Mackenzie Architects International Pty Ltd v Ku-ring-gai Council

[2023] NSWLEC 1044

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1044

Hearing dates:

Conciliation conference on 1 February 2023

Date of orders:

07 February 2023

Decision date:

07 February 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Applicant is granted leave to file in Court the documents referred to in [8].

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application to rely upon the clause 4.6 written requests referred to in note 1(b) & (c) of these orders in a sum as agreed or assessed.

(3) The amended written request pursuant to clause 4.6 of Ku-ring-gai Local Environmental Plan 2015 seeking the grant of development consent in contravention of clause 4.3(2A) – Height of Buildings dated 31 January 2023 prepared by Chapman Planning is upheld.

(4) The amended written request pursuant to clause 4.6 of Ku-ring-gai Local Environmental Plan 2015 seeking the grant of development consent in contravention of clause 4.4(2C) – floor space ratio dated 31 January 2023 prepared by Chapman Planning is upheld.

(5) The appeal is upheld.

(6) Development Application DA0574/21 for construction of a residential flat building comprising 11 units with basement carparking and associated works at 1074 Pacific Highway, Pymble (Lot 2 in Deposited Plan 1221712) is granted development consent subject to the conditions contained in the annexure marked "A".

Catchwords:

APPEAL – development application – residential flat building – breach of height development standard – potential breach of FSR development standard – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 50, 55, Sch 1

Environmental Planning and Assessment Regulation 2021

Ku-ring-gai Local Environmental Plan 2015 cll 4.3, 4.4, 4.6, 5.10, 6.2, 6.3, 6.5, 6.6

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development cll 28, 30

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120, 2.121, 2.122

Texts Cited:

NSW Department of Planning, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

Mackenzie Architects International Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
A Stafford (Respondent)

Solicitors:
Yates Law (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2022/112574

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of a five storey residential flat building comprising 11 units with basement parking and associated works at 1074 Pacific Highway, Pymble. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. Following the adjournment of the hearing of the appeal, 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 1 February 2023. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was filed on the same date, following the agreement of the Council to an amendment to the development application, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000). There is no requirement for the amended development application to be lodged on the NSW Planning Portal, as the applicable savings provision in Environmental Planning and Assessment Regulation 2021 provides that the EPA Regulation 2000 continues to apply to development applications submitted before 1 March 2022, except that a requirement to use the NSW Planning Portal under the EPA Regulation 2000 does not apply if the development application is subject to proceedings in the Court. The amendments to the development application are to the written requests concerning breaches of the applicable development standards, the design verification statement, and to include a geotechnical investigation report that had been previously lodged with the Council.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement on the Jurisdictional Prerequisites that sets out the matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the documents that are referred to in condition 1 and the Council’s Bundle of Documents filed on 25 January 2023. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The site is zoned R4 High Density Residential, pursuant to the Ku-ring-gai Local Environmental Plan 2015 (KLEP) and development for the purpose of a residential flat building is permissible in the zone.

• I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. The development standard establishes a maximum height of 11.5m, pursuant to cl 4.3(2A) of the KLEP. The proposed maximum height is up to 15.075m and the areas of the building that breach the height standard are between 0.985m to 3.575m above the numerical standard. The contravention is confined to the rear of the upper level (level 2), a part of the south east of level 1, and the lift overrun. The contravention occurs at the rear due to the sloping topography of the site, which has a cross-fall from the north-western corner of the site on the Pacific Highway to the south-eastern corner of the rear of the site, of 7.82m across a length of 48m. I am satisfied that:

1. The written request, lodged pursuant to cl 4.6 of the KLEP, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard by demonstrating that the breach occurs due to the topography of the site which falls steeply down and across the site and the need to provide an elevated basement in the steeper section of the site in order to achieve a compliant driveway grade. The contravention is therefore justified by the topography of the site and the need to provide basement car-parking with compliant driveway access grades.

2. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard.

3. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• A question arises as to whether the proposed development complies with the development standard for the floor space ratio (FSR). The development standard establishes a maximum FSR of 0.8:1, pursuant to cl 4.4(2C) of the KLEP. The Council says that an area of basement car parking should be included in the calculation of gross floor area as the basement protrudes more than 1m above existing ground level. If that area is excluded from the gross floor area, the proposed development complies with the FSR development standard. If that area is included in the gross floor area, the FSR would be 0.949:1, an exceedance of 183.79m² in floor area or 18.75%. Whilst I am not necessarily persuaded that this area should be included in the calculation of gross floor area, I make no finding in this regard, and even if it is included and there is a breach of the FSR development standard, consent can be granted pursuant to cl 4.6(4) as I am satisfied that:

4. The written request, lodged pursuant to cl 4.6 of the KLEP, adequately establishes sufficient environmental planning grounds that justify the breach of the FSR development standard by demonstrating that the breach arises from the provision of carparking at a basement level that is elevated due to the steep topography of the site and the need to provide compliant driveway grades. The request notes that the elevated basement could be taken outside the chapeau in the definition of gross floor area by deleting the walls and leaving the elevated portions open, but that would result in poor internal and external amenity impacts. The contravention, if there is one, is therefore justified by the topography of the site, the need to provide basement car-parking with compliant access grades, and the improved amenity arising from enclosing the elevated portions of the basement within an external wall.

5. The written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance, and as there is no impact caused by the breach of the standard.

