Lumex Property Group Pty Ltd v Ku-ring-gai Council

[2020] NSWLEC 1628

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lumex Property Group Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1628

Hearing dates:

Conciliation conference on 24 November 2020

Date of orders:

10 December 2020

Decision date:

10 December 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The Applicant’s written request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (“KLEP 2012”) dated 24 November 2020 seeking to justify the breach of the height of buildings development standard pursuant to clause 4.3 of KLEP 2012 is upheld.

(2)   The appeal is upheld.

(3) Development Application DA 0070/20, demolition of existing structures, construction of a mixed-use development (shop top housing) comprising 17 dwellings and basement parking; and design amendments to DA0443/17 - 305- 311 Pacific Highway Lindfield - Integrated Development (Department of Primary Industries – Water under Section 91 of the Water Management Act 2000) at 305, 307, 309-311, 313, 315 Pacific Highway, Lindfield NSW is approved subject to the conditions at Annexure “A”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

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 (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development

Category:

Principal judgment

Parties:

Lumex Property Group Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
A Hudson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/147346

Publication restriction:

No

Judgment

1. COMMISSIONER: The applicant, Lumex Property Group Pty Ltd, has appealed against the Council’s deemed refusal of the development application (DA 0070/20). The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act).

2. The DA seeks approval for a mixed-use development involving the demolition of existing structures, excavation and site works including the construction of a mixed-use building containing ground floor and lower ground floor retail tenancies with residential apartments above at 313-315 Pacific Highway, Lindfield as a Stage 2 addition to the Stage 1 development approved under an earlier development consent (DA 0443/17) for land at 305-311 Pacific Highway, Lindfield (the approved development).

3. The proposed Stage 2 addition matches the height of the approved development - with the proposed upper most part of the lift overrun and of the roof parapets exceeding the 20.5m height limit in the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (KLEP 2012), and an extension of the already approved roof terrace on the rear building fronting Tyron Place.

4. 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 24 November 2020. I presided over the conciliation conference. 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. This decision involved approving the modification to the DA 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 that decision is one that the Court could have made in the proper exercise of its powers. The application raises jurisdictional preconditions, and these were addressed by the parties in a written jurisdictional statement dated 24 November 2020. In that regard, I am satisfied in relation to the KLEP 2012 that:

1. The development works are for the purpose of shop-top housing, which is a permissible use in the B2 Local Centre Zone.

2. Notwithstanding that the development contravenes the height of buildings standard at cl 4.3 of KLEP 2012, I am satisfied for the reason stated in the applicant’s written request prepared by BBC Planning dated 24 November 2020 (AWR) that the development will be in the public interest because it is consistent with the objectives of the standard and of the zone; and the AWR under cl 4.6(3) of KLEP 2012 (November 2020) demonstrates that compliance with the standard would be unreasonable or unnecessary in the circumstances of the case and sufficient planning grounds exist to justify contravening the standard.

3. In forming the view that the zone objectives of the B2 Local Centre Zone at cl 2.3 of KLEP 2012 are satisfied, I accept as submitted in the request that the development:

1. provides ground floor retail premises fronting the Pacific Highway which will, once operational, serve the needs of the local area which is immediately close to public transport;

2. that the site’s proximity to public transport will enable future residents, their visitors and the employees and patrons of the retail premises to better rely on public transport;

3. that the new apartments will enjoy all the amenity that living in a local centre provides including immediate access to public transport, jobs, community facilities and services, and

4. that the proposal integrates retail premise with shop top housing (AWR at par 1.2).

4. Furthermore, I accept that the proposal is consistent with the objectives of the height of buildings standard in cl 4.3 for the reasons set out in the AWR at par 4.3.1 as summarised below:

1. The height of buildings along the Pacific Highway on the western side of the railway line vary between 9.5m and 26.5m, whilst in the urban block in which the site is located, heights vary from 11.5m at the southern end adjacent to Strickland Avenue to 23.5m at the block’s northern end. In the central part of the block, the height limit is either 23.5m (which applies to the Council owned land) or 20.5m which applies to the subject site and its immediate neighbouring properties. As Council accepts that heights more than 20.5m are appropriate for the scale of the part of Linfield Local Centre in which the site is located, I consider in this context that the minor non-compliances which are proposed and which are limited to the parapets and upper parts of the lift overrun are not out of scale or context with the likely future development in the same block. Therefore, the height of the proposal is appropriate for the scale of the Lindfield Local Centre notwithstanding the non-compliance with the height of buildings standard in the KLEP 2012 (Objective (a)).

