Georges Construction v Ku-ring-gai Council - [2008] NSWLEC 1409

Land and Environment Court

of New South Wales

CITATION: Georges Construction v Ku-ring-gai Council [2008] NSWLEC 1409

PARTIES:
Applicant:
Georges Construction
Respondent:
Ku-ring-gai Council

FILE NUMBER(S): 10443 of 2008

CORAM: Roseth SC

KEY ISSUES: Development Application :-

DATES OF HEARING: 22 July 2008, 14 August 2008, 25 September 2008 and 16 October 2008

DATE OF JUDGMENT:
21 October 2008

LEGAL REPRESENTATIVES: Applicant:
Mr G Green, solicitor of Pikes Lawyers
Respondent:
Mr T Marsh, solicitor of HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

21 October 2008

10443 of 2008 Georges Construction v Ku-ring-gai Council
JUDGMENT

1 Senior Commissioner: This is an appeal against the refusal by Ku-ring-gai Council (the council) of a development application for two five-storey buildings containing 34 apartments on lots 2, 3 and 4 DP 379719, known as 2 and 2a Yarabah Avenue and 3 Cecil Street, Gordon.

2 The matter was determined pursuant to s34 of the Land and Environment Court Act 1979. The parties held conciliation conferences on 22 July and 25 September 2008, at which they reached agreement on all matters except the concerns of the objectors. This is not to say that the council considered that the objectors concerns were a reason for refusing the application; nor that it brought expert evidence in support of those concerns. The council’s position was that it was satisfied with the proposal; however, it wanted the Court to be responsible for a decision, which was likely to be unsatisfactory to the objectors. In effect, the parties agreed to the Commissioner disposing of the matter pursuant to s34(4)(b), but without there being a dispute between them.

3 The Court heard the evidence of six objectors. Mr R Loxton spoke on behalf of Mrs Lavalle of 4 Yarabah Avenue. He said that the design was alien to the area, the information inadequate and the site analysis stopped at the site boundaries. Ms P Stephens, who lives at 5 Cecil Street, said that she objected to the bulk and scale. She was also concerned about the increased traffic affecting children’s safety. Mr T and Ms C Coughlan, who live at unit 4, 720 Pacific Highway, said that they objected to the removal of trees on the site. They considered the proposal too big and poorly designed. Mr T Packer, who lives at 9 Yarabah Avenue, said that the proposal should be only four-storeys high. Ms S Rekrut, who lives at unit 5, 718 Pacific Highway, said that the setbacks were inadequate and the architectural style should be more classical. Finally, Mr R Watkins, who lives at unit 3, 720 Pacific Highway, said that his living room windows, which face west, would lose their sunlight and outlook.

4 On 22 July 2008 I inspected the apartments of most of the above objectors, as well as some of those who did not give evidence at the October hearing. The main aspect of the apartments is towards the west, where they have a lovely view…

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 Georges Construction 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: [2008] NSWLEC 1409
Decision Date: 21 October 2008

CaseChat Overview and Summary

The case of Georges Construction v Ku-ring-gai Council involved the applicant, Georges Construction, appealing against the refusal by Ku-ring-gai Council to grant a development application for two five-storey buildings containing 34 apartments on specific lots in Gordon. The Land and Environment Court of New South Wales heard the matter, with Roseth SC presiding over the case. The primary legal issue before the Court was whether the Council's refusal to approve the development application was justified, given the negotiated terms between the applicant and the Council that aimed to mitigate the impact on nearby residents.

The Court examined the arguments presented by both parties, including the objections raised by several local residents regarding the design, scale, and potential impact of the proposed development. The Court also considered the evidence provided by the objectors, who cited concerns such as loss of sunlight, increased traffic, and architectural style. Despite these objections, the Court found that the applicant had made reasonable efforts to address the concerns of the objectors, including reducing the Floor Space Ratio, increasing setbacks, and creating a gap between the two buildings to maintain views.

Ultimately, the Court concluded that the development application should be approved, as the proposed impact on the nearby apartments, while severe, was not devastating and was in line with the permissible zoning for the area. The Court also noted that other objections, such as traffic impact and architectural aesthetics, did not warrant refusal of the application. The appeal was upheld, and the development application was granted consent subject to specific conditions outlined in Annexure A.

The final orders of the Court included the approval of the development application for two five-storey buildings containing 34 apartments, with the exhibits returned except for Exhibit A. The decision highlights the importance of balancing the rights of developers with the concerns of local residents in development applications, while also considering the broader zoning and planning framework.

Orders