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

[2019] NSWLEC 1385

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lumex Property Group Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1385
Hearing dates:	Conciliation conference on 13 August 2019
Date of orders:	21 August 2019
Decision date:	21 August 2019
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders: (1)   Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’ (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed. (3) The Applicant’s written request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (“KLEP 2012”) seeking to justify the breach of the height of buildings development standard pursuant to clause 4.3 of the KLEP 2012 dated August 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of KLEP 2012. Consequently, the Applicants written request is well founded and is upheld. (4)   The appeal in respect of the property known as 305, 307 and 309-311 Pacific Highway, Lindfield, is upheld. (5)   Development Application DA 0443/17 for demolition of existing structures and construction of a mixed use development with retail premises, shop top housing and basement parking at 305, 307 and 309-311 Pacific Highway, Lindfield, 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 No 65 - Design Quality of Residential Apartment Development State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 - Remediation of Land
Cases Cited:	Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118
Category:	Principal judgment
Parties:	Lumex Property Group Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant)   Solicitors: Mills Oakley (Applicant) A Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/262977
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an appeal brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (‘EP&A Act’) against Ku-ring-gai Council's refusal of Development Application No. DA 0443/17 for demolition of existing structures and construction of a mixed use development with retail premises, shop top housing and basement parking at 305, 307 and 309-311 Pacific Highway, Lindfield.

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (‘LEC Act’), which was held on 14 August 2019, and at which I presided. At the conciliation conference, the parties evidenced an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

3. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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.

Jurisdiction

5. The parties’ decision involves the Court exercising the function under s 4.16 of the EP&A Act to grant consent to the development application. The parties outlined jurisdictional matters of relevance in these proceedings. In regard to jurisdiction, I note the following:

1. In relation to the applicable Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (“KLEP”):

1. the site falls within the B2 Local Centre zone and shop-top housing is permissible development within the zone;

2. the development contravenes the height of buildings standard at cl 4.3 of the KLEP (a cl 4.6 written request has been submitted and is considered below);

3. the development complies with the floor space ratio standard at cl 4.4 of the KLEP;

4. the Respondent has considered the earthworks provisions of cl 6.1 of the KLEP;

5. the Respondent has considered the stormwater and water sensitive urban design provisions of cl 6.2 of the KLEP;

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

7. the development complies with the requirements of the minimum street frontages for lots in business zones provision at cl 6.7 of the KLEP.

2. The development is required to comply with the provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ("SEPP 65"). The requirements of cl 30(2) of SEPP 65 are met in that the Applicants’ architect has prepared a Design Verification Statement in satisfaction of cl 50(1AB) of the Environmental Planning and Assessment Regulation 2000 (“EPA Regulation”). It is noted that under cll 143A and 154A of the EPA Regulation, compliance with SEPP 65 is required.

3. Pursuant to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate has been submitted by the Applicant. In combination with the conditions of consent this satisfies the requirements of the instrument.

4. 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 El 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.

5. Certain requirements of State Environmental Planning Policy (Infrastructure) 2007 apply and, on the advice of the parties, I am satisfied that the assessment and notification process and resultant consent conditions adequately address the relevant requirements in regard to proximity to both rail and road corridors.

Height of building contravention

6. Clause 4.3 of the KLEP provides a maximum height of buildings of 20.5m for the site. The applicant seeks a variation to this development standard and has lodged a written request pursuant to cl 4.6 of the KLEP, prepared by BBC Consulting Planners, and dated August 2019. I have reviewed the written request. It confirms the position indicated in the plans in regard to the contravention, which I summarise briefly now. The proposal involves two buildings. Building A (the western or Pacific Highway side building) has a maximum building height of 20.79m with the contraventions associated with the parapet at roof level. Building B (the eastern or railway line side building) has a maximum building height of 22.3m at the top of the lift overrun. Having reviewed its contents, I am satisfied that the written request has adequately addressed the matters required to be demonstrated to grant consent despite the contravention under the relevant provisions of cl 4.6(4)(a)(i) of the KLEP. The reasons for this decision in regard to satisfaction are outlined below (using the findings established in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 for decision framing purposes):

1. The written request has adequately demonstrated that compliance with the height development standard is unreasonable or unnecessary in the circumstances of the case. This has occurred through the written request demonstrating that compliance with the objectives of the standard has been achieved, notwithstanding the non-compliance. Specifically, it was demonstrated that:

1. The height of the development is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres because of the minor nature of the non-compliance and the fact that controls provide for higher buildings (a maximum height of 23.5m) “bookending” either end of this part of the Lindfield centre.

2. An appropriate transition in scale between Lindfield centre and the adjoining lower density residential and open space zones is achieved which protects local amenity. Again this relates to the minor nature of the non-compliance but also to the fact that the proposal does not directly adjoin residential or open space zones, located as it is more centrally within the Lindfield centre.

3. The proposed built form is compatible with the size of the land to be developed. This is demonstrated by the proposal’s compliance with the applicable FSR control and the minor nature of the height contravention.

2. The written request has also adequately demonstrated that there are sufficient environmental planning grounds to justify contravening the development standard. This is through its indication that the relatively minor height exceedance resulted in no adverse shadow or bulk and scale impacts but was a factor in achieving positive design features including a through site pedestrian link and higher than otherwise might have been expected floor to ceiling heights for a small retail tenancy at the eastern (Tryon Lane) frontage.

7. In regard to cl 4.6(4)(a)(ii) of the KLEP, I am also directly satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. I rely on the written submission in regard to the consistency with the objectives of the development standard (see above). In regard to the B2 Local Centre zone objectives I note the proposal as an integrated, mixed use development with good public transport access and which can provide for housing, employment and for a range of services for local residents and others. In this sense the development seems entirely consistent with the zone objectives.

8. In regard to cl 4.6(4)(b) of the KLEP, it is my view that this proposal does not raise any matters of State or regional significance in planning terms, and as such this provision is of no concern in regard to this proposal.

Conclusion

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. As the parties’ decision is a decision that the Court could have so made, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I note that I have had no direct regard to the merits of the application in coming to this position.

10. The Court orders:

1. Leave is granted to the Applicant to rely upon the amended plans listed in Condition 1 at Annexure ‘A’

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”), the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed.

3. The Applicant’s written request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (“KLEP 2012”) seeking to justify the breach of the height of buildings development standard pursuant to clause 4.3 of the KLEP 2012 dated August 2019 has been considered and I have formed the necessary opinion of satisfaction under clause 4.6(4) of KLEP 2012. Consequently, the Applicants written request is well founded and is upheld.

4. The appeal in respect of the property known as 305, 307 and 309-311 Pacific Highway, Lindfield, is upheld.

5. Development Application DA 0443/17 for demolition of existing structures and construction of a mixed use development with retail premises, shop top housing and basement parking at 305, 307 and 309-311 Pacific Highway, Lindfield, is approved subject to the conditions at Annexure “A”.

……………………….

P Walsh

Commissioner of the Court

Annexure A (431 KB)

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Decision last updated: 21 August 2019