Beaconsfield Pde Pty Ltd v Ku-ring-gai Council

[2023] NSWLEC 1313

Land and Environment Court

New South Wales

Medium Neutral Citation:

Beaconsfield Pde Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1313

Hearing dates:

Conciliation conference on 7 June 2023

Date of orders:

21 June 2023

Decision date:

21 June 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The written request under cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015, which relates to a non-compliance with the minimum lot width requirements in cl 6.6(2)(b) of the Ku-ring-gai Local Environmental Plan 2015, is upheld;

(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 in the amount of $18,760 within 28 days of the date of these orders;

(3) the appeal is upheld;

(4) Development Application No 0277/22 is determined by grant of consent for the demolition of structures, tree removal, construction of a residential flat building with 22 residential units including basement parking, landscaping and associated works at 4 and 4A Beaconsfield Parade, Lindfield (legally known as Lot B in DP 342546 and Lot A in DP 342546) subject to the conditions contained at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development in R4 High Residential Density zone – minimum dimension of the lot – conciliation conference – agreement between parties – orders

Legislation Cited:

Conveyancing Act 1919, s 88

Environmental Planning and Assessment Act 1979, ss 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 29, 37

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 6.1, 6.2, 6.5, 6.6

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity Conservation) 2021, Ch 6, s 6.6

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cll 28, 30, Sch 1 

Texts Cited:

Ku-ring-gai Development Control Plan

NSW Department of Planning and Environment, Apartment Design Guide

Category:

Principal judgment

Parties:

Beaconsfield Pde Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
H Kahagalle (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/246529

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Ku-ring-gai Council (the Respondent) of development application DA0277/22 seeking consent for the demolition of existing structures and construction of a residential flat building comprising 22 apartments, basement car parking, landscaping and associated works at Nos 4 and 4A Beaconsfield Parade, Lindfield (the site).

2. The development application was lodged on 6 July 2022, and notified by the Respondent for a period of 30 days.

3. On 17 March 2023, the Applicant amended the development application.

4. The matter was initially listed before me for hearing on 7-8 June 2023. However, on the application of the parties, the hearing was adjourned and the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 7 June 2023. I presided over the conciliation conference.

5. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 4 June 2023.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development application subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

8. There are jurisdictional prerequisites contained in the provisions of the following:

1. Ku-ring-gai Local Environmental Plan 2015

2. State Environmental Planning Policy (Resilience and Hazards) 2021

3. State Environmental Planning Policy (Biodiversity Conservation) 2021

4. State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development 

5. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

9. The parties explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [36]. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties has been met, for the reasons set out in my judgment below.

Ku-ring-gai Local Environmental Plan 2015

10. The site is located within the R4 High Density Residential Zone, according to the Land Use Table of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), in which Residential flat buildings are permitted with consent, where consistent with the objectives for development in the zone, that 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.

11. The site is irregularly shaped in the form of a wedge, with a frontage to Beaconsfield Parade, towards the north of the site, of 52.5m. The intersecting street, Drovers Way, travels in a north-south orientation that effectively reduces the site to the south to 19.55m in width. Clause 6.6 of the KLEP sets out requirements for multi dwelling housing and residential flat buildings. Clause 6.6(2)(b) requires a site on which development for the purposes of a residential flat building is proposed, where the site area is greater than 1,800m², to have a minimum dimension of 30m (30m standard).

12. As the site does not comply with the provision at cl 6.6(2)(b), the Applicant relies upon a written request to justify the contravention, prepared by Mecone dated 10 March 2023 (the written request) in accordance with cl 4.6 of the KLEP.

13. The written request asserts that compliance with the 30m standard is unreasonable or unnecessary in the circumstances of this case as the objectives of the 30m standard are achieved, notwithstanding the non-compliance, pursuant to cl 4.6(3)(a) of the KLEP.

14. The objectives of the provision at cl 6.6 are as follows:

(a)  to provide site requirements for development for the purposes of multi dwelling housing and residential flat buildings so as to provide for the orderly and economic development of residential land while maintaining the local character, and

(b)  to ensure that lot sizes and dimensions of medium and high density residential sites allow for generous landscaped areas and setbacks to ensure the amenity of adjoining properties and to support the desired future character of these areas.

15. The written request considers the objectives to be achieved for reasons summarised as follows:

1. Orderly and economic development of the site is achieved by redevelopment of the site in a manner consistent with the R4 High Density Residential Zone, and with the residential flat buildings evident on adjoining sites. The strata development on adjoining sites has constrained the dimensions of the existing site, to the dimensions of the two remaining sites that are bounded by existing development, and public roads. Notwithstanding the non-compliance, the local character is maintained by achieve complying setbacks, site coverage, landscaped area and deep soil zones.

2. The corner site has a total frontage of 130m in length, with complying setbacks to support landscaped area and deep soil that retains existing trees on the site, and provides for new canopy trees capable of reaching substantial height at maturity.

