Eastern High Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1383

Eastern High Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1383

The proposal was permissible with consent as multi dwelling housing because it comprised four attached dwellings on one lot, each with access at ground level by an entry door and stair, and therefore was not a residential flat building. However, the written request under cl 4.6 did not demonstrate sufficient environmental planning grounds to justify the contraventions of the lot area and minimum dimension standards in cl 6.6(2) of Ku-ring-gai Local Environmental Plan 2015. Clause 4.6 was a precondition to consent, so the Court had no power to grant consent and the application failed.

Jurisdiction
Australia
Judgment Date
20 July 2023
Procedural Posture
Class 1 Appeal Against Deemed Refusal of a Development Application / Hearing After Termination of S 34 Conciliation Conference
Outcome
Appeal dismissed; development application determined by refusal of consent.
Legal Topics
['development Application' 'permissibility of Multi Dwelling Housing' 'residential Flat Building Characterisation' 'clause 4.6 Variation Request' 'minimum Lot Size and Dimensions']
['planning and Environment' 'development Control'] ['development Application' 'permissibility of Multi Dwelling Housing' 'residential Flat Building Characterisation' 'clause 4.6 Variation Request' 'minimum Lot Size and Dimensions']

Case Brief

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Procedural Posture

Class 1 Appeal Against Deemed Refusal of a Development Application / Hearing After Termination of S 34 Conciliation Conference

Legal Issues

  1. 1 ['Whether the proposed development was properly characterised as multi dwelling housing, permitted with consent in the R3 Medium Density Residential zone, or as a prohibited residential flat building.' 'Whether the written request under cl 4.6 of Ku-ring-gai Local Environmental Plan 2015 adequately demonstrated sufficient environmental planning grounds to justify contravening the lot area and minimum dimension standards in cl 6.6(2).']

Ratio Decidendi

The proposal was permissible with consent as multi dwelling housing because it comprised four attached dwellings on one lot, each with access at ground level by an entry door and stair, and therefore was not a residential flat building. However, the written request under cl 4.6 did not demonstrate sufficient environmental planning grounds to justify the contraventions of the lot area and minimum dimension standards in cl 6.6(2) of Ku-ring-gai Local Environmental Plan 2015. Clause 4.6 was a precondition to consent, so the Court had no power to grant consent and the application failed.

Court Disposition

Appeal dismissed; development application determined by refusal of consent.

Orders

  • ['The appeal is dismissed.' 'Development application DA0101/22 seeking consent for demolition of the existing structures and construction of a multi dwelling housing development with four dwellings, basement parking and associated works at 15 Boyd Street, Turramurra (Lot 1 in DP 27304) is determined by the refusal...