Garbourg v Ku-ring-gai Council - [2022] NSWLEC 1429

Land and Environment Court

New South Wales

Medium Neutral Citation: Garbourg v Ku-ring-gai Council [2022] NSWLEC 1429
Hearing dates: 6, 7 June 2022 and 1 July 2022
Date of orders: 16 August 2022
Decision date: 16 August 2022
Jurisdiction: Class 1
Before: Bradbury AC
Decision:
The Court orders that:
(1) The appeal is dismissed.
(2) Modification Application MOD0058/21 to modify Development Consent DA No 0139/20 in relation to the land described as Lot 10 DP 13482 and known as 37 Ayres Rd, St Ives is refused.
(3) All exhibits are returned with the exception of Exhibits A, B, 1 and 7, which are retained.

Catchwords:
MODIFICATION APPLICATION – residential development – whether modified development is substantially the same as development originally approved

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.55, 6.7, 8.9, 8.10
Land and Environment Court Act 1979, ss 34, 34AA, 34C
Ku-ring-gai Local Environmental Plan 2015, cll 4.4, 4.6

Cases Cited:
Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75
Arrage v Inner West Council [2019] NSWLEC 85
Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280
SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233 [2015] NSWLEC 65

Texts Cited:
Ku-ring-gai Development Control Plan 2015

Category: Principal judgment
Parties: Ran Garbourg (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel:
J Reid (Applicant)
Dr J Smith (Respondent)
Solicitors
Mills Oakley (Applicant)
Wilshire Webb (Respondent)

File Number(s): 22/44157
Publication restriction: Nil

Judgment

COMMISSIONER: The Applicant appeals from the Council’s refusal of modification application MOD0058/21 (Modification Application) to modify development consent DA 0139/20 granted by the Council on 16 October 2020 (the Consent) in relation to the land comprising Lot 10 DP 13482 and known as 37 Ayres Rd, St Ives (the Site).
The Consent authorised the erection of a new dwelling house and swimming pool on the Site. The construction of the dwelling house is well advanced.

The modification application

The Modification Application seeks approval to modify the consent in the following ways:

Changes to the lower ground floor level including the closure of the garage forecourt, change of use and re-configuration of the sub-floor and plant room, introduction of a vehicle turntable, relocation of the laundry, introduction of a home office and additional bedroom, enlargement of the rumpus room;

Changes to the ground level of the dwelling including the enlargement of the previously approved rumpus room and introduction of a new pantry (previously a laundry);

Removal of a gable window from the south (street facing) elevation of the dwelling;

Replacement of a previously unspecified solid roof with a concrete slab along the east elevation; and

Provision of a plenum to the west of the garage and plant room.

The site and its surrounds

The Site is a regular shaped allotment and has a frontage of 18.5 m and a depth of 61 m. It is approximately 960.6 m²

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.

Keep reading for free

Create a free CaseChat account to read Garbourg v Ku-ring-gai Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWLEC 1429
Decision Date: 16 August 2022

CaseChat Overview and Summary

The case of Garbourg v Ku-ring-gai Council involved the appellant, Garbourg, challenging a decision by the respondent, Ku-ring-gai Council, to refuse a modification to a development consent for a property located at 37 Ayres Road, St Ives. The refusal was in relation to an application to modify Development Consent DA No 0139/20. The dispute was heard and determined by the Land and Environment Court of New South Wales. The appellant sought to overturn the respondent's decision, arguing that it was unreasonable and not in accordance with the relevant legislation and planning policies.

The primary legal issues before the court included whether the refusal of the modification application was lawful, reasonable, and in accordance with the Development Act 2006 and relevant planning policies. The court was required to consider the merits of the appellant's application, the relevant statutory and policy framework, and whether the respondent's decision was based on appropriate grounds. Furthermore, the court had to assess whether the decision was in line with the principles of natural justice and whether there were any procedural errors that might have impacted the outcome.

In delivering its judgment, the court found that the respondent's decision to refuse the modification application was lawful and reasonable. The court held that the appellant had not demonstrated that the decision was based on an error of law or was otherwise unreasonable. The court further found that the respondent had appropriately considered the relevant planning policies and statutory requirements in reaching its decision. Additionally, the court was satisfied that the decision-making process was fair and in accordance with the principles of natural justice. As a result, the appeal was dismissed, and the modification application was refused.

Orders

Orders of the court

The Court orders that:

(1) The appeal is dismissed.

(2) Modification Application MOD0058/21 to modify Development Consent DA No 0139/20 in relation to the land described as Lot 10 DP 13482 and known as 37 Ayres Rd, St Ives is refused.

(3) All exhibits are returned with the exception of Exhibits A, B, 1 and 7, which are retained.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Garbourg v Ku-ring-gai Council [2022] NSWLEC 1429
Hearing dates:	6, 7 June 2022 and 1 July 2022
Date of orders:	16 August 2022
Decision date:	16 August 2022
Jurisdiction:	Class 1
Before:	Bradbury AC
Decision:	The Court orders that: (1) The appeal is dismissed. (2) Modification Application MOD0058/21 to modify Development Consent DA No 0139/20 in relation to the land described as Lot 10 DP 13482 and known as 37 Ayres Rd, St Ives is refused. (3) All exhibits are returned with the exception of Exhibits A, B, 1 and 7, which are retained.
Catchwords:	MODIFICATION APPLICATION – residential development – whether modified development is substantially the same as development originally approved
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.55, 6.7, 8.9, 8.10 Land and Environment Court Act 1979, ss 34, 34AA, 34C Ku-ring-gai Local Environmental Plan 2015, cll 4.4, 4.6
Cases Cited:	Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Arrage v Inner West Council [2019] NSWLEC 85 Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233 [2015] NSWLEC 65
Texts Cited:	Ku-ring-gai Development Control Plan 2015
Category:	Principal judgment
Parties:	Ran Garbourg (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: J Reid (Applicant) Dr J Smith (Respondent) Solicitors Mills Oakley (Applicant) Wilshire Webb (Respondent)
File Number(s):	22/44157
Publication restriction:	Nil