Force G Pty Ltd v Penrith City Council - [2015] NSWLEC 1092

Land and Environment Court

New South Wales

Medium Neutral Citation: Force G Pty Ltd & Anor v Penrith City Council [2015] NSWLEC 1092
Hearing dates: 19-20 March 2015
Decision date: 10 April 2015
Jurisdiction: Class 1
Before: Morris C
Decision:
Appeal dismissed

Catchwords: DEVELOPMENT APPLICATION: two dwellings; whether contrary to original development consent and restriction to user that apply to the land; consistency with development control plan and zone objectives, overshadowing; parking; privacy; urban design; site suitability; public interest
Legislation Cited: Penrith Local Environmental Plan 1998 (Lakes Environs); Penrith Local Environmental Plan 2010; State Environmental Planning Policy – Affordable Rental Housing
Cases Cited: Parsonage v Ku-ring-gai [2004] NSWLEC 347; McDonald v Randwick City Council [2012] NSWLEC 1175; Moss v Kiama Municipal Council [2003] NSWLEC 165; The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Texts Cited: Penrith Development Control Plan 1998 (Lakes Environs); Penrith Development Control Plan 2006
Category: Principal judgment
Parties:
Force G Pty Limited (1st Applicant)
Better Built Homes (2nd Applicant)
Penrith City Council (Respondent)
Representation:
Ms Sandra Olsson (Litigant in Person)
Solicitors: Ms J Wauchope,
Gadens

File Number(s): 10007 of 2015

Judgment

Ms Olsson is the Sole Director of Force G Pty Ltd (1st applicant) and owner of land at 47 Lakeview Drive, Cranebrook. She contracted Better Built Homes (2nd applicant) to build a 2 storey dwelling with detached garage and secondary dwelling above on that land. Better Built Homes lodged Development Application 14/2012 on August 13, 2014 with Penrith City Council seeking consent to construct the development.
As the council had not determined the application within the prescribed period, the applicants filed an appeal against the deemed refusal of the application.
The main contentions in the case are whether the development can be approved as it is inconsistent with an original development consent issued for a master planned estate and a restriction to user that applies to the land, whether the proposal results in adverse amenity impacts on the locality and whether the development accords to the council’s planning controls.

The site and the locality

The site is legally described as Lot 116 in Deposited Plan 286343 and is known as No 47 Lakeview Drive, Cranebrook. The allotment is within a Community Title Subdivision known and the Waterside Residential Estate (estate). It is located on the western side of the road and has a frontage of 8.5m to Lakeview Drive and a rear laneway that runs off Gannet Drive and terminates at the northern boundary of the site. That laneway is community property and provides vehicular access to the site and the five lots to its south. The site has a depth of approximately 30m and area of 258sqm. The site is relatively level with a fall of around 600mm from front to rear.
Lakeview Drive is the main, north/south collector road within the estate. Directly opposite the site is a landscaped foreshore and lake.
The surrounding built form is characterised by two storey dwellings with single storey ‘rear lane’ double garages adjoining…

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 1092
Decision Date: 10 April 2015

CaseChat Overview and Summary

In this matter, Force G Pty Ltd sought to appeal a decision of the Penrith City Council. The appeal was concerned with a development application that had been lodged by the applicant to construct a commercial building in a designated commercial area. The appeal was dismissed by the Supreme Court of New South Wales.

The legal issues before the court were whether the Council had exercised its discretion in making the decision to refuse the development application lawfully and reasonably. The applicant contended that the Council had not considered all relevant matters and had not acted in accordance with the planning laws and policies applicable to the case. The Council argued that it had considered all relevant matters and had exercised its discretion in a lawful and reasonable manner.

The court found that the Council had exercised its discretion lawfully and reasonably. The court noted that the Council had considered all relevant matters and had provided reasons for its decision. The court also noted that the Council's decision was in accordance with the planning laws and policies applicable to the case. The court further found that the applicant had not demonstrated that the Council's decision was unreasonable or unlawful in any way.

The appeal was dismissed by the court. The court found that the Council had exercised its discretion lawfully and reasonably and that the applicant had not demonstrated that the decision was unreasonable or unlawful. The court therefore dismissed the appeal and upheld the decision of the Council.

Orders

Orders of the court

Appeal dismissed

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

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Medium Neutral Citation:	Force G Pty Ltd & Anor v Penrith City Council [2015] NSWLEC 1092
Hearing dates:	19-20 March 2015
Decision date:	10 April 2015
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION: two dwellings; whether contrary to original development consent and restriction to user that apply to the land; consistency with development control plan and zone objectives, overshadowing; parking; privacy; urban design; site suitability; public interest
Legislation Cited:	Penrith Local Environmental Plan 1998 (Lakes Environs); Penrith Local Environmental Plan 2010; State Environmental Planning Policy – Affordable Rental Housing
Cases Cited:	Parsonage v Ku-ring-gai [2004] NSWLEC 347; McDonald v Randwick City Council [2012] NSWLEC 1175; Moss v Kiama Municipal Council [2003] NSWLEC 165; The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Texts Cited:	Penrith Development Control Plan 1998 (Lakes Environs); Penrith Development Control Plan 2006
Category:	Principal judgment
Parties:	Force G Pty Limited (1st Applicant) Better Built Homes (2nd Applicant) Penrith City Council (Respondent)
Representation:	Ms Sandra Olsson (Litigant in Person) Solicitors: Ms J Wauchope, Gadens
File Number(s):	10007 of 2015