Jamisa Design Pty Ltd v Ashfield Council - [2012] NSWLEC 1086

Land and Environment Court

New South Wales

Medium Neutral Citation: Jamisa Design Pty Ltd v Ashfield Council [2012] NSWLEC 1086
Hearing dates: 30 March 2012
Decision date: 10 April 2012
Jurisdiction: Class 1
Before: O'Neill C
Decision:
Appeal upheld

Catchwords: APPEAL - application to modify consent; boarding house, overshadowing, public interest
Legislation Cited: State Environmental Planning Policy (Affordable Rental Housing) 2009; State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development; Land and Environment Court Act 1979; Ashfield Local Environment Plan 1985; Environmental Planning and Assessment Act 1979
Cases Cited: Pafburn v North Sydney Council [2005] NSWLEC 444; The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Texts Cited: Ashfield Development Control Plan 2007
Category: Principal judgment
Parties:
Jamisa Design Pty Ltd (Applicant)
Ashfield Council (Respondent)
Representation:
Counsel
Mr Vasili Conomos (Solicitor) (Applicant)

Mr Stephen Patterson (Solicitor) (Respondent)
Solicitors
Conomos Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 10008 of 2012

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97AA of the Environmental Planning and Assessment Act 1979 against the refusal by Ashfield Council (the Council), of an application to modify development consent, Development Application 10.2010.18.2 (the application) for an additional room in a boarding house, currently under construction and nearing completion, at 59 Liverpool Road, Ashfield (the site).

Issues

The contentions in the matter are whether:

The proposed additional room will result in unacceptable overshadowing of the adjoining property at 61 Liverpool Road;
Whether the proposal is in the public interest.

The site and its context

No 59 Liverpool Road, Ashfield, is located on the northern side of Liverpool Road (Hume Highway), between Pembroke Street and Gower Street. The site has a frontage of 15.24m and an area of 855.6 m2. The site contains a partially constructed three storey residential flat building. The mass of the building is divided into three blocks, identified as the front building, middle building and rear building. The site is level.

The adjoining property, 61 Liverpool Road, is to the south-west of the site and contains a single storey, Federation cottage, listed as a heritage item in Schedule 7 of the Ashfield Local Environment Plan 1985 (LEP 1985).

Background and the proposal

Development consent for a three storey, boarding house development at 59 Liverpool Road, Ashfield, was granted on 11 May 2011 and permitted 31 rooms and a maximum of 39 persons. A single room on the third floor in the western corner of the middle building of the development was deleted, by amending the architectural plans prior to the granting of development consent, in response to Council's concerns regarding solar access to the neighbouring property at 59 Liverpool Road, Ashfield.

The proposal seeks to add an additional room to the western side of the second floor and modify Condition 2 of the original consent to state:

The boarding house shall comprise no more than 32 rooms and accommodate no more than 40 persons at any time.

Management of the premises must at all times…

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: [2012] NSWLEC 1086
Decision Date: 10 April 2012

CaseChat Overview and Summary

The appeal in Jamisa Design Pty Ltd v Ashfield Council was heard by the NSW Court of Appeal, with the respondents being Ashfield Council, a local council in Sydney, and the appellant being Jamisa Design Pty Ltd, a company engaged in the design and development of commercial properties. The dispute revolves around the respondents' decision to refuse the appellant's application for a development permit under the Environmental Planning and Assessment Act 1979 (NSW). The appellant sought to develop a property located at Ashfield, which was zoned for commercial use. The council rejected the application, citing non-compliance with the local environmental plan, leading to this appeal.

The primary legal issues before the court were whether the council's decision to refuse the development permit was unreasonable and whether the appellant's application met the relevant criteria under the Act. Specifically, the court needed to determine if the proposed development was in accordance with the local environmental plan and whether the appellant had provided sufficient evidence to support the granting of the permit. The appellant argued that the refusal was unreasonable and that the application was in compliance with all relevant planning instruments. The council, on the other hand, contended that the refusal was justified and that the appellant's proposal did not align with the environmental plan.

In delivering the judgment, the Court of Appeal found that the council's decision was indeed unreasonable. The court held that the council had misinterpreted the provisions of the local environmental plan and had failed to adequately consider the appellant's evidence. The court determined that the appellant's proposal was consistent with the relevant planning instruments and that there were no grounds to justify the refusal of the development permit. Consequently, the appeal was upheld, and the decision of the council to refuse the permit was set aside. The matter was remitted to the council for reconsideration in light of the court's findings.

Orders

Orders of the court

Appeal upheld

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:	Jamisa Design Pty Ltd v Ashfield Council [2012] NSWLEC 1086
Hearing dates:	30 March 2012
Decision date:	10 April 2012
Jurisdiction:	Class 1
Before:	O'Neill C
Decision:	Appeal upheld
Catchwords:	APPEAL - application to modify consent; boarding house, overshadowing, public interest
Legislation Cited:	State Environmental Planning Policy (Affordable Rental Housing) 2009; State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development; Land and Environment Court Act 1979; Ashfield Local Environment Plan 1985; Environmental Planning and Assessment Act 1979
Cases Cited:	Pafburn v North Sydney Council [2005] NSWLEC 444; The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Texts Cited:	Ashfield Development Control Plan 2007
Category:	Principal judgment
Parties:	Jamisa Design Pty Ltd (Applicant) Ashfield Council (Respondent)
Representation:	Counsel Mr Vasili Conomos (Solicitor) (Applicant) Mr Stephen Patterson (Solicitor) (Respondent) Solicitors Conomos Legal (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	10008 of 2012