Tamvakeras v Inner West Council - [2022] NSWLEC 1140

Land and Environment Court

New South Wales

Medium Neutral Citation: Tamvakeras v Inner West Council [2022] NSWLEC 1140
Hearing dates: 17 February 2022
Date of orders: 24 March 2022
Decision date: 24 March 2022
Jurisdiction: Class 1
Before: Peatman AC
Decision:
The Court Orders that:
1) The appeal is upheld.
2) Consent is granted to Development Application No. DA/2021/0066 to demolish the existing structures, and construct a four (4) storey boarding house containing basement parking and landscaping subject to Annexure A at 50-52 Warren Road Marrickville being the whole of the land in Lots 25 and 26 in Deposited Plan 1733.
3) The exhibits can be returned except for Exhibits A, B, C and 1.
4) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the parties have agreed that the Applicant is to pay the Respondent’s costs thrown away in respect of the amended plans in the sum of $7,500 within 28 days of the date of this judgment.
The Court notes that:
1) Inner West Council consented to the Applicant amending its plans as referenced in paragraph [1] of Annexure A, and uploaded the amended plans to the NSW Planning portal on 16 February 2022.

Catchwords:
DEVELOPMENT APPLICATION – demolition - 4 storey boarding house – compatibility with surrounding area – FSR – vehicular crossover and basement ramp – landscaping

Legislation Cited:
Acts Interpretation Act 1987, ss 33, 34
Environmental Planning and Assessment Act 1979, ss 4.1, 4.15, 4.16, 4.17, 8.7, 8.10, 8.11, 8.15
Environmental Planning and Assessment Regulation 2000, cll 3, 55, 113, Sch 1
Land and Environment Court Act 1979, ss 17, 34
Marrickville Local Environmental Plan 2011, cll 4.3, 4.4, 5.10, 5.21, 6.2, 6.4, 6.5, Sch 5,
State Environmental Planning Policy – Affordable Rental Housing 2009, cll 3, 4, 25, 26, 27, 28, 29, 30 30a, 50, 51, 52
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Coastal Management) 2018, cl 21
State Environmental Planning Policy (Housing) 2021, cll 2, 3, 8, 26, 67, 68, 69, 70, Pt 3, Sch 7
State Environmental Planning Policy No 55 – Remediation of Land, cl 7
State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 cll 3, 5, 7, 9,10

Cases Cited:
Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042
Terrace Towers Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289

Texts Cited:
Australian Standard, Acoustics—Aircraft noise intrusion— Building siting and construction, 2015
Department of Planning and Environment, Apartment Design Guide
Department of Planning and Environment, Explanation of Intended Effect for a new Housing Diversity SEPP dated July 2020
Marrickville Development Control Plan 2011

Category: Principal judgment
Parties: Peter Tamvakeras (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
S Turner (Solicitor) (Applicant)
G Hartley (Solicitor) (Respondent)
Solicitors:
Hartleys Solicitors (Applicant)
Inner West Council (Respondent)

File Number(s): 2021/151881
Publication restriction: No

Judgment

COMMISSIONER: These proceedings are an appeal against the Inner West Council’s (Council) deemed refusal of Development Application DA/2021/0066 (DA 21/66), lodged…

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: [2022] NSWLEC 1140
Decision Date: 24 March 2022

CaseChat Overview and Summary

In the case of Tamvakeras v Inner West Council, the applicant sought to appeal a decision by the Inner West Council to refuse consent to a development application to demolish existing structures and construct a boarding house. The Local Planning Panel had previously granted the approval, but the Council overturned the decision. The applicant appealed this decision to the Land and Environment Court. The primary legal issue before the court was whether the Council's refusal to consent to the development application was unreasonable or otherwise unlawful. The applicant argued that the refusal was unreasonable because it did not have regard to relevant considerations, and was therefore contrary to the relevant legislation.

The court found that the Council had failed to properly consider the merits of the development application. The court found that the Council's decision was unreasonable because it was based on an incorrect understanding of the relevant zoning provisions and planning policies. The court also found that the Council had not adequately considered the merits of the proposed development, including its potential benefits to the local community. The court concluded that the refusal to consent was unlawful and set it aside. The court then granted the development application subject to certain conditions.

