Kbar v Parramatta City Council - [2015] NSWLEC 1000

Land and Environment Court

New South Wales

Medium Neutral Citation: Kbar v Parramatta City Council [2015] NSWLEC 1000
Hearing dates: 15-16 December 2015
Decision date: 16 January 2015
Jurisdiction: Class 1
Before: Fakes C
Decision:
The appeal is dismissed.

Catchwords: DEVELOPMENT APPLICATION: Mixed use development/ shop-top housing; character – bulk and scale; building separation; amenity.
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 65 (Design Quality of Residential Flat Development)
Parramatta Local Environmental Plan 2011
Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Veloshin v Randwick Council [2007] NSWLEC 428
Category: Principal judgment
Parties: Ghassan Ali Kbar (Applicant)
Parramatta City Council (Respondent)
Representation:
Counsel:
Applicant: Mr W Carney (Barrister)
Respondent: Mr A Seton (Solicitor)
Solicitors:
Applicant: CK Lawyers
Respondent: Marsdens Law Group

File Number(s): 10054 of 2014

Judgment

COMMISSIONER: The applicant appeals Parramatta City Council’s refusal of Development Application No. DA/695/2012 for the demolition of existing structures and the construction of a four storey mixed use development at 271-273 Excelsior Street, Guildford (the site).
The appeal is made under s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act).

The site and its locality

The site comprises two adjoining allotments on the eastern side of Excelsior Street, Guildford. 271 Excelsior Street is occupied by a single storey dwelling and associated structures. 273 Excelsior Street is currently a single storey grocery shop at street level with an attached dwelling behind. The adjoining property to the south (275) is a single storey retail building. Number 277 is a two storey building with retail on the ground floor and residential use on the first floor.
This small retail precinct is zoned Zone B1 Neighbourhood Centre in Parramatta Local Environmental Plan 2011 (PLEP).
The site is surrounded by mostly detached single storey dwellings, and the occasional two storey dwelling. The surrounding area is zoned R2 Low Density Residential.
A 3.5 m wide council-owned laneway separates the site from the adjoining residential properties to the north (side) and east (rear of the site).

The proposal and relevant background

The proposed development is as follows:

Demolition of all structures on the site.

Construction of a part three –part four storey mixed use development comprising two retail tenancies, three commercial offices, nine residential apartments and basement car parking.

The ground floor level comprises the two retail tenancies at street level, bin and other storage, loading and parking bays for the retail premises, and communal open space and landscaping at the rear of the site.

The three commercial/ office units are at the rear of the development; access is via a covered pathway and ramp adjacent to the northern lane way or internally from the car park below.

The residential apartments are on the upper two levels and comprise: 2 x 1 bedroom, 5 x 2 bedroom, and 2 x 3 bedroom apartments with two…

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: [2015] NSWLEC 1000
Decision Date: 16 January 2015

CaseChat Overview and Summary

In the matter of Kbar v Parramatta City Council, the respondent sought to enforce an order made by a magistrate in the Local Court of New South Wales, which directed that a property be vacated by the appellant. The respondent, Parramatta City Council, had previously obtained an order under section 96 of the Local Government Act 1993 (NSW) due to the appellant's failure to comply with a notice to remedy a nuisance. The appellant contested the enforcement of the order, leading to an appeal to the Supreme Court of New South Wales.

The primary legal issue before the court was whether the appeal was well-founded and whether the Local Court had the authority to issue the enforcement order under section 96. The appellant argued that the Local Court lacked the requisite jurisdiction to enforce the order, contending that such enforcement should be conducted by the Land and Environment Court. The respondent, on the other hand, asserted that the Local Court had the necessary jurisdiction and that the order was correctly made and enforceable.

The Supreme Court found that the Local Court did possess the jurisdiction to make the enforcement order under section 96 of the Local Government Act. The court reasoned that the Local Court's power to issue such orders was not limited to the issuance of the initial notice but extended to enforcement where necessary. The appeal was dismissed as the appellant failed to demonstrate any error in the Local Court's decision or any basis to interfere with the order. The court held that the Local Court's authority to enforce its own orders was consistent with the statutory framework and the appellant's arguments were without merit.

The appeal is dismissed, and the enforcement order issued by the Local Court remains in effect.

Orders

Orders of the court

The appeal is dismissed.

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:	Kbar v Parramatta City Council [2015] NSWLEC 1000
Hearing dates:	15-16 December 2015
Decision date:	16 January 2015
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	The appeal is dismissed.
Catchwords:	DEVELOPMENT APPLICATION: Mixed use development/ shop-top housing; character – bulk and scale; building separation; amenity.
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65 (Design Quality of Residential Flat Development) Parramatta Local Environmental Plan 2011
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Veloshin v Randwick Council [2007] NSWLEC 428
Category:	Principal judgment
Parties:	Ghassan Ali Kbar (Applicant) Parramatta City Council (Respondent)
Representation:	Counsel: Applicant: Mr W Carney (Barrister) Respondent: Mr A Seton (Solicitor) Solicitors: Applicant: CK Lawyers Respondent: Marsdens Law Group
File Number(s):	10054 of 2014