Goodenough v Ku-ring-gai Council - [2004] NSWLEC 597

Land and Environment Court

of New South Wales

CITATION: Goodenough v Ku-ring-gai Council [2004] NSWLEC 597

PARTIES:
APPLICANTS
D & G Goodenough
RESPONDENT
Ku-ring-gai Council
.

FILE NUMBER(S): 10918 of 2004

CORAM: Moore C

KEY ISSUES: Development Consent :-
Appeal against conditions
.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Ku-ring-gai DCP 38
.

CASES CITED: Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62;
Zhang v Canterbury City Council (2001) 115 LGERA 373;
Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472;
.

DATES OF HEARING: 26 October 2004

EX TEMPORE
JUDGMENT DATE : 10/26/2004

LEGAL REPRESENTATIVES:
APPLICANTS
Mr B Hones, solicitor
Hones Lawyers
RESPONDENT
Mr R Graham, solicitor
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

26 October 2004

04/10919 D & G Goodenough v Ku-ring-gai Council
JUDGMENT

1 Commissioner: This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against a number of conditions imposed by Ku-ring-gai Council (the council) on the landscaping for and location of a proposed retaining wall at premises at 138 Tryon Road, East Lindfield (the site).

2 Although the appeal related to four of conditions of consent, as a consequence of the appeal I am seized by the entirety of matters relating to the development application.

3 I dealt, at the commencement of the hearing, with purported imposition by the council of condition of consent 42 requiring the lodgement by the applicants of a cash bond or a bank guarantee for the maintenance of landscaping on their private property.

4 Mr Graham, solicitor for the council, promptly and correctly acknowledged the want of jurisdiction to impose such a condition.

5 It is quite clear from the decision of Pearlman CJ in Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62 at para 51 that s 80A(6) of the Act does not authorise the imposition of such a condition. I have, therefore, struck out that condition. Mr Graham has undertaken to draw the attention of the council's corporate legal officer, again, to the fact that it is not appropriate for such conditions to be inserted by council as there is no statutory basis for their incorporation in conditions attaching to consents.

6 In addition, as a consequence of me being seized by the totality of the matter, I am able to deal with matters raised by the objectors who represent residents of the adjacent properties on what might be called the eastern face of the property, in one instance, as to the security of access to a swimming pool area of the property and ,in the other instance, the adequacy of the site’s stormwater drainage system. The latter objection will be satisfied if the location of the wall is moved as proposed by the council.

7 I have had the advantage of reading the s 88B instrument creating the drainage easement over the Arblaster property (to the immediate east). I…

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: [2004] NSWLEC 597
Decision Date: 10/26/2004

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Commissioner Moore heard an appeal by D & G Goodenough against the Ku-ring-gai Council regarding the conditions imposed on a proposed retaining wall at 138 Tryon Road, East Lindfield. The applicants contested several conditions of consent, including those concerning the wall's location, the maintenance of landscaping, and the adequacy of the stormwater drainage system. The court addressed various objections raised by the residents of adjacent properties, particularly concerning access to a swimming pool and the stormwater drainage.

The court found that the council lacked jurisdiction to impose a condition requiring a cash bond or bank guarantee for the maintenance of landscaping on private property, referencing the decision in Datum Pty Ltd v Botany Bay City Council. Commissioner Moore struck out this condition and advised the council to refrain from imposing such conditions in the future. Additionally, the court considered objections regarding the security of access to the swimming pool area and the adequacy of the stormwater drainage system. The court concluded that moving the wall as proposed by the council would resolve the drainage concerns.

After discussions with the parties, the court agreed to incorporate conditions that require certification of the drainage system's adequacy and any necessary augmentation works before the release of the construction certificate. Furthermore, the court revised a condition concerning the retention of excavated material behind the retaining wall, allowing for some fill to be retained subject to engineering certification.

The primary issues remaining for determination were the wall's location, the height of the planting along the eastern boundary, and the placement of a reed screen. The court decided to move the retaining wall 1 meter further from the eastern boundary, in accordance with the council's Development Control Plan, to avoid overlooking and domination of neighbouring properties. The court also ruled that the wall's height should remain consistent with the proposed location of the footings, rejecting the applicants' proposal to construct the wall 900 mm above the ground level. Finally, the court concluded that the proposed placement of the reed screen was appropriate and did not need to be moved closer to the swimming pool. Commissioner Moore upheld the appeal in limited respects, leading to a significant revision of the conditions to reflect the agreements and his decision. The matter was set down for a callover on 16 November, which would be vacated if the parties electronically filed agreed revised conditions.

Orders