Abby's Real Estate Pty Limited v Ku-ring-gai Council

[2010] NSWLEC 1208

Land and Environment Court

of New South Wales

CITATION:

Abby’s Real Estate Pty Limited v Ku-ring-gai Council [2010] NSWLEC 1208

PARTIES:

APPLICANT
Abby’s Real Estate Pty Limited

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

10922-24 of 2009, 10188-90 of 2010, 10336 of 2010, 10338-39 of 2010, 10359 of 2010, 10488 of 2010

CORAM:

Murrell C

KEY ISSUES:

CONSENT ORDERS :- s.96 modifications; s.149 Building Certificates; subdivision certificates and s.121 Orders, streetscape and landscaping.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

20 May 2010 and 28 June 2010

EX TEMPORE JUDGMENT DATE:

28 June 2010

LEGAL REPRESENTATIVES:

APPLICANT
Ms H Irish (barrister)
SOLICITOR
M E McMahon & Associates

RESPONDENT
Mr T Howard (barrister)
SOLICITOR
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

28 June 2010

10922-24 of 2009 Abby’s Real Estate Pty Limited v
10188-90 of 2010 Ku-ring-gai Council
10336 of 2010
10338-39 of 2010
10359 of 2010
10488 of 2010

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 COMMISSIONER: Following an adjournment to allow for plan amendments and further details, these appeals have come back before the Court today and the parties have now handed up consent orders in respect of the various eleven appeals. The appeals are: s 96 applications; appeals under 121 orders; and appeals for issuing building certificates and subdivision certificates.

2 By way of background, the subject property is known as numbers 23-25 Stanley Street, St Ives. The configuration of the land is such that the five dwellings constructed on the land are to be subdivided such that each house would then sit on its own allotment of land.

3 Construction certificates were issued for the two rear houses, known as dwellings A and B. The dwellings fronting Stanley Street, C, D and E are all detached however they were constructed or erected without construction certificates.

4 Apart from the applicant failing to obtain construction certificates for three of the five dwellings, as I understand it there were also deferred commencement conditions which were not satisfied prior to the erection of three dwellings as well as the fact that construction certificates had not been obtained.

5 The proceedings commenced on site on 20 May 2010 and on that occasion the Court with the assistance of the council officers, had the opportunity to observe what was existing on the subject site and there was clearly a need for current surveys to understand precisely the levels of the landscaping and the retaining walls that had been built. The council's officers that provided assistance to the Court are Ms Rebecca Eveleigh, Mr Bird and Mr Parisienne. Mr Ian Glendinning

6 The Court noted that the front fences served as large retaining walls for the retention of fill behind the retaining walls which exceeded the levels proposed in the plans, as originally submitted and approved by the council. At the time of inspection I noted the construction of these retaining walls was imposing on the streetscape of Stanley Street.

7 It was also noted on site that there were trees where fill had been placed against them which in itself not only jeopardised the health and survival of those trees but further investigative works has revealed that significant tree roots have been severed so that the longevity or survival of those trees is such that unfortunately they now require removal.

8 Subsequent to the Court meeting with the parties on site and then returning to the Court where evidence was given and various undertakings made by the applicant. These have now been translated into amended plans with the assistance of further survey material and with the assistance of the council officers. There has now been agreement reached as to how this development can be rectified to provide for a reasonable outcome.

9 The Court notes that these are not punitive proceedings and that there are class 5 proceedings with respect to those matters. Therefore, it is a matter of the merits of the applications that I must address. For the record I note that the council experts have provided assistance in resolving the issues and their cooperation is recognised in these proceedings.

10 Today the Court has the opportunity of hearing from Ms Eveleigh and Mr Glendinning on the amended plans and in terms of the final outcome of the proposal for landscaping and the front fence presentation. Exhibit N and exhibit 12 represent council's comments on same in terms of the levels of the retaining walls and the relationship to the streetscape.

11 With the benefit of council’s experts I have formed the view that there is no reason as to why the consent orders as now agreed to between the parties with the rectification works now proposed, should not be entered into.

12 Accordingly the following orders by consent of the parties for the various appeals are:

Appeal No. 10488 of 2010

1 The appeal in proceedings 10488 of 2010 is upheld.

2 The respondent Council’s Order dated 20 May 2010 is modified to the following effect:

a. The Applicant is to do such things as are specified in the Landscape Plan prepared by iScape Landscape Architecture dated June 2010 52.10/133’A’, as annotated in Exhibit N in these proceedings and in the Details Plan prepared by iScape Landscape Architecture dated June 2010 52.10/134’A’ as annotated in Exhibit 14 in these proceedings.

b. Order 2.a. shall be complied with by 17 September 2010.

