Li v Ku-ring-gai Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Li v Ku-ring-gai Council [2023] NSWLEC 1248

Hearing dates:

23-24 February 2023: final submissions on 23 March 2023

Date of orders:

23 May 2023

Decision date:

23 May 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA0180/22 seeking consent for the demolition of an existing dwelling and construction of a new two-storey dwelling house, cabana, swimming pool and associated works at 12 Stuart Street, Wahroonga is determined by the grant of consent, subject to conditions of consent at Annexure A.

(3) All Exhibits are returned except for Exhibits A, B and C.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development in R2 Low Density Residential zone – Wahroonga heritage conservation area – whether a contributory item

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Land and Environment Court Act 1979, s 34AA

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 5.10, 6.1, 6.2, 6.3

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chapter 2

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

Environmental Planning and Assessment Regulation 2021, s 37

Cases Cited:

Jennifer Knox v Ku-ring-gai Council [2022] NSWLEC 1722

Texts Cited:

A Pictorial guide to Identifying Australian Architecture: Styles and Terms from 1788 to the Present’, by Richard Apperly, Robert Irving and Peter Reynolds

Ku-ring-gai Development Control Plan 2015

P Davies, ‘Ku-ring-gai potential heritage conservation areas north review’, 2010

Category:

Principal judgment

Parties:

Jing Li (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/275813

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 following the deemed refusal by Ku-ring-gai Council (the Respondent) of development application DA0180/22 seeking consent for the demolition of an existing dwelling and construction of a new two-storey dwelling house, cabana, swimming pool and associated works at 12 Stuart Street, Wahroonga.

2. The appeal was listed for mandatory conciliation on 23 February 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. The proceedings commenced on site at which the Court, in the company of the legal representatives and experts, heard an oral submission from the neighbour, at 10 Stuart Street. The Court was then taken to viewing points on Illoura Avenue from Wahroonga Park, Stuart Lane to the rear of the property, Illoura Lane to the east of the site and across Stuart Street from the public footpath opposite.

4. The conciliation conference then reconvened at Court where without prejudice discussions were held which had the effect of resolving a number of issues by virtue of amendments that were foreshadowed in writing by the Applicant. While parties agree the amendments resolved certain of the contentions, parties were unable to resolve all the issues in dispute.