Multicraft Developments Pty Ltd v Holroyd City Council [2009] NSWLEC 53

Land and Environment Court of New South Wales

CITATION : Multicraft Developments Pty Ltd v Holroyd City Council [2009] NSWLEC 53

APPLICANT Multicraft Developments Pty Ltd (previously Tso, Simon) PARTIES : RESPONDENT Holroyd City Council

FILE NUMBER(S) : 10456 of 2008

CORAM: Preston CJ

KEY ISSUES: APPEAL :- error of law - misdirection as to applicable DCP - misdirection material

LEGISLATION CITED: Land and Environment Court Act 1979 s 56A

DATES OF HEARING: 15 April 2009

EX TEMPORE JUDGMENT DATE : 15 April 2009

APPELLANT Sandra Duggan (barrister) SOLICITORS Conomos Legal LEGAL REPRESENTATIVES: RESPONDENT Richard K Graham (solicitor) SOLICITORS HWL Ebsworth

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

PRESTON CJ

15 APRIL 2009

10456 OF 2008

MULTICRAFT DEVELOPMENT PTY LTD (PREVIOUSLY SIMON TSO) v HOLROYD CITY COUNCIL

JUDGMENT

1 HIS HONOUR: The applicant appeals under s 56A of the Land and Environment Court Act 1979 against the decision of two Commissioners who constituted the court to refuse development consent to the applicant's development application for the erection of eighteen apartments at 17-23 Dressler Court, Holroyd Gardens and, accordingly, to dismiss the applicant's appeal to the court under s 97 of the Environmental Planning and Assessment Act 1979. Appeals under s 56A are limited to questions of law. 2 The applicant submits that the Commissioners erred in law in that they misdirected themselves by relying on an aspect of a master plan as having been imported as an element of the applicable development control plan when in law such aspect of the master plan had not been imported. The misdirection was material in that the Commissioners found that the proposed development was significantly different to the aspect of the master plan and that there were no compelling reasons to vary the master plan or to otherwise approve the proposed development without varying the master plan. 3 The Council has made a submitting appearance on the appeal. 4 I am satisfied that the Commissioners did misdirect themselves as to the applicable development control plan and such misdirection was material. 5 The applicable development control plan is Holroyd Development Control Plan No 30-Guidelines for the Development of Holroyd Gardens ("the DCP"). As the name suggests, it is a site specific development control plan which deals with the redevelopment of land known as "Holroyd Gardens" that was the former Goodlet & Smith Brickworks site. The applicant's land is a component of this site. 6 As subs 1.9.1 of the DCP explains, the DCP is formulated in six sections. The first section, designated s 2, provides the overarching objectives for the DCP and highlights the key issues involved in the design and redevelopment of the Holroyd Gardens site. The remaining sections of the DCP address requirements for specific components of any development on the Holroyd Gardens site. Section 3 deals with open space and describes principles and requirements for the design of individual elements of the open space system, including parks, pedestrian and cyclist facilities. Section 4 identifies key principles of the street system envisaged for the site and includes requirements for street dimensions, parking and landscape. Section 5 deals with built form. It contains principles and requirements for the form, location and appearance of buildings within the Holroyd Gardens site. This section is of relevance in this appeal. I will explain this section in more detail shortly. Section 6 deals with disabled access and adaptable housing. Section 7 deals with ancillary issues. 7 Subsection 1.9.2 of the DCP explains how the DCP should be used. It states that each major section of the DCP should be addressed in terms. Specifically the following steps are to be taken: