Bunnings Properties Pty Ltd v Ku-ring-gai Council; (No 2) [2016] NSWLEC 1659

Land and Environment Court New South Wales

Medium Neutral Citation: Bunnings Properties Pty Ltd v Ku-ring-gai Council; (No 2) [2016] NSWLEC 1659 Hearing dates: 25 October 2016 Date of orders: 28 October 2016 Decision date: 28 October 2016 Jurisdiction: Class 1 Before: Brown C Decision: 1. Leave is Leave granted to reopen the proceedings is granted, with respect to the application of clause 1.8A of the Ku-ring-gai Local Environmental Plan 2015 LEP 2015) following the Court of Appeal decision in in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Catchwords: NOTICE OF MOTION: whether leave should be granted to re-open hearing Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: De Angelis v Wingecarribee Shire Council [2016] 214 LGERA 96 Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 Category: Principal judgment Parties: Bunnings Properties Pty Ltd (Applicant) Ku-ring-gai Council.(Respondent) Representation: Counsel: Mr A Galasso SC (Applicant) Ms V McWilliam, barrister (Respondent)

Solicitors: Norton Rose Fulbright (Applicant) Sparke Helmore.(Respondent) File Number(s): 16/152878 Publication restriction: No

Judgment 1. These proceedings flow from an appeal under s97(1) of the Environmental Planning and Assessment Act 1979 (NSW), commenced by Bunnings Properties Pty Ltd (Bunnings) on 26 June 2015 against Ku-ring-gai Council's (the council) deemed refusal of Development Application No. DA0115/15 (DA). The DA was lodged with the council on 8 April 2015, seeking development consent for demolition of existing structures, tree removal, earthworks and retaining walls, construction of a four storey building and its use for hardware and building supplies, road widening and driveway access from Ryde Road, signage, landscaping, consolidation of titles and ancillary use of offices (for Bunnings staff) and cafe at 950 -950A Pacific Highway and 2 Bridge Street, Pymble (site). 2. The proceedings were heard before me from 26 - 28 April 2016 inclusive and on 6 November 2015 leave was granted to Bunnings to file amended plans in the proceedings. On 20 July 2016, I delivered interim findings in the proceedings, in which I found at [104] that although I was not satisfied that the development in the form presented to the Court was acceptable, I was satisfied that a "Hardware and building supplies" establishment, in some form, was capable of being constructed on the site. 3. By way of Notice of Motion filed on 9 September 2016, Bunnings sought the following orders be made: 1. Leave to reopen the proceedings is granted, with respect to the application of clause 1.8A of the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015); and 2. Such further or other orders as the Court thinks fit.