Lahoud v Willoughby City Council [2023] NSWLEC 117

Land and Environment Court New South Wales

Medium Neutral Citation: Lahoud v Willoughby City Council [2023] NSWLEC 117 Hearing dates: 1, 2, 3 and 4 November 2022; written submissions on 23 December 2022 and final written submissions by 23 June 2023 Date of orders: 02 November 2023 Decision date: 02 November 2023 Jurisdiction: Class 4 Before: Moore J Decision: See orders at [327] Catchwords: JUDICIAL REVIEW ‑ challenge to development consent for adaptive reuse of an existing commercial building, adding an additional level ‑ conversion to mixed‑use development with shop top housing ‑ development consent challenged on six separate grounds ‑ whether challenge to development consent commenced within statutory time limit ‑ challenge commenced within time limit ‑ if not within in time limit, whether challenge within Hickman principles of exceptions to compliance with time limits ‑ challenge within second of the Hickman principles JUDICIAL REVIEW ‑ Ground 1 ‑ ground alleges approved development breaches height of building development standard set by Willoughby Local Environmental Plan 2012 (the LEP) ‑ request pursuant to cl 4.6 of the LEP to permit non‑compliance with the development standard ‑ Planning Panel approved request to permit non‑compliance but on the basis that required modification of the development for which consent had been sought ‑ three tests in cl 4.6 of the LEP required to be applied to the proposed development for which application had been made ‑ Planning Panel did not misapply the tests in cl 4.6 of the LEP ‑ granting of dispensation for non‑compliance of the Height of Building Development Standard valid ‑ Ground 1 fails JUDICIAL REVIEW ‑ Ground 2 ‑ LEP requires that the western street frontage of the site be activated ‑ majority of the western street frontage proposed to be screening of ground level car parking ‑ consideration of extent to which activated street frontage required ‑ consideration of whether requirement for activated street frontage is a development standard ‑ held requirement for activated Street frontage is a development standard amenable to a dispensation request pursuant to cl 4.6 of the LEP ‑ no dispensation request made with the development application ‑ without a dispensation request satisfying cl 4.6 of the LEP, failure to satisfy the requirement for an activated street frontage on the western boundary of the site rendered development prohibited ‑ Planning Panel failed to give proper consideration to requirement for activated street frontage on western boundary of the site – consideration of matters of discretion - ground 2 upheld but, as a matter of discretion, relief refused JUDICIAL REVIEW ‑ Ground 3 ‑ ground proposes shop top housing must be directly vertically above ground floor commercial premises ‑ all dwellings above ground floor commercial premises ‑ proposed dwellings not all directly vertically above ground floor commercial premises ‑ definition of shop top housing does not require vertical alignment above ground floor commercial premises ‑ Ground 3 fails JUDICIAL REVIEW ‑ Ground 4 ‑ ground alleges breach of floor space ratio (FSR) permitted by development standard in the LEP ‑ calculation of FSR by application of gross floor area (GFA) to area of the site ‑ dispute as to areas to be included in GFA for FSR calculation ‑ consideration of the definition of basement in the LEP ‑ correct calculation of the FSR discloses no breach of development standard – Ground 4 fails JUDICIAL REVIEW ‑ Grounds 5 and 6 ‑ grounds alleges Planning Panel failed to consider requirements of cl 7 of State Environmental Planning Policy 55 ‑ Remediation of Land (the SEPP) ‑ Applicant gives evidence of knowledge of alleged contamination of the site coming to his attention in 1995 ‑ Applicant fails to disclose alleged contamination in submission to Council objecting to proposed development ‑ no adequate explanation of failure to disclose alleged contamination - Applicant developer of adjacent site to the east ‑ assuming basis for Grounds 5 and 6 made out (a matter not necessary to determine), proper exercise of discretion would require no declaration or orders appropriate arising from these grounds – no relief appropriate COSTS – Applicant failed on three grounds – Applicant succeeds on one ground but obtains no relief as a matter of discretion – Applicant obtains no relief on two further grounds addressed on the assumption that the grounds are made out (it not being necessary to determine if they were made out) – costs ordinarily follow the event – the event is Applicant's failure to obtain any relief – costs are discretionary – apportionment of costs – apportionment appropriate to reflect Applicant's establishment of one ground even though relief was not appropriate – Applicant to pay 80% of Respondents costs Legislation Cited: Environmental Planning and Assessment (Public Exhibition) Regulation 2020 Environmental Planning and Assessment Act 1979, s 4.59 Environmental Planning and Assessment Regulation 2000, cl 124 Environmental Planning and Assessment Regulation 2021 Land and Environment Court Act 1979, ss 20 and 71 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy No 55 ‑ Remediation of Land State Environmental Planning Policy No 65 ‑ Design Quality of Residential Apartment Development Uniform Civil Procedure Rules 2005, r 59.10 Willoughby Local Environmental Plan 2012 Cases Cited: Al Maha Pty Ltd v Hajun Investments Pty Ltd [2018] NSWCA 245 Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 164 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 El Khouri v Gemaveld Pty Ltd [2023) NSWCA 78 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Hrsto v Canterbury City Council (No 2) [2014] NSWLEC 121 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 James v Surf Road Nominees Pty Ltd (No2) [2005] NSWCA 296 Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1 Lahoud v Willoughby City Council [2022] NSWCA 214 Lahoud v Willoughby City Council [2022] NSWLEC 125 Liverpool City Council v Roads & Traffic Authority & Interlink Roads Pty Ltd (1991) 74 LGRA 265 Lu v Walding (No 2) [2021] NSWLEC 21 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Newcastle and Hunter Valley Speleological Society Inc v Upper Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; [1945] HCA 53 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Ross v Lane [2022] NSWCA 235 Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Texts Cited: Willoughby Local Centres Strategy to 2036 Category: Principal judgment Parties: Victor Lahoud (Applicant) Willoughby City Council (First Respondent) Helm Pty Ltd (Second Respondent) Representation: Counsel: T Robertson SC/D Robertson, barrister (Applicant) Submitting appearance (First Respondent) A Galasso SC/H Grace, barrister (Second Respondent)