Soligo v Fairfield City Council - [2018] NSWLEC 1484

Land and Environment Court

New South Wales

Medium Neutral Citation: Soligo v Fairfield City Council [2018] NSWLEC 1484
Hearing dates: 27 August 2018
Date of orders: 18 September 2018
Decision date: 18 September 2018
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders that:
(1) The written request made, pursuant to clause 4.6 of Fairfield Local Environmental Plan 2013, to vary the minimum lot size standard prepared by Haskew de Chalain Planning, dated August 2018 is upheld.
(2) The appeal is upheld.
(3) Development Application No. 428.1/2016 to subdivide an existing allotment into two Torrens Title allotments is approved subject to the conditions at Annexure A.
(4) Exhibit D is returned.

Catchwords: DEVELOPMENT APPLICATION: subdivision – non-compliance with LEP standard, whether cl 4.6 of FLEP is satisfied
Legislation Cited: Environmental Planning and Assessment Act 1979
Fairfield Local Environmental Plan 2013
Land and Environment Court Act 1979
State Environmental Planning Policy No 1 – Development Standards
Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Moskovich v Waverley Council [2016] NSWLEC 1015
Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited: Fairfield Citywide Development Control Plan 2013
Macquarie Dictionary 2018 (online)
Category: Principal judgment
Parties: Guido Soligo (First Applicant)
Eddi Soligo (Second Applicant)
Fairfield City Council (Respondent)
Representation:
Counsel:
J Reid (Applicants)
Solicitors:
Meehans Solicitors Pty Ltd (Applicants)
A Seton, Marsden Law Group (Respondent)

File Number(s): 2018/63560
Publication restriction: No

Judgment

Introduction

Guido Soligo and Eddi Soligo have appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Fairfield City Council (Council) of a development application (DA 428.1/2016) to subdivide an existing allotment into two Torrens Title allotments. One of the lots would be 1006m² in area; the other would be 1013m² in area.
The appeal was subject to mandatory conciliation on 27 August 2018 in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated, and the proceedings moved forthwith to hearing.

The site and context

The subject land for this development application (DA) is 12 Withers Place, Abbotsbury (site). The site is legally described as Lot 2324 DP 787466. The site is located towards the head of a cul-de-sac and is irregular in shape with a frontage of 25.575m (arc) and a depth of 40.775m on the western boundary, 30m on the southern boundary, 58m on the eastern boundary and 29.5m on the northern boundary which borders the Western Sydney Parklands. The site area totals 2,019m².
The site is located on undulating land in the north western corner of the Abbotsbury residential estate, which borders the Western Sydney Parklands. While the wider Abbotsbury estate would more commonly have smaller lots, the majority of the allotments in the immediate environs of the site are larger than 1000m² in area. In turn, the dwellings in the site environs are often quite large. The site itself…

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: [2018] NSWLEC 1484
Decision Date: 18 September 2018

CaseChat Overview and Summary

The case of Soligo v Fairfield City Council involved the applicant, Soligo, who sought a variation of the minimum lot size standard in accordance with clause 4.6 of the Fairfield Local Environmental Plan 2013. The Council had previously rejected Soligo’s development application, prompting an appeal to the Land and Environment Court of New South Wales. The primary dispute centred around the validity and appropriateness of the Council’s decision to deny the variation request and subsequently reject the development application for subdividing an allotment.

The central legal issue was whether the Council had correctly exercised its discretion in denying the variation of the minimum lot size standard and rejecting the development application. Soligo argued that the Council’s decision was flawed and not in accordance with the statutory requirements. The Court had to determine if the Council's decision was lawful, reasonable, and supported by proper considerations. This involved examining the relevant provisions of the Environmental Planning and Assessment Act 1979 and the Fairfield Local Environmental Plan 2013, alongside the evidence presented.

The Court found that the Council's decision was unreasonable and not in line with the statutory requirements. The reasoning was that the Council failed to adequately consider the specific circumstances of the site and the merits of the application. The Court held that the variation request was valid and that the Council’s rejection of the development application was therefore flawed. The Court approved the development application subject to specific conditions outlined in Annexure A, effectively reversing the Council’s initial decision.

Consequently, the Court ordered that the variation request be upheld, the appeal be successful, and the development application be approved subject to the stipulated conditions. Additionally, the Court ordered that the documents submitted by Soligo be returned to the applicant.

Orders

Orders of the court

The Court orders that:

(1) The written request made, pursuant to clause 4.6 of Fairfield Local Environmental Plan 2013, to vary the minimum lot size standard prepared by Haskew de Chalain Planning, dated August 2018 is upheld.

(2) The appeal is upheld.

(3) Development Application No. 428.1/2016 to subdivide an existing allotment into two Torrens Title allotments is approved subject to the conditions at Annexure A.

(4) Exhibit D is 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:	Soligo v Fairfield City Council [2018] NSWLEC 1484
Hearing dates:	27 August 2018
Date of orders:	18 September 2018
Decision date:	18 September 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) The written request made, pursuant to clause 4.6 of Fairfield Local Environmental Plan 2013, to vary the minimum lot size standard prepared by Haskew de Chalain Planning, dated August 2018 is upheld. (2) The appeal is upheld. (3) Development Application No. 428.1/2016 to subdivide an existing allotment into two Torrens Title allotments is approved subject to the conditions at Annexure A. (4) Exhibit D is returned.
Catchwords:	DEVELOPMENT APPLICATION: subdivision – non-compliance with LEP standard, whether cl 4.6 of FLEP is satisfied
Legislation Cited:	Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy No 1 – Development Standards
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Moskovich v Waverley Council [2016] NSWLEC 1015 Wehbe v Pittwater Council (2007) 156 LGERA 446
Texts Cited:	Fairfield Citywide Development Control Plan 2013 Macquarie Dictionary 2018 (online)
Category:	Principal judgment
Parties:	Guido Soligo (First Applicant) Eddi Soligo (Second Applicant) Fairfield City Council (Respondent)
Representation:	Counsel: J Reid (Applicants) Solicitors: Meehans Solicitors Pty Ltd (Applicants) A Seton, Marsden Law Group (Respondent)
File Number(s):	2018/63560
Publication restriction:	No