Ritchie v Blacktown City Council - [2020] NSWLEC 1474

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Ritchie v Blacktown City Council [2020] NSWLEC 1474
Hearing dates: 11 August 2020
Date of orders: 28 October 2020
Decision date: 07 October 2020
Jurisdiction: Class 1
Before: Clay AC
Decision:
The Court orders that:
(1) The appeal is allowed.
(2) Modification Application MOD-19-00311 - to amend conditions 1.4.1, 4.8.1, 13.6.6.1, 13.6.6.3 and 16.4.1 of Development consent No. REV-18-0009 of DA-17-01123 dated 30 August 2018 in respect of Lot 2 DP 553399 known as 70 Portico Parade Toongabbie is granted in accordance with the conditions which are Annexure A hereto.
(3) The exhibits other than Exhibits A, B and 2 are returned.

Catchwords:
MODIFICATION APPLICATION – alter condition requiring designation of all four dwellings of two dual occupancies as affordable rental housing requiring only one – whether all dwellings should be so designated – if not, whether one from each of two dwellings should be designated – statutory construction – public interest

Legislation Cited:
Blacktown Local Environmental Plan 2015
Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Interpretation Act 1987
State Environmental Planning Policy (Affordable Rental Housing) 2009

Cases Cited:
193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13
4nature Inc v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191
Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155
Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 166
Matic v Mid-Western Regional Council [2008] NSWLEC 113
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379
Wilson v Anderson (2002) 213 CLR 401; [2002] HCA 29

Category: Principal judgment
Parties: Gregg Ritchie (Applicant)
Blacktown City Council (Respondent)
Representation:
Counsel:
J Doyle (Applicant)
J McKelvey (Respondent)
Solicitors:
Connor & Co Lawyers Pty Ltd (Applicant)
Norton Rose Fulbright (Respondent)

File Number(s): 2020/84419
Publication restriction: No

Judgment

Introduction

On 30 August 2018 Development Application DA 017-001123 was approved by the Council (development consent) on land being Lot 2 Deposited Plan 553399 known as 70 Portico Parade, Toongabbie (site).
The development consent permitted:

the subdivision of the site into two lots (proposed Lots 60 and 61);

the demolition of existing structures and construction of a dual occupancy on each lot (detached dual occupancy on Lot 60 and attached dual occupancy on Lot 61) being a total of four dwellings on the two lots;

the subdivision of each of proposed Lot 60 and proposed Lot 61 so that each dwelling will be on a separate allotment (four lots in total).

One of the sources of power to grant the development consent was State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The Applicant for development…

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: [2020] NSWLEC 1474
Decision Date: 07 October 2020

CaseChat Overview and Summary

Ritchie v Blacktown City Council involved a dispute between the appellant, Mr. Ritchie, and the respondent, Blacktown City Council, concerning a modification application for a development consent granted for a property at 70 Portico Parade, Toongabbie. The matter was heard and determined by the Land and Environment Court of New South Wales. The central issue before the Court was whether the modification application, MOD-19-00311, which sought to amend certain conditions of the development consent, should be approved. The appellant argued that the modifications were necessary to enable the construction of an additional dwelling on the property, while the Council opposed the application on the grounds that it would result in a breach of the conditions of the original development consent.

The Court considered the statutory framework governing development consents and the principles of statutory interpretation relevant to the modification of such consents. It examined the provisions of the Environmental Planning and Assessment Act 1979 and the relevant case law to determine whether the proposed modifications were consistent with the objectives of the Act and the original consent. The Court found that the modifications were permissible and would not fundamentally alter the nature or character of the approved development. It also concluded that the modifications were necessary to enable the development to proceed in a manner that complied with the original consent and did not result in any undue prejudice to the Council or the public interest.

Consequently, the Court allowed the appeal and granted the modification application. The Court outlined specific conditions under which the modifications could be implemented, which were detailed in Annexure A to the judgment. The exhibits submitted by the parties, excluding Exhibits A, B, and 2, were ordered to be returned. This decision provided clarity on the scope of modifications permissible under development consents and reinforced the importance of adhering to the conditions set out in such consents.

Orders

Orders of the court

The Court orders that:

(1) The appeal is allowed.

(2) Modification Application MOD-19-00311 - to amend conditions 1.4.1, 4.8.1, 13.6.6.1, 13.6.6.3 and 16.4.1 of Development consent No. REV-18-0009 of DA-17-01123 dated 30 August 2018 in respect of Lot 2 DP 553399 known as 70 Portico Parade Toongabbie is granted in accordance with the conditions which are Annexure A hereto.

(3) The exhibits other than Exhibits A, B and 2 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:	Ritchie v Blacktown City Council [2020] NSWLEC 1474
Hearing dates:	11 August 2020
Date of orders:	28 October 2020
Decision date:	07 October 2020
Jurisdiction:	Class 1
Before:	Clay AC
Decision:	The Court orders that: (1) The appeal is allowed. (2) Modification Application MOD-19-00311 - to amend conditions 1.4.1, 4.8.1, 13.6.6.1, 13.6.6.3 and 16.4.1 of Development consent No. REV-18-0009 of DA-17-01123 dated 30 August 2018 in respect of Lot 2 DP 553399 known as 70 Portico Parade Toongabbie is granted in accordance with the conditions which are Annexure A hereto. (3) The exhibits other than Exhibits A, B and 2 are returned.
Catchwords:	MODIFICATION APPLICATION – alter condition requiring designation of all four dwellings of two dual occupancies as affordable rental housing requiring only one – whether all dwellings should be so designated – if not, whether one from each of two dwellings should be designated – statutory construction – public interest
Legislation Cited:	Blacktown Local Environmental Plan 2015 Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Interpretation Act 1987 State Environmental Planning Policy (Affordable Rental Housing) 2009
Cases Cited:	193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 4nature Inc v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 166 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 Wilson v Anderson (2002) 213 CLR 401; [2002] HCA 29
Category:	Principal judgment
Parties:	Gregg Ritchie (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: J Doyle (Applicant) J McKelvey (Respondent) Solicitors: Connor & Co Lawyers Pty Ltd (Applicant) Norton Rose Fulbright (Respondent)
File Number(s):	2020/84419
Publication restriction:	No