Haven Place Pty Ltd v Ku-ring-gai Council

[2024] NSWLEC 1764

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Haven Place Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1764

Hearing dates:

Conciliation conference held 23 September, 14 October, 8 and 15 November 2024

Date of orders:

28 November 2024

Decision date:

28 November 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA0195/23 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

(2) The Applicant’s written request, pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the KLEP, is upheld.

(3) The Applicant’s written request, pursuant to cl 4.6 of the KLEP, seeking to vary the development standard for floor space ratio (FSR) as set out at cl 4.4 of the KLEP, is upheld.

(4) The appeal is upheld.

(5) Consent is granted to Development Application DA0195/23 (as amended) for the demolition of the existing structures and construction of a residential apartment building comprising five storeys and eighteen units over three basement levels, providing for a total of 41 car parking spaces, at 6-8 Newhaven Place, St Ives, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – floor space ratio – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, Pt 7, ss 7.2, 7.4, 7.7

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 27, 29, 37, 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 3, 4, 6, s 4.9

State Environmental Planning Policy (Housing) 2021 Ch 4, Sch 9, s 147

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

State Environmental Planning Policy (Sustainable Buildings) 2022, s 2.1

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.120, 2.122

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 4.4, 4.6, 6.1, 6.2, 6.3, 6.5, 6.6

Texts Cited:

NSW Department of Planning, Apartment Design Guide, July 2015

NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020

Category:

Principal judgment

Parties:

Haven Place Pty Ltd ATF Haven Place Unit Trust (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
N Ferguson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2024/102982

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Haven Place Pty Ltd ATF Haven Place Unit Trust (the Applicant), against the deemed refusal of Development Application DA0195/23 (the DA) by Ku-ring-gai Council (the Respondent).

2. At the date of its lodgement on 2 February 2024, the DA sought consent for the demolition of existing structures and the construction of a five-storey residential apartment building containing eighteen units, three levels of basement to provide 41 car parking spaces, and associated works, at 6-8 Newhaven Place, St Ives (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 September, 14 October, 8 and 15 November 2024. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent. These contentions included issues of building height exceedance, floor space ratio (FSR) exceedance, incompatibility with existing and desired future character, inadequate building setbacks, inadequate internal amenity, poor visual privacy and cross viewing, solar access and natural ventilation, landscape character, inadequate provision of communal open space, and traffic, parking and basement design, amongst other contentions.

6. Agreed design amendments have been made to improve the proposed building’s relationship to the site, its context and the desired future character of this part of St Ives. Changes have been made to improve internal residential amenity and sliding screens are proposed to mitigate against cross viewing between neighbouring buildings. Significant trees are identified to be retained and protected. Communal open space has been re-configured to be located behind the building line, and building setbacks have been increased to improve building separation. These agreed amendments also have the effect of reducing the amount of gross floor area proposed and mitigate against impacts of building scale, visual privacy and overshadowing for a number of affected neighbours.

7. 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 amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The DA was publicly notified from 20 February to 22 March 2024. A total of seven submissions were received by the Respondent raising concerns including:

1. Privacy impacts.

2. Overshadowing impacts and loss of solar access.

3. Traffic congestion and street parking.

4. In adequate access for emergency vehicles.

5. Excessive building height and FSR.

6. Excessive excavation.

7. Construction phase impacts including noise.

11. The parties agree, and I am satisfied, that the amended DA and conditions of consent now satisfactorily address the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

12. The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is the relevant local environmental planning instrument. The site is zoned R4 High Density Residential. The amended DA - characterised as residential apartment development - is permissible with consent within the R4 zone.

13. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the KLEP, the amended DA is consistent with the R4 High Density Residential zone objectives.

14. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the KLEP, demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing dwelling houses occupying the site.

15. The parties agree, and I am satisfied, that all principal development standards of the KLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings and cl 4.4 - FSR.

