Artz 2 Design Pty Limited v Ku Ring Gai Council
[2015] NSWLEC 1380
•17 August 2015
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Artz 2 Design Pty Limited v Ku Ring Gai Council [2015] NSWLEC 1380 Hearing dates: 17 August 2015 Date of orders: 17 August 2015 Decision date: 17 August 2015 Jurisdiction: Class 1 Before: Dixon C Decision: (1) The appeal is upheld.
(2) Development consent is granted to development application number 0184/14 in respect of the property 7 Wonga Wonga Street, Turramurra, for the demolition of the existing dwelling house and the construction of six townhouses with basement parking subject to the conditions annexed and marked A;
(3) The applicant is to pay the Council's s97(b) costs associated with the amended plans as agreed or assessed, and;
(4) The exhibits are returned, apart from Exhibits A, B and C.Catchwords: APPEAL –– Consent Orders - Development application for the construction of a town house development with basement car parking. Legislation Cited: Environmental Planning and Assessment Act 1979
Ku -ring -gai Local Environmental Plan (Local Centre) 2012Category: Principal judgment Parties: Artz 2 Design Pty Limited (Applicant)
Ku Ring Gai Council (Respondent)Representation: Counsel:
Solicitors:
Joerg Paul Henry Schmidt-Liermann (Applicant)
Michael Astill (Respondent)
Schmidt-Liermann Pty Ltd (Applicant)
Norton Rose Fulbright Australia (Respondent)
File Number(s): 10959 of 2014
EXTEMPORE JUDGMENT
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This is an appeal pursuant to s97 (1) of the Environmental Planning and Assessment Act 1979.
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The applicant, Artz 2 Pty Limited, seeks the Court’s approval to demolish an existing dwelling, tennis court and pool to allow the construction of a townhouse development comprising 6 dwellings with basement car parking at 7 Wonga Wonga Street, Turramurra (the site).
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The development proposal is detailed in the amended plans marked Exhibits A, B and C (the amended plans).
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The Council’s Further Amended Statement of Facts and Contentions (Exhibit 3) describes the site; the relevant statutory controls, and the original contentions. I note the following.
The Site /Locality/permissibility
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The site is a square shaped allotment located on the southern side of Wonga Wonga Street, Turramurra. It has a northern frontage to Wonga Wonga Street and benefits from a right of carriageway burdening no 5 Wonga Wonga Street –which is owned by Mr and Mrs White who object to the application.
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The property is located within a corridor of sites zoned R3 Medium Density Residential under the Ku -ring -gai Local Environmental Plan (Local Centre) 2012 (LEP) and has an interface with the R2 Low Density Residential zone to the east at no 9 Wonga Wonga Street and on the opposite side of the street.
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The R4 High Density Residential zone commences at the western end of the street at 1 Wonga Wonga Street.
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Relevantly, the development proposal is permissible with consent under the Council’s LEP.
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The area is in a state of transition from older style large homes with gardens to higher density development. To the immediate east at 9 Wonga Wonga Street is a seniors’ living development containing 10 self-care apartments currently under construction.
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The application DA0184/14 was lodged with the Council on 28 May 2014 and since that time has been substantially amended.
The Contentions are resolved by consent orders
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At the commencement of the hearing, the Council’s advocate, Mr Astill, informed me that he was instructed to enter into consent orders approving of the development subject to the imposition of the agreed conditions of consent. The Council’s decision to support the amended proposal is founded upon the expert assessments of its senior town planner Mr McInnes; landscape architect Mr Beavan, and consultant urban designer, Ms Morrish and the applicant’s planner Mr Boston.
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Collectively, the experts believe the Council’s concerns in respect of the building’s front setback and roof profile, proposed deep soil planting, landscaping; and the basement design are satisfactorily dealt with by the amended application and the proposed agreed conditions of consent.
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The proposed consent orders and agreed draft conditions are in (Exhibit 4).
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Notwithstanding the agreed position of the parties, I am required to be satisfied that it is appropriate to make the orders requested by them. In considering the consent orders, the court's practice note class 1 development appeals provides that I must consider any submissions made by an objector to the consent orders.
