Attard v Ku-ring-gai Council

[2020] NSWLEC 1041

Land and Environment Court

New South Wales

Medium Neutral Citation:	Attard v Ku-ring-gai Council [2020] NSWLEC 1041
Hearing dates:	Conciliation conference on 20 and 21 January 2020
Date of orders:	30 January 2020
Decision date:	30 January 2020
Jurisdiction:	Class 1
Before:	Morris AC
Decision:	The Court orders: (1) The Applicant is granted leave to amend the development application to remove that part of the development application that seeks demolition of existing structures and to rely upon the plans referred to in condition 1 of Annexure A. (2) The Appeal is upheld. (3) Development Application DA0260/19 for the construction of a new dwelling including front fence, pool and associated works at 73 Pymble Avenue, Pymble is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOMENT APPLICATION – dwelling house –conciliation conference – agreement between parties
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Alexandra Attard (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: M Staunton (Applicant) A Hudson (Solicitor) (Respondent)   Solicitors: Nexus Lawyers (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/329504
Publication restriction:	No

Judgment

1. This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against Ku-ring-gai Council’s deemed refusal of Development Application No DA0260/19 for demolition of existing structures and the construction of a new dwelling at 73 Pymble Avenue, Pymble.

2. The parties have been working together to address the matters raised in the Council’s Statement of Facts and Contentions with the applicant preparing revised plans.

3. The applicant has amended the application because the dwelling house that was erected on the site has been demolished. Demolition no longer forms part of the application. The plans that are now the subject of the application propose the construction of a two storey dwelling house with attached garage and carport, swimming pool, tree removal and landscaping.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 20 and 21 January 2020. I presided over the conciliation conference. Through the conciliation process, the parties have agreed on an amended design for the development.

5. Following the conciliation, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act.

6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The proposed development is permissible with consent pursuant to cl 2.3 and the R2 Low Density Residential Zone under the provisions of the Ku-ring-gai Local Environmental Plan 2015 (LEP);

2. The proposed development has had regard to the heritage provisions of cl 5.10 of the LEP and in particular subclause (4). The Council’s heritage expert is satisfied with the design and siting of the proposed dwelling house;

3. The proposal provides for the retention of significant trees on the site;

4. Owner’s consent has been provided for the proposed development and no works are authorised under the consent to be carried out on any adjoining land.

7. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The Court orders that:

1. The Applicant is granted leave to amend the development application to remove that part of the development application that seeks demolition of existing structures and to rely upon the plans referred to in condition 1 of Annexure A.

2. The Appeal is upheld.

3. Development Application DA0260/19 for the construction of a new dwelling including front fence, pool and associated works at 73 Pymble Avenue, Pymble is approved subject to the conditions in Annexure A.

…………………………

Sue Morris

Acting Commissioner of the Court

Annexure A (378 KB)

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