Yu v Ku-Ring-Gai Council - [2004] NSWLEC 569

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: Yu v Ku-Ring-Gai Council [2004] NSWLEC 569

PARTIES:
APPLICANT:
De Hong Yu

RESPONDENT:
Ku-Ring-Gai Council

CASE NUMBER: 10541 of 2004

CATCH WORDS: Development Application

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Community Land Development 1989
Community Land Management Act 1989

CORAM: Bignold J

DATES OF HEARING: 07/09/2004

DECISION DATE: 14/10/2004

LEGAL REPRESENTATIVES

APPLICANT:
Mr D Baird, Solicitor
SOLICITORS
Maddocks

RESPONDENT:
Mr P Rigg, Solicitor
SOLICITORS
Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
BIGNOLD J
14 October 2004
10541 of 2004 DE HONG YU v KU-RING-GAI COUNCIL
JUDGMENT

HIS HONOUR

A. INTRODUCTION

The Council has raised a question of law in pending class 1 proceeding, being an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council’s determination refusing development consent to the Applicant’s development application for the construction of a single storey dwelling in a manner so as to constitute a detached dual-occupancy development on land known as No 29 Ada Avenue, Wahroonga, comprising lot 7 in Deposited Plan 285554 (the development site) being an existing “neighbourhood lot” within an existing “neighbourhood scheme” created pursuant to the Community Land Development Act 1989.
The reasons for the Council’s refusal of the development application as stated in its Notice of Determination dated 5 December 2003 were as follows:
1.The proposed development is inconsistent with Development Consent No 4878 of 1996 and obligations imposed pursuant to that consent.
2.The proposed development is inconsistent with the section 88B instruments, the Neighbourhood Plan, the Neighbourhood Management Statement and the Neighbourhood Development Contract entered into pursuant to Development Consent No 4878 of 1996.
3.For those reasons, granting consent to DA No 352/03 would constitute a breach of the Environmental Planning and Assessment Act 1979.
It is these reasons which found the essential elements of the question of law raised by the Council which is to the effect (and I have slightly reformulated the question in order to capture the true intent of the question and in order to avoid merely propounding a legal truism) whether development consent must be refused on account of the proposed development being inconsistent with (i) conditions of an existing development consent granted and implemented in respect of the development site (and other adjoining lots); (ii) the registered s 88B Instrument; and (iii) the registered Neighbourhood Scheme where the relevant inconsistency is of such a nature as would result in a direct contravention of the EP&A Act, if the proposed development were approved and carried out.
It is necessary to emphasise that the proper formulation of the question in the present case is not whether the grant of development consent would constitute a breach of the EP&A Act but whether the carrying out of the development (if approved) would produce that result.
B. THE RELEVANT FACTS
The parties tendered a Statement of Agreed Facts (Exhibit B) which establishes the following:
1. On 11…

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: [2004] NSWLEC 569
Decision Date: 14 October 2004

CaseChat Overview and Summary

This case involved a dispute between De Hong Yu and Ku-Ring-Gai Council regarding a development application for the construction of a single-storey dwelling on a property in Wahroonga. The central issue before the court was whether development consent must be refused due to the proposed development being inconsistent with the conditions of an existing development consent, a registered section 88B instrument, and the registered Neighbourhood Scheme. The court considered whether the grant of development consent would constitute a direct contravention of the Environmental Planning and Assessment Act 1979.

The court found that development consent need not be refused, as it was possible to grant development consent concurrently with or contingent upon an appropriate variation of the registered section 88B Instrument, which would avoid all suggested inconsistencies. The court held that the ongoing obligation imposed by the 1997 development consent was fulfilled by the registered section 88B Instrument, which would become spent upon the appropriate variation being effected. Furthermore, the court found that the registered Neighbourhood Scheme, specifically By-Law 13.1, would naturally follow the obligations imposed by the varied section 88B Instrument.

In conclusion, the court answered the question of law in the negative, stating that it is possible to grant development consent, concurrently with or contingently upon an appropriate variation of the section 88B Instrument, so as to avoid all suggested inconsistencies. The proceedings were stood over for directions for the completion of the hearing, and the question of costs was reserved.

Orders