Land and Environment Court
New South Wales
Medium Neutral Citation: Zhu v Inner West Council (No 2) [2023] NSWLEC 1511 Hearing dates: 29 and 30 June 2023 Date of orders: 08 September 2023 Decision date: 08 September 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA-2022/0721 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.
(2) The appeal is upheld.
(3) Consent is granted to Development Application DA-2022/0721 (as amended) for demolition of an existing dwelling, construction of two, two-storey semi-detached dwellings and Torrens title subdivision of the property located at 12 Dibble Avenue, Marrickville, subject to the conditions of consent at Annexure A.
(4) The exhibits are returned, except for A, R, 1 and 3.
Catchwords: DEVELOPMENT APPLICATION – semi-detached dwelling houses – Torrens title subdivision – appeal upheld – orders
Cases Cited: Category: Principal judgment Parties: Xiaolong Zhu (Applicant)
Inner West Council (Respondent)Representation: Counsel:
Solicitors:
P Vergotis (Solicitor) (Applicant)
J Marsland (Solicitor) (Respondent)
Piper Alderman (Applicant)
Apex Planning and Environment Law (Respondent)
File Number(s): 2023/20987 Publication restriction: Nil
JUDGMENT
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COMMISSIONER: On 29 August 2023, I handed down my reasons in the Class 1 appeal Zhu v Inner West Council [2023] NSWLEC 1488 (the Principal Judgment) and indicated that upon the satisfaction of certain directions, I would give consideration to the making of final orders.
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During the hearing, I granted leave to the Applicant to amend the Development Application as reflected in the Issue E architectural plans tendered as Exhibit R in the proceedings, which then formed the subject of the appeal.
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In the Principal Judgment, the Applicant was directed to amend the BASIX certificate to reflect these architectural plans and to file an amended BASIX certificate with the Court.
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Similarly, the Respondent was directed to amend its final conditions of consent to reflect the final amended architectural drawings and the Applicant’s amended BASIX certificate, and to file these conditions of consent with the Court.
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The Court now has in hand the documentation set out above.
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I am satisfied that the Development Application, BASIX certificate and final conditions of consent (all as amended) each accord with the Principal Judgment and I now make the following orders to dispose of the matter.
Orders
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The Court orders that:
Leave is granted to the Applicant to amend Development Application DA-2022/0721 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.
The appeal is upheld.
Consent is granted to Development Application DA-2022/0721 (as amended) for demolition of an existing dwelling, construction of two, two-storey semi-detached dwellings and Torrens title subdivision of the property located at 12 Dibble Avenue, Marrickville, subject to the conditions of consent at Annexure A.
The exhibits are returned, except for A, R, 1 and 3.
M Pullinger
Acting Commissioner of the Court
20987.23 Annexure A
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- AGLC
- Zhu v Inner West Council (No 2) [2023] NSWLEC 1511
- Case
- [2023] NSWLEC 1511
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether the amendment to the development application was appropriate and whether the council’s decision to refuse consent for the proposed development was legally sound. The Applicant argued that the amendment was necessary to correct a minor error in the original plans and that the council's decision was unreasonable. The Applicant contended that the error did not significantly alter the proposed development and that the council had not adequately considered the merits of the proposal.
The court found that the amendment to the development application was permissible and that the council’s decision to refuse consent was unreasonable. The court accepted that the error in the original plans was minor and that the amendment did not materially change the proposed development. The court also found that the council had not properly considered the merits of the proposal and had relied on incorrect information. The court concluded that the amendment should be allowed and that the appeal should be upheld. As a result, the court granted the Applicant’s request to amend the development application and allowed the appeal, subject to the conditions set out in Annexure A. The court also granted consent for the proposed development.
Orders
Orders of the court
The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA-2022/0721 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.
(2) The appeal is upheld.
(3) Consent is granted to Development Application DA-2022/0721 (as amended) for demolition of an existing dwelling, construction of two, two-storey semi-detached dwellings and Torrens title subdivision of the property located at 12 Dibble Avenue, Marrickville, subject to the conditions of consent at Annexure A.
(4) The exhibits are returned, except for A, R, 1 and 3.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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