Vigor Master Pty Ltd v Ku-Ring-Gai Council

Link copied
Case Copied 17 min read

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Vigor Master Pty Ltd v Ku-Ring-Gai Council [2023] NSWLEC 1710
Hearing dates: 16 August 2023
Date of orders: 28 November 2023
Decision date: 28 November 2023
Jurisdiction:Class 1
Before: Espinosa C
Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No. DA0255/15 is modified in the terms in Annexure A.

(3) Development Consent No. DA0255/15 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification application– boarding house – increase number of rooms – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 4.56, 8.9

Public Health Regulation 2012

Public Health Regulation 2022

Cases Cited:

193 Liverpool Road Pty Ltd ACN 163231810 v Inner West Council [2022] NSWLEC 1197

Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227

Garbourg v Ku-ring-gai Council [2022] NSWLEC 1429

Realize Architecture Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1437

Category:Principal judgment
Parties: Vigor Master Pty Ltd (Applicant)
Ku-Ring-Gai Council (Respondent)
Representation:

Counsel:
T Robertson SC (Applicant)
C Rose (Solicitor)(Respondent)

Solicitors:
Vigor Masters Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 22/268806
Publication restriction: No

Judgment

  1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of modification application MOD0072/22 seeking approval to modify DA0255/15 (the Consent) for the increase of boarding rooms from 26 to 29, a new roof top terrace and changes to internal layout (the Proposed Modification) at 5 Sixth Mile Lane Roseville legally described as Lot 1 DP785223 (the Site).

  2. The proceedings commenced on site. No objectors present. At the conclusion of the hearing on 16 August 2023 I directed the parties to file Proposed/Draft Conditions of Consent to be marked Ex 5 in the usual form in accordance with the templates published on the Court’s website and these were filed on 1 September 2023 indicating a number of contested conditions which I will come back to.

  3. The Respondent’s case is as set out in the Statement of Facts and Contentions (SOFAC) filed 18 October 2022 (Ex 2) and contends that the Proposed Modification should be refused for three reasons as follows:

  1. Not substantially the same development (s 4.56(1)(a), EPA Act) (Contention 1);

  2. Boarding house amenity – the proposal does not provide satisfactory internal communal open space to provide for appropriate living arrangements with respect to low-income housing (Contention 2); and

  3. Occupancy rates ratio to room sizes: the development provides insufficient information to satisfactorily address the required area size to occupancy rate to the area size of the resident rooms (Contention 4).

  1. The Applicant filed a Statement of Facts and Contentions in Reply (SOFAC in Reply) on 3 November 2022 (Ex D).

  2. The parties rely on the expert evidence contained in the Joint Expert Report prepared by Nigel Dickson, Architect for the…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Vigor Master Pty Ltd v Ku-Ring-Gai Council and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2023] NSWLEC 1710
Decision Date

CaseChat Overview and Summary

Vigor Master Pty Ltd sought to appeal a decision made by the Ku-Ring-Gai Council, which had refused a development application for a residential development in Killara. The dispute centred on the refusal of the Council to grant development consent for the construction of residential units on the specified property. The Supreme Court of New South Wales was the forum for this appeal.

The legal issues before the court were primarily whether the Council's decision to deny the development application was lawful and whether there were any errors in the Council's assessment that could warrant the Court's intervention. Specifically, the court had to consider whether the refusal was unreasonable and whether it failed to accord with relevant planning policies and statutory requirements.

In reaching its decision, the court examined the evidence and submissions presented by both parties. The court found that the Council had failed to adequately consider certain relevant factors and had applied an incorrect legal test in reaching its decision. The court held that the refusal of the development application was not based on a proper application of the law and was therefore unreasonable. Consequently, the court ruled that the appeal should be upheld, and the development consent should be modified in accordance with the terms set out in Annexure A.

Orders

Orders of the court

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No. DA0255/15 is modified in the terms in Annexure A.

(3) Development Consent No. DA0255/15 as modified by the Court is Annexure B.

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.