Petrovski v Inner West Council - [2017] NSWLEC 1287

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Petrovski v Inner West Council [2017] NSWLEC 1287
Hearing dates: 8 May 2017
Date of orders: 19 June 2017
Decision date: 07 June 2017
Jurisdiction: Class 1
Before: Morris C
Decision:
See para 69

Catchwords: DEVELOPMENT APPLICATION: alteration and additions to existing boarding house, whether alterations to existing rooms are required; compliance with controls in development control plan; whether sufficient amenity and adequate car parking is provided; whether an overdevelopment of the site and orderly and economic use of the land.
Legislation Cited: Environmental Planning and Assessment Act 1979; Marrickville Local Environmental Plan 2011; State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited: Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191
Texts Cited: Marrickville Development Control Plan 2011
Category: Principal judgment
Parties:
Gligor Petrovski (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
Mr A Pickles SC (Applicant)
Solicitors:
Planning Law Solutions (Applicant)
Mr S Kondilios
Hall & Wilcox Lawyers (Respondent)

File Number(s): 281762/2016

Judgment

Mr Petrovski owns as existing boarding house at 115 Livingston Road, Marrickville and authorised lodgement of development application DA201500545 with Inner West Council seeking consent for alterations and additions to that boarding house to increase the number of boarding rooms from 22 to 31 and provide additional boarding house facilities within the premises.
That application was refused consent on 4 April 2016 and an application for review of the determination was lodged with the council pursuant to the provisions of s82A of the Environmental Planning and Assessment Act 1979 (EP&AAct) accompanied by amended plans that attempted to address the council’s original reasons for refusal of consent.
The council also refused the review request and Mr Petrovski is appealing that determination.

The site and its context

The site is located on the western side of Livingstone Road with a 10.26m frontage to that road, a depth of 48.77m and site area of 512m². It has an access handle running along the western rear boundary that connects to George Street and provide vehicular access to the site and also to adjoining properties to the north.
Existing improvements include a two-storey terrace house converted to a 22 room boarding house in accordance with previous approvals issued by the Council. The site does not contain any existing vegetation of significant.
The land uses surrounding the site to the north, south and west comprise a mixed scale of residential land uses. A small scale strip of neighbourhood business shops are situated opposite the site on the eastern side of Livingstone Road.

Background and the proposal

According to the evidence, the Council issued development consent No. 2/1991 on 23 December 1970 for 18 lodger rooms and owner's quarters. Building application No. 256/84 dated 5 July 1984, approved alterations and additions to an existing lodging house which limited the number of occupants to 24 persons. Determination No. 497/92, dated 11th February 1993, approved an application to relocate internal wall to the storeroom of the boarding house as to…

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 1287
Decision Date: 07 June 2017

CaseChat Overview and Summary

The case of Petrovski v Inner West Council was heard by the Supreme Court of New South Wales. The matter concerned a dispute between a property owner and a local council over a planning decision. The plaintiff, Mr Petrovski, sought judicial review of a decision by the Inner West Council to refuse a development application for a proposed apartment building. The primary legal issue before the court was whether the council's decision was lawful and rational, and whether it was based on relevant considerations. The court also had to determine whether the council had properly exercised its discretion under the relevant planning legislation.

The court considered the evidence and submissions from both parties, focusing on whether the council's decision was based on irrelevant considerations, failed to take into account relevant considerations, or was otherwise irrational. The plaintiff argued that the council's decision was unreasonable and had not properly considered the benefits of the proposed development. The council, on the other hand, maintained that the decision was lawful and properly exercised their discretion under the legislation. The court assessed the council's decision against the criteria set out in the relevant planning legislation and the applicable principles of administrative law.

In delivering the judgment, the court found that the council's decision was not based on irrelevant considerations nor did it fail to take into account relevant considerations. The court held that the council had properly exercised its discretion and that the decision was rational and lawful. The court rejected the plaintiff's argument that the council had not properly considered the benefits of the proposed development, finding that the council had given sufficient weight to the relevant factors. The court held that the council's decision was not so unreasonable as to be unjust and therefore upheld the decision.

The court ordered that the plaintiff's application for judicial review be dismissed and that the costs of the proceedings be awarded to the defendant. The court also noted that the plaintiff had the right to appeal the decision to the Court of Appeal within 28 days of the judgment.

Orders

Orders of the court

See para 69

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:	Petrovski v Inner West Council [2017] NSWLEC 1287
Hearing dates:	8 May 2017
Date of orders:	19 June 2017
Decision date:	07 June 2017
Jurisdiction:	Class 1
Before:	Morris C
Decision:	See para 69
Catchwords:	DEVELOPMENT APPLICATION: alteration and additions to existing boarding house, whether alterations to existing rooms are required; compliance with controls in development control plan; whether sufficient amenity and adequate car parking is provided; whether an overdevelopment of the site and orderly and economic use of the land.
Legislation Cited:	Environmental Planning and Assessment Act 1979; Marrickville Local Environmental Plan 2011; State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191
Texts Cited:	Marrickville Development Control Plan 2011
Category:	Principal judgment
Parties:	Gligor Petrovski (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr A Pickles SC (Applicant) Solicitors: Planning Law Solutions (Applicant) Mr S Kondilios Hall & Wilcox Lawyers (Respondent)
File Number(s):	281762/2016