Arkirbuilt Pty Limited v Ku-Ring-Gai Council

[2006] NSWLEC 211

Land and Environment Court

of New South Wales

CITATION:	Arkirbuilt Pty Limited v Ku-Ring-Gai Council [2006] NSWLEC 211
PARTIES:	APPLICANT Arkibuilt Pty Limited RESPONDENT Ku-Ring-Gai Council
FILE NUMBER(S):	10611 of 2005
CORAM:	Jagot J - Watts C
KEY ISSUES:	Appeal :- Application to modify development consent granted by the Court
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 79C, s 96(1A), s 96(6) Ku-ring-gai Local Environmental Plan 194 State Environmental Planning Policy No 53 – Metropolitan Residential Development
DATES OF HEARING:	10/04/2006
EX TEMPORE JUDGMENT DATE:	04/10/2006
LEGAL REPRESENTATIVES:	APPLICANT P Tomasetti and J Johnson SOLICITORS Nil RESPONDENT A Pickles SOLICITORS Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

10 April 2006

10611 of 2005

ARKIBUILT PTY LIMITED
Applicant

KU-RING-GAI COUNCIL
Respondent

JUDGMENT

Jagot J:
Introduction

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 (the “EPA Act”), which the parties seek to resolve by consent.

2 On 23 December 2005, the Court granted consent to DA 282/05 to demolish all improvements and to erect a multi-unit housing development at No’s 2-8 Milray Street and No 10 Havilah Lane, Lindfield. It is this consent that the applicant seeks to modify.

3 On 20 February 2006, the applicant lodged with the Council a modification application under s 96AA of the EPA Act to modify the staging of this consent. However, on 14 March 2006, the applicant withdrew this modification application.

4 On 14 March 2006, the applicant lodged with the Court a modification application under s 96(1A) of the EPA Act. The Council notified the residents who made submissions to the original development application of this modification application. Relevantly, for current purposes, two letters of objection were sent to the Council in response, being the letters contained in Exhibit 3 in these proceedings.

5 The approved multi-unit housing development is to be located on Lot A, DP 373411, being No. 2 Milray Street, Lindfield; Lot B, DP 373411, being No. 2A Milray Street, Lindfield, Lots 13 & 14, DP 232, being No’s. 4-6 Milray Street, Lindfield; Lot 1, DP 706035, being No. 8 Milray Street, Lindfield, and Lot 2, DP 706035, being No. 10 Havilah Lane, Lindfield (the “land”).

6 The land is situated on the southeastern side of Milray Street and is rectangular in shape. It has an area of 6,672m2. It is located on the eastern side of the Pacific Highway/Railway corridor and abuts the Lindfield Commercial Precinct. The land has three frontages. One of the frontages is to Milray Street of 90.71 metres, the other to Havilah Lane of 91.72 metres and the third to Kochia Lane of 73.15 metres. The land is gently sloping with a fall of about 4 metres from the western boundary with Havilah Lane, through to the eastern boundary with Milray Street. Both Kochia Lane and Havilah Lane are service roads. Kochia Lane is a narrow driveway providing vehicular access to a large public car park.

7 The land abuts No 10 Milray Street to the northwest, occupied by a single dwelling house. To the north are single detached dwellings. Milray Street is suburban in character with single-storey and two-storey dwellings, with large landscaped setbacks to the street. To the southwest of the land is land zoned for business use, however, this is also identified as one of the Minister's sites under Pt 4 of State Environmental Planning Policy No 53 – Metropolitan Residential Development (“SEPP 53”) – that is, as suitable for a mixed retail/commercial and multi-unit housing). The Lindfield Railway Station is located within 400m, to the southwest.

8 Under the provisions of the Ku-ring-gai Local Environmental Plan 194, gazetted on 28 May 2004 (which amended the Ku-ring-gai Planning Scheme Ordinance) the land is zoned Residential 2(d3). The proposal is permissible with consent on the land. The land is not located within a gazetted Urban Conservation Area.