16. In such an instance, cl 4.6 of the KLEP requires consideration of a written request from the Applicant demonstrating that compliance with each of these development standards is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

17. Clause 4.6 of the KLEP then requires the consent authority (the court in this instance) to be satisfied that the Applicant’s written request adequately addresses the matters set out at cl 4.6, and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard (for height of buildings and FSR) and the objectives for development within the zone (R4 High density residential) in which the development is proposed to be carried out.

18. Additionally, cl 4.6 of the KLEP requires the concurrence of the Planning Secretary be obtained, and requires the Planning Secretary to consider whether the proposed contravention of the development standard raises matters of significance for State environmental planning, and the public benefits of maintaining the standard.

19. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.

20. The Applicant has provided two separate written requests seeking to vary the height of buildings and FSR development standards respectively, each prepared by Minto Planning Services and dated 30 October 2024.

21. Dealing firstly with height of building - pursuant to cl 4.3 of the KLEP the site is subject to a height of building development standard of 14.5m.

22. The amended DA proposes a maximum building height of 17.1m, exceeding the relevant height of building development standard by 3.07m and representing a variance of approximately 17.9%.

23. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

1. The amended DA is agreed to be an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

2. The area of building height exceedance relates to a portion of the upper-most floor and the rooftop plant and lift overrun enclosure, generally set towards the centre of the site.

3. The proposal presents as a five-storey residential apartment building consistent with a number of neighbouring apartment buildings of a similar scale.

4. The amended DA is now consistent with development controls for building setbacks, and hence results in reduced site coverage, increased landscape areas and the retention of significant trees.

5. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

6. The objectives of the KLEP Zone R4 High Density Residential land use zone include to provide for the housing needs of the community within a high density residential environment, to provide a variety of housing types within a high density residential environment, and to provide for high density residential housing close to public transport, services and employment opportunities. I am satisfied the amended DA is consistent with these objectives.

7. The objectives of cl 4.3 of the KLEP include to ensure that the height of buildings is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres, to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity, and to enable development with a built form that is compatible with the size of the land to be developed. I am satisfied the amended DA meets these objectives.

24. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

25. Dealing next with FSR - pursuant to cl 4.4 of the KLEP the site is subject to a FSR development standard of 1:1.

26. The amended DA proposes a FSR of 1.31:1m, exceeding the development standard by 592.7sqm and representing a variance of approximately 30.75%.

27. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the FSR development standard for the following reasons:

1. The amended DA is agreed to be an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

2. The proposal presents as a five-storey residential apartment building consistent with a number of neighbouring apartment buildings of a similar scale.

3. The amended DA is now consistent with development controls for building setbacks, and hence results in reduced site coverage, increased landscape areas and the retention of significant trees.

4. The proposed FSR exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

5. The objectives of the KLEP Zone R4 High Density Residential land use zone include to provide for the housing needs of the community within a high density residential environment, to provide a variety of housing types within a high density residential environment, and to provide for high density residential housing close to public transport, services and employment opportunities. I am satisfied the amended DA is consistent with these objectives.

6. The objectives of cl 4.4 of the KLEP include to enable development with a built form and density that is compatible with the size of the land to be developed, its environmental constraints and its contextual relationship, and to ensure that development density is appropriate for the scale of the different centres within Ku-ring-gai. I am satisfied the amended DA meets these objectives.

28. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the FSR development standard, and I find to uphold the written request.

29. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the KLEP - Acid sulfate soils - the site is mapped within a Class 5 acid sulfate soils area. However, the amended DA involves works that are not likely to lower the water table below 1m AHD on any class of land within 500m of the site and therefore an acid sulfate soils management plan is not required to be prepared.

30. The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the KLEP - Earthworks. The Applicant has provided a Stormwater Concept Design prepared by SGC Consultants and dated October 2024. The Applicant has also provided a Geotechnical Report prepared by eiAustralia and dated December 2023. I am satisfied the matters set out at cl 6.2(3) have been given appropriate consideration. Agreed conditions of consent are imposed to regulate excavation and construction phase works.

31. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the KLEP - Biodiversity protection - a portion of the site is mapped on the Terrestrial Biodiversity Map as Canopy Remnant. Consequently, cl 6.3 sets out a series of matters for consideration.

32. The Applicant has provided the following documentation in support of the amended DA:

1. Arborist Compliance Statement, prepared by Dr Treegood and dated 3 September 2024.

2. Ecologist Statement of Compliance for Planting, prepared by GIS Environmental Consultants and dated 9 September 2024.

3. Geotechnical Report prepared by eiAustralia and dated December 2023.

33. The parties agree, and I am satisfied, that the amended DA is consistent with the matters set out at cl 6.3 of the KLEP. Agreed conditions of consent are imposed to ensure the protection of biodiversity and in particular significant existing trees.

34. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the KLEP - Stormwater and water sensitive urban design - the amended DA includes measures to:

1. Result in the improvement of the quality of stormwater runoff through pollutant reduction.

2. Provide water capture and storage that complies with the Respondent’s requirements that will minimise harmful impacts on surface and groundwater flows.

3. Integrates stormwater management into the landscape design solution by locating pipes and the on site detention in areas that do not conflict with planting, are not visible and provide for stormwater discharge into existing infrastructure.

4. Provide on site detention and rainwater reuse tanks that provide an alternative to mains water.

35. The parties agree, and I am satisfied, that pursuant to cl 6.6 of the KLEP - Requirements for multi dwelling housing and residential flat buildings - development consent must not be granted for a residential apartment building unless the site has an area of at least 1,200sqm and minimum dimensions of at least 30m (where the area of the site is 1,800sqm or more).

36. I am satisfied that the amended DA is proposed on a site with an area of 1,927.3sqm by survey and with a minimum dimension of 34m to the western frontage and 39m to the southern frontage.

37. The parties agree, and I am satisfied, that the Biodiversity Conservation Act 2016 (BC Act) applies to the amended DA. Part 7 of the BC Act deals with the biodiversity assessment of various types of development approvals under the EPA Act.

38. More specifically, s 7.2 of the BC Act provides a series of triggers for when a proposed development is deemed “likely to significantly affect threatened species”. These include:

1. If the proposed development is considered likely to impact threatened species or ecological communities.

2. If the proposed development exceeds the biodiversity offsets scheme threshold.

3. If the works proposed are to be carried out in a declared area of outstanding biodiversity value.

39. The Applicant has provided a Flora and Fauna Assessment Report, which identifies that Sydney Turpentine-Ironbark Forrest (an Endangered Ecological Community) is present in the south-eastern corner of the site.

40. Further, s 7.2 of the BC Act establishes a 5-part test. The report concludes that the amended DA is not likely to impact threatened species or ecological communities for the following reasons:

1. The area of outstanding biodiversity value on the site, being located in the south-eastern corner of the site lies outside the proposed building footprint.

2. The amended DA does not meet the biodiversity offset threshold defined at s 7.4 of the BC Act as the disturbance to native vegetation is below the threshold criteria of 0.25 Ha given only one native tree is to be removed. Accordingly, a biodiversity development assessment report (BDAR) is not required pursuant to s 7.7 of the BC Act.

3. The amended DA is not likely to impact threatened species or ecological communities and provides that all native trees (except T15) are to be retained, replacement tree planting is to incorporate Sydney Turpentine-Ironbark Forest, two nesting boxes are to be provided in the three Turpentine (Syncarpia glomulifera) trees, and sediment controls are to be incorporated during construction.

41. Additionally, proposed landscaping is consistent with the requirements of the Respondent’s development control plan, while agreed conditions of consent are imposed to ensure planting and ongoing landscape maintenance follow acknowledged guidelines for Sydney Turpentine-Ironbark Forest.

