Gelder v Ku-ring-gai Council [2023] NSWLEC 1468

Gelder v Ku-ring-gai Council [2023] NSWLEC 1468

The applicant's written request under cl 4.6(3) of the Ku-ring-gai LEP 2015 adequately demonstrated that compliance with the street frontage width standard is unreasonable or unnecessary, as the objectives of the standard are satisfied and sufficient environmental planning grounds justify the contravention; all jurisdictional pre-requisites are satisfied and granting consent is in the public interest; therefore, the appeal is upheld and consent granted subject to conditions.

Parties
Applicant: Stuart Gelder; Respondent: Ku-ring-gai Council
Jurisdiction
Australia
Judgment Date
22 August 2023
Procedural Posture
Appeal (class 1) Development Application Refusal / Disposition Following Conciliation Conference
Outcome
Appeal upheld; Development application approved subject to conditions.
Legal Topics
Development Applications, Environmental Planning Instruments, Local Environmental Plans, Street Frontage Width, Variation Requests, Jurisdictional Pre Requisites
Planning Law Environmental Law Administrative Law Development Applications Environmental Planning Instruments Local Environmental Plans Street Frontage Width Variation Requests +1 more

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Parties

Stuart Gelder

Applicant

Ku-ring-gai Council

Respondent

Procedural Posture

Appeal (class 1) Development Application Refusal / Disposition Following Conciliation Conference

Legal Issues

  1. 1 Whether consent should be granted to development application DA0324/21 given the non-compliance with street frontage width standard under cl 4.1(3A) of Ku-ring-gai LEP 2015
  2. 2 Whether to uphold a cl 4.6 variation to permit that non-compliance
  3. 3 Whether statutory and jurisdictional prerequisites for consent are met

Ratio Decidendi

The applicant's written request under cl 4.6(3) of the Ku-ring-gai LEP 2015 adequately demonstrated that compliance with the street frontage width standard is unreasonable or unnecessary, as the objectives of the standard are satisfied and sufficient environmental planning grounds justify the contravention; all jurisdictional pre-requisites are satisfied and granting consent is in the public interest; therefore, the appeal is upheld and consent granted subject to conditions.

Court Disposition

Appeal upheld; Development application approved subject to conditions.

Orders

  • The applicant's written request under cl 4.6(3) of Ku-ring-gai Local Environmental Plan 2015, dated 8 August 2023, is upheld.
  • The appeal is upheld.