2. In relation to Objective (b), I find that the development is compatible with the transition in building scale across the Lindfield Local Centre. The site does not directly adjoin residential or open space zones and the variation to the maximum building height which is sought will have no impact on the amenity of residential or open space land uses. Furthermore, the site is sufficiently central with the Lindfield Local Centre to ensure that the minor variation to the height limit which is proposed has no impact on land outside the Local Centre.

3. In relation to Objective (c), I accept that the proposal’s built form is compatible with the area of the site. In that regard, I note that there are no minimum lot sizes applicable to the site. And, the floor space ratio (FSR) of the proposal is within the 3:1 ratio which is permitted, and the height of the proposal is predominately compliant. In those circumstances, it can be reasonably said that the built form of the proposal is compatible with the size of the site.

5. Accepting that the height non-compliance is at the rear of the site and is in part due to the localised variation in the slope of the site (with a cross fall of around 2.5m), and that this enables the overall design of the development to achieve quality outcomes in terms of lift access to communal open space as well as providing the lower ground floor retail space with a floor to ceiling height of 3:1, I accept that strict compliance with the standard is unreasonable and unnecessary in this case.

6. Finally, I am satisfied that there are sufficient environmental planning grounds to justify contravening the standard in the present circumstances. The height limit non-compliances proposed by the development are minor in extent and constitute a relatively small proportion of the overall built form. The development proposal overall is highly consistent with the desired future character of the Lindfield Local Centre and the relevant controls applicable to development of the type proposed. The breach of the height will not set an unreasonable precedent as it is driven in part by the slope of the site and generates no adverse shadow or bulk or scale impacts from the non-compliance whilst achieving the orderly and economic development of the land in accordance with the objectives of the EPA Act. I accept, as the AWR states, that the proposal will deliver a well-designed, high-quality mixed-use development which will activate the Pacific Highway street frontage and the Tyron Place frontage and thereby contribute to the renewal of the Lindfield Local Centre and provide new residents with good amenity whilst contributing positively to the quality of the built form in the locality.

7. In all other respects, the development is compliant with all relevant provisions of the KLEP 2012 namely:

1. the development complies with the FSR standard at cl 4.4 of KLEP 2012;

2. the Council has considered the earthworks provisions of cl 6.1 of KLEP 2012;

3. the Council has considered the stormwater and water sensitive urban design provisions of cl 6.2 of KLEP 2012;

4. the development complies with the requirements of the ground floor development in business zones provision at cl 6.6 of KLEP 2012; and

5. the development on the allotments for Stage 2 (together with the allotments of Stage 1) complies with the requirements of the minimum street frontages for lots in business zones provision at cl 6.7(2) of KLEP 2012.

8. The development is required to comply with the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) under the provisions of the Environmental Planning and Assessment Regulation 2000 (the Regulations). The applicant's architect has prepared a Design Verification Statement which satisfies the requirements under cll 50(1AB) and 143A of the Regulations.

9. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate No 836072M_14 dated 23 November 2020 has been submitted by the applicant. In combination with the conditions of consent, this satisfies the requirements of the instrument.

10. The development is required to comply with the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), and in particular cl 7(1) requiring consideration of any contamination and associated required remediation. The applicant submitted a Preliminary Site Investigation (PSI) prepared by EI Australia Pty Ltd with the development application. The PSI concluded that there may be a small quantity of fill at the site that requires management as part of the proposed development. Following implementation and completion of recommendations provided in the PSI, there is no available evidence to suggest that the site cannot be made suitable for the proposed development. Council has incorporated necessary conditions into the conditions of consent to address the recommendations in the PSI.

6. As I am satisfied that the parties’ decision is within power I am required under s 34(3) of the LEC Act to dispose of the proceedings on that basis. Accordingly, the Court orders that:

1. The Applicant’s written request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (“KLEP 2012”) dated 24 November 2020 seeking to justify the breach of the height of buildings development standard pursuant to clause 4.3 of KLEP 2012 is upheld.

2. The appeal is upheld.

3. Development Application DA 0070/20, demolition of existing structures, construction of a mixed-use development (shop top housing) comprising 17 dwellings and basement parking; and design amendments to DA0443/17 – 305-311 Pacific Highway, Lindfield – Integrated Development (Department of Primary Industries – Water under Section 91 of the Water Management Act 2000) at 305, 307, 309-311, 313, 315 Pacific Highway, Lindfield NSW is approved subject to the conditions at Annexure “A”.

………………………

S Dixon

Senior Commissioner of the Court

Annexure A (571803, pdf)

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Decision last updated: 11 December 2020