Xiang Rong Investments Pty Ltd v Ku-ring-gai Council No. 2

[2012] NSWLEC 1089

Land and Environment Court

New South Wales

Medium Neutral Citation:	Xiang Rong Investments Pty Ltd v Ku-ring-gai Council No. 2 [2012] NSWLEC 1089
Hearing dates:	28 March & 12 April 2012
Decision date:	12 April 2012
Jurisdiction:	Class 1
Before:	Morris C
Decision:	The parties are directed to file agreed conditions of consent by 1pm April 13, 2012. Final Orders will be made in Chambers.
Catchwords:	Strata Subdivision, compliance with approved plans and development consent.
Cases Cited:	Xiang Rong Investment Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1087
Category:	Principal judgment
Parties:	Xiang Rong Investments Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel Mr C McEwen SC with Mr S Nash (Applicant) Solicitors Maddocks Lawyers (Applicant) Mr C Drury Sparke Helmore (Respondent)
File Number(s):	10092 of 2012

Judgment

1. This appeal was part heard with two other matters, all of which related to a residential flat building nearing completion at Nos. 497-507 Pacific Highway, Killara. Judgment in relation to those two matters was delivered on 29 March 2012 in Xiang Rong Investment Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1087. The matter now before the Court relates to a development application for strata subdivision of that building. The Council refused the application and the applicant is appealing that decision.

1. The development application for strata subdivision of the residential flat building was refused by the council for the following reason:

The proposed subdivision plans differ from the approved architectural plans in terms of basement arrangement and layout including the addition of a mezzanine level and changes undertaken to landscape area and design on site. The impacts from the changes may result in a significant detrimental impact consequently they must be considered prior to any approval for strata subdivision, which reflects the changes. Consequently, Council is not in a position to support the application.

1. At the conclusion of the hearing, it was apparent that the strata plan prepared did not reflect either the development as built nor the development that would be finalised in accordance with the Orders of this Court in relation to the above mentioned cases. Those Orders provided for a further modification of the development consent that authorised construction on the residential flat building and also required the completion of certain works to allow the issue of a building certificate. Accordingly, the matter was adjourned to allow the applicant time to amend the plans.

1. The applicant has now prepared further plans which have been substituted as Exhibit G, and the council advises that the plans are consistent with the consent as modified and, on completion of the works required to allow the issue of a building certificate, will be satisfactory and that the very minor variations to cubic spaces are such that they do not warrant refusal of the application.

1. The parties are now seeking consent orders from the Court on the basis of the changes made to the plans.

1. In view of my earlier decision in regard to the modification application and building certificate determination, I am satisfied on the evidence provided, that the strata subdivision plan is now consistent with the development consent as modified and the approved plans. Despite the adjournment of the proceedings, he draft conditions of consent are not agreed and are to be reviewed by the council and finalised by 1pm tomorrow, April 13 2012. Provided those conditions are agreed, I am prepared to allow the application.

1. The parties are directed to file agreed conditions of consent by 1pm April 13, 2012. Final Orders will be made in Chambers.

Sue Morris

Commissioner or the Court

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