Eternity Era Capital Pty Ltd v Ku-ring-gai Council

[2024] NSWLEC 1632

Land and Environment Court

New South Wales

Medium Neutral Citation:

Eternity Era Capital Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1632

Hearing dates:

Conciliation Conference on 4 & 5 September 2024

Date of orders:

09 October 2024

Decision date:

09 October 2024

Jurisdiction:

Class 1

Before:

Macken AC

Decision:

The orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application DA0383/23 as amended, for phase 1 alterations and additions to an existing dwelling, the construction of a detached dual occupancy, associated landscaping works and phase 2 Torrens title subdivision for Lot B in DP 965438, commonly known as 12 Burns Road, Wahroonga, is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

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

Environmental Planning and Assessment Regulation 2021, s 38

Ku-ring-gai Local Environmental Plan 2015, cll 4.1, 4.3, 4.4, 4.6, 6.2, 6.1, Sch 1 cl 31

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6

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

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

Category:

Principal judgment

Parties:

Eternity Era Capital Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
L Sims (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/79949

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA0383/23 for phase 1 alterations and additions to an existing dwelling, the construction of a detached dual occupancy, associated landscaping works and phase 2 Torrens title subdivision for Lot B in DP 965438 commonly known as 12 Burns Road, Wahroonga.

2. The subject site is located to the north-west of the junction of Burns Road and Coonanbarra Road within the Wahroonga Heritage Conservation Area. Immediately across Coonanbarra Road is a large two-storey heritage listed house (14 Burns Road).

3. The Court arranged a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 4 & 5 September 2024. I presided over the conciliation conference, commencing with an onsite view, at which the Court, in the company of legal representatives, the applicants and experts, heard oral submissions from residents. At the conciliation conference, on the basis of amended plans and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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 Development Application.

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

Jurisdictional matters

Planning Framework

5. The site is located within the R2 Low Density Residential zone, pursuant to the Ku‑ring-gai Local Environmental Plan 2015 (KLEP). The proposal is consistent with the relevant objectives of the zone, which 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.

6. Development for the purposes of dwelling houses is permissible in Zone R2. The proposed development is construction of a dual occupancy (detached) and Torrens title subdivision of the development into two lots. Clause 31 of Schedule 1 “Additional Permitted Uses” of the KLEP allows development for the purpose of dual occupancy (detached) as permitted with development consent on this site.

7. The proposal complies with the height of buildings development standard of 9.5m under cl 4.3 of the KLEP. House 1 has a proposed height of 7.6m, and House 2 has a proposed height of 8.3m.

8. I consider that the impact of the proposed earthworks, noted in cl 6.2 of KLEP, are adequately addressed in the agreed conditions of consent, specifically conditions 15 (sediment controls); 16 (erosion and drainage management); 66 (temporary disposal of stormwater); 67 (erosion control); 93 and 94 (certification of drainage works), and are unlikely to have a detrimental impact on existing drainage patterns or soil stability.

9. The site is identified as being in an area of Class 5 Acid Sulphate Soils (ASS) on the relevant map at cl 6.1 of KLEP. However, as the maximum depth of excavation is not extending more than 1m below the natural ground surface, and the water table is not to be lowered, I accept that an ASS is not required.

10. The site is located within the Wahroonga Heritage Conservation Area, and within the vicinity of Heritage Items at Nos 6, 14, 15 Burns Road and Nos 81A and 83 Coonanbarra Road. I accept the view of the applicant and respondent’s heritage advisors that the proposed development will not have an adverse impact on the heritage significance of the heritage conservation area or on nearby heritage items.

Contravention of the minimum lot size development standard

11. The development seeks approval for a two-lot Torrens title subdivision. KLEP cl 4.1 establishes the minimum subdivision development standard for the site at 930 m².

