Lindvest DM Pty Ltd v Ku-ring-gai Council

[2020] NSWLEC 1218

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lindvest DM Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1218
Hearing dates:	11 May 2020
Date of orders:	19 May 2020
Decision date:	19 May 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Courts orders that: (1) Leave is granted to the Applicant to rely upon the amended plans and documents referred to in Condition 1 of the Respondent’s Conditions of Consent at Annexure ‘A’. (2) The Applicant is to pay the Respondent’s reasonable costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3) The appeal is upheld. (4) Development consent is granted to the Development Application No DA0163/18 for the demolition of all existing structures and the construction of a five-storey residential flat building containing 43 units over two levels of basement at 7,9 and 11 Havilah Road, Lindfield, subject to the conditions at Annexure ‘A’. (5) All Exhibits are returned, except for Exhibits A, B, D and E.
Catchwords:	DEVELOPMENT APPLICATION – residential apartment development – residential flat building in R4 High Density Residential zone – riparian zone – biodiversity protection – apartment design guide
Legislation Cited:	Architects Act 2003 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan (Local Centres) 2012 Land and Environment Court Act 1979 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Texts Cited:	Apartment Design Guide Ku-ring-gai Development Control Plan 2018 Land and Environment Court of New South Wales, Covid-19 Pandemic Arrangements Policy (March, 2020)
Category:	Principal judgment
Parties:	Lindvest DM Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: M Parrino (Solicitor) (Applicant) A Hudson (Solicitor) (Respondent)   Solicitors: Project Lawyers (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2018/365057
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), against the deemed refusal by the Ku-ring-gai Council (the Respondent) of Development Application No. DA0163/18 (the application) for demolition of existing structures and construction of a residential flat building development comprising 43 units, basement parking and associated works at the properties known as 7, 9 and 11 Havilah Road, Lindfield (the site).

Approach to the proceedings

2. The matter was listed for hearing under s34(c) of the Land and Environment Court Act 1979 (LEC Act) on 11 May 2020. On 23 March 2020, the Court published the COVID-19 Pandemic Arrangements Policy (Pandemic Policy) on the Court’s website.

3. Consistent with the Pandemic Policy, the Court arranged a telephone mention with the parties on 8 May 2020 at which the parties consented to the hearing proceeding by telephone. The Court directed that written submissions should be filed with the Court by close of business on 8 May 2020, and that the Respondent should make available the details necessary for resident objectors to join the call for the purposes of providing their submissions to the Court at the commencement of the hearing.

4. The hearing commenced on 11 May 2020 by telephone. While objector submissions were contained in materials provided by the Council prior to the proceedings, marked Exhibit 2, the Court also received at the commencement of the hearing a number of written submissions prepared for the hearing, and heard from the following resident objectors, whose submissions may be summarised as follows:

5. Ms Mae Matthews

• The proposed development is inappropriate for Ku-ring-gai.

• The removal of mature trees will remove privacy screening and natural wildlife habitat in a riparian zone.

• A compromise should be granted on Riparian controls. In particular, Tree 21 and Tree 35 should be retained, and the stability of Tree 19 should be reassessed.

6. Ms Juliana Chau

• Given the positive contribution of the mature trees to health, wellbeing and to wildlife habitat, the removal of trees should not be permitted.

7. Mr Stuart Knibbs

• Mature trees of advanced height should be retained for privacy screening, wildlife habitat and natural environment.

• Balcony balustrades should be opaque, and not transparent.

• The development will add to dangerous traffic congestion in the local area.

• The development breaches height, depth and orientation standards.

• Apartment orientation is inappropriate.

• The impact of demolition, excavation and construction must be considered in the conditions, if consent is granted.

The site and its context

8. The site is located to the north east of the Lindfield Local Centre, within the R4 High Density Residential zone under the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (KLEP), which permits residential flat buildings with consent and wherein the objectives of the zone are in the following terms:

•  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.

9. The site is identified as Lot B in DP 102576, Lot 2 in DP 951576 and Lot 1 in DP 951682, comprising the allotments of No’s 7, 9 and 11 Havilah Road on which existing free standing dwellings currently stand.

