De Sousa Property Holdings Pty Ltd v Ku-ring-gai Council

[2023] NSWLEC 1616

Land and Environment Court

New South Wales

Medium Neutral Citation:

De Sousa Property Holdings Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1616

Hearing dates:

Conciliation conference on 16 October 2023

Date of orders:

19 October 2023

Decision date:

19 October 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to development application number DA501/22, seeking consent for demolition of the existing dwelling, construction of new dwelling, new driveway and modified front fence at Lot 14 in DP14922 also known as 1 Kylie Avenue, Killara, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – dwelling house development in R2 Low Density Residential zone – conciliation conference – agreement between parties - orders

Legislation Cited:

Biodiversity and Conservation Act 2016, Part 7, ss 7.2, 7.7

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.5, Sch 5

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.10

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category:

Principal judgment

Parties:

De Sousa Property Holdings Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C Rose (Solicitor) (Applicant)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/125538

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Ku-ring-gai Council (the Respondent) of Development Application 0501/22 seeking consent for demolition of an existing dwelling and the construction of a new dwelling and associated works at 1 Kylie Avenue, Killara.

2. The development application was lodged on 1 December 2022, and was notified to residents in the area between 13 December – 27 December 2022. One submission was received in response.

3. The appeal was listed for mandatory conciliation on 16 October 2023, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

4. The proceedings commenced on site and then reconvened at Court where without prejudice discussions were held which had the effect of resolving all of the issues in contention. As such, 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. A signed agreement prepared in accordance with s 34 (10) of the LEC Act and was submitted to the Court on 16 October 2023.

5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

6. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [19].

Jurisdictional Requirements

7. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

Ku-ring-gai Local Environmental Plan 2015

1. The site is located within the R2 Low Density Residential zone under the Ku-ring-gai Local Environmental Plan 2015 (KLEP) in which dwelling house development is permitted with consent. The objectives of the R2 zone are:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai

2. The maximum building height permitted on this site by operation of cl 4.3 of the KLEP is 9.5m, with which the proposal complies.

3. The maximum Floor Space Ratio (FSR) permitted on this site under cl 4.4(2) of the KLEP is 0.3:1. However, as the site area is 943m², subcl (2A) operates to increase the maximum permissible FSR to 0.37:1. The proposed FSR is 0.34:1, and so complies with this clause.

4. The site is located within a heritage conservation area identified as the Love Estate, Thorne Grant Conservation Area (C14), according to Sch 5 of the KLEP. There is also an item of heritage significance located opposite the site at 46 Elva Avenue, Killara.

5. On the basis of the Statement of Heritage Impact prepared by GBA Heritage dated September 2021, and agreement of the heritage experts, I have considered those matters at cl 5.10(4) of the KLEP, and I accept the proposed development will not affect the heritage significance of the area or heritage items in the vicinity.

6. The development application comprises excavation that I consider to be minor. As such, I accept that the excavation will not lower the water table and so consent is not required in respect of Acid Sulfate Soils under cl 6.1 of the KLEP.

7. Relatedly, I have also considered the effect of excavation and earthworks on those matters at cl 6.2(3) of the KLEP and I conclude that no detrimental impact arises.

8. Stormwater management plans prepared by Taylor Consulting accompany the proposal. On the basis of those plans, and the identification of the proposed on site detention tank, and the extent of soft landscaping shown in the Landscape Plan prepared by Peta Gilliland Landscape Design, I am satisfied that water sensitive urban design principles are incorporated into the design of the development, and appropriate stormwater management systems are integrated in the proposal to avoid any potential adverse environmental impact to adjoining properties, in accordance with cl 6.5 of the KLEP.

Biodiversity Conservation Act 2016

8. Part 7 of the Biodiversity and Conservation Act 2016 (BC Act) applies to this development application. Under s 7.2(1), development or an activity is likely to significantly affect threatened species if—

(a)  it is likely to significantly affect threatened species or ecological communities, or their habitats, according to the test in section 7.3, or

(b)  the development exceeds the biodiversity offsets scheme threshold if the biodiversity offsets scheme applies to the impacts of the development on biodiversity values, or

(c) it is carried out in a declared area of outstanding biodiversity value.

