Hart -v- Ku Ring Gai Council [2012] NSWLEC 1192

Hart -v- Ku Ring Gai Council [2012] NSWLEC 1192

The Court could not determine that it was appropriate to grant the consent orders because the material did not demonstrate adequate assessment of cl 32 of SEPP 53, heritage impacts on the adjoining heritage item and heritage conservation area, privacy impacts from balconies and full height windows, or the significance of non-compliance with the Ku Ring Gai Dual Occupancy Code; consequently Council had not demonstrated compliance with relevant statutory provisions or proper consideration of the adjoining resident's objections.

Jurisdiction
Australia
Judgment Date
28 March 2012
Procedural Posture
Class 1 Development Appeals Under S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Applications / Hearing of Consent Orders After S 34 AA Conciliation Conference Was Vacated
Outcome
Consent orders were not granted; the parties were directed to seek a further hearing date and provide further information.
Legal Topics
['dual Occupancy and Subdivision' 'consent Orders' 'adequacy of Assessment Under S 79 C of the Environmental Planning and Assessment Act 1979' 'heritage Impact' 'privacy Impacts' 'height and Bulk' 'planning Controls']
['planning and Environment' 'development Appeals' 'heritage'] ['dual Occupancy and Subdivision' 'consent Orders' 'adequacy of Assessment Under S 79 C of the Environmental Planning and Assessment Act 1979' 'heritage Impact' 'privacy Impacts' 'height and Bulk' 'planning Controls']

Case Brief

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Procedural Posture

Class 1 Development Appeals Under S97 of the Environmental Planning and Assessment Act 1979 Against Refusal of Development Applications / Hearing of Consent Orders After S 34 AA Conciliation Conference Was Vacated

Legal Issues

  1. 1 ['Whether it was lawful and appropriate to grant the consent orders sought for the dual occupancy and subdivision applications.' "Whether the relevant statutory provisions had been complied with and the adjoining owner's objections properly taken into account." 'Whether adequate regard had been given to the principles in cl 32 of State Environmental Planning Policy 53, including streetscape and visual and acoustic privacy.' 'Whether heritage impacts on the adjoining heritage item at 6 Treatts Road and the Heritage Conservation Area under draft Ku Ring Gai Local Environmental Plan 218 had been adequately assessed.' 'Whether privacy impacts from balconies and full height windows and non-compliance with the Ku Ring Gai Dual Occupancy Code had been adequately assessed.']

Ratio Decidendi

The Court could not determine that it was appropriate to grant the consent orders because the material did not demonstrate adequate assessment of cl 32 of SEPP 53, heritage impacts on the adjoining heritage item and heritage conservation area, privacy impacts from balconies and full height windows, or the significance of non-compliance with the Ku Ring Gai Dual Occupancy Code; consequently Council had not demonstrated compliance with relevant statutory provisions or proper consideration of the adjoining resident's objections.

Court Disposition

Consent orders were not granted; the parties were directed to seek a further hearing date and provide further information.

Orders

  • ['The parties are to seek a further hearing date and provide further information.']