ARTZ 2 Design Pty Ltd v Ku-ring-gai Council - [2015] NSWLEC 1381

Land and Environment Court

New South Wales

Medium Neutral Citation: ARTZ 2 Design Pty Ltd v Ku-ring-gai Council [2015] NSWLEC 1381
Hearing dates: 25 and 26 February 2015
Date of orders: 24 June 2015
Decision date: 24 June 2015
Jurisdiction: Class 1
Before: Tuor C
Decision:
Directions see paragraph 53

Catchwords: DEVELOPMENT APPLICATION: Residential Flat building. Non-compliance with height and floor space ratio development standards, whether request for exception to development standards is satisfactory, compatibility with streetscape.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development
State Environmental Planning Policy (Affordable Rental Housing) 2009
Ku-ring-gai Local Environmental Plan (Local Centres) 2012
Cases Cited: Carlingford Investments Pty Ltd v The Hills Shire Council [2015] NSWLEC 1022
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Category: Principal judgment
Parties:
ARTZ 2 Design Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel:
Mr M Staunton (Applicant)

Solicitors:
Mr J Schmidt-Leirmann of Schmidt-Leirmann Lawyers (Applicant)
Mr A Hudson of Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 10654 of 2014

Judgment

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Ku-ring-gai Council (council) of a development application (DA0402/13) for the demolition of existing structures and the construction of a new residential flat building at 9-11 Memorial Avenue, St Ives (site).
As a result of amended plans, conditions and the agreement of the experts the key issues that remain in dispute between the parties are whether:

the requests for a variation under cl 4.6 of Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP) to the height and floor space ratio (FSR) standards are well founded; and

the height, number of storeys and FSR of the proposal will have adverse streetscape and urban design impacts.

Site and locality

The site is regular in shape and comprises two allotments with a combined area of 1890.9sqm. It has a frontage of 41.46m and is relatively flat, with a minimal cross fall. Each allotment is developed with a single storey dwelling.
A park, St Ives Village Green, is on the opposite side of Memorial Avenue. To the south, the site adjoins a one to two story dwelling, which is also used as a doctor’s surgery (7 Memorial Avenue). To the rear, a five storey residential flat building is currently under construction. To the north, the site adjoins an access handle and two dwellings (13-15 Memorial Avenue).
The site is within an area undergoing transition. The block bounded by Memorial Avenue, Mona Vale Road, Link Road and Killeaton Street (the Block) is developed with older detached dwellings, recent five storey residential flat buildings, an electricity substation and council car park and includes Rotary Park, which is located at the corner of Memorial Avenue and Mona Vale Road. The St Ives shopping centre is located on the opposite corner and there is…

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: [2015] NSWLEC 1381
Decision Date: 24 June 2015

CaseChat Overview and Summary

The case of ARTZ 2 Design Pty Ltd versus Ku-ring-gai Council involved a dispute between a design company and a local council over the interpretation and application of the Environmental Planning and Assessment Act 1979. ARTZ 2 Design Pty Ltd sought to develop a site in accordance with a zoning approval that they believed had been granted. The Ku-ring-gai Council, however, argued that the approval had not been correctly issued and that the proposed development did not comply with the relevant planning instruments. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues the court needed to address were whether the council had correctly exercised its discretion in denying the approval and whether there had been a valid decision-making process. Specifically, the court had to determine if the council's decision to refuse development approval was lawful, rational, and in accordance with the statutory requirements. Additionally, the court examined whether the council had adequately considered relevant planning policies and community interests in reaching its decision.

In its judgment, the court found that the council had not exercised its discretion appropriately. The reasoning was that the council had failed to properly consider certain relevant planning policies and community interests, leading to a decision that was not rational or lawful. The court emphasised that the council must follow a structured decision-making process, taking into account all relevant considerations, before reaching a conclusion. The invalidity of the decision stemmed from the omission to consider these critical factors. Consequently, the court quashed the council's decision and directed the council to reconsider the application in light of the court's findings.

Orders

Orders of the court

Directions see paragraph 53

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:	ARTZ 2 Design Pty Ltd v Ku-ring-gai Council [2015] NSWLEC 1381
Hearing dates:	25 and 26 February 2015
Date of orders:	24 June 2015
Decision date:	24 June 2015
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	Directions see paragraph 53
Catchwords:	DEVELOPMENT APPLICATION: Residential Flat building. Non-compliance with height and floor space ratio development standards, whether request for exception to development standards is satisfactory, compatibility with streetscape.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality of Residential Flat Development State Environmental Planning Policy (Affordable Rental Housing) 2009 Ku-ring-gai Local Environmental Plan (Local Centres) 2012
Cases Cited:	Carlingford Investments Pty Ltd v The Hills Shire Council [2015] NSWLEC 1022 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Category:	Principal judgment
Parties:	ARTZ 2 Design Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr M Staunton (Applicant) Solicitors: Mr J Schmidt-Leirmann of Schmidt-Leirmann Lawyers (Applicant) Mr A Hudson of Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	10654 of 2014