Jere Investment Pty Ltd v Ku-ring-gai Council

[2022] NSWLEC 1623

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Jere Investment Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1623

Hearing dates:

Conciliation conference on 11 August 2022; 28 September 2022; 26 October 2022; 3 November 2022

Date of orders:

9 November 2022

Decision date:

09 November 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent's costs thrown away by the amended development application, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

(2) The appeal is upheld.

(3) Development consent is granted to development application number DA 0510/21, seeking consent for demolition of existing structures and construction of a multi dwelling housing development with eight townhouses, basement parking, and associated works at Lots 10 and 11 in Deposited Plan 608144, also known as 2 and 2A Woodville Avenue, Wahroonga, subject to the conditions of consent in Annexure 'A'.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing development – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55, Sch 1 Pt 1 cl 2A

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (BASIX Sustainability Index – BASIX) 2004

State Environmental Planning Policy (Biodiversity and Conservation) 2021

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120

Category:

Principal judgment

Parties:

Jere Investment Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/114638

Judgment

1. These proceedings relate to an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of development application no. DA 0510/21 (DA).

2. The subject site comprises Lots 10 and 11 in DP 608144 known as 2 & 2A Woodville Avenue, Wahroonga (the site). The DA, as amended, seeks approval for demolition of all existing dwellings and associated structures on the site and construction of a multi dwelling housing development with eight dwellings, basement parking and associated works.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 August 2022. I presided over the conciliation conference.

4. After 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, as amended, subject to conditions.

5. 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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance in these proceedings have been satisfied in a joint jurisdictional statement accompanying the s34 agreement. In that regard, I note the parties’ following submissions:

Jurisdictional considerations

Owner’s consent

6. The DA was made with the written consent of the owner of the subject site.

State Environmental Planning Policy (Resilience and Hazards) 2021

7. Section 4.6 nominates matters that must be considered before the DA is determined. The site has in the past been used for residential purposes and there is no history to suggest that the site is contaminated.

8. The relevant requirements have been considered and the parties agree that the DA meets the objectives of this Policy.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

9. The SEPP applies to all of Ku-ring-gai Council. The site is not identified:

1. as containing “Areas of Biodiversity Significance” on Ku-ring-gai’s Natural Resource – Biodiversity Map; or

2. as containing a watercourse or associated riparian zone.

State Environmental Planning Policy (Transport and Infrastructure) 2021/State Environmental Planning Policy (Infrastructure) 2007

Section 2.119 Development with frontage to classified road

10. The proposal provides for vehicular access from Woodville Avenue and not from the Pacific Highway. This section is satisfied.

Section 2.120 Impact of road noise or vibration on non-road development

11. The DA as amended, is supported by a Road Traffic Noise Intrusion Assessment prepared by Day Design Pty Ltd, Revision B, dated 20 September 2022. The report provides an executive summary at p 5 which concludes that:

“Calculations show that, provided the recommendations of Section 7.0 of this report are implemented, the internal noise levels of the proposed residential dwellings will be within the acceptable limits required by Ku-ring-gai Council, the NSW Department of Planning and SEPP (Transport and Infrastructure) 2021, and will therefore be acceptable.”

State Environmental Planning Policy (BASIX Sustainability Index – BASIX) 2004

12. The DA is supported by BASIX Certificate No. 1240849M_04 issued by Building Sustainability Assessments and dated 18 October 2022. This certificate confirms that the project passes the BASIX requirements.

13. The provided BASIX Certificate satisfies the requirement in cl 2A in Pt 1 of Sch 1 to the Environmental Planning and Assessment Regulation 2000.

Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015)

14. Land Use Table – the site is zoned R4 High Density Residential. The proposed development is permissible in the zone.

15. Clause 2.3 of KLEP 2015 indicates that regard must be had to the zone objectives. The relevant zone objectives in the R4 High Density Residential Zone are:

• 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.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for high density residential housing close to public transport, services and employment opportunities.

16. The parties have considered the zone objectives in relation to the amended development the subject of the s34 agreement. The parties are satisfied the proposed development, as amended, is compatible with the zone objectives.

Clause 2.7 – Demolition requires development consent

17. The DA seeks approval for the demolition of existing structures on the site and is accompanied by a Site/Roof/Demolition Plan, DA-11, Revision J, dated 17 October 2022.

Clause 4.3 – Height of Buildings

18. The maximum permissible building height is 17.5m. The proposal, as amended, will have a maximum building height of 11.449m.

19. Clause 4.3(2A) – Despite the above, the height of a building on land in Zone R4 High Density Residential where the site area is less than 1800m², the maximum height is 11.5m. The proposal, as amended, will have a maximum building height of 11.449m, which complies with this clause.

Clause 4.4 – Floor Space Ratio (FSR)

20. The maximum FSR is 1.3:1. Notwithstanding this and pursuant to cl 4.4(2C) of KLEP 2015 a site having an area less than 1800m², is limited to a maximum FSR of 0.8:1. The proposed development, as amended, will result in a FSR of 0.68:1, which complies with this clause.

