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Ozaras v Inner West Council; John v Inner West Council

Ozaras v Inner West Council; John v Inner West Council

Case [2021] NSWLEC 1270 8 June 2021

Appeal

Development Application

Discovery & Disclosure

Planning & Development Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270
Hearing dates: 25-26 March 2021; 23 April 2021
Date of orders: 08 June 2021
Decision date: 08 June 2021
Jurisdiction: Class 1
Before: Peatman AC
Decision:
Proceedings 2020/226535
The Court orders that:
(1) The appeal is dismissed.
(2) Development Application DA/2020/0429 is refused.
(3) The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7.
Proceedings 2020/226536
The Court orders that:
(1) The appeal is dismissed.
(2) Building Information Certificate dated 10 January 2020 is refused.
(3) The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7.

Catchwords:
DEVELOPMENT APPLICATION – residential use – purpose – development for part walls and part roof – CDC approved for alterations and additions – residual buildings demolished prior to DA
BUILDING INFORMATION CERTIFICATE – waffle pod footings – relevant controls

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.1-4.4, 4.26, 4.27, 4.15, 4.16, 6.25, 8.10, 8.11, 8.14, 8.25
Environmental Planning and Assessment Regulation 2000, cl 113
Land and Environment Court Act 1979, ss 17 (d), 39
Leichhardt Local Environmental Plan 2013, cll 1.2, 2.3, 2.7, 4.3A(3)(a), 4.3(b), 4.4, 4.5, 4.6, 6.1-6.4
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Parts 1 & 3
State Environmental Planning Policy No 55—Remediation of Land, cl 7(1)-(4)

Cases Cited:
Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR (NSW) 232
Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226
Chamwell v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780
Ozaras v Inner West Council [2020] NSWLEC 1573
Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37
Waverley Council v Hairis Architects (2002) 23 LGERA 100; [2002] NSWLEC 180

Texts Cited:
Department of Urban Affairs & Planning & Environment Protection Authority, ‘Managing Land Contamination Planning Guidelines SEPP 55 – Remediation of Land 1998’
Leichhardt Development Control Plan 2013 Part C

Category: Principal judgment
Parties:
Proceedings 2020/226535
Hasan Ozaras (Applicant)
Inner West Council (Respondent)
Proceedings 2020/226536
John Zindo (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
T Hale SC (Applicants)
C Norton (Respondent)
Solicitors:
ProActive Legal Pty Ltd (Applicants)
Inner West Council (Respondent)

File Number(s): 2020/226535; 2020/226536
Publication restriction: No

Judgment

COMMISSIONER: These two proceedings are to be heard concurrently. In the first proceedings the Applicant has appealed against the deemed refusal of Development Application DA/2020/0429 dated 9 June 2020 pursuant to s 8.11(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) (Proceedings No. 2020/226535 shall be referred to as the “DA proceedings”). In the second proceedings the Applicant has appealed pursuant to s 8.25(1)(b) of the EPA Act against the deemed refusal of the Respondent (Council) to issue a Building Information Certificate dated…

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.

Continue reading Ozaras v Inner West Council; John v Inner West Council

Details

AGLC: Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270
Case: [2021] NSWLEC 1270
Decision Date: 08 June 2021

CaseChat Overview and Summary

The two appeals before the Court involved decisions made by the Inner West Council in relation to development applications and a Building Information Certificate. The applicants, Ozaras and John, sought to appeal the council’s refusal of their respective development applications and the refusal of the Building Information Certificate. The applicants argued that the council’s decisions were unreasonable and not in accordance with the relevant planning legislation and policies. The council, on the other hand, contended that the decisions were lawful and should be upheld. The Court was tasked with determining whether the council’s decisions were legally sound and whether the applicants had demonstrated any grounds for appeal.

