Cowan Estate Pty Ltd v Ku-ring-gai Council

[2023] NSWLEC 1703

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Cowan Estate Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1703

Hearing dates:

Conciliation conference held 3 and 23 October 2023, and 6 November 2023.

Date of orders:

23 November 2023

Decision date:

23 November 2023

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA0060/23 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed amount of $20,000 within 14 days of the date of these orders.

(3) The Applicant’s written request, pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for minimum lot area and dimensions as set out at cl 6.6(2) of the KLEP, is upheld

(4) The appeal is upheld.

(5) Consent is granted to Development Application DA0060/23 (as amended) for demolition of existing structures and construction of multi dwelling housing including five dwellings, basement parking, landscaping and associated works at 62 Cowan Road, St Ives, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing development – cl 4.6 written request – minimum lot area and dimensions – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 4.6, 5.10, 6.1, 6.2, 6.3, 6.4, 6.5, 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 (Biodiversity and Conservation) 2021, chs 2, 6, ss 6.6,6.7,6.8,.6.9, 6.10

Texts Cited:

Department of Planning and Environment, Planning Circular PS 18-003 February 2018

Category:

Principal judgment

Parties:

Cowan Estate Pty Limited (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/144608

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Cowan Estate Pty Limited (the Applicant), against the deemed refusal of Development Application DA0060/23 (the DA) by Ku-ring-gai Council (the Respondent). At the time of its deemed refusal, the DA sought consent for the demolition of structures and construction of a multi dwelling housing development containing 5 dwellings, basement parking and associated works at 62 Cowan Road, St Ives (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 and 23 October 2023, and 6 November 2023. I presided over the conciliation conference.

3. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

4. Of particular note, the proposal has been amended by the Applicant to resolve the contentions initially raised by the Respondent, which included issues of floor space ratio (FSR) exceedance, inconsistency with minimum lot area and dimension controls, site isolation, building separation and setbacks, overshadowing impacts, accessibility and landscape design, amongst others.

5. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

7. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

8. The DA was publicly notified for 30 days from 8 March 2023 and a total of eight submissions were received by the Respondent. At the commencement of the conciliation conference the Court benefited from oral submissions made by a number of local residents raising issues of concern.

9. The issues raised in written and oral submissions include concerns for over-development, inadequate lot area, inaccuracies in overshadowing diagrams, streetscape impacts arising from inadequate front and side setbacks, cross viewing and acoustic privacy, inadequate visitor parking and traffic impacts.

10. The parties agree that the amended DA satisfactorily resolves relevant matters raised in public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

11. The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential and the proposed development - characterised as multi-dwelling housing - is permissible with consent.

12. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the KLEP, the proposed development is consistent with the R3 Medium Density Residential zone objectives, which include to provide for the housing needs of the community within a medium density residential environment, to provide a variety of housing types within a medium density residential environment, and to provide a transition between low density residential housing and higher density forms of development.

13. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the KLEP, demolition is permissible with development consent.

14. The parties agree, and I am satisfied, that all development standards of the KLEP have been met by the amended DA, with the exception of cl 6.6(2) - Requirements for multi dwelling housing and residential flat buildings - which establishes a minimum lot area of 1,200sqm and (for lots with an area less than 1,800sqm) a minimum width and depth of 24m.

15. The subject site has a lot area of 1,134.8sqm with a frontage to Cowan Road of 24.08m in width.

16. In such an instance, cl 4.6(3) of the KLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

17. Clause 4.6(4) of the KLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

18. Additionally, cl 4.6(4)(b) of the KLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

19. As required by cl 4.6 of the KLEP, the Applicant has provided a written request, prepared by Minto Planning Services and dated 13 October 2023, seeking to vary the minimum lot area and dimension development standard.

20. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the minimum lot area and dimension development standard for the following reasons:

1. The lot area falls short of the required 1,200sqm by 65.2 sqm, which is a variation to the development standard of approximately 5.46%.

2. Given that reasonable attempts have been made to amalgamate with the immediate neighbour to the north, the subject site can not readily be increased in area to achieve compliance.

3. The site meets the minimum 24m lot width dimension and the variation to the minimum lot area will not be readily discernible in the streetscape.

4. The amended DA represents an appropriate urban infill development and includes adequate front, rear and side setbacks. The amended DA will ensure appropriate housing stock that provides for the future needs of the community is delivered to the area.

