Four2Five Pty Ltd v Ashfield Council

[2015] NSWLEC 90

Land and Environment Court

New South Wales

Medium Neutral Citation:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Hearing dates:	11 May 2015
Decision date:	03 June 2015
Jurisdiction:	Class 1
Before:	Pain J
Decision:	1. The appeal is dismissed. 2. Costs are reserved.
Catchwords:	APPEAL – s 56A appeal – questions of law – statutory construction of clause in local environmental plan which enables non-compliance with a development standard in defined circumstances
Legislation Cited:	Aboriginal Land Rights Act 1983 (NSW) Ashfield Local Environmental Plan 2013 cl 1.9, cl 4.3, cl 4.6 Environmental Planning and Assessment Act 1979 (NSW) s 97 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Land and Environment Court Act 1979 (NSW) s 56A State Environmental Planning Policy No 1 – Development Standards
Cases Cited:	Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 Legal & General Life of Australia Ltd v North Sydney Municipal Council (1990) 69 LGRA 201 Michel Projects Pty Ltd v Randwick Municipal Council (1982) 46 LGRA 410 Norm Fletcher & Associates Pty Limited v Strathfield Municipal Council [2014] NSWLEC 157 Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446
Texts Cited:	D C Pearce and R S Geddes, Statutory Interpretation in Australia, (8th ed 2014, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Four2Five Pty Ltd (Appellant) Ashfield Council (Respondent)
Representation:	Counsel: Mr P Tomasetti SC (Appellant) Mr A Hudson (solicitor) (Respondent)   Solicitors: Storey & Gough (Appellant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	10098 of 2015
Decision under appeal	Jurisdiction: Class 1 Citation: [2015] NSWLEC 1009 Date of Decision: 30 January 2015 Before: Pearson C File Number(s): 10482 of 2014

Judgment

Appeal on question of law in class 1 proceedings

1. This is an appeal under s 56A of the Land and Environment Court Act 1979 (NSW) (the Court Act) from the decision of a commissioner of this Court in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009. Appeals under s 56A can be made in relation to a question or questions of law. Findings of fact by a commissioner are not generally able to be the subject of such an appeal. The Commissioner upheld the appeal of Four2Five Pty Ltd (the Appellant) and granted development consent subject to several conditions. This appeal arises because one of the deferred commencement conditions imposed by the Commissioner, condition B(1)(a) and (b), deletes some units on the otherwise approved plans. In doing so the Commissioner determined at [65] not to vary the relevant development standard relating to the height of buildings in the Ashfield Local Environmental Plan 2013 (the LEP).

2. The Appellant submits the Commissioner misconstrued cl 4.6 [(4)(a)(i)] of the LEP in holding that cl 4.6(3)(b) requires an applicant for development consent to show that environmental planning grounds existed “particular to the circumstances of this proposed development on the subject site” to justify contravening the development standard at [60] (ground 1); and misconstrued cl 4.6 [(4)(a)(i)] of the LEP in holding that an applicant who seeks to justify…