Lizard Apple Pty Ltd v Inner West Council - [2019] NSWLEC 1146

Land and Environment Court

New South Wales

Medium Neutral Citation: Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146
Hearing dates: 12 – 13 March 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Jurisdiction: Class 1
Before: Walsh C
Decision:
The orders of the Court are:
(1) Leave is granted to rely on the amended plans listed in Annexure A.
(2) The appeal is upheld.
(3) Development Application 10.2017.259.1 for demolition of existing structures and construction of three storey boarding house comprising 36 boarding rooms, one communal room and one manager’s room, and associated works including basement parking, at 75 Milton Street, Ashfield, is approved subject to the conditions of consent at Annexure A.
(4) The exhibits, other than Exhibits 1, 2, 4, B and J, are returned.

Catchwords: DEVELOPMENT APPLICATION: boarding house in R2 zone – weight to amending environmental planning instrument – character compatibility – overshadowing – reasonableness of restrictive covenant re-enforcing affordable housing ambitions
Legislation Cited: Ashfield Local Environmental Plan 2013
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017
Wingecarribee Local Environmental Plan 2010
Cases Cited: Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302
Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138
Challenger Listed Investments Limited v Valuer General (No 2)
Fortunate Investments Pty Limited v North Sydney Council [2001] NSWLEC 70
MacDonald v Mosman Municipal Council [1999] NSWLEC 215
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142
Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1127
Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Steel v Liverpool City Council [2019] NSWLEC 1049
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289
Valuer-General v Fivex Pty Ltd [2015] NSWCA 53
Wang v Canterbury City Council [2013] NSWLEC 1098
Wingecarribee Shire Council v De Angelis [2016] NSWCA 189
Texts Cited: Inner West Comprehensive Development Control Plan 2016
UNSW City Futures Research Centre, State Environmental Planning Policy (Affordable Rental Housing) 2009 and affordable housing in Central and Southern Sydney (June 2018)
Category: Principal judgment
Parties: Lizard Apple Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
A Pickles SC (Applicant)
Solicitors:
Conomos Legal (Applicant)
M Bonanno, Inner West Council (Respondent)

File Number(s): 2018/80933
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal under the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’) against the refusal by Inner West Council (‘Council’) of Development Application 10.2017.259.1 for a boarding house at 75 Milton Street, Ashfield (‘site’).

The proposal

The Application seeks consent for demolition of the existing single storey dwelling house and, under the provision of State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘SEPP’), construction of a 3 storey boarding house.
The proposal ultimately before the Court, after leave was granted to amend the…

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: [2019] NSWLEC 1146
Decision Date: 05 April 2019

CaseChat Overview and Summary

Lizard Apple Pty Ltd sought review of a decision by the Inner West Council to refuse approval of a development application concerning a proposed boarding house. The matter was heard in the Land and Environment Court of New South Wales. The applicant argued that the council’s refusal was unreasonable, and that the proposed development complied with the relevant planning controls and met all the requirements for approval. The applicant sought leave to amend its development application plans and approval of the proposed development under the Environmental Planning and Assessment Act 1979.

The court was required to determine whether the council's refusal to approve the development application was lawful, and whether the proposed development complied with the applicable planning instruments. The court had to consider whether the amended plans adequately addressed the council’s concerns and whether the proposed development would have an unacceptable impact on the character of the area, among other things. The applicant argued that the proposed development was in accordance with the council’s Local Environment Plan and that the concerns raised by the council were not sufficient to warrant refusal of the application.

The court found that the applicant’s proposed development was consistent with the applicable planning instruments and that the council’s concerns were adequately addressed by the amended plans. The court held that the proposed development would not have an unacceptable impact on the character of the area, and that the benefits of the proposed development outweighed any potential harm. The court found that the council’s refusal to approve the development application was unreasonable, and that the application should be approved subject to certain conditions. The court allowed the appeal and approved the development application subject to the conditions of consent set out in the judgment.

Orders

Orders of the court

The orders of the Court are:

(1) Leave is granted to rely on the amended plans listed in Annexure A.

(2) The appeal is upheld.

(3) Development Application 10.2017.259.1 for demolition of existing structures and construction of three storey boarding house comprising 36 boarding rooms, one communal room and one manager’s room, and associated works including basement parking, at 75 Milton Street, Ashfield, is approved subject to the conditions of consent at Annexure A.

(4) The exhibits, other than Exhibits 1, 2, 4, B and J, are returned.

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:	Lizard Apple Pty Ltd v Inner West Council [2019] NSWLEC 1146
Hearing dates:	12 – 13 March 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The orders of the Court are: (1) Leave is granted to rely on the amended plans listed in Annexure A. (2) The appeal is upheld. (3) Development Application 10.2017.259.1 for demolition of existing structures and construction of three storey boarding house comprising 36 boarding rooms, one communal room and one manager’s room, and associated works including basement parking, at 75 Milton Street, Ashfield, is approved subject to the conditions of consent at Annexure A. (4) The exhibits, other than Exhibits 1, 2, 4, B and J, are returned.
Catchwords:	DEVELOPMENT APPLICATION: boarding house in R2 zone – weight to amending environmental planning instrument – character compatibility – overshadowing – reasonableness of restrictive covenant re-enforcing affordable housing ambitions
Legislation Cited:	Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 Wingecarribee Local Environmental Plan 2010
Cases Cited:	Alamdo Holdings Pty Limited v The Hills Shire Council [2012] NSWLEC 1302 Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 Challenger Listed Investments Limited v Valuer General (No 2) Fortunate Investments Pty Limited v North Sydney Council [2001] NSWLEC 70 MacDonald v Mosman Municipal Council [1999] NSWLEC 215 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 142 Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1127 Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Steel v Liverpool City Council [2019] NSWLEC 1049 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 Valuer-General v Fivex Pty Ltd [2015] NSWCA 53 Wang v Canterbury City Council [2013] NSWLEC 1098 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189
Texts Cited:	Inner West Comprehensive Development Control Plan 2016 UNSW City Futures Research Centre, State Environmental Planning Policy (Affordable Rental Housing) 2009 and affordable housing in Central and Southern Sydney (June 2018)
Category:	Principal judgment
Parties:	Lizard Apple Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) Solicitors: Conomos Legal (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/80933
Publication restriction:	No