Cl Westbrook Pty Ltd v Ku-ring-gai Council

[2019] NSWLEC 1357

Land and Environment Court

New South Wales

Medium Neutral Citation:	CL Westbrook Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1357
Hearing dates:	Conciliation conference on 26 July 2019
Date of orders:	30 July 2019
Decision date:	30 July 2019
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders: (1) Leave is granted for the Applicant to rely on amended BASIX Certification No. 850557M_02 dated 22 June 2019. (2) The appeal is upheld; (3) Development consent is granted for Development Application DA0379/17 for demolition of existing dwelling and construction of 7 new dwellings and basement carpark under Seniors Living SEPP at 33 Westbrook Avenue, Wahroonga, subject to the conditions set out in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – seniors living – conciliation conference – agreement between the parties – orders
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
Cases Cited:	Rosewood Australia Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 84 Australian Nursing Home Foundation Ltd v Ku-ring-gai Council [2019] NSWLEC 1205
Category:	Principal judgment
Parties:	CL Westbrook Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: C Montague, Hall and Wilcox (Applicant) C Campbell, Sparke Helmore (Respondent)
File Number(s):	2018/196869
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the demolition of existing dwellings and ancillary structures and the construction of a seniors’ living development comprising seven self-contained dwellings and basement carparking at 33 Westbrook Avenue, Wahroonga. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal 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. 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, 26 July 2019. 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 the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act.

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 form this state of satisfaction as each of the pre-jurisdictional requirements identified by the parties is met, for the following reasons:

• The development application was made with the written consent of Ramon Verzosa, the owner of the land to which the development 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 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (“Seniors Living SEPP”), 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 Seniors Living SEPP.

• Consistent with the decisions of the Court in Rosewood Australia Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 84 and Australian Nursing Home Foundation Ltd v Ku-ring-gai Council [2019] NSWLEC 1205, the identification of part of the land as “biodiversity” pursuant to the KLEP 2015 does not equate to identification of the land as “environment protection” or a like description, and therefore cl 6(a) of the Seniors Living SEPP does not preclude the SEPP from applying to the site the subject of the application.

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

• The development application is accompanied by a BASIX Certificate in accordance with the requirements of Schedule 1 of 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. Leave is granted for the Applicant to rely on amended BASIX Certification No. 850557M_02 dated 22 June 2019.

2. The appeal is upheld;

3. Development consent is granted for Development Application DA0379/17 for demolition of existing dwelling and construction of 7 new dwellings and basement carpark under Seniors Living SEPP at 33 Westbrook Avenue, Wahroonga, subject to the conditions set out in Annexure A.

……………………….

J Gray

Commissioner of the Court

********

Decision last updated: 30 July 2019