Nasab v Ku-ring-gai Council [2015] NSWLEC 1474

Land and Environment Court New South Wales

Medium Neutral Citation: Nasab v Ku-ring-gai Council [2015] NSWLEC 1474 Hearing dates: 23 July 2015 Decision date: 21 November 2015 Jurisdiction: Class 1 Before: Dixon C Decision: (1) The parties are directed to provide to the Court an electronic copy of the conditions of consent, combing those to which they have agreed, within 7 days of the date of this judgment. Catchwords: APPEAL- development application –subdivision- erection of second dwelling - impact of development on existing heritage item Legislation Cited: Conveyancing Act 1919 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Ku-ring-gai Local Environmental Plan 2015 Ku–ring-gai Planning Scheme Ordinance (As amended at 5 July 2013) Ku-ring-gai Development Control Plan Ku-ring-gai Residential Design Manual – Development Control Plan No38. Category: Principal judgment Parties: Rahim Nasab (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Michael Staunton (Applicant) Anthony Hudson (solicitor) (Respondent)

Solicitors: Storey & Gough (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 11044 of 2014

Judgment 1. Rahim Nasab has made application to the Court for approval to subdivide his heritage listed property at 47 Highfield Road, Lindfield to facilitate the construction of a second dwelling on an area of the property known as forest grove. 2. Mr Nasab's development application (DA 0472/13) for that purpose was refused by the Ku -ring-gai Council on 7 October 2014. 3. The Council decided that the proposed second dwelling was in breach of relevant height and front setback controls, and that the development generated unacceptable impacts upon the existing heritage listed dwelling and its landscaped curtilage. It also determined that the development adversely impacted upon endangered ecological communities and the riparian corridor that traverses the site. 4. In response to the Council's decision Mr Nasab amended his development application (Exhibit A). The key changes include: reliance on a strata subdivision to subdivide the property, revised ceiling height details, and the rehabilitation and maintenance of the heritage listed gardens in accordance with the Vegetation Management Plan (VMP) prepared by Travers Bushfire and Ecology dated 22 July 2015 (Exhibit D). The amended application also incorporates the imposition of several positive covenants on the tile of the land aimed at protecting the heritage values of the site (Exhibit H). 5. Mr Nasab's amended application, which is supported by three heritage consultants: Jennifer Hill, Robert Staas and Ian McDonald, is the subject of this appeal. The proceedings are brought pursuant to s97 of the Environmental Planning and Assessment Act 1979 (the EPA Act). 6. While the Council accepts that the amended application satisfactorily addresses the height and setback issues raised by the original application it does not accept that the amendments overcome the development's unacceptable impacts upon the heritage significance and character of the site. 7. The impacts of the development on the heritage listed site are the central issues in this appeal.