Brass Homes Pty Limited v Ku-ring-gai Council

[2018] NSWLEC 1580

Land and Environment Court

New South Wales

Medium Neutral Citation:	Brass Homes Pty Limited v Ku-ring-gai Council [2018] NSWLEC 1580
Hearing dates:	Conciliation conference on 2 November 2018
Date of orders:	02 November 2018
Decision date:	02 November 2018
Jurisdiction:	Class 1
Before:	Gray C
Decision:	See [5] below
Catchwords:	DEVELOPMENT APPLICATION – seniors living - conciliation conference - agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Category:	Principal judgment
Parties:	Brass Homes Pty Limited (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: D Tyrrell, McKees Legal Solutions (Applicant) R Cunningham, Shaw Reynolds (Respondent)
File Number(s):	2017/333318
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Brass Homes Pty Limited against the deemed refusal by Ku-ring-gai Council of development application No. DA0415/16. The application seeks consent for the demolition of an existing dwelling and the construction of 10 townhouse dwellings for seniors living, including basement car parking, drainage/infrastructure works and landscaping at 76 Telegraph Road, Pymble (Lot B DP 439322).

2. In this matter, at a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (“the Court Act”) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I formed this state of satisfaction as seniors living is permissible with development consent pursuant to cl 15 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“SEPP HSPD”), and the application demonstrates that the proposal provides a suitable access pathway to a public transport service (bus stop) as required by cl 26 of SEPP HSPD.

3. 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 Act requires me to “dispose of the proceedings in accordance with the decision”. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

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

5. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application:

Plan Title	Reference / Version	Prepared By	Dated
Architectural Plans
DA01 Site Plan	Revision D	Connor + Solomon Architects	June 2018
DA02 Basement Carpark Plan	Revision E	Connor + Solomon Architects	September 2018
DA03 Ground Floor Plan	Revision E	Connor + Solomon Architects	September 2018
DA04 First Floor Plan	Revision D	Connor + Solomon Architects	June 2018
DA05 Attic Storage Floor Plan	Revision D	Connor + Solomon Architects	June 2018
DA06 Roof Plan	Revision D	Connor + Solomon Architects	June 2018
DA07 Building A Front Elevation	Revision D	Connor + Solomon Architects	June 2018
DA08 Building A Rear Elevation	Revision D	Connor + Solomon Architects	June 2018
DA09 Building B Front Elevation	Revision D	Connor + Solomon Architects	June 2018
DA10 Building C Front Elevation	Revision D	Connor + Solomon Architects	June 2018
DA 11 Building C Rear Elevation	Revision D	Connor + Solomon Architects	June 2018
DA12 Long Elevations	Revision D	Connor + Solomon Architects	June 2018
DA13 Long Section A-A	Revision D	Connor + Solomon Architects	June 2018
DA14 Cross Section B-B	Revision D	Connor + Solomon Architects	June 2018
DA15 Cross Section C-C	Revision D	Connor + Solomon Architects	June 2018
DA16 Unit Type X Detailed Floor Plans	Revision D	Connor + Solomon Architects	June 2018
DA17 Unit Type Y Detailed Floor Plans	Revision D	Connor + Solomon Architects	June 2018
DA21 Site Calculations	Revision G	Connor + Solomon Architects	July 2018
DA34 Footpath Gradient + Cross-Falls	Revision D	Connor + Solomon Architects	June 2018
DA35 Unit Type Z Detailed Floor Plans	Revision D	Connor + Solomon Architects	June 2018
Landscape Plans
L-00 Cover Sheet	Revision K	habit8	20 July 2018
L-01 Landscape Plan 1 of 2	Revision K	habit8	20 July 2018
L-02 Landscape Plan 2 of 2	Revision K	habit8	20 July 2018
L-03 Deep Planting Plan	Revision K	habit8	20 July 2018
L-04 Basement Carpark Plan	Revision K	habit8	20 July 2018
L-05 Specification Notes & Landscape Details	Revision K	habit8	20 July 2018
L-06 Indicative Construction Details	Revision K	habit8	20 July 2018
L-07 Deep Planting General Landscape Areas Plan	Revision K	habit8	20 July 2018
Arboricultural Plans
Arb_602 Trees Impact Plan: Basement	Issue G	Elke Landscape Consultants	7 June 2018
Arb_603 Trees Impact Plan: Ground Level	Issue G	Elke Landscape Consultants	7 June 2018
Arb_604 Arborist Plan – St Canisius Easement. Tree Retention Rating and Impact Plan	Issue G	Elke Landscape Consultants	7 June 2018
Tree Assessment Table A Sheet 1-2 Trees 80-99	Elke Landscape Consultants	31 March 2017
Engineering Plans
HDA00 Cover Sheet, Legend & Drawing Schedule	P3	Jones Nicholson Consulting Engineers	27 June 2018
HDA01 Site Plan, Erosion and Sediment Control Plans & Details	P5	Jones Nicholson Consulting Engineers	27 June 2018
HDA02 Catchment Plan	P5	Jones Nicholson Consulting Engineers	27 June 2018
HDA03 Basement Carpark Plan	P7	Jones Nicholson Consulting Engineers	14 June 2018
HDA04 Ground Floor Plan	P8	Jones Nicholson Consulting Engineers	28 September 2018
HDA05 Easement Drainage Plan	P5	Jones Nicholson Consulting Engineers	14 June 2018
HDA06 Drainage Longitudinal Section	P4	Jones Nicholson Consulting Engineers	14 June 2018
HDA07 Details Sheet	P6	Jones Nicholson Consulting Engineers	14 June 2018
HDA08 Channel Sections	P3	Jones Nicholson Consulting Engineers	27 June 2018
HDA09 Driveway Longitudinal Sections	P3	Jones Nicholson Consulting Engineers	27 June 2018
HDA10 Drainage Channel Sections	P1	Jones Nicholson Consulting Engineers	27 June 2018
Supporting Documents	Reference / Version	Prepared By	Dated
Basix certificate	Certificate No. 734954M_05	NSW Planning and Environment	12 June 2018
Access Review V4	Morris-Goding Accessibility Consulting	6 July 2018
Arboricultural Impact Assessment Report	Addendum Rev C	Elke Landscape Consultants	7 June 2018
Geotechnical Investigation	Ref: 29419SYrpt	JK Geotechnics	7 June 2016
Plan of Kerb	Apex Surveying	7 May 2015
Footpath Levels	Mapstead and Associates	5 July 2018

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs in the amount of $15,000, inclusive of GST, to be paid on exchange of this agreement.

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA0415/16 for the demolition of an existing dwelling and construction of 10 townhouses for seniors living including basement car parking, drainage/infrastructure works, and landscaping, subject to the conditions of consent annexed hereto and marked “A”.

……………………….

Joanne Gray

Commissioner of the Court

Annexure A (572 KB, pdf)

Architectural Drawings (7.06 MB, pdf)

Decision last updated: 06 November 2018