Gelder Architecture v Ku-Ring-Gai Council - [2010] NSWLEC 1184

Land and Environment Court

of New South Wales

CITATION: Gelder Architecture v Ku-Ring-Gai Council [2010] NSWLEC 1184
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Gelder Architecture
RESPONDENT
Ku-Ring-Gai Council

FILE NUMBER(S): 10027 of 2010

CORAM: Tuor C - Morris C

KEY ISSUES: DEVELOPMENT APPLICATION :- Residential flat building
weight to be given to draft LEP and savings provision
impact on significance of conservation area

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
Ku-ring-gai Local Environmental Plan (Town Centres) 2010

CASES CITED: Georges Construction v Ku-ring-gai Council [2008] NSWLEC 1409
Mathers v North Sydney Council [2000] NSWLEC 84
Haywood and Bakker Pty Ltd v North Sydney Council [2000] NSWLEC
Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
Atkins v Maitland City Council [2010] NSWLEC 36
61 Helou v Strathfield Municipal Council (2006) NSWLEC 66

DATES OF HEARING: 06/07/2010-07/07/2010

DATE OF JUDGMENT:
19 July 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Green, Solicitor
of Pikes Lawyers
RESPONDENT
Mr A Pickles, Barrister
instructed by Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C
Morris C

19 July 2010

10027 of 2010 Gelder Architecture v Ku-Ring-Gai Council
JUDGMENT

1 Commissioners: This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application that proposes the demolition of three dwelling houses and associated outbuildings and the construction of a 5 storey residential flat building above a two level basement car park at 1-5 Yarabah Avenue, Gordon (the site).

2 The development was to initially comprise 33 units with associated parking and landscaped areas. In a subsequent s82A application to the council, the number of units was reduced to 32. On 20 May 2010 the A/Registrar granted leave for the applicant to rely on further amended plans. It is the amended plans that are the subject of these proceedings.

The Site and its Locality

3 The site is located on the north western corner of the Pacific Highway and Yarabah Avenue and is an amalgamation of four lots which contain three dwelling houses, all of which have frontage to Yarabah Avenue. The total area of the site is 2767 m2. It has a fall of approximately five metres from the front eastern corner to the rear western corner.

4 The Pacific Highway is a major arterial road whereas Yarabah Avenue is a quiet residential street. Apart from a two storey residential flat building on the southern corner of the highway and Yarabah Avenue, the remainder of the buildings in Yarabah Avenue are one and two storey dwelling houses.

5 Two heritage items adjoin the site, one to the north known as Nos 724-726 Pacific Highway and one to the north-west being No 17 Yarabah Avenue.

6 A five storey residential flat building has been approved by the Court opposite the site at 2 and 2A Yarabah Avenue (Georges Construction v Ku-ring-gai Council [2008] NSWLEC…

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: [2010] NSWLEC 1184
Decision Date: 19 July 2010

CaseChat Overview and Summary

The Land and Environment Court of New South Wales has dismissed an appeal by Gelder Architecture against the Ku-Ring-Gai Council's refusal of a development application. The proposed development involved the demolition of three existing dwellings and the construction of a five-storey residential flat building above a two-level basement car park at Yarabah Avenue, Gordon. The application was lodged prior to the making of the Ku-ring-gai Local Environmental Plan (Town Centres) 2010 (LEP 2010), which rezoned the site and included it within the Yarabah Avenue Heritage Conservation Area (HCA). The Court considered the weight to be given to LEP 2010 and whether the proposed development was consistent with the aims and objectives of the plan, particularly in relation to heritage.

The Court found that LEP 2010 must be given significant weight due to its certainty and imminent operation. However, the Court also considered the transitional provision, which allows for the determination of the application as if the plan had not been made. The Court held that the key question was whether the proposed development was consistent with the aims and objectives of LEP 2010, particularly in relation to heritage. The Court found that the proposed development was not compatible with the character of the Yarabah Avenue HCA and would adversely impact on its heritage significance. The Court also found that the demolition of the three dwellings would have a significant impact on the character of the Yarabah Avenue HCA, as they were contributory items that warranted retention.

For these reasons, the Court dismissed the appeal and refused the development application. The Court ordered that the appeal be dismissed, the development application be refused, and the exhibits be returned.

Orders