Ascot Project Management Pty Ltd v Ku-ring-gai Council

[2017] NSWLEC 1491

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ascot Project Management Pty Ltd v Ku-ring-gai Council [2017] NSWLEC 1491
Hearing dates:	5 September 2017
Date of orders:	06 September 2017
Decision date:	06 September 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1. The appeal is upheld. 2. Development Application No. 0504/16 for seven townhouses over basement parking at 6, 6A and 8 Maclaurin Parade, Roseville is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibit A, are returned.
Catchwords:	DEVELOPMENT APPLICATION: orders by consent; townhouse development; exceedance of the floor space ratio development standard; whether reasonable offers have been made to the owners of adjoining isolated sites.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Karavellas v Sutherland Shire Council [2004] NSWLEC 251
Category:	Principal judgment
Parties:	Ascot Project Management Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: Mr N. Eastman barrister (Applicant) Ms C. Morton solicitor (Respondent)   Solicitors: Mills Oakley Lawyers (Applicant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2017/16134

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0504/16 for the demolition of existing structures and construction of seven townhouses over basement parking and landscaping (the proposal) at 6, 6A and 8 Maclaurin Parade, Roseville (the site) by Ku-ring-gai Council (the Council).

2. The appeal was subject to mandatory conciliation on 11 May 2017, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated on 22 May 2017, pursuant to s 34(4) of the LEC Act.

3. Leave was granted by the Court on 21 July 2017 for the applicant to rely on an amended proposal, which included the deletion of one townhouse, and leave was granted by the Court on 4 September 2017 for the applicant to rely on a further amended proposal (exhibit A). On the basis of the amendments made to the original proposal, the parties agreed to apply for final orders by consent.

The site and its context

4. The site is on the southern side of Maclaurin Parade, to the east of the corner of Nola Road. The site slopes from the north-eastern corner at Maclaurin Parade to the south-western corner of Nola Road. The site has an area of 1434.5sqm and is irregular in shape, with a frontage to Maclaurin Parade of 40.72m Nola Road of 17.655m.

Planning framework

5. The site is zoned R4 High Density Residential pursuant to Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP 2012) and the proposal is permissible with consent. The objectives of the R4 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a high density residential environment.

• To provide a variety of housing types within a high density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for high density residential housing close to public transport, services and employment opportunities.

6. The floor space ratio (FSR) development standard for the site is 0.8:1 pursuant to cl 4.4(2E) of LEP 2012, as the site is identified as being within “Area 5” on the FSR Map (FSR Map 15C of LEP 2012) and the site area is less than 1800sqm.

7. The relevant terms of cl 4.6 of LEP 2012, Exceptions to development standards, are as follows:

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out

8. The provisions of Part 3B Land Consolidation of Ku-ring-gai Local Centres Development Control Plan (Local Centres DCP) are a relevant consideration in the appeal.

Public submissions

9. Three resident objectors provided evidence at the commencement of the hearing on site. Their concerns regarding the proposal can be summarised as:

• Unit 7 should be deleted because it is at odds with the style of the other townhouses and sits awkwardly on the site. It results in amenity impacts on 8 Nola Road and should be replaced with open space.

• The proposal results in isolated properties at 4A and 10 Maclaurin Parade. The applicant’s offer to purchase an adjoining property to amalgamate with the site was too low.

• Condition 47 ‘Road reserve safety’ does not ensure safe pedestrian footways.

10. Ms Morton has undertaken to provide a written response to an objector who raised concerns regarding the parties’ lack of regard to certain planning instruments, as those planning instruments are in fact not applicable to the application.

11. I accept the Council’s submission that the deletion of Unit 8 has provided a vastly superior urban design outcome of the site and the lesser yield, coupled with increased setbacks, has resolved the contentions raised by the Council in the Statement of Facts and Contentions (exhibit 1).

12. I accept the Council’s submission that footpath access in Nola Road will be maintained during construction as condition 47 requires that all public footways and roadways fronting and adjacent to the site are maintained in a safe condition at all times during the course of the development works.

Expert evidence

13. The Council relied on the expert planning evidence of Mr Jonathon Goodwill and the applicant relied on the expert planning evidence of Mr Andrew Minto. The experts prepared a joint report (exhibit 2) and were not required to give evidence in court.

