Eastern High Pty Ltd v Ku-ring-gai Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eastern High Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1383

Hearing dates:

19, 20 April 2023

Date of orders:

20 July 2023

Decision date:

20 July 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development application DA0101/22 seeking consent for demolition of the existing structures and construction of a multi dwelling housing development with four dwellings, basement parking and associated works at 15 Boyd Street, Turramurra (Lot 1 in DP 27304) is determined by the refusal of consent.

(3) The exhibits are returned with the exception of Exhibits 1, G, and C.

Catchwords:

DEVELOPMENT APPLICATION — proposed multi dwelling housing development of four dwellings over basement car park – whether the proposed use is characterised as a residential flat building, prohibited development– whether the request to vary the lot size and frontage standard should be upheld – appeal dismissed.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 1.4, 4.15, 8.9, 39

Land and Environment Court Act 1979, s 34

Ku-ring-gai Local Environmental Plan 2015, cll 4.6, 6.6

Cases Cited:

Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61

Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147

Hrsto v Canterbury City Council (No 2) (2014) 204 LGERA 148; [2014] NSWLEC 121

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Katerinis v Canterbury-Bankstown Council [2017] NSWLEC 1479

Level 1 Construction Pty Ltd v Canterbury-Bankstown Council [2021] NSWLEC 1405

Mount Annan 88 Pty Ltd v Camden Council [2016] NSWLEC 1072

Texts Cited:

Ku-ring-gai Community Participation Plan 2020

Ku-ring-gai Development Control Plan 2015

Category:

Principal judgment

Parties:

Eastern High Pty Ltd (Applicant)
Ku-ring-gai Municipal Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
G Farland (Respondent)

Solicitors:
Tyrrell’s Planning Law (Applicant)
Hones Lawyers (Respondent)

File Number(s):

2022/199935

Publication restriction:

Nil

Judgment

1. COMMISSIONER:    The Applicant, Eastern High Pty Ltd is the owner of land known as 15 Boyd Street, Turramurra (Lot 1 in DP 27304) and proposes to redevelop the site as multi dwelling housing containing four dwellings over four storeys. The Applicant appeals, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act), the deemed refusal of their development application by Ku-ring-gai Municipal Council (the Respondent).

2. The development application seeks consent for:

• Demolition of existing structures,

• Tree removal,

• Construction of multi dwelling housing consisting of four dwellings with basement car parking,

• A new 1.8m high fence along the western and south-western boundaries of the site,

• Landscaping and site works.

3. The matter was listed for conciliation on 2 November 2022 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference was terminated, and the matter was subsequently listed for hearing.

4. On 9 February 2023, the Court granted leave for the amendment of the development application…