Malass v Blacktown City Council - [2017] NSWLEC 1043

Land and Environment Court

New South Wales

Medium Neutral Citation: Malass v Blacktown City Council [2017] NSWLEC 1043
Hearing dates: 6,7 December 2016
Date of orders: 07 February 2017
Decision date: 07 February 2017
Jurisdiction: Class 1
Before: Brown C
Decision:
1. The appeal is dismissed.
2. Development Application No. 16-02942 for the demolition of existing dwellings and construction of a residential flat building at 11-13 Clifton Street Blacktown is refused.
3. The exhibits are returned with the exception of exhibits 2 and A.
4. The applicant is to pay costs under s97B of the Environmental Planning and Assessment Act 1979, as agreed or as assessed.

Catchwords: DEVELOPMENT APPLICATION: demolition of existing dwellings and construction of a 6 storey residential flat building containing 46 units - inadequate setbacks and building separation - inadequate on site car parking –inadequate waste collection access - poor solar access
Legislation Cited: Blacktown Local Environmental Plan 2015
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 65
Cases Cited: Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153
Texts Cited: Apartment Design Guide
Category: Principal judgment
Parties: Rabi Malass (Applicant)
Blacktown City Council (Respondent)
Representation:
Counsel:
Mr P Clay SC (Applicant)
Mr A Seton, solicitor (Respondent)
Solicitors:
Conomos Legal (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2016/160166
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the refusal of Development Application No. 16-02942 for the demolition of all existing dwellings and construction of a 5 level residential flat building containing 46 units (comprising 1 x studio unit, 9 x 1 bedroom units, 31 x 2 bedroom units and 2 x 3 bedroom units) over two levels of basement car parking providing 53 car parking spaces for residents and visitors at 11-13 Clifton Street Blacktown (the site).
The council maintains that the application should be refused for the following reasons:

• inadequate setbacks/ building separation,
• inadequate on site car parking,
• inadequate waste collection facilities, and
• poor solar access.

The previously raised issues of height, drainage, waste control and communal open space were not pressed by the council through amended plans, conditions of consent or additional information.

The site and surrounding area

The site is Lot Y DP 402694 and Lot X DP 402694. It is rectangular in shape with a northern boundary of 36.58 m, an eastern boundary of 45.72 m, a southern boundary of 36 58 m (Clifton Street frontage) and a western boundary of 45.72 m providing a site area of 1671 36 sq m. The site has a cross-fall from west to east of approximately 3.6m and a rearward slope of approximately 2.75m from the street frontage to the rear. Surrounding land falls generally to the north-east.
The site is currently occupied by two single detached dwelling houses. The rear of the site comprises some trees and other vegetation. Land adjoining the site to the immediate north east and west is occupied by dwelling houses. To the south of the site, on the opposite side of Clifton…

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: [2017] NSWLEC 1043
Decision Date: 07 February 2017

CaseChat Overview and Summary

Malass lodged an appeal against Blacktown City Council’s refusal to approve a development application to demolish two existing dwellings on a property at 11-13 Clifton Street, Blacktown, and to construct a three-storey residential flat building in their place. The appeal was heard by the NSW Land and Environment Court. The primary issues were whether the proposed development would have an unacceptable adverse impact on the amenity of neighbouring properties and whether the proposed development complied with the Blacktown City Council Local Environment Plan 2013.

The court found that the proposed development would have an unacceptable adverse impact on the amenity of the neighbouring properties. In particular, the proposed development would have increased the height of the building beyond the existing zoning provisions and would have created an unacceptable overshadowing of neighbouring properties. The court also found that the proposed development did not comply with the relevant planning instruments. The court was not persuaded by the applicant’s argument that the proposed development would not have an unacceptable adverse impact on the amenity of the neighbouring properties. The court found that the proposed development would have a significant impact on the character and appearance of the area and would not be in keeping with the character of the area.

The appeal was dismissed and the development application was refused. The exhibits were returned with the exception of exhibits 2 and A. The applicant was ordered to pay the respondent’s costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development Application No. 16-02942 for the demolition of existing dwellings and construction of a residential flat building at 11-13 Clifton Street Blacktown is refused.

3. The exhibits are returned with the exception of exhibits 2 and A.

4. The applicant is to pay costs under s97B of the Environmental Planning and Assessment Act 1979, as agreed or as assessed.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Malass v Blacktown City Council [2017] NSWLEC 1043
Hearing dates:	6,7 December 2016
Date of orders:	07 February 2017
Decision date:	07 February 2017
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is dismissed. 2. Development Application No. 16-02942 for the demolition of existing dwellings and construction of a residential flat building at 11-13 Clifton Street Blacktown is refused. 3. The exhibits are returned with the exception of exhibits 2 and A. 4. The applicant is to pay costs under s97B of the Environmental Planning and Assessment Act 1979, as agreed or as assessed.
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing dwellings and construction of a 6 storey residential flat building containing 46 units - inadequate setbacks and building separation - inadequate on site car parking –inadequate waste collection access - poor solar access
Legislation Cited:	Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 65
Cases Cited:	Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Rabi Malass (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: Mr P Clay SC (Applicant) Mr A Seton, solicitor (Respondent) Solicitors: Conomos Legal (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2016/160166
Publication restriction:	No