Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1273

Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1273

The appeal was dismissed because the applicant did not establish that a reasonable offer had been made to the owner of 10 and 10A Bruce Avenue and therefore did not establish that amalgamation with those properties was not feasible. As a reduced density on the site could only be justified if amalgamation was not feasible, the applicant's cl 4.6 request did not demonstrate that compliance with the minimum site area and frontage development standard was unnecessary or unreasonable or that sufficient environmental planning grounds justified the contravention. Development consent therefore could not be granted.

Jurisdiction
Australia
Judgment Date
01 June 2017
Procedural Posture
Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Mandatory Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and Leave Was Granted to Rely on an Amended Proposal
Outcome
Appeal dismissed; development application refused.
Legal Topics
['development Application Refusal' 'multi Dwelling Housing Development' 'site Amalgamation Feasibility' 'minimum Site Area and Frontage Development Standard' 'clause 4.6 Variation Request' 'local Environmental Plan Compliance' 'development Control Plan Considerations']
['environmental Planning and Development' 'land and Environment Court Appeals'] ['development Application Refusal' 'multi Dwelling Housing Development' 'site Amalgamation Feasibility' 'minimum Site Area and Frontage Development Standard' 'clause 4.6 Variation Request' 'local Environmental Plan Compliance' 'development Control Plan Considerations']

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Procedural Posture

Class 1 Appeal Pursuant to S 97 of the Environmental Planning and Assessment Act 1979 Against Refusal of a Development Application / Principal Judgment After Mandatory Conciliation Under S 34 of the Land and Environment Court Act 1979 Was Terminated and Leave Was Granted to Rely on an Amended Proposal

Legal Issues

  1. 1 ['Whether a reasonable offer had been made to the owner of 10 and 10A Bruce Avenue such that amalgamation with the site was not feasible.' "Whether the proposal's non-compliance with the minimum site area and frontage requirements in cl 6.5 of Ku-ring-gai Local Environment Plan (Local Centres) 2012 should be varied under cl 4.6." 'Whether the proposal adequately addressed relevant Ku-ring-gai Development Control Plan (Local Centres) controls including land consolidation, amenity, setbacks, building separation and dwelling design.']

Ratio Decidendi

The appeal was dismissed because the applicant did not establish that a reasonable offer had been made to the owner of 10 and 10A Bruce Avenue and therefore did not establish that amalgamation with those properties was not feasible. As a reduced density on the site could only be justified if amalgamation was not feasible, the applicant's cl 4.6 request did not demonstrate that compliance with the minimum site area and frontage development standard was unnecessary or unreasonable or that sufficient environmental planning grounds justified the contravention. Development consent therefore could not be granted.

Court Disposition

Appeal dismissed; development application refused.

Orders

  • ['The appeal is dismissed.' 'Development Application No. 0495/15 for the construction of a multi-dwelling housing development containing 5 dwellings with basement parking at 8A Bruce Avenue, Killara, is refused.' 'The exhibits, other than exhibits 1 and A, are returned.']