Young v Parramatta City Council - [2007] NSWCA 82

NEW SOUTH WALES COURT OF APPEAL

CITATION: Young v Parramatta City Council [2007] NSWCA 82

FILE NUMBER(S):
40601/06

HEARING DATE(S): 27 March 2007

JUDGMENT DATE: 27 March 2007
EX TEMPORE DATE: 27 March 2007

PARTIES:
Greg Young
Parramatta City Council

JUDGMENT OF: Beazley JA Tobias JA Basten JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): 10322/06

LOWER COURT JUDICIAL OFFICER: Pain J

LOWER COURT DATE OF DECISION: 1 September 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
[2006] NSWLEC 368

COUNSEL:
A: Greg Young
R: Ian Woodward (solicitor)

SOLICITORS:
A: Greg Young
R: Storey & Gough (Sydney)

CATCHWORDS:
ENVIRONMENT AND PLANNING - Planning schemes and instruments - Construction and interpretation - State Environmental Planning Policy 5 - Housing for Older People or People with a Disability cl 18

LEGISLATION CITED:
Environmental Planning & Assessment Act 1979
Environment Planning & Assessment Regulation 2000
Land and Environment Court Act 1979
Land and Environment Court Rules 1996
State Environmental Planning Policy 5 - Housing for Older People or People with a Disability
State Environmental Planning Policy (Seniors Living) 2004

CASES CITED:
Blue Mountains City Council v Laurence Browning Pty Limited (2006) NSWCA 331
Lowy v Land and Environment Court of New South Wales (2002) 123 LGERA 179
Strathfield Municipal Council v Poynting (2001) 116 LGERA 319
Young v Parramatta City Council [2004] NSWLEC 245
Young v Parramatta City Council (2006) NSWLEC 368
Young v Parramatta City Council (2006) NSWLEC 662

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 040601/06
BEAZLEY JA
TOBIAS JA
BASTEN JA
TUESDAY 27 MARCH 2007

GREG YOUNG v PARRAMATTA CITY COUNCIL

Judgment

TOBIAS JA: The appellant, Mr Greg Young, is the owner of a parcel of land located at 43 Wyralla Avenue, Epping (the land) upon which there is currently constructed a fairly dilapidated old weatherboard cottage. The land has an area of 723 square metres and is at the western end of Wyralla Avenue and within a conservation area under the Parramatta City Council’s Heritage Local Environmental Plan and Heritage Development Control Plan.
In 2002 Mr Young made application to the Council pursuant to State Environmental Planning Policy 5 - Housing for Older People or People with a Disability (SEPP 5) to demolish various outbuildings and unsympathetic rear extensions to the existing weatherboard cottage, to carry out alterations and additions to that cottage and to erect a new cottage at the rear of the existing cottage. Both buildings would be suitable for use by aged or disabled persons.
Mr Young had made a number of applications to the Council and to the Land and Environment Court with respect to the redevelopment of the land, generally without success. In particular, he had sought to erect a new dwelling at the rear of the existing dwelling as part of a dual occupancy, which the Court had rejected. However, it was accepted ultimately by the Court that housing for older people or people with disabilities authorised by the…

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: [2007] NSWCA 82
Decision Date: 27 March 2007

CaseChat Overview and Summary

The case of *Young v Parramatta City Council* concerned an appeal to the New South Wales Court of Appeal regarding the interpretation of State Environmental Planning Policy 5 – Housing for Older People or People with a Disability. The appellant, Mr Young, sought to challenge a decision made by the primary judge concerning the application of clause 18 of the Policy to his development.

The central legal issue before the Court of Appeal was the proper construction of clause 18 of the Policy, which deals with the provision of open space in developments designed for older people or people with a disability. Specifically, the court had to determine whether the open space requirements under the Policy were mandatory or discretionary, and how they applied in the context of the development proposed by Mr Young.

The Court of Appeal, in dismissing the appeal, affirmed the primary judge's interpretation. The court reasoned that clause 18 of the Policy imposed a mandatory requirement for the provision of open space, and that this requirement was not subject to the discretion of the consent authority. The judges applied established principles of statutory interpretation, concluding that the language of the clause indicated a clear intention to mandate the provision of open space, which was considered an integral component of the Policy's objectives. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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