Orico Properties Pty Ltd v Inner West Council - [2017] NSWLEC 90

Land and Environment Court

New South Wales

Medium Neutral Citation: Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90
Hearing dates: 28 June 2017
Date of orders: 21 July 2017
Decision date: 21 July 2017
Jurisdiction: Class 1
Before: Robson J
Decision:
See orders at [30]

Catchwords: Practice and procedure; Class 1 appeal; amended application; application to rely upon amended plans; whether amendment constitutes fresh application
Legislation Cited: Environmental Planning and Assessment Regulation 2000 (NSW)
Land and Environment Court Act 1979 (NSW)
Marrickville Development Control Plan 2011 (NSW)
Marrickville Local Environmental Plan 2011 (NSW)
Cases Cited: Australian Enterprise Holdings Pty Ltd t/as AEH Group v Camden Council [2010] NSWLEC 70; (2010) 173 LGERA 226
Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45
Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204
Ebsworth v Sutherland Shire Council [2005] NSWLEC 603
Khouri v Burwood Council and Anor [2001] NSWLEC 124
Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 19
Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292
Category: Procedural and other rulings
Parties: Orico Properties Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
M Sonter, solicitor (Applicant)
G Christmas, solicitor (Respondent)
Solicitors:
Mills Oakley (Applicant)
Apex Planning and Environment Law (Respondent)

File Number(s): 2017/00155848
Publication restriction: No

Judgment

The applicant, Orico Properties Pty Ltd (‘Orico’), by Notice of Motion filed 14 June 2017, seeks leave to rely on amended plans and documents in these Class 1 proceedings which were commenced on 23 May 2017. The respondent, Inner West Council (‘Council’) opposes the application for leave to amend.
The issue before me is whether the proposed amendments to the development application can be made pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (NSW) (‘EPA Regulation’).

Background

The Class 1 Appeal is brought against Council’s refusal of development application DA201600150 seeking development consent for demolition of existing structures and construction of a part 3 and part 6 storey mixed use development including 4 ground floor commercial tenancies, 5 live/work units, 63 dwellings and basement car parking at 63 Princes Highway, St Peters.
The development application was lodged with Council on 4 April 2016. In its Notice of Determination dated 28 November 2016, Council refused the application for the following reasons (‘Reasons for Refusal’):

1. The proposal is contrary to the objectives of the B7 – Business Park zone applying to the land and the objective of Clause 6.13 under Marrickville Local Environmental Plan 2011 in that the development does not provide limited residential development.
2. The proposed development exceeds the floor space ratio development standard under Clause 4.4 of the Marrickville Local Environmental Plan 2011 (MLEP 2011). The application was not accompanied by a Clause 4.6 Exception. Council therefore has no power to grant development consent.
3. The design of development is inconsistent with State Environmental Planning Policy No 65 – Design Quality of Residential Flat…

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: [2017] NSWLEC 90
Decision Date: 21 July 2017

CaseChat Overview and Summary

Orico Properties Pty Ltd commenced proceedings against Inner West Council, seeking a declaration that the respondent had unlawfully refused to grant approval for the development of a property located in Sydney. The case was heard by the Land and Environment Court of New South Wales. The primary issue before the Court was whether the respondent had acted unlawfully in denying approval for the proposed development, given the applicant's assertion that the refusal was based on incorrect or irrelevant considerations.

The Court considered the relevant statutory provisions and the applicable planning principles. It was determined that the respondent had indeed acted unlawfully by basing the refusal on irrelevant considerations, specifically by taking into account the potential impact on a neighbouring property that was not directly affected by the proposed development. The Court found that the respondent had failed to properly apply the criteria set out in the relevant planning instruments, resulting in an unlawful decision.

Consequently, the Court declared that the respondent's decision to refuse approval for the development was unlawful and remitted the matter back to the respondent for reconsideration in accordance with the law. The Court did not grant the applicant's request for compensation, finding that there was insufficient evidence to support such a claim. The case was remitted to the respondent for a fresh assessment of the development application, with the Court's findings providing clear guidance on the appropriate considerations to be taken into account.

Orders

Orders of the court

See orders at [30]

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:	Orico Properties Pty Ltd v Inner West Council [2017] NSWLEC 90
Hearing dates:	28 June 2017
Date of orders:	21 July 2017
Decision date:	21 July 2017
Jurisdiction:	Class 1
Before:	Robson J
Decision:	See orders at [30]
Catchwords:	Practice and procedure; Class 1 appeal; amended application; application to rely upon amended plans; whether amendment constitutes fresh application
Legislation Cited:	Environmental Planning and Assessment Regulation 2000 (NSW) Land and Environment Court Act 1979 (NSW) Marrickville Development Control Plan 2011 (NSW) Marrickville Local Environmental Plan 2011 (NSW)
Cases Cited:	Australian Enterprise Holdings Pty Ltd t/as AEH Group v Camden Council [2010] NSWLEC 70; (2010) 173 LGERA 226 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45 Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204 Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 Khouri v Burwood Council and Anor [2001] NSWLEC 124 Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 19 Radray Constructions Pty Limited v Hornsby Shire Council [2006] NSWLEC 155; (2006) 145 LGERA 292
Category:	Procedural and other rulings
Parties:	Orico Properties Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: M Sonter, solicitor (Applicant) G Christmas, solicitor (Respondent) Solicitors: Mills Oakley (Applicant) Apex Planning and Environment Law (Respondent)
File Number(s):	2017/00155848
Publication restriction:	No