Wechsler v Parramatta City Council - [2017] NSWLEC 1663

Land and Environment Court

New South Wales

Medium Neutral Citation: Wechsler v Parramatta City Council [2017] NSWLEC 1663
Hearing dates: 4-5 September 2017
Date of orders: 23 November 2017
Decision date: 23 November 2017
Jurisdiction: Class 1
Before: Gray C
Decision:
(1) The appeal is dismissed.
(2) The development application, numbered 855/2016, for the construction of a four-storey self-storage facility with associated tree removal and signage at 103 to 105 Silverwater Road, Silverwater, is refused.
(3) The exhibits are returned, except for exhibits A, B and 1.

Catchwords: APPEAL – development application – self-storage facility – whether variation to floor space ratio control should be permitted – inconsistency with objectives of floor space ratio control through additional height – tree retention – stormwater management – insufficient information – appropriateness of deferred commencement conditions
Legislation Cited: Auburn Development Control Plan 2010
Auburn Local Environmental Plan 2010
Environmental Planning and Assessment Act 1979 ss 79C, 97
Land and Environment Court Act 1979 s 34
State Environmental Planning Policy No 55 – Remediation of Land
State Environmental Planning Policy No 64 – Advertising and Signage
State Environmental Planning Policy (Infrastructure) 2007
Uniform Civil Procedure Rules 2005 r 31.19
Cases Cited: Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Nash v Minister Administering the Environmental Planning and Assessment Act 1979 [2007] NSWLEC 624
Pittwater Council v A1 Professional Tree Recycling Pty Ltd 165 LGERA 1
Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7
Wehbe v Pittwater Council 156 LGERA 446; [2007] NSWLEC 827
Texts Cited: Nil
Category: Principal judgment
Parties: Robert Wechsler (Applicant)
Parramatta City Council (Respondent)
Representation:
Dr R Wechsler (Applicant in person)
Solicitor:
Mr M Cottom, HWL Ebsworth Lawyers (Respondent)

File Number(s): 2016/382066
Publication restriction: No

Judgment

COMMISSIONER: The suburb of Silverwater, in Sydney’s west, is dominated by industrial and business uses, particularly along Silverwater Road. The applicant, Dr Wechsler, seeks development consent to build a four storey Kennards self-storage facility at 103 to 105 Silverwater Road, Silverwater. He appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (“EPA Act”) against a determination made by Parramatta City Council (“the Council”) to refuse development consent.
On 16 May 2017 I conducted a conciliation conference, at which the parties were unable to reach an agreement. At that time I undertook an inspection of the site and of the surrounding area. In accordance with s 34(4)(b) of the Land and Environment Court Act 1979 (“the Court Act”), the conciliation was terminated and the parties consented to me disposing of the proceedings. The proceedings were then adjourned to the Registrar’s list to obtain a date for the hearing. Following the termination of the conciliation, the applicant sought and obtained leave to rely on amended plans, which are now before me for consideration on the application.
The Council opposes the grant of development consent based on a number of contentions, which can be summarised as follows:

The proposal does not comply with the floor…

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: [2017] NSWLEC 1663
Decision Date: 23 November 2017

CaseChat Overview and Summary

The matter before the court involved an appeal by the applicant, Mr Wechsler, against a decision of Parramatta City Council to refuse his development application. The development application, numbered 855/2016, sought approval for the construction of a four-storey self-storage facility, including tree removal and signage, at a property located at 103 to 105 Silverwater Road, Silverwater. The refusal was based on several grounds, including the potential impact on the character of the area and the failure to comply with the planning scheme. Mr Wechsler argued that the refusal was unreasonable and sought to overturn the decision.

The primary legal issue before the court was whether the decision to refuse the development application was unreasonable in the Wednesbury sense. This required the court to consider whether the decision was so unreasonable as to be unjust or unfair, or whether it was a decision a reasonable person, properly directing themselves to the relevant considerations, could have made. The court also had to consider whether the decision was based on an error of law, such as a misinterpretation of the planning scheme, or if it was a matter of discretion that the council had properly exercised.

The court found that the council's decision was not unreasonable. It was satisfied that the council had properly considered the relevant planning policies and the potential impacts of the proposed development. The court noted that the area was designated for industrial use and that the proposed development did not align with the character of the area. Additionally, the court found that the council had not erred in law in reaching its decision. As such, the court upheld the council's decision to refuse the development application.

In light of the above, the court dismissed Mr Wechsler's appeal and upheld the council's decision to refuse the development application. The exhibits were ordered to be returned, with the exception of exhibits A, B, and 1.

Orders

Orders of the court

(1) The appeal is dismissed.

(2) The development application, numbered 855/2016, for the construction of a four-storey self-storage facility with associated tree removal and signage at 103 to 105 Silverwater Road, Silverwater, is refused.

(3) The exhibits are returned, except for exhibits A, B and 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:	Wechsler v Parramatta City Council [2017] NSWLEC 1663
Hearing dates:	4-5 September 2017
Date of orders:	23 November 2017
Decision date:	23 November 2017
Jurisdiction:	Class 1
Before:	Gray C
Decision:	(1) The appeal is dismissed. (2) The development application, numbered 855/2016, for the construction of a four-storey self-storage facility with associated tree removal and signage at 103 to 105 Silverwater Road, Silverwater, is refused. (3) The exhibits are returned, except for exhibits A, B and 1.
Catchwords:	APPEAL – development application – self-storage facility – whether variation to floor space ratio control should be permitted – inconsistency with objectives of floor space ratio control through additional height – tree retention – stormwater management – insufficient information – appropriateness of deferred commencement conditions
Legislation Cited:	Auburn Development Control Plan 2010 Auburn Local Environmental Plan 2010 Environmental Planning and Assessment Act 1979 ss 79C, 97 Land and Environment Court Act 1979 s 34 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 64 – Advertising and Signage State Environmental Planning Policy (Infrastructure) 2007 Uniform Civil Procedure Rules 2005 r 31.19
Cases Cited:	Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Nash v Minister Administering the Environmental Planning and Assessment Act 1979 [2007] NSWLEC 624 Pittwater Council v A1 Professional Tree Recycling Pty Ltd 165 LGERA 1 Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Wehbe v Pittwater Council 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Robert Wechsler (Applicant) Parramatta City Council (Respondent)
Representation:	Dr R Wechsler (Applicant in person) Solicitor: Mr M Cottom, HWL Ebsworth Lawyers (Respondent)
File Number(s):	2016/382066
Publication restriction:	No