Consideration

Exceedance of the FSR development standard

14. The proposal has a gross floor area of 1,264.72sqm, which results in a FSR of 0.88:1.

15. In order for there to be power to grant development consent for a development that contravenes development standards in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012); that the applicant's written request has adequately addressed that compliance with the development standards is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).

16. The applicant’s written request (exhibit 2) justifies the non-compliance of the proposal with the floor space ratio (FSR) for the site on the following bases:

• The additional floor area of 115.08sqm that constitutes the exceedance of the FSR development standard for the site is attributable to the steep slope of the site; as part of the basement containing car parking spaces, which would be excluded from the calculation of gross floor area if it did not protrude more than 1m from the existing ground level, is included in the gross floor area calculation as a result of the fall of the land.

• The additional gross floor area is also attributable to the provision of an on-grade waste storage room and a secure lobby accessed from Nola Road.

17. I am satisfied that the proposal is consistent with the objectives development standard and the objectives for development within the zone and therefore that compliance with the FSR development standard is unnecessary in all of the circumstances. I accept the Council’s submission that the proposal is an appropriate and decorous development of the site and that the exceedance of the FSR development standard is justified, for the reasons set out in the applicant’s written request.

18. I am satisfied that the applicant's written request has adequately addressed that compliance with the development standards is unnecessary and that there are sufficient environmental planning grounds to justify contravening the development standard.

Whether amalgamation of the site with adjoining properties is reasonably feasible

19. The proposal will result in two isolated sites (within the meaning of control 4 of 3B Land Consolidation Local Centres DCP) 4A and 10 Maclaurin Parade, to the east and west of the site. The area of 4A Maclaurin Parade is 638sqm and the area of 10 Maclaurin Parade is 626sqm. Consideration of the applicant’s offers to purchase the isolated sites is necessary to determine whether amalgamation of a property, or both properties, with the site, is reasonably feasible under control 6 of 3B Land Consolidation Local Centres DCP, because amalgamation would achieve the strategic planning goal embodied in the planning instruments to permit the site to be developed for high density residential development. The FSR development standard for the site amalgamated with adjoining properties to form a site with a minimum site area of 1800sqm would be 1.3:1 (cl4.4(2E) of LEP 2012).

20. In Karavellas v Sutherland Shire Council [2004] NSWLEC 251 (Karavellas) at [17], Commissioner Tuor set out the principles for determining when the amalgamation of properties is not reasonable feasible; despite the likelihood that amalgamation would achieve a better planning outcome. Those principles are included in Part 3B of the Local Centres DCP.

21. The experts agreed on the following in relation to offers made to the owners of the adjoining properties and I accept their agreement:

• Offers have been made to the owners of both properties in letters dated 14.6.16 and 24.5.17 and those offers have been submitted to Council as part of the application.

• Information on comparative sales data has been complied and is relied upon to determine whether the offers area reasonable. The data, including site sales data, details of offers made to purchase the isolated properties and comparative sales and valuation data is tabled in exhibit 2.

• The offers made exceeded the cost per square metre rate achieved for nearby properties zoned R4 with less site constraints.

• The applicant has demonstrated that reasonable offers have been made to the owners of 4A and 10 Maclaurin Parade.

22. I accept the Council’s submission and I am satisfied by the evidence before me that reasonable offers have been made to and refused by the property owners of 4A and 10 Maclaurin Parade, demonstrating that amalgamation of the site with these properties is not reasonably feasible.

Conclusion

23. In considering the amended plans and documents and agreed conditions of consent and taking into consideration the issues raised by the resident objectors, I am satisfied that it is lawful and appropriate to grant development consent to the proposal, having regard to the whole of the circumstances.

Orders

24. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 0504/16 for seven townhouses over basement parking at 6, 6A and 8 Maclaurin Parade, Roseville, is approved, subject to the conditions of consent at Annexure A.

3. The exhibits, other than exhibit A, are returned.

____________

Susan O’Neill

Commissioner of the Court

16134.17 O'Neill (C) (313 KB, pdf)

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Decision last updated: 06 September 2017