Land and Environment Court New South Wales Medium Neutral Citation: Dixon v Ku-ring-gai Council (No 2) [2022] NSWLEC 1006 Hearing dates: Conciliation conference on 1 June 2021; Hearing on 7 June 2021 Date of orders: 24 January 2022 Decision date: 24 January 2022 Jurisdiction: Class 1 Before: Bindon AC Decision: The Court orders that: 1) The Applicant's written request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 is upheld. 2) The Appeal is upheld. 3) Consent is granted to Development Application DA0210/20 for the one into two-lot Torrens title subdivision, demolition of existing garage, tree removal and construction of a new two storey dwelling on the proposed new lot at 7 Burns Road Wahroonga, subject to the conditions set out in Annexure A. 4) The exhibits are returned, except for A, G, 6 and 7. Catchwords: DEVELOPMENT APPLICATION – local heritage item – subdivision into 2 lots – construction of dwelling on rear lot – cl 4.6 variation to minimum lot size standard – impact on heritage item and heritage conservation area – s34AA conciliation conference Legislation Cited: Ku-ring-gai Local Environmental Plan 2015, cl 4.6 Cases Cited: Dixon v Ku-ring-gai Council [2021] NSWLEC 1687 Category: Principal judgment Parties: Lisa Dixon (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: M Staunton (Applicant) M Winram (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2020/347681 Publication restriction: No Judgment 1. COMMISSIONER: On 9 November 2021, I handed down my reasons in the Class 1 appeal Dixon v Ku-ring-gai Council [2021] NSWLEC 1687 (Principal Judgment) and indicated that upon satisfaction of certain directions, I foreshadowed granting consent, subject to conditions. 2. In the Principal Judgment, I made the following directions: "The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Ku-ring-gai Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the Applicant amending the development application DA0210/20 filed with the Court on 8 December 2020 by the addition of the following documents: See Table at Attachment 1 The Respondent, Ku-ring-gai Council, as the relevant consent authority, is to lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this order and notify the Applicant after it has been lodged. The Applicant is to file a copy of the amended development application within 7 days after the Respondent has notified the Applicant that the amendment has been lodged on the NSW planning portal. In the event the Respondent is unable to lodge the amended application on the NSW planning portal as directed in (2) above, the Respondent is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the order and request for the matter to be relisted for further directions." 1. On 15 November 2021, the Council lodged the amended development application on the NSW planning portal under exhibition case PEH-870 and notified the Applicant of the lodgement. On 22 November 2021, the Applicant filed a copy of the amended development as lodged on the NSW planning portal. 2. I am therefore satisfied that my directions in the Principal Judgement have been complied with, and I now make the following orders and thereby dispose of the matter. Orders 1. The Court orders that: 1. The Applicant's written request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 is upheld. 2. The Appeal is upheld. 3. Consent is granted to Development Application DA0210/20 for the one into two-lot Torrens title subdivision, demolition of existing garage, tree removal and construction of a new two storey dwelling on the proposed new lot at 7 Burns Road Wahroonga, subject to the conditions set out in Annexure A. 4. The exhibits are returned, except for A, G, 6 and 7. ……………………… J Bindon Acting Commissioner of the Court (Annexure A)(1270718, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 January 2022