Rahme v North Sydney Council - [2023] NSWLEC 1519

Land and Environment Court

New South Wales

Medium Neutral Citation: Rahme v North Sydney Council [2023] NSWLEC 1519
Hearing dates: 3, 19 July 2023
Date of orders: 14 September 2023
Decision date: 14 September 2023
Jurisdiction: Class 1
Before: Byrne AC
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development consent No. DA 333/19 is modified in the terms in Annexure A.
(3) Development Consent No. DA 333/19 as modified by the Court is Annexure B.
(4) The Exhibits are returned except Exhibits A, F, and 11.

Catchwords:
APPEAL – modification of development consent – part constructed residential flat building – building construction - consent orders hearing – public participation

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 2.19, 4.15, 4.16, 4.55, 4.8, 8.9
Environmental Planning and Assessment Regulation 2000, cl 115
Environmental Planning and Assessment Regulation 2021, Sch 6, s 3
North Sydney Local Environmental Plan 2013

Cases Cited:
Aarage v Inner West Council [2019] NSWLEC 85
Erina Investments Holdings Pty Ltd v Snowy Monaro Regional Council [2021] NSWLEC 1204
HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135
Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177
McMillan v Taylor [2023] NSWCA 183
Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 33
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8

Texts Cited:
Land and Environment Court of New South Wales, Practice Note – Class 1 Development Appeals
North Sydney Council, North Sydney Community Engagement Protocol, November 2019

Category: Principal judgment
Parties: David Rahme (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
A Knox (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)
Solicitors:
Pikes & Verekers Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2022/237231
Publication restriction: Nil

JudgmenT

COMMISSIONER: This is a Class 1 appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Modification Application No 333/19/4 (the Subject Application) to modify Development Consent No 333/19 for alterations and additions to an existing dual occupancy to create a 5-storey residential flat building containing four x 3-bedroom units with associated strata subdivision (the Development Consent) at 182 Kurraba Road, Kurraba Point, SP 14129 (the Site). The development is at an advanced stage of construction.
The parties reached an agreement prior to the hearing and requested the Court to determine the appeal by way of Consent Orders (Ex 11). As the Commissioner assigned to hear this matter, I am required to be satisfied that the agreed position reached is within the Court’s jurisdiction to make: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135, at [16] (Preston CJ); McMillan v Taylor [2023] NSWCA 183, at [58] (Basten AJA). I was assisted by the parties’ Jurisdictional Note in this regard.

Background

The Subject Application was lodged by David Rahme who is the director of Anton Kurraba Pty Ltd which owns the Site together with Therese Rahme and Roslyn…

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: [2023] NSWLEC 1519
Decision Date: 14 September 2023

CaseChat Overview and Summary

The case of Rahme v North Sydney Council was heard in the Land and Environment Court of New South Wales, where the applicant, Rahme, sought to appeal a decision made by the Council regarding a development application. The applicant contested the Council's decision to refuse development consent for a proposed residential building on a property located in North Sydney. The primary issue in dispute was whether the refusal of the development consent was lawful, reasonable, and justified under the relevant planning laws and policies.

The court was tasked with determining the validity of the Council's decision in light of the applicable planning legislation, policies, and principles. Key issues included whether the Council properly considered the relevant development standards and criteria, whether the refusal was based on improper or irrelevant factors, and whether the decision was disproportionate or irrational. The court also needed to assess if the decision-making process was procedurally fair and if the reasons provided by the Council were adequate and transparent.

In its reasoning, the court found that the Council's decision to refuse development consent was not supported by proper consideration of the relevant criteria and standards. The court identified several errors in the decision-making process, including the failure to adequately consider certain aspects of the development proposal and the reliance on irrelevant or improper factors. The court held that the refusal was disproportionate and unreasonable, as it did not align with the objectives of the planning legislation and the applicable policies. Consequently, the appeal was upheld, and the development consent was modified as per the terms set out in Annexure A. The modified development consent is detailed in Annexure B, which now forms the basis of the approved development.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development consent No. DA 333/19 is modified in the terms in Annexure A.

(3) Development Consent No. DA 333/19 as modified by the Court is Annexure B.

(4) The Exhibits are returned except Exhibits A, F, and 11.

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:	Rahme v North Sydney Council [2023] NSWLEC 1519
Hearing dates:	3, 19 July 2023
Date of orders:	14 September 2023
Decision date:	14 September 2023
Jurisdiction:	Class 1
Before:	Byrne AC
Decision:	The Court orders: (1) The appeal is upheld. (2) Development consent No. DA 333/19 is modified in the terms in Annexure A. (3) Development Consent No. DA 333/19 as modified by the Court is Annexure B. (4) The Exhibits are returned except Exhibits A, F, and 11.
Catchwords:	APPEAL – modification of development consent – part constructed residential flat building – building construction - consent orders hearing – public participation
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 2.19, 4.15, 4.16, 4.55, 4.8, 8.9 Environmental Planning and Assessment Regulation 2000, cl 115 Environmental Planning and Assessment Regulation 2021, Sch 6, s 3 North Sydney Local Environmental Plan 2013
Cases Cited:	Aarage v Inner West Council [2019] NSWLEC 85 Erina Investments Holdings Pty Ltd v Snowy Monaro Regional Council [2021] NSWLEC 1204 HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 McMillan v Taylor [2023] NSWCA 183 Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 33 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Texts Cited:	Land and Environment Court of New South Wales, Practice Note – Class 1 Development Appeals North Sydney Council, North Sydney Community Engagement Protocol, November 2019
Category:	Principal judgment
Parties:	David Rahme (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: A Knox (Solicitor) (Applicant) A Seton (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Marsdens Law Group (Respondent)
File Number(s):	2022/237231
Publication restriction:	Nil