Cl Junction Pty Ltd v Ku-ring-gai Council

[2020] NSWLEC 1123

Land and Environment Court

New South Wales

Medium Neutral Citation:	CL Junction Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1123
Hearing dates:	Conciliation conference on 12 March 2020
Date of orders:	12 March 2020
Decision date:	12 March 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1)   The applicant is granted leave to amend their development application in accordance with the plans referred to in Condition 1 of Annexure “A”. (2) The applicant is to pay the respondent’s costs arising 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 No. DA0489/18 for demolition of the existing dwelling and ancillary structures, and construction of eight self-contained single level dwellings with basement carpark under State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 is approved subject to the conditions set out in Annexure “A”.
Catchwords:	APPEAL – development application – seniors living – conciliation conference – agreement reached – orders in accordance with agreement
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:	CL Junction Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: G McKee (Solicitor) (Applicant) J P Merlino (Solicitor) (Respondent)   Solicitors: McKees Legal Solutions (Applicant) HWL Ebsworth (Respondent)
File Number(s):	2018/385572
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of a single storey dwelling house and the construction of a seniors living development comprising eight apartments over two storeys, together with one level of basement car parking at 88 Junction Road, Wahroonga. The development application is made pursuant to the provisions of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“SEPP HSPD”). The appeal is lodged by CL Junction Pty Ltd 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. Following an adjournment of the hearing which commenced today, 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 today. 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 increased the side and front setbacks, as well as decreasing the floor space. As a result, there is now agreement that the floor space ratio (“FSR”) is no more than 0.5:1, which is compliant with cl 50(b) of the SEPP HSPD and means that the development application cannot be refused on the basis of density and scale.

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 jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development application was made with the consent in writing of the owners of the land at 88 Junction Road, Wahroonga, which is the land to which the application relates.

• 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 SEPP HSPD, 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 SEPP HSPD.

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

• The development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 to 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. Given the past and current use of the site for residential purposes, the subject site is not likely to be contaminated.

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 their development application in accordance with the plans referred to in Condition 1 of Annexure “A”.

2. The applicant is to pay the respondent’s costs arising 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 No. DA0489/18 for demolition of the existing dwelling and ancillary structures, and construction of eight self-contained single level dwellings with basement carpark under State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 is approved subject to the conditions set out in Annexure “A”.

………………………

J Gray

Commissioner of the Court

Annexure A (206 KB, pdf)

Architectural Plans (13.5 MB, pdf)

Landscape Plans (3.91 MB, pdf)

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Decision last updated: 12 March 2020