Barua Coonanbarra Pty Ltd v Ku-ring-gai Council

[2019] NSWLEC 1581

Land and Environment Court

New South Wales

Medium Neutral Citation:	Barua Coonanbarra Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1581
Hearing dates:	Conciliation conference on 18 November 2019
Date of orders:	28 November 2019
Decision date:	28 November 2019
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	The Court orders that: (1)   The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at Annexure “A”. (2) The applicant is to pay the respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. (3) The clause 4.6 requests in relation to the height of buildings and floor space ratio development standards pursuant to clause 4.3 and 4.4 respectively of Ku-ring-gai Local Environmental Plan 2015 are well founded and upheld. (4)   The appeal is upheld. (5)   Development application DA0336/18 for demolition of existing structures and construction of a residential flat building comprising 10 units and basement carpark at 12 Coonanbarra Road, Wahroonga is approved subject to the conditions at Annexure “A”.
Catchwords:	DEVELOPMENT APPLICATION – residential flat building – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide Ku-ring-gai Development Control Plan 2016
Category:	Principal judgment
Parties:	Barua Coonanbarra Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: C McEwen SC (Applicant) J Reid (Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/300074
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Barua Coonanbarra Pty Ltd (the applicant) lodged under s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Ku-ring-gai Council (the Council) of Development Application No. 0336/18 (the application).

2. The application seeks consent under the EPA Act for the construction of a residential flat building (RFB) comprising 10 units and basement car park on land described as Lot E within DP 365257 and with a street address of 12 Coonanbarra Road, Wahroonga (the site). The site has an area of 1437.9m².

3. In the Statement of Facts and Contentions (SFC) filed with the Court by the Council, contentions raised by the Council regarding the application included the height and floor space ratio (FSR), insufficiency of accessible and flexible housing, and impacts on adjoining lower density development. Concerns were also raised in terms of stormwater management, parking and access.

4. The application is required to comply with the requirements of Ku-ring-gai Local Environmental Plan 2015 (the LEP) and the associated Ku-ring-gai Development Control Plan 2016 (the DCP).

5. It must also have regard to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and the associated Apartment Design Guide (ADG).

6. The application was lodged and 6 objections were received raising concerns in terms of traffic, height, bulk, FSR, setbacks, impacts on outlook and privacy of neighbouring properties, lack of deep soil landscaping, encroachment from excavation, amenity impacts from proposed rooftop communal open space, and traffic and pedestrian safety given the driveway design and location.

7. The matter was initially listed for conciliation conference before me under s 34(1) of the Land and Environmental Court Act 1979 (the LEC Act). Conciliation commenced onsite on May 13, 2019 where the Court viewed the site and surrounds and a number of objectors spoke re-iterating their written concerns. All the objectors were residents of the RFB adjoining to the south of the site.

8. As agreement could not be reached during conciliation, the matter was terminated and set down for hearing before me. Prior to the hearing commencing, leave of the Court was granted to amended plans arising from conciliation which sought to address a number of contentions. The amended plans were advertised but no further objections were received in response.

9. At the commencement of the hearing, and as a consequence of the preparation of expert Joint Reports in response to further amendments to the application agreed to by the applicant, the parties advised that they had come to an agreement on a form of development that was acceptable to both parties. It was therefore requested that the hearing be adjourned and the matter be relisted as a conciliation conference under s 34(1). I presided over that conciliation after which an agreement under s 34(3) of the LEC Act was provided by the parties, and the hearing vacated.

10. As the presiding Commissioner, I am required under s34(3) to be satisfied that the decision sought by the parties is one that the Court could make in the proper exercise of its functions and, being so satisfied, I am required under s 34(3)(a) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. The LEC Act also requires me to set out in writing the terms of the decision at s 34(3)(b). The orders made to give effect to the agreement meet that requirement.

12. In making the orders, I am not required to make a merit assessment of the development or of the issues that were originally in contention between the parties. However, I am required to ensure that all of the pre-conditions to the granting of consent have been met.

13. In this regard, the Council provided a submission on jurisdictional pre-conditions with the agreement.

14. The site is zoned R4 High Density Residential under the LEP and RFBs are permissible in the zone with consent. Consideration was given to the objectives of the R4 zone.

15. The site adjoins land zoned R2 Low Density Residential to the rear (west).

16. The proposed development breaches the Height of Buildings development standard set out in cl 4.3 of the LEP. The maximum height permissible based on the LEP map is 17.5m. However, cl 4.3(2A) of the LEP states that the height of a building on land in the R4 zone which has a site area of 1,800m² or less must not exceed 11.5m in height. In this instance, the maximum height proposed is 13.93m. This is a 21% variation to the height control.

