Birkbeck v Ku-ring-gai Council [2018] NSWLEC 1657

Birkbeck v Ku-ring-gai Council [2018] NSWLEC 1657

Having considered the effect of the amended proposal on the heritage significance of the item under cl 5.10(4) of the Ku-ring-gai Local Environmental Plan 2015, the Court accepted the applicant's heritage evidence that the amended plans would retain the significant external features of the heritage item and its setting, would be sympathetic in bulk, form, style, character, scale and materials, and would not dominate, detract from or compete with nearby heritage items or the heritage conservation area. The Heritage Impact Statement, addendum grading information and photomontages were adequate to assess heritage effects, so the appeal was upheld and consent granted subject to conditions.

Jurisdiction
Australia
Judgment Date
19 December 2018
Procedural Posture
Class 1 Appeal Against Refusal of a Development Application / Hearing After Termination of Conciliation Conference
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['development Application' 'alterations and Additions to a Heritage Item' 'heritage Conservation Area' 'heritage Impact Statement' 'amended Plans']
['planning and Environment' 'heritage Conservation'] ['development Application' 'alterations and Additions to a Heritage Item' 'heritage Conservation Area' 'heritage Impact Statement' 'amended Plans']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the proposal results in unacceptable impacts on the heritage item at 29 Marian Street, the adjoining heritage items and the Marian Street heritage conservation area.' 'Whether the Heritage Impact Statement was insufficient or inadequate.' 'Whether the application provided adequate photomontage or perspective material indicating visibility of the proposed rear addition from the streetscape and adjacent heritage items.' 'Whether leave should be granted to rely on amended plans and information in Exhibit 7.']

Ratio Decidendi

Having considered the effect of the amended proposal on the heritage significance of the item under cl 5.10(4) of the Ku-ring-gai Local Environmental Plan 2015, the Court accepted the applicant's heritage evidence that the amended plans would retain the significant external features of the heritage item and its setting, would be sympathetic in bulk, form, style, character, scale and materials, and would not dominate, detract from or compete with nearby heritage items or the heritage conservation area. The Heritage Impact Statement, addendum grading information and photomontages were adequate to assess heritage effects, so the appeal was upheld and consent granted subject to conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibit 7.' 'The appeal is upheld.' 'Development consent is granted for Development Application No. DA18/170368 for alterations and additions including a first floor addition...