Huajun Investments Pty Ltd v City of Canada Bay Council (No 3) [2019] NSWLEC 42

Land and Environment Court New South Wales

Medium Neutral Citation: Huajun Investments Pty Ltd v City of Canada Bay Council (No 3) [2019] NSWLEC 42 Hearing dates: 24 and 25 January, 15 February, 5, 6, 25, 26 and 29 March 2019 Date of orders: 31 July 2019 Decision date: 31 July 2019 Jurisdiction: Class 1 Before: Moore J Decision: (1) The request pursuant to cl 4.6 of the City of Canada Bay Local Environmental Plan 2013 (the local environmental plan) to comply with the development standard applicable to the site pursuant to cl 4.3 Height of Buildings of the local environmental plan is refused; (2) Development Application 2016/0429 for the erection of an eight storey residential flat building with basement car-parking at 38-42 Leicester Avenue, Strathfield, is determined by refusal of development consent; (3) The exhibits and documents marked for identification, other than Exhibit C, are returned; (4) No order for costs pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979; and (5) Costs, other than as provided for in (4), are reserved. Catchwords: DEVELOPMENT APPLICATION - proceedings arising on remitter from the Court of Appeal - proposed residential flat building in a precinct known as the Strathfield Triangle - proposed eight-storey development would breach the height of buildings development standard set by the City of Canada Bay Local Environmental Plan 2013 (the LEP) - neighbouring owner joined as Second Respondent to the proceedings - does proposed development satisfy applicable elements of cl 101 of State Environmental Planning Policy (Infrastructure) 2007 (the SEPP)? - proposed development fails to satisfy two separate elements in cl 101 of the SEPP, each failure preventing approval of the proposed development - should a request pursuant to cl 4.6 of the LEP for dispensation from compliance with the height of buildings development standard applicable to the site be granted? - cl 4.6 request does not demonstrate that the proposed development satisfies the first of the objectives for the height of buildings development standard and is to be refused on this basis - merit assessment of the proposed development - even if jurisdiction existed to permit merit assessment of the proposed development, the proposed development is unacceptable - proposed development refused - appeal dismissed Legislation Cited: Canada Bay Local Environmental Plan 2013 Canterbury Planning Scheme Ordinance 1970 Civil Procedure Act 2005, s 56 Conveyancing Act 1919, s 88K(1) Environmental Planning and Assessment Act 1979, s 8.15 Environmental Planning and Assessment Regulation 2000, cl 49 Land and Environment Court Act 1979, ss 34, 38(2) and 56A Roads Act 1993, s 182(1) State Environmental Planning Policy (Infrastructure) 2007, cl 101 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Supreme Court Act 1970 s 69 Uniform Civil Procedure Rules 2005, r 36.17 Cases Cited: Al Maha Pty Ltd v Huajan Investments Pty Ltd [2018] NSWCA 245 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Canterbury City Council v Saad [2013] NSWCA 251 Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Goldin & Anor v The Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 Huajun Investments Pty Ltd v City of Canada Bay Council [2018] NSWLEC 1087 Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194 Ibos Pty Limited v DHSH (Aust) Travel Pty Limited (2007) 152 LGERA 348; [2007] NSWLEC 120 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 Samy Saad v City of Canterbury Council [2012] NSWSC 389 Texts Cited: Macquarie Dictionary Oxford English Dictionary Category: Principal judgment Parties: Huajun Investments Pty Ltd (Applicant) City of Canada Bay Council (First Respondent) Al Maha Pty Ltd (Second Respondent) Representation: Counsel: Mr P Tomasetti SC/Mr J Doyle, barrister (Applicant) Ms H Irish, barrister (First Respondent) Mr T Robertson SC (Second Respondent)