Hatch v Georges River Council - [2024] NSWLEC 1047

Land and Environment Court

New South Wales

Medium Neutral Citation: Hatch v Georges River Council [2024] NSWLEC 1047
Hearing dates: 4 December 2023
Date of orders: 14 February 2024
Decision date: 14 February 2024
Jurisdiction: Class 1
Before: Washington AC
Decision:
The Court orders:
(1) The appeal is dismissed.
(2) Modification Application number MOD2021/0193 with respect to Lots 90, 91 and 92 in DP7148 also known as 36-40 Anderson Road, Mortdale, is determined by way of refusal.
(3) All exhibits are returned except for Exhibits A, C, D, E and 12.

Catchwords:
MODIFICATION APPLICATION – child care centre – application as modified is not substantially the same – appeal dismissed

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.55, 8.9
Georges River Local Environmental Plan 2021

Cases Cited:
Arrage v Inner West Council [2019] NSWLEC 85
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

Category: Principal judgment
Parties: John Hatch (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
J Smith (Applicant)
H Irish (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Georges River Council (Respondent)

File Number(s): 2022/354741
Publication restriction: No

JUDGMENT

These Class 1 proceedings arise as a result of the refusal, by Georges River Council (the Respondent) of the application by John Hatch to modify an existing consent, 10/DA-381, for a childcare centre at 36-38 Anderson Road, Mortdale. These proceedings have been brought to Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The modification application, MOD2021/0193 proposes alterations and additions to the existing childcare centre, which currently supports 68 children. The modification application relates to three lots which are Lots 90, 91 and 92 in DP 7148, which are respectively known as 40, 38 and 36 Anderson Road, Mortdale.
Specifically, the modification application requests the following:

To increase the approved child placement numbers from 68 to 90

Conversion of the existing car park at 36 Anderson Road, Mortdale to an outdoor play area

Demolition of existing structures at 40 Anderson Road, Mortdale (which currently does not form part of the child care centre) and construction of a two-storey enclosed car parking building to accommodate 21 car parking spaces, a car lift, mezzanine storage areas, two bathrooms, driveway and circulation space, landscaping and pedestrian access

Alterations and additions to the existing building at 38 Anderson Road, Mortdale by modifying the internal layout, internal play area and circulation, with a new connection to the proposed car park at 40 Anderson Road, Mortdale.

On 16 November 2023, prior to this hearing, leave was granted by the Court for the Applicant to amend this modification application. As a result of these amendments, the Parties jointly submit that all issues of merit have been resolved. The remaining issues in dispute in this hearing are both matters of jurisdiction of which I must be satisfied. They are:

Whether the application as modified will result in a development that is substantially the same as the development for which consent…

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: [2024] NSWLEC 1047
Decision Date: 14 February 2024

CaseChat Overview and Summary

The appeal was brought by the applicant, Hatch, against the decision of the Georges River Council to refuse a modification application regarding certain lots of land. The Council opposed the appeal, maintaining that the modification should not be approved due to various planning and environmental concerns. The case was heard in the Land and Environment Court of New South Wales. The applicant sought to appeal the refusal of a modification application concerning certain land lots, arguing that the refusal was unjust and not in accordance with the relevant planning laws. The applicant contended that the modification would not negatively impact the surrounding environment and would be in line with the council’s planning objectives. The Council, on the other hand, argued that the modification would result in adverse environmental effects and did not comply with the planning policies and controls.

The Court found that the applicant had not satisfied the burden of proving that the modification should be approved. The Court considered various factors, including the impact on the environment, the relevance of the modification to the planning policies, and the overall benefit to the community. The Court concluded that the modification would result in significant environmental harm, including the destruction of native vegetation and potential harm to the local wildlife. The Court also found that the modification did not align with the objectives of the planning policies. Consequently, the Court dismissed the appeal and refused the modification application. The Court ordered that the appeal be dismissed, the modification application be refused, and that all exhibits be returned except for specified ones.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) Modification Application number MOD2021/0193 with respect to Lots 90, 91 and 92 in DP7148 also known as 36-40 Anderson Road, Mortdale, is determined by way of refusal.

(3) All exhibits are returned except for Exhibits A, C, D, E and 12.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Hatch v Georges River Council [2024] NSWLEC 1047
Hearing dates:	4 December 2023
Date of orders:	14 February 2024
Decision date:	14 February 2024
Jurisdiction:	Class 1
Before:	Washington AC
Decision:	The Court orders: (1) The appeal is dismissed. (2) Modification Application number MOD2021/0193 with respect to Lots 90, 91 and 92 in DP7148 also known as 36-40 Anderson Road, Mortdale, is determined by way of refusal. (3) All exhibits are returned except for Exhibits A, C, D, E and 12.
Catchwords:	MODIFICATION APPLICATION – child care centre – application as modified is not substantially the same – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.55, 8.9 Georges River Local Environmental Plan 2021
Cases Cited:	Arrage v Inner West Council [2019] NSWLEC 85 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
Category:	Principal judgment
Parties:	John Hatch (Applicant) Georges River Council (Respondent)
Representation:	Counsel: J Smith (Applicant) H Irish (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Georges River Council (Respondent)
File Number(s):	2022/354741
Publication restriction:	No