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Warlam Pty Ltd v Marrickville Council

Warlam Pty Ltd v Marrickville Council

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Case Copied 19 March 2009 63 min read

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Reported Decision: Notice of Intention to Appeal filed 3/4/09
165 LGERA 184

Land and Environment Court

of New South Wales

CITATION: Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23

PARTIES:
APPLICANT:
Warlam Pty Ltd
RESPONDENT:
Marrickville Council

FILE NUMBER(S): 10623 of 2008

CORAM: Biscoe J

KEY ISSUES:
EXISTING USE :- Principles of existing use rights – whether development application proposed that existing use for a boarding house be developed into a different use for a prohibited residential flat building – whether proposed development an evolution of existing use or an enlargement, expansion or intensification of existing use within cl 41(1) of the Environmental Planning and Assessment Regulation 2000 – whether council estopped from denying that proposed use was for purpose of a boarding house
Estoppel – whether council estopped from denying that proposed development, the subject of a development application, was for the purpose of a boarding house.
Development Consent - existing use, parking and drainage considerations.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 76B, 79C, 106, 107, 108, Pt 4 Div 10
Environmental Planning and Assessment Regulation 2000, cl 41
Marrickville Local Environmental Plan 2001
State Environmental Planning Policy No 10 – Retention of Low-Cost Rental Accommodation, cl 7(4)(e)

CASES CITED: Adelaide Caravan Park Pty Ltd v Department of Industry, Technology and Commerce (1985) 7 ALD 756
Ashfield Municipal Council v Australian College of Physical Education Ltd (1992) 76 LGERA 151
Blair v Curran (1939) 62 CLR 464
Chamberlain v Deputy Commissioner of Taxation (1987-1988) 164 CLR 502
Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519
Dorrestijn v South Australian Planning Commission (1984) 54 LGRA 99
Egan v Hawkesbury City Council (1993) 79 LGERA 321
Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359, (2007) 159 LGERA 57
Holidays - A - Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127
Honig v Redfern [1949] 2 All ER 15 (1949) 47 LGR 447
Karmel & Co Pty Ltd (As Trustee for Urbanski Property Trust) v Federal Commissioner of Taxation [2004] ATC 2075
Kempsey Shire Council v Tebran Pty Ltd [2007] NSWLEC 731
Ku-ring-gai Municipal v Minister for Planning [2008] NSWLEC 174
Mackay v Newcastle City Council [2007] NSWLEC 377
New Brunswick Railway Co v British and French Trust Corporation Ltd [1939] AC 1
North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50
North Sydney Municipal Council v Sydney Serviced Apartments Pty Ltd (1990) 21 NSWLR 532
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485
Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278
Roberts v Waverley Municipal Council (1988) 14 NSWLR 423
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Shire of Perth v O’Keefe (1964) 110 CLR 529
Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138
Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710
Wyong Shire…

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: [2009] NSWLEC 23
Decision Date: 19 March 2009

CaseChat Overview and Summary

Warlam Pty Ltd sought development consent for the demolition of a large part of a residential building and the construction of a replacement residential building at 100 Wardell Road, Marrickville. The Marrickville Local Environmental Plan 2001 (LEP) zoned the land Residential 2(A). The LEP permitted boarding houses containing not more than ten residents with consent. The existing development had 12 rooms which accommodated more than 16 residents and the proposed development had 14 rooms to accommodate 20 residents. The applicant contended that the proposed development was an evolution of and/or an enlargement, expansion or intensification of the existing use. The council contended that the existing development was a boarding house for more than ten residents and that the proposed development was a residential flat building for which development consent could not be granted because it was a prohibited use under the LEP. The applicant contended that the council was estopped from denying that the proposed development was for the existing purpose of a boarding house. The court held that the proposed development was partly an evolution of the existing use and partly an enlargement, expansion or intensification of the existing use. The court found that the proposed development was not for the purpose of a residential flat building, but for the purpose of a boarding house. The court held that the council was not estopped from denying that the proposed development was for the purpose of a boarding house. The court held that it would be unreasonable to require the applicant to adopt a parking design that would permit an additional space or spaces on the site. The court held that the parties' agreed drainage conditions should be imposed. The court granted development consent on conditions including a condition that each residential room was permitted to contain as part of a kitchenette within the room a single bowl sink, a single drawer dishwasher, a two burner hotplate, a rangehood, a microwave oven and a refrigerator (maximum volume of 430L).

Orders