Petro v Blacktown City Council - [2008] NSWLEC 1299

Land and Environment Court

of New South Wales

CITATION: Petro v Blacktown City Council [2008] NSWLEC 1299

PARTIES:
Applicant:
Cousta Petro
Respondent:
Blacktown City Council

FILE NUMBER(S): 10900 of 2007

CORAM: Roseth SC

KEY ISSUES: Development Application :- isolation of adjoining property

CASES CITED: Melissa Grech v Auburn Counci [2004] NSWLEC 40

DATES OF HEARING: 17 July 2008

DATE OF JUDGMENT:
24 July 2008

LEGAL REPRESENTATIVES: Applicant:
Mr M Vassili, solicitor of Michael Vassili Solicitors
Respondent:
Mr C Drury, solicitor of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

24 July 2008

10900 of 2007 Cousta Petro v Blacktown City Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal by Blacktown City Council (the council) of a development application to erect a two-storey commercial building on lot 2 DP 851609 Station Street, Rooty Hill.

The site

2 The site is 628m2 in area and being used as a commuter car park. It is on the fringe of the Rooty Hill town centre. The eastern boundary is to Station Street. The southeast boundary is a common boundary with lot 1 DP 851609 (Lot 1). The southwest boundary is to Weston Lane. The northwest boundary is a common boundary with lot 2 DP 717930, on which stands a motel.

The proposal

3 The applicant proposes to erect a two-storey commercial building for use as a medical centre and music centre on the site.

Statutory controls

4 The most relevant statute is the Environmental Planning and Assessment Act 1979, which lists under s5(a)(ii), as an object of the Act:

the promotion and coordination of the orderly and economic use and development of land.

5 Development Control Plan 2006 (DCP 2006) requires, among other things, vehicles to enter and leave sites in a forward direction (see cl 5.42). The DCP also discourages stack parking.

Matters in contention

6 The council contends that the proposal would result in the “sterilisation” of the adjoining lot 1 DP 851609 (Lot 1). In order to decide that contention, the Court must come to a view on two questions:

· Is development of Lot 1 by itself feasible?

· If it is not, has the applicant demonstrated that it cannot purchase Lot 1 on reasonable terms?

7 In addition to the council’s contention, Mr Paul Poinkin, who owns the adjoining motel, has raised objections to the proposal. The council’s position is that those objections do not justify refusal of the application.

Is development of Lot 1 by itself feasible?

8 The council’s planning expert was Mr Glen Alp, a senior planner with the council. The applicant’s expert was Mr Damien Briggs, a planner and solicitor. They agreed that the development of Lot 1 by itself “would not be impossible, however it would be difficult”. Mr Briggs suggested that development could be in the form of a single-storey building with four cars being stack-parked in two rows and accessible from Weston Lane. He agreed that the…

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: [2008] NSWLEC 1299
Decision Date: 24 July 2008

CaseChat Overview and Summary

In the case of Petro v Blacktown City Council, the applicant, Cousta Petro, appealed against the council's deemed refusal of a development application to construct a two-storey commercial building on a 628m2 lot at Rooty Hill. The building was intended for use as a medical centre and music centre. The key issue before the Land and Environment Court was whether the development would result in the sterilisation of an adjoining lot, Lot 1 DP 851609, and if the applicant had made a reasonable attempt to purchase Lot 1.

The court found that the development of Lot 1 by itself was not feasible, as it would be difficult and would not fully utilise the site's potential. Additionally, the applicant had not demonstrated that they could not purchase Lot 1 on reasonable terms. The applicant's failure to provide an independent valuation of Lot 1 and their delay in making a written offer meant that the court could not determine if the offer of $170,000 was reasonable. The court held that negotiations should have commenced after the council's Statement of Contentions in November 2007 or immediately after the conciliation conference in January 2008, when the applicant was directed to serve its reports.

As a result, the appeal was dismissed, and the development application was determined by refusal. However, the court noted that the applicant could make an attempt to purchase Lot 1 and resubmit the application if successful. The court also returned the exhibits to the parties involved.

In summary, the Land and Environment Court found that the applicant had not demonstrated that they could not purchase the adjoining lot on reasonable terms, and the development would result in the sterilisation of the adjoining lot. The appeal was dismissed, and the development application was determined by refusal.

Orders