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 2020Date 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
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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- Case
- [2021] NSWLEC 1009
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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