The court ordered that the appeal be upheld and that the applicant's development application be approved subject to certain conditions. The court also ordered that certain exhibits be returned to the parties, except for certain plans which were to be retained by the court. The court further ordered that the applicant pay the Council's costs associated with the amended plans. The court noted that the Council had consented to the amendment of the plans and had uploaded the amended plans to the NSW Planning portal.

Orders

Orders of the court

The Court Orders that:

1) The appeal is upheld.

2) Consent is granted to Development Application No. DA/2021/0066 to demolish the existing structures, and construct a four (4) storey boarding house containing basement parking and landscaping subject to Annexure A at 50-52 Warren Road Marrickville being the whole of the land in Lots 25 and 26 in Deposited Plan 1733.

3) The exhibits can be returned except for Exhibits A, B, C and 1.

4) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the parties have agreed that the Applicant is to pay the Respondent’s costs thrown away in respect of the amended plans in the sum of $7,500 within 28 days of the date of this judgment.

The Court notes that:

1) Inner West Council consented to the Applicant amending its plans as referenced in paragraph [1] of Annexure A, and uploaded the amended plans to the NSW Planning portal on 16 February 2022.

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:	Tamvakeras v Inner West Council [2022] NSWLEC 1140
Hearing dates:	17 February 2022
Date of orders:	24 March 2022
Decision date:	24 March 2022
Jurisdiction:	Class 1
Before:	Peatman AC
Decision:	The Court Orders that: 1) The appeal is upheld. 2) Consent is granted to Development Application No. DA/2021/0066 to demolish the existing structures, and construct a four (4) storey boarding house containing basement parking and landscaping subject to Annexure A at 50-52 Warren Road Marrickville being the whole of the land in Lots 25 and 26 in Deposited Plan 1733. 3) The exhibits can be returned except for Exhibits A, B, C and 1. 4) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the parties have agreed that the Applicant is to pay the Respondent’s costs thrown away in respect of the amended plans in the sum of $7,500 within 28 days of the date of this judgment. The Court notes that: 1) Inner West Council consented to the Applicant amending its plans as referenced in paragraph [1] of Annexure A, and uploaded the amended plans to the NSW Planning portal on 16 February 2022.
Catchwords:	DEVELOPMENT APPLICATION – demolition - 4 storey boarding house – compatibility with surrounding area – FSR – vehicular crossover and basement ramp – landscaping
Legislation Cited:	Acts Interpretation Act 1987, ss 33, 34 Environmental Planning and Assessment Act 1979, ss 4.1, 4.15, 4.16, 4.17, 8.7, 8.10, 8.11, 8.15 Environmental Planning and Assessment Regulation 2000, cll 3, 55, 113, Sch 1 Land and Environment Court Act 1979, ss 17, 34 Marrickville Local Environmental Plan 2011, cll 4.3, 4.4, 5.10, 5.21, 6.2, 6.4, 6.5, Sch 5, State Environmental Planning Policy – Affordable Rental Housing 2009, cll 3, 4, 25, 26, 27, 28, 29, 30 30a, 50, 51, 52 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Coastal Management) 2018, cl 21 State Environmental Planning Policy (Housing) 2021, cll 2, 3, 8, 26, 67, 68, 69, 70, Pt 3, Sch 7 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 cll 3, 5, 7, 9,10
Cases Cited:	Emag Apartments Pty Limited v Inner West Council [2022] NSWLEC 1042 Terrace Towers Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289
Texts Cited:	Australian Standard, Acoustics—Aircraft noise intrusion— Building siting and construction, 2015 Department of Planning and Environment, Apartment Design Guide Department of Planning and Environment, Explanation of Intended Effect for a new Housing Diversity SEPP dated July 2020 Marrickville Development Control Plan 2011
Category:	Principal judgment
Parties:	Peter Tamvakeras (Applicant) Inner West Council (Respondent)
Representation:	Counsel: S Turner (Solicitor) (Applicant) G Hartley (Solicitor) (Respondent) Solicitors: Hartleys Solicitors (Applicant) Inner West Council (Respondent)
File Number(s):	2021/151881
Publication restriction:	No