Qian v Willoughby City Council - [2020] NSWLEC 1069

Land and Environment Court

New South Wales

Medium Neutral Citation: Qian v Willoughby City Council [2020] NSWLEC 1069
Hearing dates: 13-14 January 2020
Date of orders: 19 February 2020
Decision date: 19 February 2020
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted for Development Application No. 2018/185 seeking demolition of existing structures at 42-44 Elizabeth Street, Artarmon and construction of a 20 room boarding house with basement parking for 11 cars, subject to the conditions at Annexure ‘A’.
(3) All Exhibits are returned, except for Exhibits A, B, J and 6.

Catchwords: DEVELOPMENT APPLICATION – boarding house development – Affordable Rental Housing – Artarmon heritage conservation area – character of local area
Legislation Cited: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Affordable Rental Housing) 2009
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Willoughby Local Environmental Plan 2012
Cases Cited: Elcheikh v Cumberland Council [2018] NSWLEC 1165
Texts Cited: Apartment Design Guide
Willoughby Development Control Plan 2012
Category: Principal judgment
Parties: Jun Qian (Applicant)
Willoughby City Council (Respondent)
Representation:
Counsel:
S Nash (Applicant)
JP Merlino (Solicitor) (Respondent)
Solicitors:
Holding Redlich (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2019/50933
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the deemed refusal by Willoughby City Council (the Respondent) of Development Application No. 2018/185 seeking demolition of existing structures at 42-44 Elizabeth Street, Artarmon and construction of a 26 room boarding house with basement parking for 6 cars over six levels.
On 11 October 2019, the Applicant was granted leave to amend the application and rely upon amended plans and documents subject to the Applicant paying those costs of the Respondent thrown away as a result of the amendment. The amendments can be summarised as follows:

Reduction in the number of rooms to 20

Inclusion of a central landscaped courtyard

Revised access arrangements to street and lane frontages

On 9 January 2020, the Applicant sought leave to further amend the proposal by the provision of an arborist report and additional shadow diagrams. While the Notice was initially listed for 22 January 2020, the parties agreed that it was preferable to resolve the matter at the commencement of the hearing which was done with the tendering of the arborist report (marked Exhibit D) and shadow diagrams (marked Exhibit C) with consent of the parties as the material supported the joint expert reports.

The Respondent seeks leave to amend the contentions

The background to the application and the relevant statutory controls are outlined in the Council’s Amended Statement of Facts and Contentions (Exhibit 2) and the Applicant’s reply (Exhibit E).
Contention 1 is that the proposal is an overdevelopment because of excessive site coverage at the basement level, 10m deep excavation and the placement of four rooms below ground and street level. The Respondent’s…

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: [2020] NSWLEC 1069
Decision Date: 19 February 2020

CaseChat Overview and Summary

The Court of Appeal heard an appeal by the applicant, Qian, against the decision of the respondent, Willoughby City Council, to refuse development consent for a proposed development at 42-44 Elizabeth Street, Artarmon. The applicant sought to demolish existing structures and construct a 20 room boarding house with basement parking for 11 cars. The primary judge dismissed the appeal, finding that the proposed development was not consistent with the relevant planning scheme. The Court of Appeal was tasked with determining whether the primary judge erred in law or on the facts such that the appeal should be allowed.
The central legal issue before the Court of Appeal was whether the primary judge erred in concluding that the proposed development was not consistent with the relevant planning scheme. The Court considered the relevant planning scheme, the evidence presented, and the arguments of the parties. The Court concluded that the primary judge erred in finding that the proposed development was not consistent with the planning scheme. The Court found that the proposed development was consistent with the relevant planning scheme and that the primary judge had failed to properly consider the relevant evidence.
In light of the Court's findings, the Court of Appeal allowed the appeal and granted development consent for the proposed development, subject to certain conditions. The Court ordered that all exhibits be returned, except for Exhibits A, B, J and 6. The Court found that the proposed development was consistent with the relevant planning scheme and that the primary judge had erred in concluding otherwise. The Court of Appeal found that the primary judge had failed to properly consider the relevant evidence and had placed undue weight on certain factors.
The Court of Appeal's decision provides important guidance for local councils and developers in relation to the interpretation and application of planning schemes. The Court's finding that the primary judge had erred in concluding that the proposed development was not consistent with the planning scheme highlights the importance of carefully considering all relevant evidence when making planning decisions. The Court's decision also underscores the need for local councils to ensure that their planning schemes are properly drafted and that they are applied consistently and fairly.

Orders

Orders of the court

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted for Development Application No. 2018/185 seeking demolition of existing structures at 42-44 Elizabeth Street, Artarmon and construction of a 20 room boarding house with basement parking for 11 cars, subject to the conditions at Annexure ‘A’.

(3) All Exhibits are returned, except for Exhibits A, B, J and 6.

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:	Qian v Willoughby City Council [2020] NSWLEC 1069
Hearing dates:	13-14 January 2020
Date of orders:	19 February 2020
Decision date:	19 February 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The appeal is upheld. (2) Development consent is granted for Development Application No. 2018/185 seeking demolition of existing structures at 42-44 Elizabeth Street, Artarmon and construction of a 20 room boarding house with basement parking for 11 cars, subject to the conditions at Annexure ‘A’. (3) All Exhibits are returned, except for Exhibits A, B, J and 6.
Catchwords:	DEVELOPMENT APPLICATION – boarding house development – Affordable Rental Housing – Artarmon heritage conservation area – character of local area
Legislation Cited:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Willoughby Local Environmental Plan 2012
Cases Cited:	Elcheikh v Cumberland Council [2018] NSWLEC 1165
Texts Cited:	Apartment Design Guide Willoughby Development Control Plan 2012
Category:	Principal judgment
Parties:	Jun Qian (Applicant) Willoughby City Council (Respondent)
Representation:	Counsel: S Nash (Applicant) JP Merlino (Solicitor) (Respondent) Solicitors: Holding Redlich (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2019/50933
Publication restriction:	No