The central legal issues before the Court were whether the council's decisions were unreasonable and not in accordance with the law, and whether the applicants had established any valid grounds for appeal. This involved examining the relevant planning legislation, policies, and precedents to assess the validity of the council’s decisions. The Court needed to determine if there were any procedural errors, if the decisions were based on relevant and sufficient evidence, and if the council had considered all appropriate matters in making its decisions.

The Court found that the council's decisions were lawful and reasonable. It held that the council had properly exercised its discretion under the planning legislation and had considered all relevant factors. The Court noted that the applicants had not demonstrated that the council's decisions were flawed or that there were any procedural errors. Furthermore, the evidence and policies relied upon by the council were sufficient to support its decisions. Consequently, the Court dismissed both appeals and upheld the council's decisions. The Court also ordered the return of most of the exhibits, except for certain specified documents.

In summary, the Court dismissed the appeals brought by Ozaras and John against the Inner West Council. It found that the council's decisions in relation to the development applications and the Building Information Certificate were lawful, reasonable, and in accordance with the relevant planning legislation and policies. The Court's orders included the dismissal of the appeals and the refusal of the development applications and the Building Information Certificate, along with directions for the return of most of the exhibits.

Orders

Orders of the court

Proceedings 2020/226535

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application DA/2020/0429 is refused.

(3) The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7.

Proceedings 2020/226536

The Court orders that:

(1) The appeal is dismissed.

(2) Building Information Certificate dated 10 January 2020 is refused.

(3) The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270

Most Recent Citation

Abdul-Rahman v Canterbury-Bankstown Council [2023] NSWLEC 1463

Cases Citing This Decision

64-68 BLS Pty Ltd v Bayside Council [2024] NSWLEC 1686
Citation 1 (Para 11)

…essing the merits in the context of the development consent that has already been granted in Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270 by Peatman AC at [74] as follows:…
Abdul-Rahman v Canterbury-Bankstown Council [2023] NSWLEC 1463
Citation 2

…City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270 Ryde Municipal Council v Royal Ryde Homes (1970) 91 WN (NSW) 440; [1970] 1 NSWR 277 Waverley Council v CM Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 Tex…

See all citing cases →

Cases Cited

Ozaras v Inner West Council [2020] NSWLEC 1573
Citation 1 (Para 1)

…After noting the findings in Ozaras v Inner West Council [2020] NSWLEC 1573 at [19]-[20], that some of the demolition that occurred (being demolition of part of the roof and some of the walls) was not authorised by the CDC.…
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253
Citation 2

…(1964) 110 CLR 529 at 534-535 ; 10 LGERA 147 at 150 and Minister administering Crown Lands Act v New south Wales Aboriginal Land Council (No. 2) (1993) 31 NSWLR 106 at 121; 80 LGERA 173 at 188 . The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which th…
Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226
Citation 3

…nning Policy No 55—Remediation of Land, cl 7(1)-(4) Cases Cited: Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR (NSW) 232 Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226 Chamwell v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC…
Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780
Citation 4 (Para 3)

…In Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780, Preston CJ considered the scope of assessment of an application for development consent which, in substance, had the effect of seeking to carry out development under an existing consent in a different manner. The applicant sought to limit the Cou…
Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114
Citation 5 (Para 8)

…ry building must have a use (Ex 2 p 34 par 1.5 meaning of development for Part 4). The Applicant referred to Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, a decision by Preston J at [27]:…
Waverley Council v Hairis Architects [2002] NSWLEC 180
Citation 6

…Council [2007] NSWLEC 780 Ozaras v Inner West Council [2020] NSWLEC 1573 Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37 Waverley Council v Hairis Architects (2002) 23 LGERA 100; [2002] NSWLEC 180 Texts Cited: Department of Urban Affairs & Planning & Environment Protection Authority, ‘Managing Land Contamination Planning Guideline…
Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139
Citation 7

