Falcomata v Ku-ring-gai Council (No 2) - [2005] NSWLEC 459

Reported Decision: 143 LGERA 346

Land and Environment Court

of New South Wales

CITATION:
Falcomata v Ku-ring-gai Council (No 2) [2005] NSWLEC 459

PARTIES:
APPLICANT
R Falcomata
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):
10190 of 2005

CORAM:
Moore C

KEY ISSUES:
Development Application :-
Planning Principle: The imposition of conditions relating to the preservation of landscaping or protection of existing vegetation
Solar access
Privacy
Overdevelopment
.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979, s 79C(1), s 80A(6), s 94
Rivers and Foreshores Improvement Act 1948, s 22C(2)
State Environmental Planning Policy 53
.

CASES CITED:
Parsonage v Ku-ring-gai [2004] NSWLEC 347;
Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62;
Allen & Hawkes v Ku-ring-gai Council [2005] NSWLEC 227;
Newbury District Council v Secretary of State for the Environment [1981] AC 578;
J James and Anastasia Markakis v Mosman Municipal Council [1998] NSWLEC 223;
.

DATES OF HEARING: 3 and 10 August 2005

DATE OF JUDGMENT:

08/24/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr S Kondilios, solicitor
Maddocks
RESPONDENT
Mr P Marincowitz, solicitor
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Moore C

19 August 2005

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

1 Commissioner : This appeal is one of a pair of appeals involving the two subdivided elements of a parcel of land known as 86 Livingstone Avenue, Pymble (the site). The portion of the site to which this appeal relates is known as a Lot 2.

2 It is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Planning Act) against the deemed refusal by Ku-ring-gai Council (the council) of Development Application 1153/04 for the demolition of a tennis court and the construction of two detached dual occupancy dwellings.

3 During the course of the hearing, I had the advantage not only of an inspection of the site in company with the legal representatives of the parties but the opportunity to hear the evidence of the resident objectors during the course of that inspection.
4 Further, Mr I English had been appointed as the court expert arborist and Mr N Ingham was the court appointed expert town planner. They both accompanied me during the course of the site inspection and each was able to provide significant assistance to me with respect to the issues on each of the lots comprising the site during the course of that inspection.

5 In response to a question from me, Mr Marincowitz, solicitor for the council, confirmed that the council…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NSWLEC 459
Decision Date: 08/24/2005

CaseChat Overview and Summary

This appeal involves a challenge by the applicant to a decision of the council to refuse development consent for a proposal to demolish a tennis court and construct two detached dual occupancy dwellings on a parcel of land known as Lot 2 of 86 Livingstone Avenue, Pymble. The principal issues were the impact on trees, solar access, and privacy. The court found that the proposed development would not impact on the trees, that solar access had been improved to an acceptable level, and that privacy would be maintained. The court also concluded that the proposed development did not constitute an overdevelopment of the site. The court declined to impose landscaping and tree protection bonds as it found that the council had no statutory power to do so. The court also considered the principles applicable to the imposition of conditions relating to the preservation of landscaping or protection of existing vegetation.

In light of the findings, the court granted development consent for the proposed dwellings subject to the submission of revised plans and conditions. The applicant was directed to file further revised plans by 9 September 2005 and the council was directed to file revised conditions by the same date. The matter was set down for callover on 13 September 2005. If the directions were complied with, the court would issue orders in chambers and vacate the callover.

Orders