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[2006] NSWLEC 522
Land and Environment Court (NSW)
2006-04-26
Preston CJ
Original judgment source is linked above.
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Pyramid Pacific Pty Limited
Ku-ring-gai Council
CITATION : Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 522
ACM Landmark Pty Limited v Cessnock City Council [2006] NSWLEC 256 (26 April 2006); Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006); New Century Developments v Baulkham Hills Shire Council [2003] NSWLEC 154 (30 July 2003); CASES CITED: Port Securities Pty Ltd v Wollongong City Council (2006) 145 LGERA 285; Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 220 (3 May 2006); Raiti v Leichhardt Municipal Council (1990) 72 LGRA 333; Vigor Master Pty Ltd v Warringah Council [2006] NSWLEC 140 (29 March 2006)
1 HIS HONOUR: The applicant, Pyramid Pacific Pty Limited, has been successful in concluded Class 1 proceedings being an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the refusal by the respondent, Ku-ring-gai Council ("the Council"), of the applicant's development application for the demolition of all improvements and the construction of a residential flat building at 8-12 Nola Road, Roseville. 2 Commissioner Tuor determined to uphold the appeal and grant development consent for the development: Pyramid Pacific Pty Limited v Ku-ring-gai Council [2006] NSWLEC 220 (3 May 2006). 3 The applicant, by notice of motion filed 24 May 2006, sought an order that the Council pay the applicant's costs of the proceedings. 4 Section 69(2) of the Land and Environment Court Act 1979 provides that, subject to the Rules, costs are in the discretion of the Court and the Court may determine by whom and to what extent costs are to be paid. 5 Part 16 Rule 4 of the Land and Environment Court Rules 1996 provides that in certain proceedings in Class 1, including an appeal under s 97 of the EPA Act, no order for the payment of costs will be made unless the Court considers that the making of a costs order is, in the circumstances of a particular case, fair and reasonable. 6 Many of the circumstances where courts have considered that it would be fair and reasonable to make an order for costs in Class 1 proceedings were summarised in Grant v Kiama Municipal Council [2006] NSWLEC 70 (22 February 2006) at [15]. The proposed development 7 The development was proposed to be carried out on three residential allotments, 8, 10 and 12 Nola Road. Each lot was currently developed with a detached dwelling and associated structures in an established landscape setting with mature trees and shrubs. 8 The surrounding area contained a number of blue gums and was characterised by buildings in landscaped settings with an upper storey of large canopy trees. 9 The development proposed the demolition of each of the improvements on each of the lots and the construction of a five storey residential flat building of 32 units, configured in three staggered and connected pavilions. Consideration by the Council 10 The development application was lodged on 14 December 2005. The Council notified the application to adjoining residents and received 58 submissions. It was referred to the Council's consultant urban designer, Mr Russell Olssen, to consider the development's compliance with State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development ("SEPP 65"). Mr Olssen supported the proposal. The Council considered reports of its officers on 28 June 2005 and 2 August 2005, which reports recommended the grant of approval to the application. Initially, the Council approved the application but that resolution was subsequently the subject of a rescission motion. Ultimately, the Council refused the development application on 23 August 2005. Appeal to the Court 11 The applicant lodged a Class 1 appeal on 19 September 2005 against the Council's refusal of the application. On 14 October 2005, the Council filed a statement of issues. That statement raised the following issues:
(2006) 145 LGERA 285
(1991) 21 NSWLR 725
(1979) 144 CLR 253