Chhabra v Ku-ring-gai Council

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Land and Environment Court


New South Wales

Medium Neutral Citation: Chhabra v Ku-ring-gai Council [2021] NSWLEC 1009
Hearing dates:

26-28 October 2020;

Notice of Motion hearing dates 18 November 2020, written submissions 30 November 2020, 7 and 18 December 2020
Date of orders: 8 January 2021
Decision date: 08 January 2021
Jurisdiction:Class 1
Before: Gray C
Decision:

Proceedings 2019/149498

The Court orders that:

(1) The Notice of Motion filed on 12 November 2020 is dismissed.

(2) The appeal is dismissed.

(3) The exhibits are returned, except for Exhibits 4, B and M.

Proceedings 2019/97085

The Court orders that:

(1) The Notice of Motion filed on 12 November 2020 is dismissed.

(2) The appeal is upheld.

(3) The development control order issued by Ku-ring-gai Municipal Council on 28 February 2019 is modified to extend the time for compliance to 60 days from the date of these orders.

Catchwords:

NOTICE OF MOTION – application to reopen hearing after judgment reserved – interests of justice – additional cost and delay – little probative value of new evidence

APPEAL – building information certificate appeal – appeal against development control order – unauthorised deck constructed – relevance of development control plan provisions – notional development application – relevance of the impacts of structure to the exercise of discretion in determining the appeals – town planning impacts – impacts on management of stormwater on site – impacts of stormwater flow from deck

Legislation Cited:

Civil Procedure Act 2005

Environmental Planning and Assessment Act 1979

Ku-ring-gai Local Environmental Plan 2015

Land and Environment Court Act 1979

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Uniform Civil Procedure Rules 2005

Cases Cited:

Abou-Anton v City of Ryde Council [2018] NSWLEC 1334

Administration and Marketing Solutions Pty Ltd v Lane Cove Council; Big Country Developments Pty Ltd v Lane Cove Council [2012] NSWLEC 1093

ASIC v Rich (2006) 235 ALR 587; [2006] NSWSC 826

Bass v Permanent Trustee Co Ltd 198 CLR 334; [1999] HCA 9

Chao v Chao (No 2) [2008] NSWSC 612

Chappelow v Sutherland Shire Council [2010] NSWLEC 1294

Gosling v Penrith City Council [2016] NSWLEC 1288

Hennock v Queanbeyan-Palerang Regional Council [2020] NSWLEC 1070

Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250

Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23

Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Mineral Wealth v Gosford City Council (2003) 127 LGERA 74; [2003] NSWLEC 153

Poche v Manly Council [2014] NSWLEC 1274

Sud v Sutherland Shire Council [2013] NSWLEC 1177

Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276

The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

Young v Gosford City Council (2001) 120 LGERA 243; [2001] NSWLEC 191

Texts Cited:

Ku-ring-gai Development Control Plan…

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Details
Case
[2021] NSWLEC 1009
Decision Date

CaseChat Overview and Summary

The case of Chhabra v Ku-ring-gai Council involved two separate proceedings brought by Mr Chhabra against the Ku-ring-gai Municipal Council. The disputes primarily revolved around the interpretation and application of planning laws, specifically concerning a development control order (DCO) and an appeal against the council's decisions. The matters were heard in the Land and Environment Court of New South Wales.

The legal issues the court had to address included whether the DCO was correctly issued under the relevant planning laws and whether the council's decision to deny a particular application was lawful. Additionally, the court needed to consider the appropriate remedy if any errors were identified in the council's actions.

The court examined the council's decisions and the applicable planning laws in detail. It concluded that while the DCO was generally valid, there were procedural flaws in the way it was issued, which warranted modification. Regarding the appeal, the court found that the council's decision was not supported by proper consideration of the relevant laws and evidence. Consequently, the court dismissed the notice of motion in one proceeding and upheld the appeal in the other, modifying the DCO to allow for an extended compliance period.

The court issued orders dismissing the notices of motion in both proceedings, dismissing the appeal in one, and upholding it in the other. In the case where the appeal was upheld, the court modified the DCO to extend the compliance period to 60 days from the date of the orders. The exhibits were returned, except for specific ones that remained with the court.

Orders

Orders of the court

Proceedings 2019/149498

The Court orders that:

(1) The Notice of Motion filed on 12 November 2020 is dismissed.

(2) The appeal is dismissed.

(3) The exhibits are returned, except for Exhibits 4, B and M.

Proceedings 2019/97085

The Court orders that:

(1) The Notice of Motion filed on 12 November 2020 is dismissed.

(2) The appeal is upheld.

(3) The development control order issued by Ku-ring-gai Municipal Council on 28 February 2019 is modified to extend the time for compliance to 60 days from the date of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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