Railway 51 Pty Ltd v City of Parramatta Council - [2023] NSWLEC 1745

Land and Environment Court

New South Wales

Medium Neutral Citation: Railway 51 Pty Ltd v City of Parramatta Council [2023] NSWLEC 1745
Hearing dates: Conciliation conference held on 1 December 2023
Date of orders: 07 December 2023
Decision date: 07 December 2023
Jurisdiction: Class 1
Before: Bish C
Decision:
The Court orders:
(1) The appeal is upheld.
(2) Development Application 880/2021, which seeks the demolition of existing structures, earthworks, and construction of a part four-storey, part five-storey residential flat building with basement car parking for 4 residential units on Lot A Deposited Plan 324641, also known as 51 Railway Street, Granville, is determined by the grant of consent, subject to the conditions in Annexure A.

Catchwords:
DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7
Environmental Planning and Assessment Regulation 2021, ss 23, 38
Holroyd Local Environmental Plan 2013, cll 2.3, 5.21
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 28, 30

Texts Cited:
NSW Department of Planning and Environment, Apartment Design Guide (July 2015)
Holroyd Development Control Plan 2013

Category: Principal judgment
Parties: Railway 51 Pty Ltd (Applicant)
City of Parramatta Council (Respondent)
Representation:
Counsel:
I Lacy (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
City of Parramatta Council (Respondent)

File Number(s): 2023/87203
Publication restriction: Nil

Judgment

COMMISSIONER: This is an appeal against the refusal of Development Application 880/2021 (the DA) by the City of Parramatta Council (the Council), which as amended, seeks demolition of existing structures, earthworks, and construction of a part four-storey, part five-storey residential flat building with basement car parking, containing four residential units and landscaping on Lot A Deposited Plan 324641, also known as 51 Railway Street, Granville (the site).

Background

The DA was lodged with Council on 22 September 2021. The original DA was notified to residents, with no submissions received, and was also referred to the relevant authorities, pursuant to s 4.47 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The DA was submitted to the Parramatta Local Planning Panel, who determined on 17 August 2022 to refuse the DA. The Council issued the notice of determination to refuse the DA on 29 September 2022. The Applicant appealed against the refusal of the DA, pursuant to s 8.7(1) of the EPA Act.
Pursuant to s 34(1) of the Land and Environment Court Act 1979 (the LEC Act), the Court arranged a conciliation conference, which at the parties’ request, commenced without a site view and held before me as Duty Commissioner.
Prior to the conciliation, the Council agreed for the Applicant to amend 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.

Continue reading Railway 51 Pty Ltd v City of Parramatta Council

Details

AGLC: Railway 51 Pty Ltd v City of Parramatta Council [2023] NSWLEC 1745
Case: [2023] NSWLEC 1745
Decision Date: 07 December 2023

CaseChat Overview and Summary

The case of Railway 51 Pty Ltd v City of Parramatta Council involved a dispute between the applicant, Railway 51 Pty Ltd, and the City of Parramatta Council concerning a development application for the demolition of existing structures and the construction of a residential flat building. The primary issue before the Court was whether the City of Parramatta Council's refusal to grant consent for the proposed development was justified and in accordance with the relevant planning and development laws. The applicant appealed the council's decision, arguing that the refusal was unreasonable and not based on proper consideration of the statutory criteria and planning policies.

The legal issues that the Court needed to address included whether the council's decision was based on relevant considerations, whether the decision was made in accordance with the relevant planning policies and statutory criteria, and whether the decision was unreasonable. The Court also needed to determine whether the proposed development complied with the relevant planning instruments and whether the council's decision to refuse consent was justified.

In delivering the judgment, the Court found that the City of Parramatta Council's refusal to grant consent for the proposed development was unreasonable. The Court held that the council's decision was not based on proper consideration of the statutory criteria and planning policies and that the decision was not supported by the evidence. The Court found that the proposed development was in accordance with the relevant planning instruments and that the council's decision to refuse consent was not justified. As a result, the Court upheld the appeal and granted the development application, subject to the conditions outlined in Annexure A.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development Application 880/2021, which seeks the demolition of existing structures, earthworks, and construction of a part four-storey, part five-storey residential flat building with basement car parking for 4 residential units on Lot A Deposited Plan 324641, also known as 51 Railway Street, Granville, is determined by the grant of consent, subject to the conditions in Annexure A.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Railway 51 Pty Ltd v City of Parramatta Council [2023] NSWLEC 1745
Hearing dates:	Conciliation conference held on 1 December 2023
Date of orders:	07 December 2023
Decision date:	07 December 2023
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) The appeal is upheld. (2) Development Application 880/2021, which seeks the demolition of existing structures, earthworks, and construction of a part four-storey, part five-storey residential flat building with basement car parking for 4 residential units on Lot A Deposited Plan 324641, also known as 51 Railway Street, Granville, is determined by the grant of consent, subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.47, 8.7 Environmental Planning and Assessment Regulation 2021, ss 23, 38 Holroyd Local Environmental Plan 2013, cll 2.3, 5.21 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 28, 30
Texts Cited:	NSW Department of Planning and Environment, Apartment Design Guide (July 2015) Holroyd Development Control Plan 2013
Category:	Principal judgment
Parties:	Railway 51 Pty Ltd (Applicant) City of Parramatta Council (Respondent)
Representation:	Counsel: I Lacy (Solicitor) (Applicant) C Campbell (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) City of Parramatta Council (Respondent)
File Number(s):	2023/87203
Publication restriction:	Nil