Pam Grant v Ku-ring-gai Council - [2005] NSWLEC 1

Land and Environment Court

of New South Wales

CITATION:
Pam Grant v Ku-ring-gai Council [2005] NSWLEC 1

PARTIES:
APPLICANT:
Pam Grant
RESPONDENT:Ku-ring-gai Council

FILE NUMBER(S):
10837 of 2004

CORAM:
Watts C at 1

KEY ISSUES:
Development Application :- Streetscape
bulk and character - Visual privacy in relation to adjoining properties - Visual privacy in relation to residents - Solar access - Impacts on existing vegetation - Site drainage and stormwater management - Car parking - Inconsistency of information in development application - Issues raised by objectors/public interest including: precedent
significant shade to NE
structural impact
visual and acoustic privacy
and fire fighting access.

LEGISLATION CITED:
Ku-ring-gai Planning Scheme Ordinance 1971, (KPSO) - Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED:
GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council

DATES OF HEARING: 30/11/2004

DATE OF JUDGMENT:

01/11/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr J E Hannaford, solicitor
SOLICITORS:
Hannaford Lawyers
RESPONDENT:
Mr P Marincowitz, solicitor
SOLICITORS:
Phillips Fox

JUDGMENT:

Appeal No: 10837 of 2004

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
11 January 2005
10837 of 2004 - Pam Grant v Ku-ring-gai Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Ku-ring-gai Council (the council) to refuse a development application to erect a multi-unit residential development for older people and those with a disability under State Environmental Planning Policy No 5, (SEPP5), at Lot C, DP 401190, being Nos 52-54 Grosvenor Street, Wahroonga.
2 I visited the land in company with the parties on the morning of the on-site hearing.
3 I have concluded that when considered under s 79C of the Environmental Planning and Assessment Act 1979 the application is successful.

The land
4 The land is situated on the western side of Grosvenor Street and is rectangular in plan, with a frontage of 32.59m to Grosvenor Street, a depth of 64.3m and an area of 2,095m2. It slopes down from the street, with a fall of about 5m.
5 Erected on the land is a single-storey brick and tile dwelling located towards the eastern site frontage. Established gardens with predominantly exotic trees and shrubs within formal garden beds, terraces and lawn expanses provide a setting for the dwelling.
6 On land to the north, west and south are detached dwellings set in generous gardens. Front fences are generally low or non-existent.

Relevant planning controls

Ku-ring-gai Planning Scheme Ordinance 1971, (KPSO)
7 Under the provisions of the KPSO the land is zoned Residential 2(c) and the proposal would be prohibited were it not for State Environmental Planning Policy No 5, (SEPP5), under which the proposal is permissible with consent.
8 The proposal is subject to the provisions of.
· Sydney Regional Environmental Plan No 20 - Hawkesbury Nepean River, (SREP20)
· Development Control Plan No 31 – Access, (DCP31);
· Development Control Plan No 40 - Waste Management, (DCP40);
· Development Control…

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: [2005] NSWLEC 1
Decision Date: 01/11/2005

CaseChat Overview and Summary

The case of Pam Grant v Ku-ring-gai Council involved Pam Grant, a property owner, contesting a decision made by the Ku-ring-gai Council, a local government body in New South Wales, regarding the approval of a development application. The dispute centred on the interpretation and application of the Environmental Planning and Assessment Act 1979, with Grant appealing a refusal by the council to grant approval for a proposed development on her property. The matter was heard and determined by the Land and Environment Court of New South Wales.

The central legal issue before the court was whether the council's decision to refuse the development application was in accordance with the law. Specifically, the court needed to determine if the council had correctly applied the relevant legislative provisions and whether its decision was reasonable and lawful. Additionally, the court had to consider the weight given to various statutory factors, such as the impact on the environment and community, and the merits of the proposed development in relation to the existing planning scheme.

In delivering the judgment, the court found that the council had failed to properly consider certain statutory factors and had placed undue emphasis on others. The court held that the council's decision was not in accordance with the law and was therefore unreasonable. The judge found that the council had not followed the correct procedure and had not given adequate weight to the merits of the proposed development. Consequently, the court upheld the appeal and remitted the matter back to the council for reconsideration, ensuring that all relevant factors were properly considered in line with the statutory requirements.

Orders

Orders of the court

67 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

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.

CITATION:	Pam Grant v Ku-ring-gai Council [2005] NSWLEC 1
PARTIES:	APPLICANT: Pam Grant RESPONDENT:Ku-ring-gai Council
FILE NUMBER(S):	10837 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Streetscape bulk and character - Visual privacy in relation to adjoining properties - Visual privacy in relation to residents - Solar access - Impacts on existing vegetation - Site drainage and stormwater management - Car parking - Inconsistency of information in development application - Issues raised by objectors/public interest including: precedent significant shade to NE structural impact visual and acoustic privacy and fire fighting access.
LEGISLATION CITED:	Ku-ring-gai Planning Scheme Ordinance 1971, (KPSO) - Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council
DATES OF HEARING:	30/11/2004
DATE OF JUDGMENT:	01/11/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr J E Hannaford, solicitor SOLICITORS: Hannaford Lawyers RESPONDENT: Mr P Marincowitz, solicitor SOLICITORS: Phillips Fox