Gelder v Ku-ring-gai Council

[2024] NSWLEC 1564

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gelder v Ku-ring-gai Council [2024] NSWLEC 1564

Hearing dates:

Conciliation conference on 18 June and 31 July 2024

Date of orders:

13 September 2024

Decision date:

13 September 2024

Jurisdiction:

Class 1

Before:

Harding AC

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $12,000.
(2) The appeal is upheld.
(3) Development Application No DA/0370/23 for the demolition of existing structures and construction of 13 independent living units (housing for seniors and people with disability), basement parking and associated works on the land at Lot 3 and 4 in Deposited Plan 252194 known as 33B and 35 Clissold Road, Wahroonga, is determined by the grant of development consent, subject to the conditions set out in Annexure B.

Catchwords:

DEVELOPMENT APPLICATION – housing for seniors and people with a disability – independent living – amended plans – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Div 2, Pt 4
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15
Land and Environment Court Act 1979, s 34
Rural Fires Act 1997

Environmental Planning and Assessment Regulation 2021, ss 27, 38
State Environmental Planning Policy (Housing) 2021, Ch 3, Pt 5
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022
Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 6.1, 6.2, 6.3

Category:

Principal judgment

Parties:

Stuart Gelder (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
D Tyrell (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Tyrells Law (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2023/443328

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Stuart Gelder (the Applicant) against the deemed refusal of Development Application No 0370/23 lodged with Ku-ring-gai Council (the Respondent) on 3 October 2023.

2. The Development Application seeks development consent for the demolition of existing structures and the construction of 13 independent living units (housing for seniors and people with a disability), basement parking and associated works under the State Environmental Planning Policy (Housing) 2021 (SEPP Housing) and Rural Fires Act 1997 (Integrated Development). The proposed development is on land with a legal description of Lot 3 and Lot 4 in DP 252194, also known as, 33B and 35 Clissold Road, Wahroonga.

3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the of the Land and Environment Court Act 1979 (the LEC Act). The conciliation conference process commenced on 18 June 2024.

4. At the conciliation conference, the parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant Development Consent to the development application subject to agreed outcomes and agreed conditions.

5. The agreement reached by the parties was based on amended plans and additional material that resolved the contentions before the Court to the agreement of the parties. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement, if the proposed decision the subject to the agreement, is a decision that the Court could have made in the proper exercise of its functions.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act.

7. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent 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). In reaching that state of satisfaction, I note the following:

1. Pursuant to the Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015), the subject site is zoned R2 Low Density Residential. The application is made pursuant to SEPP Housing, Ch 3, Pt 5, wherein the relevant clauses make the use permissible on this site. Regard has been given to the R2 zone objectives in determining the application.

2. Pursuant to cl 4.3 of KLEP 2015, the site is subject to a maximum building height control of 9.5m of the LEP. The proposal has a maximum height of less than 9.5m which complies with this requirement.

Acid Sulfate Soils

1. Pursuant to cl 6.1 ‘Acid Sulfate soils’, the consent authority is required to consider any potential acid sulfate soils affectation so that it does not disturb, expose or drain acid sulphate soils and cause environmental damage. The parties agree that the Site is located within a Class 5 area as specified in the Acid Sulfate Soils Map.

2. The proposed works are not located within 500m of adjacent Class 1, 2, 3 or 4 land that is below 5 metres AHD and by which the water table is likely to be lowered below 1 metre AHD. The parties agree, and I am satisfied, that the proposal appropriately considers the requirements of cl 6.1 of the KLEP 2015.

Earthworks

1. Clause 6.2 of the KLEP 2015 provides the proposal provides for excavation to accommodate the basement parking level associated with the proposal. The parties are satisfied, by the Geotechnical Report that has been prepared, that the proposal satisfies the requirements of cl 6.2 of the KLEP 2015. I am satisfied that the required matters have been considered.

Biodiversity Protection

1. Clause 6.3 of the KLEP 2015 deals with biodiversity. A portion of the subject site is mapped as containing ‘Biodiversity’ on Council’s Terrestrial Biodiversity Map. The site is not identified on the Biodiversity Values Map (BV Map) as having biodiversity values. A Flora and Fauna Assessment Report has been undertaken by GIS Environmental Consultants with their report forming part of the information accompanying the application. That report provides an assessment of the impacts to native vegetation and habitat and prescribed biodiversity impacts as well as impacts on flora and fauna. The parties agree, as do I, that the proposed development satisfies the relevant requirements of cl 6.3 of the KLEP 2015.

2. The development application was notified between 18 October and 17 November 2023. The parties agree that the relevant issues raised by residents have been addressed through amendments to the application and the imposition of agreed conditions of consent.

Biodiversity Conservation Act 2016

1. Division 2 of Pt 4 of the Biodiversity Conservation Act 2016 lists the species that are considered Critically Endangered. Sites that contain Critically Endangered species are required to consider and avoid adverse impacts to such species. The parties agree that Tree 4 will be safely retained and suitable conditions of consent are imposed to ensure this outcome.

State Environmental Planning Policy (Sustainable Buildings) 2022

8. A BASIX certificate was prepared for the purpose of the plans accompanying the final plans as required by s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021): 1402325M_03 issued by Building Sustainability Assessments dated 9 August 2024. The BASIX Certificate satisfied the requirement in s 27 of the EPA Regulation 2021 as it has been issued no earlier than three months before the date on which the Development Application was made.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Consideration has been given to whether the Site is contaminated as required by s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The Site has been used for residential purposes for a substantial number of years and is unlikely to be contaminated. The use of the Land is proposed to remain residential. Accordingly, s 4.6(2) of the Resilience and Hazards SEPP is not engaged and consideration of a report specifying the findings of a preliminary investigation of the land is not required. I am satisfied that the required considerations have been undertaken.

State Environmental Planning Policy (Housing) 2021

1. State Environmental Planning Policy (Housing) 2021 (SEPP Housing) is an environmental instrument that applies to the Site. Chapter 3, Pt 5 of SEPP Housing applies to the development and provides that development consent must not be granted for the purposes of housing for seniors unless the consent authority is satisfied certain minimum design criteria have either been met or considered.

2. The parties have provided a SEPP Housing compliance checklist which demonstrates that the proposal meets the requirements of SEPP Housing, including the non-discretionary development standards, requirements for bushfire, provision of services and overall design. The parties agree that the proposal meets the requirements of SEPP Housing and have demonstrated adequate consideration of the required matters, as summarised in the provided jurisdictional statement, and I am satisfied with these considerations.

9. 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’ agreement.

10. I was not required to make, and have not made, an assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

11. The Court notes that:

1. Ku-ring-gai Council, as the relevant consent authority, has agreed, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application DA No DA/0370/23 and the supporting documents, the subject of these proceedings, in accordance with the documents listed in Annexure “A” to this judgment.

Orders

12. The Court orders that:

1. The applicant is to pay the respondent’s costs that have been thrown away as a result of the amendment of the application for development consent, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed sum of $12,000.

2. The appeal is upheld.

3. Development Application No DA/0370/23 for the demolition of existing structures and construction of 13 independent living units (Housing for seniors and people with disability), basement parking and associated works on the land at Lot 3 and 4 in Deposited Plan 252194 known as 33B and 35 Clissold Road, Wahroonga, is determined by the grant of development consent, subject to the conditions set out in Annexure B.

Stuart Harding

Acting Commissioner of the Court

443328.24 Annexure A

443328.23 Annexure B

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Decision last updated: 13 September 2024