16. Next, the written request advances environmental planning grounds. It considers sufficient to justify the contravention of the 30m standard. Those grounds are summarised as follows:

1. The proposal is for development of two remaining parcels of land bound by public roads, zoned for high density residential and conforming to the provisions of Part 7 of the Ku-ring-gai Development Control Plan.

2. Existing residential apartment development on adjoining land prevents amalgamation of the site with surrounding sites.

3. In consideration of the variation from the 30m standard, the setback of the proposal from the southern boundary where the non-compliance occurs is increased from 6m to 9m to allow greater landscaped area, communal open area and building separation from neighbouring buildings.

4. Those reasons set out at [15].

17. Finally, the written request asserts consistency with the objectives of the zone, at [10].

18. I note here that the Respondent is satisfied that the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the KLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the 30m standard and the objectives for development in the R4 High Density Residential Zone.

19. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the KLEP.

20. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the 30m standard under cl 6.6 of the KLEP is justified.

21. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the 30m standard and the objectives for development within the R4 Zone, for the reasons given in the written request.

22. In forming this opinion of satisfaction, I accept that the dimensions of the site are constrained by existing development on adjoining sites. Notwithstanding this constraint, the proposal achieves the landscape area, deep soil and building separation sought by the Apartment Design Guide.

23. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the KLEP and I find there are no grounds on which the Court should not uphold the written request.

24. The proposed development complies with the height of building standard at cl 4.3 of the KLEP, and the floor space ratio standard at cl 4.4 of the KLEP.

25. The site is located in an area identified as affected by class 5 acid sulfate soils (ASS), but is not located within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5m Australian Height Datum. Furthermore, the parties contend the proposed development will not lower the water table on the adjacent land. As such, development consent at cl 6.1 of the KLEP is not required.

26. On the basis of the Geotechnical Report prepared by Stantec dated 7 February 2022, and the amended Stormwater Management Plans prepared by Quatum Engineers, I conclude that the proposed earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land, when those matters at cl 6.2(3) of the KLEP are taken into account.

27. Having regard to the amended Stormwater Management Plans prepared by Quatum Engineers and Landscape plans prepared by Studio IZ, I am satisfied that the development retains stormwater in onsite detention (OSD) and in rainwater tanks as an alternative to mains water, protects water quality by improving stormwater runoff in urban catchments and integrates stormwater management into the landscape in accordance with cl 6.5(3)(c) of the KLEP. Accordingly, I am also satisfied that water sensitive urban design principles have been incorporated into the proposal, and stormwater management includes all reasonable actions to avoid adverse impacts on the site and its surrounds.

State Environmental Planning Policy (Biodiversity Conservation) 2021

28. As the site is identified to be within the Sydney Harbour Catchment area, Chapter 6 of State Environmental Planning Policy (Biodiversity Conservation) 2021 (Biodiversity SEPP) applies.

29. In respect of s 6.6 of the Biodiversity SEPP, I have considered those matters at s 6.6(1), and, for reasons stated at [27], I am satisfied that the proposal incorporates appropriate capture and collection of rainwater for re-use by means of OSD and a positive covenant on the title, pursuant to s 88 of the Conveyancing Act 1919 to require maintenance of the OSD system and rainwater tanks that will result in the quality of water entering Sydney harbour being as close as possible to neutral or beneficial, and the minimise the impact of water flow on Sydney harbour.

State Environmental Planning Policy (Resilience and Hazards) 2021

30. On the basis of the historical information regarding the site contained in the Statement of Environmental Effects prepared by Mecone dated June 2022, including aerial imagery, I accept the site has a history of domestic residential use and so is unlikely to be contaminated within terms at s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021.

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development

31. On the basis of the design statement authored by Mr Stuart Hill, architect, on behalf of Giles Tribe Urban Design dated April 2023 (the design statement), and prepared in accordance with s 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the proposal has demonstrated that adequate regard has been given to the design quality principles contained at Sch 1 of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65), as required by cl 28 of SEPP 65, and relevant parts of the Apartment Design Guide, which also satisfies me as to those matters about which I must form an opinion at cl 30(2) of SEPP 65.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

32. In respect of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the development application is accompanied by a BASIX certificate (Cert No. 1290318M_07, dated 24 May 2023) prepared by Certified Energy 1 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

33. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

34. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

35. The Court notes that:

1. Ku-ring-gai Council, as the relevant consent authority, has agreed under s 37 of the Environmental Planning and Assessment Regulations 2021 to the Applicant amending Development Application No 0277/22 to include the following amended plans and reports:

