HMR Developments Pty Ltd v Ku-ring-gai Council

Case •

[2020] NSWLEC 1499

•

20 October 2020

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: HMR Developments Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1499
Hearing dates: Hearing on 15 October 2020; Conciliation conference on 16 October 2020
Date of orders: 20 October 2020
Decision date: 20 October 2020
Jurisdiction:Class 1
Before: Dixon SC
Decision:

The Court orders that:

(1)   The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”.

(2) The applicant is to pay the respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3)   The appeal is upheld.

(4)   Development Application DA 0196/19 for the demolition of existing dwellings and ancillary structures and the construction of a seniors living development at 11 Collins Road and 34 Memorial Avenue, St Ives, NSW is approved subject to the conditions set out in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – seniors living development – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Ku-ring-gai Local Environmental Plan 2015

Land and Environment Court Act 1979

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

State Environmental Planning Policy No 55—Remediation of Land

Texts Cited:

Department of Infrastructure, Planning and Natural Resources, ‘Seniors Living Policy: Urban Design Guideline for Infill Development (March 2004)

Ku-ring-gai Development Control Plan

Category:Principal judgment
Parties: HMR Developments Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation:

Counsel:
G McKee (Solicitor) (Applicant)
A Stafford (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Sparke Helmore (Respondent)
File Number(s): 2019/226918
Publication restriction: No

Judgment

  1. These proceedings arise following the Council’s deemed refusal of a development application (DA0196/19) for demolition works and the construction of a seniors’ living development comprising twenty-six self-contained dwellings over basement parking and associated works on land at 11 Collins Road and 34 Memorial Avenue, St Ives NSW (site).

  2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

Background to the s34 agreement

  1. Initially the hearing of this matter was listed to commence onsite on 15 October 2020. The day before the parties requested that the hearing commence in Court via MS Teams and the site inspection be cancelled. The listing was changed, and when the hearing commenced on MS Teams the Council tendered a further written submission from Dr Cooper (Exhibit 1) and Ms Zhang (Exhibit 2) opposing the development. The applicant then requested that the matter to be referred to a s34 conciliation conference before me. The Council did not oppose this course and the Court accommodated the request.

  2. At the conciliation conference held on 16 October 2020, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

  3. 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 development application.

  4. Before I deal with the jurisdictional prerequisites raised by the application, it is appropriate that I set out some background to the resolution of the contentions as I understand them from the Statement of Reasons filed with the s34 agreement. The statement records that DA0196/19 was lodged with the Council on 22 May 2020. Between 20 June 2019 and 22 July 2019, DA0196/19 was notified to surrounding occupants. The Council received 19 submissions in response thereto.

  5. On 22 July 2019 the applicant filed the Class 1 application with the Court.

  6. A conciliation conference was conducted on 10 March 2020 before Acting Commissioner Bindon. The conciliation was terminated, however the parties continued informal discussions on the issues in dispute and the applicant provided (informally) various sets of amended plans, as follows:

  1. On 2 April 2020, the applicant provided amended plans to which the Council responded informally on 23 April 2020.

  2. On 5 June 2020, the applicant provided a further set of amended plans for which leave was sought under cover of a Notice of Motion filed on 26 June 2020 (Motion). That Motion was determined by the grant of leave on 3 July 2020.

  1. On 4 August 2020, the Council filed its Amended Statement of Facts and Contentions in response to the amended application. The Council contended that the amended application should be refused for the following reasons:

  1. The proposed development does not comply with cl 40(4)(b) of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Seniors SEPP) as it provides a built form of more than two storeys in height to all boundaries.

  2. Contention 1: The proposed development does not comply with cl 50(b) of the Seniors SEPP because the floor space ratio exceeds 0.5:1. The proposed height of the building in the south-eastern corner above the basement is three storeys and no clause 4.6 variation request has been submitted to justify that variation.

  3. Contention 2: The proposed development is contrary to cl 3(2) of the Seniors SEPP.

  4. Contentions 3 and 4: The requirements of cll 32, 33 and 34 of the Seniors SEPP are not met because inadequate regard has been given to neighbourhood amenity or to the visual and acoustic privacy of neighbours.

  5. Contention 5: The proposed development is inconsistent with the objectives of cl 5.10 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015) and Part 19F of the Ku-ring-gai Development Control Plan (DCP) (heritage conservation).

  6. Contention 6: There are likely to be adverse construction and traffic management impact.

  7. Contention 7: Clause 26 of the Seniors SEPP is not satisfied because the future residents will not have adequate access to the facilities listed at subcll 26(1)(a)-(c).

  8. Contention 8: Schedule 3 of the Seniors SEPP has not been satisfied.

  9. Contention 9: There is insufficient information to enable assessment of the acoustic impact.

  10. Contention 10: There is insufficient information to enable assessment of the BASIX Certificate.

  11. Contention 11: There is insufficient information to permit the assessment of the suitability of vehicular access and parking.

