Bennett v Ku-ring-gai Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bennett v Ku-ring-gai Council [2023] NSWLEC 6

Hearing dates:

30 January 2023

Date of orders:

30 January 2023

Decision date:

30 January 2023

Jurisdiction:

Class 1

Before:

Robson J

Decision:

See orders at [34]

Catchwords:

CIVIL PROCEDURE — Registrars — Review of Registrar’s decision — Notice of motion to vary Registrar’s decision to refuse leave to adduce expert town planning evidence — Principles on review of a Registrar’s decision — Whether in the interests of justice to vary decision — Material change in circumstances — Motion granted

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Ku-ring-gai Local Centres Development Control Plan 2017, Pts 4A, 13.1

Ku-ring-gai Local Environmental Plan 2015, cl 1.2

Land and Environment Court Act 1979 (NSW), s 38

Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.20

Cases Cited:

Groeneveld v Wollongong City Council [2009] NSWLEC 49; (2009) 168 LGERA 260

Shellharbour City Council v Minister for Planning [2011] NSWCA 195; (2011) 189 LGERA 348

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131

Category:

Procedural rulings

Parties:

Alex Bennett (First Respondent on the motion)
Ingrid Johanna King (Second Respondent on the motion)
Ku-ring-gai Council (Applicant on the motion)

Representation:

Counsel:
J Doyle (First and Second Respondents on the motion)
D Robertson (Applicant on the motion)

Solicitors:
Self-represented (First and Second Respondents on the motion)
Maddocks Lawyers (Applicant on the motion)

File Number(s):

2022/00347707

Publication restriction:

Nil

EX TEMPORE Judgment

1. HIS HONOUR: By its notice of motion filed 23 December 2022 Ku-ring-gai Council (‘Council’), the respondent in these Class 1 appeal proceedings commenced 18 November 2022, seeks a review of part of a decision made by a Registrar of the Court on 9 December 2022, to refuse Council's application for leave to adduce town planning evidence. The motion was listed and heard before me today.

2. Mr D Robertson of counsel appeared for Council and Mr J Doyle of counsel appeared for Alex Bennett and Ingrid Johanna King, the respondents on the motion.

Background

3. The background facts are uncontentious. Alex Bennett and Ingrid Johanna King (hereinafter, ‘applicants’) are the owners of a property, “Purulia”, at 16 Fox Valley Road, Wahroonga, which is located within Ku-ring-gai Council's local government area. The property is a listed heritage item under the Ku-ring-gai Local Environmental Plan 2015 (‘KLEP’) and is also on the State Heritage Register.

4. On 1 July 2020, the applicants lodged a development application with Council seeking consent for development which involved the removal of three trees and the demolition of an in-ground swimming pool on the property. On 15 January 2021, Council granted development consent (subject to conditions) for the development which provided for the removal of two of the three trees and the demolition of the swimming pool (‘Consent’). The Consent did not provide for the removal of what is referred to as “Tree 3”, which is a large Himalayan…