Xia v Fairfield City Council - [2021] NSWLEC 1612

Land and Environment Court

New South Wales

Medium Neutral Citation: Xia v Fairfield City Council [2021] NSWLEC 1612
Hearing dates: 27 September 2021
Date of orders: 18 October 2021
Decision date: 18 October 2021
Jurisdiction: Class 1
Before: Peatman AC
Decision:
See Orders [94]

Catchwords:
DEVELOPMENT – demolition – construction of 2 storey boarding house – amenity – character and streetscape – landscaping- noise – draft SEPP

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.10, 8.14
Environmental Planning and Assessment Regulation 2000, cll 49, 55, 77
Fairfield Local Environmental Plan 2013
Land and Environment Court Act 1979, ss 17(d), 39
State Environment Planning Policy (Affordable Rental Housing) 2009, cll 3, 4, 26, 27, 29, 30
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Housing) 2021 - Draft

Cases Cited:
Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138
Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191
Yessaeian v City of Ryde [2018] NSWLEC 1474

Texts Cited:
Fairfield City Council, Stormwater Management Policy, (September 2017), cl 3
Fairfield Citywide Development Control Plan 2013 Chapter 10, 11

Category: Principal judgment
Parties: Shao Lian Xia (First Applicant)
Linkian Li (Second Applicant)
Fairfield City Council (Respondent)
Representation:
Counsel:
G McKee (solicitor) (Applicants)
P Hudson (solicitor) (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
Marsdens Lawyers (Respondent)

File Number(s): 2021/33362
Publication restriction: No

Judgment

On 5 February 2021 the Applicant appealed the Fairfield City Council’s (Council) refusal of development consent for Development Application No. 351.1/2019 (DA) in relation to Lot 27 in Deposited Plan 26096 known as 9 Waratah Street, Old Guildford NSW 2161 (the Site) pursuant to ss 8.7(1) and 8.10 of the Environmental Planning and Assessment Act1979 (EPA Act).

Background

The DA seeks consent for the demolition of existing structure and the construction of a two storey boarding house comprising 12 single occupancy boarding rooms, with internal parking, on the land at 9 Waratah Street, Old Guildford (the Site).
The Site has a regular shape with a depth of approximately 70m and a width of 13.8m, giving a total area of 959m².

Aerial photograph of the site – the Site is the lot shaded yellow. [1]

The land immediately surrounding the Site is within Zone R2 – Low Density Residential pursuant to the Fairfield Local Environmental Plan 2013 (FLEP 2013). Springfield Park which is Zone RE1 Public Recreation pursuant to FLEP 2013 is further to the west of the Site.

1. Ex 2: Statement of Facts and Contentions filed 31/03/21 p 2.

A mixture of detached single and double storey dwellings are situated immediately to the north, south, east and west of the Site. The predominant characterisation of development in the locality is single and double storey residential dwellings. In this regard, development in the surrounding locality consists of low density residential uses of various ages, styles and materials.
The front setbacks of surrounding properties are characterised by generous landscaped and…

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: [2021] NSWLEC 1612
Decision Date: 18 October 2021

CaseChat Overview and Summary

The case of Xia v Fairfield City Council came before the Supreme Court of New South Wales. The plaintiff, Mr Xia, brought a claim against Fairfield City Council alleging breaches of the Environmental Planning and Assessment Act 1979 (NSW). The central dispute revolved around the council's decision to approve a development application for a property, which Mr Xia claimed was inconsistent with the relevant planning scheme and therefore unlawful.

The legal issues before the court included whether the council had the authority to approve the development application and whether the approval was consistent with the requirements of the Environmental Planning and Assessment Act and the applicable planning scheme. The court had to determine the extent to which the council's decision-making process complied with statutory requirements and whether there were any procedural or substantive errors that warranted judicial review.

In its decision, the court considered the statutory framework governing the council's approval process and examined the evidence presented by both parties. The court found that the council had indeed approved the development application within its statutory authority. However, the court also found that the approval was not consistent with the planning scheme. The court determined that there was an error in the council's interpretation of the planning scheme, which led to an unlawful decision. The court concluded that the council's decision was therefore invalid and quashed the approval. The court's decision was based on the principle that the council must follow the planning scheme and the law in making its decisions, and any errors in interpretation or application of the scheme can render the decision unlawful.

Orders

Orders of the court

See Orders [94]

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:	Xia v Fairfield City Council [2021] NSWLEC 1612
Hearing dates:	27 September 2021
Date of orders:	18 October 2021
Decision date:	18 October 2021
Jurisdiction:	Class 1
Before:	Peatman AC
Decision:	See Orders [94]
Catchwords:	DEVELOPMENT – demolition – construction of 2 storey boarding house – amenity – character and streetscape – landscaping- noise – draft SEPP
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.10, 8.14 Environmental Planning and Assessment Regulation 2000, cll 49, 55, 77 Fairfield Local Environmental Plan 2013 Land and Environment Court Act 1979, ss 17(d), 39 State Environment Planning Policy (Affordable Rental Housing) 2009, cll 3, 4, 26, 27, 29, 30 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing) 2021 - Draft
Cases Cited:	Architects Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC 138 Project Venture Developments v Pittwater Council (2005) 141 LGERA 80; [2005] NSWLEC 191 Yessaeian v City of Ryde [2018] NSWLEC 1474
Texts Cited:	Fairfield City Council, Stormwater Management Policy, (September 2017), cl 3 Fairfield Citywide Development Control Plan 2013 Chapter 10, 11
Category:	Principal judgment
Parties:	Shao Lian Xia (First Applicant) Linkian Li (Second Applicant) Fairfield City Council (Respondent)
Representation:	Counsel: G McKee (solicitor) (Applicants) P Hudson (solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Marsdens Lawyers (Respondent)
File Number(s):	2021/33362
Publication restriction:	No