Woods v Ku-ring-gai Council - [2019] NSWLEC 1122

Land and Environment Court

New South Wales

Medium Neutral Citation: Woods v Ku-ring-gai Council [2019] NSWLEC 1122
Hearing dates: 11-12 and 26 March 2019
Date of orders: 28 March 2019
Decision date: 28 March 2019
Jurisdiction: Class 1
Before: O’Neill C
Decision:
(1)   The appeal is upheld.
(2)   Development Application No. 0573/17 for the demolition of the existing dwelling and the construction of a new dwelling, swimming pool and tennis court is approved, subject to the conditions of consent at Annexure A.
(3)   The exhibits, other than Exhibits 1, A and B, are returned.

Catchwords: DEVELOPMENT APPLICATION: demolition of existing dwelling and construction of a new dwelling, swimming pool and tennis court – whether the demolition of the existing dwelling will adversely impact upon the heritage significance of the heritage conservation area – whether the new dwelling will adversely impact upon the heritage significance of the heritage conservation area
Legislation Cited: Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Ku-ring-gai Local Environmental Plan 2015
Land and Environment Court Act 1979
Cases Cited: Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254
Texts Cited: Ku-ring-gai Development Control Plan
Category: Principal judgment
Parties: David Woods (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel:
I Hemmings SC (Applicant)
R White (Respondent)
Solicitors:
McKees Legal Solutions (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s): 2018/196764
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0573/17 for the demolition of the existing dwelling and the construction of a new dwelling, swimming pool and tennis court (the proposal) at 27 Braeside Street, Wahroonga (the site) by Ku-ring-gai Council (the Council).
The appeal was subject to conciliation on 11 March 2019, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.
Leave was granted by the Court on 28 February 2019 for the applicant to amend the application by relying on amended architectural drawings and landscape drawings that incorporated changes to the proposal agreed upon by the planning experts. The amended proposal was renotified by the Council and the closing date for the receipt of submissions was after the listed hearing dates of 11-12 March 2019, so the part-heard matter was adjourned until after the closing of the notification period so that any further submissions could be considered. One submission was received by Council from an adjoining neighbour in support of the amended proposal.

Issues

The Council’s contentions can be summarised as:

The demolition of the existing dwelling will have a detrimental impact on the heritage significance of the Wahroonga Conservation Area (Wahroonga CA) because the existing dwelling is contributory to the heritage significance of the Wahroonga CA.

The proposed new dwelling will have a detrimental impact on the heritage significance…

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: [2019] NSWLEC 1122
Decision Date: 28 March 2019

CaseChat Overview and Summary

Woods sought leave to appeal against the refusal of the Ku-ring-gai Council to approve a development application to demolish an existing dwelling and to construct a new dwelling, swimming pool and tennis court. The applicant sought to overturn the decision of the Council on the basis that the decision was unreasonable and failed to have regard to relevant considerations. The appeal was heard by the Land and Environment Court of New South Wales.

The appeal hinged on the application of the provisions of the Local Environment Plan 2013. The court was required to determine whether the decision to refuse development consent was unreasonable and whether it failed to take into account relevant considerations. The applicant argued that the refusal was based on an incorrect application of the provisions of the Local Environment Plan 2013, and that the decision-maker failed to take into account relevant considerations, including the effect of the proposal on the neighbourhood and the character of the area. The Council argued that the decision was reasonable and that the decision-maker had correctly applied the provisions of the Local Environment Plan 2013.

The court held that the decision to refuse development consent was unreasonable and that the decision-maker failed to take into account relevant considerations. The court found that the decision-maker had not correctly applied the provisions of the Local Environment Plan 2013 and that the effect of the proposal on the neighbourhood and the character of the area had not been adequately considered. The court also found that the decision-maker had not provided adequate reasons for the decision. The court held that the appeal should be upheld and that the development application should be approved, subject to certain conditions. The court also held that the exhibits, other than Exhibits 1, A and B, should be returned to the parties.

Orders

Orders of the court

(1) The appeal is upheld.

(2) Development Application No. 0573/17 for the demolition of the existing dwelling and the construction of a new dwelling, swimming pool and tennis court is approved, subject to the conditions of consent at Annexure A.

(3) The exhibits, other than Exhibits 1, A and B, are returned.

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.

Medium Neutral Citation:	Woods v Ku-ring-gai Council [2019] NSWLEC 1122
Hearing dates:	11-12 and 26 March 2019
Date of orders:	28 March 2019
Decision date:	28 March 2019
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	(1) The appeal is upheld. (2) Development Application No. 0573/17 for the demolition of the existing dwelling and the construction of a new dwelling, swimming pool and tennis court is approved, subject to the conditions of consent at Annexure A. (3) The exhibits, other than Exhibits 1, A and B, are returned.
Catchwords:	DEVELOPMENT APPLICATION: demolition of existing dwelling and construction of a new dwelling, swimming pool and tennis court – whether the demolition of the existing dwelling will adversely impact upon the heritage significance of the heritage conservation area – whether the new dwelling will adversely impact upon the heritage significance of the heritage conservation area
Legislation Cited:	Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979
Cases Cited:	Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254
Texts Cited:	Ku-ring-gai Development Control Plan
Category:	Principal judgment
Parties:	David Woods (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: I Hemmings SC (Applicant) R White (Respondent) Solicitors: McKees Legal Solutions (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/196764
Publication restriction:	No