Zaki v Ku-ring-gai Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zaki v Ku-ring-gai Council [2019] NSWLEC 1614

Hearing dates:

8 November 2019

Date of orders:

11 December 2019

Decision date:

11 December 2019

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:
(1) By consent, the appeal is upheld
(2) The Applicant’s application to modify development consent DA067/11 granted by the Court on 20 March 2013 in proceedings 2012/10054, is approved, subject to the conditions of consent annexed hereto at Annexure ‘A’.
(3) The exhibits are returned, except Exhibits A and 2.

Catchwords:

MODIFICATION APPLICATION – consent orders – childcare centre – potential traffic impacts – potential noise impacts – resident objectors – public interest.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Ku-ring-gai Local Environment Plan 2015

Cases Cited:

Crawford Education Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1388
Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315
Zaki v Ku-ring-gai Council [2013] NSWLEC 1011

Texts Cited:

Ku-ring-gai Development Control Plan 2015

 

NSW Department of Planning and Environment, Child Care Planning Guideline, (2017)

  Practice Note – Class 1 Development Appeals Standards Australia, Australian Standard AS2890.1, (2004)

Category:

Principal judgment

Parties:

Kerolos Zaki (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Swaab (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2019/274533

Publication restriction:

No

Judgment

1. COMMISSIONER: Kerolos Zaki (the Applicant) has appealed the deemed refusal by Ku-ring-gai Council (the Respondent), of his application to modify certain conditions of consent granted by the Court under proceedings 2012/10054, for a childcare centre (the centre), located at 5 Manning Road, Killara (the Subject Site).

2. The consent was granted by then Commissioner Tuor in Zaki v Ku-ring-gai Council [2013] NSWLEC 1011 (the original consent)

3. The modification application seeks to increase the maximum number of children able to attend the centre from 78 children to 96 children (the proposed development).

4. The appeal had been listed for a conciliation conference on 7 November 2018 under s34 of the Land and Environment Court Act 1979. However, the Court granted leave to the Parties for the matter to be determined in a consent orders hearing.

5. The appeal is made pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act). The Parties advised that the contentions between them had been resolved and they now come before the Court seeking orders by consent.

6. At the commencement of the hearing, oral submissions were taken on site from the following objectors, a number of whom provided further written and photographic submissions in support of their submissions relating to the Applicant’s proposed development:

1. Mr Malcolm McDonald, Principal of the Beaumont Road Public School in Killara, on behalf of 295 families within the school community, who, he said, were opposed to the application for the following reasons:

1. the Applicant’s proposed an increase in numbers of children attending the centre in Manning Road would lead to an increase in traffic in the vicinity of…