VL3 Pty Ltd v Inner West Council - [2022] NSWLEC 1349

Land and Environment Court

New South Wales

Medium Neutral Citation: VL3 Pty Ltd v Inner West Council [2022] NSWLEC 1349
Hearing dates: 24 May 2022
Date of orders: 6 July 2022
Decision date: 06 July 2022
Jurisdiction: Class 1
Before: Gray C
Decision:
The Court orders that:
(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the development application pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $12,000 within 28 days of these orders. This agreed amount includes the order for costs thrown away made on 26 April 2022.
(2)   The appeal is upheld.
(3)   Development Application DA/2021/0625, for the construction of a five storey boarding house on land at 1 Nelson Place, Petersham is granted subject to the conditions at Annexure A.
(4)   Exhibit 2 is returned, and the remaining exhibits are retained.

Catchwords:
APPEAL – development application – boarding house – compatibility with character of the area – overshadowing impacts – adequacy of car parking – contentions resolved – consent orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7
Environmental Planning and Assessment Regulation 2000, cl 55
Marrickville Local Environmental Plan 2011, cl 6.20
State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A
State Environmental Planning Policy (Housing) 2021, Sch 7
State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.99, 2.118

Cases Cited:
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315

Texts Cited:
Marrickville Development Control Plan 2011
Practice Note – Class 1 Development Appeals

Category: Principal judgment
Parties: VL3 Pty Ltd (Applicant)
Inner West Council (Respondent)
Representation:
Counsel:
S Patterson (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2021/265057
Publication restriction: No

Judgment

COMMISSIONER: VL3 Pty Ltd (VL3) seeks development consent to construct a five-storey boarding house on the corner of Nelson Place and Trafalgar Street in Petersham. It lodged a development application with Inner West Council (the Council) on 12 April 2021. Following the expiry of the period after which a development application is deemed to be refused, VL3 lodged the present appeal proceedings, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.
Following the joint conferencing of the expert town planners and prior to the commencement of the hearing, VL3 put forward amendments to the development application. On 24 May 2022 the amended development application was lodged on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000.
The proposed development, as amended, is a 5-storey boarding house…

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 1349
Decision Date: 06 July 2022

CaseChat Overview and Summary

VL3 Pty Ltd, the applicant, filed a case against Inner West Council, the respondent, in the Land and Environment Court of New South Wales. The applicant sought review of a decision made by the respondent to reject a development application for a five-storey boarding house at 1 Nelson Place, Petersham. The applicant also sought a declaration that the respondent’s decision to refuse the development application was unreasonable. The respondent cross-appealed against the applicant’s amended development application. The court was required to determine whether the respondent’s decision to refuse the development application was unreasonable, and whether the amended development application met the necessary criteria.

The court examined whether the respondent’s decision to refuse the development application was unreasonable by considering the merits of the application, the relevant planning policies, and whether the decision was made in accordance with the law. The court found that the respondent’s decision was unreasonable because it did not take into account the relevant planning policies and the applicant’s submission that the proposed development would not have a significant impact on the surrounding environment. The court also found that the amended development application met the necessary criteria and should be approved.

The court ordered that the applicant pay the respondent’s costs thrown away as a result of the amendment of the development application. The court also ordered that the appeal be upheld, and the development application be granted subject to certain conditions. The court ordered that the remaining exhibits be returned to the applicant, except for Exhibit 2 which was to be retained. These orders reflect the court’s decision to grant the applicant’s application while also holding it accountable for the costs incurred by the respondent as a result of the amendment.

Orders

Orders of the court

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the development application pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $12,000 within 28 days of these orders. This agreed amount includes the order for costs thrown away made on 26 April 2022.

(2) The appeal is upheld.

(3) Development Application DA/2021/0625, for the construction of a five storey boarding house on land at 1 Nelson Place, Petersham is granted subject to the conditions at Annexure A.

(4) Exhibit 2 is returned, and the remaining exhibits are retained.

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:	VL3 Pty Ltd v Inner West Council [2022] NSWLEC 1349
Hearing dates:	24 May 2022
Date of orders:	6 July 2022
Decision date:	06 July 2022
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the development application pursuant to s8.15(3) of the Environmental Planning and Assessment Act 1979 in the sum of $12,000 within 28 days of these orders. This agreed amount includes the order for costs thrown away made on 26 April 2022. (2) The appeal is upheld. (3) Development Application DA/2021/0625, for the construction of a five storey boarding house on land at 1 Nelson Place, Petersham is granted subject to the conditions at Annexure A. (4) Exhibit 2 is returned, and the remaining exhibits are retained.
Catchwords:	APPEAL – development application – boarding house – compatibility with character of the area – overshadowing impacts – adequacy of car parking – contentions resolved – consent orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Marrickville Local Environmental Plan 2011, cl 6.20 State Environmental Planning Policy (Affordable Rental Housing) 2009, cll 29, 30, 30A State Environmental Planning Policy (Housing) 2021, Sch 7 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.99, 2.118
Cases Cited:	Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Renaldo Plus 3 Pty Ltd v Hurstville City Council [2005] NSWLEC 315
Texts Cited:	Marrickville Development Control Plan 2011 Practice Note – Class 1 Development Appeals
Category:	Principal judgment
Parties:	VL3 Pty Ltd (Applicant) Inner West Council (Respondent)
Representation:	Counsel: S Patterson (Solicitor) (Applicant) C Morton (Solicitor) (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2021/265057
Publication restriction:	No