  12. Contention 12: The stormwater management proposed does not comply with the objectives of cl 6.2 of the KLEP 2015 or the requirements of Part 24 of the DCP in relation to water management.

  13. Contention 13: The architectural plans contain errors and inconsistencies.

  1. On 18 September 2020, the applicant provided further amended plans in response to the Council’s Amended Statement of Facts and Contentions.

  2. On 24 September 2020, the parties’ urban design experts filed and served their joint report in which they agreed that no urban design matters were raised in the amended application.

  3. On 25 September 2020, the parties’ experts filed a joint accessibility report. It was agreed that particular 8(a) could be addressed by further amendments to the architectural and landscape plans. The Council’s planner (who addressed the accessibility issues) and Ms Perry were of the view that the amended application did not comply with the development standards in Schedule 3 of the Seniors SEPP and as such a clause 4.6 variation request was required to be provided. Since the date of that joint report, the applicant has provided Revision M plans (14 October 2020) which satisfactorily address the Schedule 3 matters of the Seniors SEPP (and therefore a clause 4.6 variation request was not required).

  4. On 29 September 2020, the parties’ heritage experts filed their joint heritage report in which it was agreed in relation to the heritage contentions (contentions 3 and 5) that the particulars of each contention have been satisfactorily resolved because of amendments that have been made to the plans and which are now reflected in the Revision M plans.

  5. On 1 October 2020, the applicant’s access consultant, Ms Perry provided a supplementary statement to address contention 8(b).

  6. On 2 October 2020, the parties’ planning experts filed a joint report in which they agreed that the visual and acoustic privacy contentions (contentions 4 and 9) could be resolved by conditions. The planners agreed that a revised BASIX Certificate is also required to be provided.

  7. On 9 October 2020, the parties’ engineering experts filed a joint report in which they agreed that contention 6(a)-(d) could be addressed by appropriate conditions of consent, that condition 7(a) was resolved by further footpath assessment plans dated 1 October 2020, and that contention 10(a)-(d) was satisfied by the entry access handle details provided on 14 September 2020 and that contention 12(a) and (b) was satisfied by the stormwater management plans dated 25 September 2020. As to the number of storeys (contention 2), the planners agreed that the amended proposal had a lowered floor level of 250 mm (from RL161.45 to RL161.20) and therefore no part of the basement was higher than 1.2 metres above the existing ground level. On that basis, it was agreed that no clause 4.6 variation request was required to address that issue.

  8. On 13 October 2020, the applicant provided further amended plans (Revision L) in response to the agreements reached in the joint reports.

  9. On 14 October 2020, the applicant provided an amended BASIX Certificate.

  10. On 14 October 2020, the Council received Revision M plans which satisfactorily addressed the outstanding issues.

  11. On 15 October 2020, the applicant provided Revision N plans, which the Council accepts addresses all outstanding matters of annotation.

Jurisdictional issues

  1. After explaining the evolution of the plans and how the changes to the design have resolved the merit issues in the appeal, the parties addressed the jurisdictional aspects of the application in a written statement of evidence.

  2. Based on their submissions and the evidence I accept that the following jurisdictional prerequisites have been met.

  1. Seniors SEPP:

  1. Clause 4 – the land is zoned for urban purposes and dwellings houses are permitted on the land pursuant to the R2 zoning in the KLEP 2015. Therefore, the proposed development is permissible with consent.

  2. Clause 26 – the site is located in an accessible area.

  3. Clause 30 – a site analysis that complies with the requirements of this clause has been provided.

  4. Clauses 31 & 32 – the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004 and the principles set out in Division 2 of the Policy have been considered by the Council.

  5. Clause 40(2) – the site is greater than 1,000m2.

  6. Clause 40(3) – the site frontage is greater than 20 metres.

  7. Clause 40(4) – the proposed development complies with the development standards in this clause.

  8. Clause 41 – the proposed development complies with the development standards referred to in this clause.

  1. KLEP 2015:

  1. Clause 6.2 ‘Earthworks’ – the proposal complies with the requirements of this clause.

  2. Clause 6.5 ‘Stormwater and water sensitive urban design’ – the proposal complies with the requirements of this clause.

  1. State Environmental Planning Policy No 55—Remediation of Land – cl 7(1) and draft Remediation SEPP:

  1. The site has been historically used for residential purposes and a review of Council's readily available records did not reveal any reason for contamination of this property.

  1. Notification requirements under the EPA Act have been satisfied and all submissions have been taken into consideration.

  2. The Court is in receipt of an amended BASIX Certificate.

  1. 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’ decision.

  2. The Court orders that:

  1. The applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure “A”.

  2. The applicant is to pay the respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

  3. The appeal is upheld.

  4. Development Application DA 0196/19 for the demolition of existing dwellings and ancillary structures and the construction of a seniors living development at 11 Collins Road and 34 Memorial Avenue, St Ives, NSW is approved subject to the conditions set out in Annexure A.

………………………..

S Dixon

Senior Commissioner of the Court

Annexure A (522602, pdf)

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Decision last updated: 22 October 2020

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