17. The proposed development also exceeds the FSR standard set out in cl 4.4 of the LEP. The LEP FSR map indicates a maximum permissible FSR of 1.3:1. However, cl 4.4(2C) of the LEP requires an FSR of 0.8:1 for sites with an area of 1,800m² or less in the R4 zone.

18. The FSR of the proposed development is 0.98:1 thereby not complying with cl 4.4(2C), representing a 0.18:1 or 22.5% variation.

19. The applicant sought a variation to these development standards and lodged written requests based on the amended plans pursuant to cl 4.6 of the LEP.

20. I am satisfied that the cl 4.6 written requests demonstrate that compliance with the building height and FSR limits is unreasonable and unnecessary in the circumstances as required by cl 4.6(3)(a) as, despite the non-compliances, the development meets the objectives of the height and FSR development standards in the LEP.

21. The cl 4.6 requests also adequately establish sufficient (and similar) environmental planning grounds that justify the height and FSR breaches, as required by cl 4.6(3)(b).

22. In this regard, the following is a summary of the justification provided in the cl 4.6 written request for the height breach:

1. The additional height is associated with a built form which presents as 3 storeys to the street with a recessed fourth storey. The front component (excluding balustrading and roofing associated with the communal open space on the roof) complies with the height limit and is set behind established mature trees. These trees, in association with new tree planting in the side setbacks as well as the substantial setback to the fourth level component, ensure that the additional height would not generate any incompatible height or streetscape outcome.

2. This height and built form is contextually compatible with the scale of developments either side which comprise 3-4 storey RFBs. Therefore, the additional height would not generate a scale of development which is out of character with its immediate neighbours to the side.

3. The proposed development will not have any significant adverse impacts on adjoining properties being the RFBs to the north and south or the townhouses to the west.

4. The proposed development (including the additional height) will provide a significantly greater landscaped setting than that on the adjoining sites to the north and south which have a greater physical presence in the streetscape. The design also allows for retention of substantial trees around the perimeter of the site.

5. The separation distances between habitable rooms on the site and the RFB to the south exceed the separation distance envisaged by the ADG and, when considering the visual bulk of the proposed height from the southern neighbour, the separation is assisted by the retention of existing vegetation and provision of new canopy trees within the side setback area.

6. Substantial deep soil planting will be provided which will soften and minimise the effect of the development.

7. In terms of the western neighbouring townhouses in the adjoining R2 residential zone, the development adjoins two townhouses which are sited higher than the site and where proposed units are slightly excavated into the slope of the site. This results in the built form appearing as 2 storeys with a recessed third storey which is a built form consistent with the scale of built form anticipated by the controls (3 storeys). The built form is also set behind a substantial deep soil landscaped area and achieves setbacks consistent with the ADG which requires an additional 3m setback where a zone transition occurs.

8. The excess height is limited to the recessed upper level and the lift overrun which provides access to the communal rooftop area. The upper level is setback over 22m from the front boundary. This setback is significantly greater than the apparent 3-4 storey scale of developments either side, noting that these developments have less landscaping within their front setbacks.

9. The recessed nature of the upper level reduces the apparent bulk and scale when viewed from neighbouring properties. The setback, in association with the substantial deep soil landscaping, suitably ameliorates any potential visual bulk or privacy impacts.

10. The objectives of the height standard are therefore achieved and compliance with the height control is unreasonable and unnecessary.

11. The development also meets all of the objectives of the R4 zone, which are strategic in nature. In this regard, the height is appropriate for the site and its context opposite the Wahroonga Town Centre and achieves a suitable transition to the lower density properties to the west. Further, the height is compatible with the streetscape, achieves amenity outcomes including with surplus landscaped area, and has no adverse bulk or amenity impacts. It is therefore compatible with the size of the site being developed.

23. The justification provided in the cl 4.6 written request for the FSR breach is similar to the height breach in terms of the built form outcomes, such as the compliant setbacks, excess landscaping, and lack of amenity impacts, and I have therefore not repeated these outcomes other than in a summary form.

24. In particular, the FSR cl 4.6 written request, in summary, demonstrates that the development meets the objectives of the FSR standard and that there are sufficient environmental planning grounds to support the variation for the following reasons:

1. Additional FSR can be accommodated on the site in a contextually compatible manner with the building’s bulk and scale compatible with the scale of developments either side being 3-4 storey RFBs. It will therefore not be out of character with developments in the street. For the same reasons as outlined in the height cl 4.6, it also provides an appropriate bulk and scale, and therefore transition to, development in the R2 zone to the rear.

