Hardy v Ku-ring-gai Council (No. 2) - [2018] NSWLEC 1246

Land and Environment Court

New South Wales

Medium Neutral Citation: Hardy v Ku-ring-gai Council (No. 2) [2018] NSWLEC 1246
Hearing dates: 14-15 May 2018
Date of orders: 24 May 2018
Decision date: 24 May 2018
Jurisdiction: Class 1
Before: O’Neill C
Decision:
1. The appeal is dismissed.
2. Development Application No. 0187/17 for alterations and additions to a local heritage item at 4 Powell Street, Killara, is refused.
3. The exhibits, other than exhibits 1, A and B, are returned.

Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling; exceedance of the height of buildings development standard; impact on the heritage significance of the local heritage item; whether an “amber light” approach is appropriate.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Cases Cited: Hardy v Ku-ring-gai Council [2018] NSWLEC 1245
Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19
Ali v Liverpool City Council [2009] NSWLEC 1327
Category: Principal judgment
Parties: John Hardy (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel:
Mr R. O’Gorman-Hughes barrister (Respondent)
Solicitors:
Mr G. Green, Pikes & Verekers Lawyers
Shaw Reynolds Lawyers (Respondent)

File Number(s): 2017/324388
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 0187/17 for alterations and additions to an existing dwelling, demolition of the existing garage and swimming pool and a new swimming pool and landscaping (the proposal) at 4 Powell Street, Killara (the site), by Ku-ring-gai Council (the Council).
The appeal was subject to mandatory conciliation on 14 May 2018, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.
The parties consented to the admission of evidence given on-site during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.
The hearing was reopened and the applicant adduced further evidence in the form of an amended written request to vary the height of buildings development standard (exhibit N) (Hardy v Ku-ring-gai Council [2018] NSWLEC 1245).

Issues

The Council’s contention is that the proposal will have an unacceptable impact on the heritage significance of the existing dwelling listed as a local heritage item.

The site and its context

The site is located on the north-western side of Powell Street, close to the Pacific Highway intersection. The site has an area of 1,784m2. The site falls towards the rear.
The site contains an existing dwelling constructed in the Federation Arts and Crafts architectural style in 1905. Additions and alterations have been made to the original dwelling at the rear.

The proposal

The proposal (exhibit B) includes the following works:

Demolish the existing garage, rear shed and swimming pool;

New swimming pool and landscaping, new front fence;

Construct a three storey extension to…

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: [2018] NSWLEC 1246
Decision Date: 24 May 2018

CaseChat Overview and Summary

The case of Hardy v Ku-ring-gai Council (No. 2) involved a dispute between the appellant, Mr Hardy, and the respondent, Ku-ring-gai Council, regarding a development application for alterations and additions to a local heritage item at 4 Powell Street, Killara. Mr Hardy sought approval for modifications to the heritage-listed property, which the Council refused. This refusal led Mr Hardy to appeal to the Land and Environment Court of New South Wales, which was subsequently dismissed.

The primary legal issue before the court was whether the Council's decision to refuse the development application was lawful and justified under the relevant planning and heritage legislation. The court needed to determine whether the proposed alterations and additions to the heritage item were consistent with the Council's policies and planning instruments, and whether they would unduly alter the character of the heritage item. Additionally, the court had to consider whether Mr Hardy had demonstrated a sufficient public benefit to outweigh the potential adverse impacts on the heritage value of the property.

The court thoroughly examined the evidence and submissions from both parties, assessing the impact of the proposed alterations on the heritage item's significance. It found that the proposed modifications would significantly alter the character of the heritage item and were not in accordance with the relevant planning policies and heritage guidelines. The court concluded that the Council's decision to refuse the development application was reasonable and lawful, given the substantial adverse impact on the heritage value of the property. Therefore, the appeal was dismissed, and the development application was refused. The court also ordered that all exhibits, except for exhibits 1, A, and B, be returned.

Orders

Orders of the court

1. The appeal is dismissed.

2. Development Application No. 0187/17 for alterations and additions to a local heritage item at 4 Powell Street, Killara, is refused.

3. The exhibits, other than exhibits 1, A and B, are returned.

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:	Hardy v Ku-ring-gai Council (No. 2) [2018] NSWLEC 1246
Hearing dates:	14-15 May 2018
Date of orders:	24 May 2018
Decision date:	24 May 2018
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is dismissed. 2. Development Application No. 0187/17 for alterations and additions to a local heritage item at 4 Powell Street, Killara, is refused. 3. The exhibits, other than exhibits 1, A and B, are returned.
Catchwords:	DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling; exceedance of the height of buildings development standard; impact on the heritage significance of the local heritage item; whether an “amber light” approach is appropriate.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Hardy v Ku-ring-gai Council [2018] NSWLEC 1245 Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19 Ali v Liverpool City Council [2009] NSWLEC 1327
Category:	Principal judgment
Parties:	John Hardy (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr R. O’Gorman-Hughes barrister (Respondent) Solicitors: Mr G. Green, Pikes & Verekers Lawyers Shaw Reynolds Lawyers (Respondent)
File Number(s):	2017/324388
Publication restriction:	No