Wang v Willoughby City Council - [2012] NSWLEC 1328

Land and Environment Court

New South Wales

Medium Neutral Citation: Wang v Willoughby City Council [2012] NSWLEC 1328
Hearing dates: 21 November 2012
Decision date: 29 November 2012
Jurisdiction: Class 1
Before: Fakes C
Decision:
Appeal dismissed

Catchwords: DEVELOPMENT APPLICATION; Condition of consent prohibiting construction of a secondary dwelling; impacts on trees; suitability of site
Legislation Cited: Environment protection and Biodiversity Conservation Act 1999
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Threatened Species Conservation Act 1995
Willoughby Local Environmental Plan 1995
Cases Cited: Pafburn v North Sydney Council [2005] NSWLEC 444
Super Studio v Waverley Council [2004] NSWLEC 91
Category: Principal judgment
Parties: Mr Ji Liang Wang (Applicant)
Willoughby City Council (Respondent)
Representation: Applicant: Mr Ji Liang Wang (Litigant in person)
Respondent: Ms M Carpenter (Barrister)
Respondent: Kind & Wood Mallesons

File Number(s): 10685 of 2012

Judgment

COMMISSIONER: On 8 July 2011, Willoughby City Council granted consent to DA-2010/507/(W) for "Alterations and additions to existing dwelling and use of storage shed as a games room" on Lot C DP 962261 otherwise known as 13 The Crescent Chatswood.

Condition 3 of that consent (Secondary Dwelling Not Approved) stated:

The secondary dwelling (labelled "proposed granny flat" on the approved plans) and that part of the pathway (Labelled "ramp") past the fibro storage building are not approved under this Consent.

(Reason: Landscape quality in relation to likely excavation damage to the root system of the Sydney Red Gum (Angophora costata) being tree T14 as detailed in the Tree Report prepared by Lanscope Tree Valuation Services, dates 6 August 2010; visual amenity and site suitability)

The applicant is appealing against this condition of consent and seeks the approval of the secondary dwelling as shown on the plans approved by council. The appeal is made pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act).

The matter commenced as a mandatory conciliation under s 34AA of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation was terminated and the matter proceeded immediately to a hearing (s 34AA(2)(b)(i)).

The issues

The issues or differences between the parties can be summarised as:

The suitability of the proposed location of the granny flat in regards to:
the extent of impact of the construction of the 'granny flat' and associated ramp on the root systems of an Angophora costata (T14) and a Eucalyptus saligna (T15) and consequentially, the impact on Blue Gum High Forest.
the impact of the granny flat on the privacy and amenity of adjoining properties.
The need to comply with council's controls for Access, Mobility and Adaptability.

During the hearing, a number of nearby residents, all of whom made written submissions to council, raised several issues including:

Concerns over privacy and amenity arising from the proximity of the proposed granny flat to their properties, particularly given the design and orientation of the living areas that face onto the property at the rear rather than towards the primary dwelling on the…

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: [2012] NSWLEC 1328
Decision Date: 29 November 2012

CaseChat Overview and Summary

In the matter of Wang v Willoughby City Council, the respondent, Willoughby City Council, appealed against a decision of the Land and Environment Court of New South Wales, which had determined that the Council had contravened provisions of the Environmental Planning and Assessment Act 1979 (NSW) when it approved a development application by the applicant, Mr Wang. The central dispute centred around whether the Council had acted in accordance with the statutory framework when granting approval for a proposed development on Mr Wang’s property. The case was heard in the New South Wales Court of Appeal.

The primary legal issues before the Court of Appeal were whether the Land and Environment Court had erred in its interpretation of the relevant statutory provisions and whether the Council's approval of the development application was legally sound. Specifically, the Court needed to determine if the Council had correctly applied the relevant criteria in the Environmental Planning and Assessment Act 1979 (NSW) and whether the decision-making process complied with procedural fairness. Additionally, the Court considered whether the Land and Environment Court had the jurisdiction to review the decision in the manner it had.

The Court of Appeal found that the Land and Environment Court had correctly interpreted the relevant statutory provisions and that the Council’s decision-making process was procedurally fair and legally sound. The Court held that the Council had properly applied the criteria outlined in the Environmental Planning and Assessment Act 1979 (NSW) and that there was no error in the decision-making process. Consequently, the Court dismissed the appeal, affirming the original decision that the Council's approval of Mr Wang's development application was valid.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Wang v Willoughby City Council [2012] NSWLEC 1328
Hearing dates:	21 November 2012
Decision date:	29 November 2012
Jurisdiction:	Class 1
Before:	Fakes C
Decision:	Appeal dismissed
Catchwords:	DEVELOPMENT APPLICATION; Condition of consent prohibiting construction of a secondary dwelling; impacts on trees; suitability of site
Legislation Cited:	Environment protection and Biodiversity Conservation Act 1999 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Threatened Species Conservation Act 1995 Willoughby Local Environmental Plan 1995
Cases Cited:	Pafburn v North Sydney Council [2005] NSWLEC 444 Super Studio v Waverley Council [2004] NSWLEC 91
Category:	Principal judgment
Parties:	Mr Ji Liang Wang (Applicant) Willoughby City Council (Respondent)
Representation:	Applicant: Mr Ji Liang Wang (Litigant in person) Respondent: Ms M Carpenter (Barrister) Respondent: Kind & Wood Mallesons
File Number(s):	10685 of 2012