

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

In my opinion, therefore, it follows that determining how the development potential of the existing properties within Development Site 4 is to be equitably distributed over all existing properties in the Site, as the objective of the Site Amalgamation Element seeks to do, necessarily requires those locational advantages and disadvantages to be taken into account in the exercise which is to be undertaken in accordance with the Performance Criteria in the implementation of the Element objective. Obviously, the locational advantages and disadvantages to which I have referred have an economic impact upon the particular landholder. However, contrary to the submission of Deancliff, I do not regard that factor as of any consequence. Conclusion Accordingly, for the foregoing reasons, in my opinion no error of law has been demonstrated in the primary judge's construction of the objective or Performance Criteria of the Site Amalgamation Element that provides for the development potential of existing properties to be distributed equitably over all existing properties within Development Site 4. As Deancliff has conceded that if it is unsuccessful in respect of this issue in the appeal it will be unnecessary to consider the alternative bases upon which it was submitted that her Honour erred in law, it follows that the appeal should be dismissed with costs. BROWNIE AJA: I agree with Tobias JA.

Ratio Decidendi

Legal Principle Established

Clause 15 of the LEP was headed "Floor Space Ratio". So far as the subject zone was concerned, cl 15(1) provided the development therein was not to result in a building that exceeded a floor space ratio (FSR) of 1.6:1. This was, however, subject to cl 15(3) which provided as follows:"Despite subclause (1), the Council is not to consent to the erection of multi-unit housing on any of the 9 numbered development sites shown edged heavy black on Diagram 1 in Schedule BA unless the Council is satisfied that the development will result in a floor space ratio of not less than 1.6:1 and not more than 2:1."It was agreed between the parties that the FSR of the proposal was 2.1:1 but no point was made at the hearing before the primary judge that that exceeded the maximum of 2:1 referred to in cl 15(3). The relevant provisions of the DCP Relevantly, the DCP was divided into "Strategy Controls" and "Specific Controls". Areas zoned Residential D were referred to in the DCP as "precincts". Under the heading "How does this DCP work?", the following appeared:"Control elements comprise element objectives, performance criteria and prescriptive measures. The element objective may be implemented by meeting the performance criteria. Meeting performance criteria enables the development of innovative schemes that meet the particular characteristics of an individual site." Part 2 of the DCP contained the "Strategy Controls". They comprised a number of elements. The first such element was entitled "Masterplan". Its objective was to "provide an overall Town Centre structure" and its Performance Criteria required that development be in keeping with the future townscape and urban form provided in the relevant Masterplan. The relevant Masterplan for the Orara Street precinct was Map B1. It proposed three buildings containing high-density multi-unit housing within Development Site 4. Two of those buildings known as D1 and D2 had frontages to Orara Street whereas the third, D3, had a frontage to Waitara Avenue. Each was to have a maximum of eight storeys. Relevantly, Building D2 was located on Nos. 22, 24 and part of No. 26 Orara Street whereas Building D1 was located on Nos. 12–18 Orara Street. According to the Masterplan, No. 20 was to be used for the purpose of providing a combined vehicular access to serve both Buildings D1 and D2, the DCP providing for all car parking to be underground. Map B2 which formed part of the DCP, was the Orara Street Precinct Landscape Masterplan. It provided for a large area of public open space referred to as the Village Green which straddled Orara Street (which was to be closed), was elliptical or oval in shape and was located in part upon Nos. 26 and 28. The public open space extended to either side of the Village Green to provide landscaped access to Romsey Street and Waitara Avenue. Relevantly, the whole of No. 28 and approximately two thirds of No. 26 were included in that public open space. It is appropriate to observe at this point that Building D2, which was to be located on Nos. 22, 24 and part of No. 26, was intended by the Masterplan to be a single building which, as I have indicated, shared vehicular access to the underground carpark of both Buildings D2 and D1 which was to be located on No. 20. Apart from that shared vehicular access from Orara Street, the balance of No. 20 was to be landscaped. The intent of the Landscape Masterplan was that all car parking was to be underground so that the three buildings, D1, D2 and D3 within Development Site 4 were to be located in a landscaped "campus-like" setting containing joint communal facilities such a pool, barbeque areas and a tennis court.