Charny Holdings Pty Limited v Ku-ring-gai Council [2006] NSWLEC 752

Charny Holdings Pty Limited v Ku-ring-gai Council [2006] NSWLEC 752

The proposal was permissible under the current Ku-ring-gai Planning Scheme Ordinance 1971 and no traffic, parking, design, merit or numerical compliance issue was said to warrant refusal. The council policy relied on was not long settled or consistently applied and was given little weight. Although the draft LEP might be imminent, the Court was not comfortably satisfied that its terms, including the reduced retail FSR for the Coles site, were certain; accordingly it was not given significant or determinative weight and did not inhibit approval of the development application.

Jurisdiction
Australia
Judgment Date
15 November 2006
Procedural Posture
Development Application Appeal / Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed and Subsequent Actual Refusal of Development Application 581/06; Ex Tempore Judgment
Outcome
Appeal upheld; Development Application 581 of 2006 determined by grant of development consent subject to conditions to be finalised between the parties.
Legal Topics
['development Consent' 'draft Local Environmental Plan' 'floor Space Ratio' 'weight to Council Policy' 'imminence and Certainty of Planning Controls']
['planning and Environment Law'] ['development Consent' 'draft Local Environmental Plan' 'floor Space Ratio' 'weight to Council Policy' 'imminence and Certainty of Planning Controls']

Case Brief

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Procedural Posture

Development Application Appeal / Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Deemed and Subsequent Actual Refusal of Development Application 581/06; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the proposal should be refused because it was contrary to a settled council policy within the principles in Stockland Development Pty Limited v Manly Council (2004) NSWLEC 472.' 'Whether inconsistency with a draft Local Environmental Plan for the Turramurra town centre, particularly retail floor space ratio controls, should be given significant or determinative weight.' 'Whether the draft Local Environmental Plan was both imminent and certain.' 'Whether the development application should be approved under the current planning controls.']

Ratio Decidendi

The proposal was permissible under the current Ku-ring-gai Planning Scheme Ordinance 1971 and no traffic, parking, design, merit or numerical compliance issue was said to warrant refusal. The council policy relied on was not long settled or consistently applied and was given little weight. Although the draft LEP might be imminent, the Court was not comfortably satisfied that its terms, including the reduced retail FSR for the Coles site, were certain; accordingly it was not given significant or determinative weight and did not inhibit approval of the development application.

Court Disposition

Appeal upheld; Development Application 581 of 2006 determined by grant of development consent subject to conditions to be finalised between the parties.

Orders

  • ['The appeal is upheld.' 'Development Application 581 of 2006 is determined by the granting of development consent subject to conditions which remain to be finalised between the parties.' 'The exhibits, other than exhibits A and B, will be returned at the time of making of orders in these proceedings.' 'The...