Hua v Ku-ring-gai Council

[2023] NSWLEC 1518

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hua v Ku-ring-gai Council [2023] NSWLEC 1518

Hearing dates:

Conciliation conference on 17-18 August 2023

Date of orders:

13 September 2023

Decision date:

13 September 2023

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The Court, exercising the powers of the consent authority pursuant to s 39(2) of the Land and Environment Court Act 1979, approves the amendment of the development application the subject of these proceedings to rely on the amended plans and materials as listed in Annexure A, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021.

(2) The appeal is upheld.

(3) Development consent is granted to development application DA 0093/22 lodged with Ku-Ring-Gai Council on 15 March 2022, seeking approval for alterations to an existing dwelling house at 28 Middle Harbour Road, Lindfield, including new swimming pool, cabana, driveway, turning circle, retaining walls, relocation and resurfacing of tennis court, drainage works and new landscaping, subject to the conditions of consent at Annexure D.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – alterations and additions – Sydney Turpentine Ironbark Forest – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA, 39

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.5

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

Category:

Principal judgment

Parties:

Vy Hua (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

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

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/61844

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act) and arise as the result of the actual refusal, by Ku-ring-gai Council of development application DA0093/22. This application seeks consent for alterations and additions to an existing dwelling including new swimming pool, cabana, driveway, turning circle, retaining walls, resurfacing of the existing tennis court, and new landscaping at 28 Middle Harbour Road, Lindfield. The subject site comprises Lot 1 DP 312386, Lot 16 DP 5374, Lot 768 DP 752031 and Lot 1 DP 192386.

2. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 17-18 August 2023. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached 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 development consent to the development application subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how each has been satisfied. From this I note the following.

5. This application has been made by the owner of the subject site, Vy Hua.

6. The application was appropriately notified, and one submission of objection was received regarding the windows to the western wall of the proposed cabana. The parties submit, and I accept, that the windows of the proposed building have been rearranged to satisfactorily address the concerns of this neighbouring resident.

7. Pursuant to the Ku-ring-gai Local Environmental Plan 2015 (KLEP), the site is zoned R2 Low Density Residential within which development for the purpose of a dwelling house is permissible with development consent. All development requested in this application is ancillary to the purpose of a dwelling house and is permissible with consent on this land. The parties submit, and I accept, that the proposed development meets the relevant objectives of this zone.

8. Pursuant to the development standards established under the KLEP:

1. The proposed development does not exceed maximum building height of 9.5m (cl 4.3).

2. The proposed cabana is not enclosed and therefore does not result in additional FSR, therefore not impacting cl 4.4.

9. The subject site is located within the Trafalgar Avenue Conservation Area. Pursuant to KLEP cl 5.10, development consent is required for erecting a building on land that is within a heritage conservation area (HCA), and that is sought in this application. KLEP cl 5.10 (4) requires me to consider the effect of the proposed development on the heritage significance of the item or area concerned. The parties submit, and I accept, that the impact of the proposed development on the significance of the HCA has been a key focus of this conciliation, and that the amendments made to the proposed development reflect these considerations, which result in a development with an acceptable impact on the heritage significance of the HCA.

10. Clause 5.21 of the KLEP deals with flood planning and requires the consent authority to consider a range of flooding-related matters. Flooding and overland flow was the subject of discussion and resolution throughout this conciliation. Based on the parties’ submission, the stormwater and overland flow reports, and the detailed stormwater concept plans, I am satisfied that the development meets the requirements of KLEP cl 5.21(2).

11. The subject site is mapped as Class 5 on the relevant Acid Sulfate Soils map, however pursuant to the requirements of KLEP cl 6.1 the site is not within 500m of adjacent Class 1, 2, 3, or 4 land that is below 5 metres Australian Height Datum, and therefore does not trigger any further requirements under this clause.

12. Pursuant to KLEP cl 6.2 the parties submit, and I accept, that the development application as amended reflects consideration of the earthworks-related matters listed in cl 6.2 (3). This is further supported by the Geotechnical Report by White Geotechnical Group that was filed with the Class 1 application. From this, I am satisfied that the earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.

13. KLEP cl 6.3 aims to protect, maintain and improve the diversity and condition of native vegetation and habitat. The subject site contains remnant Sydney Turpentine Ironbark Forest, which is an ‘Endangered Ecological Community’ (EEC) under the Biodiversity Conservation Act 2016 (BC Act). Pursuant to the requirements of the Act, a five-part assessment of the impacts of the proposed development on this EEC have been submitted and concludes that the development will not result in any significant impact on the EEC, and accordingly that no biodiversity assessment report is required. Subsequently, and with the addition of a landscape plan and vegetation management plan that respond to the EEC, the parties submit, and I accept, that the matters listed in cl 6.3(3) have been considered in the assessment of this development application. From that, and pursuant to the requirements of cl 6.3(4), I am satisfied that although a potentially adverse environmental impact cannot be entirely avoided, the development:

1. minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations;

2. incorporates measures to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement; and

3. incorporates measures to achieve no net loss of significant vegetation or habitat.

14. A small portion of the site is mapped as riparian land category 3 pursuant to KLEP cl 6.4. The parties submit and I accept that in relation to the riparian land, the proposed development will not result in any adverse change to the overland flow regime of the site and that subsequently, it:

1. is consistent with the objectives of cl 6.4;

2. integrates riparian, stormwater and flooding measures; and

3. is designed, sited and will be managed to avoid any potential adverse environmental impacts.

15. Pursuant to the requirements of KLEP cl 6.5, the parties submit, and I accept that the stormwater and overland flow reports and stormwater and flooding measures taken in the proposed site planning demonstrate consideration of the requirements listed in cl 6.5 and that the proposed development incorporates measures that improve the stormwater conditions on the neighbouring site.

16. A BASIX certificate has been provided that relates to the development as amended, as required pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

17. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 addresses contamination of the subject site, stating that a consent authority must not consent to the carrying out of any development on land unless it has considered whether the land is contaminated. The parties submit, and I accept, that the long-term historic use of the site is residential and there are no known past contaminating uses or activities on the site, and that the site is suitable for the intended use.

18. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

19. 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. In doing so I note that, although the parties have reached agreement on all issues in contention, the parties have requested the Court exercise its power under s 39(2) of the LEC Act to approve the agreed amendment of the application.

20. The Court orders:

1. The Court, exercising the powers of the consent authority pursuant to s39(2) of the Land and Environment Court Act 1979, approves the amendment of the development application the subject of these proceedings to rely on the amended plans and materials as listed in Annexure A, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021.

2. The appeal is upheld.

3. Development consent is granted to development application DA 0093/22 lodged with Ku-Ring-Gai Council on 15 March 2022, seeking approval for alterations to an existing dwelling house at 28 Middle Harbour Road, Lindfield, including new swimming pool, cabana, driveway, turning circle, retaining walls, relocation and resurfacing of tennis court, drainage works and new landscaping, subject to the conditions of consent at Annexure D.

E Washington

Acting Commissioner of the Court

Annexure A

Annexure B

Annexure C

Annexure D

**********

Decision last updated: 13 September 2023