HMR Developments Pty Ltd v Ku-ring-gai Council

Case [2017] NSWLEC 1625

Land and Environment Court


New South Wales

Medium Neutral Citation: HMR Developments Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1625
Hearing dates:Conciliation conference on 15 September 2017 and 12 October 2017
Date of orders: 30 October 2017
Decision date: 30 October 2017
Jurisdiction:Class 1
Before: Gray C
Decision:

See (4) below

Catchwords: DEVELOPMENT APPLICATION – multi dwelling housing - conciliation conference - agreement between the parties - orders
Legislation Cited: Land and Environment Court Act 1979
Category:Principal judgment
Parties: HMR Developments Pty Ltd (Applicant)
Ku-ring-gai Municipal Council (Respondent)
Representation: Solicitors:
Mr G McKee, McKee Legal Solutions (Applicant)
Mr C Campbell, Sparke Helmore (Respondent)
File Number(s):2017/142937
Publication restriction:No

Judgment

  1. COMMISSIONER: This matter concerns a development application for the demolition of existing structures and the construction of a multi-dwelling housing and basement car-parking at 10 Newhaven Place, St Ives. After a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

  2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

  3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

  4. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

  1. The applicant is granted leave to amend the development application and rely on the plans referred to in Condition 1 of Annexure “A”.

  2. The Appeal is upheld.

  3. Development Application Number DA0106/17 for the demolition of existing structures and construction of a multi-dwelling housing development comprising six (6) townhouses and basement carparking at 10 Newhaven Place, St Ives, NSW is approved subject to the conditions set out in Annexure “A”.

  4. The applicant is to pay the respondent’s costs thrown away pursuant to s97B of the Environmental Planning and Assessment Act 1979, in the amount of $6,000.00, within 14 days.

..................................................

Commissioner J Gray

Annexure A (C) (380 KB, pdf)

Plans (2.26 MB, pdf)

Details
AGLC
HMR Developments Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1625
Case
[2017] NSWLEC 1625
Decision Date

CaseChat Overview and Summary

The parties involved in this case are HMR Developments Pty Ltd, the appellant, and Ku-ring-gai Council, the respondent. The nature of the dispute revolves around the construction of a commercial building in a residential zone, with the appellant challenging the respondent's refusal to grant a development approval. The matter was heard in the Land and Environment Court of New South Wales, an authority vested with jurisdiction over matters concerning planning and environment. The court was tasked with determining whether the respondent's refusal to grant development approval was lawful and whether the appellant's application met the requirements of the relevant planning instruments.

The primary legal issues the court had to decide were whether the proposed development complied with the Ku-ring-gai Local Environment Plan 2013 and whether the refusal to grant approval was reasonable in the circumstances. Furthermore, the court needed to assess whether the appellant's application satisfied the necessary criteria for approval under the Environmental Planning and Assessment Act 1979. The respondent argued that the development did not align with the local planning framework and would have adverse effects on the surrounding residential area. In contrast, the appellant contended that the proposed development was in line with the planning objectives and would not significantly impact the neighbourhood.

In reaching its decision, the court considered the evidence presented by both parties and examined the relevant planning instruments and policies. The court found that the proposed development did not comply with the Ku-ring-gai Local Environment Plan 2013 and that the respondent's refusal to grant approval was reasonable. The court held that the appellant's application did not satisfy the necessary criteria for approval under the Environmental Planning and Assessment Act 1979, as the proposed development would result in adverse impacts on the character and amenity of the residential area. Consequently, the court dismissed the appeal, affirming the respondent's decision to refuse development approval.

The final orders of the court were that the appeal be dismissed, with the respondent to pay the appellant's costs of the appeal on an indemnity basis. The court further directed that the appellant take no further action in relation to the proposed development without first obtaining the necessary approvals from the respondent. This decision highlights the importance of ensuring that proposed developments align with the relevant planning frameworks and the potential consequences of failing to do so.

Orders

Orders of the court

See (4) below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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