Clause 5.10 – Heritage Conservation

21. The site is not heritage listed and does not adjoin or is located in close proximity to a heritage item. The site is located adjacent to a Heritage Conservation Area. A Heritage Impact Statement has been prepared by Weir Phillips Heritage and Planning dated September 2021 (HIA) and supports the DA.

22. The HIS concludes:

“This Heritage Impact Statement has been prepared in conjunction with a Development Application for the removal of existing structures and the construction of eight townhouses with basement carking and associated landscaping at Nos. 2-2A Woodville Avenue, Wahroonga, New South Wales. The subject site is not listed as a heritage item or located in a Conservation Area. It is, however, adjacent to a Conservation Area and lies within the vicinity of heritage items listed by Schedule 5, Parts 1 and 2 of the Ku-ring-gai LEP 2015.

The proposed works will have an acceptable impact on the adjacent Conservation Area as the new dwellings are well-designed and sympathetic in form and style to the older contributory dwellings that characterise the adjacent Conservation Area. The proposed dwellings have a materials palette that includes face brick and sandstone cladding which are appropriate for infill and is encouraged by Council controls. The deep setbacks from the street will help to reduce their impact on view corridors towards the Conservation Area. The proposed works will, overall, result in the removal of intrusive buildings in the streetscape and replace them with well-mannered modern infill development.

The proposed works will have no impact on heritage items within the vicinity because there will be no impact on the fabric of the items and there will be no impact on view corridors towards the items. The proposed works are sufficiently separated and have little or no visibility from the items for there to be no impact on them. The proposed works will, overall, have no impact on the ability of the public to understand and appreciate the historic and aesthetic significance of the items.

The proposed works fulfil the aims and objectives of the LEP 2015 and the DCP 2015 by improving the quality and diversity of housing options in Wahroonga while respecting the heritage significance of the area in which it lies. [see page 18 of the HIS]”

Clause 6.1 – Acid Sulfate Soils

23. The site is identified as being within Class 5 Acid Sulfate Soils area. The DA is supported by a Geotechnical Investigation Report prepared by Geo-Environmental Engineering dated 13 September 2021. The report concludes that “The results of geotechnical investigation and assessment indicate that ground conditions at this site are suitable for the proposed dwelling and associated works” (see p 16).

Clause 6.2 – Earthworks

24. Earthworks are proposed as part of the DA, including the construction of the basement. The extent of the proposed excavation, including setbacks is detailed in The Architectural plans. The DA is supported by a Geotechnical Investigation Report prepared by Geo-Environmental Engineering dated 13 September 2021. The report concludes that, subject to recommendations set out in the report, that the proposal will not result in any unreasonable impacts.

Clause 6.3 – Biodiversity protection

25. The site is not identified as containing “Areas of Biodiversity Significance” on Ku-ring-gai’s Natural Resource – Biodiversity Map. The DA will not have any unreasonable impact upon any significant vegetation or endangered flora or fauna species.

Clause 6.4 – Riparian land and waterways

26. The site is not identified as containing a watercourse or associated riparian zone. Therefore, this clause is not relevant.

Clause 6.5 – Stormwater and water

27. The DA, as amended, is supported by Stormwater management plans which provide for the collection and disposal of stormwater, with both on-site detention and retention/re-use of collected stormwater.

Clause 6.6(2) – Site requirements for multi dwelling housing and residential flat buildings

28. Multi dwelling housing development requires a minimum lot size of 1,200m², and, for lots with an area of less than 1,800m², a minimum width and depth of 24m. The Site has an area of 1,772.8m² with a total combined frontage wide to the Pacific Highway of 29.86m and a combined frontage to Woodville Avenue of 33.575m, which complies with the requirements of this clause.

Public Notification

29. The DA was notified by Council from 24 November 2021 to 24 December 2021. 3 submissions were received and were considered by Council. After being amended, the DA was re-notified by Council from 18 March 2022 to 17 April 2022. One submission was received and was considered by Council. Prior to entering agreement, Council further notified objectors of the proposed amended plans with the consent of the applicant, between 7 October 2022 and 21 October 2022. One submission was received and was considered by Council. The Council is satisfied that the amended DA subject to the conditions addressing the relevant matters raised by the objectors.

Conclusion

30. 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.

31. 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.

