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

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

The court held that the applicant failed to satisfy multiple independent jurisdictional requirements: (1) there was insufficient evidence that access from Hilts Road was not practicable, so cl 101(2)(a) of the Infrastructure SEPP was not satisfied; (2) the proposed vehicular access to Leicester Avenue posed unresolved safety concerns under cl 101(2)(b)(i); (3) the cl 4.6 request for variation of the building height control failed to demonstrate compliance with the objectives of the height standard. In the alternative, even if those hurdles were met, the proposed development was found to have such significant merit issues (notably in solar access for apartments) that refusal was warranted...

Parties
Applicant: Huajun Investments Pty Ltd; First Respondent: City of Canada Bay Council; Second Respondent: Al Maha Pty Ltd
Jurisdiction
Australia
Judgment Date
31 July 2019
Procedural Posture
Class 1 Merit Appeal / Judgment Following Full Hearing and Remitter From Court of Appeal
Outcome
Development Application refused; appeal dismissed
Legal Topics
Development Consent, Local Environmental Plans, Development Standards, Height of Buildings, Clause 4.6 Requests, State Environmental Planning Policy, Refusal of Development Application, Jurisdictional Prerequisites, Solar Access, Site Access, Merit Assessment
Environmental and Planning Law Development Consent Local Environmental Plans Development Standards Height of Buildings Clause 4.6 Requests State Environmental Planning Policy Refusal of Development Application +4 more

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Parties

Huajun Investments Pty Ltd

Applicant

City of Canada Bay Council

First Respondent

Al Maha Pty Ltd

Second Respondent

Procedural Posture

Class 1 Merit Appeal / Judgment Following Full Hearing and Remitter From Court of Appeal

Legal Issues

  1. 1 Whether the applicant satisfied the jurisdictional requirements of cl 101 of State Environmental Planning Policy (Infrastructure) 2007 regarding access from a classified road;
  2. 2 Whether the request for a variation under cl 4.6 of the City of Canada Bay Local Environmental Plan 2013 for exceeding building height was adequate;
  3. 3 Whether development consent should be granted on a merit assessment including solar access, traffic, and amenity issues.

Ratio Decidendi

The court held that the applicant failed to satisfy multiple independent jurisdictional requirements: (1) there was insufficient evidence that access from Hilts Road was not practicable, so cl 101(2)(a) of the Infrastructure SEPP was not satisfied; (2) the proposed vehicular access to Leicester Avenue posed unresolved safety concerns under cl 101(2)(b)(i); (3) the cl 4.6 request for variation of the building height control failed to demonstrate compliance with the objectives of the height standard. In the alternative, even if those hurdles were met, the proposed development was found to have such significant merit issues (notably in solar access for apartments) that refusal was warranted...

Court Disposition

Development Application refused; appeal dismissed

Orders

  • The cl 4.6 request to depart from the height standard under the LEP is refused;
  • Development Application 2016/0429 for an eight storey residential flat building with basement car-parking at 38-42 Leicester Avenue, Strathfield is determined by refusal of development consent;