Gelder v Ku-ring-gai Council

[2023] NSWLEC 1468

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gelder v Ku-ring-gai Council [2023] NSWLEC 1468

Hearing dates:

Conciliation conference 8 August 2023

Date of orders:

22 August 2023

Decision date:

22 August 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The applicant’s written request under cl 4.6(3) of Ku-ring-gai Local Environmental Plan 2015, dated 8 August 2023, is upheld.

(2)   The appeal is upheld.

(3)   Development Application Number DA0324/21 for the boundary adjustment, construction of a new dwelling, detached workshop/home office, basketball ring, swimming pool, landscaping and associated works at Lot 146 in DP 16187, Lot A in DP364258 and Lot 2 in DP201069 known as 18, 18A and 20 Terrace Road, Killara NSW 2071, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environment Planning and Assessment Regulation 2020, cl 55

Land and Environment Court Act 1979, ss 34, 39

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 4, s 4.6

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 4.1, 4.6, 6.2, 6.3

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
J Farrell (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Tyrrells Planning Law (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/71533

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No DA0324/21 (the DA) by Ku-ring-gai Council (Council).

2. The DA seeks consent for allotment boundary adjustments, construction of a new dwelling, detached workshop/home office, basketball ring, swimming pool, landscaping and associated works at Lot 146 in DP 16187, Lot A in DP364258 and Lot 2 in DP201069 known as 18, 18A and 20 Terrace Road, Killara (the site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) at which I presided. The conference was held on 8 August 2023. Soon after the conference, the parties filed an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the DA, as amended, in accordance with agreed conditions.

4. In regard to the amendments, I note the following advice of the parties. The respondent, Ku-ring-gai Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending the DA in accordance with the documents listed below:

Amended Architectural Plans
Plan	Prepared by	Dated
Architectural Plans
DA: 101, 102, 201, 301, 302, 303, 304, 501, 601, 602, 701, 701A, 704 & 706 - All Issue U	Gelder	27 July 2023
Schedule of Amendments	Gelder	31 July 2023
Landscape Plans, DAL01 & 02 Issue N	Jane Britt Design	6 August 2023
Stormwater Management Plans ,SW01, SW02, SW03, SW04SW05, SW06, SW07SW08, SW09 & SW10 - All Issue B	Approved Consulting Engineers	1 August 2023
Supporting Documentation
Arborist Report Rev: D	Urban Arbor	4 August 2023
Basix certificate No. 1135331S_08	Building Sustainability Assessments	1 August 2023
Bush fire risk assessment and certification Rev: 3	Australian Bushfire Consulting Services	31/07/2023
Landscape and Vegetation Management Plan Bushfire verification	Australian Bushfire Consulting Services	7 August 2023
Colours and finishes schedule Rev: 2	Gelder Group Architects	May 2023
Vegetation Management Plan	TJ Hawkeswood Scientific Consulting	20 July 2023
Waste Management Plan Rev: C	Gelder Group Architects	9 August 2022
Clause 4.6 variation request	Minto Planning Services	8 August 2023

Jurisdiction

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

6. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. Regarding jurisdiction, and noting the advice in the parties’ jurisdictional statement provided to the Court on 8 August 2023, I am satisfied in regard to the matters listed below.

State Environmental Planning Policy (Resilience and Hazards) 2021

7. In regard to Ch 4 (concerned with remediation of land) and s 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I note the advice of the parties that the likelihood of encountering contaminated soils on the subject site is low given the site’s historical use for residential purposes. In the circumstances, and fully mindful of s 4.6(1), no further investigation of land contamination is warranted.

Ku-ring-gai Local Environmental Plan 2015

8. The site is zoned R2 Low Density Residential. I have had regard to the zone objectives mindful of cl 2.3(2). The proposed alterations and additions are permissible within the zone.

9. Clause 4.1 is concerned with minimum subdivision lot sizes. Under cl 4.1(3A) and applying to the subject R2 zone:

(3A) Development consent must not be granted for the subdivision of land … unless the subdivision would result in each lot, other than a battle-axe lot, having a width of a least 18 metres along a line that is 12 metres from the street frontage of the lot—

10. At present, both 18 and 20 Terrace Road, as street front allotments, have a width of 15.24m at the street front and a width of 16.47m along a line that is 12m from the street frontage of the lots. That is to say, there is an existing non-compliance. Nonetheless, the proposal, involving as it does the subdivision of land (in this case in the form of boundary adjustments rather than the creation of additional lots), would contravene the standard at cl 4.1(3A). This contravention is considered at the end of this section.

11. I accept the advice of the parties that the proposal would not contravene any other development standard.

12. In relation to cl 6.2 and earthworks, I note the advice of the parties that the matters arising in cl 6.2(3) have been considered as part of the assessment of the proposal. I too have considered these matters.