10. The consolidation of the properties results in a northern frontage to Havilah Road of 57.9m and a total site area of 3,114.67m².

11. The site slopes from the Havilah Road frontage, to the rear with a fall of around 8.5m to a channelised watercourse and embankment that is identified as a Riparian Zone under cl 6.4 of the KLEP, and an area of biodiversity protection under cl 6.3 of the KLEP.

12. As the proposed development includes excavation for basement car parking, the provisions of cl 6.1 of the KLEP apply in relation to earthworks.

13. As the site adjoins riparian lands, the provisions of cl 6.2 of the KLEP also apply in relation to stormwater and water sensitive urban design.

14. As the proposed development is for a residential flat building, not marked ‘Area 1’ on the Lot Size Map, the provisions of cl 6.5 (2) of the KLEP apply. As the site area is greater than 1,200m² and the frontage to Havilah Road is greater than 30m, the parties agree the proposal complies.

The issues

15. The facts that provide relevant background to the proceedings are summarised by the Respondent in the Statement of Facts and Contentions (Exhibit 1), filed on 28 February 2019.

16. The contentions initially pressed by the Respondent are summarised as follows:

• Contention 1 – The proposed development exceeds the maximum height of buildings.

• Contention 2 – The proposed development does not achieve satisfactory solar and daylight access and building orientation.

• Contention 3 – The proposed development is excessive in its depth.

• Contention 4 – The proposed development imposes unreasonable amenity impacts on future residents, and fails to positively contribute to the streetscape.

• Contention 5 – The proposed development results in site isolation of an adjoining property.

• Contention 6 – The proposed development does not achieve 50% deep soil landscape area.

• Contention 7 – The BASIX certificate submitted with the application is in error.

• Contention 8 – The proposed development is not in the public interest and will establish an undesirable precedent.

17. At the commencement of the hearing, the Applicant sought leave, unopposed by the Respondent, to amend the application before the Court by relying upon plans and documents marked Exhibit B, including:

• Amended architectural plans (Folio 1-48) and Schedule of amendments (Folio 140-142)

• Amended Landscape plans (Folio 49-54) and list of amendments (Folio 143-144)

• Amended Stormwater plans (Folio 55-74)

• Amended cl 4.6 written request (Folio 75-84)

• Amended Stormwater Engineering Response (Folio 85)

• Amended Flood Study Report (Folio 86-120)

• Landscape Response (Folio 121)

• Amended BASIX Certificate NO.920970M-06 (Folio 122-139)

18. The parties agreed that the amended plans and documents essentially resolve the contentions subject to the satisfaction of the Court in relation to those matters set out at s 4.15 of the EPA Act.

19. The parties rely upon the expert evidence of Mr Garry Chapman (Town planner for the Applicant), and Mr Grant Walsh (Town planner for the Respondent), who conferred in order to prepare a joint expert report marked Exhibit C, and in which there are no areas of disagreement.

20. However, as the proposed development exceeds the maximum height of buildings at cl 4.3 of the KLEP, the Court must first be satisfied on the basis of a written request that there are grounds to justify the contravention in accordance with cl 4.6 of the KLEP to enliven its power to grant consent.

21. In the event that the written request is upheld, I must then consider the provisions at cl 30(2) of the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65).

22. I must then address the jurisdictional matters in the KLEP as follows:

• Cl 6.1 Earthworks

• Cl 6.2 Stormwater and water sensitive urban design

• Cl 6. 3 Biodiversity protection

• Cl 6.4 Riparian land and waterways

The proposed development exceeds the maximum height of buildings

23. The experts agree that the applicable height standard is 17.5m under cl 4.3 of the KLEP, and that the variation to the standard is acceptable and for which there are sufficient environmental planning grounds to vary the development standard pursuant to cl 4.6 of the KLEP.

