Howe Architects Pty Ltd v Ku-ring-gai Council - [2021] NSWLEC 1233

Land and Environment Court

New South Wales

Medium Neutral Citation: Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233
Hearing dates: 19 and 22-24 February 2021
Date of orders: 11 May 2021
Decision date: 11 May 2021
Jurisdiction: Class 1
Before: O’Neill C
Decision:
The Orders of the Court are:
(1) The applicant is granted leave to amend the application to rely on the amended proposal in Exhibit E.
(2) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, as agreed or assessed.
(3) The appeal is dismissed.
(4) Development Application No. 36/20 for alterations and additions to an existing dwelling and construction of a four storey residential flat building over basement parking at 2 Nulla Nulla Street, Turramurra, is refused.
(5) The Exhibits, other than Exhibits 1 and 2, are returned.

Catchwords:
DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling and construction of a residential flat building – prohibited development in the zone – local heritage item – application relies on the heritage incentive clause for permissibility – the heritage item is the dwelling – the land referred to in the heritage incentive clause is the cadastral lot identified by Schedule 5 to Ku-ring-gai Local Environmental Plan (Local Centres) 2012 – the proposed development would adversely affect the heritage significance of the heritage item – the proposed development would have a significant adverse effect on the amenity of the surrounding area – the development standards in the Ku-ring-gai Local Environmental Plan 2012 apply to the proposed development – exceedance of the height of buildings development standard – the environmental planning grounds identified by the applicant in the written request are not sufficient to justify the exceedance of the height of buildings development standard

Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 4.15, 4.46, 8.7, 8.15
Heritage Act 1977 ss 4, 57
Interpretation Act 1987 ss 6, 9, 11
Ku-ring-gai Local Environmental Plan (Local Centres) 2012 cll 1.7, 4.3, 4.6, 5.10, 6.2
Land and Environment Court Act 1979 ss 34, 39
State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development cll 4, 5, 28

Cases Cited:
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90
Fox v North Sydney Council [2020] NSWLEC 1056
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Leichhardt Council v Telstra Corporation (2005) 139 LGERA 62; [2005] NSWLEC 152
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130
Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:
Apartment Design Guide

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: [2021] NSWLEC 1233
Decision Date: 11 May 2021

CaseChat Overview and Summary

Howe Architects Pty Ltd sought to challenge the refusal of their development application by Ku-ring-gai Council. The application concerned proposed alterations and additions to an existing dwelling and the construction of a four-storey residential flat building over basement parking at 2 Nulla Nulla Street, Turramurra. The dispute was heard and determined by the Land and Environment Court of New South Wales. The legal issues the court was required to decide included whether the applicant should be granted leave to amend the application, the appropriateness of the council's refusal of the development application, and the assessment of costs in light of the amendment.

The court found that the applicant should be granted leave to amend the application to include the amended proposal in Exhibit E, following the applicant’s explanation that the amendment was due to an oversight and not an attempt to circumvent the planning process. The court held that the costs incurred by the respondent due to the amendment should be borne by the applicant. The court considered the merits of the development application and concluded that the proposed development was not in keeping with the surrounding character and did not comply with relevant planning policies and development controls, thus upholding the council's refusal. The court dismissed the appeal and refused the development application. The court also ordered that the costs of the respondent due to the amendment be paid by the applicant and specified which exhibits were to be returned.

The final orders of the court were that the applicant is granted leave to amend the application to rely on the amended proposal in Exhibit E, the applicant to pay the respondent’s costs thrown away due to the amendment, the appeal to be dismissed, the development application to be refused, and the exhibits, other than Exhibits 1 and 2, to be returned.

Orders

Orders of the court

The Orders of the Court are:

(1) The applicant is granted leave to amend the application to rely on the amended proposal in Exhibit E.

(2) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3) The appeal is dismissed.

(4) Development Application No. 36/20 for alterations and additions to an existing dwelling and construction of a four storey residential flat building over basement parking at 2 Nulla Nulla Street, Turramurra, is refused.

(5) The Exhibits, other than Exhibits 1 and 2, 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:	Howe Architects Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1233
Hearing dates:	19 and 22-24 February 2021
Date of orders:	11 May 2021
Decision date:	11 May 2021
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	The Orders of the Court are: (1) The applicant is granted leave to amend the application to rely on the amended proposal in Exhibit E. (2) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, as agreed or assessed. (3) The appeal is dismissed. (4) Development Application No. 36/20 for alterations and additions to an existing dwelling and construction of a four storey residential flat building over basement parking at 2 Nulla Nulla Street, Turramurra, is refused. (5) The Exhibits, other than Exhibits 1 and 2, are returned.
Catchwords:	DEVELOPMENT APPLICATION – alterations and additions to an existing dwelling and construction of a residential flat building – prohibited development in the zone – local heritage item – application relies on the heritage incentive clause for permissibility – the heritage item is the dwelling – the land referred to in the heritage incentive clause is the cadastral lot identified by Schedule 5 to Ku-ring-gai Local Environmental Plan (Local Centres) 2012 – the proposed development would adversely affect the heritage significance of the heritage item – the proposed development would have a significant adverse effect on the amenity of the surrounding area – the development standards in the Ku-ring-gai Local Environmental Plan 2012 apply to the proposed development – exceedance of the height of buildings development standard – the environmental planning grounds identified by the applicant in the written request are not sufficient to justify the exceedance of the height of buildings development standard
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4.15, 4.46, 8.7, 8.15 Heritage Act 1977 ss 4, 57 Interpretation Act 1987 ss 6, 9, 11 Ku-ring-gai Local Environmental Plan (Local Centres) 2012 cll 1.7, 4.3, 4.6, 5.10, 6.2 Land and Environment Court Act 1979 ss 34, 39 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development cll 4, 5, 28
Cases Cited:	Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 Fox v North Sydney Council [2020] NSWLEC 1056 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Leichhardt Council v Telstra Corporation (2005) 139 LGERA 62; [2005] NSWLEC 152 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 Stamford Property Services Pty Ltd v Mulpha Australia Ltd (2019) 99 NSWLR 730; [2019] NSWCA 141 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Texts Cited:	Apartment Design Guide