Mirvac Projects Pty Ltd v Ku-ring-gai Council - [2007] NSWLEC 540

Land and Environment Court

of New South Wales

CITATION: Mirvac Projects Pty Ltd v Ku- Ring-Gai Council and Michael William Inglis [2007] NSWLEC 540

PARTIES:
APPLICANT
Mirvac Projects Pty Ltd
FIRST RESPONDENT
Ku-Ring-Gai Council
SECOND RESPONDENT
Michael William Inglis

FILE NUMBER(S): 10023 of 2007

CORAM: Talbot J - Hoffman C

KEY ISSUES:
Appeal - Development Consent :- Modification of development consent - where development standard not satisfied.
Development consent:- consent identified modification where breach of development standard will occur.
Modification of development consent:- development standard that enures not dispersed with

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96, s 96A
Environmental Planning and Assessment Regulations s55
Land and Environment Court Act 1979 s 25A, Part 4 Division 3, s68(1), 79B (3) to (7)
Land and Environment Court Rules Part 13 r 16(b)(1)

CASES CITED: Austcorp No. 459 Pty Ltd v Baulkham Hills Shire Council (2002) 122 LGERA 205;
Benalup Holdings Pty Ltd v Lismore City Council (1993) 1 LGERA 257;
Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408;
Kendall Street Developments v Byron Shire Council (No. 2) (2004) 138 LGERA 36;
Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2007) 150 LGERA 333;
North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 ;
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355;
Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422;
Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299

DATES OF HEARING: 01/05/07, 03/05//07, 04/05/07, 12/06/07, 21/06/07,12/07/07

DATE OF JUDGMENT:
29 August 2007

LEGAL REPRESENTATIVES: APPLICANT
Mr T Robertson SC
SOLICITORS
Lindsay Taylor Lawyers
FIRST RESPONDENT
Mr P Marincowitz (Solicitor)
SOLICITORS
DLA Phillips Fox
SECOND RESPONDENT
Mr Garnsey QC
Mr Perram SC
Mr Norton (Barrister)
SOLICITORS
Woolf Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J and Hoffman C

29 August 2007

10023 of 2007 Mirvac Projects Pty Ltd v Ku-Ring-Gai Council and Michael William Ingliss
JUDGMENT

1 Talbot J: On 24 November 2006 the applicant pursuant to s 96 Environmental Planning and Assessment Act 1979 (EPA Act) caused an Application to Modify a Development Consent to be lodged with the first respondent Ku-ring-gai Council. The application to modify the development consent is supported by a letter dated 22 November 2006 and amended architectural plans dated August 2006. The original development consent (DA1388/04) was granted by resolution of the council on 14 June 2005. The Notice of Determination of Development Application addressed to the applicant is dated 22 June 2005. Consent was granted to a proposed development comprising demolition of existing structures and properties known as 10/16 Marian Street, Killara and construction of five residential flat buildings containing 60 units with basement parking, landscaping and strata subdivision.

2 The Notice of Determination of Development Application dated 22 June 2005 notified one hundred and thirty five conditions. Immediately preceding conditions 131 to 135 under the heading “Building Conditions”, the Notice of Determination incorporates the following…

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: [2007] NSWLEC 540
Decision Date: 29 August 2007

CaseChat Overview and Summary

This case involved an appeal by Mirvac Projects Pty Ltd (the applicant) against the decision of Ku-ring-gai Council (the first respondent) to refuse an application to modify a development consent. The applicant sought modifications to the consent to accommodate changes to the proposed development, including the relocation of a driveway entry, minor changes to the basement layout, and redesign of the landscape plan. The second respondent, Michael William Inglis, a neighbouring property owner, opposed the modifications. The primary issues were whether the modified proposal complied with the requirements for deep soil landscaping, whether the non-compliance would benefit the overall development, and whether the non-compliance would be contrary to the aims, objectives, and considerations in the Ku-ring-gai Planning Scheme Ordinance (KPSO). The court found that while the applicant was entitled to rely on the Notice of Determination as a proper reflection of the council’s intention, the modified proposal did not comply with the deep soil landscaping requirements. The court also found that the modification could not be approved if it inevitably led to a breach of the KPSO. However, the court concluded that the development in its modified form was acceptable, subject to certain conditions, to achieve the objectives of the KPSO. The court directed the parties to confer and agree on a form of orders reflecting its decision.

Orders