Epping Property Developments Pty Ltd v Parramatta City Council - [2017] NSWLEC 1095

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Epping Property Developments Pty Ltd v Parramatta City Council [2017] NSWLEC 1095
Hearing dates: 28 and 29 November 2016
Date of orders: 28 February 2017
Decision date: 28 February 2017
Jurisdiction: Class 1
Before: Smithson C
Decision:
1. The appeal is upheld.
2. Development application 21/2016 for a boarding house at 123 Ray Road, Epping is approved subject to the conditions set out in Annexure “A”.
3. The exhibits, other than Exhibits A, B, 2 and 6, are returned.

Catchwords: DEVELOPMENT APPLICATION: boarding house; character; resident objections
Legislation Cited: The appeal is upheld.
Development application 21/2016 for a boarding house at 123 Ray Road, Epping is approved subject to the conditions in Annexure “A”.
The exhibits, other than Exhibits A, B, 2 and 6, are returned.
Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Category: Principal judgment
Parties: Epping Property Developments Pty Ltd (Applicant)
Parramatta City Council (Respondent)
Representation:
Counsel:
Mr Clay (Applicant)
Mr Seymour (Respondent)
Solicitors:
Ms Spizzo, Landerer & Company (Applicant)
Mr Loether, Bartier Perry (Respondent)

File Number(s): 16/152365

Judgment

COMMISSIONER: This appeal, pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act1979, is against the refusal by then Hornsby Shire Council of Development Application 21/2016 (the application) for the development of a boarding house at 123 Ray Road, Epping (the site).
The area in which the site is located now comprises part of the City of Parramatta local government area and the City of Parramatta Council (the Council) was therefore the Respondent in these proceedings.

Background

Development Application 21/2016 was lodged in January 2016 and proposed the demolition of a dwelling house on the site and the construction of a part 2 part 3 storey boarding house with 24 rooms, a manager’s residence and basement parking.
The application was notified. There were 81 submissions including a petition with 134 signatories and 9 pro forma letters all objecting to the application. The application was refused by Hornsby Shire Council in March 2016.
Grounds for refusal included that the proposed floor space ratio (FSR) was excessive, the maximum building height was exceeded, the proposed landscaping in the front setback area was inadequate, there was insufficient car parking, and the design was not compatible with the character of the local area.
The application was amended during conciliation to reduce both the height and density. As finally amended, the application proposed a predominantly 2 storey but partially 3 storey boarding house with 15 boarding rooms and a manager’s dwelling with the basement parking retained.
Leave was granted by the Court to amended plans reflecting these modifications in September 2016.
In the amended application, the FSR was reduced from 0.85:1 to 0.69:1 and the height reduced to comply with the LEP maximum height control of 8.5m. The Council no longer contended that the proposal was unacceptable in terms of the sufficiency of parking or the height but remained concerned with the…

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.

Keep reading for free

Create a free CaseChat account to read Epping Property Developments Pty Ltd v Parramatta City Counc... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NSWLEC 1095
Decision Date: 28 February 2017

CaseChat Overview and Summary

Epping Property Developments Pty Ltd, the appellant, sought to appeal the decision of Parramatta City Council, the respondent, to deny approval of a development application for a boarding house at 123 Ray Road, Epping. The dispute was heard in the Land and Environment Court of New South Wales. The appellant argued that the council's decision was unreasonable and that the proposed boarding house would not have an unreasonable impact on the neighbourhood. The respondent argued that the appellant had not demonstrated that the proposed development was in accordance with the relevant planning scheme and that it would have an unreasonable impact on the neighbourhood.

The primary legal issue before the court was whether the council's decision to refuse the development application was unreasonable. The court had to consider whether the appellant had demonstrated that the proposed boarding house was in accordance with the relevant planning scheme and whether the development would have an unreasonable impact on the neighbourhood. The court also had to consider whether the appellant had provided sufficient evidence to support its claim that the proposed development was not unreasonable.

The court found that the appellant had demonstrated that the proposed boarding house was in accordance with the relevant planning scheme and that it would not have an unreasonable impact on the neighbourhood. The court found that the council's decision to refuse the development application was unreasonable and that the appellant had provided sufficient evidence to support its claim. The court held that the appellant had demonstrated that the proposed boarding house would not have an unreasonable impact on the neighbourhood and that the development would not be contrary to the relevant planning scheme. The court found that the council had failed to adequately consider the appellant's evidence and had not provided adequate reasons for its decision. The court held that the appeal should be upheld and that the development application should be approved subject to certain conditions.

Orders

Orders of the court

1. The appeal is upheld.

2. Development application 21/2016 for a boarding house at 123 Ray Road, Epping is approved subject to the conditions set out in Annexure “A”.

3. The exhibits, other than Exhibits A, B, 2 and 6, 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:	Epping Property Developments Pty Ltd v Parramatta City Council [2017] NSWLEC 1095
Hearing dates:	28 and 29 November 2016
Date of orders:	28 February 2017
Decision date:	28 February 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is upheld. 2. Development application 21/2016 for a boarding house at 123 Ray Road, Epping is approved subject to the conditions set out in Annexure “A”. 3. The exhibits, other than Exhibits A, B, 2 and 6, are returned.
Catchwords:	DEVELOPMENT APPLICATION: boarding house; character; resident objections
Legislation Cited:	The appeal is upheld. Development application 21/2016 for a boarding house at 123 Ray Road, Epping is approved subject to the conditions in Annexure “A”. The exhibits, other than Exhibits A, B, 2 and 6, are returned.
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Category:	Principal judgment
Parties:	Epping Property Developments Pty Ltd (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: Mr Clay (Applicant) Mr Seymour (Respondent) Solicitors: Ms Spizzo, Landerer & Company (Applicant) Mr Loether, Bartier Perry (Respondent)
File Number(s):	16/152365