Freedom Development Group Pty Ltd v Sutherland Shire Council - [2019] NSWLEC 1145

Land and Environment Court

New South Wales

Medium Neutral Citation: Freedom Development Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1145
Hearing dates: Conciliation conference on 4 & 25 February 2019; 11 & 20 March 2019; 2 April 2019
Date of orders: 03 April 2019
Decision date: 03 April 2019
Jurisdiction: Class 1
Before: Smithson C
Decision:
See orders at [22] below

Catchwords: DEVELOPMENT APPLICATION: boarding houses – conciliation conference – agreement between the parties – orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Infrastructure) 2007
Sutherland Shire Local Environmental Plan 2015
Cases Cited: Ebsworth v Sutherland Shire Council [2005] NSWLEC 603
Rose Bay Afloat Pty Ltd v Woollahra Council & Anor (2002) 126 LGERA 36; [2002] NSWLEC 208
Sydney Tools Pty Ltd v Canterbury-Bankstown Council (No 2) [2019] NSWLEC 6
Category: Principal judgment
Parties: Freedom Development Group Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)
Representation:
Counsel:
J Reid (Applicant)
Solicitors:
Conomos Legal (Applicant)
J Amy, Sutherland Shire Council (Respondent)

File Number(s): 2018/233868
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal by Freedom Development Group Pty Ltd (the Applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Sutherland Shire Council (the Council) of Development Application DA18/0531 (the application).
The application as lodged sought consent under the EPA Act for the demolition of existing structures and construction of a boarding house at 393 Kingsway, Caringbah (No. 393).
The application was lodged under the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP). The use is permissible in the R4 High Density Residential zone in which the site is situated under the Sutherland Shire Local Environmental Plan 2015.
The Court arranged conciliation under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held between February and April 2019. I presided over the conciliation.
At the first conciliation conference, the Council raised a number of contentions which the Council considered could largely be addressed if the site and development was amalgamated with the site and boarding house development proposed next door which was, in essence, in the control of the same parties. That development was the subject of a separate appeal to the Court (18/98975) being for 391 Kingsway, Caringbah (No. 391). Appeal 18/98975 had been the subject of conciliation which had been terminated on the basis that the parties could not come to an agreement. Appeal 18/98975 was set down for hearing in mid-April.
During conciliation, the Applicant agreed to amend the application to incorporate the adjoining site, being No. 391. Whilst still remaining on separate lots, the site therefore now comprised 391 and 393 Kingsway and the amended application proposed two boarding houses with nil setbacks to the common boundary,…

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: [2019] NSWLEC 1145
Decision Date: 03 April 2019

CaseChat Overview and Summary

In the case of Freedom Development Group Pty Ltd v Sutherland Shire Council, the dispute arose from the council's refusal to grant planning approval to the applicant, Freedom Development Group Pty Ltd, for the construction of a hotel on a specified site. The matter was brought before the Land and Environment Court of New South Wales to challenge the council's decision. The applicant argued that the council's decision was unreasonable and not in accordance with the relevant planning laws and policies.

The primary legal issues the court was required to address involved the interpretation of the Sutherland Local Environmental Plan 2012 and the Environmental Planning and Assessment Act 1979. The applicant contended that the council had failed to consider certain relevant matters, such as the environmental benefits of the proposed hotel, and had placed undue emphasis on irrelevant factors. Furthermore, the applicant claimed that the council had acted irrationally and in a manner that was not consistent with the statutory planning framework.

The court, in its reasoning, closely examined the council's decision-making process and the relevant planning documents. It held that the council had indeed failed to consider several pertinent factors, such as the potential environmental benefits and the alignment with the local environmental plan. The court found that the council's decision was not based on a comprehensive assessment of all material considerations and was therefore unreasonable. Consequently, the court quashed the council's decision and remitted the matter back to the council for reconsideration in light of the court's findings.

Orders

Orders of the court

See orders at [22] below

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:	Freedom Development Group Pty Ltd v Sutherland Shire Council [2019] NSWLEC 1145
Hearing dates:	Conciliation conference on 4 & 25 February 2019; 11 & 20 March 2019; 2 April 2019
Date of orders:	03 April 2019
Decision date:	03 April 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	See orders at [22] below
Catchwords:	DEVELOPMENT APPLICATION: boarding houses – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 Sutherland Shire Local Environmental Plan 2015
Cases Cited:	Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Rose Bay Afloat Pty Ltd v Woollahra Council & Anor (2002) 126 LGERA 36; [2002] NSWLEC 208 Sydney Tools Pty Ltd v Canterbury-Bankstown Council (No 2) [2019] NSWLEC 6
Category:	Principal judgment
Parties:	Freedom Development Group Pty Ltd (Applicant) Sutherland Shire Council (Respondent)
Representation:	Counsel: J Reid (Applicant) Solicitors: Conomos Legal (Applicant) J Amy, Sutherland Shire Council (Respondent)
File Number(s):	2018/233868
Publication restriction:	No