24. The Applicant relies upon a written request prepared by Mr Chapman dated 29 August 2019 (Exhibit B, Tab 4) pursuant to cl 4.6 of the KLEP to justify the contravention of the height standard, which is summarised in the following terms:

• 19.7m – 18.8m measured to the lift overrun central to the building footprint,

• 18.1m measured to the south-eastern upper level roof form, and

• 19.5m measured to the south-east upper level roof form.

25. The objectives of the height standard, at cl 4.3 of the KLEP are in the following terms:

1. To ensure that the height of development is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai Centres.

2. To establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity.

3. To enable development with a built form that is compatible with the size of the land to be developed.

26. Clause 4.6 of the KLEP provides the Court with the power to grant development consent to the development even though the development would contravene the development standard found in cl 4.3 of the KLEP, but that power is subject to conditions.

27. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (“Initial Action”), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that:

1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)), and

2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)).

3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), and

4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

28. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that:

1. The Applicant’s written request has adequately addressed the matters required to be demonstrated by subcl (3); and

2. That the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out.

29. Clause 4.6(4)(b) also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) of the LEC Act but should still consider the matters in cl 4.6(5) of the KLEP (Initial Action at [29]).

30. In support of the proposal, the written request states that, for the following reasons, compliance with the development standard found in cl 4.3 of the KLEP would be unreasonable or unnecessary as the objectives of the standard are achieved notwithstanding non-compliance with the standard because:

1. Consistent with the first objective of the height standard, the building presents a 5-storey form to Havilah Road, which is appropriate for this part of the Lindfield town centre. The exceedance is set back to ensure the variation in building height will not present an uncharacteristic height of scale to Havilah Road.

2. Consistent with the second objective of the height standard, the site is within the R4 zone and the areas of the proposal that exceed the height are not visible from the R2 Low Density Residential zone located opposite Havilah Road due to the fall of the land.

3. Consistent with the third objective of the height standard, the proposed scale is consistent with the planning regime as it complies with the floor space ratio (FSR), setback, and deep soil landscape area controls so that it is compatible with the desired character of development on the southern side of Havilah Road.

31. For the reasons set out above, I am satisfied that the proposed development is consistent with the objectives of the height standard, notwithstanding the non-compliance. In arriving at this opinion of satisfaction, I note, firstly the setback of almost 18m at Level 4 from the Havilah Road property boundary that is evident on drawing DA302. Together with the protruding roof form at Level 4, I am satisfied that the exceedance, which is limited in area, is unlikely to be visible outside the R4 zone. Secondly, I accept the agreed position of the experts that the proposal is substantially consistent with the objectives of Part 7C.7 of the Ku-ring-gai Development Control Plan 2018 (KDCP) as the building presents as 5-storeys to Havilah Road.

32. Next, the written request addresses the environmental planning grounds on which the proposed development seeks to justify contravention of the development standard. The environmental planning grounds relied upon must be sufficient to justify a contravention of the development standard with a focus on the particular aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]).

33. The written request relies on the following environmental planning grounds to justify contravening the development standard:

1. The majority of the proposed development is within the 17.5m height control, and the exceedance largely results from the significant fall on the site.

2. The variation also partly results from ensuring grade requirements and height clearance for waste vehicles to the basement car park which dictates the relative level of the ground and first floor, with an impact on the levels above.

3. Strict compliance with the height control will not achieve a better environmental planning outcome as those elements that exceed the control contribute to the mix of housing in the development and the lift provides equitable access. Furthermore, neither element results in unreasonable additional overshadowing of neighbouring properties, or overlooking as windows within the exceedance are highlight windows only.

4. The proposed building is suitably positioned to protect significant trees and biodiversity mapped land, and the building height contributes to achieving deep soil landscape area which will ensure the proposed development is compatible with the high density character of the area.

5. The proposal, including the communal roof top terrace, is consistent with the objects of the EPA Act, including:

• S 1.3(c) as it is consistent with the height standard at Havilah Road, and the terrace will not result in adverse amenity impacts, it is orderly and economic use and development of land.

• S 1.3(g) the exceedance does not result in unreasonable amenity impacts, the functional open space contributes to resident amenity and the building height is compatible with the built form in the locality.