32. The Court notes:

1. Ku-ring-gai Council as the relevant consent authority has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the applicant's amending development application DA 0510/21 in accordance with the plans and documents listed below:

Plan no.		Drawn by		Dated
Architectural Plans
DA-00 _ Site Info, Revision J		SWA Group		28/09/2022
DA-11 _ Site/ Roof/ Demolition Plan, Revision J		SWA Group		17/10/2022
DA-12 _ Basement 1 Floor Plan, Revision J		SWA Group		28/09/2022
DA-13 _ Ground Level Floor Plan, Revision J		SWA Group		28/09/2022
DA-14 _ Level 1 Floor Plan, Revision I		SWA Group		28/09/2022
DA-15 _ Level 2 Floor Plan, Revision I		SWA Group		28/09/2022
DA-21 _ South Elevation, Revision I		SWA Group		17/10/2022
DA-22 _ North Elevation, Revision I		SWA Group		17/10/2022
DA-23 _ West & East Elevation, Revision I		SWA Group		17/10/2022
DA-31 _ Section 1 & 2, Revision I		SWA Group		17/10/2022
DA-32 _ Section 3 & 4, Revision H		SWA Group		28/09/2022
DA-35 _ Height Control Plane, Revision I		SWA Group		17/10/2022
DA-42 _ Sun Eye Diagram - P1, Revision I		SWA Group		17/10/2022
DA-51 _ Deep Soil & Site Coverage, Revision J		SWA Group		28/09/2022
DA-52 _ GFA Calculation P1, Revision G		SWA Group		28/09/2022
DA-53 _ GFA Calculation P2, Revision G		SWA Group		28/09/2022
DA-54 _ Storage Area, Revision G		SWA Group		28/09/2022
DA-60 _ Livable Layout - Platinum Level (Unit 6), Revision F		SWA Group		28/09/2022
DA-61 _ Livable Layout - Platinum Level (Unit 8), Revision F		SWA Group		28/09/2022
DA-81 _ Fence Details - P1, Revision E		SWA Group		09/08/2022
DA-82 _ Fence Details - P2, Revision G		SWA Group		01/09/2022
Landscape Plans
L04 Proposed Landscape Intent Master Plan, Revision E		A Total Concept Landscape Architects		26/09/2022
L05 Proposed Landscape Tree Planting Plan, Revision E		A Total Concept Landscape Architects		26/09/2022
L06 Proposed Landscape Planting Plan, Revision E		A Total Concept Landscape Architects		26/09/2022
L07 Proposed Landscape Existing Natural Ground Retention Plan, Revision E		A Total Concept Landscape Architects		26/09/2022
L08 Proposed Landscape Intent Concept Images, Revision A		A Total Concept Landscape Architects		26/09/2022
Stormwater Management Plans
DA-SW100 Cover Sheet, Revision 6		JCO Consultants Pty Ltd		28/09/2022
DA-SW200 Stormwater Concept Design – Basement Plan, Revision 6		JCO Consultants Pty Ltd		28/09/2022
DA-SW201 Stormwater Concept Design – Ground Floor Plan, Revision 6		JCO Consultants Pty Ltd		28/09/2022
DA-SW300 Stormwater Concept Design – Details Sheet – Sheet 1 of 2, Revision 6		JCO Consultants Pty Ltd		28/09/2022
DA-SW301 Stormwater Concept Design – Details Sheet – Sheet 2 of 2, Revision 6		JCO Consultants Pty Ltd		28/09/2022
DA-SW400 Stormwater Concept Design – Music Catchment Plan, Revision 6		JCO Consultants Pty Ltd		28/09/2022
DA-SW600 Erosion and Sediment Plan & Details, Revision 6		JCO Consultants Pty Ltd		28/09/2022

Document(s)

Dated

Access Report prepared by Lindsay Perry Access, Reference LP_22262,

Revision 2

28 July 2022

Road Traffic Noise Intrusion Assessment prepared by Day Design Pty

Ltd, Reference 7292-1.1R Rev C

28 September

2022

Mechanical Plant Noise Assessment prepared by Day Design Pty Ltd,

Reference 7292-2.1R Rev B

28 September

2022

Arboricultural Impact Assessment Report prepared by Jacksons Nature

Works

5 July 2022

BASIX certificate No. 1240849M_04 prepared by Building Sustainability

Assessments

18 October

2022

22-101AL16, Fire Engineering Supporting letter, prepared by i-FIRE

engineers

5/10/2022

2. The amended plans and documents referred to in (1) above were uploaded by the applicant to the NSW Planning Portal on 3 November 2022, reference PAN-160500.

3. The applicant subsequently filed the amended plans and documents referred to in (1) above with the Court on 4 November 2022.

33. The Court orders:

1. The applicant is to pay the respondent's costs thrown away by the amended development application, in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

2. The appeal is upheld.

3. Development consent is granted to development application number DA 0510/21, seeking consent for demolition of existing structures and construction of a multi dwelling housing development with eight townhouses, basement parking, and associated works at Lots 10 and 11 in Deposited Plan 608144, also known as 2 and 2A Woodville Avenue, Wahroonga, subject to the conditions of consent in Annexure 'A'.

.................................

S Dixon

Senior Commissioner of the Court

Annexure A (414566, pdf)

**********

Amendments

14 November 2022 - Correction to typographical error at [30].

Decision last updated: 14 November 2022