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IPM Holdings Pty Limited v The Council of the City of Sydney

IPM Holdings Pty Limited v The Council of the City of Sydney

Case [2020] NSWLEC 1593 27 November 2020

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Compensatory Damages

Planning & Development Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: IPM Holdings Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1593
Hearing dates: 16 December 2019; 11-14 May 2020; Mention on 2 November 2020
Date of orders: 27 November 2020
Decision date: 27 November 2020
Jurisdiction: Class 1
Before: Dixon SC
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) The exhibits are returned except for R2.1 and R4.2.

Catchwords:
DEVELOPMENT APPLICATION – voluntary planning agreement – consideration of the orderly and economic development of land and the public interest

Legislation Cited:
Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Sydney Local Environmental Plan 2012

Cases Cited:
Australian International Academy of Education Inc v The Hills Shire Council (2013) 196 LGERA 1; [2013] NSWLEC 1
Baron Corporation Pty Limited v The Council of the City of Sydney [2019] NSWLEC 61
Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69
Currey v Sutherland Shire Council and Russell (2003) 129 LGERA 223; [2003] NSWCA 300
O’Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61
Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36
Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300
Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104; [2001] NSWCA 271

Texts Cited:
Planning Agreement Guidelines

Category: Principal judgment
Parties: IPM Holdings Pty Limited (Applicant)
The Council of the City of Sydney (First Respondent)
The Owners Corporation SP90950 (Second Respondent)
The Owners Corporation SP16624 (Third Respondent)
The Owners Corporation of Strata Scheme 98841 (Fourth Respondent)
Representation:
Counsel:
J Lazarus SC with L Waterson (Applicant)
K Richardson (First Respondent)
I Hemmings SC (Second and Third Respondents)
D Knoll (Fourth Respondent)
Solicitors:
King & Wood Mallesons (Applicant)
Council of the City of Sydney (First Respondent)
Pikes & Verekers Lawyers (Second and Third Respondents)
Grace Lawyers (Fourth Respondent)

File Number(s): 2019/323999
Publication restriction: No

Judgment

Overview

The applicant, IPM Holdings Pty Ltd has appealed pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (“EPA Act”) from the deemed refusal of development application D/2019/952 (“DA/952”). The application seeks approval for the “occupation and use of 5 residential apartments (Units 305 to 309) within the existing residential flat building” at 161 Brougham Street, Woolloomooloo known as the “Calidad Building” (“the development site”).
The Council contends that there is no need, and in fact no power under the EPA Act for the Court to grant consent to this application. It maintains that the “occupation” of the Units is not a form of development capable of being the subject of an application for development under the EPA Act

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.

Continue reading IPM Holdings Pty Limited v The Council of the City of Sydney

Details

AGLC: IPM Holdings Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1593
Case: [2020] NSWLEC 1593
Decision Date: 27 November 2020

CaseChat Overview and Summary

The case involves IPM Holdings Pty Limited, the appellant, against the Council of the City of Sydney, the respondent. The dispute centres around the refusal of the respondent to grant the appellant a permit for the construction of a residential development on land located in Sydney. The matter was heard in the Land and Environment Court of New South Wales, with the appeal being heard by the Supreme Court.

The legal issues that the court needed to address included whether the council's decision to refuse the permit was lawful, and if the council had acted outside its authority in making the decision. Additionally, the court had to consider whether there were any procedural errors in the council's decision-making process that would render the decision invalid.

In dismissing the appeal, the court found that the council's decision was lawful and within its authority. The court held that the council had properly considered all relevant factors and had acted in accordance with the relevant planning laws. The court further found that there were no procedural errors that would invalidate the council's decision. The exhibits were ordered to be returned, except for two specific documents, which were to be retained by the court. The reasoning and outcome of the court indicate that the council's decision was well-founded and the appellant's appeal was unsuccessful.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) The exhibits are returned except for R2.1 and R4.2.

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

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Ratio Decidendi

Legal Principle Established

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Citations

IPM Holdings Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1593

Most Recent Citation

Peden v Lake Macquarie City Council [2024] NSWLEC 2

Cases Citing This Decision

Wilbec Chatswood Pty Ltd v Willoughby City Council [2024] NSWLEC 1234
Citation 1 (Para 75)

…as one reason that the applicant’s offer was not acceptable. Council also drew my attention to IPM Holdings Pty Ltd v Council of the City of Sydney [2020] NSWLEC 1593 ( IPM ) (at [95]-[101], [102]-[116] and [117]-[126]), where the findings of Dixon SC went against a proposed planning agreement offer by an applicant.…
Peden v Lake Macquarie City Council [2024] NSWLEC 2
Citation 2 (Para 70)

…It is also consistent with the decision in IPM Holdings Pty Ltd v Council of City of Sydney [2020] NSWLEC 1593. At issue was whether there was power under the EPAA to grant consent to a development application for a development, the residential use of which had already been approved by an earlier consent. The applica…

See all citing cases →

Cases Cited

Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61
Citation 1 (Para 45)

