JY Crown Pty Ltd v Inner West Council - [2023] NSWLEC 1081

Land and Environment Court

New South Wales

Medium Neutral Citation: JY Crown Pty Ltd v Inner West Council [2023] NSWLEC 1081
Hearing dates: 2, 3 August, 2, 3 November 2022
Date of orders: 24 February 2023
Decision date: 24 February 2023
Jurisdiction: Class 1
Before: Dickson C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development application DA2021/0727 seeking consent for demolition of the existing buildings and construction of shop top housing (ground floor retail and five levels of residential development), the creation of a pedestrian link between Parramatta Road and Redmond Street proposed at 305-313 Parramatta Road Leichhardt (Lot 2 DP 303623 and Lot B DP 158093) is determined by the refusal of consent.
(3) The exhibits are returned with the exception of Exhibits 1, A, B.

Catchwords:
DEVELOPMENT APPLICATION – development for the purposes of shop top housing – Parramatta Road corridor – variation to floor space ratio sought – voluntary planning agreement proposed – compatibility of the development with the desired future character – precondition to the grant of consent not satisfied – appeal dismissed

Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 4.15, 8.7
Environmental Planning and Assessment Regulation 2000 cl 55
Inner West Local Environmental Plan 2022 cl 1.8A
Leichhardt Local Environmental Plan 2013 cll 2.3, 4.4, 4.4A, 4.6, 6.11, 6.11A

Cases Cited:
Big Property v Randwick City Council [2021] NSWLEC 1161
Direct Factory Outlets Homebush v Strathfield Municipal Council [2006] NSWLEC 318
Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, 441
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Terrace Tower Holdings v Sutherland Shire Council [2003] NSWCA 289
Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115
Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:
Leichhardt Development Control Plan 2013

Category: Principal judgment
Parties: JY Crown Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
M Staunton (Applicant)
A Hemmings (Respondent)
Solicitors:
M Jaku, Jaku Legal (Applicant)
S Turner, Inner West Council (Respondent)

File Number(s): 2021/0302851
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their development application (DA2021/0727) by Inner West Council. The Applicant filed a Class 1 Application, appealing the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). As amended the development application seeks consent for demolition of the existing buildings and construction of shop top housing. The development includes basement parking and services, ground floor retail premises fronting Parramatta Road and Hay Street, the creation of a pedestrian link between Parramatta Road and Redmond Street and five levels of residential development (31 units). The development is proposed at 305-313 Parramatta Road Leichhardt (Lot 2 DP 303623 and Lot B DP 158093).
On 26 May and 3 August 2022, the Court granted leave to the Applicant to amend their development application pursuant to the provisions…

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: [2023] NSWLEC 1081
Decision Date: 24 February 2023

CaseChat Overview and Summary

The matter before the court was an appeal against the decision of Inner West Council to refuse consent to a development application. The applicant, JY Crown Pty Ltd, sought approval for the demolition of existing buildings and the construction of a new development comprising ground floor retail and five levels of residential housing, along with a pedestrian link. The respondents, Inner West Council, argued against the approval of the development application on various grounds including urban design, traffic impact, and lack of compliance with the relevant planning scheme. The case was heard in the Land and Environment Court of New South Wales.

The primary legal issues before the court were whether the decision of the council to refuse consent was lawful, rational, and supported by sufficient evidence. The applicant argued that the council's decision was unreasonable and not in accordance with the relevant planning policies and guidelines. The court was required to consider whether the council had properly exercised its discretion and whether the reasons provided for the refusal were adequate. Additionally, the court needed to determine whether the applicant's proposal complied with the relevant planning scheme and whether the potential impacts on the community and environment were adequately addressed.

In delivering its decision, the court found that the council's decision to refuse consent was lawful and supported by sufficient evidence. The court held that the council had properly exercised its discretion in accordance with the relevant planning policies and guidelines. The reasons provided by the council for the refusal were adequate and addressed the key concerns raised by the applicant. The court further found that the applicant's proposal did not comply with the relevant planning scheme and that the potential impacts on the community and environment were not adequately addressed. Consequently, the court dismissed the appeal and determined the development application by refusal of consent.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development application DA2021/0727 seeking consent for demolition of the existing buildings and construction of shop top housing (ground floor retail and five levels of residential development), the creation of a pedestrian link between Parramatta Road and Redmond Street proposed at 305-313 Parramatta Road Leichhardt (Lot 2 DP 303623 and Lot B DP 158093) is determined by the refusal of consent.

(3) The exhibits are returned with the exception of Exhibits 1, A, B.

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:	JY Crown Pty Ltd v Inner West Council [2023] NSWLEC 1081
Hearing dates:	2, 3 August, 2, 3 November 2022
Date of orders:	24 February 2023
Decision date:	24 February 2023
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development application DA2021/0727 seeking consent for demolition of the existing buildings and construction of shop top housing (ground floor retail and five levels of residential development), the creation of a pedestrian link between Parramatta Road and Redmond Street proposed at 305-313 Parramatta Road Leichhardt (Lot 2 DP 303623 and Lot B DP 158093) is determined by the refusal of consent. (3) The exhibits are returned with the exception of Exhibits 1, A, B.
Catchwords:	DEVELOPMENT APPLICATION – development for the purposes of shop top housing – Parramatta Road corridor – variation to floor space ratio sought – voluntary planning agreement proposed – compatibility of the development with the desired future character – precondition to the grant of consent not satisfied – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4.15, 8.7 Environmental Planning and Assessment Regulation 2000 cl 55 Inner West Local Environmental Plan 2022 cl 1.8A Leichhardt Local Environmental Plan 2013 cll 2.3, 4.4, 4.4A, 4.6, 6.11, 6.11A
Cases Cited:	Big Property v Randwick City Council [2021] NSWLEC 1161 Direct Factory Outlets Homebush v Strathfield Municipal Council [2006] NSWLEC 318 Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, 441 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Terrace Tower Holdings v Sutherland Shire Council [2003] NSWCA 289 Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Texts Cited:	Leichhardt Development Control Plan 2013
Category:	Principal judgment
Parties:	JY Crown Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) A Hemmings (Respondent) Solicitors: M Jaku, Jaku Legal (Applicant) S Turner, Inner West Council (Respondent)
File Number(s):	2021/0302851
Publication restriction:	No