Attard v Ku-ring-gai Council - [2010] NSWLEC 1081

Land and Environment Court

of New South Wales

CITATION: Attard v Ku-ring-gai Council [2010] NSWLEC 1081

PARTIES:
APPLICANT
Alfred Attard
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10772 of 2009

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT CONSENT :- Heritage item, discretion under s 96.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance

CASES CITED: Progress and Security(1988)66 LGRA 236,
Morris v Leichhardt Council [2008] NSWLEC 1106,
Vacik Pty Limited v Penrith City Council ,
Sydney City Council v Illenace Pty limited (1984)3 NSWLR 414
North Sydney v Michael Stanley & Associates Pty Limited (1988)97 LGRA 433,
Moto Projects (No2) Pty limited v North Sydney Council (1999)106 LGRA 298,
Arkibuilt v Ku ring gai Council [2006]NSWLEC,
Fairfield City Council v N7&.S Oliveri

DATES OF HEARING: 9 March 2010
22 April 2010

DATE OF JUDGMENT:
4 May 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr Gough (solicitor)
SOLICITOR
Storey and Gough
RESPONDENT
Mr C McEwen (barrister)
SOLICITOR
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C.

4 May 2010

10772 of 2009 Alfred Attard v Ku-ring-gai Council
JUDGMENT

1 This is an appeal under section 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against Ku-ring-gai Council’s refusal of an application MOD252/09 under section 96(2) of the EPA Act to modify development consent DA0471/07 to allow the construction of:

2 on Craignairn the site at 37 Burns Road Wahroonga that is identified as a heritage item of local significance under Part 2 of Schedule 7 of the Ku-ring-gai Planning Scheme Ordinance (KPSO).

3 This appeal raises the following questions: does the Court have power under section 96(2) of the Act to deal with this application and if so, after a consideration of the relevant matters referred to in section 79C(1) including clause 61D (2) of the KPSO, should it exercise its discretion to approve the application?

4 I have determined that I do have jurisdiction to deal with this application under section 96(2) but after a consideration of the relevant matters in 79C(1) including clause 61D(2) of the KPSO I find the modified development will result in an adverse impact on the heritage significance of the heritage item so I refuse this application and I dismiss the appeal.

Background

5 The subject site is a corner block with a northern frontage of 98.65m to Burns Road and a 72.29m western boundary to Cleveland Street. Erected on the site is “Craignairn” a large two-storey dwelling set in expansive landscaped curtilages to both street frontages. A circular driveway from Burns Road accesses the site.

6 On 2 February 2005 Council issued a consent DA882/04 (the 2004 consent) for the development site which allowed…

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: [2010] NSWLEC 1081
Decision Date: 4 May 2010

CaseChat Overview and Summary

Alfred Attard sought to appeal the Ku-ring-gai Council’s refusal of his application to modify development consent for the construction of a garage addition at the rear of his heritage listed property. The primary issue before the Court was whether the proposed modification would have an adverse impact on the heritage significance of the property. The Court held that it had jurisdiction to deal with the application under section 96(2) of the Environmental Planning and Assessment Act 1979 but ultimately refused the application. The Court found that the proposed garage addition would have an adverse impact on the heritage significance of the property and that it was not in the public interest to approve the application. The Court further found that the applicant had already built a triple garage under a concurrent consent, and that the proposed modification was not substantially the same development as that originally approved. The Court dismissed the appeal and refused the modification application.

Orders