Randall v Ashfield Council - [2014] NSWLEC 1034

Land and Environment Court

New South Wales

Medium Neutral Citation: Randall v Ashfield Council [2014] NSWLEC 1034
Hearing dates: 17 February 2014
Decision date: 04 March 2014
Jurisdiction: Class 1
Before: Tuor C
Decision:
1. The appeal is upheld;
2. The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify, under s 96(2), the development consent DA10.2012.051 for the purposes of a residential development at 67-75 Smith Street, Summer Hill is determined by approving the modifications subject to the changes to the conditions of development consent set out in Annexure A;
3. As a consequence of order (2), Development Consent No DA10.2012.051 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and
4. The exhibits, other than Exhibits 1, A and B, are returned.

Catchwords: DEVELOPMENT CONSENT: amend development consent to provide rooms in roof space. Whether substantially the same development; application of SEPP 65 and whether design verification required.
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Act Regulation
Ashfield Local Environmental Plan 2013
Ashfield Local Environmental Plan 1985
State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development
State Environmental Planning Policy No 6 - Number of Storeys in a Building
State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Commercial and Industrial Development and Other Matters) 2013
Cases Cited: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Randall v Ashfield Council [2012] NSWLEC 1287
Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351.
Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992);
Category: Principal judgment
Parties:
David Randall (Applicant)
Ashfield Council (Respondent)
Representation:
Ms S Duggan SC (Respondent)

Mr A Galasso SC (Applicant)
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 10801 of 2013

Judgment

This is an application under s 96(8) of the Environmental Planning and Assessment Act 1979 (the Act) to modify, under s 96(2), the development consent DA10.2012.051 (Development Consent) granted by the Land and Environment Court (Court) on 23 November 2012 (Randall v Ashfield Council [2012] NSWLEC 1287).

The Development Consent approved the demolition of existing industrial buildings, alterations and additions to the existing heritage item, construction of 28 dwellings within 4 new residential buildings and a new underground car park at 67-75 Smith Street, Summer Hill (site). The modification application seeks to use the roof space in Buildings A, B and C to provide additional bedrooms to the units below (the Application).

The key issues that remain in dispute between the parties are whether the development is substantially the same development as that approved under the Development Consent; whether State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the development and, if so, whether it can be approved in…

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: [2014] NSWLEC 1034
Decision Date: 04 March 2014

CaseChat Overview and Summary

Randall v Ashfield Council is a case where the respondent, Ashfield Council, had granted a development consent for a residential development at 67-75 Smith Street, Summer Hill. The applicant, Randall, sought modifications to the development consent, which the Council initially denied. The applicant subsequently appealed the Council's decision, leading to a judicial review of the Council's actions. The court was tasked with determining whether the Council's refusal to modify the development consent was lawful and whether the applicant's appeal should be upheld.

The legal issues before the court included whether the Council had the authority to modify the development consent and whether the refusal to modify the consent was justified. The court examined the statutory framework under which the development consent was granted, specifically the Environmental Planning and Assessment Act 1979, and considered the principles of judicial review relevant to the decision-making process. The court also assessed whether the Council had acted unreasonably or in breach of statutory duty by not approving the modifications sought by the applicant.

The court found that the Council did not act lawfully in refusing the modifications to the development consent. The decision was flawed because the Council failed to properly consider the applicant's submissions and misapplied the statutory criteria for modification. The court determined that the Council's refusal was unreasonable and that the applicant's appeal should be upheld. The court then proceeded to approve the modifications sought by the applicant, subject to certain conditions, and ordered the development consent to be amended accordingly. Consequently, the court made orders to approve the modifications and set out the new conditions in Annexure B.

Orders

Orders of the court

1. The appeal is upheld;

2. The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify, under s 96(2), the development consent DA10.2012.051 for the purposes of a residential development at 67-75 Smith Street, Summer Hill is determined by approving the modifications subject to the changes to the conditions of development consent set out in Annexure A;

3. As a consequence of order (2), Development Consent No DA10.2012.051 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and

4. The exhibits, other than Exhibits 1, A and B, 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:	Randall v Ashfield Council [2014] NSWLEC 1034
Hearing dates:	17 February 2014
Decision date:	04 March 2014
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	1. The appeal is upheld; 2. The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify, under s 96(2), the development consent DA10.2012.051 for the purposes of a residential development at 67-75 Smith Street, Summer Hill is determined by approving the modifications subject to the changes to the conditions of development consent set out in Annexure A; 3. As a consequence of order (2), Development Consent No DA10.2012.051 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and 4. The exhibits, other than Exhibits 1, A and B, are returned.
Catchwords:	DEVELOPMENT CONSENT: amend development consent to provide rooms in roof space. Whether substantially the same development; application of SEPP 65 and whether design verification required.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Act Regulation Ashfield Local Environmental Plan 2013 Ashfield Local Environmental Plan 1985 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development State Environmental Planning Policy No 6 - Number of Storeys in a Building State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Commercial and Industrial Development and Other Matters) 2013
Cases Cited:	Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Randall v Ashfield Council [2012] NSWLEC 1287 Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351. Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992);
Category:	Principal judgment
Parties:	David Randall (Applicant) Ashfield Council (Respondent)
Representation:	Ms S Duggan SC (Respondent) Mr A Galasso SC (Applicant) McKees Legal Solutions (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	10801 of 2013