Chau v Georges River Council - [2023] NSWLEC 1619

Land and Environment Court

New South Wales

Medium Neutral Citation: Chau v Georges River Council [2023] NSWLEC 1619
Hearing dates: 24-25 July 2023
Date of orders: 19 October 2023
Decision date: 19 October 2023
Jurisdiction: Class 1
Before: Porter C
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Development Application No. 2021/0448 for the demolition of existing structures and construction of a seven-storey mixed use building containing a six-storey boarding house with 16 boarding rooms and a managers room, two office tenancies and basement car parking at 42 Treacy Street Hurstville Lot C DP 441248, as amended, is refused consent.
(3) The exhibits are returned, except for Exhibits 1, A, B, E and F.

Catchwords:
DEVELOPMENT APPLICATION – mixed use – boarding house – clause 4.6 – breach to height of buildings – design excellence – heritage – streetscape – amenity

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.11, 8.15
Environmental Planning and Assessment Regulation 2000, cll 55, 64
Georges River Local Environmental Plan 2021, cll 4.3, 4.6, 6.10
Land and Environment Court Act 1979, s 39
Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2022
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Housing) 2021, Sch 7A
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Transport and Infrastructure) 2021

Cases Cited:
Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177
Emag Apartments Pty Ltd v Inner West Council [2022] NSWLEC 1042
Fusion Developments v Randwick City Council [2022] NSWLEC 1255
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143
The Council of the City of Sydney v Emag Apartments Pty Limited [2023] NSWLEC 23
Tamvakeras v Inner West Council [2022] NSWLEC 1140
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289
Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117
Wehbe v Pittwater (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Georges River Development Control Plan 2021
Hurstville Development Control Plan No. 2 Amendment No. 12
NSW Department of Planning and Environment Apartment Design Guide 2015

Category: Principal judgment
Parties: Vi Phong Chau (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
A Pickles SC (Applicant)
J Fan (Solicitor) (Respondent)
Solicitors:
Conomos Legal (Applicant)
Georges River Council (Respondent)

File Number(s): 2022/284572
Publication restriction: Nil

JUDGMENT

COMMISSIONER: This is an appeal pursuant to s 8.11 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 2021/448, lodged with Georges River Council (Respondent) on 8 November 2021. The Class 1 appeal was filed with the Court on 23 September 2022.
The Applicant in these proceedings, Vi Phong Chau (Applicant), seeks development consent for the demolition of existing structures and construction of a seven-storey mixed use building comprising a…

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: [2023] NSWLEC 1619
Decision Date: 19 October 2023

CaseChat Overview and Summary

Chau v Georges River Council involved a dispute over the approval of a development application for a mixed-use building. The applicant sought to demolish existing structures and construct a seven-storey building containing a boarding house, office tenancies, and basement car parking. The respondent, Georges River Council, refused consent for the development application, leading to the applicant's appeal to the Land and Environment Court of New South Wales. The court was required to determine whether the council's decision to refuse consent was lawful and whether the applicant's appeal should be upheld.

The central legal issue was whether the refusal of the development application was justified under the relevant planning laws. Specifically, the court needed to assess if the proposed development would cause unreasonable harm to the environment or neighbouring properties, which are grounds for refusal under the Environmental Planning and Assessment Act 1979. Additionally, the court examined whether the development complied with the local planning policies and the zoning regulations applicable to the site.

In its decision, the court found that the council's refusal of consent was lawful. The court concluded that the proposed development would likely cause significant harm to the environment and neighbouring properties, including potential noise, traffic, and loss of light. The court also determined that the development did not align with the local planning policies, which prioritise the preservation of the character and scale of the area. Consequently, the appeal was dismissed, and the development application was refused consent.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application No. 2021/0448 for the demolition of existing structures and construction of a seven-storey mixed use building containing a six-storey boarding house with 16 boarding rooms and a managers room, two office tenancies and basement car parking at 42 Treacy Street Hurstville Lot C DP 441248, as amended, is refused consent.

(3) The exhibits are returned, except for Exhibits 1, A, B, E and F.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Chau v Georges River Council [2023] NSWLEC 1619
Hearing dates:	24-25 July 2023
Date of orders:	19 October 2023
Decision date:	19 October 2023
Jurisdiction:	Class 1
Before:	Porter C
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Development Application No. 2021/0448 for the demolition of existing structures and construction of a seven-storey mixed use building containing a six-storey boarding house with 16 boarding rooms and a managers room, two office tenancies and basement car parking at 42 Treacy Street Hurstville Lot C DP 441248, as amended, is refused consent. (3) The exhibits are returned, except for Exhibits 1, A, B, E and F.
Catchwords:	DEVELOPMENT APPLICATION – mixed use – boarding house – clause 4.6 – breach to height of buildings – design excellence – heritage – streetscape – amenity
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.11, 8.15 Environmental Planning and Assessment Regulation 2000, cll 55, 64 Georges River Local Environmental Plan 2021, cll 4.3, 4.6, 6.10 Land and Environment Court Act 1979, s 39 Standard Instrument (Local Environmental Plans) Amendment (Land Use Zones) Order 2022 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Housing) 2021, Sch 7A State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021
Cases Cited:	Aloke Holdings Pty Ltd v Council of the City of Sydney [2019] NSWLEC 1177 Emag Apartments Pty Ltd v Inner West Council [2022] NSWLEC 1042 Fusion Developments v Randwick City Council [2022] NSWLEC 1255 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Omid Mohebati-Arani v Ku-ring-gai Council [2017] NSWLEC 143 The Council of the City of Sydney v Emag Apartments Pty Limited [2023] NSWLEC 23 Tamvakeras v Inner West Council [2022] NSWLEC 1140 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195; [2003] NSWCA 289 Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117 Wehbe v Pittwater (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Georges River Development Control Plan 2021 Hurstville Development Control Plan No. 2 Amendment No. 12 NSW Department of Planning and Environment Apartment Design Guide 2015
Category:	Principal judgment
Parties:	Vi Phong Chau (Applicant) Georges River Council (Respondent)
Representation:	Counsel: A Pickles SC (Applicant) J Fan (Solicitor) (Respondent) Solicitors: Conomos Legal (Applicant) Georges River Council (Respondent)
File Number(s):	2022/284572
Publication restriction:	Nil