Malass v Strathfield Municipal Council - [2022] NSWLEC 1160

Land and Environment Court

New South Wales

Medium Neutral Citation: Malass v Strathfield Municipal Council [2022] NSWLEC 1160
Hearing dates: 10 November 2021; 16-17 & 22 December 2021
Date of orders: 12 May 2022
Decision date: 12 May 2022
Jurisdiction: Class 1
Before: Dixon SC
Decision:
Proceedings 2021/69569
The Court orders:
(1) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, in respect of the amendments made on 9 November 2021, 16 and 17 December 2021.
(2) The clause 4.6 written request prepared by SJB Planning and dated 17 December 2021 to vary the exceptions to floor space ratio (Zone R2) development standard in cl 4.4C of the Strathfield Local Environmental Plan 2012 is not approved.
(3) The appeal is dismissed.
(4) Development consent for development application no. 2020.239 for the prospective use of the land for the purposes of a dwelling house, including the use of the building and structures erected on the land and additions and alterations to modify an approved dwelling including remedial works at 27 Boden Avenue, Strathfield is refused.
(5) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22.
Proceedings 2021/69575
The Court orders:
(1) The appeal is dismissed.
(2) Building information certificate application no. 2020/022 in relation to certain works that had been undertaken on land known as 27 Boden Avenue, Strathfield which were not in accordance with the existing development consent is refused.
(3) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22.
Proceedings 2020/291053
The Court orders:
(1) The appeal is dismissed.
(2) The stop work order issued by Strathfield Municipal Council under s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 to the applicant on 14 September 2020 will remain in force until a construction certificate is issued by Strathfield Municipal Council.
(3) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22

Catchwords:
DEVELOPMENT APPLICATION – prospective use of the site for the purposes of a dwelling house, including the use of the building and structures erected on the land and alterations and additions to modify the approved dwelling including remedial works – significant departure from floor space ratio development standard – correct calculation of FSR and gross floor area – amended cl 4.6 written request to vary the floor space ratio (FSR) development standard
BUILDING INFORMATION CERTIFICATE – application to retain ‘unauthorised’ works undertaken not in accordance with existing development consent – final outcome dependent on the outcome of the development application appeal – appeal dismissed
DEVELOPMENT CONTROL ORDER – stop work order made pursuant to s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 – final outcome dependent on the outcome of the development application appeal – appeal dismissed – stop work order…

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.

Keep reading for free

Create a free CaseChat account to read Malass v Strathfield Municipal Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWLEC 1160
Decision Date: 12 May 2022

CaseChat Overview and Summary

In the case of Malass v Strathfield Municipal Council, the applicant, Malass, sought various orders against the respondent, Strathfield Municipal Council, concerning development applications and related issues at a property located at 27 Boden Avenue, Strathfield. The dispute involved the approval of development consent, variations to local environmental plans, and compliance with development consents and stop work orders.

The primary legal issues before the Court were whether the applicant had the right to vary certain development standards, whether the works conducted on the property complied with existing development consents, and whether a stop work order should remain in effect until a construction certificate was issued. The Court needed to determine the validity of the applicant's submissions and whether the Council's decisions were justified under the Environmental Planning and Assessment Act 1979.

The Court found that the applicant's request to vary the exceptions to floor space ratio development standard was not approved. The Court also dismissed the appeal against the refusal of development consent for the proposed dwelling house and alterations. Furthermore, the Court refused the building information certificate application in relation to works not in accordance with existing development consent and upheld the stop work order until a construction certificate was issued. The Court ordered the applicant to pay the Council's costs thrown away in respect of the amendments made to the applications.

In summary, the Court dismissed the appeals and refused the applications, affirming the Strathfield Municipal Council's decisions. The Court further ordered the applicant to pay the Council's costs and specified which exhibits were to be returned.

Orders

Orders of the court

Proceedings 2021/69569

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, in respect of the amendments made on 9 November 2021, 16 and 17 December 2021.

(2) The clause 4.6 written request prepared by SJB Planning and dated 17 December 2021 to vary the exceptions to floor space ratio (Zone R2) development standard in cl 4.4C of the Strathfield Local Environmental Plan 2012 is not approved.

(3) The appeal is dismissed.

(4) Development consent for development application no. 2020.239 for the prospective use of the land for the purposes of a dwelling house, including the use of the building and structures erected on the land and additions and alterations to modify an approved dwelling including remedial works at 27 Boden Avenue, Strathfield is refused.

(5) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22.

Proceedings 2021/69575

The Court orders:

(1) The appeal is dismissed.

(2) Building information certificate application no. 2020/022 in relation to certain works that had been undertaken on land known as 27 Boden Avenue, Strathfield which were not in accordance with the existing development consent is refused.

(3) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22.

Proceedings 2020/291053

The Court orders:

(1) The appeal is dismissed.

(2) The stop work order issued by Strathfield Municipal Council under s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 to the applicant on 14 September 2020 will remain in force until a construction certificate is issued by Strathfield Municipal Council.

(3) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22

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:	Malass v Strathfield Municipal Council [2022] NSWLEC 1160
Hearing dates:	10 November 2021; 16-17 & 22 December 2021
Date of orders:	12 May 2022
Decision date:	12 May 2022
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	Proceedings 2021/69569 The Court orders: (1) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed, in respect of the amendments made on 9 November 2021, 16 and 17 December 2021. (2) The clause 4.6 written request prepared by SJB Planning and dated 17 December 2021 to vary the exceptions to floor space ratio (Zone R2) development standard in cl 4.4C of the Strathfield Local Environmental Plan 2012 is not approved. (3) The appeal is dismissed. (4) Development consent for development application no. 2020.239 for the prospective use of the land for the purposes of a dwelling house, including the use of the building and structures erected on the land and additions and alterations to modify an approved dwelling including remedial works at 27 Boden Avenue, Strathfield is refused. (5) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22. Proceedings 2021/69575 The Court orders: (1) The appeal is dismissed. (2) Building information certificate application no. 2020/022 in relation to certain works that had been undertaken on land known as 27 Boden Avenue, Strathfield which were not in accordance with the existing development consent is refused. (3) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22. Proceedings 2020/291053 The Court orders: (1) The appeal is dismissed. (2) The stop work order issued by Strathfield Municipal Council under s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 to the applicant on 14 September 2020 will remain in force until a construction certificate is issued by Strathfield Municipal Council. (3) The exhibits are returned, except for A, J, K, L, N, O, P, BA, 1, 7, 18 and 22
Catchwords:	DEVELOPMENT APPLICATION – prospective use of the site for the purposes of a dwelling house, including the use of the building and structures erected on the land and alterations and additions to modify the approved dwelling including remedial works – significant departure from floor space ratio development standard – correct calculation of FSR and gross floor area – amended cl 4.6 written request to vary the floor space ratio (FSR) development standard BUILDING INFORMATION CERTIFICATE – application to retain ‘unauthorised’ works undertaken not in accordance with existing development consent – final outcome dependent on the outcome of the development application appeal – appeal dismissed DEVELOPMENT CONTROL ORDER – stop work order made pursuant to s 9.34 and Sch 5 to the Environmental Planning and Assessment Act 1979 – final outcome dependent on the outcome of the development application appeal – appeal dismissed – stop work order…