Four2Five Pty Ltd v Ashfield Council

Case [2015] NSWLEC 1009

Land and Environment Court


New South Wales

Medium Neutral Citation: Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009
Hearing dates:26, 27 November 2014
Date of orders: 30 January 2015
Decision date: 30 January 2015
Jurisdiction:Class 1
Before: Pearson C
Decision:

1. The appeal is upheld.
2. Development application No 17.2014.3 for the construction of a mixed use development consisting of a residential flat building and retail premises including car parking and landscaping works at 425 Liverpool Road Ashfield is approved subject to the conditions in Annexure A.
3. The exhibits are returned except for exhibits 1, 4, 9, B and C.

Catchwords: DEVELOPMENT APPLICATION – Mixed use development – Number of storeys – Height development standard – Gross floor area within top 3m of height limit – Whether contravention of development standard justified
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
State Environmental Planning Policy No 1 – Development Standards
Ashfield Local Environmental Plan 2013
Cases Cited: Hooker Corporation Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195
Wehbe v Pittwater Council [2007] NSWLEC 827
Winten Property Group Limited v North Sydney Council (2001) 130 LGERA 79
Category:Principal judgment
Parties: Four2Five Pty Ltd (Applicant)
Ashfield Council (Respondent)
Representation:

Counsel:
Mr P Tomasetti SC (Applicant)

Solicitors:
Mr C Gough, Storey & Gough (Applicant)
Mr A Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):10482 of 2014

Judgment

  1. Four2Five Pty Ltd (Four2Five) appeals 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 No 17.2014.3 for the construction of a mixed use development consisting of a residential flat building and retail premises including car parking and landscaping works at 425 Liverpool Road Ashfield (the site).

  2. The site is on the north east corner of Liverpool Road and Frederick Street, approximately 750m west of Ashfield railway station. The site is an irregular “U-shaped” allotment with a frontage to Liverpool Road of 18.4m, a frontage to Frederick Street of 110.8m, and a splay of 4.875m towards the intersection. The site is residual land formerly owned by Roads and Maritime Services (RMS), and is currently vacant except for existing vegetation.

  3. To the east of the site is primarily residential development consisting of residential flat buildings, detached dwelling houses, and some ground floor commercial uses. To the west is a mix of commercial development with some detached dwelling houses. The property enveloped by the “U” of the subject site at 421-423 Liverpool Road is a three storey residential flat building. On the opposite side of Liverpool Road at the intersection of Milton Street at 380 Liverpool Road is a vacant site which has an approval for a new…

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AGLC
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009
Case
[2015] NSWLEC 1009
Decision Date

CaseChat Overview and Summary

Four2Five Pty Ltd sought judicial review of the Ashfield Council's decision to refuse their development application for a mixed-use building on Liverpool Road. The Land and Environment Court of New South Wales was tasked with determining whether the council's decision was legally sound, and if not, whether the application should be approved. The applicant argued that the council's refusal was not in accordance with the relevant planning policies and guidelines, and that the development would not significantly impact the surrounding environment or amenity. The council, on the other hand, contended that the application did not align with the local planning framework and could potentially harm the local environment and community.

The court examined the legal principles governing development applications, including the importance of compliance with planning policies and the assessment of environmental impacts. It also considered the specific provisions of the local planning instruments and whether the council had properly applied these in making their decision. The key issue was whether the council had a lawful basis for refusing the development application and whether the applicant's proposal met the necessary planning and environmental standards. The court also assessed whether the council's decision-making process was procedurally fair and whether there were any errors in the council's interpretation of the planning policies.

After reviewing the evidence and arguments presented by both parties, the court found that the council's decision to refuse the development application was not legally sound. The court determined that the proposed development was consistent with the relevant planning policies and would not result in significant adverse environmental impacts. The council had failed to adequately justify their refusal based on the planning framework and had not properly considered the applicant's proposal. The court held that the development application should be approved subject to certain conditions aimed at mitigating any potential adverse impacts. The appeal was therefore upheld, and the development application was approved with specified conditions to address environmental and amenity concerns.

Orders

Orders of the court

1. The appeal is upheld.

2. Development application No 17.2014.3 for the construction of a mixed use development consisting of a residential flat building and retail premises including car parking and landscaping works at 425 Liverpool Road Ashfield is approved subject to the conditions in Annexure A.

3. The exhibits are returned except for exhibits 1, 4, 9, B and C.

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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