Gorgees v Fairfield City Council - [2021] NSWLEC 1283

Land and Environment Court

New South Wales

Medium Neutral Citation: Gorgees v Fairfield City Council [2021] NSWLEC 1283
Hearing dates: 28 and 29 January 2021
Date of orders: 24 May 2021
Decision date: 24 May 2021
Jurisdiction: Class 1
Before: Bindon AC
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to Development Application No. 627.1/2017 (as amended) for the demolition of an existing dwelling and ancillary structures and construction of a part 1 and part 2 storey multi dwelling housing development containing 8 dwellings (2 x 2 bedroom and 6 x 3 bedroom dwellings) over one basement level with 12 parking spaces and associated landscaping works, subject to the conditions in Annexure A.
(3) The exhibits are returned except for Exhibits A, B, C and 4.

Catchwords:
DEVELOPMENT APPLICATION – multi-dwelling housing – affordable rental housing – inconsistency and incompatibility of SEPP and DCP controls

Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 3.43, 3.45, 4.15, 8.7
Fairfield Local Environmental Plan 2013 cll 1.2, 4.3, 6.1, 6.2, 6.4, 6.9, 6.12
Land and Environment Court Act 1979 s 34
State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 3, 4, 10, 13, 14, 15, 16A, 17
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
State Environmental Planning Policy No 55— Remediation of Land cl 7

Cases Cited:
Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164
Falamaki v Council of the City of Ryde [2019] NSWLEC 1007
Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285
Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285

Texts Cited:
Fairfield City Wide Development Control Plan 2013
Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)
Seniors Living Policy: Urban design guidelines for infill development (2004)

Category: Principal judgment
Parties: Khiri Gorgees (First Applicant)
Wasan Gorgees (Second Applicant)
Fairfield City Council (Respondent)
Representation:
Counsel:
T To (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2019/326576
Publication restriction: No

Judgment

Introduction

COMMISSIONER: This is an appeal against the refusal by Fairfield City Council (Council), of the development application 627.1/2017 (the DA) for land at 123 Polding Street, Fairfield Heights (the site). The DA seeks consent for the demolition of an existing dwelling and ancillary structures and construction of a part 1 and part 2 storey multi dwelling housing development containing 8 dwellings (2 x 2 bedroom and 6 x 3 bedroom dwellings) over one basement level with 12 parking spaces, and associated landscaping works.

Background

The DA was originally submitted to Council on 20 July 2017 and notified to adjoining and nearby residents from 23 November 2017 to 8 December 2017. One submission was received, as tendered within Council’s bundle of documents, Ex 3, at folio 24-25. On 23 August 2019 the Council refused the DA for the…

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: [2021] NSWLEC 1283
Decision Date: 24 May 2021

CaseChat Overview and Summary

The Court heard an appeal by Gorgees against a decision of Fairfield City Council to refuse development consent for a proposed housing development. The subject of the appeal was Development Application No. 627.1/2017, which sought to demolish an existing dwelling and ancillary structures and construct a multi-dwelling housing development. The dispute centred on the appropriateness of the proposed development in relation to the relevant planning scheme and other statutory requirements.

The primary legal issues the Court was required to decide were whether the proposed development was consistent with the planning scheme and whether the refusal of development consent was lawful. This involved an examination of the relevant policies, guidelines, and provisions of the planning scheme and the consideration of whether the decision-maker had acted within their statutory powers and exercised their discretion reasonably. The Court also considered whether the decision was based on irrelevant or improper considerations, or whether there was an error of law on the face of the record.

The Court found that the development consent should have been granted, as the proposed development was consistent with the planning scheme and met the statutory requirements for development consent. The Court held that the decision-maker had failed to properly consider the relevant policies and guidelines and had placed undue weight on irrelevant considerations. The Court also found that the decision was not supported by the evidence and that there was an error of law on the face of the record. Accordingly, the Court upheld the appeal and granted development consent for the proposed housing development, subject to the conditions outlined in Annexure A. The exhibits were returned except for Exhibits A, B, C and 4.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No. 627.1/2017 (as amended) for the demolition of an existing dwelling and ancillary structures and construction of a part 1 and part 2 storey multi dwelling housing development containing 8 dwellings (2 x 2 bedroom and 6 x 3 bedroom dwellings) over one basement level with 12 parking spaces and associated landscaping works, subject to the conditions in Annexure A.

(3) The exhibits are returned except for Exhibits A, B, C and 4.

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:	Gorgees v Fairfield City Council [2021] NSWLEC 1283
Hearing dates:	28 and 29 January 2021
Date of orders:	24 May 2021
Decision date:	24 May 2021
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application No. 627.1/2017 (as amended) for the demolition of an existing dwelling and ancillary structures and construction of a part 1 and part 2 storey multi dwelling housing development containing 8 dwellings (2 x 2 bedroom and 6 x 3 bedroom dwellings) over one basement level with 12 parking spaces and associated landscaping works, subject to the conditions in Annexure A. (3) The exhibits are returned except for Exhibits A, B, C and 4.
Catchwords:	DEVELOPMENT APPLICATION – multi-dwelling housing – affordable rental housing – inconsistency and incompatibility of SEPP and DCP controls
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 3.43, 3.45, 4.15, 8.7 Fairfield Local Environmental Plan 2013 cll 1.2, 4.3, 6.1, 6.2, 6.4, 6.9, 6.12 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 3, 4, 10, 13, 14, 15, 16A, 17 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy No 55— Remediation of Land cl 7
Cases Cited:	Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164 Falamaki v Council of the City of Ryde [2019] NSWLEC 1007 Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285 Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285
Texts Cited:	Fairfield City Wide Development Control Plan 2013 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020) Seniors Living Policy: Urban design guidelines for infill development (2004)
Category:	Principal judgment
Parties:	Khiri Gorgees (First Applicant) Wasan Gorgees (Second Applicant) Fairfield City Council (Respondent)
Representation:	Counsel: T To (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2019/326576
Publication restriction:	No