King 9 International Pty Ltd v Ku-ring-gai Council

[2020] NSWLEC 1273

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

King 9 International Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1273

Hearing dates:

Conciliation conference on 18 June 2020

Date of orders:

30 June 2020

Decision date:

30 June 2020

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The Court orders: 

(1) The appeal is upheld.

(2) Development Application No. 247/18 for the demolition of existing structures and the construction of a seniors living development comprising 5 units, basement car parking and associated works at Lot 23 of Deposited Plan 15578, known as 1 Carbeen Avenue, St Ives, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties

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

Texts Cited:

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

Category:

Principal judgment

Parties:

King 9 International Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Arch (Solicitor) (Applicant)
L Finn (Solicitor) (Respondent)

Solicitors:
Concordia Pacific (Applicant)
Hones Lawyers (Respondent)

File Number(s):

2019/21212

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 247/18 for the demolition of existing structures and the construction of a seniors living development comprising of 5 units, basement car parking and associated works (the proposal) at 1 Carbeen Avenue, St Ives (the site) by Ku-ring-gai Council (the Council).

2. Leave was granted by the Court on 25 February 2020 for the applicant to amend the application and rely on an amended proposal, subject to an order for costs to be paid by the applicant to the Council pursuant to s 8.15(3) of the EPA Act.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 18 June 2020. I presided over the conciliation conference.

4. 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. 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.

5. The Council informed me that the amended proposal was notified by the Council following leave being granted to the applicant to amend the application and no submissions were received. The Council filed an amended Statement of Facts and Contentions on 7 April 2020, which raised several contentions regarding non-compliance with relevant provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors). The Council submitted, in relation to the agreement of the parties, that those contentions have been satisfactorily addressed by the provision of additional information by the applicant and that the proposal has not been further amended.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised pursuant to the relevant provisions of SEPP Seniors and Ku-ring-gai Local Environmental Plan 2015 (LEP 2015).

Planning framework and consideration

7. The application is made pursuant to SEPP Seniors (cl 4(1)(a)) and the proposed development is for in-fill self-care housing, which is a group of self-contained dwellings (cl 10(c)). The site is zoned R2 Low Density Residential (Land Zoning Map - Sheet LZN_ 012 of LEP 2015). The objectives of the R2 zone, to which regard must be had, are:

• To provide for the housing needs of the community within a low 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 housing that is compatible with the existing environmental and built character of Ku-ring-gai.

8. I am satisfied by the submission of the Council and the Access Report prepared by Lindsay Perry Access and dated 28 November 2020 that residents of the proposed development will have access to the required facilities at cl 26(1) of SEPP Seniors that complies with the requirements of cl 26(2) of SEPP Seniors.

9. Pursuant to cl 29 of SEPP Seniors, I have considered the criteria referred to in cl 25(5)(b)(i), (iii) and (v) of SEPP Seniors and I am satisfied by the Council’s submission that the proposed development is compatible with the surrounding land uses, because the proposed in-fill self-care housing has adequate areas of deep soil and landscaping; is close to services and has access to those services; and the scale and character of the proposed development is sympathetic to the low density residential character of the locality.

10. Pursuant to cl 31 of SEPP Seniors, I have considered 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 I am satisfied that the site planning and design of the proposed development meets the objectives of the Seniors Living Policy for presentation to the streetscape, maintaining the amenity of neighbours and providing good internal amenity and that the proposed development is an appropriate response to the site’s context.

Orders

11. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 247/18 for the demolition of existing structures and the construction of a seniors living development comprising 5 units, basement car parking and associated works at Lot 23 of Deposited Plan 15578, known as 1 Carbeen Avenue, St Ives, is approved, subject to the conditions of consent at Annexure A.

_______________________

Susan O’Neill

Commissioner of the Court

Annexure A (366619, pdf)

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Amendments

30 June 2020 - Correction to the Coversheet

Decision last updated: 30 June 2020