Hardy v Ku-ring-gai Council

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hardy v Ku-ring-gai Council [2018] NSWLEC 1245
Hearing dates:	22 May 2018
Date of orders:	24 May 2018
Decision date:	24 May 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The applicant is granted leave to reopen the proceedings to adduce further evidence in the form of an amended written request to vary the height of buildings development standard pursuant to clause 4.6 in the Ku-ring-gai Local Environmental Plan 2015.
Catchwords:	PROCEDURE: application to reopen case to adduce an amended written request to vary a development standard; application granted; procedural jurisdictional issue only and no prejudice caused to the respondent.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Civil Procedure Act 2005
Cases Cited:	Hardy v Ku-ring-gai Council (No. 2) [2018] NSWLEC 1246 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35 Nada v Georges River Council [2017] NSWLEC 80
Category:	Procedural and other rulings
Parties:	John Hardy (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr R. O’Gorman-Hughes barrister (Respondent)   Solicitors: Mr J. Palmer, Pikes & Verekers Lawyers Shaw Reynolds Lawyers (Respondent)
File Number(s):	2017/324388
Publication restriction:	No

Judgment

1. COMMISSIONER: The applicant filed a Notice of Motion on 16 May 2018, the day following the hearing in which I reserved my decision, seeking the reopening of the case to adduce further evidence that the applicant claimed addressed matters first raised by the respondent in closing submissions.

2. The proceedings were heard under the relevant provisions of s 34AA of the Land and Environment Court Act 1979 (“LEC Act”). The conciliation phase of the proceedings commenced onsite on 14 May 2018 and the parties returned to Court to further conciliate the matter during the afternoon of 14 May 2018. As an agreement was not reached by the parties, the conciliation conference was terminated on the morning of 15 May 2018 and the hearing was held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

3. The proposal breaches the 9.5m height of buildings development standard in Ku-ring-gai Local Environmental Plan 2015 (“LEP 2015”) in two locations (as indicated on the architectural plan tendered in the substantive proceedings as exhibit B) (Hardy v Ku-ring-gai Council (No. 2) [2018] NSWLEC 1246), the proposed rear dormer addition and the roof ridge of the extension of the rear wing on the western side of the site.

4. Mr Palmer submitted that the written request to vary the height of buildings development standard, which accompanied the development application and the Class 1 Application, referred only to the breach of the height of buildings development standard by the proposed new attic dormer. A further written request to vary the height of buildings development standard was written by the applicant’s planning and heritage expert, Mr Brian McDonald, and was annexed to the planners’ joint report (exhibit 3). Mr McDonald’s written request does not specifically refer to the breach of the height of buildings development…