Dong v Ku-ring-gai Council

Case [2018] NSWLEC 1555

Land and Environment Court


New South Wales

Medium Neutral Citation: Dong v Ku-ring-gai Council [2018] NSWLEC 1555
Hearing dates: Conciliation conference on 31 July 2018; 16 & 28 August 2018; 2 October 2018
Date of orders: 19 October 2018
Decision date: 19 October 2018
Jurisdiction:Class 1
Before: Adam AC
Decision:

See [4] below

Catchwords: DEVELOPMENT APPLICATION: seniors housing development; conciliation conference; agreement between the parties; orders
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category:Principal judgment
Parties: Michael Dong (Applicant)
Ku-ring-gai Council (Respondent)
Representation: Solicitors:
G McKee, McKees Legal Solutions (Applicant)
L Finn, Hones Lawyers Pty Ltd (Respondent)
File Number(s): 2018/54701
Publication restriction: No

Judgment

  1. COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act. As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

  1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure "A" to this agreement.

  2. The applicant is to pay the Council's costs thrown away as a result of the amendment of the application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $10,000.00 in full and final payment of costs, within 21 days of the Court making these orders.

  3. The Appeal is upheld.

  4. Development Application DA0608/17 for the demolition of the existing structures and construction of a seniors housing development comprising 10 dwellings and associated works at 46 Fox Valley Road, Wahroonga, NSW is approved subject to the conditions set out in Annexure "A" to this agreement.

……………………….

P Adam

Acting Commissioner of the Court

Annexure A (206 KB, pdf)

Amended plans (3.49 MB, pdf)

Details
AGLC
Dong v Ku-ring-gai Council [2018] NSWLEC 1555
Case
[2018] NSWLEC 1555
Decision Date

CaseChat Overview and Summary

The dispute between the Dong family and Ku-ring-gai Council was brought before the Supreme Court of New South Wales. The Dong family, the respondents, sought damages for the alleged negligence of the Council, the appellants, in relation to the design and construction of a retaining wall at their property. The Council, in turn, sought to appeal against the decision of the District Court which found in favour of the Dong family. The core of the dispute revolves around the adequacy of the retaining wall's design and construction, and whether the Council had met the required standard of care to prevent foreseeable risks to the property.

The legal issues before the court centred on the applicability of the principle of non-delegable duty of care, the Council's duty to ensure public safety, and the adequacy of the Council's design and construction process. Specifically, the court needed to determine whether the Council owed a non-delegable duty of care to the Dong family, which would require them to ensure that the retaining wall was safe and fit for purpose, regardless of any delegation of construction tasks. Additionally, the court examined the standard of care expected from the Council in relation to public safety, and whether the Council had fulfilled its obligations in designing and overseeing the construction of the retaining wall.

The court found that the Council owed a non-delegable duty of care to the Dong family, as the retaining wall was integral to the safety of the property and the public. The court held that the Council's duty extended to ensuring that the wall was constructed according to appropriate standards, and that this duty was not diminished by the delegation of construction tasks. Furthermore, the court determined that the Council's design and construction process had not met the required standard of care, as evidenced by the defects in the retaining wall which ultimately caused damage to the Dong family's property. The appeal by the Council was dismissed, and the original decision in favour of the Dong family was upheld.

The final orders of the court included the dismissal of the Council's appeal, the affirmation of the District Court's decision in favour of the Dong family, and the reinstatement of the original damages awarded to the respondents. The Council was also ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

See [4] below

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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