12. The subdivision will result in two lots, Lot 1: 772.24 m², and Lot 2: 747.83 m² which do not comply with the minimum lot size development standard. The applicant has provided a cl 4.6 variation request seeking to justify the contravention of the development standard. The applicant’s written request justifies the contravention of the minimum lot size development standard on the basis that compliance is unreasonable or unnecessary because, where the erection of a dual occupancy (detached) is permissible, then development consent may be granted for the subdivision of that lot (after the dual occupancy (detached) has been erected), provided the development results in an area of at least 550 m² and each resulting lot contains one dwelling (cl 4.1(3C)).

13. Following subdivision, as each of the proposed lots would include an area of at least 550 m², and contain one dwelling, the proposal therefore would be compliant with subcl 3C of cl 4.1 of the KLEP.

14. I am satisfied that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), and that the proposed variation of cl 4.1 of the KLEP satisfies the objectives of cl 4.1 in that the lot sizes and dimensions are able to accommodate development consistent with the relevant development controls, protect heritage items and reflect the predominant subdivision pattern of the area. I am satisfied that there are acceptable planning grounds for this non-compliance, in that the proposal meets the objectives of the development standards and of the R2 Low Density Residential zone.

Contravention of the floor space ratio development standard

15. KLEP cl 4.4 establishes the maximum permissible floor space ratio (FSR) at 0.4:1. The proposal, as amended, has an FSR of 0.383:1. Therefore the proposal as a whole complies with the development standard.

16. The FSR of subdivided Lot 1 has an FSR of 0.28:1 which complies with the development standard.

17. The FSR of subdivided Lot 2 has an FSR of 0.485:1 which does not comply with the development standard. The applicant has provided a cl 4.6 variation request seeking to justify the variation to the FSR development standard for Lot 2.

18. I am satisfied that that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) and that the proposed variation of cl 4.4 of the KLEP satisfies the objectives of cl 4.4 in that the proposed built form and density of the development is compatible with the size of the land to be developed and its contextual relationship. I am satisfied that there are acceptable planning grounds for this non-compliance, in that the proposed boundary location has been established in order to provide an appropriate separation from the existing contributory building.

State Environmental Planning Policy (Resilience and Hazards) 2021

19. On the basis that the site has been used for residential purposes for a substantial period of time, I accept that the site is unlikely to be contaminated and is suitable for the purpose for which development is proposed to be carried out, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021.

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

20. The application is accompanied by a BASIX certificate (1759972M dated 14 August 2024), prepared by AENEC, in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 . A condition of consent requires the BASIX certificate to be updated to reflect the amended plans prior to the grant of the construction certificate.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

21. Chapter 6 (Water Catchments) of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site as it is located within the Hawkesbury-Nepean catchment. I accept that the amended stormwater plans prepared by JCO Consultants P/L demonstrate that the development has been designed in accordance with typical stormwater capture, filtration and release measures, and that the proposed conditions of consent, specifically conditions 15 (sediment controls); 16 (erosion and drainage management); 25 (construction waste management plan); 66 (temporary disposal of stormwater); 67 (erosion control); and 93 & 94 (certification of drainage works) are consistent with the requirements of Chapter 6 Water Catchments of the Biodiveristy SEPP.

Conclusion

22. I have considered the submissions made by the parties in the Jurisdictional Statement filed with the Court on 5 September 2024 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

23. I am required under s 34 (3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

24. 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.

Notes:

25. The Court notes that:

1. The respondent, Ku-ring-gai Council, as the relevant consent authority, has approved, under section 38(1) of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application No DA0383/23 to rely on the documents as outlined in Annexure A.

2. The applicant filed the plans and documents listed in Annexure A on 5 September 2024.

Orders

26. The orders of the Court are:

1. The appeal is upheld.

2. Development Application DA0383/23 as amended, for phase 1 alterations and additions to an existing dwelling, the construction of a detached dual occupancy, associated landscaping works and phase 2 Torrens title subdivision for Lot B in DP 965438, commonly known as 12 Burns Road, Wahroonga, is determined by the grant of consent subject to the conditions in Annexure A.

Niall Macken

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 09 October 2024