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In this case, the Council notified the proposed consent orders and agreed draft conditions to relevant objectors by email on 14 August 2015. This happened to be the last working day before the scheduled hearing on Monday 17 August.
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The amended plans, the subject of the orders, were only created on 31 July 2015 and accepted by the parties’ planning experts at a joint conference on 5 August 2012. They are the subject of the planners’ joint report (Exhibit 2).
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According to Mr McInnes, who is the Council’s Executive Assessment Officer, the Council’s policy did not require the notification of the most recent amendments because they improved impacts. Despite that, in this case the Council instructed its solicitor to provide the amended plans to the objectors; in particular, Mr and Mrs White. It did so by email on 6 August and provided a larger copy by courier to their home on 12 August. As already noted the Whites reside behind the development site on a battle axe block at 5a Wonga Wonga Road and a part of their driveway affords access to the applicant’s land.
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The Whites initially engaged a solicitor, Mr PJ Ellis for the purpose of lodging two written submissions opposing the development. The first submission was dated 3 July 2014 and related to the original plans. The second submission was dated 24 June 2014 and related to the subsequent design. The Whites’ submissions are before the Court and have been read (Exhibit 1). Since the date of those submissions they have also liaised directly with the Council and its solicitor in respect of the development of the applicant‘s land.
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Relevantly, Mr and Mrs White were also involved in the s 34 conciliation conference which I facilitated between the parties in respect of the original design. With the consent of the applicant Mr White (together with other objectors) addressed the conference at the onsite meeting and explained their particular concerns. The plans prepared after the conference were responsive to those concerns and as a result the additional townhouse which the Whites complained of was removed from the design. This redesign of the development together with some other changes to setback and landscaping largely resolved the objectors’ concerns.
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This morning in response to the Council’s invitation Mr and Mrs White attended the consent orders hearing which commenced onsite. At that time Mr White said that he had not had sufficient opportunity to review the latest amended plans or the proposed conditions of consent, which he received in final form by email on Friday 14 August (although he has been provided with an A4 copy of those plans, as I said, on 6 August and a larger copy by courier on the 12th August. Despite that complaint Mr White did give evidence on site about the proposed use of the driveway, which is also the access to the development by a right of way over his land. He said the applicant’s proposed use of the driveway during construction is dangerous; and is likely to cause dust and other adverse impacts for his property. Mrs White, who also attended the consent orders hearing, endorsed the evidence of her husband. She did not wish to say anything further.
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Obviously, the Court is concerned to afford each objector, and, for that matter, each party of procedural fairness which includes an opportunity to be heard. In this case Mr McInnes is of the opinion that the concerns raised by Mr and Mrs White _ within their written and oral evidence – are satisfactorily addressed by the amended plans arising out of the s 34 conference. And, that the most recent minor changes to the plans only improve impacts for their amenity. In short, the experts agree that there is no reasonable planning concern raised by the Whites’ evidence, or any other objector, which could reasonable preclude the issue of development approval in this case.
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On that basis I am satisfied that procedural fairness has been afforded to all relevant objectors, including Mr and Mrs White. I am also satisfied on the evidence - having inspected the site and considered the planning controls - that the Whites’ objections to the amended application have been considered and satisfactorily addressed by the amended application.
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Accordingly, I have decided to uphold the appeal and approve the development in accordance with the consent orders proposed by the parties in Exhibit 4.
Court Orders
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Accordingly, the Court orders that:
The appeal is upheld.
Development consent is granted to development application number 0184/14 in respect of the property 7 Wonga Wonga Street, Turramurra, for the demolition of the existing dwelling house and the construction of six townhouses with basement parking subject to the conditions annexed and marked A;
The applicant is to pay the Council's s97(b) costs associated with the amended plans as agreed or assessed, and;
The exhibits are returned, apart from Exhibits A, B and C.
Susan Dixon
Commissioner
10959 of 2014 Dixon (C) (159 KB, pdf)
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Amendments
18 September 2015 - Typographical changes
Decision last updated: 18 September 2015
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