Morad v Inner West Council - [2019] NSWLEC 1005

Land and Environment Court

New South Wales

Medium Neutral Citation: Morad v Inner West Council [2019] NSWLEC 1005
Hearing dates: 10-11 December 2018
Date of orders: 31 January 2019
Decision date: 31 January 2019
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development Application No. DA 2017/557 for alterations and additions to the existing dwelling and boathouse at 14 Clifton Street, Balmain East is refused
(3) The exhibits, other than Exhibits A, B, K, 1 and 7 are returned.

Catchwords: DEVELOPMENT APPLICATION - heritage item; heritage significance; stormwater
Legislation Cited: Environmental Planning and Assessment Act 1979
Leichhardt Local Environment Plan 2013
State Environmental Planning Policy No.55
State Environmental Planning Policy (Coastal Management) 2018
Cases Cited: Initial Action v Woollahra Municipal Council [2018] NSWLEC 118
Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096
Texts Cited: National Construction Code
Category: Principal judgment
Parties: Mohammad Morad (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
M Seymour (Applicant)
Solicitors:
Dentons (Applicant)
M Bonanno, Inner West Council (Respondent)

File Number(s): 2018/00012287
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2017/557 for alterations and additions to the existing dwelling and boathouse at 14 Clifton Street, Balmain east (the site) by Inner West Council (the Council).
Mr Mohammed Morad is the owner of the site which comprises Lot 1 DP 1100371; Lot 1 DP 68016; Lot 2 DP 66363, and Lease Lot Lease Plan LH2020 in DP 441489 with a site area of 818 square metres. The site contains a primary dwelling house, a separate two-storey boathouse and slipway which is described as Heritage Item ‘I363’ in Schedule 5 of the Leichhardt Local Environment Plan 2013 (LLEP).
The site falls steeply to meet the foreshore of Sydney Harbour, and lies within a heritage conservation area.

The proposal

The applicant seeks approval of amalgamation of the four lots into one lot for the purposes of completing works that comprise;

Demolition of the unsympathetic western wing to the boathouse, BBQ shelter and extensions to the ground floor and first floor balcony of the main dwelling, and;

Demolition and rebuilding of the western portion of the main dwelling fronting Clifton Street to achieve flood safety and vehicular access;

Restoration and reconstruction of original elements in traditional materials;

External landscape works which include the removal of existing trees on the site, and the construction of a swimming pool.

Issues

Originally, the Council had raised contentions in its Amended Statement of Facts and Contentions (Exhibit 1) related to insufficient information to enable a complete assessment of the application in respect of;

No information submitted to address State Environmental Planning Policy (Affordable Rental Housing) 2009. The Council subsequently withdrew this contention as no longer relevant.

The use of the affected window at 11 Gallimore Avenue, Balmain East. The Council did not press this contention.

Assessment by the Applicant…

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 1005
Decision Date: 31 January 2019

CaseChat Overview and Summary

The appeal was brought by Mr Morad against a decision of the Inner West Council to refuse development consent for proposed alterations and additions to his property located at 14 Clifton Street, Balmain East. The refusal was pursuant to the Local Environment Plan 2012. The appeal was heard by the Land and Environment Court of New South Wales.

The primary legal issue before the Court was whether the refusal of development consent by the Council was unlawful. The Court had to consider whether the Council's decision was based on a proper application of the relevant planning legislation and policies, and whether the decision was supported by sufficient evidence. The Court also had to consider whether the proposed development was consistent with the relevant planning instruments and whether it would have any adverse impact on the surrounding environment.

After reviewing the evidence and submissions from both parties, the Court found that the Council's decision to refuse development consent was lawful. The Court found that the proposed development did not comply with the relevant planning policies and that the development would have an adverse impact on the surrounding environment. The Court also found that the Council's decision was supported by sufficient evidence and that the Council had considered all relevant matters in reaching its decision. Accordingly, the appeal was dismissed, and the development application was refused.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application No. DA 2017/557 for alterations and additions to the existing dwelling and boathouse at 14 Clifton Street, Balmain East is refused

(3) The exhibits, other than Exhibits A, B, K, 1 and 7 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:	Morad v Inner West Council [2019] NSWLEC 1005
Hearing dates:	10-11 December 2018
Date of orders:	31 January 2019
Decision date:	31 January 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development Application No. DA 2017/557 for alterations and additions to the existing dwelling and boathouse at 14 Clifton Street, Balmain East is refused (3) The exhibits, other than Exhibits A, B, K, 1 and 7 are returned.
Catchwords:	DEVELOPMENT APPLICATION - heritage item; heritage significance; stormwater
Legislation Cited:	Environmental Planning and Assessment Act 1979 Leichhardt Local Environment Plan 2013 State Environmental Planning Policy No.55 State Environmental Planning Policy (Coastal Management) 2018
Cases Cited:	Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 Vigor Master Pty Limited v Warringah Council [2011] NSWLEC 1096
Texts Cited:	National Construction Code
Category:	Principal judgment
Parties:	Mohammad Morad (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Seymour (Applicant) Solicitors: Dentons (Applicant) M Bonanno, Inner West Council (Respondent)
File Number(s):	2018/00012287
Publication restriction:	No