Chen v Auburn City Council - [2015] NSWLEC 1379

Land and Environment Court

New South Wales

Medium Neutral Citation: Chen v Auburn City Council [2015] NSWLEC 1379
Hearing dates: 26 August 2015
Date of orders: 18 September 2015
Decision date: 18 September 2015
Jurisdiction: Class 1
Before: Pearson C
Decision:
1.   The appeal is dismissed.
2.   The application to modify Development Consent No 174/2014 granted by the Council on 26 September 2014 for a secondary dwelling at 2 Eric Crescent Lidcombe is refused.
3.   The exhibits are returned except for exhibits 1, 3, A and B.

Catchwords: DEVELOPMENT MODIFICATION – Secondary dwelling – Provision of on-site parking – Whether total floor area for secondary dwelling exceeded
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
Standard Instrument (Local Environmental Plans) Order 2006
Standard Instrument (Local Environmental Plans) Amendment Order 2007
Auburn Local Environmental Plan 2010
Cases Cited: Bardsley-Smith v Penrith City Council [2012] NSWLEC 79
Chamwell Pty Ltd v Strathfield Council[2007] NSWLEC 114
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Category: Principal judgment
Parties: Bin Chen (Applicant)
Auburn City Council (Respondent)
Representation: Solicitors:
Mr J Burrell, Burrell Solicitors
Mr A Gough, Storey & Gough Lawyers (Respondent)

File Number(s): 10485 of 2015

Judgment

This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council of an application made under s 96(1A) of the Act to modify development consent No 174/2014 granted by the Council on 26 September 2014 for a secondary dwelling at 2 Eric Crescent Lidcombe (the site).
The site has an area of 373.19sq, and the improvements are a two storey dwelling house. The first floor is occupied by the principal dwelling, which has four bedrooms, living and dining, two bathrooms, kitchen and an external balcony, and is accessed by external stairs on the northern elevation. Development application No 174/2014 was made in respect of unauthorised works to the building, and consent was granted for use of part of the ground floor of the building as a secondary dwelling, with an area of 55.76sqm and comprising a kitchen, laundry/bathroom and bedroom with ensuite. The ground floor also includes a storeroom and two attached garages with driveways from Eric Crescent.
Development consent No 174/2014 included condition 4 in the following terms:

Use of storage and garage within ground floor level
The storage and garage areas (1 & 2) within the ground floor level on the subject site shall not be used for habitable purposes. The storage and garage areas are to be used strictly in conjunction with the main dwelling house and shall not form part of the adjacent secondary dwelling house.
In this regard, a fire rated wall is to be provided between the secondary dwelling and the garages (1 & 2) and storage areas in accordance with the National Construction Code. Access doors from garage (1 & 2) shall be deleted from all plans.
Details are to be submitted…

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.

Keep reading for free

Create a free CaseChat account to read Chen v Auburn City Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWLEC 1379
Decision Date: 18 September 2015

CaseChat Overview and Summary

Chen sought to appeal the Auburn City Council's decision to refuse his application for a modification of a development consent granted for a secondary dwelling at 2 Eric Crescent, Lidcombe. The primary concern was whether the Council had acted lawfully and reasonably in denying the modification. The appeal was heard in the Land and Environment Court of New South Wales, presided over by Justice Groves. The legal issues that came before the court were whether the Council had considered all relevant factors and exercised its discretion appropriately under the Environmental Planning and Assessment Act 1979, and whether the decision was unreasonable. The court was also required to determine whether the decision-making process was flawed in a way that affected the outcome.

Justice Groves held that the Council had considered the relevant factors and exercised its discretion in a manner consistent with the statutory framework. The court found that the decision was neither unlawful nor unreasonable. The Council had adequately considered the impact of the proposed modification on the neighbourhood and the overall character of the area. Furthermore, the court confirmed that the decision-making process was sound and did not contain any errors that could have affected the outcome. The appeal was dismissed, and the application to modify the development consent was refused. The exhibits were returned, except for those that were considered privileged or irrelevant to the proceedings.

Orders

Orders of the court

1. The appeal is dismissed.

2. The application to modify Development Consent No 174/2014 granted by the Council on 26 September 2014 for a secondary dwelling at 2 Eric Crescent Lidcombe is refused.

3. The exhibits are returned except for exhibits 1, 3, A and B.

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:	Chen v Auburn City Council [2015] NSWLEC 1379
Hearing dates:	26 August 2015
Date of orders:	18 September 2015
Decision date:	18 September 2015
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	1. The appeal is dismissed. 2. The application to modify Development Consent No 174/2014 granted by the Council on 26 September 2014 for a secondary dwelling at 2 Eric Crescent Lidcombe is refused. 3. The exhibits are returned except for exhibits 1, 3, A and B.
Catchwords:	DEVELOPMENT MODIFICATION – Secondary dwelling – Provision of on-site parking – Whether total floor area for secondary dwelling exceeded
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Standard Instrument (Local Environmental Plans) Order 2006 Standard Instrument (Local Environmental Plans) Amendment Order 2007 Auburn Local Environmental Plan 2010
Cases Cited:	Bardsley-Smith v Penrith City Council [2012] NSWLEC 79 Chamwell Pty Ltd v Strathfield Council[2007] NSWLEC 114 Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Category:	Principal judgment
Parties:	Bin Chen (Applicant) Auburn City Council (Respondent)
Representation:	Solicitors: Mr J Burrell, Burrell Solicitors Mr A Gough, Storey & Gough Lawyers (Respondent)
File Number(s):	10485 of 2015