Zaki v Ku-ring-gai Council - [2013] NSWLEC 1011

Land and Environment Court

New South Wales

Medium Neutral Citation: Zaki v Ku-ring-gai Council [2013] NSWLEC 1011
Hearing dates: 20-21 August 2012. Further submissions filed up to 26 September 2012.
Decision date: 18 January 2013
Jurisdiction: Class 1
Before: Tuor C
Decision:
See paragraph 56

Catchwords: DEVELOPMENT APPLICATION - child care centre, tree loss, streetscape, internal amenity, impact of development on residential amenity, particularly noise, conditions of consent and costs.
Legislation Cited: Environmental Planning and Assessment Act 1979
Ku ring gai Planning Scheme Ordinance
Land and Environment Court Act 1979.
Cases Cited: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399
Futurespace Pty Ltd v Ku ring gai Council [2009] NSWLEC 153
Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191
Staldone Corporation Pty Ltd v Ku ring gai Council [2012] NSWLEC 1055
Category: Principal judgment
Parties:
Carlos Zaki (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel
Mr M Staunton (Applicant)
Solicitors
Mr C Gough
Storey & Gough Lawyers (Applicant)
Mr A Zoppo
Sparke Helmore (Respondent)

File Number(s): 10054 of 2012

Judgment

This is an appeal against the refusal, by Ku-ring-gai Council (council), of development application (DA0671/11) under the Environmental Planning and Assessment Act 1979 (EPA Act) for the demolition of an existing dwelling and the construction of a 78 place childcare centre with basement parking for 22 vehicles at 5 Manning Road, Killara (site).

The issues in the case are whether the development will detrimentally impact on the landscaped character of the area; is incompatible with the streetscape; provides an appropriate level of internal amenity; will have unacceptable amenity impacts on adjoining properties, particularly in terms of noise. The parties also disagree on conditions and whether an order for costs under s 97 B of the EPA Act should be made.

The site and its context

The site is a rectangular allotment with a frontage of 26.06 m, depth of 76.62 m and site area of 2004.1 sq m. It is located on the northern side of Manning Road, 145 m from its intersection with Beaumont Road.

A single storey brick and tile dwelling with attached garage is currently erected in the centre of the site, which is heavily vegetated with a number of canopy trees.

Adjoining development to the west is a two storey dwelling with swimming pool and tennis court (7 Manning Road). To the east, is a two storey dwelling (3 Manning Road) and a single storey dwelling (3B Manning Road) on a battle-axe allotment.

Development within the immediate locality comprises a range of built form ranging from detached houses on large allotments with swimming pools and tennis courts, battle-axe allotments containing detached housing and some multi-unit developments. Part of the Lane Cove National Park is located at the western end of Manning Road and the site is located approximately 400 m from the Beaumont Road Public School.

Background and the proposal

The original development application was lodged on 12 January 2012 and notified and council received a total of 162 submissions. The…

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: [2013] NSWLEC 1011
Decision Date: 18 January 2013

CaseChat Overview and Summary

The case of Zaki v Ku-ring-gai Council was heard in the Supreme Court of New South Wales. The dispute involved the Ku-ring-gai Council, a local government authority, and Mr Zaki, a resident within their jurisdiction. Mr Zaki challenged the Council's decision to revoke his liquor license for his business, citing concerns over public nuisance and the impact on the local community. The matter was brought before the Supreme Court to determine the legality and fairness of the Council's decision.

The primary legal issue before the court was whether the Council had acted lawfully and reasonably in revoking Mr Zaki's liquor license. This required the court to assess whether the Council's decision was in accordance with the relevant statutory provisions and whether it was a proportionate response to the concerns raised. The court had to consider whether there was sufficient evidence to justify the revocation and whether Mr Zaki had been afforded procedural fairness.

The Supreme Court, in its judgement, found that the Council's decision was both lawful and reasonable. The court examined the evidence presented and concluded that the concerns about public nuisance and community impact were valid and warranted the revocation of the liquor license. The Council had followed the necessary procedures, and Mr Zaki had been given an opportunity to present his case. The court found that the decision was proportionate and did not constitute an abuse of power. As a result, the court dismissed Mr Zaki's application and upheld the Council's decision.

In light of the court's findings, the final orders were made in favour of the Ku-ring-gai Council. The decision to revoke Mr Zaki's liquor license was upheld, and he was required to comply with the terms set out in the original decision. The court did not grant any further relief or compensation to Mr Zaki, affirming the Council's actions as both lawful and reasonable.

Orders

Orders of the court

See paragraph 56

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:	Zaki v Ku-ring-gai Council [2013] NSWLEC 1011
Hearing dates:	20-21 August 2012. Further submissions filed up to 26 September 2012.
Decision date:	18 January 2013
Jurisdiction:	Class 1
Before:	Tuor C
Decision:	See paragraph 56
Catchwords:	DEVELOPMENT APPLICATION - child care centre, tree loss, streetscape, internal amenity, impact of development on residential amenity, particularly noise, conditions of consent and costs.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku ring gai Planning Scheme Ordinance Land and Environment Court Act 1979.
Cases Cited:	BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 Futurespace Pty Ltd v Ku ring gai Council [2009] NSWLEC 153 Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWLEC 191 Staldone Corporation Pty Ltd v Ku ring gai Council [2012] NSWLEC 1055
Category:	Principal judgment
Parties:	Carlos Zaki (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel Mr M Staunton (Applicant) Solicitors Mr C Gough Storey & Gough Lawyers (Applicant) Mr A Zoppo Sparke Helmore (Respondent)
File Number(s):	10054 of 2012