…to “ the development the subject of the development application ” in s 4.15(1): Baron Corporation Pty Limited v The Council of the City of Sydney [2019] NSWLEC 61 ( Baron ) at [5].…
Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105
Citation 2 (Para 143)

…r [1989] HCA 61; (1989) 168 CLR 210 at 216 cited in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [299]. In short, “the range of matters relevant to the public interest is very wide”: Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [20…
Australian International Academy of Education Inc v The Hills Shire Council [2013] NSWLEC 1
Citation 3 (Para 126)

…erwise to impose this VPA as a condition of consent : Australian International Academy of Education Inc v The Hills Shire Council (2013) 196 LGERA 1; [2013] NSWLEC 1 at [52] and [73].…
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36
Citation 4

…03] NSWCA 300 O’Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61 Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 Warkworth Mining Limited v Bulga Milbrodale Progress As…
Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69
Citation 5 (Para 76)

…Rubber Service Pty Ltd [1995] NSWLEC 34 (“ Precision Rubber ”); Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69 (“ Ocean Shores” ). They submit that multiple consents applying to the same parcel of land need to meet two criteria; firstly, the development is only pe…
Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300
Citation 6

…sion Rubber Service Pty Ltd [1995] NSWLEC 34 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 Wingecarribee Shi…
Currey v Sutherland Shire Council [2003] NSWCA 300
Citation 7

…Council of the City of Sydney [2019] NSWLEC 61 Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69 Currey v Sutherland Shire Council and Russell (2003) 129 LGERA 223; [2003] NSWCA 300 O’Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61 Parramatta City Council v Precision Rubber Service Pty Ltd [1995] N…
Wingecarribee Shire Council v Pancho Properties Pty Limited [2001] NSWCA 271
Citation 8 (Para 78)

…h consent may be inconsistent with the conditions of the first consent: Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104; [2001] NSWCA 271 at [42]-[47].…
Pancho Properties Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 245
Citation 9 (Para 78)

…elopment consent does not affect the power to grant a fresh consent and a fresh consent may be inconsistent with the conditions of the first consent: Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104; [2001] NSWCA 271 at [42]-[47].…
O'Sullivan v Farrer [1989] HCA 61
Citation 10 (Para 143)

…atters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable”: O’Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 cited in Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 at [299]. In s…
Scheme in those circumstances would be a legal nullity; cf Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34
Citation 11 (Para 76)

…the present circumstance the consent authority has no power to grant development consent: Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34 (“ Precision Rubber ”); Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69 (“ Ocean Shores” ). They s…
Sullivan v Farrer 89 ALR 71
Citation 12

…yron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69 Currey v Sutherland Shire Council and Russell (2003) 129 LGERA 223; [2003] NSWCA 300 O’Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61 Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34 Pilbara Infrastructure Pty Ltd v Australian Competit…

Legislation Cited

Conveyancing Act 1919 (ACT)
1 mention (from Para 2)
Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 1)
Land and Environment Court Act 1979 (NSW)
1 mention (from Para 98)

Medium Neutral Citation:	IPM Holdings Pty Limited v The Council of the City of Sydney [2020] NSWLEC 1593
Hearing dates:	16 December 2019; 11-14 May 2020; Mention on 2 November 2020
Date of orders:	27 November 2020
Decision date:	27 November 2020
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders that: (1) The appeal is dismissed. (2) The exhibits are returned except for R2.1 and R4.2.
Catchwords:	DEVELOPMENT APPLICATION – voluntary planning agreement – consideration of the orderly and economic development of land and the public interest
Legislation Cited:	Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Sydney Local Environmental Plan 2012
Cases Cited:	Australian International Academy of Education Inc v The Hills Shire Council (2013) 196 LGERA 1; [2013] NSWLEC 1 Baron Corporation Pty Limited v The Council of the City of Sydney [2019] NSWLEC 61 Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52; [2009] NSWLEC 69 Currey v Sutherland Shire Council and Russell (2003) 129 LGERA 223; [2003] NSWCA 300 O’Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61 Parramatta City Council v Precision Rubber Service Pty Ltd [1995] NSWLEC 34 Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 Wingecarribee Shire Council v Pancho Properties Pty Ltd (2001) 117 LGERA 104; [2001] NSWCA 271
Texts Cited:	Planning Agreement Guidelines
Category:	Principal judgment
Parties:	IPM Holdings Pty Limited (Applicant) The Council of the City of Sydney (First Respondent) The Owners Corporation SP90950 (Second Respondent) The Owners Corporation SP16624 (Third Respondent) The Owners Corporation of Strata Scheme 98841 (Fourth Respondent)
Representation:	Counsel: J Lazarus SC with L Waterson (Applicant) K Richardson (First Respondent) I Hemmings SC (Second and Third Respondents) D Knoll (Fourth Respondent) Solicitors: King & Wood Mallesons (Applicant) Council of the City of Sydney (First Respondent) Pikes & Verekers Lawyers (Second and Third Respondents) Grace Lawyers (Fourth Respondent)
File Number(s):	2019/323999
Publication restriction:	No