Rudder Developments Two Pty Ltd v Inner West Council - [2017] NSWLEC 1132

Land and Environment Court

New South Wales

Medium Neutral Citation: Rudder Developments Two Pty Ltd v Inner West Council [2017] NSWLEC 1132
Hearing dates: 13-14 March 2017
Date of orders: 16 March 2017
Decision date: 16 March 2017
Jurisdiction: Class 1
Before: O’Neill C
Decision:
1.   The appeal is dismissed.
2.   Development Application No. D/2016/10 for a subdivision into 6 lots at 37 Edna Street, Lilyfield, is refused.
3.   The exhibits, other than exhibits 1 and B, are returned.

Catchwords: DEVELOPMENT APPLICATION: subdivision; the planning principle in Parrott v Kiama [2004] NSWLEC 77 re-endorsed by the Commissioners of the Court; inconsistency with the size and pattern of allotments in the area; whether the subdivision will result in uncharacteristic future development.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Heritage Act 1977
Cases Cited: Parrott v Kiama [2004] NSWLEC 77
Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167
Category: Principal judgment
Parties: Rudder Developments Two Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
Mr G. McKee solicitor (Applicant)
Mr M. Bonanno solicitor (Respondent)
Solicitors:
McKee Legal Solutions (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2016/229006

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. D/2016/10 for the subdivision of the site into six lots (the proposal) at 37 Edna Street, Lilyfield (the site) by Inner West Council (the Council).
Two appeals were subject to mandatory conciliation on 14 November 2016, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated on the same day, pursuant to s 34(4) of the LEC Act. Leave was granted by the Court on 29 November 2016 for the applicant to rely on an amended proposal for the subdivision of the site into six lots including building envelopes for lots 1 and 2. The second appeal against the deemed refusal of Development Application D/2016/9 for the construction of six semi-detached dwellings on the six lots was discontinued.
Leave was unopposed and granted by the Court at the commencement of the hearing for the applicant to rely on a further amended proposal (issue D, exhibit B).

Issues

The Council’s contentions can be summarised as:

The design of the proposed subdivision is inappropriate with regard to the site’s context and would result in an uncharacteristic future development. The proposed size of the allotments are the minimum lot size and are not consistent with the size and pattern of lots in the area and there is uncertainty whether the allotments would be compatible with the desired future character of the area.

The proposed building envelopes for Lots 1 and 2 are inconsistent with the relevant planning controls.

The earthworks proposed with the subdivision are extensive and the application does not also seek approval for the construction of dwellings.

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.

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Details

Case: [2017] NSWLEC 1132
Decision Date: 16 March 2017

CaseChat Overview and Summary

The case of Rudder Developments Two Pty Ltd v Inner West Council involved a developer's appeal against the refusal of a development application for a subdivision. The developer sought to subdivide a property located at 37 Edna Street, Lilyfield, into six lots. The Inner West Council had denied the application, leading Rudder Developments to appeal the decision to a higher court. The central issue in this appeal was whether the Council's refusal to approve the subdivision was legally justified. Specifically, the court needed to determine whether the Council's decision was based on proper consideration of the relevant planning laws and whether it was supported by appropriate evidence. Additionally, the court had to examine whether the developer had adequately demonstrated compliance with the statutory requirements for the proposed subdivision.

The court found that the Council's decision was well-grounded and based on a comprehensive assessment of the statutory and policy requirements for the proposed subdivision. The Council had considered various planning and environmental factors, including the impact on local infrastructure and the character of the neighbourhood. The court concluded that the Council's decision was not arbitrary or unreasonable. It was based on a proper application of the planning laws and supported by sufficient evidence. The developer had not provided adequate justification for the proposed subdivision, particularly regarding its alignment with the surrounding street pattern and the potential impact on the neighbourhood's character. The court determined that the developer had failed to demonstrate that the proposed subdivision would be in the best interests of the community.

As a result of the court's findings, the appeal was dismissed. The development application was also refused. The exhibits submitted by the parties, with the exception of exhibits 1 and B, were returned to the parties. This outcome upheld the Council's decision and maintained the integrity of the local planning regulations.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development Application No. D/2016/10 for a subdivision into 6 lots at 37 Edna Street, Lilyfield, is refused.

3. The exhibits, other than exhibits 1 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:	Rudder Developments Two Pty Ltd v Inner West Council [2017] NSWLEC 1132
Hearing dates:	13-14 March 2017
Date of orders:	16 March 2017
Decision date:	16 March 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. D/2016/10 for a subdivision into 6 lots at 37 Edna Street, Lilyfield, is refused. 3. The exhibits, other than exhibits 1 and B, are returned.
Catchwords:	DEVELOPMENT APPLICATION: subdivision; the planning principle in Parrott v Kiama [2004] NSWLEC 77 re-endorsed by the Commissioners of the Court; inconsistency with the size and pattern of allotments in the area; whether the subdivision will result in uncharacteristic future development.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Heritage Act 1977
Cases Cited:	Parrott v Kiama [2004] NSWLEC 77 Revelop Projects Pty Limited v Parramatta City Council [2014] NSWLEC 1167
Category:	Principal judgment
Parties:	Rudder Developments Two Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: Mr G. McKee solicitor (Applicant) Mr M. Bonanno solicitor (Respondent) Solicitors: McKee Legal Solutions (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/229006