EPS Constructions Pty Ltd v Holroyd City Council - [2015] NSWLEC 1253

Land and Environment Court

New South Wales

Medium Neutral Citation: EPS Constructions Pty Ltd v Holroyd City Council [2015] NSWLEC 1253
Hearing dates: 5 May 2015
Date of orders: 10 July 2015
Decision date: 10 July 2015
Jurisdiction: Class 1
Before: Pearson C
Decision:
1. The appeal is upheld.
2. Development application DA2012/315 as amended for the demolition and erection of a mixed use development containing two retail units and seven residential units above a basement parking level at 1-7 Elvina Street Greystanes is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits 1, 3 and E.

Catchwords: DEVELOPMENT APPLICATION – Mixed use development – Retail and residential units – Affordable rental housing – Visual privacy – Overshadowing – Compatibility with character of area
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
Holroyd Local Environmental Plan 1991
Holroyd Local Environmental Plan 2013
Cases Cited: Doolan v Strathfield Municipal Council [2014] NSWLEC 1212
EPS Constructions Pty Ltd v Holroyd City Council [2013] NSWLEC 224
EPS Constructions Pty Ltd v Holroyd City Council (No 2) [2014] NSWLEC 126
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Category: Principal judgment
Parties: EPS Constructions Pty Ltd (Applicant)
Holroyd City Council (Respondent)
Representation: Mr C Gough, Storey & Gough Solicitors (Applicant)
Ms K Gerathy, HWL Ebsworth Lawyers (Respondent)

File Number(s): 10887 of 2013

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of consent to Development Application DA2012/315 for the demolition and erection of a mixed use development containing two retail units and 8 residential units above a basement parking level at 1-7 Elvina Street Greystanes (the site).
As originally lodged on 3 August 2012, the development application proposed a part 3 storey/part 4 storey development, and included 2 x retail units at ground level, 1 x 1 bedroom and 1 x 2 bedroom residential units on ground level, 4 x 2 bedroom residential units on level 1, and 2 x 2 bedroom units on level 2 proposed under State Environmental Planning Policy (Affordable Housing) 2009 (the ARHSEPP). The Council refused consent on 15 January 2012 and the applicant sought a review under s 82A of the Act. The applicant lodged this Class 1 appeal against the refusal of the s 82A application on 15 November 2013.
On 20 December 2013, on the application of the Council, Biscoe J ordered separate determination of two questions, being whether the application was for “prohibited development”, and if not prohibited, whether cl 10(1) of the ARHSEPP applied to the development application: EPS Constructions Pty Ltd v Holroyd City Council [2013] NSWLEC 224. On 25 August 2014 Sheahan J determined the second question in the applicant’s favour,…

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: [2015] NSWLEC 1253
Decision Date: 10 July 2015

CaseChat Overview and Summary

The case of EPS Constructions Pty Ltd v Holroyd City Council arose from a development application submitted by EPS Constructions to the Holroyd City Council. The proposed development involved the demolition of existing structures and the erection of a mixed-use building with two retail units and seven residential units above a basement parking level at 1-7 Elvina Street, Greystanes. The primary dispute was whether the council had the authority to impose certain conditions on the approval of the development application, and if the conditions were lawful and reasonable. The matter was heard in the Land and Environment Court of New South Wales, where the appellant, EPS Constructions, sought to challenge the council's decisions.

The central legal issues before the court were whether the conditions imposed by the council were within the statutory authority granted under the Environmental Planning and Assessment Act 1979 (NSW) and the Environmental Planning and Assessment Regulation 2000 (NSW), and if the conditions were appropriate and proportionate to the proposed development. The appellant argued that some of the conditions were beyond the council's authority and were not necessary to achieve the objectives of the planning scheme. The council, on the other hand, contended that the conditions were within their statutory powers and were necessary for the proper development and management of the site.

The court found that some of the conditions imposed by the council were not authorised by statute and were, therefore, invalid. However, the court also held that other conditions were within the statutory authority of the council and were reasonable and proportionate to the proposed development. The court further determined that the conditions were necessary to achieve the objectives of the planning scheme and to mitigate any potential adverse impacts of the development on the surrounding environment and community. As a result, the court approved the development application subject to certain conditions, which were outlined in Annexure A of the judgment.

The final orders of the court were that the appeal was upheld, and the development application was approved subject to the specified conditions. The court also ordered that the exhibits be returned, except for exhibits 1, 3, and E. This decision provides clarity on the scope of the council's authority in imposing conditions on development applications and sets a precedent for similar cases in the future.

Orders

Orders of the court

1. The appeal is upheld.

2. Development application DA2012/315 as amended for the demolition and erection of a mixed use development containing two retail units and seven residential units above a basement parking level at 1-7 Elvina Street Greystanes is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits 1, 3 and E.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	EPS Constructions Pty Ltd v Holroyd City Council [2015] NSWLEC 1253
Hearing dates:	5 May 2015
Date of orders:	10 July 2015
Decision date:	10 July 2015
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. The appeal is upheld. 2. Development application DA2012/315 as amended for the demolition and erection of a mixed use development containing two retail units and seven residential units above a basement parking level at 1-7 Elvina Street Greystanes is approved subject to the conditions in Annexure A. 3. The exhibits are returned except for exhibits 1, 3 and E.
Catchwords:	DEVELOPMENT APPLICATION – Mixed use development – Retail and residential units – Affordable rental housing – Visual privacy – Overshadowing – Compatibility with character of area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Holroyd Local Environmental Plan 1991 Holroyd Local Environmental Plan 2013
Cases Cited:	Doolan v Strathfield Municipal Council [2014] NSWLEC 1212 EPS Constructions Pty Ltd v Holroyd City Council [2013] NSWLEC 224 EPS Constructions Pty Ltd v Holroyd City Council (No 2) [2014] NSWLEC 126 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Revelop Projects Pty Ltd v Parramatta City Council [2014] NSWLEC 1167 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Category:	Principal judgment
Parties:	EPS Constructions Pty Ltd (Applicant) Holroyd City Council (Respondent)
Representation:	Mr C Gough, Storey & Gough Solicitors (Applicant) Ms K Gerathy, HWL Ebsworth Lawyers (Respondent)
File Number(s):	10887 of 2013