O’Connor v Ku-ring-gai Council [2022] NSWLEC 1189

Land and Environment Court New South Wales

Medium Neutral Citation: O'Connor v Ku-ring-gai Council [2022] NSWLEC 1189 Hearing dates: 10-11 February 2022 Date of orders: 12 April 2022 Decision date: 12 April 2022 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The applicant is to pay the respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amended development application as agreed or assessed. (2) The applicant's amended written request under cl 4.6 of Ku ring Gai Local Environmental Plan 2015 prepared by Chapman Planning dated February 2022 that seeks to justify the contravention of the development standard for the height of buildings under cl 4.3 of the plan is upheld. (3) The appeal is upheld. (4) Development Application No DA0025/21 for shop top housing development consisting of two commercial tenancies, eight residential apartments, basement car parking and associated works at 2-4 Park Crescent Pymble is determined by grant of consent, subject to the conditions in Annexure A. (5) The exhibits are returned with the exception of the following which are retained by the Court: 1, B, C and F. Catchwords: DEVELOPMENT APPLICATION – shop top housing – building height contravention – heritage conservation – internal amenity – whether land dedication via planning agreement or restrictive covenant more appropriate for necessary widening of pathway, objecting submissions Legislation Cited: Conveyancing Act 1919, s 88E Environmental Planning and Assessment Act 1979, ss 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 9, 55, 74 Ku-ring-gai Local Environmental Plan 2015, cll 3, 4.6, 5.10, 6.6, 6.7 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Cases Cited: L & G Management Pty Ltd v Council of the City of Sydney [2021] NSWLEC 149 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Apartment Design Guide Land and Environment Court, COVID -19 Pandemic Arrangements Policy (December 2021) Ku-ring-gai Development Control Plan 2021 Category: Principal judgment Parties: John O'Connor (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: N Eastman (Applicant) G Farland (Respondent)