Prilis v Inner West Council - [2018] NSWLEC 1227

Land and Environment Court

New South Wales

Medium Neutral Citation: Prilis v Inner West Council [2018] NSWLEC 1227
Hearing dates: 5 April 2018
Date of orders: 15 May 2018
Decision date: 15 May 2018
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) The application to modify the development consent given by the Court on 19 December 2012 in proceedings number 12/11108 by changing the internal layout and modifying the lodger and manager numbers, is granted subject to the conditions in Annexure A.
(3) The development consent given by the Court on 19 December 2012 in proceedings number 12/11108 for alterations and additions and the use of premises at 2-4 Shaw Street, Petersham for the purpose of a boarding house is now subject to the consolidated conditions of consent in Annexure B.
(4) Exhibits 1, 2, 3, 4 and E are returned.

Catchwords: APPEAL – modification application – role of the Court in considering a modification application – modification sought change from shared facilities to self-contained boarding rooms – whether substantially the same – whether the change creates additional parking demand – whether a condition limiting occupancy numbers can be modified – relevance of change to contributions plan
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Marrickville Local Environmental Plan 2011
State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
Prilis v Marrickville Council [2012] NSWLEC 1348
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46
Category: Principal judgment
Parties: Anastasios Prilis (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
T Howard SC (Applicant)
M Bonanno, Solicitor (Respondent)
Solicitors:
BCP Lawyers and Consultants (Applicant)
Inner West Council (Respondent)

File Number(s): 2017/213304
Publication restriction: No

Judgment

COMMISSIONER: Since the 1920s a two storey federation Queen Anne style mansion has stood on the corner of Shaw and Addison Street in Petersham. It was formerly used by Tresillian, with three other buildings on the site used as wards. In what was seen as a suitable adaptive re-use of the buildings, on 19 December 2012 development consent was granted for the use of the buildings as a boarding house, together with alterations and additions to the buildings to accommodate 39 boarding rooms and 3 managers’ rooms. Of those boarding rooms, 13 relied on communal kitchen facilities and some rooms had a bathroom accessed through a corridor rather than an ensuite. The number of boarders was limited to 52 by a condition imposed on the development consent. Mr Anastasios Prilis now seeks to modify that consent by changing the internal alterations and additions so that every boarding room has its own kitchenette and ensuite. Mr Prilis has appealed against the refusal of that modification application by Inner West Council (“the Council”) on 13 July 2017. The appeal was lodged pursuant to the former…

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: [2018] NSWLEC 1227
Decision Date: 15 May 2018

CaseChat Overview and Summary

Prilis appealed a decision of the Inner West Council, which had refused to modify the development consent previously granted for alterations and additions to a property at 2-4 Shaw Street, Petersham, to allow for a boarding house. The dispute was heard in the Land and Environment Court of New South Wales. The primary legal issues were whether the proposed modifications to the development consent complied with the applicable planning scheme and whether they met the criteria for approval under the relevant legislation.

The court considered whether the modifications proposed by Prilis were consistent with the approved development consent and whether they complied with the planning scheme and relevant regulations. The court examined the evidence provided by Prilis and the submissions made by the council regarding the potential impacts of the proposed changes on the character of the neighbourhood, the health and safety of the occupants, and the capacity of the site to accommodate the changes without causing undue harm to adjoining properties. The court also considered whether the proposed modifications would result in a change of use of the property, which would require a new development application.

The court found that the proposed modifications did not change the overall use of the property and were consistent with the approved development consent. The court held that the modifications were in accordance with the planning scheme and met the criteria for approval under the relevant legislation. The court found that the proposed changes would not result in any undue harm to adjoining properties or the neighbourhood and that the health and safety of the occupants would be adequately protected. The court concluded that the proposed modifications were in the public interest and granted the application to modify the development consent. The court also consolidated the conditions of consent and ordered that the exhibits be returned.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) The application to modify the development consent given by the Court on 19 December 2012 in proceedings number 12/11108 by changing the internal layout and modifying the lodger and manager numbers, is granted subject to the conditions in Annexure A.

(3) The development consent given by the Court on 19 December 2012 in proceedings number 12/11108 for alterations and additions and the use of premises at 2-4 Shaw Street, Petersham for the purpose of a boarding house is now subject to the consolidated conditions of consent in Annexure B.

(4) Exhibits 1, 2, 3, 4 and E are returned.

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:	Prilis v Inner West Council [2018] NSWLEC 1227
Hearing dates:	5 April 2018
Date of orders:	15 May 2018
Decision date:	15 May 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The appeal is upheld. (2) The application to modify the development consent given by the Court on 19 December 2012 in proceedings number 12/11108 by changing the internal layout and modifying the lodger and manager numbers, is granted subject to the conditions in Annexure A. (3) The development consent given by the Court on 19 December 2012 in proceedings number 12/11108 for alterations and additions and the use of premises at 2-4 Shaw Street, Petersham for the purpose of a boarding house is now subject to the consolidated conditions of consent in Annexure B. (4) Exhibits 1, 2, 3, 4 and E are returned.
Catchwords:	APPEAL – modification application – role of the Court in considering a modification application – modification sought change from shared facilities to self-contained boarding rooms – whether substantially the same – whether the change creates additional parking demand – whether a condition limiting occupancy numbers can be modified – relevance of change to contributions plan
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Prilis v Marrickville Council [2012] NSWLEC 1348 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46
Category:	Principal judgment
Parties:	Anastasios Prilis (Applicant) Inner West Council (Respondent)
Representation:	Counsel: T Howard SC (Applicant) M Bonanno, Solicitor (Respondent) Solicitors: BCP Lawyers and Consultants (Applicant) Inner West Council (Respondent)
File Number(s):	2017/213304
Publication restriction:	No