Evergordon Pty Ltd v Ku-ring-gai Council

[2020] NSWLEC 1313

Land and Environment Court

New South Wales

Medium Neutral Citation:

Evergordon Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1313

Hearing dates:

Conciliation conference on 26 May 2020

Date of orders:

22 July 2020

Decision date:

22 July 2020

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at Condition 1 in Annexure A.

(2) The Applicant is to pay the Respondent’s s8.15(3) costs thrown away in the proceeding as agreed or assessed.

(3) The Applicant’s written request dated 27 May 2020 prepared by Evolution Planning pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (‘KLEP 2012’) seeking a variation of the development standard for height of buildings set out in clause 4.3 of KLEP is upheld.

(4) The appeal is upheld.

(5) Development Application DA0316/19 seeking the alterations and additions to a shop top housing development at Lot 17 in DP 249171, known as 900 Pacific Highway Gordon is approved subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – alterations and additions to shop top housing – variation to maximum height – amended plans – 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 (Local Centres) 2012

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

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

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development

Texts Cited:

Department of Infrastructure, Planning and Natural Resources, ‘Seniors Living Policy: Urban Design Guidelines for Infill Development’ (March 2004)

Category:

Principal judgment

Parties:

Evergordon Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
V Conomos (Solicitor) (Applicant)
A Hudson (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2019/301333

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant, Evergordon Pty Ltd, has appealed pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Ku-ring-gai Council of Development Application No. DA0316/19. The development application seeks consent for alterations and additions to a shop top housing development at Lot 17 in DP 249171, known as 900 Pacific Highway, Gordon (the site).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 26 May 2020. Through the conciliation process, the parties have agreed to an amended design for the development. Following 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. The development application was lodged with the consent of the owners of the land to which the development relates: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation).

2. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. The Statement of Environmental Effects which accompanies the development application references an Environmental Assessment undertaken by Sullivan Environmental Sciences. That report concludes that the site is suitable for the proposed high-density residential use.

3. The development application is made pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH). The provisions of SEPP ARH apply as the development satisfies the requirements of cl 10 of SEPP ARH.

4. The proposed development complies with the applicable floor space ratio standard at cl 13 of SEPP ARH. Nine apartments (Units 101-103, 201-204, 301 & 303) are allocated to affordable housing (condition 125).

5. In determining the development application, I have taken into consideration the provisions of the ‘Seniors Living Policy: Urban Design Guidelines for Infill Development’ published by the Department of Infrastructure, Planning and Natural Resources in March 2004.

6. Consideration has been given as to whether the design of the development is compatible with the character of the local area, as required by cl 30A of the SEPP ARH. I accept the parties’ agreement that as a result of amendments to the plans, the design is compatible with the local character.

7. The subject site is zoned B4 Mixed Use under Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (LEP 2012) in which shop top housing is permitted with consent. I have given consideration to the objectives of the zone in determining the development application.

8. The proposed development relies on a variation to the maximum height development standard of 26.5m applicable to the subject site. The Applicant has filed a written request pursuant to cl 4.6 of LEP 2012 prepared by Evolution Planning Pty Limited dated 27 May 2020. This request accords with the amended plans and seeks a variation to the height development standard. I reviewed the request and in accordance with cl 4.6 of LEP 2012, I am satisfied that:

1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2012).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of LEP 2012).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2012 are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the B4: Mixed Use Development zone and the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2012 are met.

5. Pursuant to cl 4.6(5) I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

6. The states of satisfaction required by cl 4.6 of the LEP 2012 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control.

9. Consistent with the requirements of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, the Applicant has submitted a design verification statement.

10. State Environmental Planning Policy (Infrastructure) 2007 applies. At cl 102 it requires that residential development adjacent to a road corridor meet specific noise criteria. I am satisfied that these criteria are met on the basis of the acoustic impact assessment accompanying the development application and the imposition of conditions.

11. In determining to grant development consent for the ancillary earthworks, I have given consideration to the matters at cl 6.1(3) of LEP 2012.

12. Clause 6.6 in LEP 2012: Ground Floor development in business zones. The precondition at sub cl 4, is satisfied by the development proposed.

13. An updated BASIX certificate has been provided to satisfy the requirement in Schedule 1 of the Regulation and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

14. The application was notified in accordance with the relevant development control plan and I am satisfied that the submissions have been considered.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to amend the development application and rely upon the following plans in the proceedings referred to at Condition 1 in Annexure A.

2. The Applicant is to pay the Respondent’s s8.15(3) costs thrown away in the proceeding as agreed or assessed.

3. The Applicant’s written request dated 27 May 2020 prepared by Evolution Planning pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (‘KLEP 2012’) seeking a variation of the development standard for height of buildings set out in clause 4.3 of KLEP is upheld.

4. The appeal is upheld.

5. Development Application DA0316/19 seeking the alterations and additions to a shop top housing development at Lot 17 in DP 249171, known as 900 Pacific Highway Gordon is approved subject to the conditions in Annexure A.

………………………………..

D M Dickson

Commissioner of the Court

Annexure A (370753, pdf)

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Decision last updated: 22 July 2020