Matthews v Strathfield Municipal Council - [2019] NSWLEC 1141

Land and Environment Court

New South Wales

Medium Neutral Citation: Matthews v Strathfield Municipal Council [2019] NSWLEC 1141
Hearing dates: 19 March 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Jurisdiction: Class 1
Before: Dickson C
Decision:
The orders of the Court are:
(1)   The applicant is granted leave to rely on amended plans;
(2) The objection pursuant to cl 4.6 of the Strathfield Local Environmental Plan 2012 in respect of the minimum lot size standard is not sustained;
(3)   The appeal is dismissed;
(4)   Development application DA 2017/132 for Torrens title subdivision of 26 Dean Street, South Strathfield is refused;
(5)   The exhibits are returned with the exception of Exhibits A, B, H and 4.

Catchwords: DEVELOPMENT APPLICATION: Torrens Title subdivision of existing land of into two allotments –variation to minimum lot size standard – whether cl 4.6 request should be upheld – is the request reasonable and well founded – appeal dismissed
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Strathfield Local Environmental Plan 2012
Cases Cited: Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190
Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248
Initial Action v Woollahra Municipal Council [2018] NSWLEC 118
Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited: Strathfield Development Control Plan 2005
Strathfield Direct Development Contributions Plan 2010-2030
Category: Principal judgment
Parties: Eric Matthews (First Applicant)
Sharmistha Singh (Second Applicant)
Strathfield Municipal Council (Respondent)
Representation:
Counsel:
Dr J Smith (Applicants)
Solicitors:
Shore Stack Lawyers (Applicants)
K Law, Matthews Folbigg Pty Ltd (Respondent)

File Number(s): 2018/96830
Publication restriction: No

Judgment

COMMISSIONER: The applicants lodged Development Application No. 2017/132 on 7 November 2017. They seek consent for the Torrens Title subdivision of an existing residential lot into two separate lots. The Council refused consent on 2 November 2018 and the applicants are appealing that determination in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act).
The development is proposed at 26 Dean Street, Strathfield South. The existing lot has an area of 579.5m². The application seeks approval for the subdivision of the existing lot into two separate Torrens title allotments as follows:

Lot 1 (frontage to Dean Street): 235.475m²;

Lot 2 (frontage to Everitt Place): 344.025m².

The appeal was subject to mandatory conciliation under s 34 of the Land and Environment Court Act 1979 (LEC Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4) of the LEC Act and the proceedings were listed for hearing.
The Council maintains that the proposed development should be refused for the following reasons:

that the requested variation to the minimum lot size is unreasonable;

the proposed lot size variation is inconsistent with the objectives of the minimum lot size standard;

the variation request does not adequately demonstrate that there are sufficient environmental planning grounds to vary the minimum lot…

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 1141
Decision Date: 05 April 2019

CaseChat Overview and Summary

Matthews brought an application against Strathfield Municipal Council in relation to the approval of a development application for the Torrens title subdivision of 26 Dean Street, South Strathfield. The dispute primarily centred around the objection raised by the Council regarding the minimum lot size standard. The Land and Environment Court of New South Wales was tasked with determining the validity of the objection and the overall approval of the development application. The court was required to decide whether the applicant could rely on amended plans, if the objection was valid, and whether the appeal should be upheld. Additionally, the court had to determine the fate of the development application itself.

In assessing the objections and the appeal, the court first considered whether the applicant could rely on the amended plans. It was found that the applicant was granted leave to do so. The court then examined the objection raised by the Council, specifically focusing on the minimum lot size standard. After careful deliberation, the court determined that the objection was not sustained. Furthermore, the court considered the appeal brought forth by the applicant, concluding that it should be dismissed. Based on these findings, the court ultimately decided to refuse the development application.

Consequently, the court issued several orders in its decision. Firstly, the applicant was granted leave to rely on the amended plans. Secondly, the objection raised by the Council regarding the minimum lot size standard was not sustained. Thirdly, the appeal brought by the applicant was dismissed. Fourthly, the development application for the Torrens title subdivision of 26 Dean Street, South Strathfield was refused. Finally, the exhibits were returned, with the exception of Exhibits A, B, H, and 4.

Orders

Orders of the court

The orders of the Court are:

(1) The applicant is granted leave to rely on amended plans;

(2) The objection pursuant to cl 4.6 of the Strathfield Local Environmental Plan 2012 in respect of the minimum lot size standard is not sustained;

(3) The appeal is dismissed;

(4) Development application DA 2017/132 for Torrens title subdivision of 26 Dean Street, South Strathfield is refused;

(5) The exhibits are returned with the exception of Exhibits A, B, H and 4.

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:	Matthews v Strathfield Municipal Council [2019] NSWLEC 1141
Hearing dates:	19 March 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1) The applicant is granted leave to rely on amended plans; (2) The objection pursuant to cl 4.6 of the Strathfield Local Environmental Plan 2012 in respect of the minimum lot size standard is not sustained; (3) The appeal is dismissed; (4) Development application DA 2017/132 for Torrens title subdivision of 26 Dean Street, South Strathfield is refused; (5) The exhibits are returned with the exception of Exhibits A, B, H and 4.
Catchwords:	DEVELOPMENT APPLICATION: Torrens Title subdivision of existing land of into two allotments –variation to minimum lot size standard – whether cl 4.6 request should be upheld – is the request reasonable and well founded – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Strathfield Local Environmental Plan 2012
Cases Cited:	Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Strathfield Development Control Plan 2005 Strathfield Direct Development Contributions Plan 2010-2030
Category:	Principal judgment
Parties:	Eric Matthews (First Applicant) Sharmistha Singh (Second Applicant) Strathfield Municipal Council (Respondent)
Representation:	Counsel: Dr J Smith (Applicants) Solicitors: Shore Stack Lawyers (Applicants) K Law, Matthews Folbigg Pty Ltd (Respondent)
File Number(s):	2018/96830
Publication restriction:	No