Grigorakis v Bayside Council - [2016] NSWLEC 1573

Land and Environment Court

New South Wales

Medium Neutral Citation: Grigorakis v Bayside Council [2016] NSWLEC 1573
Hearing dates: 23 November 2016
Date of orders: 01 December 2016
Decision date: 01 December 2016
Jurisdiction: Class 1
Before: Brown C
Decision:
1. The appeal is dismissed.
2. Development Application 14/122 for alterations and additions to an approved, but not constructed, 3 storey shop top housing development by adding a fourth storey containing a single bedroom apartment at 907 Botany Road, Mascot is refused.
3. The exhibits are returned.

Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an approved 3 storey shop top housing development by adding a fourth storey containing a single bedroom apartment - unacceptable impact on the heritage significance of heritage item – unacceptable bulk and scale
Legislation Cited: Botany Bay Local Environmental Plan 2013
Environmental Planning and Assessment Act 1979
Category: Principal judgment
Parties: Marinos Grigorakis (Applicant)
Bayside Council (Respondent)
Representation:
Counsel:
Mr M Mantei, solicitor (Applicant)
Ms J Reid, barrister (Respondent)
Solicitors:
Michael Mantei, Planning Law Solutions (Applicant)
Alice Spizzo, Landerer & Company (Respondent)

File Number(s): 2016/155412
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the refusal of Development Application 14/122 for alterations and additions to an approved, but not constructed, 3 storey shop top housing development by adding a fourth storey containing a single bedroom apartment at 907 Botany Road, Mascot (the site). It is located on the corner with Tramway Street.
The council maintains that the development application should be refused because the proposal will have:

an unacceptable impact on the heritage significance of the group of buildings that make up Heritage Item I28, and

excessive bulk and scale which will adversely impact on the streetscape.

The site

The site is Lot 1 in DP 784041 and is a rectangular shaped allotment with an area of 278.7 sq m. It is a corner allotment and has a frontage of 9.14m to Botany Road and a secondary street frontage of 30.48m to Tramway Street.
The site is presently occupied by a two storey mixed use development containing a restaurant/cafe on the ground floor and a function room/bar on the first floor. A concrete hardstand car parking area accommodating four car parking spaces is located at the rear of the site with vehicular access from Tramway Street.
To the west of the site, on the opposite side of Botany Road are commercial and retail uses and to the east are the Newmarket Hotel and the Manhattan Superbowl. To the south are a series of two storey mixed use buildings fronting Botany Road as well as residential development including single dwellings and residential flat buildings. Adjoining the site directly to the north are a series of two storey mixed use buildings which, along with the building on the site, form the group heritage item known as Item No. I28 with street address 891 - 917 Botany Road, Mascot.

Relevant planning controls

The site is zoned B2 - Local Centre under Botany Bay Local Environmental Plan 2013 (LEP…

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: [2016] NSWLEC 1573
Decision Date: 01 December 2016

CaseChat Overview and Summary

Grigorakis v Bayside Council involved the applicant, Grigorakis, appealing against the refusal by Bayside Council of a development application for alterations and additions to an existing approved, but not constructed, 3-storey shop top housing development. The proposed alteration was to add a fourth storey containing a single bedroom apartment. The dispute was heard and determined by the Land and Environment Court of New South Wales.

The central legal issues the court needed to address were whether the proposed development complied with the relevant planning controls and whether it would have an unacceptable impact on the character of the area. Key to this was the assessment of the proposal against the development standards and objectives set out in the local environmental plan and other statutory requirements. The applicant argued that the proposed development would not harm the character of the area and was in line with the approved development.

The court found that the proposed fourth storey apartment would result in a building that exceeded the allowable height and scale of similar buildings in the area, thereby contravening the local environmental plan. Additionally, the court determined that the proposed development would adversely affect the character of the area, which was a key consideration under the relevant planning legislation. Given these findings, the appeal was dismissed and the development application was refused. The exhibits were ordered to be returned to the applicant.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development Application 14/122 for alterations and additions to an approved, but not constructed, 3 storey shop top housing development by adding a fourth storey containing a single bedroom apartment at 907 Botany Road, Mascot is refused.

3. The exhibits are returned.

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:	Grigorakis v Bayside Council [2016] NSWLEC 1573
Hearing dates:	23 November 2016
Date of orders:	01 December 2016
Decision date:	01 December 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is dismissed. 2. Development Application 14/122 for alterations and additions to an approved, but not constructed, 3 storey shop top housing development by adding a fourth storey containing a single bedroom apartment at 907 Botany Road, Mascot is refused. 3. The exhibits are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an approved 3 storey shop top housing development by adding a fourth storey containing a single bedroom apartment - unacceptable impact on the heritage significance of heritage item – unacceptable bulk and scale
Legislation Cited:	Botany Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Marinos Grigorakis (Applicant) Bayside Council (Respondent)
Representation:	Counsel: Mr M Mantei, solicitor (Applicant) Ms J Reid, barrister (Respondent) Solicitors: Michael Mantei, Planning Law Solutions (Applicant) Alice Spizzo, Landerer & Company (Respondent)
File Number(s):	2016/155412
Publication restriction:	No