Random Primer Pty Ltd v Ku-ring-gai Council (No 2)

File Number(s): 2024/100039

Publication restriction: Nil

Judgment

1. COMMISSIONER: In a judgment given on 15 April 2025, Random Primer Pty Ltd v Ku-ring-gai Council [2025] NSWLEC 1236, I gave a decision on an appeal concerning a development application for a residential flat building containing 8 dwellings at 186 Pacific Highway, Roseville.

2. In that decision, I acknowledged that Ku-ring-gai Council (the Council) no longer raised any contention that it said would warrant refusal of the development application, and I set out the manner in which each of the contentions raised by the Council had been resolved. I found that none of the concerns raised by the objectors warranted refusal of the development application. I therefore determined that development consent should be granted, subject to appropriate conditions of consent.

3. In relation to the conditions of consent, there were three areas of disagreement between the parties that I was required to determine.

4. Firstly, at [86]-[105] of my decision, I determined that a condition requiring the registration of an easement over the widened driveway in favour of the adjoining neighbour (easement condition) was not appropriate to be imposed. I instead favoured a condition that I identified as being the more detailed of the two conditions suggested by the applicant. However, I was under a misapprehension in that respect, and the more detailed condition was, in fact, suggested by the Council as that which I should impose if I was against the Council concerning the easement condition. Nevertheless, this mistake as to who offered the condition does not alter my finding that the more detailed condition concerning access is the appropriate condition to be imposed.

5. Secondly, at [106]-[109] of my decision, I found that operational conditions concerning the maintenance of the stormwater pipe and pit within the drainage easement are appropriate, rather than the creation of a positive covenant. As the parties had not provided an operational condition as an alternative to the condition requiring the creation of a positive covenant, I considered it appropriate to make a direction for that to be provided, and was clear on its terms.

6. Thirdly, at [110]-[114] of the decision, I found that the condition of consent requiring the building information certificate should be deleted.

7. The proceedings were adjourned to today’s date so that I could make final orders granting development consent, with a direction for the parties to provide agreed conditions of consent that reflect my findings, by 24 April 2025. Due to the Easter period and the error in my judgment concerning who offered the more detailed alternative condition to the easement condition, those conditions were provided only today.

8. The parties agree that the conditions of consent that were filed today reflect the findings that I made on 15 April 2025. I am satisfied that development consent can now be granted, subject to the conditions of consent that were filed today.

9. The Court orders that:

10. The appeal is upheld.

11. The development application DA0466/22 for the demolition of the existing structures, construction of a residential flat building with 8 units, basement parking, landscaping and associated works at 186 Pacific Highway, Roseville, is determined by the grant of consent subject to the conditions in Annexure A.

J Gray

Commissioner of the Court

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100039.24 Annexure A