Kaldas v Ku-ring-gai Council [2009] NSWLEC 1121

Kaldas v Ku-ring-gai Council [2009] NSWLEC 1121

The proposal for additional enclosure around unit 12 would represent an unacceptable incursion into the limited high-quality communal open space on site, contrary to the objectives of the DCP 55 and Ku-ring-gai Planning Scheme Ordnance, and the Council's alternative of expanding the planter bed provides sufficient privacy without significantly reducing communal open space.

Parties
Applicant: Kaldas, Nadeem; Respondent: Ku-ring-gai Council
Jurisdiction
Australia
Judgment Date
17 April 2009
Procedural Posture
Appeal / Judgment Following Conciliation Conference and Hearing
Outcome
Appeals upheld in part
Legal Topics
Development Application Modification, Communal Open Space Vs Private Open Space, Landscaping Requirements in Residential Flat Buildings
Environmental Law Planning Law Development Application Modification Communal Open Space Vs Private Open Space Landscaping Requirements in Residential Flat Buildings

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Parties

Kaldas, Nadeem

Applicant

Ku-ring-gai Council

Respondent

Procedural Posture

Appeal / Judgment Following Conciliation Conference and Hearing

Legal Issues

  1. 1 Whether proposed modifications unduly reduce communal open space
  2. 2 Balancing private and communal open space in a residential flat building
  3. 3 Compliance with Ku-ring-gai Council's DCP 55 and Planning Scheme Ordnance

Ratio Decidendi

The proposal for additional enclosure around unit 12 would represent an unacceptable incursion into the limited high-quality communal open space on site, contrary to the objectives of the DCP 55 and Ku-ring-gai Planning Scheme Ordnance, and the Council's alternative of expanding the planter bed provides sufficient privacy without significantly reducing communal open space.

Court Disposition

Appeals upheld in part

Orders

  • The s 97 appeal (10126 of 2009) is upheld in part, subject to revised and agreed conditions and plans for fences and landscape.
  • The s 96 appeal (10127 of 2009) is upheld in part, subject to revised and agreed conditions and plans for courtyard fencing, privacy screens, and landscaping.