Panoyan v Ku-ring-gai Council - [2025] NSWLEC 1783

Land and Environment Court

New South Wales

Case Name:	Panoyan v Ku-ring-gai Council
Medium Neutral Citation:	[2025] NSWLEC 1783
Hearing Date(s):	Conciliation conference on 28-30 October 2025
Date of Orders:	4 November 2025
Decision Date:	4 November 2025
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: In respect of proceedings 2025/129582: (1) The appeal is upheld. (2) The Applicants are directed to do the following identified in Annexure A within 7 days of the Court’s Orders: (a) The broken tile at the front stairs is to be repaired. (b) The bedroom front glass sliding door (SD2) is to be blocked to prevent access to the unprotected front balcony. (c) The rear glass door (D4) at the gallery is to be blocked or a barrier installed to prevent access to the unprotected drop on the ground level at the rear yard. (d) A balustrade/barrier is to be installed to prevent access to the unprotected drop on the ground level at the rear yard from the side passageway, either at location 1 or 2 marked on the plan. (3) Within 7 days from the date the Respondent receives notice that the matters identified in Order 2 have been completed: (a) The Respondent is to carry out an inspection of those works, or alternatively if the Respondent considers that a site inspection is not required in the circumstances, it may be satisfied by photographic evidence or certification provided by the Applicants. (b) If the Respondent is not satisfied in relation to those works, the Respondent is to provide reasons that are sufficiently detailed to inform the Applicants of what needs to be done to enable the Respondent to be satisfied. (c) If the Respondent is satisfied in relation to those works, then pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Respondent is directed to issue a building information certificate in respect of Building Information Certificate Application number eBCU0129/24, for the dwelling fronting Griffith Avenue, Lot 10 in Deposited Plan 14083, identified in the plans at Annexure B. In respect of proceedings 2025/129611: (1) The appeal is upheld. (2) Development consent is granted to Development Application No eDA0485/24 (PAN-484928), for the change of use of existing buildings for the purposes of a dual occupancy (detached) development, including alterations and additions at 12 Barana Parade, Roseville Chase (Lot 10 in Deposited Plan 14083), subject to the conditions of consent in Annexure C.
Catchwords:	APPEAL – building information certificate – dwelling house development in R2 Low Density Residential zone – development control order – conciliation conference – agreement between parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 8.7, 8.25 Land and Environment Court Act 1979 (NSW), ss 34AA, 34 Environmental Planning and Assessment Regulation 2021, s 38 Ku-ring-gai Local Environmental Plan 2015, cl 4.3(2) State Environmental Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Housing) 2021, s 166 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental…

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: [2025] NSWLEC 1783
Decision Date: 4 November 2025

CaseChat Overview and Summary

Panoyan v Ku-ring-gai Council involved two separate appeals brought by the Applicants, Panoyan, against the Ku-ring-gai Council, a local government authority in New South Wales. The first appeal, identified as proceedings 2025/129582, pertained to a building compliance issue concerning safety hazards at the Applicants' residence. The second appeal, proceedings 2025/129611, related to the granting of development consent for a change of use for existing buildings on the property to facilitate a dual occupancy (detached) development.

The legal issues before the court included whether the safety hazards identified by the Council warranted the specified corrective actions under the Environmental Planning and Assessment Act 1979 (NSW), and whether the proposed change of use for the property met the necessary criteria for development consent under the same Act. The Applicants contested the Council's decisions, arguing that the safety concerns were either exaggerated or not as serious as claimed, and that the proposed development was consistent with the local planning scheme.

The court found in favour of the Applicants on both appeals. Regarding the first appeal, the court upheld the appeal and directed the Applicants to undertake specific remedial works to address the identified safety hazards within a specified timeframe. The Council was then required to inspect the works and, if satisfied, to issue a building information certificate. In the second appeal, the court also upheld the appeal and granted development consent for the proposed change of use, subject to specific conditions outlined in Annexure C.

The court's decision in proceedings 2025/129582 emphasised the importance of safety standards in residential properties and the Council's role in enforcing compliance. In proceedings 2025/129611, the court considered the compatibility of the proposed development with the local planning scheme, ultimately determining that the development consent should be granted with certain conditions to ensure compliance with planning objectives and community interests.

Orders

Orders of the court

The Court orders that:

In respect of proceedings 2025/129582:

(1) The appeal is upheld.

(2) The Applicants are directed to do the following identified in Annexure A within 7 days of the Court’s Orders:

(a) The broken tile at the front stairs is to be repaired.

(b) The bedroom front glass sliding door (SD2) is to be blocked to prevent access to the unprotected front balcony.

(c) The rear glass door (D4) at the gallery is to be blocked or a barrier installed to prevent access to the unprotected drop on the ground level at the rear yard.

(d) A balustrade/barrier is to be installed to prevent access to the unprotected drop on the ground level at the rear yard from the side passageway, either at location 1 or 2 marked on the plan.

(3) Within 7 days from the date the Respondent receives notice that the matters identified in Order 2 have been completed:

(a) The Respondent is to carry out an inspection of those works, or alternatively if the Respondent considers that a site inspection is not required in the circumstances, it may be satisfied by photographic evidence or certification provided by the Applicants.

(b) If the Respondent is not satisfied in relation to those works, the Respondent is to provide reasons that are sufficiently detailed to inform the Applicants of what needs to be done to enable the Respondent to be satisfied.

(c) If the Respondent is satisfied in relation to those works, then pursuant to s 8.25(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Respondent is directed to issue a building information certificate in respect of Building Information Certificate Application number eBCU0129/24, for the dwelling fronting Griffith Avenue, Lot 10 in Deposited Plan 14083, identified in the plans at Annexure B.

In respect of proceedings 2025/129611:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application No eDA0485/24 (PAN-484928), for the change of use of existing buildings for the purposes of a dual occupancy (detached) development, including alterations and additions at 12 Barana Parade, Roseville Chase (Lot 10 in Deposited Plan 14083), subject to the conditions of consent in Annexure C.

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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