Futurespace Pty Ltd v Ku-ring-gai Council

[2009] NSWLEC 1389

Land and Environment Court

of New South Wales

CITATION:	Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 1389
PARTIES:	APPLICANT Futurespace Pty Ltd RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10513 of 2009
CORAM:	Moore SC - Fakes C
KEY ISSUES:	DEVELOPMENT APPLICATION - DEVELOPMENT STANDARDS :- SEPP 1 objections Impact on development potential of neighbouring properties S 94 contributions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance State Environmental Planning Policy 1 Uniform Civil Procedure Rules 2005
CASES CITED:	Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153 Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46
DATES OF HEARING:	12 and 13 November 2009
DATE OF JUDGMENT:	25 November 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings, barrister INSTRUCTED BY Hones La Hood RESPONDENT Mr J Robson SC INSTRUCTED BY Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES C

25 November 2009

09/10513 Futurespace Pty Ltd v Ku-ring-gai Council

JUDGMENT

1 COMMISSIONERS: As a consequence of government policy for increased density and thus increased high-rise development in a number of the villages within Ku-ring-gai Council's (the council’s) area, including Turramurra, a new local environmental plan is to be adopted that will increase, in the vicinity of the site which is the subject of these proceedings, the land zoned for such purposes.

2 That new local environmental plan, to be known as the Ku-ring-gai Local Environmental Plan (Town Centres) 2008 (the Town Centres LEP), is based on the zones contained in the State government's template local environmental plan.

3 The present applicable planning regime is the Ku-ring-gai Planning Scheme Ordinance (the KPSO). Under the KPSO, the site is zoned 2(d3) and the proposal is permissible. An extract from the relevant zoning map showing the site marked with black edge and circled appears immediately below.

4 Under the Town Centres LEP, the site is to be zoned R4 and the proposal will be similarly permissible. A copy of the relevant element of the proposed zoning map under the Town Centres LEP appears below. On this map, we have outline marked the site in green; the properties at 1 and 3 Nulla Nulla Street (to the east) in pink; and the Uniting Church property on the opposite side of Turramurra Avenue in white. The relevance of these additional properties is explained later in this decision.

5 Ms Pearson and Mr Minto, the town planning experts for the council and the applicant respectively, agree that the Town Centres LEP is both imminent and certain. Although cl 1.8A of the Town Centres LEP contains the standard savings clause for the new LEP template, we are satisfied that, under the circumstances of these proceedings, considerable (and near determinative) weight is to be given to the provisions of the Town Centres LEP.

6 In September 2009, the applicant sought and was granted leave to rely on amended plans and, in those proceedings before Pepper J, was the subject of a costs order in favour of the council pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 (the Act) (see Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153).

7 After the joint conferencing in these proceedings of the two planning experts and Mr Smith, the council's urban designer, the applicant sought leave to rely on further amended plans responsive to a number of detailed concerns raised during the joint conference process. Leave was granted and a further costs order, in an agreed sum, was made pursuant to s 97B(2) of the Act to reflect the additional costs since the earlier costs order was made by Pepper J.

The proposal

8 The applicant seeks development consent for the demolition of the three existing dwellings at 7, 9 and 11 Turramurra Ave, Turramurra (the site) and the erection of a 27 dwelling residential flat building with 3 basement levels of car parking on the site. The site is on the southern corner of Turramurra Ave and Nulla Nulla Street.

The issues

9 The consequence of the further amendments during this hearing is that there remained to be determined only three broader issues raised by the council and some other issues pressed by local objectors but not adopted by the council.

10 Issues pressed by the council were:

• whether permitting development of this site would cause an unacceptable impact on the proposed future development of 1 and 3 Nulla Nulla Street;
• was the objection to compliance with the setback provisions of the KPSO, made pursuant to State Environmental Planning Policy 1 (SEPP 1), well founded? and
• was the uppermost level proposed compliant with the provisions of clause 25I(7) of the KPSO and, if not, was the objection to compliance, made pursuant to SEPP 1, well founded?