6. The proposed development meets the relevant aims of the KLEP including:

• 2(b) – the subject site is mapped biodiversity and to achieve a development yield compatible with the R4 zone, the building footprint and its floor area is located towards the front of the site resulting in the exceedance due to the topography of the site.

• 2(h) – the residential flat building contributes to the variety of housing.

7. The exceedance of the height control, and creation of a communal roof top terrace ensures that the proposal complies with the FSR, is a built form that is appropriate for the site, and is of a bulk, scale and streetscape character that is consistent with the character of the locality.

34. I accept firstly, that the siting and massing of the building is biased to Havilah Road, partly to avoid development in the riparian zone, with a site coverage of 31.9% (Exhibit D, p15) and this has the effect of consolidating built form in the middle of the site where a portion of it breaches the height plane. Secondly, I accept that there is some three-dimensional complexity in providing vehicular access to the basement on a site that falls with the access ramp. This has the effect of elevating the ground floor level and has consequential impact on the overall building height that is generally within the allowable height but for the lift overrun and the upper portion of Unit 401 and Unit 403. Thirdly, care has been taken to avoid overlooking of neighbouring properties by the placement of highlight windows that mitigates privacy impacts that could otherwise result. For these reasons, I am satisfied there are sufficient environmental planning grounds to justify the contravention of the height control.

35. While public submissions assert adverse privacy impacts resulting from the development, the exceedance the subject of the written request does not of itself impose such impacts as it is confined to lift overruns, and an area where highlight windows only are provided.

36. Furthermore, where it is possible for a sightline between residents of the proposed development and existing properties, the setback attributable to the riparian zone exceeds the minimum distance set out in the Apartment Design Guide (ADG) for visual privacy and so is reasonable and anticipated in an R4 zone.

37. Finally, as the proposed development comprises a variety of apartment types, as shown on drawing DA 500, in a high density housing development close to public transport, services and employment opportunities, I am satisfied that the public interest test in cl 4.6(4)(a)(ii) is evidenced by conformity with the zone objectives at [8], and for the reasons set out at [31], is consistent with the objectives of the height standard. Furthermore, as the exceedance is limited, I am also satisfied that the concurrence of the Secretary of the Department of Planning may be assumed in accordance with cl 4.6(4)(b).

The proposed development complies with the Apartment Design Guide standards

38. The matters set out in Contention 2 and Contention 3 relate to compliance with the ADG, and the parties agree that the amended plans resolve the contentions.

39. Clause 30(2) of the SEPP 65 requires that a consent authority, or the Court on appeal, must not grant consent unless adequate regard is demonstrated in the development to design quality principles and the objectives of the ADG.

40. I am satisfied that both the design quality principles at Schedule 1 of the SEPP 65 and the objectives of the ADG have been achieved, and so the requirements of cl 30(2) of SEPP 65 have also been met, for the reasons that follow:

1. Section 50 (1AB) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations) requires that a qualified designer, being defined at s 3 of the EPA Regulations as a person registered under the Architects Act 2003, must provide the consent authority, or the Court on appeal, with an attestation that they designed, or directed the design of the development and address the design quality principles in Schedule 1 of SEPP 65, and demonstrates, in terms of the ADG, how the objectives in Parts 3 and 4 of that guide have been achieved.

2. A complying statement authored by Mr Paul Buljevic of PBD Architects & Project Managers (Exhibit D) addresses Contention 2 by confirming that, in compliance with Part 4A of the ADG, 74.4% of units achieve 2 hours of solar and daylight access.

3. In support of which, the experts also agree that amendments to Units LG-02 and LG-03, LG-06 to 2-09 have been amended to allow both sunlight and cross ventilation despite the south orientation, as shown on drawing DA600-DA605.

4. The experts are also agreed that as the amended plans achieve the solar access and cross ventilation requirements of the ADG, the building depth is acceptable. I accept the agreed position of the experts, and I note the proportion of units achieving cross ventilation on drawing DA 560 is 72.09%, in excess of the 60% required by the ADG.

