Parisi v Inner West Council - [2020] NSWLEC 1601

Land and Environment Court

New South Wales

Medium Neutral Citation: Parisi v Inner West Council [2020] NSWLEC 1601
Hearing dates: 13, 14, 16 and 23 October 2020, and 18 November 2020
Date of orders: 3 December 2020
Decision date: 03 December 2020
Jurisdiction: Class 1
Before: Peatman AC
Decision:
The Court orders:
(1) Leave granted to the Applicant to rely upon amended plans dated 14 October 2020.
(2) The appeal is upheld.
(3) Development consent is granted for Development Application number DA/2020/0286 for demolition of the existing dwelling, subdivision of the site and construction of 2, two-storey townhouses with on-site parking on land identified as Lot 8 in Deposited Plan 11121 and known as 2 Caroline Street, Balmain, in accordance with the condition included at Annexure ‘A’.

Catchwords:
DEVELOPMENT – heritage (cultural and cultural/archaeology) – overshadowing – views – privacy – car parking – setback – FSR

Legislation Cited:
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Heritage Act 1977
Land and Environment Court Act 1979
Leichhardt Local Environmental Plan 2013
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy No 55 – Remediation of Land
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:
The Benevolent Society v Waverley Council [2010] NSWLEC 1082
Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:
Australian Standard AS/NZS 2890.1:2004 Parking facilities Part 1: Off-street car parking
Leichhardt Development Control Plan 2013
Land and Environment Court of NSW, Covid-19 Pandemic Arrangements Policy (July 2020)

Category: Principal judgment
Parties: Gary Gaetano Anthony Parisi (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
S Griffiths (Solicitor) (Applicant)
N Eastman (Respondent)
Solicitors:
Bartier Perry Lawyers (Applicant)
Inner West Council
(Respondent)

File Number(s): 2020/177043
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the deemed refusal of development application DA/2020/0286 (the DA) by the respondent pursuant to s. 8.7 (1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The DA is located at 2 Caroline Street Balmain NSW 2041 being the whole of the land in Lot 8 Deposited Plan 11121 (the Site). The Site has a 12.192m frontage to Caroline Street at its north east elevation, a lot depth of 34.74 at both north west and south east side boundaries, and a lot width of 12.192m at its rear south west boundary.
The DA is for the demolition of an existing dwelling, subdivision of the site from 1 lot into 2 lots, and planning approval for 2 two-storey townhouses with off street parking.

Background and Class 1 Appeal

The proposal is located at 2 Caroline Street, Balmain. Caroline Street is a short cross-street connecting Waterview Street and Colgate Avenue, which run in a north-easterly direction from Queens Place and Darling Street respectively to Mort Bay.
The site contains a single-storey clad-house with a hipped tile roof built in the late 1950s. A timber front fence is built on a low…

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.

Keep reading for free

Create a free CaseChat account to read Parisi v Inner West Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWLEC 1601
Decision Date: 03 December 2020

CaseChat Overview and Summary

The case of Parisi v Inner West Council involved the applicant, Mr. Parisi, who sought to appeal the council's decision to refuse development consent for a project on his property. The Inner West Council opposed the appeal. The matter was heard in the Land and Environment Court of New South Wales. Mr. Parisi's application for development consent related to the demolition of an existing dwelling, subdivision of the site, and the construction of two two-storey townhouses with on-site parking. The Council had previously refused the application, citing concerns about the impact on the surrounding environment and heritage values.

The court needed to determine whether the council's decision was lawful and whether the applicant's appeal should be upheld. Key issues included the adequacy of the applicant's plans and the potential impact on the local environment and heritage. The court had to consider whether the proposed development was consistent with the relevant planning policies and whether the applicant had addressed the council's concerns adequately.

The court found that the council's decision was flawed as it had not properly considered the amended plans submitted by the applicant. The court also determined that the proposed development was consistent with the planning policies and would not significantly harm the environment or heritage values. The amended plans provided sufficient detail to address the council's concerns. As a result, the court granted leave for the applicant to rely on the amended plans and upheld the appeal. The court granted development consent for the proposed project with specific conditions attached.

Orders

Orders of the court

The Court orders:

(1) Leave granted to the Applicant to rely upon amended plans dated 14 October 2020.

(2) The appeal is upheld.

(3) Development consent is granted for Development Application number DA/2020/0286 for demolition of the existing dwelling, subdivision of the site and construction of 2, two-storey townhouses with on-site parking on land identified as Lot 8 in Deposited Plan 11121 and known as 2 Caroline Street, Balmain, in accordance with the condition included at Annexure ‘A’.

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:	Parisi v Inner West Council [2020] NSWLEC 1601
Hearing dates:	13, 14, 16 and 23 October 2020, and 18 November 2020
Date of orders:	3 December 2020
Decision date:	03 December 2020
Jurisdiction:	Class 1
Before:	Peatman AC
Decision:	The Court orders: (1) Leave granted to the Applicant to rely upon amended plans dated 14 October 2020. (2) The appeal is upheld. (3) Development consent is granted for Development Application number DA/2020/0286 for demolition of the existing dwelling, subdivision of the site and construction of 2, two-storey townhouses with on-site parking on land identified as Lot 8 in Deposited Plan 11121 and known as 2 Caroline Street, Balmain, in accordance with the condition included at Annexure ‘A’.
Catchwords:	DEVELOPMENT – heritage (cultural and cultural/archaeology) – overshadowing – views – privacy – car parking – setback – FSR
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Heritage Act 1977 Land and Environment Court Act 1979 Leichhardt Local Environmental Plan 2013 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Cases Cited:	The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140
Texts Cited:	Australian Standard AS/NZS 2890.1:2004 Parking facilities Part 1: Off-street car parking Leichhardt Development Control Plan 2013 Land and Environment Court of NSW, Covid-19 Pandemic Arrangements Policy (July 2020)
Category:	Principal judgment
Parties:	Gary Gaetano Anthony Parisi (Applicant) Inner West Council (Respondent)
Representation:	Counsel: S Griffiths (Solicitor) (Applicant) N Eastman (Respondent) Solicitors: Bartier Perry Lawyers (Applicant) Inner West Council (Respondent)
File Number(s):	2020/177043
Publication restriction:	No