Azalea Gardens Pty Ltd v Ku-ring-gai Council

[2019] NSWLEC 1398

Land and Environment Court

New South Wales

Medium Neutral Citation:	Azalea Gardens Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1398
Hearing dates:	Conciliation conference on 31 May 2019
Date of orders:	27 August 2019
Decision date:	27 August 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A” to this agreement. (2) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3)   The Appeal is upheld. (4)   Development Application DA0225/18 for the demolition of existing structures and construction of 7 self-contained dwellings with basement parking – SEPP (Housing for Seniors or People with a Disability) 2004 at 21 Clissold Road, Wahroonga, NSW is approved subject to the conditions set out in Annexure “A” to this agreement.
Catchwords:	DEVELOPMENT APPLICATION – seniors living - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 55 – Remediation of Land
Category:	Principal judgment
Parties:	Azalea Gardens Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel G McKees (Solicitor)(Applicant) C Shaw (Solicitor)(Respondent)   Solicitors: McKees Legal Solutions (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	2018/312264
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing structures and construction of self-contained dwellings with basement parking for seniors living under the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“Seniors Living SEPP”), at 21 Clissold Road, Wahroonga. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an 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 [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 31 May 2019. 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 decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amended development application is for 7 self-contained seniors living dwellings with the driveway entrance on a side road by the name of Azalea Gardens, with the driveway crossover mid-way along the side boundary that fronts Azalea Gardens.

4. 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 pre-jurisdictional requirements identified by the parties is met, for the following reasons:

• Whilst, pursuant to the provisions of the Ku-ring-gai Local Environmental Plan 2015 (“KLEP 2015”), development for the purposes of seniors living is prohibited in the R2 Low Density Residential Zone in which the site is located, it is permissible pursuant to cl 15 of the Seniors Living SEPP, which allows development on land zoned primarily for urban purposes for the purpose of any form of seniors housing if it is carried out in accordance with the Seniors Living SEPP.

• The proposed development does not contravene any development standard in the KLEP 2015, the Seniors Living SEPP or any other applicable environmental planning instrument.

• The development application in the Class 1 Application was accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of the Environmental Planning and Assessment Regulation 2000.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. A geotechnical report prepared by White Geotechnical Group dated April 2018 was submitted with the development application and accompanied the Class 1 Application, and did not identify any contamination issues.

5. 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)).

6. 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.

7. The Court orders that:

1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A” to this agreement.

2. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The Appeal is upheld.

4. Development Application DA0225/18 for the demolition of existing structures and construction of 7 self-contained dwellings with basement parking – SEPP (Housing for Seniors or People with a Disability) 2004 at 21 Clissold Road, Wahroonga, NSW is approved subject to the conditions set out in Annexure “A” to this agreement.

……………………….

J Gray

Commissioner of the Court

Annexure A (441 KB)

Architectural Drawings Part 1 (9.86 MB)

Architectural Drawings Part 2 (7.60 MB)

Architectural Drawings Issue Part 3 (7.18 MB)

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Decision last updated: 28 August 2019