Hengji Pymble Pty Ltd v Ku-ring-gai Council

[2018] NSWLEC 1123

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hengji Pymble Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1123
Hearing dates:	Conciliation conference on 24 Nov 2017, 13 Dec 2017 and 09 Mar 2018
Date of orders:	09 March 2018
Decision date:	09 March 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	See (5) below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy 2004
Category:	Principal judgment
Parties:	Bruce Woolf, Woolf Associates Solicitors (Applicant) Christopher Shaw, Shaw Reynolds Lawyers(Respondent)
Representation:	Solicitor: Hengji Pymble Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
File Number(s):	2017/211786
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal by Ku-ring-gai Council of development application DA0192/17. The application sought consent for a development comprising 10x3 bedroom townhouses under State Environmental Planning Policy 2004 (Housing for Seniors or People with a Disability). This included the demolition and removal of; the existing two (2) storey dwelling house, an attached garage and carport, forty seven (47) trees, swimming pool, tennis court and brick shed and excavation across the majority of the site.  The works are proposed at 75 Telegraph Road, Pymble.

2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

3. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

4. 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.

5. The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

1. The Applicant is granted leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application:

Drawing(s)	Reference/ Version	Prepared By	Dated
Architectural
DA031 Proposed Context Site Analysis	DA-3	Morrison Design Partnership	01.02.2018
DA034 Proposed Site Roof Plan	DA-1	Morrison Design Partnership	01.02.2018
DA040 Demolition and Tree Removal Plan	DA-4	Morrison Design Partnership	01.02.2018
DA060 Proposed Site Levels and Retaining Walls	DA-2	Morrison Design Partnership	01.02.2018
DA100 Basement Plan	DA-4	Morrison Design Partnership	01.02.2018
DA101 Ground Floor Plan	DA-5	Morrison Design Partnership	01.02.2018
DA102 Level 1 Floor Plan	DA-3	Morrison Design Partnership	01.02.2018
DA201 Telegraph Road North Elevations	DA-3	Morrison Design Partnership	01.02.2018
DA202 South Elevation	DA-3	Morrison Design Partnership	01.02.2018
DA203 East Elevation	DA-3	Morrison Design Partnership	01.02.2018
DA204 West Elevations	DA-3	Morrison Design Partnership	01.02.2018
DA301 Sections	DA-2	Morrison Design Partnership	01.02.2018
DA401 Deep Soil and Private Open Area Calculations	DA-3	Morrison Design Partnership	01.02.2018
DA501 Solar Study	DA-3	Morrison Design Partnership	01.02.2018
DA502 Solar Study	DA-3	Morrison Design Partnership	01.02.2018
Engineering
DA600 Driveway Plan	DA-2	Morrison Design Partnership	15.12.17
DA602 Driveway Section	DA-2	Morrison Design Partnership	18.12.17
DA700 Overall Footpath Analysis	DA-1	Morrison Design Partnership	07.12.17
DA701 Footpath Analysis Sheet 1	DA-2	Morrison Design Partnership	07.12.17
DA702 Footpath Analysis Sheet 2	DA-2	Morrison Design Partnership	07.12.17
DA703 Footpath Analysis Sheet 3	DA-2	Morrison Design Partnership	07.12.17
DA710 Footpath Section Telegraph Road Overall	DA-1	Morrison Design Partnership	07.12.17
Landscape
000 Cover Sheet and Site Plan	F	Landscape Architects	18.12.2017
C100 Landscape Plan Ground Floor Render	F	Landscape Architects	18.12.2017
101 Landscape Plan Ground Floor	F	Landscape Architects	18.12.2017
201 Planting Plan Ground Floor	F	Landscape Architects	18.12.2017
501 Landscape Specification & Planting Schedule	F	Landscape Architects	18.12.2017
502 Landscape Details	F	Landscape Architects	18.12.2017
503 Landscape Details	F	Landscape Architects	18.12.2017
Stormwater
C00.01 General Notes	H	Engineering Studio Civil & Structural	13.02.2018
C01.01 Sediment & Erosion Control Plan	H	Engineering Studio Civil & Structural	13.02.2018
C02.01 Roof Drainage Plan	H	Engineering Studio Civil & Structural	13.02.2018
C03.01 Ground Drainage Plan	H	Engineering Studio Civil & Structural	13.02.2018
C03.02 Stormwater Details Sheet	H	Engineering Studio Civil & Structural	13.02.2018
C03.03 Proposed Easement & Catchment Plan	H	Engineering Studio Civil & Structural	13.02.2018
C04.01 Basement Drainage Plan	H	Engineering Studio Civil & Structural	13.02.2018

Document(s)	Reference/ Version	Prepared By	Dated
BASIX Certificate	820354M_05	Partners Energy Management	6 March 2018
Cl 26 Compliance Statement	Morrison Design Partnership Architects	14 December 2017
Thermal Performance Specifications prepared by Morrison Design Partnership Architects	A801	Morrison Design Partnership Architects	6 March 2018

Document(s)	Reference/ Version	Prepared By	Dated
Access Report	Amended	Accessibility Solutions (Mark Relf).	23 November 2017
Revised Vehicular Access and Car Parking Arrangements	Varga Traffic Planning Pty Ltd	14 November 2017
Foot path levels survey	Sheets 1 & 2 – 5537-DET2_A	Mepstead & Associates	05 October 2017
Arboricultural Impact Assessment (Summary) For Proposed Seniors Living Residential Development (Revised02) at 73-75 Telegraph Road Pymble	Revised02	Tree Wise Men Australia Pty Ltd	January 2018
Geo-environmental Engineering	Report ID: G17031PYM-R01F	Geotechnical Investigation Report	4 April 2017

2. The appeal is upheld.

3. Development consent is granted to Development Application No. DA0192/17 for the construction of a multi-dwelling Seniors Living development at 75 Telegraph Road, Pymble (lot 6 and 7 DP 10712) as per plans depicted in the schedule in clause 2.1 above, subject to the conditions of consent annexed hereto and marked “A”.

4. Pursuant to section 8.15 (previously 97B) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent’s costs in the amount of $18,000, excluding GST, to be paid on exchange of this section 34 agreement.

……………………….

D M Dickson

Commissioner of the Court

Annexure A (237 KB, pdf)

Annexure B - (15.1 MB, pdf)

Decision last updated: 09 March 2018