Li v Willoughby City Council - [2018] NSWLEC 1262

Land and Environment Court

New South Wales

Medium Neutral Citation: Li v Willoughby City Council [2018] NSWLEC 1262
Hearing dates: 23 May 2018
Date of orders: 31 May 2018
Decision date: 31 May 2018
Jurisdiction: Class 1
Before: O’Neill C
Decision:
1. The appeals are upheld.
2. The Interim Heritage Order for 9 Centennial Avenue, Willoughby dated 14 February 2018 is amended to apply to the curtilage of the dwelling house, excluding the separate garage structure on the site, pursuant to s 27(a) of the Heritage Act 1977.
3. The emergency order, being Order 2972, made by Willoughby City Council for 9 Centennial Avenue, Chatswood, pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 and dated 16 February 2018, has been sufficiently complied with, pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979.
4. The emergency order, being Order 2973, made by Willoughby City Council for 9 Centennial Avenue, Chatswood, pursuant to s 124 of the Local Government Act 1993 and dated 16 February 2018, has been sufficiently complied with, pursuant to s 180(4)(d) of the Local Government Act 1993.
5. The exhibits, other than exhibits 2, 3 and E, are returned.

Catchwords: INTERIM HERITAGE ORDER: whether the jurisdiction for the council to have made an Interim Heritage Order was sufficiently engaged; whether on further inquiry and investigation the existing dwelling house on the site is likely to be found to be of local heritage significance.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Heritage Act 1977
Local Government Act 1993
Cases Cited: McCudden v Cowra Shire Council [2016] NSWLEC 14
Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40
Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16
Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286
Category: Principal judgment
Parties: Wenzhen Li (Applicant)
Willoughby City Council (Respondent)
Representation:
Counsel:
Mr A. Galasso SC with Mr D. Robertson barrister (Applicant)
Dr J. Smith barrister (Respondent)
Solicitors:
Hall and Wilcox Lawyers (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2018/57891, 2018/57862, 2018/57885
Publication restriction: No

Judgment

These three appeals are made against the making of an Interim Heritage Order (IHO) and two emergency orders for the property at 9 Centennial Avenue, Chatswood (the site), by Willoughby City Council (the Council).
The appeal against the making of the IHO (file number 2018/57891) (“the primary appeal”) dated 14 February 2018 and made by the Council pursuant to s 25(2) of the Heritage Act 1977 (Heritage Act), is brought pursuant to s 30(1) of the Heritage Act in Class 1 of the Court’s jurisdiction.
The appeal against the making of the emergency order being Order 2972 (file number 2018/57862) (“the first Order”) dated 16 February 2018 and made by the Council pursuant to s 9.34(1)…

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: [2018] NSWLEC 1262
Decision Date: 31 May 2018

CaseChat Overview and Summary

The matter before the court was an appeal brought by the appellant against decisions made by the Willoughby City Council concerning the heritage listing of a property located at 9 Centennial Avenue, Willoughby. The appellant contested the council's imposition of an Interim Heritage Order and subsequent emergency orders. The respondents were the Willoughby City Council and another party, which had an interest in the property. The dispute was adjudicated in the Land and Environment Court of New South Wales.

The primary legal issues before the court involved the interpretation and application of the Heritage Act 1977, the Environmental Planning and Assessment Act 1979, and the Local Government Act 1993. The appellant argued that the council's Interim Heritage Order was incorrectly applied to the entire property, including the garage, and that the subsequent emergency orders were not justified. The respondents contended that the orders were appropriately made and complied with under the relevant legislation. The court was tasked with determining the correct interpretation of the heritage legislation, the validity of the council's actions, and whether the emergency orders were adequately fulfilled.

The court found that the council's Interim Heritage Order had been incorrectly applied to the garage, which was not part of the heritage listing. The court ruled that the order should be amended to exclude the garage. Furthermore, the court determined that the emergency orders made by the council were valid and had been sufficiently complied with, as required by the respective acts. The court found no merit in the appellant's claims that the orders were unjustified. Consequently, the appeals were upheld, and the orders were amended and confirmed as per the legislation.

The final orders included amending the Interim Heritage Order to exclude the garage, confirming that the emergency orders had been sufficiently complied with, and returning the exhibits except for three specified documents. The court's decision was based on a thorough analysis of the relevant statutes and the circumstances of the case, ensuring that the legal principles were correctly applied to reach a just outcome.

Orders

Orders of the court

1. The appeals are upheld.

2. The Interim Heritage Order for 9 Centennial Avenue, Willoughby dated 14 February 2018 is amended to apply to the curtilage of the dwelling house, excluding the separate garage structure on the site, pursuant to s 27(a) of the Heritage Act 1977.

3. The emergency order, being Order 2972, made by Willoughby City Council for 9 Centennial Avenue, Chatswood, pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 and dated 16 February 2018, has been sufficiently complied with, pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979.

4. The emergency order, being Order 2973, made by Willoughby City Council for 9 Centennial Avenue, Chatswood, pursuant to s 124 of the Local Government Act 1993 and dated 16 February 2018, has been sufficiently complied with, pursuant to s 180(4)(d) of the Local Government Act 1993.

5. The exhibits, other than exhibits 2, 3 and E, are returned.

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:	Li v Willoughby City Council [2018] NSWLEC 1262
Hearing dates:	23 May 2018
Date of orders:	31 May 2018
Decision date:	31 May 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeals are upheld. 2. The Interim Heritage Order for 9 Centennial Avenue, Willoughby dated 14 February 2018 is amended to apply to the curtilage of the dwelling house, excluding the separate garage structure on the site, pursuant to s 27(a) of the Heritage Act 1977. 3. The emergency order, being Order 2972, made by Willoughby City Council for 9 Centennial Avenue, Chatswood, pursuant to s 9.34(1) of the Environmental Planning and Assessment Act 1979 and dated 16 February 2018, has been sufficiently complied with, pursuant to s 8.18(4)(d) of the Environmental Planning and Assessment Act 1979. 4. The emergency order, being Order 2973, made by Willoughby City Council for 9 Centennial Avenue, Chatswood, pursuant to s 124 of the Local Government Act 1993 and dated 16 February 2018, has been sufficiently complied with, pursuant to s 180(4)(d) of the Local Government Act 1993. 5. The exhibits, other than exhibits 2, 3 and E, are returned.
Catchwords:	INTERIM HERITAGE ORDER: whether the jurisdiction for the council to have made an Interim Heritage Order was sufficiently engaged; whether on further inquiry and investigation the existing dwelling house on the site is likely to be found to be of local heritage significance.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Heritage Act 1977 Local Government Act 1993
Cases Cited:	McCudden v Cowra Shire Council [2016] NSWLEC 14 Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 Project Blue Sky Inc and others v Australian Broadcasting Authority (1998) 194 CLR 355 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16 Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286
Category:	Principal judgment
Parties:	Wenzhen Li (Applicant) Willoughby City Council (Respondent)
Representation:	Counsel: Mr A. Galasso SC with Mr D. Robertson barrister (Applicant) Dr J. Smith barrister (Respondent) Solicitors: Hall and Wilcox Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/57891, 2018/57862, 2018/57885
Publication restriction:	No