Hew v Ku-ring-gai Council [2012] NSWLEC 1209

Hew v Ku-ring-gai Council [2012] NSWLEC 1209

The Court held that natural ground level under the Ku-ring-gai Planning Scheme Ordinance meant the natural level of the land before man-made works, so the relevant level near the pool was approximately the pool coping rather than the excavated pool bottom. The basement parking level was therefore not a storey because it was less than 1.2 metres above ground level, and the proposal was two storeys rather than three. As the proposal complied with the other requirements of the Ordinance, subclause 25I(4) permitted multi-unit housing on the 2(d3) zoned site notwithstanding that the site area was less than 1,200 square metres. The draft LEP was not certain or imminent and, in any event, the...

Jurisdiction
Australia
Judgment Date
03 August 2012
Procedural Posture
Class 1 Development Appeal Concerning Development Application No. 0525/11 / Consent Final Orders Hearing After Conciliation Under S34 of the Land and Environment Court Act 1979 Was Terminated
Outcome
The appeal was upheld and Development Application No. 0525/11 was approved subject to conditions.
Legal Topics
['consent Orders in Development Appeals' 'townhouse Development' 'natural Ground Level and Storeys' 'zone Interface Setbacks' 'draft Local Environmental Plan' 'resident Objections']
['planning and Environment Law' 'development Consent' 'land Use and Zoning' 'heritage Conservation'] ['consent Orders in Development Appeals' 'townhouse Development' 'natural Ground Level and Storeys' 'zone Interface Setbacks' 'draft Local Environmental Plan' 'resident Objections']

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Procedural Posture

Class 1 Development Appeal Concerning Development Application No. 0525/11 / Consent Final Orders Hearing After Conciliation Under S34 of the Land and Environment Court Act 1979 Was Terminated

Legal Issues

  1. 1 ['Whether it was lawful and appropriate to grant consent final orders approving the amended development application.' 'Whether the proposal satisfied subclause 25I(4) of the Ku-ring-gai Planning Scheme Ordinance despite the site area being less than 1,200 square metres.' 'Whether the basement level was to be counted as a storey by reference to the meaning of natural ground level in the Ku-ring-gai Planning Scheme Ordinance.' 'Whether the proposal was required to comply with the 9 metre setback for a third storey under subclause 25L(2) of the Ku-ring-gai Planning Scheme Ordinance.' 'What weight should be given to the draft Ku-ring-gai Local Centres Local Environment Plan 2012.' 'Whether the amended proposal adequately addressed resident objections and heritage and amenity impacts.']

Ratio Decidendi

The Court held that natural ground level under the Ku-ring-gai Planning Scheme Ordinance meant the natural level of the land before man-made works, so the relevant level near the pool was approximately the pool coping rather than the excavated pool bottom. The basement parking level was therefore not a storey because it was less than 1.2 metres above ground level, and the proposal was two storeys rather than three. As the proposal complied with the other requirements of the Ordinance, subclause 25I(4) permitted multi-unit housing on the 2(d3) zoned site notwithstanding that the site area was less than 1,200 square metres. The draft LEP was not certain or imminent and, in any event, the...

Court Disposition

The appeal was upheld and Development Application No. 0525/11 was approved subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development Application No. 0525/11 for a townhouse development, including alterations and additions to the existing dwelling, at 5 Yarabah Avenue, Gordon, is approved, subject to the conditions in Annexure A.' 'The exhibits are returned, with the exception of exhibit 2.']