6. Based on the content of the written request, the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard.

• The development is located in the vicinity of heritage items and a heritage conservation area. The effect of the development on the heritage significance of the heritage items has been considered, as required by cl 5.10(4) of the KLEP, and I am satisfied that there is sufficient distance between the proposed development and the items and conservation areas so that the proposed development does not unacceptably impact the heritage significance of the items or conservation area.

• The development application includes earthworks for the provision of the basement level for car parking. Based on the Geotechnical Investigation Report dated 2 August 2016 and the report by Capital Engineering Consultants dated 12 July 2022, I have considered the matters set out in cl 6.2(3) of the KLEP.

• Clause 6.3 of the KLEP applies to part of the site and concerns biodiversity protection. The site is largely cleared, and there is no removal of any native vegetation of significance from that part of the site that is mapped as biodiversity. Based on the assessment by the Council’s ecological assessment officer (dated 24 January 2022), I have considered the matters in cl 6.3(3) and I am satisfied of the matters in cl 6.3(4).

• Clause 6.5 of the KLEP concerns stormwater and water sensitive design. Based on the Stormwater Engineering Plans dated 1 September 2022 and the proposed conditions of consent, I am satisfied of the relevant matters in cl 6.5(2).

• The proposed development complies with the site area and dimension standards required by cl 6.6 of the KLEP.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has no known previous uses that would warrant further investigation of potential contamination, it is unlikely to be contaminated.

• The amended development application is accompanied by a statement of a qualified designer that verifies the design of the development dated 1 February 2023, as required by cl 50(1A) and (1AB) of the EPA Regulation 2000.

• As required by cl 30(2) of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65), I am satisfied that adequate regard has been given to the design quality principles and to the objectives specified in the Apartment Design Guide for the relevant design criteria. Based on the Design Verification Statement dated 1 February 2023, I have considered the Apartment Design Guide and the design quality of the development when evaluated in accordance with the design quality principle, as required by cl 28(2) of the SEPP 65.

• The site has frontage to the Pacific Highway, which is a classified road, and ss 2.119 and 2.120 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) apply. In accordance with s 2.119, it is not practicable to provide vehicular access to the land by a road other than the classified road. Nevertheless, based on the Traffic and Parking Assessment Report dated November 2021 and the supporting letter by TTPA dated 4 October 2022, I am satisfied that the safety, efficiency, and ongoing operation of the classified road will not be adversely affected by the development as a result of the vehicular access or the emissions from the development, particularly given the low numbers of vehicle movements generated by the proposed development and the forward in and out movement of all vehicles accessing the development. Consistent with the requirements of s 2.119(2)(c) and s 2.120(3), the proposed development has been designed to prevent or reduce the impacts associated with road traffic noise and will be carried out in accordance with the recommendations in the Acoustic Report dated 19 July 2022 that will ensure a suitable degree of amenity for residents of the proposed development, including compliance with the LAeq levels in s 2.120(3).

• Consistent with the requirements of ss 2.121 and 2.122 of the SEPP TI, the development application was notified to Transport for NSW (TNSW), and I have considered the response given by TNSW. Based on the Traffic and Parking Assessment Report dated November 2021 and the supporting letter by TTPA dated 4 October 2022 I have also considered the matters in s 2.122(4)(b)(ii).

• The development application, as amended by the architectural plans dated 17 January 2023, is accompanied by a BASIX Certificate dated 17 January 2023, in accordance with the requirements of Sch 1 of the EPA Regulation 2000.

• The original development application was notified by the Council in accordance with its notification policy, and the amended development application was notified following an amendment in October 2022. I have considered the issues raised in the submissions received in response to the first notification. No further submissions were received following the notification of the amended development application.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes Ku-ring-gai Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending Development Application DA0574/21 to:

1. confirm the name of the company applicant is Mackenzie Architects International Pty Limited;

2. rely on an amended written request pursuant to clause 4.6 of Ku-ring-gai Local Environmental Plan 2015 seeking the grant of development consent in contravention of clause 4.3(2A) – Height of Buildings dated 31 January 2023 prepared by Chapman Planning;

3. rely on an amended written request pursuant to clause 4.6 of Ku-ring-gai Local Environmental Plan 2015 seeking the grant of development consent in contravention of clause 4.4(2C) – floor space ratio dated 31 January 2023 prepared by Chapman Planning;

4. rely on the Geotechnical Investigation Report prepared by Capital Engineering Consultants dated 12 July 2022.

9. The Court also notes that the Council has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the development application to include the amended Design Verification Statement dated 1 February 2023.

10. The Court orders that:

1. The Applicant is granted leave to file in Court the documents referred to in [8].

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application to rely upon the clause 4.6 written requests referred to in note 1(b) & (c) of these orders in a sum as agreed or assessed.

3. The amended written request pursuant to clause 4.6 of Ku-ring-gai Local Environmental Plan 2015 seeking the grant of development consent in contravention of clause 4.3(2A) – Height of Buildings dated 31 January 2023 prepared by Chapman Planning is upheld.

4. The amended written request pursuant to clause 4.6 of Ku-ring-gai Local Environmental Plan 2015 seeking the grant of development consent in contravention of clause 4.4(2C) – floor space ratio dated 31 January 2023 prepared by Chapman Planning is upheld.

5. The appeal is upheld.

6. Development Application DA0574/21 for construction of a residential flat building comprising 11 units with basement carparking and associated works at 1074 Pacific Highway, Pymble (Lot 2 in Deposited Plan 1221712) is granted development consent subject to the conditions contained in the annexure marked "A".

J Gray

Commissioner of the Court

**********

Annexure A

Decision last updated: 07 February 2023