Developer Entity Pty Ltd v Strathfield Municipal Council - [2023] NSWLEC 1118

Land and Environment Court

New South Wales

Medium Neutral Citation: Developer Entity Pty Ltd v Strathfield Municipal Council [2023] NSWLEC 1118
Hearing dates: 13-14 February 2023
Date of orders: 16 March 2023
Decision date: 16 March 2023
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) The development application (DA2021/235) for the demolition of existing structures and construction of four two-storey townhouses with attic, a shared single basement level and ancillary landscaping at 33 MacKenzie Street, Homebush, is determined by refusal.
(3) Exhibits 1, 4, C and H are retained and the remaining exhibits are returned.

Catchwords:
APPEAL – development application – multi dwelling housing – compliance with minimum lot size development standard – whether consistent with the objective of the standard – whether bulk and scale appropriate for the site in its context

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Strathfield Local Environmental Plan 2012, cll 4.1A, 4.3, 4.6

Cases Cited:
Abrams v Council of the City of Sydney [2019] NSWLEC 1583
Goreski v Hurstville City Council (No. 2) [2012] NSWLEC 1026
Kasif v Georges River Council [2020] NSWLEC 1068
PRJM Pty Ltd v Hawkesbury City Council [2016] NSWLEC 1217
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Wechsler v Parramatta City Council [2017] NSWLEC 1663

Texts Cited:
Strathfield Consolidated Development Control Plan 2020

Category: Principal judgment
Parties: Developer Entity Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)
Representation:
Counsel:
A Hemmings (Applicant)
A Pickles SC (Respondent)
Solicitors:
Addisons (Applicant)
Norton Rose Fulbright (Respondent)

File Number(s): 2022/168821
Publication restriction: Nil

Judgment

COMMISSIONER: In Homebush, between MacKenzie Street and Bates Street, there is a small area of land zoned R3 Medium Density Residential amongst surrounds that are zoned R2 Low Density Residential. Two of the three lots that are zoned R3 Medium Density comprise multi dwelling housing, and the remaining lot, 33 MacKenzie Street, comprises a single dwelling house. Developer Entity Pty Ltd (Developer Entity) seeks development consent for the demolition of the dwelling house and the construction of four two-storey townhouses with a habitable third storey attic. It lodged a development application on 10 September 2021, which was refused by Strathfield Municipal Council (the Council) on 2 December 2021. These proceedings are an appeal against that decision, which is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Council remains opposed to the grant of development consent on the basis that the site does not meet the minimum lot size development standard for multi dwelling housing, the bulk and scale is inappropriate for the site, its massing and siting does not respond to its context, and the proposal has amenity impacts.
For the reasons that are set out below, I find that development consent cannot be granted to the proposed development in circumstances where it contravenes the minimum lot size development standard and where I am not satisfied that it is consistent with the objective of that standard. Further,…

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: [2023] NSWLEC 1118
Decision Date: 16 March 2023

CaseChat Overview and Summary

Developer Entity Pty Ltd sought judicial review of a decision by the Strathfield Municipal Council to refuse approval for a development application. The dispute centred around the application to demolish existing structures and construct four two-storey townhouses with an attic, a shared single basement level, and ancillary landscaping at 33 MacKenzie Street, Homebush. The case was heard and determined by the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether the council's decision to refuse the development application was lawful, rational, and in accordance with relevant planning policies and development controls. The applicant argued that the refusal was unreasonable and that the council failed to adequately consider certain planning factors. The council contended that the proposed development did not comply with local planning policies and would have adverse impacts on the character of the area and neighbouring properties.

The court examined the evidence and submissions provided by both parties and considered the applicable planning legislation and policies. It found that the council's decision was based on a proper consideration of the relevant factors and was not irrational or unlawful. The court determined that the proposed development did not align with the local planning policies and would result in unacceptable impacts on the surrounding area. Consequently, the court dismissed the applicant's 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) The development application (DA2021/235) for the demolition of existing structures and construction of four two-storey townhouses with attic, a shared single basement level and ancillary landscaping at 33 MacKenzie Street, Homebush, is determined by refusal.

(3) Exhibits 1, 4, C and H are retained and the remaining exhibits are returned.

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:	Developer Entity Pty Ltd v Strathfield Municipal Council [2023] NSWLEC 1118
Hearing dates:	13-14 February 2023
Date of orders:	16 March 2023
Decision date:	16 March 2023
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) The development application (DA2021/235) for the demolition of existing structures and construction of four two-storey townhouses with attic, a shared single basement level and ancillary landscaping at 33 MacKenzie Street, Homebush, is determined by refusal. (3) Exhibits 1, 4, C and H are retained and the remaining exhibits are returned.
Catchwords:	APPEAL – development application – multi dwelling housing – compliance with minimum lot size development standard – whether consistent with the objective of the standard – whether bulk and scale appropriate for the site in its context
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Strathfield Local Environmental Plan 2012, cll 4.1A, 4.3, 4.6
Cases Cited:	Abrams v Council of the City of Sydney [2019] NSWLEC 1583 Goreski v Hurstville City Council (No. 2) [2012] NSWLEC 1026 Kasif v Georges River Council [2020] NSWLEC 1068 PRJM Pty Ltd v Hawkesbury City Council [2016] NSWLEC 1217 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Wechsler v Parramatta City Council [2017] NSWLEC 1663
Texts Cited:	Strathfield Consolidated Development Control Plan 2020
Category:	Principal judgment
Parties:	Developer Entity Pty Ltd (Applicant) Strathfield Municipal Council (Respondent)
Representation:	Counsel: A Hemmings (Applicant) A Pickles SC (Respondent) Solicitors: Addisons (Applicant) Norton Rose Fulbright (Respondent)
File Number(s):	2022/168821
Publication restriction:	Nil