Carisakai Pty Ltd v Ku-Ring-Gai Council

[2024] NSWLEC 1829

Land and Environment Court

New South Wales

Medium Neutral Citation:

Carisakai Pty Ltd v Ku-Ring-Gai Council [2024] NSWLEC 1829

Hearing dates:

Conciliation Conference on 17 and 18 September 2024 (s 34 Agreement filed 3 October)

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Class 1

Before:

Byrne AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No eDA0131/23 for alterations and additions to an existing dwelling and associated landscaping works at 18 Clermiston Avenue, Roseville NSW 2069, being Lot 22 DP6535, is determined by the grant of consent subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – alterations and additions to dwelling house – heritage conservation area – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34AA

Environmental Planning and Assessment Regulation 2021, s 38

Ku-Ring-Gai Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

State Environmental Planning Policy (Resilience and Hazards) 2021

Category:

Principal judgment

Parties:

Carisakai Pty Ltd ACN 6677 10474(Applicant)
Ku-Ring-Gai Council (Respondent)

Representation:

Counsel:
J Mckelvey (Applicant)
C Shaw (Solicitor)(Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2024/86350

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Ku-Ring-Gai Council (the Council) of eDA0131/23 (the Development Application) for alterations and additions to an existing dwelling and landscape works (the Proposed Development) on land at 18 Clermiston Ave, Roseville being Lot 22 in DP6535 (the Site).

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on site and at Court. I presided over the conciliation conference.

3. Following the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and which addressed the Council’s contentions. This decision involved Council approving an application to amend the Applicant’s plans pursuant to s38 of the Environmental Planning and Assessment Regulation 2021. The agreed position is for the Court to uphold the Class 1 appeal and grant development consent to the Proposed Development with conditions at Annexure A.

4. There are jurisdictional prerequisites which require my satisfaction before the power to grant consent under s 4.16(1)(a) of the EPA Act can be exercised by the Court. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed Jurisdictional Statement (the Statement) provided to the Court. The statutory planning controls relevant to the Site and the Proposed Development are listed in the Council’s Statement of Facts and Contentions.

Satisfaction as to Jurisdiction

5. Regarding jurisdiction and taking into account the parties advice in the Statement, I am satisfied in regard to the following relevant matters.

State Environmental Planning Policies (SEPPs)

6. I have considered the jurisdictional provisions applicable to the Proposed Development that are raised by the following SEPPs, discussed in the parties Statement, and agree with the parties’ conclusions that no jurisdictional impediments arise pursuant to:

1. State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

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

Ku-ring-gai Local Environmental Plan 2015 (KLEP)

7. The Site is zoned R2 - Low Density Residential pursuant to KLEP. Alterations and additions to a dwelling house are permissible with consent in the zone. The Proposed Development is compatible with the prescribed zone objectives for Zone R2 which are set out in the Statement at paragraphs 15 and 16.

8. With regard to the development controls of relevance to the Proposed Development I am satisfied with the parties assessment and conclusions in the Statement in respect to the following clauses of the KLEP:

1. Clause 4.3 – Height of Buildings. The maximum building height permissible for the site is 9.5m pursuant to the height of buildings map. The Proposed Development, as amended, does not breach the maximum building height of 9.5m. (Paragraph 17);

2. Clause 4.4 – Floor Space Ratio (FSR). Based on the Site area of 1,104m² a maximum permissible floor area of 390.8m² or 0.35:1 is applicable. The Proposal Development, as amended, provides for a total floor area of 384.9m² or 0.348:1 which complies with the requirement of this clause. (Paragraph 18);

3. Clause 5.10 – Heritage Conservation. The existing dwelling is not heritage listed, however, the Site is located within the vicinity of heritage items of local significance and is located within the Clanville Heritage Conservation Area. The Development Application is supported by a Heritage Impact Statement prepared by Wier Phillips Heritage and Planning dated November 2023 which concludes “…the proposed works will have an acceptable impact on the Clanville Conservation Area…”. (Paragraph 19); and

4. Clause 6.3 – Biodiversity protection. The Site is partially mapped as containing land of biodiversity significance on the NSW Biodiversity Values Map and on Council’s terrestrial map. The Development Application does not provide for any works including tree removal within the mapped area. There are no terrestrial biodiversity impacts associated with the proposed development, as such compliance with this development standard is achieved. (Paragraph 21).

Public Consultation

9. The Development Application was notified by Council to nearby properties in accordance with the EPA Act from 11 January 2024 to 25 January 2024. No submissions were received.

Conclusion

10. For these reasons, based on the evidence before me, and my observations on Site, I am satisfied that there is no jurisdictional impediment to the making of the proposed orders, and the decision is one that the Court could have made in the proper exercise of its functions.

11. 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. 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.

Notations

12. The Court notes that:

1. The 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 the Development Application DA Number eDA0131/23 in accordance with the plans and documents listed below:

Reference/ DWG No	Title/Description	Revisio n		Prepared by		Date
Architectural Plans:
DA-01	Site Plan	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-02	Lower Ground Floor Plan	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-03	Ground Floor Plan	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-04	First Floor Plan	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-05	Roof Plan	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-06	North Elevation Clean	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-07	South Elevation Clean	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-08	East Elevation Clean	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-09	West Elevation Clean	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-10	North Elevation	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-11	South Elevation	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-12	East Elevation	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-13	West Elevation	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-14	Section	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-15	Section	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-16	Materials and Finishes	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
DA-17	Areas and Calculations	F		Fortey & Grant Architecture Pty Ltd		30/09/2024
Report:
Name				Prepared by		Date
Independent Estimate				Adrian Jamieson Associates Pty Ltd		27/09/2024
BASIX Certificate				Lin & Associates Pty Ltd		1/10/2024

Orders:

13. The Court orders:

1. The appeal is upheld.

2. Development Application eDA0131/23 for alterations and additions to an existing dwelling and associated landscaping works at 18 Clermiston Avenue, Roseville NSW 2069, being Lot 22 DP6535, is determined by the grant of consent subject to the conditions set out in Annexure A.

L Byrne

Acting Commissioner of the Court

Annexure A

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