9 The applicant seeks to modify the original consent as follows:

• The staging of development, comprising:
  Stage 1: Demolition of all existing structures located upon 2, 2A and 6 Milray Street, Lindfield (being Lots A & B in DP 373411 and Lots 13 & 14 in DP 232 respectively), [and] consolidation of 2, 2A and 6 Milray Street, Lindfield into a single allotment.
  Stage 2: Construction of all works associated with Buildings A, B and C.
  Stage 3: Creation of Lots A and B as per the approved subdivision.
  Stage 4: Construction of all works associated with Buildings D, E and F.
• The amendment of conditions of consent in association with the proposed staging of development:
  Stage 1: No changes sought.
  Stage 2: The submission of documentary evidence that the consolidation of lots known as 2, 2A and 6 Milray Street, Lindfield, has occurred prior to issue of the Construction Certificate for Buildings A, B and C. This seeks to amend Condition 77, which requires the creation of the approved subdivision prior to issue of any Construction Certificate for the development as a whole.
  Stage 3: A new condition is proposed by the applicant requiring the submission of documentary evidence that the registration of the linen plan, creating Lots A and B, occur prior to the release of the Occupation Certificate for Buildings A, B and C.
  Stage 4: A new condition is proposed by the applicant requiring the submission of documentary evidence that the registration of the linen plan, creating Lots A and B, occur prior to the release of the Construction Certificate for Buildings D, E and F.
• The grouping of the conditions of consent into conditions of consent for each stage.
  The deletion of conditions 66, 77 and 83 of the current conditions of consent.

Section 96(1A) of the EPA Act

10 Section 96(1A) of the EPA Act provides that:

(1A) Modifications involving minimal environmental impact
A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the proposed modification is of minimal environmental impact, and
(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) it has notified the application in accordance with:
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1), (2) and (5) do not apply to such a modification.

Position of the parties

11 The Council filed and served a statement of issues in the proceedings that raised six issues of concern. On site this morning, the Council and the applicant advised that the issues had been resolved, subject to agreeing the terms of the various conditions requiring amendment.

12 Mr Pickles (who appears for the Council) advised that issue one, said to be a legal issue, was not pressed by the Council.

13 Issue two raised a concern that each of the owners of the land had not given owners’ consent to the modification application. Mr Pickles advised that all owners’ consents for the modification application had now been provided.

14 Issue three contended that the proposed modification would result in development not substantially the same as the development for which the consent was originally granted - primarily because, according to the statement of issues, building works associated with buildings D, E and F may not proceed. A related concern was the impact of the construction of buildings A, B and C on the remaining occupied dwellings, and the variation to the landscaping works which would result if part only of the development was completed. The parties today advised that they have agreed conditions which, in their view, will enable the development to proceed in stages as proposed, but nevertheless ensure that the buildings and the land are developed in an orderly and economic manner.

15 Issue four has not been expressly referred to by the parties, but is a re-statement of issue 3. Issues 5 and 6 are also sub-issues of issue 3.

16 Mr Pickles submitted that the Council is satisfied that, subject to the conditions that have been agreed being imposed, the Council’s issues of concern have been effectively resolved. On this basis, buildings A, B and C can be appropriately constructed. Prior to an occupation certificate being issued enabling the occupation of buildings A, B and C, the land comprised within proposed lot A would be consolidated, and proposed lots A and B would be created via subdivision. Buildings A, B and C would be located on proposed lot A. That would leave lot B, as initially intended in the application, ready for the construction of buildings D, E and F.

17 In other words, fundamental to the Council’s satisfaction that the modification application is suitable for approval, is that buildings A, B and C will not be able to be occupied until the land within proposed lot A has been consolidated, and the subdivision between lot A and lot B has occurred.

18 Mr Pickles submitted that if conditions to this effect had not been agreed between the parties, then the result might have been that 8-10 Milray Street would remain a smaller area of land than proposed in the original subdivision. This is because there is a strip of land currently belonging to proposed lot A, which is proposed as part of the overall arrangement of the land to be transferred from what is now 2-6 Milray Street (that is, proposed lot A), to 8-10 Milray Street (that is, proposed lot B). But for the agreed conditions, the 8-10 Milray Street land would have been smaller than originally intended and yet apparently still potentially capable of development for multi-unit housing – a position that the Council saw as inappropriate.

19 Conditions also have been agreed relating, in particular, to the staging of landscaping. In effect, all landscaping for lot A will have to be completed before buildings A, B and C may be occupied, and the whole of the landscaping will need to be completed before buildings D, E and F may be occupied.

