Kasif v Georges River Council - [2020] NSWLEC 1068

Land and Environment Court

New South Wales

Medium Neutral Citation: Kasif v Georges River Council [2020] NSWLEC 1068
Hearing dates: 9-10 December 2019
Date of orders: 19 February 2020
Decision date: 19 February 2020
Jurisdiction: Class 1
Before: Smithson C
Decision:
The Court orders:
(1) Leave is granted for the applicant to rely on amended plans.
(2) The clause 4.6 written request for a variation to the minimum lot size is upheld.
(3) The appeal is upheld.
(4) Development Application DA2018/0441 for the demolition of existing structures and construction of a residential flat building at 22 Empress Street, Hurstville is approved subject to the conditions in Annexure A.
(5) The exhibits are returned except for Exhibits A, B, C, E and 1.

Catchwords: DEVELOPMENT APPLICATION – agreed isolated site – basement access available over adjoining site as a result of a condition on adjoining development – cl 4.6 applies as minimum lot size not achieved – whether design appropriate for context – area subject to new controls – whether communal open space should be provided
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
Kogarah Local Environmental Plan 2012
State Environmental Planning Policy No 65 -- Design Quality of Residential Flat Development
Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Micaul Holdings Pty Limited v Randwick City Council [2015] NSWLEC 1386
Voloshin v Randwick Council [2007] NSWLEC 428
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited: Apartment Design Guide
Kogarah Development Control Plan 2013
Category: Principal judgment
Parties: Erdogan Kasif (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
R O’Gorman-Hughes (Applicant)
D Le Breton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
HWLE Ebsworth Lawyers (Respondent)

File Number(s): 2019/9753
Publication restriction: Nil

Judgment

COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of a development application, DA2018/0441, by the respondent, Georges River Council (the Council). The application is for the demolition of existing structures and construction of a residential flat building (RFB) at 22 Empress Street, Hurstville (the site or appeal site). The RFB will contain 6 units in a 4-5 storey configuration over a basement car park
The key issue associated with the appeal relates to the height, bulk and scale of the proposed RFB given the narrow width and small area of the site which is agreed to be isolated by adjoining development. Associated issues include the lack of communal open space provided and the use of the front setback area.
The site is located on the eastern side of Empress Street. It is 490.4m² in area with a 10.6m wide frontage to Empress Street and also to Cow Lane at the rear, and a depth of 48.7m. It currently contains an existing single storey cottage adjoined to both common boundaries by 4 storey RFBs, causing the site to be…

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: [2020] NSWLEC 1068
Decision Date: 19 February 2020

CaseChat Overview and Summary

In the matter of Kasif v Georges River Council, the applicant sought approval for a development application concerning the demolition of existing structures and the construction of a residential flat building at 22 Empress Street, Hurstville. The Council had initially refused the application, prompting the applicant to appeal this decision. The appeal was heard by the Land and Environment Court of New South Wales.

The central legal issue before the court was whether the applicant's development application should be approved, considering the initial refusal by the Council. Specifically, the court had to determine the validity of the Council's refusal and whether the applicant's amended plans complied with the relevant planning laws and guidelines. Another issue was whether a written request for a variation to the minimum lot size was properly considered under clause 4.6.

The court found that the applicant's amended plans adequately addressed the concerns raised by the Council regarding the development's impact on the surrounding environment and compliance with planning regulations. The court also concluded that the Council had failed to properly consider the written request for a variation to the minimum lot size as required by clause 4.6. Therefore, the court granted leave for the applicant to rely on the amended plans and upheld the clause 4.6 written request. As a result, the appeal was upheld, and the development application was approved subject to certain conditions outlined in Annexure A. The exhibits were returned, except for specified documents.

Orders

Orders of the court

The Court orders:

(1) Leave is granted for the applicant to rely on amended plans.

(2) The clause 4.6 written request for a variation to the minimum lot size is upheld.

(3) The appeal is upheld.

(4) Development Application DA2018/0441 for the demolition of existing structures and construction of a residential flat building at 22 Empress Street, Hurstville is approved subject to the conditions in Annexure A.

(5) The exhibits are returned except for Exhibits A, B, C, E and 1.

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:	Kasif v Georges River Council [2020] NSWLEC 1068
Hearing dates:	9-10 December 2019
Date of orders:	19 February 2020
Decision date:	19 February 2020
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders: (1) Leave is granted for the applicant to rely on amended plans. (2) The clause 4.6 written request for a variation to the minimum lot size is upheld. (3) The appeal is upheld. (4) Development Application DA2018/0441 for the demolition of existing structures and construction of a residential flat building at 22 Empress Street, Hurstville is approved subject to the conditions in Annexure A. (5) The exhibits are returned except for Exhibits A, B, C, E and 1.
Catchwords:	DEVELOPMENT APPLICATION – agreed isolated site – basement access available over adjoining site as a result of a condition on adjoining development – cl 4.6 applies as minimum lot size not achieved – whether design appropriate for context – area subject to new controls – whether communal open space should be provided
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Kogarah Local Environmental Plan 2012 State Environmental Planning Policy No 65 -- Design Quality of Residential Flat Development
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Micaul Holdings Pty Limited v Randwick City Council [2015] NSWLEC 1386 Voloshin v Randwick Council [2007] NSWLEC 428 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Apartment Design Guide Kogarah Development Control Plan 2013
Category:	Principal judgment
Parties:	Erdogan Kasif (Applicant) Georges River Council (Respondent)
Representation:	Counsel: R O’Gorman-Hughes (Applicant) D Le Breton (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWLE Ebsworth Lawyers (Respondent)
File Number(s):	2019/9753
Publication restriction:	Nil