Sahade v Inner West Council

Case [2023] NSWLEC 1139

Land and Environment Court


New South Wales

Medium Neutral Citation: Sahade v Inner West Council [2023] NSWLEC 1139
Hearing dates: 2, 3 and 4 November 2022
Date of orders: 29 March 2023
Decision date: 29 March 2023
Jurisdiction:Class 1
Before: Espinosa C
Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Modification Application No. MOD/2022/0008 seeking to modify Development Consent No. 10.2017.170.3 which was granted by the Respondent on 1 March 2019 at 95 Ramsay Street, Haberfield is not approved.

(3) Exhibit 2 is returned and all other exhibits are retained.

Catchwords:

DEVELOPMENT APPEAL – modification of development consent – substantially the same – heritage – streetscape – whether there is sufficient information as to acoustic impact - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 102

Cases Cited:

193 Liverpool Road Pty Ltd ACN 163231810 v Inner West Council [2022] NSWLEC 1197

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75

Arrage v Inner West Council [2019] NSWLEC 85

Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1733

Hatch v Northern Beaches Council [2019] NSWLEC 1422

Horseshoe Properties Pty Ltd v Tweed Shire Council [2021] NSWLEC 1507

Michael Standley & Associated v North Sydney Council [1997] NSWLEC 19085

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468

Parseh Cronulla Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1248

Category:Principal judgment
Parties: Victor Sahade (Applicant)
Inner West Council(Respondent)
Representation:

Counsel:
M Sahade (Applicant)
T To (Respondent)

Solicitors:
Oliveri Lawyers (Applicant)
Pikes and Verekers Lawyers (Respondent)
File Number(s): 2022/88621
Publication restriction: No

Judgment

  1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act) being an appeal against refusal of Modification Application No. MOD/2022/0008 seeking to modify Development Consent No. 10.2017.170.3 which was granted by the Respondent on 1 March 2019 (the Proposed Modification) at 95 Ramsay Street, Haberfield legally described as Lot 1 in Deposited Plan 180212 (the Site).

  2. The modification application the subject of this appeal, seeks approval for the following (Class 1 Application, Ex 2):

  1. Regularize unapproved work on the Site. This is understood to be an application for use of unauthorised development and is not understood to be consent for the development itself for which the Court has no jurisdiction to grant retrospective development consent (Transcript 2 November 2022, p 2 at par [35]. In relation to the unauthorised signage, the Applicant advises the Court that “anything to do with signage has been struck out” (Transcript 4 November 2022, p 174 at par [12]) and explains as follows:

“given the concessions that our heritage expert has made in his report and the issue of owner’s consent and the balance of what's left to be argued, we are notifying the Court now that we are no longer seeking any consent with respect to the signs and we will honour the undertaking that was given…

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AGLC
Sahade v Inner West Council [2023] NSWLEC 1139
Case
[2023] NSWLEC 1139
Decision Date

CaseChat Overview and Summary

Sahade was the appellant and Inner West Council was the respondent in this case, which was heard in the Land and Environment Court of New South Wales. The dispute centred around a development consent granted by the respondent council for a property located at 95 Ramsay Street, Haberfield. Sahade sought to modify this consent through an application, which the council ultimately refused. Sahade appealed this decision, leading to the present case.

The primary legal issue before the court was whether the respondent council was correct in its refusal to modify the development consent. The court had to consider whether the modification sought by Sahade would comply with the applicable planning laws and policies, and whether there were valid reasons for the refusal. The court also needed to determine if the council's decision was legally sound and whether there were any errors in the process that warranted setting aside the decision.

The court found that the respondent council's decision to refuse the modification application was legally correct. The court concluded that the council had adequately considered the relevant planning laws and policies in reaching its decision. The court found no errors in the council's process and held that the refusal was justified. The court emphasised that the modification sought by Sahade would not align with the planning objectives and would have adverse effects on the surrounding environment and community. Consequently, the court dismissed the appeal and upheld the council's decision. The modification application was not approved, and the development consent remained unchanged.

Orders

Orders of the court

The Court orders:

(1) The appeal is dismissed.

(2) Modification Application No. MOD/2022/0008 seeking to modify Development Consent No. 10.2017.170.3 which was granted by the Respondent on 1 March 2019 at 95 Ramsay Street, Haberfield is not approved.

(3) Exhibit 2 is returned and all other exhibits are retained.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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