Relevant consideration under the KLEP

41. The development proposes excavation and earthworks on a site that is identified in the KLEP as Riparian land in close proximity to a waterway and within an area of biodiversity significance.

42. Clause 6.1 of the KLEP requires that I consider matters at subcl (3) in relation to Earthworks. On the basis of the Geotechnical Investigation prepared by JK Geotechnics dated 3 April 2018, and Condition 53 contained in Exhibit 3 which requires a contractor with specialist excavation experience to undertake the works, and a suitably qualified geotechnical engineer to oversee, among other things, hydro-geological considerations, I am satisfied that the development addresses the matters at subcl (3), and is consistent with the objectives of the clause.

43. Clause 6.2 of the KLEP has the objective, at subcl (1) to avoid or minimise the adverse impacts of urban stormwater on the land on which development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems. On the basis of the following, I am satisfied that the appropriate principles, measures and systems have been integrated in to the proposal:

• The Flood Impact Assessment report prepared by Australian Consulting Engineers dated September 2019 (Exhibit B Tab 6).

• Stormwater Management Plans prepared by Australian Consulting Engineers (Exhibit B, Tab 3) Revision D.

• Proposed conditions of consent (Exhibit 3), including creation of a floodway restriction at Condition 92 to ensure appropriate stormwater management.

44. The site is within an area of biodiversity significance as set out in cl 6.3 of the KLEP. The matters for consideration are at subcl (3), and consent must not be granted unless the Court is satisfied of those issues set out at subcl (4). On the basis of the following reports, I am satisfied that the development the subject of the development application is consistent with the objectives of the clause, and is so designed to avoid potentially adverse environmental impact:

• Biodiversity Impact Assessment, prepared by ACS Environmental dated April 2018 (Exhibit A, Tab 16), including Appendix 2 containing an assessment of significance in accordance with s 5A of the EPA Act.

• Vegetation Management Plan, prepared by ACS Environmental dated 6 November 2018 (Exhibit A, Tab 21).

• Stormwater Management Plans prepared by Australian Consulting Engineers (Exhibit B, Tab 3) Revision D.

• Arboricultural Impact Assessment prepared by Footprint Green dated 5 November 2018 (Exhibit A, Tab 14).

45. The parties agree that the landscape design proposes to retain those fragments of the Sydney Turpentine Ironbark Forest (STIF) present on the site, with the exception of Tree 19 that is not the subject of a contention, but is raised in public submissions.

46. Tree 19 is identified in the Aboricultural Impact Assessment as an Angophora Costata of around 25m in height, and being of very high landscape significance. However due to partial collapse of the bifurcated trunk in 2019, the Respondent’s landscape expert, Mr Geoff Bird, supports the Applicant’s assessment that the tree is unstable and deserving of removal. Mr Bird supports the removal of Tree 19 for the reasons set out in his Landscape referral report (Exhibit 2, Tab 7), including the high likelihood of failure, with subsequent damage to property. Council’s internal Ecology referral report (Exhibit 2, Tab 5) records that Tree 10, 13, 14, 16.1, and 19 comprise part of the STIF, and also supports the removal of Tree 19 on safety grounds.

47. Mr Bird also supports the removal of Tree 21 and Tree 35 that were also the subject of public submissions. The submissions stated, in essence, that while not native species, Tree 21, a Sweet Gum, and Tree 35, an Evergreen Alder, add to the high canopy character of the riparian zone and positively contribute to the outlook from their dwellings.

48. As stated by Mr Bird, Tree 21 has experienced limb failure that has affected its structural form with some evidence of cavity and decay which is also documented in the Applicant’s Aboricultural Impact Assessment, and Tree 35 is an exempt species that would permit its removal at any time without application to the Council.

49. For the reasons stated above, I am satisfied that the removal of trees proposed in the application is consistent with the objectives of cl 6.3 set out at subcl (1). In particular, the removal of exotic, or introduced, species is consistent with objective (1)(d) to “…protect, maintain and improve the diversity and condition of native vegetation, including protecting, restoring and enhancing biodiversity corridors” (my emphasis).