11 Additional matters raised by local objectors are noted below.

The site inspection and local objections

12 During the course of the site inspection, we heard evidence, informally, both at the street frontage and in the rear yard of 1 Nulla Nulla Street. This related to their concerns about impacts on their property’s development potential when this property and the battle-axe property to the rear (3 Nulla Nulla Street) are rezoned following the coming into effect on the Town Centres LEP. These objectors also raised their concerns about overshadowing of their backyard and the possible impact of the construction process on the integrity of their dwelling. We are satisfied that this latter concern is resolved by the dilapidation report condition contained in the council’s without prejudice conditions of consent – a condition that, subject only to an addition discussed later, was accepted by the applicant as appropriate. We have examined the shadow diagrams and note that the winter solstice shadow impact on this rear yard does not cross the fence to the west until shortly before 1 PM. In conventional planning terms, this is acceptable and we do not consider that this provides any proper concern about the proposal. There is certainly no basis in this issue warranting refusal of or requiring any further modification to the proposal.

13 Additional issues were raised including traffic, parking and the like arising out of the range of the written objections from the two residents who gave oral evidence and the other written objections tendered by Mr Robson SC, counsel for the council. These were dealt with in the council's assessment report and the council has no concerns about them. As the design of the proposal has its vehicle entrance from Nulla Nulla Street, it thus avoids potential traffic difficulties and vehicle conflicts not only in Turramurra Avenue as presently configured but also, given a new road is provided for in the Town Centres LEP to link Turramurra Avenue and Wall Street, to the west opposite the site, when this eventuates as part of the redevelopment envisaged by the Town Centres LEP.

14 Having considered the council's assessment reports, we are satisfied that there is no basis in these additional issues warranting refusal of or requiring any further modification to the proposal.

15 We then proceeded to the street frontage of 5 Turramurra Avenue, owned by Dr Chai (who gave oral evidence) and his wife, and then into its rear yard. Dr Chai raised concerns about overshadowing and privacy during this inspection. In addition, his written submissions not only canvassed these issues but also a number of the other matters raised as part of the range of community objections. We have considered the shadow diagrams and accept that there will be a significant impact on the rear yard of his premises. However that impact, although not acceptable to him, is one that is almost entirely caused by the degree of development envisaged by the Town Centres LEP. This impact will be moderated, to a minor extent, by the changes to be made to the uppermost level for reasons discussed later in this decision. When those changes are made, rendering the proposal compliant with that which is envisaged pursuant to the Town Centres LEP and, indeed, the draft Development Control Plan accompanying it, the overshadowing impact on the rear of Dr Chai’s property is acceptable in this context.

16 The third objector who gave evidence during the course on site inspection was Mr Wesley who spoke on behalf of the Uniting Church’s property arm concerning impacts on the Uniting Church diagonally across Turramurra Avenue to the south-west of the site. These concerns related to possible construction vibration impacts on the church building, particularly the old Chapel section which is proposed to be listed as a heritage item under the Town Centres LEP. Mr Wesley was also concerned about the possible impact of construction activities on the church’s major weekday ceremonial activities, such as funerals, as might take place during the construction phase of the proposal.

17 The applicant has agreed to incorporate the church property in the condition of the without prejudice conditions requiring the preparation of dilapidation reports and we are satisfied that this is an appropriate response to these concerns. In addition, the without prejudice conditions contain a requirement to consult with the church about the scheduling of works during the construction phase in order to ensure, as much as is reasonably possible, that construction activities on the site do not interfere with the churches activities. This, we accept, is an appropriate response to this concern.

18 As the consequence all the foregoing, we are satisfied that the community objections, except to the extent that they supported the remaining issues raised by the council, do not provide any basis for refusal of or warrant any changes to the proposal or have been appropriately accommodated within the without prejudice conditions.

Limitation on development potential of 1 and 3 Nulla Nulla St

19 As earlier noted, as a consequence of the proposed changes to the zone boundary for the R4 zone to be implemented when the Town Centres LEP comes into force, the two properties to the east of the site, 1 and 3 Nulla Nulla St, will be included in the higher density zone within which the site is located rather than in a slightly lower density zone as is presently the case. These positions are shown on the map extracts reproduced earlier.

20 The council now says that permitting the proposed development will have an inappropriate and restrictive impact on the development potential of 1 and 3 Nulla Nulla St. The council does not say, it is important to note, that these sites will be isolated as the council's planning controls have specific provisions relating to isolation of sites and these are not pressed by the council in these proceedings.