42. Accordingly, I am satisfied the amended DA meets the relevant requirements of the BC Act.

43. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, I am satisfied that the long-term pre-existing use of the site has been for residential purposes unlikely to be contaminated and that the amended DA does not propose a change from the current residential use, accordingly a Preliminary Site Investigation is not required.

44. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

41. Chapter 2 of SEPP BC deals with clearing of vegetation in non-rural areas. The parties agree and I am satisfied, that the amended DA proposes the removal of nine trees (including one native tree) and proposes appropriate replacement trees.

42. Chapters 3 and 4 of SEPP BC deals with koala habitat protection. The site is not governed by an approved Koala Management Plan, and in such an absence, SEPP BC applies. Section 4.9 of SEPP BC states that its provision apply to sites with an area of at least 1 Ha and hence, the section of SEPP BC does not apply to the subject site.

43. Chapter 6 of SEPP BC deals with water catchment. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment. The amended DA is agreed to appropriate manage stormwater quality and quantity.

44. Similarly, the amended DA is agreed to not result in an adverse impact on terrestrial, aquatic or migratory animals or vegetation, does not result in the clearing of riparian vegetation, does not result in erosion or sedimentation of a waterbody, impact on wetlands or impact on aquatic ecology.

45. Finally, the amended DA is agreed to not result in an adverse environmental impact on downstream areas in adjacent local government areas.

46. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings). Consistent with s 2.1 of SEPP Sustainable Buildings and pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), a BASIX certificate, No 1379046M_08, dated 7 November 2024, has been provided with the amended DA. Agreed conditions of consent are imposed to ensure compliance with the BASIX certificate.

47. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing).

48. Pursuant to the provisions of the EPA Reg, the Applicant's architect, APlus Architecture Pty Ltd (and its nominated architect Mr Tony Kai Chi Leung - NSW registered architect 7133) has prepared a Design Verification Statement dated 4 September 2024, fulfilling the requirements of s 29 of the EPA Reg and confirming that the amended DA achieves the Design principles set out in Sch 9 of SEPP Housing. This statement also sets out how the objectives of Parts 3 and 4 of the Apartment Design Guide have been achieved in the design of the amended DA. Accordingly, I am satisfied the amended DA meets the requirements of s 147 of SEPP Housing.

49. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument.

50. Pursuant to s 2.120 of SEPP Infrastructure, the site is adjacent to Link Road, which is a classified road and the amended DA proposes residential accommodation. Accordingly, the Applicant has provided an Acoustic Assessment prepared by Acoustic Logic dated 5 December 2023 addressing the requirements of s 2.120 and setting out recommendations to ensure appropriate mitigation against acoustic impacts within the proposed residential apartments. Agreed conditions of consent are imposed to ensure implementation of the recommendations in the Acoustic Assessment.

51. Pursuant to s 2.122 of SEPP Infrastructure, the parties agree and I am satisfied, that the amended DA is not considered to be traffic-generating development given the proposed number of apartments falls well short of the relevant threshold for development classified as traffic-generating.

52. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.

53. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

54. The Court notes that:

1. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

2. The Applicant has lodged the amended DA with the Court on 13 November 2024.

Orders

59. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA0195/23 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

2. The Applicant’s written request, pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the KLEP, is upheld.

3. The Applicant’s written request, pursuant to cl 4.6 of the KLEP, seeking to vary the development standard for floor space ratio (FSR) as set out at cl 4.4 of the KLEP, is upheld.

4. The appeal is upheld.

5. Consent is granted to Development Application DA0195/23 (as amended) for the demolition of the existing structures and construction of a residential apartment building comprising five storeys and eighteen units over three basement levels, providing for a total of 41 car parking spaces, at 6-8 Newhaven Place, St Ives, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A

Architectural Plans

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Amendments

02 December 2024 - Removed underlining - technical issue.

22 January 2025 - In accordance with s 36.17 Correction of judgment or order of the UCPR, the Annexure A and Architectural Plans have been updated to the correct versions.

Decision last updated: 22 January 2025