13. In relation to cl 6.3 and biodiversity protection, the rear portion of the site is mapped as containing land of biodiversity significance. I note the advice of the parties that a Flora and Fauna Survey and Assessment Report was prepared by Hawkeswood Scientific Consulting. The report concluded that the surveyed area did not contain any endangered or threatened species and that there were no impediments to the proposal in relation to fauna or flora concerns. I accept that the proposed development is consistent with the objectives of this clause and will be sited and managed, to avoid any potentially adverse environmental impact. The requirements of cl 6.3 are satisfied.

14. In relation to cl 6.5 and stormwater and water sensitive design, the parties’ advice includes details relating to how the stormwater scheme for the development would incorporate water sensitive urban design principles and that the matters at cl 6.5(2) are relevantly satisfied. I accept this advice.

Contravention of cl 4.1(3A) regarding street frontage width

15. I note that a written request pursuant to cl 4.6(3) and dated 8 August 2023 (written request) has been prepared by Minto Planning Services and provided by the applicant seeking to justify the contravention of the street frontage width development standard. Mindful of cl 4.6(3)(a), the written request seeks to demonstrate that compliance with the standard is unreasonable or unnecessary on the basis that the objectives of the standard are met, notwithstanding the numeric contravention.

16. Clause 4.1 has objectives as follows:

(a) to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls and minimise risk to life and property from environmental hazards, including bush fires,

(b) to ensure that lot sizes and dimensions allow development to be sited to protect natural or cultural features including heritage items, remnant vegetation, habitat and waterways, and provide for generous landscaping to support the amenity of adjoining properties and the desired character of the area,

(c) to ensure that subdivision of low density residential sites reflects and reinforces the predominant subdivision pattern of the area.

17. The written request points to the proposal’s compliance with other relevant controls (including directly in relation to risk life and property from bushfire) and general responsiveness to its setting to successfully demonstrate the achievement of the first and second objectives. In relation to the third objective, the proposal notes that there would be no change in relation to the street presentation lots and that the rear lot would readily satisfy the objective. These arguments demonstrate that the proposal would result in a subdivision which reflects and reinforces the predominant subdivision pattern of the area, satisfying the third objective. On the basis of this reasoning in the written request, I am satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary because the objectives of the standard are met, notwithstanding the numeric contravention.

18. Mindful of cl 4.6(3)(b), the written request also seeks to demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. Again this reasoning relates to the fact that the two street frontage lots are existing and already satisfactorily accommodate residential development. These are sufficient grounds to justify the street frontage width contravention in this instance.

19. Together, this means the written request has adequately addressed the two matters required to be demonstrated by cl 4.6(3).

20. I am also satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the relevant zone. In terms of consistency with the objectives of the standard I rely on the analysis in the written request. The reasoning behind my finding that the development will be in the public interest because it is consistent with the objectives for development within the R2 Low Density Residential zone are as follows. The proposal is consistent with the first and third objectives because the proposal directly provides housing in the local low density setting to meet community need and, as demonstrated by the parties’ satisfaction with the proposal generally with respect to planning requirements, it does so in a manner that is compatible with the existing environmental and built character of Ku-ring-gai. The second objective is not related to the particulars of this development.

21. Having a mind to cl 4.6(4)(b), concurrence of the Secretary is not required by virtue of the Court’s powers under s 39(6) of the LEC Act but, in any event, I find that no matters of significance for State or regional environmental planning are raised by the height contravention.

22. Together, these findings mean that the satisfaction pre-requisites of cl 4.6(4) have been met and there is power to grant consent notwithstanding the contravention of the height standard.

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1979

23. The parties have advised me on the submissions made following notification of the proposal. These have been taken into consideration in accordance with the requirement of s 4.15(1)(d) of the EPA Act.

24. I have also given attention to the relevant development control plan, likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(a)(iii), (b), (c) and (e) of the EPA Act.

Conclusion

25. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

26. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders

27. The Court orders that:

1. The applicant’s written request under cl 4.6(3) of Ku-ring-gai Local Environmental Plan 2015, dated 8 August 2023, is upheld.

2. The appeal is upheld.

3. Development Application Number DA0324/21 for the boundary adjustment, construction of a new dwelling, detached workshop/home office, basketball ring, swimming pool, landscaping and associated works at Lot 146 in DP 16187, Lot A in DP364258 and Lot 2 in DP201069 known as 18, 18A and 20 Terrace Road, Killara NSW 2071, is determined by the grant of consent subject to the conditions at Annexure A.

P Walsh

Commissioner of the Court

Annexure A

**********

Decision last updated: 22 August 2023