21 In addition to the changing zoning boundaries, the Town Centres LEP also includes a variety of maps that record matters to be taken into account when considering development proposals. One of those maps is relevant to the present proceedings – this being a map that shows biodiversity/vegetation corridors and locations to be taken into account pursuant to the Town Centres LEP. Portions of the north-eastern corner of 1 Nulla Nulla Street and of the access handle to 3 Nulla Nulla St are mapped as being affected by the requirement to undertake a biodiversity assessment.

22 The council's position, put by Ms Pearson and Mr Smith, is that permitting the present development would leave 1 and 3 Nulla Nulla St unable to realise anything close to their full development potential of using a permitted maximum floor space ratio of 1.3:1 under the Town Centres LEP. It is the council's contention that, although it would be technically possible to consolidate these two allotments when either 1, 3 and 5 Turramurra Avenue or, if the comparatively new seniors living development on 1 Turramurra Avenue were not to be incorporated, with 3 and 5 Turramurra Avenue, such a development would not realise an appropriate development for such a consolidated site.

23 In this context, it is appropriate to note that cl 25I(3) of the Town Centres LEP provides that any development site in the R4 zone must have at least one street frontage of 30 m. 1 and 3 Nulla Nulla St, by themselves, do not need this requirement and thus, prima facie, could not be developed by themselves.

24 Although an objection to compliance with that requirement, pursuant to SEPP 1, might possibly be made, it is not appropriate for us to speculate on whether or not such an objection would be sustained. We therefore set aside any consideration of that possibility in our assessment of the present issue

25 To some extent, the evidence given by Ms Pearson was based on the assumption that there is a necessity, for policy reasons in reaching strategic targets for increased dwelling numbers, to maximise the yield from all development potential on any site in these higher density zones. Mr Smith's evidence appeared to be similarly based.

26 However, in undertaking an assessment of any proposal (and, in this instance, undertaking an assessment of the present proposal), there are two fundamental flaws in this approach.

27 The first flaw is the assumption, implicit in Ms Pearson’s and Mr Smith's evidence, that a development with something close to the maximum permissible floor space ratio should be able to be achieved for any site which incorporated 1 and 3 Nulla Nulla St. This misunderstands the role of prescribed floor space ratio controls. Floor space ratio controls provide both a limit and, for a developer, a target to which they may aspire in designing a development proposal but the floor space ratio most certainly does not comprise an entitlement or near entitlement on any site.

28 The second flaw links inextricably with the first. This flaw ignores the fact that any proposal for any site must be assessed having regard to the constraints on that site. Such constraints may arise from traffic patterns restricting driveway locations; significant trees that are required to be retained imposing development restrictions required by Australian Standard AS4970:2009 to protect root zones and the like.

29 A classic example of such a constraint exists today opposite the site to the south-west – being the Uniting Church site to which we have earlier referred. As noted, the old Chapel on this site is to be listed as a local heritage item when the Town Centres LEP comes into effect. The whole of the significantly sized allotment upon which the church buildings are located is also to be zoned R4 for high-density redevelopment by the Town Centres LEP. This is an alteration to the zoning from the present church purposes zoning under the KPSO.

30 It was Ms Pearson’s evidence that the presence of a heritage item on this allotment would not permit redevelopment of that allotment to achieve its “highest and best use” without the demolition of the heritage item occurring. By “highest and best use”, in this context, we understand her evidence to mean a development approaching or tending toward the maximum permitted floor space ratio. This site demonstrates, in a local context, a classic example of how constraints on development on a particular site must be taken into account when assessing the development potential of that site.

31 Similarly, for 1 and 3 Nulla Nulla St, the biodiversity mapping earlier referred to also represents a constraint, on those allotments, to be considered when assessing any future development proposal. We need not speculate about how that biodiversity mapping may constitute a design restriction that would cause some limitation on the development potential of any site which included those allotments (whether a hypothetical consolidation with the site of the present proposal or some alternative consolidation pattern) – merely to note its existence.