50. Furthermore, I accept Mr Bird’s assessment that the removal of the mature tree canopy is outweighed by the benefit of the proposed native revegetation in the riparian zone.

51. The site is identified as ‘Category 3’ riparian land under cl 6.4 of the KLEP. The matters for consideration are at subcl (3), and consent must not be granted unless the Court is satisfied of those issues set out at subcl (4).

52. On the basis of the Biodiversity Impact Assessment prepared by ACS Environmental dated April 2018, the Vegetation Management Plan, prepared by ACS Environmental dated 6 November 2018, the Flood Impact Assessment report prepared by Australian Consulting Engineers dated September 2019, and the Stormwater Management Plans prepared by Australian Consulting Engineers, Revision D, I am satisfied that the development integrates riparian, stormwater and flooding measures, and is sited, designed and will be managed to avoid potential environmental impacts.

53. In particular, I note the following:

• All habitable floor levels are at a level above the minimum required by Part 24D.3 of the KDCP, according to the Flood Impact Assessment report (Exhibit A, Folio 96).

• Water NSW has provided General Terms of Approval (Exhibit 2, Folio 134).

• Recommendations relating to stormwater management and hydrology control at p43 of the Biodiversity Impact Assessment report are found in the proposed conditions of consent.

The proposed development does not result in site isolation

54. The adjoining sites at 5 Havilah Road, and 17 Milray Street were initially the subject of contentions related to site isolation under Part 3B of the KDCP.

55. However the experts are agreed that the Applicant made formal offers to the owners of the adjoining properties, based upon valuations prepared by CBRE Valuations (Exhibit A, Tab 25), and that those offers were declined.

56. Furthermore, the Applicant’s amended plans, at drawing DA900, include development options for the properties that is consistent with development to be anticipated in the R4 zone.

57. When considered together, I accept that the Applicant has demonstrated negotiations with the owners of adjoining properties, and I accept the experts opinion that the formal offers, valuation and concept plan at drawing DA900 are consistent with Part 3B (6) of the KDCP inasmuch as the adjoining properties may be developed in an orderly and economic manner.

The area of deep soil landscaping complies

58. The amended plans at Drawing DA540 (Exhibit B) confirm the total area of deep soil landscape area is equivalent to 50.74% of the site area, achieving the 50% minimum required by Part 7A.6 of the KDCP, and the experts are agreed that the proposal now complies.

The development is in the public interest

59. I acknowledge there is considerable interest in the proposed development from residents living within the vicinity of the site, and in particular the residents of existing apartment buildings at No 15-19 Havilah Road, and at No 9 Milray Street. This interest is reflected in the number of written submissions received by the Council, and the Court during the evolution of the development the subject of the development application.

60. The application now before the Court is for development of a 5-storey apartment building on 3 existing sites that are proposed to be consolidated within an area zoned for high density residential development.

61. The building’s siting, setback, separation, FSR, solar access, site coverage and area of deep soil landscaping are all consistent with the relevant standards or controls. Where the proposal exceeds the height control in the KLEP, I consider the reasons for the contravention are justified.

62. The application, in my view, also seeks to provide an appropriate response to the Riparian zone in a manner that will protect, maintain and improve the diversity and condition of native vegetation and habitat, which necessitates the removal of exotic species so as to comply with the objectives and controls that apply in areas of Biodiversity significance such as this.

63. For the reasons set out above, I find the application warrants the grant of consent.

Orders

64. The Court orders that:

1. Leave is granted to the Applicant to rely upon the amended plans and documents referred to in Condition 1 of the Respondent’s Conditions of Consent at Annexure ‘A’.

2. The Applicant is to pay the Respondent’s reasonable costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development consent is granted to the Development Application No DA0163/18 for the demolition of all existing structures and the construction of a five-storey residential flat building containing 43 units over two levels of basement at 7,9 and 11 Havilah Road, Lindfield, subject to the conditions at Annexure ‘A’.

5. All Exhibits are returned, except for Exhibits A, B, D and E.

………………………….

T Horton

Commissioner of the Court

Annexure A (216 KB)

Plans

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Decision last updated: 19 May 2020