State Projects Pty Ltd v Hurstville City Council - [2015] NSWLEC 1443

Land and Environment Court

New South Wales

Medium Neutral Citation: State Projects Pty Ltd v Hurstville City Council [2015] NSWLEC 1443
Hearing dates: 6,7 October 2015
Date of orders: 30 October 2015
Decision date: 30 October 2015
Jurisdiction: Class 1
Before: Brown ASC
Decision:
1. The appeal is dismissed.
2. Development Application No. 2014/0865 for the demolition of an existing dwelling and structures and the construction of an in- fill affordable housing development at 3 Newman Street Mortdale is refused.
3. The exhibits are returned with the exception of exhibit 1.

Catchwords: DEVELOPMENT APPLICATION: demolition of an existing dwelling and structures and the construction of an in fill affordable housing development - compatibility with the character of the local area – satisfaction with design quality principles relating to context, scale, built form, density, landscape, amenity and aesthetics - unsafe traffic movements
Legislation Cited: Environmental Planning and Assessment Act 1979
Hurstville Local Environmental Plan 2012
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
Cases Cited: Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Texts Cited: Class 1 Development Appeals Practice Note
Category: Principal judgment
Parties: State Projects Pty Ltd (Applicant)
Hurstville City Council (Respondent)
Representation:
Counsel:
Mr G McKee, solicitor (Applicant)
Ms S Puckeridge, solicitor (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 10018 of 2015
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal against the refusal of Development Application No. 2014/0865 for the the demolition of an existing dwelling and structures and the construction of an in fill affordable housing development comprising of six terraced styled dwellings with basement parking at 3 Newman Street Mortdale (the site).
The development application relies upon the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) for approval.
The council maintains that the development should be refused because the development:

is not compatible with the character of the local area,

does not satisfy the design quality principles relating to context, scale, built form, density, landscape, amenity and aesthetics, and

creates unsafe traffic movements.

The council also maintains that the development application should be refused as the application, before the Court, is unsuitable for approval given the large number of amendments needed to address some of the concerns raised by the council. The council contends that the use of deferred commencement conditions is an inappropriate method to make these amendments. The applicant disagrees and maintains that the use of deferred commencement conditions is appropriate.

The site

The site is a regular shaped allotment with three road frontages, being Newman Street, Ocean Lane and Cross Lane. The Newman Street frontage is 15.43m and the site area is 588.1sqm. The site has a cross fall across the width of up to 2m and the site also falls to the rear. A single storey…

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: [2015] NSWLEC 1443
Decision Date: 30 October 2015

CaseChat Overview and Summary

The case of State Projects Pty Ltd v Hurstville City Council involves the applicant, State Projects Pty Ltd, seeking to appeal the decision of Hurstville City Council to refuse its development application. The dispute revolves around the council's refusal to approve a proposal for the demolition of an existing dwelling and the construction of an in-fill affordable housing development at 3 Newman Street, Mortdale. The matter was heard in the Land and Environment Court of New South Wales, where the court considered the appeal against the council's decision. The legal issues before the court involved determining whether the council's refusal was lawful and whether the applicant's development application met the criteria for approval under the relevant planning legislation and policies. The court examined the evidence and submissions from both parties to assess the merits of the appeal.

In its reasoning, the court considered various factors, including the applicant's compliance with planning requirements, the impact of the proposed development on the local community, and adherence to relevant planning policies and guidelines. The court found that the council's decision to refuse the development application was well-reasoned and supported by the evidence presented. The court also noted that the proposed development did not align with the objectives of the local planning policies, particularly those aimed at preserving the character of the neighbourhood and ensuring appropriate density. Consequently, the court upheld the council's decision and dismissed the applicant's appeal.

The court's final orders include the dismissal of the appeal, the refusal of Development Application No. 2014/0865, and the return of the exhibits with the exception of exhibit 1. This decision reinforces the importance of adhering to local planning policies and the council's authority in making decisions that balance development needs with community interests.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development Application No. 2014/0865 for the demolition of an existing dwelling and structures and the construction of an in- fill affordable housing development at 3 Newman Street Mortdale is refused.

3. The exhibits are returned with the exception of exhibit 1.

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:	State Projects Pty Ltd v Hurstville City Council [2015] NSWLEC 1443
Hearing dates:	6,7 October 2015
Date of orders:	30 October 2015
Decision date:	30 October 2015
Jurisdiction:	Class 1
Before:	Brown ASC
Decision:	1. The appeal is dismissed. 2. Development Application No. 2014/0865 for the demolition of an existing dwelling and structures and the construction of an in- fill affordable housing development at 3 Newman Street Mortdale is refused. 3. The exhibits are returned with the exception of exhibit 1.
Catchwords:	DEVELOPMENT APPLICATION: demolition of an existing dwelling and structures and the construction of an in fill affordable housing development - compatibility with the character of the local area – satisfaction with design quality principles relating to context, scale, built form, density, landscape, amenity and aesthetics - unsafe traffic movements
Legislation Cited:	Environmental Planning and Assessment Act 1979 Hurstville Local Environmental Plan 2012 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development
Cases Cited:	Peninsula Development Australia Pty Limited v Pittwater Council [2011] NSWLEC 1244 Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Texts Cited:	Class 1 Development Appeals Practice Note
Category:	Principal judgment
Parties:	State Projects Pty Ltd (Applicant) Hurstville City Council (Respondent)
Representation:	Counsel: Mr G McKee, solicitor (Applicant) Ms S Puckeridge, solicitor (Respondent) Solicitors: McKees Legal Solutions (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	10018 of 2015
Publication restriction:	No