Assaad v Ku-ring-gai Council

[2023] NSWLEC 1692

Land and Environment Court

New South Wales

Medium Neutral Citation:

Assaad v Ku-ring-gai Council [2023] NSWLEC 1692

Hearing dates:

Conciliation conference on 13 November 2023

Date of orders:

17 November 2023

Decision date:

17 November 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)    Development consent is granted to Development Application Number DA0170/23 for the alterations to a carport including the installation of louvres and a garage door at 64 Douglas Street, St Ives legally described as Lot 5 in DP 233529, subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – enclose a carport with garage door and louvres – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, ss 37, 38, Sch 7

Ku-ring-gai Local Environmental Plan 2015, cl 4.6

Land and Environment Court Act 1979, s 34, 34AA

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Cases Cited:

Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174

Category:

Principal judgment

Parties:

Nazih Assaad (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
D Tyrrell (Solicitor) (Applicant)
J Merlino (Solicitor) (Respondent)

Solicitors:
Tyrrell’s Planning Law (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2023/201494

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Mr Assaad seeks development consent to enclose his carport, at 64 Douglas Street, St Ives, with a garage door and metal louvres. He lodged a development application seeking the same with Ku-ring-gai Council (the Council) on 4 May 2023. Following the expiry of the period after which an application is deemed to have been refused, Mr Assaad lodged the present appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 13 November 2023. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was submitted on the same date, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments include the introduction of glazed panels to the garage door and an increase in the gaps between the metal louvres. In addition, the agreement was reached following the applicant’s proposal to insert clear glass panels/windows on each side of the garage door panel, and the parties have agreed to a condition of consent requiring the same.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Statement of Jurisdictional Prerequisites that sets out the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R2 Low Density Residential pursuant to the Ku-ring-gai Local Environmental Plan 2015 (KLEP), in which development for the purpose of dwelling houses are permissible with consent.

• There is a dispute between the parties as to whether the proposed development contravenes the floor space ratio (FSR) development standard, which depends on whether the louvres used to enclose the side of the garage results in that wall being considered an external wall, for the purpose of the definition of “gross floor area”. In either case, the jurisdictional preconditions for the grant of development consent are satisfied, as follows:

1. If the louvres to be used to enclose the side of the garage do not render that wall an external wall, then the proposed development does not alter the FSR on the site. It is therefore not a development that contravenes the FSR development standard, and, consistent with the decision of Duggan J in Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174, a written request pursuant to cl 4.6 of the KLEP is not required.

2. If the louvres used to enclose the side of the garage results in that wall being considered an external wall, the gross floor area of the buildings on the site increases such that the proposed development results in a breach of the FSR development standard and a request pursuant to cl 4.6 is required. I am satisfied that the written request dated 13 November 2023 adequately establishes sufficient environmental planning grounds that justify the breach of the FSR development standard by demonstrating that the works associated with the additional FSR relate to an existing structure and will provide for an improved streetscape presentation, increased security and weather protection. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The proposed development does not breach any other development standard arising under the KLEP.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site is in an area with a history of use for the purposes of residential purposes, it is unlikely to be contaminated.

• A BASIX certificate is not required as the proposed development does not involve a cost of works that is greater than $50,000 (see EPA Regulation 2021 Sch 7).

• The development application was notified for a period of 14 days commencing 10 May 2023, and there were no submissions received.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes:

1. The Respondent, Ku-ring-gai Council, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA/0170/23 in accordance with the documents listed below:

Amended Architectural Plans
Plan	Prepared by	Dated
Architectural Plans
Site Plan, Ground Floor, First Floor, Elevations and Section A-A, Revision F	LMS Drafting Services	19 October 2023
Amended Clause 4.6 Variation Request	Minto Planning Services	13 November 2023

9. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application Number DA0170/23 for the alterations to a carport including the installation of louvres and a garage door at 64 Douglas Street, St Ives legally described as Lot 5 in DP 233529, subject to the conditions in Annexure A.

J Gray

Commissioner of the Court

Annexure A

**********

Decision last updated: 17 November 2023