Chen v Ku-ring-gai Council

[2020] NSWLEC 1047

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chen v Ku-ring-gai Council [2020] NSWLEC 1047

Hearing dates:

Conciliation conference on 31 January 2020

Date of orders:

31 January 2020

Decision date:

31 January 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

 

(1) The Applicants are granted leave to amend the application and rely on the plans listed under Condition 1 below the heading ‘The development must be carried out in accordance with the plans and documentation listed below:’ in Annexure ‘A’.

 

(2) Appeal upheld.

 (3) Development Application number DA0292/18 for construction of a synthetic grass tennis court on suspended concrete slab above existing lawn tennis court is approved subject to the conditions in Annexure ‘A’.

Catchwords:

APPEAL – development application – construction of a concrete slab tennis court at residential dwelling – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979
Ku-ring-gai Local Environmental Plan 2015
Land and Environment Court Act 1979
State Environmental Planning Policy No 55 – Remediation of Land

Category:

Principal judgment

Parties:

Jie Chen (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
C Montague (Solicitor) (Applicant)
M Winram (Solicitor) (Respondent)

  Solicitors:
Hall and Wilcox (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2019/173408

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Ku-ring-gai Council of a development application for the construction of a synthetic grass tennis court on a suspended concrete slab above an existing lawn tennis court at 39 Burns Road, Wahroonga. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arranged a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation conference was listed for 31 January 2020. I presided over the conciliation conference.

3. At the conciliation conference, 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 was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application makes changes to the landscape plans and the environmental site management, construction management and stormwater plan to protect existing established trees.

4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development is for the purpose of a dwelling house, which is a permissible use in the R2 – Low Density Residential zone in which it is located, pursuant to the Ku-ring-gai Local Environmental Plan 2015 (“KLEP 2015”)

• The development complies with the applicable development standard in the KLEP 2015 for height.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given the historic use of the area where the concrete slab is to be constructed as a tennis court and of the site for residential purposes, the site is not likely to be contaminated.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. In making the orders to give effect to the agreement between the parties, I am 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.

7. The Court orders that:

1. The Applicants are granted leave to amend the application and rely on the plans listed under Condition 1 below the heading ‘The development must be carried out in accordance with the plans and documentation listed below:’ in Annexure ‘A’.

2. Appeal upheld.

3. Development Application number DA0292/18 for construction of a synthetic grass tennis court on suspended concrete slab above existing lawn tennis court is approved subject to the conditions in Annexure ‘A’.

………………………..

J Gray

Commissioner of the Court

Annexure A (C) (252 KB, pdf)

Plans (4.73 MB, pdf)

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