Steiner v Ku-ring-gai Council [2005] NSWLEC 762

Steiner v Ku-ring-gai Council [2005] NSWLEC 762

The proposal was permissible because State Environmental Planning Policy No. 53 enabled the dual occupancy components and the subdivision components could proceed sequentially under the Ku-ring-gai Planning Scheme Ordinance with agreed deferred commencement conditions requiring an acceptable degree of construction before later stages. The neighbours' amenity concerns did not warrant refusal or substantial modification, subject to agreed conditions, but the Court was precluded from granting consent until a heritage assessment required by cl 61E of the Ku-ring-gai Planning Scheme Ordinance for 89 Killeaton Street had been made and considered.

Jurisdiction
Australia
Judgment Date
16 December 2005
Procedural Posture
Appeals Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Concerning Proposed Sequential Multiple Subdivision and Detached Dual Occupancies / Extempore Judgment and Directions
Outcome
Appeals to be upheld; development consents to be granted subject to consideration of the required heritage assessment and revised conditions.
Legal Topics
['dual Occupancy' 'sequential Subdivision' 'deferred Commencement Conditions' 'state Environmental Planning Policy No. 53' 'ku Ring Gai Planning Scheme Ordinance' 'heritage Assessment' 'residential Amenity' 'stormwater Management']
['planning and Environment Law' 'development Consent' 'land Use and Subdivision'] ['dual Occupancy' 'sequential Subdivision' 'deferred Commencement Conditions' 'state Environmental Planning Policy No. 53' 'ku Ring Gai Planning Scheme Ordinance' 'heritage Assessment' 'residential Amenity' 'stormwater Management']

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Procedural Posture

Appeals Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Concerning Proposed Sequential Multiple Subdivision and Detached Dual Occupancies / Extempore Judgment and Directions

Legal Issues

  1. 1 ['Whether the proposed sequential multiple subdivision and detached dual occupancies at 79-81 Killeaton Street, St Ives were permissible under State Environmental Planning Policy No. 53 and the Ku-ring-gai Planning Scheme Ordinance.' 'Whether deferred commencement conditions could address the requirements of cl 58B(5) of the Ku-ring-gai Planning Scheme Ordinance for later subdivision stages.' "Whether neighbours' concerns about overlooking, noise, solar access, bulk and scale, vegetation, and stormwater warranted modification or refusal of the proposal." 'Whether consent could be granted before an assessment was made under cl 61E of the Ku-ring-gai Planning Scheme Ordinance of the effect of the development on the heritage significance and setting of 89 Killeaton Street, St Ives.']

Ratio Decidendi

The proposal was permissible because State Environmental Planning Policy No. 53 enabled the dual occupancy components and the subdivision components could proceed sequentially under the Ku-ring-gai Planning Scheme Ordinance with agreed deferred commencement conditions requiring an acceptable degree of construction before later stages. The neighbours' amenity concerns did not warrant refusal or substantial modification, subject to agreed conditions, but the Court was precluded from granting consent until a heritage assessment required by cl 61E of the Ku-ring-gai Planning Scheme Ordinance for 89 Killeaton Street had been made and considered.

Court Disposition

Appeals to be upheld; development consents to be granted subject to consideration of the required heritage assessment and revised conditions.

Orders

  • ['The appeals will be upheld.' 'The appropriate development consents will be granted, provided the Court has given the consideration required by cl 61E of the Ku-ring-gai Planning Scheme Ordinance concerning 89 Killeaton Street, St Ives and is satisfied that there is no heritage impact warranting refusal.'...