Hardy v Ku-ring-gai Council (No. 2) [2018] NSWLEC 1246

Hardy v Ku-ring-gai Council (No. 2) [2018] NSWLEC 1246

Although the applicant's written request adequately justified the height of buildings development standard contravention, the proposal failed to conserve the heritage significance of the local heritage item. The proposed attic, roof works, basement addition, rear enclosure, terrace and pergola were found to be...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 May 2018
Procedural Posture
Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No. 0187/17 / Hearing Held After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement
Outcome
Appeal dismissed; Development Application No. 0187/17 refused.
Legal Topics
['development Application for Alterations and Additions to a Local Heritage Item' 'height of Buildings Development Standard Variation Under Cl 4.6' 'impact on Heritage Significance' 'amber Light Approach in Merits Appeals']
['planning and Environment' 'development Control' 'heritage Conservation'] ['development Application for Alterations and Additions to a Local Heritage Item' 'height of Buildings Development Standard Variation Under Cl 4.6' 'impact on Heritage Significance' 'amber Light Approach in Merits Appeals']

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Procedural Posture

Class 1 Appeal Pursuant to S 8.7(1) of the Environmental Planning and Assessment Act 1979 Against the Deemed Refusal of Development Application No. 0187/17 / Hearing Held After Mandatory Conciliation Under S 34 AA of the Land and Environment Court Act 1979 Was Terminated Without Agreement

Legal Issues

  1. 1 ['Whether the proposal would have an unacceptable impact on the heritage significance of the existing dwelling listed as a local heritage item' "Whether the applicant's cl 4.6 written request justified contravention of the 9.5m height of buildings development standard" 'Whether an "amber light" approach was appropriate to address the Council\'s heritage contention']

Ratio Decidendi

Although the applicant's written request adequately justified the height of buildings development standard contravention, the proposal failed to conserve the heritage significance of the local heritage item. The proposed attic, roof works, basement addition, rear enclosure, terrace and pergola were found to be unsympathetic to original and early fabric of high and moderate significance, and the amendments did not sufficiently address the Council's heritage contention to warrant an "amber light" direction or condition. The appeal was therefore dismissed and the development application refused.

Court Disposition

Appeal dismissed; Development Application No. 0187/17 refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. 0187/17 for alterations and additions to a local heritage item at 4 Powell Street, Killara, is refused.' 'The exhibits, other than exhibits 1, A and B, are returned.']