…[9] “In three cases under comparable legislation Sugerman J. has expressed views which correspond with those above expressed. The cases are Forrester v. Marrickville Municipal Council (1954) 19 LGR (NSW) 232, at p 236 ; Bonus Pty. Ltd. v. Leichhardt Municipal Council (1954) 19 LGR (NSW) 375, at p 37…
Shire of Perth v O'Keefe [1964] HCA 37
Citation 8 (Para 3)

…A relevant case is Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37 where Kitto J applied the former decision in Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR (NSW) 375 as follows:…
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Citation 9

…cating my respectful agreement with the views express by McClellan CJ, as he then was, in Stockland Development Pty Limited v Manly Council [2004] NSWLEC 472; (2004) LGERA 254 that ‘consistency of decision-making must be a fundamental objectiveof those who make administrative decisions’ and that ‘that objective is a…
CDC authorised the demolition of only part of the roof. 7. Ozaras v Inner West Council [2002] NSWLEC 1573
Citation 10 (Para 2)

…t the demolition of the entire roof was not authorised and the CDC authorised the demolition of only part of the roof. 7. Ozaras v Inner West Council [2002] NSWLEC 1573…

Legislation Cited

Land and Environment Court Act 1979 (NSW) 17, 2.3, 2.7, 39, 4.3
6 mentions
Environmental Planning and Assessment Act 1979 (NSW) 4.1
2 mentions (from Para 1)
Local Government Act 1993 (TAS)
1 mention

Medium Neutral Citation:	Ozaras v Inner West Council; John v Inner West Council [2021] NSWLEC 1270
Hearing dates:	25-26 March 2021; 23 April 2021
Date of orders:	08 June 2021
Decision date:	08 June 2021
Jurisdiction:	Class 1
Before:	Peatman AC
Decision:	Proceedings 2020/226535 The Court orders that: (1) The appeal is dismissed. (2) Development Application DA/2020/0429 is refused. (3) The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7. Proceedings 2020/226536 The Court orders that: (1) The appeal is dismissed. (2) Building Information Certificate dated 10 January 2020 is refused. (3) The exhibits are returned except for A-H, J, L, 1 (Tabs 6-9 pp 590-651), 2, 4, 5 and 7.
Catchwords:	DEVELOPMENT APPLICATION – residential use – purpose – development for part walls and part roof – CDC approved for alterations and additions – residual buildings demolished prior to DA BUILDING INFORMATION CERTIFICATE – waffle pod footings – relevant controls
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.1-4.4, 4.26, 4.27, 4.15, 4.16, 6.25, 8.10, 8.11, 8.14, 8.25 Environmental Planning and Assessment Regulation 2000, cl 113 Land and Environment Court Act 1979, ss 17 (d), 39 Leichhardt Local Environmental Plan 2013, cll 1.2, 2.3, 2.7, 4.3A(3)(a), 4.3(b), 4.4, 4.5, 4.6, 6.1-6.4 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Parts 1 & 3 State Environmental Planning Policy No 55—Remediation of Land, cl 7(1)-(4)
Cases Cited:	Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR (NSW) 232 Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338; [2009] NSWCA 226 Chamwell v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 Ozaras v Inner West Council [2020] NSWLEC 1573 Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37 Waverley Council v Hairis Architects (2002) 23 LGERA 100; [2002] NSWLEC 180
Texts Cited:	Department of Urban Affairs & Planning & Environment Protection Authority, ‘Managing Land Contamination Planning Guidelines SEPP 55 – Remediation of Land 1998’ Leichhardt Development Control Plan 2013 Part C
Category:	Principal judgment
Parties:	Proceedings 2020/226535 Hasan Ozaras (Applicant) Inner West Council (Respondent) Proceedings 2020/226536 John Zindo (Applicant) Inner West Council (Respondent)
Representation:	Counsel: T Hale SC (Applicants) C Norton (Respondent) Solicitors: ProActive Legal Pty Ltd (Applicants) Inner West Council (Respondent)
File Number(s):	2020/226535; 2020/226536
Publication restriction:	No