Nasab v Ku-ring-gai Council [2015] NSWLEC 1474

Nasab v Ku-ring-gai Council [2015] NSWLEC 1474

The amended proposal was acceptable because, having considered the expert evidence and viewed the site from relevant public and internal viewpoints, the Court was satisfied that the form, siting, materials, design, landscape treatment, Vegetation Management Plan and proposed covenants would have minimal impact on the heritage item's principal setting and limited public views, would conserve the heritage significance of the item including associated fabric, setting and views, and was acceptable on its merits under s79C of the Environmental Planning and Assessment Act 1979.

Jurisdiction
Australia
Judgment Date
21 November 2015
Procedural Posture
Class 1 Appeal Concerning Refusal of Development Application for Subdivision and Erection of a Second Dwelling / Principal Judgment
Outcome
The Court proposed to grant consent to the amended development application subject to draft conditions, and directed the parties to provide agreed conditions before final orders were published.
Legal Topics
['development Application Appeal' 'subdivision' 'second Dwelling' 'impact on Heritage Item and Garden Setting' 'vegetation Management Plan' 'positive Covenants']
['planning and Environment' 'heritage Conservation' 'development Consent'] ['development Application Appeal' 'subdivision' 'second Dwelling' 'impact on Heritage Item and Garden Setting' 'vegetation Management Plan' 'positive Covenants']

Case Brief

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Procedural Posture

Class 1 Appeal Concerning Refusal of Development Application for Subdivision and Erection of a Second Dwelling / Principal Judgment

Legal Issues

  1. 1 ['Whether the amended development application would have an unacceptable impact on the heritage significance and character of the heritage listed site at 47 Highfield Road, Lindfield.' 'Whether the proposed strata subdivision and second dwelling would conserve the heritage significance of the heritage item, including associated fabric, setting and views.' 'Whether the proposal was acceptable on its merits under s79C of the Environmental Planning and Assessment Act 1979.']

Ratio Decidendi

The amended proposal was acceptable because, having considered the expert evidence and viewed the site from relevant public and internal viewpoints, the Court was satisfied that the form, siting, materials, design, landscape treatment, Vegetation Management Plan and proposed covenants would have minimal impact on the heritage item's principal setting and limited public views, would conserve the heritage significance of the item including associated fabric, setting and views, and was acceptable on its merits under s79C of the Environmental Planning and Assessment Act 1979.

Court Disposition

The Court proposed to grant consent to the amended development application subject to draft conditions, and directed the parties to provide agreed conditions before final orders were published.

Orders

  • ['The parties are directed to provide to the Court an electronic copy of the conditions of consent, combing those to which they have agreed, within 7 days of the date of this judgment.']