Chen v Hornsby Shire Council - [2016] NSWLEC 1505

Land and Environment Court

New South Wales

Medium Neutral Citation: Chen v Hornsby Shire Council [2016] NSWLEC 1505
Hearing dates: 17,18 October 2016
Date of orders: 01 November 2016
Decision date: 01 November 2016
Jurisdiction: Class 1
Before: Dickson, C
Decision:
1. The appeal is upheld
2. Consent is granted to development application DA/314/2016 for torrens title subdivision of Lot 1035 DP 812942 (17 Cannan Close, Cherrybrook) into two lots, and the retention of the existing dwelling on proposed Lot A, subject to conditions in Annexure A, including the addition of new condition 7A: Following the completion of demolition of the tennis court structure the ground level of Lot B is to be made level with the existing ground level of Lot A along the common boundary as shown on Survey plan A004 drawn by Greg Pickworth dated 21/2/12.
3. The exhibits may be returned with the exception of A, D, I and the survey and subdivision plan contained in exhibit 2.

Catchwords: DEVELOPMENT APPEAL: Infill subdivision – lot configuration - compatibility with existing subdivision pattern – building envelope of potential dwelling – resident objections
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No. 55: Remediation of Land
Cases Cited:
BGP Properties Pty Ltd v Lake Macquarie Council [2004] NSWLEC 399

De Hong Yu v Ku ring gai Council [2004] NSWLEC 596
Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70

Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99

Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191

Trinvass Pty Ltd and Anor v Council of the City of Sydney [2015] NSWLEC 151
Zhang v Canterbury City Council [2001] NSWCA 167
Texts Cited: Nil
Category: Principal judgment
Parties: Suying Chen (Applicant)
Hornsby Shire Council (Respondent)
Representation: Solicitors:
Mr A Gadiel, Mills Oakley (Applicant)
Mr A Pickup, Local Government Legal (Respondent)

File Number(s): 2016/00165887
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of Development Application DA 315/2016. The application sought approval for the torrens title subdivision of the existing allotment at 17 Cannan Close, Cherrybrook (the site) into two, and the retention of the existing dwelling (the proposal). The application was refused by Hornsby Shire Council (the Council) on 13 July 2016.
The appeal was subject to mandatory conciliation on 17 October 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34AA(2)(b)(ii) LEC Act.

Issues

In summary Council maintains that the development application should be refused because:

the proposal…

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: [2016] NSWLEC 1505
Decision Date: 01 November 2016

CaseChat Overview and Summary

Chen appealed against a decision of the Hornsby Shire Council to refuse consent to a development application for a subdivision of land. The appeal was heard by the Land and Environment Court of New South Wales. The central issue for the court to determine was whether the refusal of the development application was unreasonable, in light of the planning considerations and the provisions of the relevant planning instruments.

The court examined the evidence and arguments presented by both parties, including the expert evidence regarding the impact of the proposed development on the environment and neighbouring properties. The court also considered the relevant planning policies and guidelines, as well as the specific provisions of the Hornsby Development Control Plan. The court found that the refusal of the development application was unreasonable, as the council had failed to adequately justify its decision in light of the evidence and planning considerations. The court also found that the proposed development would not have a significant adverse impact on the environment or neighbouring properties, and would comply with the relevant planning policies and guidelines.

As a result of the court's decision, the appeal was upheld and consent was granted to the development application, subject to certain conditions. The court also ordered that certain exhibits be returned to the parties, with the exception of those related to the survey and subdivision plan. Overall, the decision highlights the importance of carefully considering all relevant evidence and planning considerations when making decisions on development applications, and the need for decisions to be adequately justified and compliant with relevant planning policies and guidelines.

The final orders of the court were that the appeal be upheld, consent be granted to the development application with certain conditions, and certain exhibits be returned to the parties.

Orders

Orders of the court

1. The appeal is upheld

2. Consent is granted to development application DA/314/2016 for torrens title subdivision of Lot 1035 DP 812942 (17 Cannan Close, Cherrybrook) into two lots, and the retention of the existing dwelling on proposed Lot A, subject to conditions in Annexure A, including the addition of new condition 7A: Following the completion of demolition of the tennis court structure the ground level of Lot B is to be made level with the existing ground level of Lot A along the common boundary as shown on Survey plan A004 drawn by Greg Pickworth dated 21/2/12.

3. The exhibits may be returned with the exception of A, D, I and the survey and subdivision plan contained in exhibit 2.

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 Hornsby Shire Council [2016] NSWLEC 1505
Hearing dates:	17,18 October 2016
Date of orders:	01 November 2016
Decision date:	01 November 2016
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	1. The appeal is upheld 2. Consent is granted to development application DA/314/2016 for torrens title subdivision of Lot 1035 DP 812942 (17 Cannan Close, Cherrybrook) into two lots, and the retention of the existing dwelling on proposed Lot A, subject to conditions in Annexure A, including the addition of new condition 7A: Following the completion of demolition of the tennis court structure the ground level of Lot B is to be made level with the existing ground level of Lot A along the common boundary as shown on Survey plan A004 drawn by Greg Pickworth dated 21/2/12. 3. The exhibits may be returned with the exception of A, D, I and the survey and subdivision plan contained in exhibit 2.
Catchwords:	DEVELOPMENT APPEAL: Infill subdivision – lot configuration - compatibility with existing subdivision pattern – building envelope of potential dwelling – resident objections
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No. 55: Remediation of Land
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie Council [2004] NSWLEC 399 De Hong Yu v Ku ring gai Council [2004] NSWLEC 596 Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70 Jonah Pty Ltd v Pittwater Council [2006] NSWLEC 99 Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 Trinvass Pty Ltd and Anor v Council of the City of Sydney [2015] NSWLEC 151 Zhang v Canterbury City Council [2001] NSWCA 167
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Suying Chen (Applicant) Hornsby Shire Council (Respondent)
Representation:	Solicitors: Mr A Gadiel, Mills Oakley (Applicant) Mr A Pickup, Local Government Legal (Respondent)
File Number(s):	2016/00165887
Publication restriction:	No