Plan Name	Plan No.	Rev	Dated	Drawn By
Architectural Plans
COVER SHEET	DA000	O	17.05.2023	Giles Tribe
SITE ANALYSIS	DA001	N	11.04.2023	Giles Tribe
SITE PLAN	DA100	N	11.04.2023	Giles Tribe
BASEMENT 3 PLAN	DA200	N	17.05.2023	Giles Tribe
BASEMENT 2 PLAN	DA201	M	28.03.2023	Giles Tribe
BASEMENT 1 PLAN	DA202	N	17.05.2023	Giles Tribe
GROUND LEVEL PLAN	DA203	O	17.05.2023	Giles Tribe
LEVEL 1 PLAN	DA204	O	17.05.2023	Giles Tribe
LEVEL 2 PLAN	DA205	O	17.05.2023	Giles Tribe
LEVEL 3 PLAN	DA206	O	17.05.2023	Giles Tribe
LEVEL 4 PLAN	DA207	O	17.05.2023	Giles Tribe
ROOF LEVEL PLAN	DA208	N	11.04.2023	Giles Tribe
ELEVATIONS	DA300	N	11.04.2023	Giles Tribe
ELEVATIONS	DA301	M	11.04.2023	Giles Tribe
SECTIONS	DA302	L	06.03.2023	Giles Tribe
SECTIONS	DA303	L	11.04.2023	Giles Tribe
DRIVEWAY DETAILS	DA304	N	14.04.2023	Giles Tribe
DRIVEWAY DETAILS	DA305	L	06.03.2023	Giles Tribe
EXCAVATION PLAN	DA400	N	14.04.2023	Giles Tribe
DEEP SOIL PLAN	DA401	N	11.04.2023	Giles Tribe
ENVIRONMENTAL SITE MANAGEMENT PLAN	DA402	N	14.04.2023	Giles Tribe
FSR CALCULATIONS	DA403	O	17.05.2023	Giles Tribe
CROSS VENTILATION	DA404	M	28.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - SUMMARY	DA500	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - SUMMARY	DA501	M	28.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 9AM	DA502	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 9.15AM	DA503	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 9.30AM	DA505	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 9.45AM	DA506	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 10AM	DA507	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 10.15AM	DA508	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 10.30AM	DA509	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 10.45PM	DA510	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 11AM	DA511	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 11.15AM	DA512	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS – 11.30AM	DA513	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 11.45AM	DA514	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 12PM	DA515	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 12.15PM	DA516	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 12.30PM	DA517	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 12.45PM	DA518	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 1PM	DA519	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 1.15PM	DA520	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 1.30PM	DA521	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 1.45PM	DA522	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 2PM	DA523	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 2.15PM	DA524	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 2.30PM	DA525	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 2.45PM	DA526	L	06.03.2023	Giles Tribe
SOLAR ACCESS DIAGRAMS - 3PM	DA527	L	06.03.2023	Giles Tribe
OVERSHADOWING DIAGRAMS (EXISTING)	DA528	L	06.03.2023	Giles Tribe
OVERSHADOWING DIAGRAMS (PROPOSED)	DA529	L	06.03.2023	Giles Tribe
HEIGHT PLANE DIAGRAM	DA600	N	11.04.2023	Giles Tribe
WINDOW SCHEDULE	DA700	N	11.04.2023	Giles Tribe
WINDOW SCHEDULE	DA701	N	11.04.2023	Giles Tribe
MATERIAL SAMPLE BOARD	DA702	L	06.03.2023	Giles Tribe
PHOTOMONTAGE	DA703	L	06.03.2023	Giles Tribe
Landscape Plans
Cover Sheet	LA000	F	20 April 2023	Studio IZ
Tree removal plan	LA001	F	20 April 2023	Studio IZ
Landscape plan – Sheet 1	LA100	F	20 April 2023	Studio IZ
Landscape plan – Sheet 2	LA101	F	20 April 2023	Studio IZ
Planting plan – Sheet 1	LA200	F	20 April 2023	Studio IZ
Planting plan – Sheet 2	LA201	F	20 April 2023	Studio IZ
Landscape Section	LA0300	F	20 April 2023	Studio IZ
Planting Palette	LA400	F	20 April 2023	Studio IZ
Details and Specification Notes	LA500	F	20 April 2023	Studio IZ

• SEPP 65 Design Verification Statement prepared by Giles Tribe dated April 2023

• BASIX certificates dated 24 May 2023 and stamped plans dated 23 May 2023

(‘the Amended DA documents’)

2. The Amended DA documents replace certain material prepared in support of Development Application No 0277/22 currently before the Court in accordance with leave granted on 17 March 2023, collectively referred to as the “the amended development application”.

3. The Amended DA documents were filed with the Court on 30 May 2023.

Orders

36. The Court orders that:

1. The written request under cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015, which relates to a non-compliance with the minimum lot width requirements in cl 6.6(2)(b) of the Ku-ring-gai Local Environmental Plan 2015, is upheld;

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 in the amount of $18,760 within 28 days of the date of these orders;

3. the appeal is upheld;

4. Development Application No 0277/22 is determined by grant of consent for the demolition of structures, tree removal, construction of a residential flat building with 22 residential units including basement parking, landscaping and associated works at 4 and 4A Beaconsfield Parade, Lindfield (legally known as Lot B in DP 342546 and Lot A in DP 342546) subject to the conditions contained at Annexure ‘A’.

T Horton

Commissioner of the Court

246529.22 Annexure A (377980, pdf)

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Decision last updated: 21 June 2023