9. The site contains mapped for Biodiversity Values to the north of the site and partially along the western boundary between the site and Arthur Street. The development as proposed is to be partially carried out within the declared area of biodiversity value.

10. The BC Act at s 7.7 (2) states that:

If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.

11. The proposal is accompanied by Biodiversity Development Assessment Report, prepared by Land Eco Consulting, dated 30 August 2023.

12. A portion of the subject site comprises Sydney Turpentine Ironbark Forest, which is listed as a Critically Endangered Ecological Community under the BC Act. Based on the assessment carried out and recorded in the Biodiversity Development Assessment Report prepared by Land Eco Consulting dated 30 August 2023, I am satisfied that the siting of the building and all proposed works are such that the proposed development is not likely to significantly affect threatened species or communities.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

13. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) concerns the clearing of vegetation in non-rural areas. Consistent with the requirements of s 2.10(3), I am satisfied that the removal of the trees on the site as part of the proposed development is limited, and for reasons stated in the Arboricultural Impact Assessment Report prepared by Jackson’s Nature Works dated 14 July 2023, will not affect the heritage significance of the heritage item.

State Environmental Planning Policy (Sustainable Buildings) 2022

14. A BASIX Certificate (Certificate No. 1354729S_05 dated 13 October 2023) accompanies the application, prepared by Leech Harmon Architects in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 that, notwithstanding its repeal, continues to operate according to s 4.2 of State Environmental Planning Policy (Sustainable Buildings) 2022.

State Environmental Planning Policy (Resilience and Hazards) 2021

15. I have considered whether the site is contaminated pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. On the basis of the historical chronology set out in the Statement of Heritage Impact cited at [7(5)], I accept that there is evidence supporting the assertion of continued use of the site for low density residential purposes unlikely to lead to contamination requiring remediation. Accordingly, I conclude the site is not contaminated.

Conclusion

16. 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.

17. 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.

18. The Court notes that:

1. the Respondent as the relevant consent authority approves, under s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA501/22 in accordance with the plans and documents listed below:

Document	Prepared by:	Drawing No	Issue	Date
Context plan	Lindsay Little & Associates	DA-00G	G	13.10.2023
Site plan	Lindsay Little & Associates	DA01G	G	13.10.2023
Ground Floor Plan Sheet 1	Lindsay Little & Associates	DA02G	G	13.10.2023
Ground Floor Plan Sheet 2	Lindsay Little & Associates	DA02G	G	13.10.2023
First Floor Plan	Lindsay Little & Associates	DA03G	G	13.10.2023
Elevations	Lindsay Little & Associates	DA04G	G	13.10.2023
Elevations	Lindsay Little & Associates	DA04F	G	13.10.2023
Elevations	Lindsay Little & Associates	DA05G	13.10.2023
Sections	Lindsay Little & Associates	DA06G	13.10.2023
Fence Elevations	Lindsay Little & Associates	DA07G	R2	13.10.2023
Landscape Plan	Peta Gilliland Landscape Design	1/1	E	11.08.2023
Stormwater Management Plan	Taylor Consulting	STORM-1/F	A	10.10.2023
Stormwater Management Details	Taylor Consulting	STORM-2/A	A	06.10.2023
Biodiversity Development Assessment Report	Land Eco Consulting	1.0	30.08.2023
BASIX Certificate	Leech Harmon Architects	1354729S_05	13.10.2023
Arboricultural Impact Statement	Jacksons Nature Works	11.10.2023

2. The amended plans and documents referred to above have been filed with the Court on 16 October 2023.

Orders

19. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application number DA501/22, seeking consent for demolition of the existing dwelling, construction of new dwelling, new driveway and modified front fence. at Lot 14 in DP14922 also known as 1 Kylie Avenue, Killara, subject to the conditions of consent at Annexure A.

T Horton

Commissioner of the Court

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Annexure A

Decision last updated: 19 October 2023