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Futurespace Pty Ltd v Ku-ring-gai Council

Futurespace Pty Ltd v Ku-ring-gai Council

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Case Copied 25 November 2009 27 min read

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Land and Environment Court

of New South Wales

CITATION: Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1389

PARTIES:
APPLICANT
Futurespace Pty Ltd
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10513 of 2009

CORAM: Moore SC - Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT STANDARDS :-
SEPP 1 objections
Impact on development potential of neighbouring properties
S 94 contributions

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy 1
Uniform Civil Procedure Rules 2005

CASES CITED: Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153
Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

DATES OF HEARING: 12 and 13 November 2009

DATE OF JUDGMENT:
25 November 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr I Hemmings, barrister
INSTRUCTED BY
Hones La Hood
RESPONDENT
Mr J Robson SC
INSTRUCTED BY
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES C

25 November 2009

09/10513 Futurespace Pty Ltd v Ku-ring-gai Council
JUDGMENT

1 COMMISSIONERS: As a consequence of government policy for increased density and thus increased high-rise development in a number of the villages within Ku-ring-gai Council's (the council’s) area, including Turramurra, a new local environmental plan is to be adopted that will increase, in the vicinity of the site which is the subject of these proceedings, the land zoned for such purposes.

2 That new local environmental plan, to be known as the Ku-ring-gai Local Environmental Plan (Town Centres) 2008 (the Town Centres LEP), is based on the zones contained in the State government's template local environmental plan.

3 The present applicable planning regime is the Ku-ring-gai Planning Scheme Ordinance (the KPSO). Under the KPSO, the site is zoned 2(d3) and the proposal is permissible. An extract from the relevant zoning map showing the site marked with black edge and circled appears immediately below.

4 Under the Town Centres LEP, the site is to be zoned R4 and the proposal will be similarly permissible. A copy of the relevant element of the proposed zoning map under the Town Centres LEP appears below. On this map, we have outline marked the site in green; the properties at 1 and 3 Nulla Nulla Street (to the east) in pink; and the Uniting Church property on the opposite side of Turramurra Avenue in white. The relevance of these additional properties is explained later in this decision.

5 Ms Pearson and Mr Minto, the town planning experts for the council and the applicant respectively, agree that the Town Centres LEP is both imminent and certain. Although cl 1.8A of the Town Centres LEP contains the standard savings clause for the new LEP template, we are satisfied that, under the circumstances of these proceedings, considerable (and near determinative) weight is to be given to the provisions of the Town Centres LEP.

6 In September 2009, the applicant sought and was granted leave to rely on amended plans and, in those proceedings before Pepper J, was the subject of a costs order in favour of the…

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: [2009] NSWLEC 1389
Decision Date: 25 November 2009

CaseChat Overview and Summary

Futurespace Pty Ltd sought development consent for a 27 dwelling residential flat building with 3 basement levels of car parking. The proposal was to replace three existing dwellings at 7, 9 and 11 Turramurra Avenue, Turramurra. Ku-ring-gai Council opposed the development consent application on the basis that it would cause an unacceptable impact on the proposed future development of 1 and 3 Nulla Nulla Street; that the proposal did not comply with the setback provisions of the Ku-ring-gai Planning Scheme Ordinance; and that the uppermost level of the proposal did not comply with the provisions of clause 25I(7) of the Ku-ring-gai Planning Scheme Ordinance. The Land and Environment Court was required to determine whether these objections were well founded and, if so, whether they warranted refusal of the proposal or its modification. The court held that the objections to compliance with the setback provisions and the uppermost level floor area were well founded. The court also held that, although the development would have some impact on the development potential of 1 and 3 Nulla Nulla Street, it would not be sufficient to warrant refusal of the proposal. The court granted development consent subject to conditions, including that the uppermost level be modified to achieve compliance with the uppermost level floor area development standard.

Orders