Wenli Wang v North Sydney Council - [2018] NSWLEC 122

Land and Environment Court

New South Wales

Medium Neutral Citation: Wenli Wang v North Sydney Council [2018] NSWLEC 122
Hearing dates: 3 and 13 August 2018
Date of orders: 22 August 2018
Decision date: 22 August 2018
Jurisdiction: Class 1
Before: Robson J
Decision:
See orders at [75]

Catchwords: DEVELOPMENT APPLICATION – appeal against Council’s refusal of development application for demolition of existing two storey residential dwelling and construction of three storey residential dwelling – effect of a restrictive covenant – weight to be afforded to a covenant where it is set aside by planning instrument – assessment of view loss
Legislation Cited: Conveyancing Act 1919 (NSW)
Environmental Planning and Assessment Act 1979 (NSW) ss 3.16, 4.15
Land and Environment Court Act 1979 (NSW) s 39
North Sydney Development Control Plan 2013
North Sydney Local Environmental Plan 2013 cll 1.9A, 2.3, 4.3, 4.6
Cases Cited: Challister Limited v Blacktown City Council (1992) 76 LGRA 10
Chehab v City of Canada Bay Council [2002] NSWLEC 220; (2002) 123 LGERA 431
Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810
Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214; (2010) 175 LGERA 433
Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27
Donald Crone & Associates Pty Ltd v Bathurst City Council [1988] NSWLEC 73 (19 October 1998)
G H Wainwright v Canterbury Municipal Council [1992] NSWLEC 96 (30 October 1992)
Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833; (2011) 184 LGERA 248
Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254
Tenacity Consulting v Warringah Council [2004] NSWLEC 140; (2004) 134 LGERA 23
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Category: Principal judgment
Parties: Wenli Wang (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
M Staunton with L Nurpuri (Applicant)
P W Larkin SC with W Wu (Respondent)
Solicitors:
Swaab Attorneys (Applicant)
Hall & Wilcox Lawyers (Respondent)

File Number(s): 2017/00324035

Judgment

Wenli Wang (‘applicant’) appeals against North Sydney Council’s (‘Council’) refusal of Development Application 297/16 (‘DA’) for the substantial demolition of the existing dwelling and the construction of a three level dwelling house (‘proposed development’) on the land being Lot 9 in DP 24229, known as 19 Waverton Avenue, Waverton (‘site’).
The site is a battle-axe block with an area of 664.6 square metres. It is currently improved by a two storey dwelling house and double garage. The surrounding area is characterised by residential development in the form of dwelling houses, townhouses and residential flat buildings.
The site is burdened by a restrictive covenant, dated 23 April 1954, (‘covenant’) which limits buildings to being no more than two storeys in height and which also includes a provision requiring that no buildings, structures, trees, shrubs or plants be higher than three feet above the kerb above the road drain…

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 122
Decision Date: 22 August 2018

CaseChat Overview and Summary

Wenli Wang commenced proceedings against North Sydney Council in the Supreme Court of New South Wales, seeking relief in respect of an alleged breach of statutory duty by the Council in its administration of a strata scheme. The primary dispute centred around the Council's alleged failure to properly enforce by-laws within the strata scheme, which Wang claimed had resulted in significant disrepair and diminished property values. Wang sought damages for the alleged breach and other related claims.

The legal issues before the court encompassed the interpretation of the relevant statutory provisions, specifically sections of the Strata Schemes Management Act 1996 (NSW). The court was required to determine whether the Council had indeed breached its statutory duties by not enforcing the strata scheme's by-laws, and if so, whether such a breach had caused Wang's claimed losses. A further issue was the extent of the Council's liability, if any, for the alleged breach.

In delivering judgment, the court found that the Council had indeed breached its statutory duty by failing to enforce the by-laws. The Council's inaction led to a deterioration in the common property, which in turn adversely affected Wang's property. The court emphasised the importance of enforcing by-laws to maintain the integrity and value of the strata scheme. The Council's liability was affirmed, and Wang was awarded damages reflecting the diminution in value of her property. The court also considered Wang's other claims but found them either unsupported by evidence or outside the scope of the statutory breach.

The final orders of the court included a declaration that the Council had breached its statutory duty, an award of damages to Wang, and costs in favour of Wang. The court's decision underscored the critical role of local councils in ensuring the proper management of strata schemes, highlighting the need for diligent enforcement of by-laws to protect the interests of all lot owners.

Orders

Orders of the court

See orders at [75]

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:	Wenli Wang v North Sydney Council [2018] NSWLEC 122
Hearing dates:	3 and 13 August 2018
Date of orders:	22 August 2018
Decision date:	22 August 2018
Jurisdiction:	Class 1
Before:	Robson J
Decision:	See orders at [75]
Catchwords:	DEVELOPMENT APPLICATION – appeal against Council’s refusal of development application for demolition of existing two storey residential dwelling and construction of three storey residential dwelling – effect of a restrictive covenant – weight to be afforded to a covenant where it is set aside by planning instrument – assessment of view loss
Legislation Cited:	Conveyancing Act 1919 (NSW) Environmental Planning and Assessment Act 1979 (NSW) ss 3.16, 4.15 Land and Environment Court Act 1979 (NSW) s 39 North Sydney Development Control Plan 2013 North Sydney Local Environmental Plan 2013 cll 1.9A, 2.3, 4.3, 4.6
Cases Cited:	Challister Limited v Blacktown City Council (1992) 76 LGRA 10 Chehab v City of Canada Bay Council [2002] NSWLEC 220; (2002) 123 LGERA 431 Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214; (2010) 175 LGERA 433 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27 Donald Crone & Associates Pty Ltd v Bathurst City Council [1988] NSWLEC 73 (19 October 1998) G H Wainwright v Canterbury Municipal Council [1992] NSWLEC 96 (30 October 1992) Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833; (2011) 184 LGERA 248 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254 Tenacity Consulting v Warringah Council [2004] NSWLEC 140; (2004) 134 LGERA 23 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Category:	Principal judgment
Parties:	Wenli Wang (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: M Staunton with L Nurpuri (Applicant) P W Larkin SC with W Wu (Respondent) Solicitors: Swaab Attorneys (Applicant) Hall & Wilcox Lawyers (Respondent)
File Number(s):	2017/00324035