5. The objectives of the KLEP Zone R3 Medium Density Residential land use zone include to provide for the housing needs of the community within a medium density residential environment, to provide a variety of housing types within a medium density residential environment, and to provide a transition between low density residential housing and higher density forms of development. I am satisfied the amended DA meets these objectives.

6. The objectives of cl 6.6 of the KLEP - Requirements for multi dwelling housing and residential flat buildings - include to provide 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 to ensure that lot areas and dimensions of medium 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. I am satisfied the amended DA meets these objectives.

7. The amended DA resolves the Respondent’s earlier contentions, and in particular the amended DA now adopts appropriate building setbacks to each site boundary.

21. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the minimum lot area development standard and I find to uphold the written request.

22. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the KLEP - Heritage conservation - the site is not a listed heritage item and is not situated in any heritage conservation area, nor near any listed heritage item. The parties agree, and I am satisfied that the amended DA satisfies cl 5.10 of the KLEP.

23. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the KLEP - Acid sulfate soils - the site is identified as Class 5 land within the relevant Acid Sulfate Soils Map. The Applicant has provided a Geotechnical Investigation Report, prepared by JK Geotechnics and dated 16 November 2022. The parties agree, and I am satisfied that the amended DA satisfies cl 6.1 of the KLEP.

24. The parties agree, and I am satisfied, that the DA proposes excavation including for basements, forming a matter for consideration pursuant to cl 6.2 of the KLEP - Earthworks. The Applicant has provided a Geotechnical Investigation Report, prepared by JK Geotechnics and dated 16 November 2022, and I am satisfied it addresses those matters set out at cl 6.2(3). Agreed conditions of consent reflecting the recommendations of the Geotechnical Investigation Report are imposed.

25. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the KLEP - Biodiversity protection - the site is not identified as comprising any ‘Areas of Biodiversity Significance’ within the relevant Terrestrial Biodiversity Map. I am satisfied the DA will not give rise to unreasonable impacts upon any significant vegetation or endangered flora or fauna species.

26. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the KLEP - Riparian land and adjoining waterways - the site is not identified as comprising any watercourse or riparian zone within the relevant Riparian Lands and Watercourses Map.

27. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the KLEP - Stormwater and water sensitive urban design - the amended DA is supported by stormwater management plans, which include for the collection, detention and reuse of stormwater, meeting the objectives of cl 6.5.

28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

29. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity) is an additional relevant environmental planning instrument.

30. Pursuant to ch 2 of SEPP Biodiversity, the amended DA proposes the removal of vegetation. The Applicant has provided an Arboricultural Impact Assessment Report, prepared by Urban Arbor and dated 29 September 2022. I am satisfied ch 2 of SEPP Biodiversity have been addressed.

31. Pursuant to ch 6 of SEPP Biodiversity, the site is situated within the Berowra Creek Sub-Catchment of the Hawkesbury-Nepean Catchment, a regulated catchment for the purposes of SEPP Biodiversity. The DA is supported by a stormwater design, which has been assessed by the Respondent. The parties agree, and I am satisfied, that the DA addresses those matters set out at s 6.6 of SEPP Biodiversity.

32. Similarly, the parties agree and I am satisfied, that the DA appropriately considers those matters set out at ss 6.7, 6.8, 6.9 and 6.10 of SEPP Biodiversity, which deal with mandatory aquatic ecology matters, impacts on periodic flooding that benefits wetlands and other riverine ecosystems, impacts on recreational land uses in the Hawkesbury-Nepean Catchment, and adverse environmental impacts on any adjacent or downstream local government areas.

33. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). An amended BASIX certificate number 1343206M_04, dated 27 October 2023 has been provided with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.

34. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

35. The Court notes that:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 7 November 2023.

Orders

36. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA0060/23 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed amount of $20,000 within 14 days of the date of these orders.

3. The Applicant’s written request, pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for minimum lot area and dimensions as set out at cl 6.6(2) of the KLEP, is upheld

4. The appeal is upheld.

5. Consent is granted to Development Application DA0060/23 (as amended) for demolition of existing structures and construction of multi dwelling housing including five dwellings, basement parking, landscaping and associated works at 62 Cowan Road, St Ives, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

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Amended Annexure A (496311, pdf)

Architectural Plan (15830906, pdf)

Amendments

27 November 2023 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule), upload the Amended Annexure A.

30 September 2025 - Removed underlining

Decision last updated: 30 September 2025