IPM P/L v Ku-ring-gai C [2005] NSWLEC 573

IPM P/L v Ku-ring-gai C [2005] NSWLEC 573

The appeal was upheld because the amended proposal and conditions sufficiently addressed the Council's issues and objectors' reasonable concerns, complied with relevant numerical and planning controls for landscaping, setbacks, overshadowing and environmental performance, and did not create heritage, streetscape, traffic, drainage, vibration or amenity impacts sufficient to justify refusal. Conditions 97 and 98 were deleted because specific performance conditions already required tree protection and landscaping installation and maintenance.

Jurisdiction
Australia
Judgment Date
28 September 2005
Procedural Posture
Class 1 Appeal Against Refusal of Development Consent / Final Judgment After Hearings
Outcome
Appeal upheld; development consent granted; no orders as to costs.
Legal Topics
['residential Flat Development' 'streetscape and Landscaping' 'urban Conservation Area' 'tree and Wildlife Conservation' 'overshadowing and Solar Access' 'construction Traffic' 'basement Excavation Vibration' 'section 94 Contributions' 'development Consent Conditions']
['planning and Environment Law' 'development Consent' 'heritage Conservation'] ['residential Flat Development' 'streetscape and Landscaping' 'urban Conservation Area' 'tree and Wildlife Conservation' 'overshadowing and Solar Access' 'construction Traffic' 'basement Excavation Vibration' 'section 94 Contributions' 'development Consent Conditions']

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Procedural Posture

Class 1 Appeal Against Refusal of Development Consent / Final Judgment After Hearings

Legal Issues

  1. 1 ['Whether development consent should be granted for two 5-storey residential flat buildings comprising 42 apartments with basement parking at Nos. 11-19 Moree Street, Gordon.' 'Whether amended plans adequately addressed streetscape, landscaping, deep soil planting, driveway location, privacy and amenity impacts.' 'Whether the development had unacceptable impacts on the West Gordon Urban Conservation Area or nearby heritage items.' 'Whether overshadowing, solar access, construction traffic, drainage, vibration and wildlife concerns warranted refusal.' 'Whether draft conditions 97 and 98 requiring bonds for landscape works and tree protection should be imposed.']

Ratio Decidendi

The appeal was upheld because the amended proposal and conditions sufficiently addressed the Council's issues and objectors' reasonable concerns, complied with relevant numerical and planning controls for landscaping, setbacks, overshadowing and environmental performance, and did not create heritage, streetscape, traffic, drainage, vibration or amenity impacts sufficient to justify refusal. Conditions 97 and 98 were deleted because specific performance conditions already required tree protection and landscaping installation and maintenance.

Court Disposition

Appeal upheld; development consent granted; no orders as to costs.

Orders

  • ['Appeal is upheld.' "Development consent is granted for two 5-storey apartment buildings with basement carpark at Nos. 11-19 Moree Street, West Gordon, in accordance with the plans in Exhibit F being Drawing Nos. 1168 LP/01 C, /02A, -03B, -04A by John Loch and Associates Landscape Architect and Drawing Nos. 2916...