32 In this instance, if the presently proposed development were to be approved, a variety of street frontage compliant development opportunities incorporating 1 and 3 Nulla Nulla Street would be available. They would include consolidation with 1, 3 and 5 Turramurra Avenue; with 3 and 5 Turramurra Avenue or an across zone boundary redevelopment with allotments fronting Nulla Nulla Street to the east of 1 and 3. Any one of these redevelopment options would necessarily contain a variety of design challenges but would all have available compliant street frontages as required by cl 25I(3) of the Town Centres LEP. Meeting the design challenges of any of these would require consideration and response to the constraints of any one of these hypothetically available consolidations. Whilst the constraints of any one of these hypothetical consolidations might, indeed probably, would impose design limitations that would restrict the floor space ratio yield on such a site, we do not consider that the council has demonstrated that, in any practical sense, those restrictions would effectively cancel out of the development potential arising from the change in zoning of 1 and 3 Nulla Nulla Street. As a consequence, we do not accept that the possible impact on the development potential of 1 and 3 Nulla Nulla Street warrants refusal of his proposal.

33 For completeness with respect to this aspect of the council's concerns, we reject the evidence given by Mr Smith that using 1 and 3 Nulla Nulla St as an access point, for development on a consolidated site combining the Nulla Nulla Street frontage properties and properties fronting Turramurra Avenue (if such an access point were desirable for traffic conflict or any other reasons) would inappropriately restrict the development potential of the Nulla Nulla Street frontage properties. Whilst some constraints might arise, those, too, are matters to be considered in any design process for such a development and its subsequent consent assessment.

The SEPP 1 objection to compliance with setback requirements

34 The applicant relies on an objection pursuant to SEPP 1 being sustained to permit non-compliance with zone interface setback requirements with 1 and 3 Nulla Nulla Street as required by cl 25L(2) of the KPSO. The joint expert evidence of the town planners and the council's urban designer is that, given the imminence and certainty of the Town Centres LEP, this objection should be sustained. We have considered the terms of the SEPP 1 objection and, as we agree with the conclusion that they have reached, the objection should be sustained.

35 Mr Robson did not seek to persuade us that this conclusion is incorrect. However, he did submit that the necessity for this SEPP 1 objection and the second SEPP 1 objection, discussed below, concerning floor area of the uppermost level, is an indication that the bulk and scale of the proposal is too great and provides reinforcement for the reasons advanced by the council as to why the SEPP 1 objection concerning the uppermost level of the proposal should be rejected.

36 Given the conclusion we have reached concerning that separate issue, as discussed below, it is not necessary for us to consider, further, this argument – save to note that we have not adopted this submission in our reasons for supporting the council's contention concerning this uppermost level.

37 As earlier noted, the KPSO contains a control governing the floor area of the uppermost floor of any residential flat building that has more than three floors. The control is in the following terms:

(7) Limit on floor area of top storey

In Zone No 2 (d3), where the maximum number of storeys permitted is attained, then the floor area of the top storey of a residential flat building of 3 storeys or more is not to exceed 60% of the total floor area of the storey immediately below it.

38 In this instance, there is no dispute between the parties as to the area calculations – merely as to the basis upon which the calculations should be undertaken. Fundamentally, the difference between the parties is whether or not the area calculation for the lower of the two relevant floors is to be confined to areas within enclosing walls consistent with the definition of “gross floor area” contained in Part IIIA of the KPSO. That definition is in the following terms:

gross floor area means the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the inner faces of the external enclosing walls, as measured at a height of 1,400 millimetres above each floor level, but excluding:

a. columns, fin walls, sun control devices, awnings and any other elements, projections or works outside the general lines of the outer face of the external walls, and
b. lift towers, cooling towers, machinery and plant rooms, and air conditioning and ventilation ducts, and
c. ancillary car parking and any associated internal designated vehicular and pedestrian access thereto, and
d. space for loading and unloading of goods, and
e. internal public areas, such as arcades, atria and thoroughfares, terraces and balconies with outer walls less than 1,400 millimetres high.

39 As we understand it, it is agreed between the parties that, if this definition is applied, the relevant ratio of gross floor area of the uppermost level compared to that of the gross floor area of the floor immediately below is some 67% and is thus not compliant.