20 The conditions otherwise agreed between the parties provide for: - (i) the deletion of condition 66 relating to insurance (which is agreed between the parties to be inapplicable); (ii) the merger of condition 67 with condition 83; (iii) the amendment of condition 69 relating to s 94 contributions - so that the contributions are paid in two stages, stage one being prior to the issue of a construction certificate for buildings A, B and C and stage two being prior to the issue of the construction certificate for buildings D, E and F; (iv) the amendment of conditions 74 and 75 relating to landscaping to achieve the objectives to which I have already referred; (v) a minor amendment to condition 76, which the parties agree reflects the intention of the Commissioners who decided the original appeal to the Court; (vi) importantly, the deletion of condition 77 which required the consolidation and re-subdivision of the whole of the land prior to any development taking place on the land. That condition is now proposed to be deleted because it is superfluous, having regard to the staging conditions; (vii) the deletion of condition 83 which, as noted, has been merged with condition 67, and (viii) otherwise consequential amendments which appear through conditions 87 to 93E.

Conclusions

21 Under s 96(1A), I must be satisfied that the proposed modification is of minimal environmental impact. In this regard I have taken into account two letters of objection, the first from Lisa Robertson of 3 Havilah Road dated 5 April 2006 and the second from Ian Cairns of 12 Milray Street, which is undated.

22 Ms Robertson makes the following points relating to the impact said to occur from the modification:- (i) it would be more efficient for all development to occur in one continuous program as was apparently the case with a development in the nearby vicinity known as the Mirvac development, (ii) depending upon the economic circumstances, the development in stage two, that is buildings D, E and F, may not be completed or at least will be significantly delayed and that would leave “an unsightly hole in the ground for an extended period of time”, and (iii) the staging would dramatically increase the length of time that construction vehicles, noise and dust in the commercial centre of Lindfield would occur, which would affect people in the area. Ms Robertson says in her letter that, in her opinion, the Council should be pushing the developers to sort out their financing so that the developer can build the project in one phase and that, if the development all depends on the staging, it raises significant questions whether the development will ultimately be completed.

23 Mr Cairns objects to the proposed staging on the basis that:- (i) it would extend the period of construction significantly, (ii) purchasers of units in buildings A, B and C will be significantly inconvenienced during constructions of buildings D, E and F, a consequence that would be avoided if construction were to proceed as already approved, (iii) if approval for the proposed lot A and B subdivision were sought initially, it is very probable that the application would have been rejected, and (iv) the variations sought by the applicant seems designed to thwart the normal approval process and, if successful, could set an undesirable precedent for other development applications.

24 Other letters were apparently forwarded to the Council objecting to the development from the owners of several of the lots of land to which the development application relates. However, there has been tendered in evidence (in exhibit 4) more recent letters from the owners of 8 Milray Street, 2A Milray Street, 2 Milray Street and 10 Havilah Lane consenting to the modification application.

25 I have considered the objections set out in the two letters of objection to which I have referred. I am satisfied that what is proposed is staging of the construction of the development in order to ensure that the development can proceed in an orderly and economic manner. No change to the substance of the development is proposed, merely a change that would enable construction of the development to proceed in stages. Staged construction is commonplace.

26 In my opinion, the proposed modification is of minimal environmental impact. No change to the development is proposed, other than the alteration of various conditions of the development consent so as to facilitate its construction in an orderly fashion. For these reasons, I consider that s 96(1A)(a) of the EPA Act is satisfied.

27 Similarly, in circumstances where what is proposed is a re-arrangement and alteration of conditions so as to facilitate construction of the development proceeding in stages (but no other change to the physical form of the development), I am also satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before it was modified, if at all. That is, I am satisfied in terms of s 96(1A)(b) of the EPA Act.

28 With respect to s 96(1A)(c), the Council has notified the application. The two letters of objection to which I have referred responded to that notification. Pursuant to s 96(1A)(d), I have considered the submissions made concerning the proposed modification application. For the reasons I have given, I do not consider that they weigh in the balance so as to require refusal of the modification application. The conditions that have been agreed between the parties, in my opinion, provide for an appropriate and reasonable manner of carrying out the construction of this development.

29 I am also satisfied that no other matters arise, insofar as relevant, under s 79C of the EPA Act which would materially affect the conclusion I have reached – namely, that it is appropriate that the development consent be modified by enabling the construction of the development to be staged as proposed, subject to the imposition of the agreed conditions as set out in exhibit 2.

30 For these reasons, I make the following orders:

(1) The appeal is upheld.

(2) The application lodged on 14 March 2006 to modify development consent DA 282/05 for the demolition of all existing structures and the erection of a multi-unit housing development at 2-8 Milray Street and 10 Havilah Lane, Lindfield granted 23 December 2005 is approved, subject to the conditions in annexure “A”.

(3) The exhibits are returned.

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