Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248
Hearing dates:
20 August 2015
Decision date:
20 August 2015
Before:
Meagher JA; Leeming JA
Decision:
1. Leave to appeal refused. 2. Notice of Motion filed 12 August 2015 dismissed.
Catchwords:
APPEALS – application for leave to appeal – appeal confined to question of law – whether leave should be granted in respect of point not pressed below – whether error of law demonstrated in decision below – leave refused
MEAGHER JA: I will ask Leeming JA to deliver the first judgment in relation to these two applications.
LEEMING JA: The applicant, Four2Five Pty Ltd, lodged an application for a mixed residential and commercial development in Ashfield approximately 750m west of the railway station. The development involved a ground floor retail tenancy, basement car parking for 66 vehicles over four basement levels, and 43 residential units. Four2Five lodged an appeal in the Land and Environment Court against Council’s deemed refusal on 4 July 2014. Following a hearing over two days in November 2014, the appeal was allowed by a Commissioner authorising the development, but subject to a number of conditions: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009.
There is one aspect of that decision with which Four2Five was, and is, dissatisfied. Condition B(1)(a) and (b) required the deletion of units on level six from the southern part of the site, and on level three from the northern part of the site, because there was non-compliance with the development standard relating to the height of buildings in the Ashfield Local Environmental Plan 2013 (NSW) (LEP). Clause 4.6 of the LEP empowers development consent to be granted for developments that contravene the development standard in certain circumstances, but the Commissioner was not persuaded that the clause applied.
[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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AGLC
Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248
Case
[2015] NSWCA 248
Decision Date
CaseChat Overview and Summary
Four2Five Pty Ltd sought leave to appeal to the Court of Appeal of New South Wales against a decision of the primary judge. The dispute concerned an application for development consent.
The Court of Appeal was required to determine whether leave to appeal should be granted, particularly in relation to a point of law that had not been pressed before the primary judge. It also had to consider whether an error of law was demonstrated in the decision under appeal.
Meagher and Leeming JJA refused leave to appeal. Their Honours reasoned that leave would not be granted in respect of a point not pressed below, as this would generally require exceptional circumstances. Furthermore, no error of law was demonstrated in the primary judge's decision.
Consequently, the Court of Appeal refused leave to appeal and dismissed the Notice of Motion filed by Four2Five Pty Ltd.
Orders
Orders of the court
1. Leave to appeal refused.
2. Notice of Motion filed 12 August 2015 dismissed.