Huang v Ku-ring-gai Council

[2019] NSWLEC 1186

Land and Environment Court

New South Wales

Medium Neutral Citation:	Huang v Ku-ring-gai Council [2019] NSWLEC 1186
Hearing dates:	Conciliation conference on 26 March 2019
Date of orders:	26 April 2019
Decision date:	26 April 2019
Jurisdiction:	Class 1
Before:	Horton, C
Decision:	See [7] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference - agreement between the parties – modification of consent - orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environment Plan 2015
Category:	Principal judgment
Parties:	Kaixuan Huang (First Applicant ) Ying ying Wu (Second Applicant ) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: S Kondilios, Hall & Wilcox (Applicants) M Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/273867
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 0124/18 which seeks approval for alterations and additions at 21 Kylie Avenue, Killara including;

1. introduction of a garden room to the lower level at the western end of the dwelling;

2. introduction of a double garage within the front setback of the site with a terrace / roof garden above;

3. changes to the fenestrations of the dwelling and new main entry doors;

4. introduction of a new veranda and access stairs along the front elevation of the dwelling;

5. landscaping works;

6. changes to the existing driveway

2. The appeal was subject to mandatory conciliation on 26 March 2019, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). In this matter, at or after a conciliation conference, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties.

3. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The decision agreed by the parties is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. As presiding Commissioner, I am satisfied that the jurisdictional pre-requisite to the grant of consent was identified by the parties and has been met, inasmuch as I am satisfied that the proposed modifications to the subject property will not will have a detrimental impact on the character and significance of the Love Estate Thorne Grant Heritage Conservation Area as a result of works associated with a contributory property, pursuant to cl 5.10 of the Ku-ring-gai Local Environment Plan 2015.

5. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

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

7. The final orders to give effect to the parties’ agreement are;

1. Leave is granted for the Applicant to rely on the following amended plans and materials:

1. Architectural Plans 01 – 06 Rev 8 prepared by Paul Meyer Design Pty Ltd dated 10 April 2019; and

2. Landscape Plans L-01H and L-02H prepared by Site Design + Studios dated 11 April 2019.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA0124/18 for alterations and additions to the existing dwelling including construction of a detached double garage and associated works including landscaping, subject to the conditions set out in Annexure ‘A’.

……………………..

T Horton

Commissioner of the Court

Annexure A

Decision last updated: 26 April 2019