Koch v Ku-ring-gai Council

[2021] NSWLEC 1228

Land and Environment Court

New South Wales

Medium Neutral Citation:

Koch v Ku-ring-gai Council [2021] NSWLEC 1228

Hearing dates:

Conciliation conference on 7 April 2021

Date of orders:

5 May 2021

Decision date:

05 May 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) Leave is granted for the Applicant to rely on the amended plans and additional information listed in Annexure A.

(2) Each party to pay its own costs of the proceedings.

(3) The appeal is upheld.

(4) Development Application No. DA0531/19 lodged on 17 December 2019, as amended, to demolish the existing buildings and construct a detached dual occupancy development at 21 Treatts Road, Lindfield is approved subject to the conditions in Annexure B to this Agreement.

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy development – heritage conservation area – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 s 8.7

Environmental Planning and Assessment Regulation 2000

Ku-ring-gai Local Environmental Plan (Local Centres) 2012 cll 2.3, 2.5, 5.10, 6.1, 6.2, 6.3,

Land and Environment Court Act 1979 ss 34, 34AA

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

State Environmental Planning Policy (Infrastructure) 2007 cl 85

State Environmental Planning Policy No 55 – Remediation of Land cl 7

State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017

Category:

Principal judgment

Parties:

Richard Koch (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
M Winram (Solicitor) (Respondent)

Solicitors:
Apex Law (Applicant)
Maddocks (Respondent)

File Number(s):

2020/263731

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant, Mr Richard Koch is the owner of the property at 21 Treatts Road, Lindfield, on which he seeks consent for development the subject of Development Application DA0531/19 that has been refused by Ku-ring-gai Council who is the Respondent in this matter.

2. The development the subject of the development application comprises:

• The demolition of all existing structures;

• Construction of a detached dual occupancy;

• Modifications to existing driveways;

• Various paving and landscape works; and

• Removal of 14 trees within the subject site.

3. The appeal of the refusal by the Respondent is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The matter was originally listed before me under s 34AA of the Land and Environment Court Act 1979 (LEC Act) on 7-8 April 2021. However, at the commencement of the conciliation, the parties agreed that the amended plans and other documents prepared by the Applicant dated 29 March 2021, resolve all of the matters in contention between the parties.

5. Consequently, the parties advised me that they had reached agreement, under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties.

6. However, the Respondent advised that, for reasons yet to be ascertained, Council’s notification of the amended plans had not been received by residents. As a consequence, I granted leaved for three residents to provide oral submissions at the onsite view held at the commencement of the proceedings.

7. I also granted the parties an adjournment for notification to be completed over a 7-day period, and for those submissions to be considered in the final form of the agreement that I directed be filed with the Court on 23 April 2021.

8. A signed agreement prepared in accordance with s 34(10) of the LEC Act was subsequently filed with the Court on 22 April 2021.

9. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s34 agreement.

10. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [13].

1. The site is located within the R2 Low Density Residential zone identified in the Zone Use table at cl 2.3 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (KLEP), in which dual occupancy is not a permitted use. However, cl 2.5 of the KLEP permits additional uses on land where that land is included in Schedule 1 of the KLEP.

2. No 21 Treatts Road, Lindfield is identified at cl 10 of Schedule 1, and subcl (2) permits development for the purpose of a dual occupancy (detached) with development consent.

3. The objectives of the R2 zone are as follows:

•  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 housing that is compatible with the existing environmental and built character of Ku-ring-gai.

4. The site is located within the Blenheim Road Conservation Area (Blenheim HCA) as identified in Schedule 5 of the KLEP, and is adjacent to a single-storey detached dwelling at 23 Treatts Road that is identified as an item of local heritage significance (I51). I have considered the effect of the proposed development on the Blenheim HCA, and the adjoining heritage item in accordance with cl 5.10(4) of the KLEP and I conclude that, for the reasons that follow, the proposed development will not adversely impact the Blenheim HCA or the adjoining heritage item:

• the heritage experts agree that demolition of the existing dwelling is not to the detriment of the Blenheim HCA.

• the set out of the proposed garage is consistent with the location of the existing garage at 21 Treatts Road which currently adjoins the heritage item such that the relationship between the properties is unchanged.

• the historical deviation of Treatts Road from its predominant geometry in the vicinity of the site provides a basis for variation in the building setback.

5. On the basis of the Stormwater Management Plan prepared by iStruct consulting engineers at Drawings D01-D03, and the conditions of consent in respect of excavation, erosion and protection measures for the existing trees on the site, I consider the provisions of cl 6.1 of the KLEP to have been adequately addressed.

6. For similar reasons, and after considering the reports of Council’s engineer provided to me and dated 4 February 2020 and 22 June 2020, I am also satisfied that the provisions of cl 6.2 of the KLEP in relation to stormwater and water sensitive urban design have been addressed.

7. Clause 6.3 of the KLEP sets out matters that must be considered in respect of Biodiversity Protection, as the site is located on the Natural Resource Biodiversity Map. I have read the Biodiversity Impact Assessment prepared by Keystone Ecological dated 10 March 2021, and, together with the proposed conditions of consent, I consider the matters in cl 6.3(3) of the KLEP to be addressed, and I am satisfied in respect of the matters set out in cl 6.3(4) of the KLEP.

8. The site is also adjacent to the rail corridor for the North Shore railway line to the west of the site, and Sydney Trains is the rail authority for the purposes of written notice of the development application pursuant to cl 85 of the State Environmental Planning Policy (Infrastructure) 2007. Sydney Trains raises no objection to the development application, and provide certain conditions of consent that are evident by reference in Condition 3 of the proposed conditions of consent.

9. In accordance with cl 7 of State Environmental Planning Policy No 55 – Remediation of Land, I have considered whether the Site is contaminated. On the basis of the Heritage Impact Statement prepared by Urbis dated 16 December 2019, I am satisfied that the site’s history is solely for residential purposes, it is unlikely to be contaminated.

10. Finally, I am satisfied that the application is accompanied by two BASIX certificates (Certificate No. 1055735S_02, and Certificate No. 1055792S_05), prepared by Architelle in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

11. 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.

12. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

13. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted for the Applicant to rely on the amended plans and additional information listed in Annexure A.

2. Each party to pay its own costs of the proceedings.

3. The appeal is upheld.

4. Development Application No. DA0531/19 lodged on 17 December 2019, as amended, to demolish the existing buildings and construct a detached dual occupancy development at 21 Treatts Road, Lindfield is approved subject to the conditions in Annexure B to this Agreement.

……………………

T Horton

Commissioner of the Court

Annexure A (107079, pdf)

Annexure B (273330, pdf)

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Decision last updated: 05 May 2021