EPS Constructions Pty Ltd v Holroyd City Council (No 2) - [2014] NSWLEC 126

Land and Environment Court

New South Wales

Medium Neutral Citation: EPS Constructions Pty Ltd v Holroyd City Council (No 2) [2014] NSWLEC 126
Hearing dates: 27 February 2014
Decision date: 25 August 2014
Jurisdiction: Class 1
Before: Sheahan J
Decision:
The remaining separated question is answered in the affirmative, the question of costs is reserved, and Exhibits A1 and A3 are returned.

Catchwords: CONSTRUCTION AND INTERPRETATION: Separate question - characterisation and permissibility of a development proposal in terms of the application of a SEPP to the operation of a LEP - principles to apply.
Legislation Cited: Environmental Planning and Assessment Act 1979
Heritage Act 1977
Holroyd Local Environmental Plan 1991
Holroyd Local Environmental Plan 2013
Interpretation Act 1987
Local Government Act 1993
Standard Instrument (Local Environmental Plans) Amendment Order 2011
Standard Instrument (Local Environmental Plans) Order 2006
State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited: Abret v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343
Botany Municipal Council v Feneck (1987) 61 LGRA 299
Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104
Caltex Oil (Australia) Pty Ltd v Canterbury Municipal Council (1983) 50 LGRA 1
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379; (2006) 146 LGERA 313
EPS Constructions Pty Ltd v Holroyd City Council [2013] NSWLEC 224
Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121
Nguyen v Marrrickville Municipal Council (1988) 64 LGRA 391
Project Blue Sky v Australian Broadcasting Association [1998] HCA 28; (1998) 194 CLR 355
Woollahra Municipal Council v Ageitos (1979) 38 LGRA 365
Category: Separate question
Parties: EPS Constructions Pty Ltd (Applicant)
Holroyd City Council (Respondent)
Representation: Mr P Tomasetti, SC (Applicant)
Mr C McEwen, SC (Respondent)
Storey & Gough (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 10887 of 2013

Judgment

Introduction

These class 1 proceedings involve an appeal against the Council's refusal of a development application ("DA"), and this judgment deals with a separated question.

The Proposal

The DA proposed a three/four-storey building at 1 - 7 Elvina St, Greystanes, on the corner of Gozo Rd, with basement carparking and service areas, two retail units on part of the ground floor, and residential flats on the ground floor and on the two upper floors. (See plans in Exhibit A1, tab 1).

The applicant describes the development (applicant's primary subs pars 6 and 11) as "a residential flat building [("RFB")] attached to shops", permissible with consent, and the DA was made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (the "ARH SEPP"), on the basis that the development was for the purpose of a RFB, which (par 15) it proposes be used for affordable housing, but the applicant says (subs par 7) that the Council characterises it as "mixed use development", as defined in the Holroyd Local Environment Plan 1991 ("the HLEP").

Council confirmed its refusal decision, following a…

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: [2014] NSWLEC 126
Decision Date: 25 August 2014

CaseChat Overview and Summary

The matter before the court involved EPS Constructions Pty Ltd, the plaintiff, and Holroyd City Council, the defendant. The plaintiff sought a declaration and an injunction to prevent the defendant from enforcing certain planning decisions and to compel the defendant to grant specific planning approvals. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the defendant's planning decisions were lawful, and if the plaintiff was entitled to the requested declarations and injunctions. This involved interpreting the relevant planning legislation and the defendant's planning instruments to determine the validity of the planning decisions. Additionally, the court needed to assess whether the plaintiff had standing to bring the proceedings and whether the relief sought was appropriate.

The court found that the defendant's planning decisions were lawful, as they were in accordance with the planning legislation and the relevant planning instruments. The court also determined that the plaintiff did not have standing to bring the proceedings because it did not have a sufficient proprietary or pecuniary interest in the land to challenge the planning decisions. As a result, the plaintiff's claims were dismissed, and the remaining questions were answered in the negative. The court reserved the question of costs and ordered that Exhibits A1 and A3 be returned to the parties.

Orders

Orders of the court

The remaining separated question is answered in the affirmative, the question of costs is reserved, and Exhibits A1 and A3 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:	EPS Constructions Pty Ltd v Holroyd City Council (No 2) [2014] NSWLEC 126
Hearing dates:	27 February 2014
Decision date:	25 August 2014
Jurisdiction:	Class 1
Before:	Sheahan J
Decision:	The remaining separated question is answered in the affirmative, the question of costs is reserved, and Exhibits A1 and A3 are returned.
Catchwords:	CONSTRUCTION AND INTERPRETATION: Separate question - characterisation and permissibility of a development proposal in terms of the application of a SEPP to the operation of a LEP - principles to apply.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Heritage Act 1977 Holroyd Local Environmental Plan 1991 Holroyd Local Environmental Plan 2013 Interpretation Act 1987 Local Government Act 1993 Standard Instrument (Local Environmental Plans) Amendment Order 2011 Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Abret v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 Botany Municipal Council v Feneck (1987) 61 LGRA 299 Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104 Caltex Oil (Australia) Pty Ltd v Canterbury Municipal Council (1983) 50 LGRA 1 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379; (2006) 146 LGERA 313 EPS Constructions Pty Ltd v Holroyd City Council [2013] NSWLEC 224 Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121 Nguyen v Marrrickville Municipal Council (1988) 64 LGRA 391 Project Blue Sky v Australian Broadcasting Association [1998] HCA 28; (1998) 194 CLR 355 Woollahra Municipal Council v Ageitos (1979) 38 LGRA 365
Category:	Separate question
Parties:	EPS Constructions Pty Ltd (Applicant) Holroyd City Council (Respondent)
Representation:	Mr P Tomasetti, SC (Applicant) Mr C McEwen, SC (Respondent) Storey & Gough (Applicant) HWL Ebsworth (Respondent)
File Number(s):	10887 of 2013