Kermani v Ku-ring-gai Council

[2020] NSWLEC 1219

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kermani v Ku-ring-gai Council [2020] NSWLEC 1219
Hearing dates:	Conciliation conference on 20 April 2020
Date of orders:	19 May 2020
Decision date:	19 May 2020
Jurisdiction:	Class 1
Before:	Bindon AC
Decision:	The Court Orders: (1) The appeal is upheld. (2) Development application DA0313/18 for the demolition of existing structures, construction of a childcare centre with basement car parking and associated works is approved subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – centre based child care facility – conciliation conference – 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 (Educational Establishments and Child Care Facilities) 2017 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land
Category:	Principal judgment
Parties:	Friya Kermani (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: S Gadiel (Solicitor) (Applicant) C Drury (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Sparke Helmore (Respondent)
File Number(s):	2019/254373
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Ku-ring-gai Council (Council) of Development Application No DA0313/18 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 1,738.8m² parcel of land identified as Lot 1 in DP 25536 at 44 Fox Valley Road, Wahroonga (the site). The DA as submitted to Council on 02 August 2018 sought consent for demolition of an existing dwelling and the construction of a single storey “centre based child care facility” (child care centre) for 96 children, and associated parking for 23 cars in a single basement level. Those plans were notified for 30 calendar days from 16 August 2018.

3. According to the amended Statement of Facts and Contentions filed with the Court on 16 April 2020 the DA plans were subsequently amended:

1. By the applicant submitting amended plans to Council on 23 April 2019 (plans referred to as Amendment A and dated 18 January 2019). Those plans were renotified on 7 May 2019.

2. By the Court on 25 September 2019 granting leave to rely on amended plans (referred to as Amendment B and dated 15 August 2019). Those plans were renotified on 02 October 2019.

3. Following a without prejudice meeting between the parties on 5 February 2020 the Court granted leave on 23 March 2020 to rely on amended plans (referred to as Amendment C and dated 04 December 2019). Those plans were renotified on 27 March 2020.

4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. I presided over the conciliation conference, held on 20 April 2020. Due to the Covid 19 protocols in place at the time, and by agreement between the parties, the conciliation conference was held via teleconference and there was no prior view of the site. Council provided a copy of all resident objections in advance of the conciliation conference, as filed with the Court on 31 March 2020 and 20 April 2020.

5. The Amendment C plans dated 04 December 2019 formed the basis of discussions at the s34 conciliation conference. At the conciliation conference the parties reached an agreement, based on the amended plans, as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties filed that agreement and agreed conditions of consent with the Court on 23 April 2020, and copies of relevant plans and documents referred in the agreement on 30 April 2020.

6. The main changes between the plans as originally submitted to Council and the Amendment C plans the subject of the s34 agreement are:

1. The number of children to be accommodated has reduced from 96 to 89, while the number of parking spaces remains at 23.

2. The vehicular access to the basement has been relocated further to the north along Ada Avenue South.

3. The external pedestrian ramp between the basement and ground level has been replaced by an internal lift. The building entry and associated pedestrian path from the street have been redesigned to remove the pedestrian ramp and steps. The combined result of these changes is an increase in the area of soft landscaping along the Ada Avenue South frontage.

4. The building line setback from the southern boundary has been increased to 9 metres. The southern outdoor play area has been redesigned as a single level terrace, reduced in size and located such that it does not encroach into the 9 metre southern setback. The whole of the 9 metre southern boundary setback is now dedicated to planting.

5. Minor reconfiguring of the basement and ground floor plans to accommodate the above changes.

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 development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraphs 8 and 9 below.

Satisfaction of jurisdiction

8. The relevant jurisdictional matters in relation to Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015) are:

1. The development is for the purpose of a centre-based child care facility, which is a use permissible with consent in the R2 Low Density Residential zone. I accept the advice of the parties and the evidence contained in the amended application that the development does not contravene any development standard in KLEP 2015. I also acknowledge, by reference to the Council’s 2017 Bushfire Prone Land map, that the site is not bushfire prone land.

2. The site is within the vicinity of heritage items identified in KLEP 2015 at 38, 40, 49 and 51 Fox Valley Way. A Heritage Impact Statement (May 2018) by Archnex Designs addressing the relevant provisions of Clause 5.10 of KLEP 2015 has been submitted and concludes the development will not adversely impact upon the heritage items in the vicinity.

3. Clause 6.3(4) of KLEP 2015 entitled “Biodiversity protection” applies to part of the site, as shown on the Terrestrial Biodiversity Map. As agreed between the parties the development:

1. is consistent with the objectives of clause 6.3 of KLEP 2015.

2. is designed and will be sited to avoid any potentially adverse environmental impact, including the expanded 9 metre building setback and retention of key trees, including T4 and T5, as shown on the Landscape Concept Plan by Walman Partners dated 10 January 2020 included in the list of approved plans in Annexure A of the s34 agreement.

4. Clause 6.5(2) of KLEP 2015 entitled “Stormwater and water sensitive urban design” applies. As agreed between the parties and evidenced by the stormwater drainage drawings by Fly Engineering Pty Ltd dated 9 February 2020 included in the list of approved drawing in Annexure A of the s34 agreement, the development:

1. incorporates water sensitive urban design principles into the design of the development;

2. integrates riparian, stormwater and flooding measures;

3. includes a stormwater management system that includes all reasonable management actions to avoid any adverse impacts on the land to which the development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems; and

4. to the extent that potential adverse environmental impacts cannot be feasibly avoided the development minimises and mitigates the adverse impacts of stormwater runoff on adjoining properties, native bushland, waterways and groundwater systems.

9. The relevant jurisdictional matters in relation to other relevant statutory instruments are:

1. State Environmental Planning Policy No 55—Remediation of Land (“SEPP 55”), and in particular cl 7(1) and (2), applies to the land and requires consideration of any contamination and associated remediation. The parties have confirmed that the site has historically been used for residential purposes, is unlikely to contain any contamination, and therefore no opinion needs to be formed under clause 7(10(b) – (c) of SEPP 55.

2. In relation to State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (“SEPP Child Care) and associated Child Care Planning Guidelines, I am satisfied with the advice of the parties and the reasons provided in the Amended Statement of Environmental Effects (September 2019) by Mersonn Pty Ltd that the proposal is not inconsistent with the relevant provisions of this instrument, and associated guidelines.

3. In relation to State Environmental Planning Policy (Infrastructure) 2007 (“ISEPP”) Clause 101 applies as the development has frontage to a ‘classified road’, being Fox Valley Way. I am satisfied by reference to the Traffic and Parking Report (13 February 2019) and supplementary letter (17 January 2020), both by Varga Traffic Planning Pty Ltd, and by the Noise Intrusion & Emission Assessment report (6 February 2020) by Acoustic Dynamics that:

1. vehicular access is provided via Ada Avenue South (being ‘a road other than a classified road’);

2. the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

• the design of the vehicular access to the land;

• the emission of smoke or dust from the development; or

• the nature, volume or frequency of vehicles using the classified road to gain access to the land; and

3. the development is appropriately located and designed and includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

Disposal of proceedings in accordance with the parties’ decision:

10. 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’ agreement.

11. The Court orders:

1. The appeal is upheld.

2. Development application DA0313/18 for the demolition of existing structures, construction of a childcare centre with basement car parking and associated works is approved subject to the conditions in Annexure A.

…………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (195 KB)

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Decision last updated: 19 May 2020