2. The compliant front, side and rear setbacks, site cover and excess landscaping provision demonstrate that the built form and density (and associated additional FSR) is compatible with the size of the land being developed. The appropriate streetscape outcome and lack of built form and amenity impacts also demonstrate that the built form is suitable for the site. The retention of substantial tree plantings and provision of greater than required landscaped areas also demonstrate that the environmental landscaped character of the site can be achieved.

3. The proposed units are significantly larger than the minimum size required by the ADG but with no adverse streetscape, visual bulk or amenity impacts. At this size, the units will generate a high level of amenity and provide an alternative housing option for current residents of single detached dwellings in the area. There would therefore be no sound urban design or planning justification to reduce their size to achieve compliance with the FSR standard.

4. The site’s location supports additional density being within easy walking distance to Wahroonga train station as well as shops and recreation areas.

5. The proposed FSR of 0.98:1 is a reasonable FSR in a high density R4 residential area given most medium density areas (R3) have an FSR of 0.9:1.

25. As I have already indicated, the development meets all of the objectives of the R4 zone. Further, the proposal replaces a single dwelling on a large allotment with 10 quality residential apartments improving housing choice in proximity to nearby services, which include the Wahroonga train station and shops.

26. The development will therefore be in the public interest because it meets the objective of the height and FSR standards and of the zone.

27. In addition to compliance with cl 4.6, the other applicable pre-conditions to consent contained in the LEP have been satisfied.

28. In particular, I am satisfied that the development meets the requirements of earthworks at cl 6.2 and will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. I have had regard to what is required to be considered at cl 6.2(3) in terms of the effect on drainage patterns and soil stability, on the quality of material to be excavated, and the like.

29. In this regard, a geotechnical report was submitted addressing the relevant contentions, and the groundwater conditions assessed and addressed.

30. Similarly, the Council advised that sufficient information had been submitted to demonstrate achievement of the stormwater and water sensitive urban design objectives of cl 6.5 of the LEP.

31. The development was amended to address the merit concerns raised and the Council is satisfied in terms of compliance with the design requirements of SEPP 65, the ADG and the DCP.

32. In this regard, the development does not fully comply with the DCP requirement for development with a 11.5m height limit to be limited to 3 storeys. However, this requirement has been flexibly applied given the relatively unique circumstances, being the context, size and topography of the site, the setbacks proposed, and the lack of amenity impacts.

33. Further, a Design Verification certificate required under SEPP 65 was submitted and was considered by the Council to be satisfactory. I am also satisfied that that the matters required by cl 28 of SEPP 65 have been met. The proposal also meets the requirements of cl 30 of SEPP 65 being requirements that, if met, cannot be grounds to refuse consent.

34. Further, the Council had discussed the amendments to the application with objectors, and considered their concerns. Whilst the objectors still did not support the proposal, even as amended, the Council advised that their relevant concerns had largely been addressed, including by requiring the privacy of neighbouring residents to be protected and by increasing the amount of deep soil landscaping provided. Further, a condition of consent is included to minimise amenity impacts from the rooftop communal open space, by precluding its use after 10pm. The relocation of the driveway to a more central location was considered but, as it would impact on tree retention, it was not supported.

35. Clause 7 of State Environment Planning Policy No 55 – Remediation of Land requires a consent authority to consider the contamination and remediation of land when determining a development application. In this regard, the parties advised that the site appears to have been used for residential purposes since it was first subdivided and it can therefore be reasonably concluded that there is no likelihood of contamination on the site.

36. Finally, a Certificate was provided with the amended plans demonstrating compliance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and consent conditions require compliance with this Certificate.

37. Accordingly, the Court orders that:

1. The applicant is granted leave to rely upon the amended plans and documentation referred to in condition 1 of the conditions at Annexure “A”.

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

3. The clause 4.6 requests in relation to the height of buildings and floor space ratio development standards pursuant to clause 4.3 and 4.4 respectively of Ku-Ring-Gai Local Environmental Plan 2015 are well founded and upheld.

4. The appeal is upheld.

5. Development application DA0336/18 for demolition of existing structures and construction of a residential flat building comprising 10 units and basement carpark at 12 Coonanbarra Road, Wahroonga is approved subject to the conditions at Annexure “A”.

…………………………….

Jenny Smithson

Commissioner of the Court

Annexure A (185 KB, pdf)

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Decision last updated: 29 November 2019