Marana Developments v Botany Bay City Council - [2010] NSWLEC 1237

Land and Environment Court

of New South Wales

CITATION: Marana Developments v Botany Bay City Council [2010] NSWLEC 1237
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Marana Developments Pty Limited
RESPONDENT
Botany Bay City Council

FILE NUMBER(S): 11009 of 2009

CORAM: Murrell C - Ritchie AC

KEY ISSUES: DEEMED REFUSAL - DEVELOPMENT APPLICATION :- Strata subdivision of residential flat building and Torrens title subdivision of part of land; orderly and economic development.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Botany Local Environmental Plan 1995
Botany Bay Planning Strategy 2031

CASES CITED: Carstens v Pittwater Council [1999] NSWLEC 249 111 LGER
BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399

DATES OF HEARING: 2 June 2010 and 3 June 2010

DATE OF JUDGMENT:
3 September 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr I Hemmings (barrister)
SOLICITOR
Reid & Vesley
RESPONDENT
Mr T Hale (senior counsel)
SOLICITOR
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C
Ritchie AC

3 September 2010

11009 of 2009 Marana Developments Pty Limited v Botany Bay City Council

JUDGMENT

1 The Applicant in these proceedings is seeking to Strata Subdivide the residential flat building known as 24 Rhodes St Hillsdale and subdivide the existing land into two lots. In addition to the subdivisions it is proposed to convert the existing common laundry on the ground floor into a one bedroom unit and the existing driveway under croft area into a one bedroom unit. This will bring the total number of units in the strata to 34. The entry to the residential flat building is to be relocated to be from Flack Avenue. It is also proposed the building be refurbished.

2 Proposed refurbishment works to upgrade the building are as follows: provide new internal laundry facilities, kitchens, bathrooms, carpeting, painting, blinds and doors to each unit; redesign the car parking area to accommodate 34 resident spaces and 4 visitor spaces; new garbage and recycling bin storage area; letter box facilities and street numbering; existing face brickwork to be painted; and new landscaping for the site.

Site and Environs

3 Figure 1 is an extract from the LEP zoning map and this shows the subject site in its context. The site has a total area of 5636 square metres. Currently erected on the subject site is a dwelling house and a “U shaped” residential flat building containing 32 units and open car parking at ground level. The residential flat building was constructed in the 1960’s. Current vehicular access to the site is via Flack Avenue and Rhodes St.

4 By way of background on 25^th May 2009 the Council approved demolition of the existing structures and the construction of a new 76 unit residential flat complex and basement car parking and a Stage 1 and Stage 2 Construction Certificate.

5 To the immediate east of the site is Matraville Public School, to the north of 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: [2010] NSWLEC 1237
Decision Date: 3 September 2010

CaseChat Overview and Summary

Marana Developments Pty Limited (the Applicant) sought approval from Botany Bay City Council (the Council) for a strata subdivision of a residential flat building at 24 Rhodes Street, Hillsdale, and for a subdivision of the land on which the building is located. The Council refused to grant consent for the strata subdivision and the land subdivision. The Applicant appealed the refusals to the Land and Environment Court of New South Wales (the Court). The Applicant argued that the strata subdivision and the land subdivision should be approved because the proposed development would improve the quality of the residential amenity, and provide a greater return to the current property owner than redevelopment for 76 units, which was approved in February 2009. The Council argued that the strata subdivision and the land subdivision should not be approved because the proposal would limit the potential for high-quality residential development on the site, and would have an adverse impact on the residential amenity of the occupants by preserving a building which contained units which did not comply with current standards. The Court found that the proposed development would not result in the orderly and economic use of the land, because once subdivided, there would be a number of owners and the practical consequences are that it would be difficult to redevelop. The Court held that the strata subdivision and the land subdivision should not be approved because the proposal was inconsistent with the objects of the Environmental Planning and Assessment Act 1979 (the Act). The Court held that the proposal would not only be inconsistent, but antipathetic to the object of the Act in s 5(a)(ii) “the promotion and co-ordination of the for orderly and economic use and development of the land.” Furthermore, the Court held that the broader public interest would not be served by the strata title and land subdivisions. The Court allowed the appeal in respect of the property known as 24 Rhodes Street Hillsdale in part only. The Court granted approval for alterations to the Residential Flat Building to provide an additional two units, refurbishment, parking and landscaping, subject to the conditions of consent contained in Annexure “A”. The Court refused consent for the strata title subdivision and Torrens title subdivision.

Orders