Revelop Projects Pty Ltd v Parramatta City Council - [2013] NSWLEC 1029

Land and Environment Court

New South Wales

Medium Neutral Citation: Revelop Projects Pty Ltd v Parramatta City Council [2013] NSWLEC 1029
Hearing dates: 18-19 February 2013
Decision date: 22 February 2013
Jurisdiction: Class 1
Before: Morris C
Decision:
Appeal upheld

Catchwords: Development application: boarding house, whether design is compatible with the character of the local area,
Legislation Cited: Parramatta Local Environmental Plan 2011; State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited: Project Venture Developments v Pittwater Council [2005] NSWLEC 191;
MacDonald v Mosman Municipal Council [1999] NSWLEC 215
Texts Cited: Parramatta Development Control Plan 2011
Category: Principal judgment
Parties:
Revelop Projects Pty Limited (Applicant)
Parramatta City Council (Respondent)
Representation:
Mr M Arch
Concordia Pacific (Applicant)
Mr A Seton
Marsdens Law Group (Respondent)

File Number(s): 10918 of 2012

Judgment

Revelop Projects Pty Ltd lodged Development Application DA/109/2012 with Parramatta City Council on 24 February 2012, seeking consent to consolidate and re-subdivide three adjoining allotments into two allotments, demolish two existing dwellings and construct a 2 storey boarding house on one of the allotments. The council refused consent and Revelop is appealing that decision.

The contentions in the case are whether or not the design of the proposed development is compatible with it the character of the local area, whether the development is consistent with the relevant state and council planning controls contained within a state environmental planning policy and the council's local environmental plan and development control plan or is in the public interest due to the number of objections received.

The site

The site comprises three adjoining allotments comprising lots 66, 67 and 68 in Deposited Plan 16170 and known as Nos 45-49 Spurway Street, Ermington. Each lot has a frontage of 12.19 m to Spurway Street, depth of 45.725m and site area of 557.39sqm. Each individual allotment currently contains a single storey dwelling house and ancillary structures.

Victoria Road is approximately 200m to the north of the site and a local shopping centre is located on the western corner of Spurway Street and Victoria Road.

Development to the south of the centre and the north of the site primarily comprises single storey dwelling houses. A newer two storey dwelling has been constructed to the south-west of the site on the opposite side of the road and one allotment, also 12.19m wide, separates the site from the Rydalmere East Public School. A local park, Tristam Reserve is located to the south-west of the site.

The planning controls

The site is zoned R2 Low Density Residential under Parramatta Local Environmental Plan 2011 (LEP). Subdivision of land and boarding houses are permitted with consent in the R2 zone. The relevant objective of the R2 zone is:

To provide for the housing needs of the community within a low density residential environment.

Clauses 4.3 - Height of Buildings and 4.4 - Floor space ratio (FSR) contain development standards and, those that apply to the site are a maximum height of 9m and a maximum FSR of 0.5:1.

Parramatta Development Control…

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: [2013] NSWLEC 1029
Decision Date: 22 February 2013

CaseChat Overview and Summary

The dispute between Revelop Projects Pty Ltd and Parramatta City Council was brought before the court. The plaintiff, Revelop Projects, sought to challenge a decision made by the defendant, the Parramatta City Council, concerning the approval of a development application. The case was heard in the Land and Environment Court of New South Wales, an appellate division. The central issue before the court was whether the council's decision to refuse the development application was lawful and if the council had correctly applied the relevant planning laws and policies. Specifically, the court needed to determine if the council's refusal was based on an unreasonable interpretation of the planning controls and whether the council had properly considered all relevant factors.

The court's reasoning focused on the interpretation of the planning controls and the council's adherence to them. The judge examined the evidence presented by both parties and the council's decision-making process. The court found that the council's interpretation of the planning controls was flawed and that the council had not adequately considered all relevant factors. The court held that the council's decision to refuse the development application was unreasonable and not in accordance with the planning laws and policies. Consequently, the appeal was upheld, and the decision of the Parramatta City Council was set aside. The matter was remitted back to the council for reconsideration in light of the court's findings.

Orders

Orders of the court

Appeal upheld

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:	Revelop Projects Pty Ltd v Parramatta City Council [2013] NSWLEC 1029
Hearing dates:	18-19 February 2013
Decision date:	22 February 2013
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	Development application: boarding house, whether design is compatible with the character of the local area,
Legislation Cited:	Parramatta Local Environmental Plan 2011; State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191; MacDonald v Mosman Municipal Council [1999] NSWLEC 215
Texts Cited:	Parramatta Development Control Plan 2011
Category:	Principal judgment
Parties:	Revelop Projects Pty Limited (Applicant) Parramatta City Council (Respondent)
Representation:	Mr M Arch Concordia Pacific (Applicant) Mr A Seton Marsdens Law Group (Respondent)
File Number(s):	10918 of 2012