40 At this point, it is pertinent to note that cl 25I(7) uses the words “total floor area” rather than “gross floor area” and therein lies the genesis of the dispute between the parties. Put succinctly, the council says that it is appropriate to read the words “total floor area” in cl 25I(7) as meaning “gross floor area” as the words “total floor area” have no separate definition. In addition, it is said that the council has consistently applied this calculation basis to past applications where this provision needed to be considered.

41 On the other hand, Mr Minto has undertaken calculations based on what he considers to be an appropriate total floor area of the uppermost level and the floor below the uppermost level by including balcony spaces. On the basis of his calculations, the present proposal is compliant. Mr Minto also considered that he had an appropriate basis to believe that the council has, with respect to a development consent granted for a site which includes the site, being 5, 7, 9 and 11 Turramurra Avenue, has granted that development consent on the calculation basis that he advocates in these proceedings.

42 Part IIIA of the KPSO defines “gross floor area” and then does not subsequently use that term for any other purpose apart from its incorporation in the definition of “floor space ratio” in the definitions portion of Part IIIA. In addition, Part IIIA of the KPSO also uses the expression “total floor space area” in a number of provisions and this, too, is an undefined term.

43 Although the development control plan to be introduced when the Town Centres LEP takes effect makes it clear that the basis of interpretation of this provision (as it is carried forward unchanged into the Town Centres LEP), in future, is to be gross floor area, we do not consider that that provides the council any assistance in these proceedings.

44 The suggestion that the council might not have applied a gross floor area to gross floor area ratio consistently in the past was first suggested to the council, we accept, at the commencement of this hearing. As a consequence, Ms Pearson was only able to respond overnight, rather than on a more detailed and well-researched basis. It was her evidence that, to the best of her knowledge and belief, the council had consistently applied the gross floor area to gross floor area calculation basis. She held this view not only from her own experience but also from discussions with other of the council's executive planners in workshops, she said during the course of her oral evidence.

45 In addition, with respect to the existing consent covering a site comprising this site and the adjacent allotment to the south, she said that she had seen correspondence of the council's file, as she was the original assessing officer, that, as she recollected, reflected a position where the original design had not complied on a gross floor area to gross floor area calculation basis but that there was subsequent correspondence indicating that the applicant for that consent had revised the plans to reflect compliance with the calculation basis adopted by the council. On that recollection, she was of the view that in the council had accepted that the that proposal complied on the council’s calculation basis. Her evidence in this regard is uncontradicted.

46 As a consequence of this evidence, even if the belief that the plans had been adjusted to reflect the calculation basis adopted by the council was not founded in what the applicant for that consent had actually done , we accept that the council had been informed and had accepted an assurance that this had taken place. As a consequence, even though there may in fact have been some departure from the council's preferred calculation basis, we accept that such departure would not have been intended to be permitted by the council and was, in fact, contrary to an assurance received by the council that such departure had not occurred. As a consequence, we are satisfied that we should treat the council's preferred calculation basis as the calculation basis that the council has consistently applied or intended to be applied to such developments.

47 Although there is no definition of the precise expression used, we do not accept that the absence of the word “gross” should be read as an express intention in the drafting to imply a departure from the definition of gross floor area. The absence of an alternative definition, together with the definition of an expression that would provide precision when coupled with the past consistency of approach by the council causes us to conclude that we should adopt a gross floor area to gross floor area ratio as an appropriate calculation basis for assessing whether or not the proposal complied with the provisions of cl 25I(7). Adoption of that basis causes us to conclude that the proposal does not comply with the relevant development standard contained in cl 25I(7).

48 Although not originally relied upon, prior to the hearing, for prudence in anticipation of the possibility that we would hold as we have held with respect to this development standard, Mr Hemmings, counsel for the applicant, sought and was granted leave to tender an objection pursuant to SEPP 1 to compliance with this development standard. This objection, prepared by Mr Minto, is in the conventional form, now regularly used, of addressing the five questions posed by Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46. These questions are:

First, is the planning control in question a development standard?

Second, what is the underlying object or purpose of the standard?

Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act?

Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?

Fifth, is the objection is well founded?

