Rahman v Campbelltown City Council - [2024] NSWLEC 1453

Land and Environment Court

New South Wales

Medium Neutral Citation: Rahman v Campbelltown City Council [2024] NSWLEC 1453
Hearing dates: 12 and 13 June 2024
Date of orders: 31 July 2024
Decision date: 31 July 2024
Jurisdiction: Class 1
Before: Peatman AC
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) The Respondent delete Conditions 29 and 41A of Exhibit 2 (Draft Conditions of Consent) and file these Conditions of Consent as Annexure A within 7 days of these orders.

Catchwords:
DEVELOPMENT CONSENT – conditions – developer contribution or levy – driveway construction

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.12, 4.15, 4.17, 7.11, 7.12, 7.13, Pt 7
Land and Environment Court Act 1979, s 17
Campbelltown Local Environmental Plan 2015, Pt 2, cll 2.1, 2.2, 2.3, 4.3, 4.4, 7.10
Environmental Planning and Assessment Regulation 2021, s 23
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021, s 7, Ch 3, Pt 3, ss 67, 68, Sch 10
State Environmental Planning Policy (Resilience and Hazards) 2021
Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021

Cases Cited:
ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18
Anglican Church Property Trust Diocese of Sydney v Camden Council [2021] NSWLEC 118
Calleja v Botany Bay City Council (2005) 142 LGERA 104; [2005] NSWCA 337
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Fitch v Shoalhaven City Council (1987) 67 LGRA 165
Intrapac Skennars Head Pty Ltd v Ballina Shire Council (2021) 249 LGERA 400; [2021] NSWLEC 83
Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159; [2003] NSWCA 266
SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Texts Cited:
Campbelltown Community Participation Plan 2023
Campbelltown Local infrastructure Contributions Plan 2018
Campbelltown Local Infrastructure Contributions Plan 2018 (Amendment 1)
Campbelltown (Sustainable City) Development Control Plan 2015

Category: Principal judgment
Parties: Mohammed Rahman (Applicant)
Campbelltown City Council (Respondent)
Representation:
Counsel:
P Jayne (Solicitor) (Applicant)
H Irish (Respondent)
Solicitors:
SWS Lawyers Pty Ltd (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2023/274646
Publication restriction: No

Judgment

COMMISSIONER: On 12 July 2023, the Applicant lodged Development Application No. 2366/2023/DA-CL (DA) with Campbelltown City Council (Council) seeking consent for the demolition of existing structures and construction of a co-living housing development comprising two two-storey buildings containing a total of 15 private rooms (12 single rooms and 3 double rooms) accommodating a total of 18 residents, associated landscaping and at-grade parking for 3 cars, 3 motorcycles and 4 bicycles for the property known as 1 Durham Street, Minto, being the whole of the land in Lot 17 Deposited Plan 597326 (Site):

Proposed Building 1 is located at the front of the site and proposed Building 2 is located at the rear,…

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: [2024] NSWLEC 1453
Decision Date: 31 July 2024

CaseChat Overview and Summary

The case of Rahman v Campbelltown City Council came before the Land and Environment Court of New South Wales. The appellant, Mr. Rahman, contested the conditions set by the Respondent, Campbelltown City Council, for the development of a property. The crux of the dispute was the imposition of certain conditions in the Draft Conditions of Consent, specifically Conditions 29 and 41A, which Mr. Rahman argued were excessive and not warranted by the planning scheme.

The legal issues before the court were whether the conditions imposed by the Council were in accordance with the planning legislation and whether they were reasonably necessary for the protection of the public interest. The court had to determine if the conditions were appropriate and justified under the relevant planning laws.

The court found that Conditions 29 and 41A went beyond what was necessary for the protection of the public interest. The conditions imposed obligations that were not required by the planning scheme and were not reasonably necessary for the development. The court held that these conditions were not in accordance with the statutory requirements and therefore were invalid. As a result, the court upheld Mr. Rahman's appeal and directed the Council to remove these conditions from the Draft Conditions of Consent and to file the revised conditions within seven days of the court's order.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) The Respondent delete Conditions 29 and 41A of Exhibit 2 (Draft Conditions of Consent) and file these Conditions of Consent as Annexure A within 7 days of these orders.

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:	Rahman v Campbelltown City Council [2024] NSWLEC 1453
Hearing dates:	12 and 13 June 2024
Date of orders:	31 July 2024
Decision date:	31 July 2024
Jurisdiction:	Class 1
Before:	Peatman AC
Decision:	The Court orders that: (1) The appeal is upheld. (2) The Respondent delete Conditions 29 and 41A of Exhibit 2 (Draft Conditions of Consent) and file these Conditions of Consent as Annexure A within 7 days of these orders.
Catchwords:	DEVELOPMENT CONSENT – conditions – developer contribution or levy – driveway construction
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.12, 4.15, 4.17, 7.11, 7.12, 7.13, Pt 7 Land and Environment Court Act 1979, s 17 Campbelltown Local Environmental Plan 2015, Pt 2, cll 2.1, 2.2, 2.3, 4.3, 4.4, 7.10 Environmental Planning and Assessment Regulation 2021, s 23 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021, s 7, Ch 3, Pt 3, ss 67, 68, Sch 10 State Environmental Planning Policy (Resilience and Hazards) 2021 Standard Instrument (Local Environmental Plans) Amendment (Miscellaneous) Order 2021
Cases Cited:	ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 Anglican Church Property Trust Diocese of Sydney v Camden Council [2021] NSWLEC 118 Calleja v Botany Bay City Council (2005) 142 LGERA 104; [2005] NSWCA 337 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Fitch v Shoalhaven City Council (1987) 67 LGRA 165 Intrapac Skennars Head Pty Ltd v Ballina Shire Council (2021) 249 LGERA 400; [2021] NSWLEC 83 Rose Consulting Group v Baulkham Hills Shire Council (2003) 58 NSWLR 159; [2003] NSWCA 266 SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Texts Cited:	Campbelltown Community Participation Plan 2023 Campbelltown Local infrastructure Contributions Plan 2018 Campbelltown Local Infrastructure Contributions Plan 2018 (Amendment 1) Campbelltown (Sustainable City) Development Control Plan 2015
Category:	Principal judgment
Parties:	Mohammed Rahman (Applicant) Campbelltown City Council (Respondent)
Representation:	Counsel: P Jayne (Solicitor) (Applicant) H Irish (Respondent) Solicitors: SWS Lawyers Pty Ltd (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2023/274646
Publication restriction:	No