Shannon v Ku-ring-gai Council [2013] NSWLEC 1033

Land and Environment Court New South Wales

Medium Neutral Citation: Shannon v Ku-ring-gai Council [2013] NSWLEC 1033 Hearing dates: 27 February 2013 Decision date: 28 February 2013 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is upheld. 2. Modification Application No. MOD0157/12 to delete condition 61 of DA0653/11 requiring the retention of a garage is approved, subject to the conditions in Annexure "A". 3. The exhibits, other than exhibit 6, are returned. Catchwords: MODIFICATION APPLICATION: to delete a condition requiring the retention of the garage; impact on heritage significance of the heritage item; structural adequacy. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: James and Felicity Shannon (Applicants) Ku-ring-gai Council (Respondent) Representation: Mr Graham McKee (Applicant) Ms Lesley Finn (Respondent) McKees Legal Solutions (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 11234 of 2012

Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97AA of the Environmental Planning and Assessment Act 1979 against the refusal of Modification Application No. MOD0157/12 (the proposal) by Ku-ring-gai Council (the Council) to delete a condition of the development consent requiring the retention of an original single garage near the street front of an existing dwelling, at 21 Ada Avenue, Wahroonga (the site). 2The parties advised the Court at the commencement of the proceedings on site that there was no prospect of them reaching an agreement, as the outcome would either be that the garage is repaired and retained or it is demolished. Consequently, the s34AA conciliation phase was terminated pursuant to s34AA(2)(b) and the proceedings dealt with as a hearing, pursuant to s34AA(2)(b)(i).