Birkbeck v Ku-ring-gai Council [2018] NSWLEC 1657

Land and Environment Court New South Wales

Medium Neutral Citation: Birkbeck v Ku-ring-gai Council [2018] NSWLEC 1657 Hearing dates: 3-4 December 2018 Date of orders: 19 December 2018 Decision date: 19 December 2018 Jurisdiction: Class 1 Before: Horton C Decision: (1) Leave is granted to the applicant to amend the application for development consent, by relying on the information and the amended plans in Exhibit 7; (2) The appeal is upheld; (3) Development consent is granted for Development Application No. DA18/170368 for alterations and additions including a first floor addition to a heritage item at 29 Marian Street, Killara, subject to the conditions annexed hereto and marked "A"; (4) The exhibits are returned, except for Exhibits 7 and 8 and Exhibit A. Catchwords: DEVELOPMENT APPLICATION: alterations and additions; existing heritage item; amended plans' orders Legislation Cited: Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 Texts Cited: Ku-ring-gai Development Control Plan 2015 Category: Principal judgment Parties: David Birkbeck (First Applicant) Jodi Birkbeck (Second Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitors: J Palmer, Pikes & Verekers Lawyers (Applicants) C McFadzean, Swaab (Respondent) File Number(s): 2018/170368 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 refusal of Development Application No. 0418/17 for alterations and additions including a first floor addition to a heritage item at 29 Marian Street, Killara (the site) by Ku-ring-gai Council (the Council). 2. The appeal was subject to conciliation on 3 December 2018, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation phase, the conciliation conference was terminated and proceeded forthwith to hearing on 3-4 December 2018, pursuant to s 34(4)(b)(i) of the LEC Act. The parties consented to the admission of evidence given during the conciliation conference in the hearing, pursuant to s 34(12) LEC Act.