49 With respect to the first of the Winten questions, there is no dispute that that which is contained in cl 25I(7) is a development standard and that, consistent with our earlier determination on this point, that development standard is to be calculated on a gross floor area to gross floor area ratio basis.

50 As to the second of the Winten questions, in the SEPP 1 objection, Mr Minto put the underlying purposes of the standard in the following terms:

• Reduce building bulk,
• Provide for building articulation, and
• Provide for a high-quality residential outcome.
• Minimise detrimental impacts.

51 On the other hand, Ms Pearson gave evidence that she considered that the underlying objectives could be derived from Development Control Plan 55 (DCP 55) which states the objectives, relevantly, in the following terms:

Top floor design that minimises visual bulk, promotes articulation and prevents any increased overshadowing.

52 Although each of them has drawn attention to differing words, for practical purposes, there is only one significant difference in approach. We consider that Mr Minto’s “Minimise detrimental impacts” does not sit comfortably with the express prohibition “prevents any increased overshadowing” in DCP 55 and, to the extent that these words in DCP 55 are more restrictive, we adopt them rather than Mr Minoto’s formulation. For reasons that follow, this difference is critical.

53 With respect to the third Winten question, the aims of SEPP 1 contained in cl 3 of the policy and are in the following terms:

This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act.

54 The relevant objectives of the Act are:

The objects of this Act are:

(a) to encourage:

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,
(ii) the promotion and co-ordination of the orderly and economic use and development of land,

55 In his SEPP 1 objection, Mr Minto, with respect to compliance with the aims of the policy and of the Act, in his third proposition in support of a submission that the strict compliance would prevent attainment of the objects, wrote:

The proposal does not result in any unreasonable impacts.

56 This proposition, of course, begs the question of whether there are any impacts of the proposal. In fact, as Mr Minto acknowledges in his discussion of the fourth Winten question, there are additional overshadowing impacts on 5 Turramurra Avenue as a consequence of the non-compliant uppermost level. Mr Minto's SEPP 1 objection does not contain any analysis of these additional overshadowing impacts and merely makes the assertion set out above at this point. As a consequence, we do not accept that the applicant has demonstrated that an affirmative answer has been established to this third Winten question. A further consequence of this is that it is unnecessary for us to consider the fourth and fifth Winten questions. However, for completeness, we do so.

57 With respect to the unreasonableness of or lack of necessity for compliance with the standard, Mr Minto does mention overshadowing to 5 Turramurra Avenue and says:

A reduction in the top floor area is unlikely to result in any beneficial reduction in the overshadowing cause to the joint properties and in particular No 5 Turramurra Avenue.

58 Although we do not have shadow diagrams that show any lessening of the extent of overshadowing of 5 Turramurra Avenue that would result if the development work to be compliant with this control, the shadow diagrams that are in evidence show that the overshadowing impact on this property is significant. Whilst the improvement that might be gained by requiring a compliant development, in the terms agreed by the experts as discussed below, may be comparatively minor, nonetheless given the extent of the overshadowing, any improvement has some importance for the amenity of that property. The extent of this overshadowing is such that any improvement, no matter how modest, by requiring compliance with the cl 25I(7) standard is desirable – and required by DCP 55. As a consequence, we do not consider that it is either unreasonable or unnecessary to require compliance with this development standard.

59 As a consequence, we do not accept that the SEPP 1 objection to having an area compliant uppermost level is well founded.

60 During the course of a further joint conference (that took place during the court hearing), the two planners and the council's urban designer were asked to consider what would be an appropriate alteration to the uppermost level if it were required to be compliant with the council’s interpretation of cl 25I(7). They agreed on a plan that they considered, (subject to the council officers noting that they considered a detailed plan was required to give effect, if required, to their agreement), would both meet numerical compliance with the development standard and be of an acceptable design improving the external impacts. A copy of this plan was tendered as an appendix to the supplementary joint report.

61 Given the conclusion that we have reached concerning strict compliance with the standard, we have examined this plan and accept the agreement between the experts (both as to its prima facie compliance with the development standard and its appropriate external design response). We are also satisfied that, should it not be strictly compliant, any such non-compliance would, itself, be so de minimis as not to warrant further separate consideration or any further objection pursuant to SEPP 1.

