Marana Developments Pty Limited v Botany City Council - [2011] NSWLEC 1110

Land and Environment Court

New South Wales

Medium Neutral Citation: Marana Developments Pty Limited v Botany City Council [2011] NSWLEC 1110
Hearing dates: 18-20 April 2011
Decision date: 18 May 2011
Jurisdiction: Class 1
Before: Morris C.
Decision:
1. The appeal is upheld;
2. Development consent 09/102 issued by Botany Bay City Council on 25 May 2009 which authorised the demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 76 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate is modified as follows:
(a)The approved development is: demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 102 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate;
(b)Conditions of the consent as modified are contained in Annexure "A";
3. The exhibits, other than Exhibits D, H and 2 are returned.

Catchwords: Modification; whether substantially the same development; residential flat building.
Legislation Cited: Environmental Planning and Assessment Act 1979; Environmental Planning & Assessment Regulation 2000; Botany Bay Local Environmental Plan 1995; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development; State Environmental Planning Policy No. 1; SEPP (Building Sustainability Index: BASIX) 2004
Cases Cited: Marana Developments v Botany Bay City Council [2010] NSWLEC 1237; Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298; North Sydney Council v Michael Standley & Associates Pty Ltd [1998] 97 LGERA 433; Vacik Pty Ltd v Penrith City Council NSWLEC, 24 February 1992 unreported; Zhang v Canterbury City Council [2001] 115 LGERA 373
Texts Cited: Residential Flat Design Code; City of Botany Bay Development Control Plan No. 35 - Multi Unit Housing and Residential Flat Buildings; City of Botany Bay Development Control Plan - Building Design and Construction; Off- Street Parking Development Control Plan - Botany Council; Development Control Plan No. 32 - Landscape; Energy Efficiency Development Control Plan
Category: Principal judgment
Parties:
Applicant
Marana Developments Pty Ltd
Respondent
Botany Bay City Council
Representation:
Applicant
Mr I Hemmings

Respondent
Mr T Hale
Applicant
Reid & Vesely
Respondent
Houston Dearn O'Connor

File Number(s): 10926 of 2010

Judgment

This is an appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Botany Bay Council (the council) of an application made under s 96(2) of the Act to modify a development consent granted by the council on 25 May 2009. The consent is for the re-subdivision of land, demolition of buildings and the construction of residential flat buildings comprising a total of 76 units in two stages. The modification application is seeking 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: [2011] NSWLEC 1110
Decision Date: 18 May 2011

CaseChat Overview and Summary

Marana Developments Pty Limited appealed against the Botany Bay City Council's refusal to grant development consent for a residential flat complex on their property. The dispute centred around the adequacy of the council's assessment of the proposal and the subsequent refusal to grant the consent. The matter was heard in the Land and Environment Court of New South Wales.

The court was tasked with determining whether the council had acted lawfully and reasonably in refusing the development consent and whether the refusal was based on valid and relevant considerations. The key issues included the adequacy of the council's assessment of the proposal, the relevance of the considerations upon which the refusal was based, and whether the refusal was unreasonable.

The court found that the council's refusal was not based on a proper assessment of the proposal and that the considerations relied upon were not valid or relevant. The court held that the council had not given proper consideration to the merits of the proposal and had failed to address certain key issues. The court also found that the refusal was unreasonable and that the council had not acted lawfully in refusing the development consent. The appeal was subsequently upheld, and the development consent was modified to include the construction of a 102 unit residential flat complex.

The court's orders included modifying the development consent to include the construction of a 102 unit residential flat complex and setting out the modified conditions of the consent in an annexure. The exhibits, other than certain documents, were also returned. The decision highlights the importance of ensuring that development proposals are properly assessed and that any refusal of development consent is based on valid and relevant considerations.

Orders

Orders of the court

1. The appeal is upheld;

2. Development consent 09/102 issued by Botany Bay City Council on 25 May 2009 which authorised the demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 76 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate is modified as follows:

(a)The approved development is: demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 102 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate;

(b)Conditions of the consent as modified are contained in Annexure "A";

3. The exhibits, other than Exhibits D, H and 2 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:	Marana Developments Pty Limited v Botany City Council [2011] NSWLEC 1110
Hearing dates:	18-20 April 2011
Decision date:	18 May 2011
Jurisdiction:	Class 1
Before:	Morris C.
Decision:	1. The appeal is upheld; 2. Development consent 09/102 issued by Botany Bay City Council on 25 May 2009 which authorised the demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 76 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate is modified as follows: (a)The approved development is: demolition of the existing dwelling on Lot 1 and residential flat building on Lot 2, resubdivision of Lots 1 and 1, creation of a Right of Way over Lot 1 for vehicular access, the construction of a new 102 unit residential flat complex and basement carparking and a Stage 1 and Stage 2 Construction Certificate; (b)Conditions of the consent as modified are contained in Annexure "A"; 3. The exhibits, other than Exhibits D, H and 2 are returned.
Catchwords:	Modification; whether substantially the same development; residential flat building.
Legislation Cited:	Environmental Planning and Assessment Act 1979; Environmental Planning & Assessment Regulation 2000; Botany Bay Local Environmental Plan 1995; State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development; State Environmental Planning Policy No. 1; SEPP (Building Sustainability Index: BASIX) 2004
Cases Cited:	Marana Developments v Botany Bay City Council [2010] NSWLEC 1237; Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298; North Sydney Council v Michael Standley & Associates Pty Ltd [1998] 97 LGERA 433; Vacik Pty Ltd v Penrith City Council NSWLEC, 24 February 1992 unreported; Zhang v Canterbury City Council [2001] 115 LGERA 373
Texts Cited:	Residential Flat Design Code; City of Botany Bay Development Control Plan No. 35 - Multi Unit Housing and Residential Flat Buildings; City of Botany Bay Development Control Plan - Building Design and Construction; Off- Street Parking Development Control Plan - Botany Council; Development Control Plan No. 32 - Landscape; Energy Efficiency Development Control Plan
Category:	Principal judgment
Parties:	Applicant Marana Developments Pty Ltd Respondent Botany Bay City Council
Representation:	Applicant Mr I Hemmings Respondent Mr T Hale Applicant Reid & Vesely Respondent Houston Dearn O'Connor
File Number(s):	10926 of 2010