3 Exhibits N and 14 are to be retained on the Court file.

Appeal No. 10922-4 of 2009
1 The appeals in proceedings Nos. 10922-4 of 2009 are upheld.

2 The respondent Council is directed to issue, by 5 July 2010:

i. in proceedings No. 10922 of 2009, a building certificate for the whole of the building comprising Dwelling C on what is now Lot 101 in DP 1137696 forming part of 23-25 Stanley Street, St Ives;
ii. in proceedings No. 10923 of 2009, a building certificate for the whole of the building comprising Dwelling E on what is now Lot 102 in DP 1137696 forming part of 23-25 Stanley Street, St Ives;
iii. proceedings No. 10924 of 2009, a building certificate for the whole of the building comprising Dwelling D on what is now Lot 102 in DP 1137696 forming part of 23-25 Stanley Street, St Ives.

Appeal Nos. 10336 and 10338-9 of 2010
1 The appeals in proceedings Nos. 10336 and 10338-9 of 2010 are upheld.
2 In proceedings No. 10336 of 2010, Condition 5 of development consent DA 0690/05 is modified to the following effect:
The subdivision certificate must not be issued until a final occupation certificate as described in s 109H(1)(b) of the Environmental Planning and Assessment Act 1979 has been issued for Dwelling A and a building certificate has been issued for the whole of the building comprising Dwelling C.
3 In proceedings No. 10338 of 2010, Condition 5 of development consent DA 0692/05 is modified to the following effect:
The Subdivision Certificate shall not be issued a final occupation certificate as described in s 109H(1)(b) of the Environmental Planning and Assessment Act 1979 has been issued for Dwelling B and a building certificate has been issued for the whole of the building comprising Dwelling D.
4 In proceedings No. 10339 of 2010, Condition 5 of development consent DA 0694/05 is modified to the following effect:
The subdivision certificate must not be issued until building certificates have been issued for the whole of the building comprising Dwelling D and the whole of the building comprising Dwelling E.
NOTE: The Court notes that final occupation certificates as described in s 109H(1)(b) of the Environmental Planning and Assessment Act 1979 were issued for Dwelling A and Dwelling B on 25 August 2009.

Appeal Nos. 10188-9 of 2010
1 The appeals in proceedings Nos. 10188-90 of 2010 are upheld.
2 The respondent Council is directed to issue, within 3 days of compliance with Order 3:
i. in proceedings No. 10188 of 2010, a subdivision certificate authorising the registration of plans of Torrens title subdivision of detached dual occupancy dwellings A and C at 23-25 Stanley Street, St Ives;
ii. in proceedings No. 10189 of 2010, a subdivision certificate authorising the registration of plans of Torrens title subdivision of detached dual occupancy dwellings B and D at 23-25 Stanley Street, St Ives;
iii. in proceedings No. 10190 of 2010, a subdivision certificate authorising the registration of plans of Torrens title subdivision of detached dual occupancy dwellings D and E at 23-25 Stanley Street, St Ives.
3 The Applicant is to carry out the work the subject of Order 2 in proceedings No. 10488 of 2010 to the reasonable satisfaction of Mr Guy Paroissien, Arboriculturalist, upon Mr Paroissien's review of the completed work and a survey certificate from Mepstead & Associates, surveyors, regarding the relevant levels of such work. Mr Paroissien is directed to advise both parties in writing as to the state of his satisfaction within 14 days of receipt of the survey certificate.
4 Liberty to each party to restore on 48 hours' written notice if there is any dispute requiring the assistance of the Court in relation to these orders.

Appeal No. 10359 of 2010

1. The appeal in proceedings No. 10359 of 2010 is dismissed.

2. The applicant is to pay the respondent Council the sum of $7,000 costs, by 19 July 2010.

13 I note council's assistance in these difficult matters and, as I said, many of the public interest matters are not ones for me to comment on in these proceedings. In these proceedings the purpose has been to ensure that there is an appropriate built outcome as far as possible and I think that the council has more than gone out of its way to achieve same in the spirit of cooperation.

___________________

J S Murrell
Commissioner of the Court
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