Hardy v Ku-ring-gai Council (No. 2) [2018] NSWLEC 1246

Land and Environment Court New South Wales

Medium Neutral Citation: Hardy v Ku-ring-gai Council (No. 2) [2018] NSWLEC 1246 Hearing dates: 14-15 May 2018 Date of orders: 24 May 2018 Decision date: 24 May 2018 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Development Application No. 0187/17 for alterations and additions to a local heritage item at 4 Powell Street, Killara, is refused. 3. The exhibits, other than exhibits 1, A and B, are returned. Catchwords: DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling; exceedance of the height of buildings development standard; impact on the heritage significance of the local heritage item; whether an "amber light" approach is appropriate. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Hardy v Ku-ring-gai Council [2018] NSWLEC 1245 Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19 Ali v Liverpool City Council [2009] NSWLEC 1327 Category: Principal judgment Parties: John Hardy (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Mr R. O'Gorman-Hughes barrister (Respondent)

Solicitors: Mr G. Green, Pikes & Verekers Lawyers Shaw Reynolds Lawyers (Respondent) File Number(s): 2017/324388 Publication restriction: No

Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. 0187/17 for alterations and additions to an existing dwelling, demolition of the existing garage and swimming pool and a new swimming pool and landscaping (the proposal) at 4 Powell Street, Killara (the site), by Ku-ring-gai Council (the Council). 2. The appeal was subject to mandatory conciliation on 14 May 2018, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and a hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act. 3. The parties consented to the admission of evidence given on-site during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act. 4. The hearing was reopened and the applicant adduced further evidence in the form of an amended written request to vary the height of buildings development standard (exhibit N) (Hardy v Ku-ring-gai Council [2018] NSWLEC 1245).