62 As a consequence, we are satisfied that it would be appropriate to incorporate a scale copy of that plan as an annexure to the conditions of consent amending the plans otherwise enumerated in those conditions of consent. We have done this because Mr Robson accepted that, should we have reached the conclusions that we have detailed above, it would be appropriate to give development consent in such a form amended by condition. Similarly, Mr Hemmings indicated that the applicant was desirous of receiving development consent in such terms if the applicant did not succeed with respect to the originally sought form for the uppermost level.

Contested conditions of consent

63 There are two areas in the conditions of consent that are contested. The first relates to the time by which consolidation of the three allotments into a single allotment is to be achieved and the second concerns the time for payment of the contributions required by s 94 of the Act.

64 With respect to the first contested condition, Mr Hemmings submitted that, because of delays in the title registration process for consolidation, it would be inappropriate to require consolidation prior to the issue of the construction certificate as this would have the effect of delaying commencement of construction for a significant length of time with the delay not being the fault of the applicant. Mr Robson submitted that there would be difficulties for the council if, for some reason, consolidation did not occur prior to construction as there might then be unspecified problems in dealing with a part constructed building on a number of separate allotments should, for some reason, the development fail.

65 We see little merit in the council's position on this condition and are satisfied that, given that requiring the delaying of development until after consolidation was registered (with the delay not occasioned by any fault of the applicant), this would be contrary to the orderly economic development of the land (being one of the objectives of the Act). As a consequence, we are satisfied that consolidation of the allotments should occur prior to the issue of an occupation certificate.

66 With respect to the payment of contributions, Mr Hemmings did not contest Mr Robson's submission that the council has consistently applied the contributions conditions in the form currently proposed by the council. Mr Hemmings was unable to point to any special circumstances that would satisfy the requirements of s 94B(3) of the Act to warrant departure from the payment regime proposed by the council. As a consequence, the contributions conditions proposed by the council will remain in the form proposed by the council.

Conclusion

67 We have concluded that there is no inappropriate impact on the development potential of 1 and 3 Nulla Nulla Street that would warrant refusal of the proposal. We have concluded that the basis upon which the council has calculated compliance with cl 25I(7) of the KPSO is the appropriate basis and that the applicant's objection pursuant to SEPP 1 to compliance with the development standard should not be sustained.

68 However, we are satisfied that an appropriate compliant development, consistent with the reduced area design for the uppermost level as agreed by the experts, is appropriate and that this compliant design can be required by the conditions of consent requiring alteration of the design of the uppermost level in accordance with the altered design agreed by the experts. As a consequence, development consent reflecting all our conclusions can be given forthwith.

69 However, if the parties considered it appropriate that an amended uppermost level plan should be incorporated in the approved plans and referred to in the conditions of consent, this is capable of being achieved by amendment to the orders, prior to their being entered, if an appropriate application is made pursuant to Part 36 rule 15(2) of the Uniform Civil Procedure Rules 2005. If the parties pursued this course, we would facilitate such an adjustment to the conditions of consent by amending the orders in chambers.

70 With respect to the contested conditions of consent, we are satisfied that it is not appropriate to require consolidation of the allotments prior to the issue of the construction certificate but it should take place, as proposed by the applicant, prior to issue of any occupation certificate. We also consider that the council's proposed time for payment of development contributions is appropriate.

71 As a consequence of all the foregoing, the orders of the Court are:

1. The appeal is upheld;
2. Objection pursuant to SEPP 1 to compliance with the development standard for setbacks in cl 25L(2) of the Ku-ring-gai Planning Scheme Ordinance is sustained;
3. Objection pursuant to SEPP 1 to compliance with the development standard for top storey floor area in cl 25I(7) of the Ku-ring-gai Planning Scheme Ordinance is not sustained;
4. Development Application DA 0283/09 for the demolition of the 3 existing dwellings at 7, 9 and 11 Turramurra Ave, Turramurra and the erection of a 27 dwelling residential flat building with 3 basement levels of car parking is determined by the granting of development consent subject to the conditions in Annexure A; and
5. The exhibits, other than Exhibits 2, 6, A, B, C, D, E and H, are returned.

Tim Moore
Senior Commissioner

Judy Fakes
Commissioner of the Court