Deng v Burwood Council - [2018] NSWLEC 1536

Land and Environment Court

New South Wales

Medium Neutral Citation: Deng v Burwood Council [2018] NSWLEC 1536
Hearing dates: 5 September 2018
Date of orders: 12 October 2018
Decision date: 12 October 2018
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders that:
(1)   Leave granted to rely on amended plans.
(2) The appeal is dismissed.
(3)   Development Application No. DA172/2016 for the demolition of the existing single storey brick dwelling, removal of trees and pool and the construction of twelve townhouses and underground parking at 31 Wyatt Avenue Burwood is refused.
(4)   The exhibits are returned with the exception of Exhibits A, B, 2, 3 and 4.

Catchwords: DEVELOPMENT APPLICATION: Residential flat building – SEPP affordable rental housing – visual privacy – amenity
Legislation Cited: Burwood Local Environmental Plan 2012
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Dem Gillespies v Warringah Council (2002) 124 LGERA 147
New Century Development Pty limited v Baulkham Hills Shire Council [2003] NSWLEC 154
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
Segal v Waverley Council [2005] NSWCA 310
Texts Cited: Burwood Development Control Plan 2013
Category: Principal judgment
Parties: Qing Rong Deng (Applicant)
Burwood Council (Respondent)
Representation: Solicitors:
G McKee, McKee Legal Solutions (Applicant)
K Law, Matthews Folbigg Pty Ltd (Respondent)

File Number(s): 2017/316422
Publication restriction: No

Judgment

Introduction

The application is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Burwood Council (Council) of a development application (DA172/2016) for the demolition of the existing single storey brick Federation era dwelling, removal of trees and pool and the construction of twelve townhouses.

The site and locality

I rely on Council’s Statement of Facts and Contentions for the particulars that follow here. The subject land for this development application (DA) is 31 Wyatt Avenue, Burwood, also described as Lot 6 in DP 3920 (site). The site is rectangular and is situated on the north-eastern corner of the intersection of Wyatt Ave and Wyatt Lane. The site has a frontage of 20.11m to Wyatt Avenue and a frontage of 80.77m along Wyatt Lane. The overall site area of 1624.7m². Currently occupying the site is a single storey (with attic) brick Federation-style dwelling house, and ancillary structures along with considerable on-site vegetation. The site has a gradual slope from north to south and west to east.
Wyatt Avenue is a tree-lined street with a central avenue of trees extending down the centre corridor of open space. While there are mixed development types in the immediate locality, including a two-storey residential flat building immediately across Wyatt Avenue to the west, the site falls within the general environs of an area characterised by retention of numerous good examples of Federation and Victorian style dwellings. The Burwood Road Heritage Conservation Area (HCA) is across Wyatt Lane to the west and The Appian Way HCA is nearby to the south. The locality also comprises heritage properties…

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.

Continue reading Deng v Burwood Council

Details

AGLC: Deng v Burwood Council [2018] NSWLEC 1536
Case: [2018] NSWLEC 1536
Decision Date: 12 October 2018

CaseChat Overview and Summary

In the case of Deng v Burwood Council, the applicant, Deng, sought leave to amend the plans associated with a development application for the demolition of an existing single-storey dwelling and the construction of twelve townhouses and underground parking at a property located at 31 Wyatt Avenue, Burwood. The Burwood Council had previously refused the application on the grounds that it would not be in accordance with the local environment plan. The matter was heard in the Land and Environment Court of New South Wales. The primary issue before the Court was whether the applicant should be granted leave to amend the plans and whether the amended development application should be approved. The Court also had to consider whether the refusal of the development application was justified.

The Court found that the amended plans, if accepted, would still not comply with the relevant environment plan and would therefore not be in accordance with the plan. The Court held that the applicant had not demonstrated that the amended plans would result in a development that was in accordance with the plan. The Court also noted that the development would have a significant impact on the character of the area, which was not in line with the objectives of the relevant planning instrument. The Court concluded that the refusal of the development application was justified and dismissed the appeal. The Court granted leave to rely on the amended plans but refused the development application, stating that the proposed development would not be in accordance with the local environment plan and would have a detrimental effect on the character of the area.

Orders

Orders of the court

The Court orders that:

(1) Leave granted to rely on amended plans.

(2) The appeal is dismissed.

(3) Development Application No. DA172/2016 for the demolition of the existing single storey brick dwelling, removal of trees and pool and the construction of twelve townhouses and underground parking at 31 Wyatt Avenue Burwood is refused.

(4) The exhibits are returned with the exception of Exhibits A, B, 2, 3 and 4.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Deng v Burwood Council [2018] NSWLEC 1536
Hearing dates:	5 September 2018
Date of orders:	12 October 2018
Decision date:	12 October 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) Leave granted to rely on amended plans. (2) The appeal is dismissed. (3) Development Application No. DA172/2016 for the demolition of the existing single storey brick dwelling, removal of trees and pool and the construction of twelve townhouses and underground parking at 31 Wyatt Avenue Burwood is refused. (4) The exhibits are returned with the exception of Exhibits A, B, 2, 3 and 4.
Catchwords:	DEVELOPMENT APPLICATION: Residential flat building – SEPP affordable rental housing – visual privacy – amenity
Legislation Cited:	Burwood Local Environmental Plan 2012 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Dem Gillespies v Warringah Council (2002) 124 LGERA 147 New Century Development Pty limited v Baulkham Hills Shire Council [2003] NSWLEC 154 Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 Segal v Waverley Council [2005] NSWCA 310
Texts Cited:	Burwood Development Control Plan 2013
Category:	Principal judgment
Parties:	Qing Rong Deng (Applicant) Burwood Council (Respondent)
Representation:	Solicitors: G McKee, McKee Legal Solutions (Applicant) K Law, Matthews Folbigg Pty Ltd (Respondent)
File Number(s):	2017/316422
Publication restriction:	No