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

[2021] NSWLEC 1473

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1473

Hearing dates:

Conciliation conference on 9 August 2021

Date of orders:

19 August 2021

Decision date:

19 August 2021

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

Orders at [7]

Catchwords:

DEVELOPMENT APPLICATION – amended plans –experts agree amended plans warrant approval – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.7, 4.16

Environmental Planning and Assessment Regulation 2000, cl 49

Ku-ring-gai Local Environmental Plan 2015

Land and Environment Court Act 1979, s 34AA

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

State Environmental Planning Policy No 55—Remediation of Land, cl 7

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Texts Cited:

Apartment Design Guide

NSW Department of Planning, Development Near Rail Corridors and Busy Roads – Interim Guideline, (2008)

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
M Staunton (Applicant)
J Smith (Respondent)

Solicitors:
Yates Law Pty Ltd (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2020/233564

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings relate to an appeal to the Land and Environment Court (Court) pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Mackenzie Architects International Pty Ltd (the Applicant) against the Respondent’s deemed refusal of development application DA/0344/2019. The development application seeks approval for partial demolition of existing structures and the construction of a shop top housing development with basement carpark. The development is proposed at 2 Merriwa Street, Gordon (Lot 1 in DP 303320).

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the application pursuant to s 4.16 of the EPA Act.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979(the LEC Act) between the parties, which was held on 17 December 2020. As no agreement was reached at conciliation the matter was listed for hearing on 9 August 2021. On 4 March 2021, prior to the hearing, the Applicant was granted leave to amend their development application. Following the preparation of joint expert reports, amendments were agreed between the parties. At a further conciliation conference held on 9 August 2021 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 would be acceptable to them. The decision agreed upon is that the appeal is upheld, and the development application as amended be approved, subject to the conditions of consent annexed to this judgment.

4. As the presiding Commissioner, I am satisfied that the decision is one 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 have formed this state of satisfaction for the following reasons:

1. In accordance with the requirements of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) consent for the development application has been provided by the owners of the land.

2. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for residential purpose. With regard to the consideration required at cl 7 of State Environmental Planning Policy No 55—Remediation of Land, I accept that the likelihood of contamination is low and that it is reasonable to conclude that the site has not been utilised for a purpose referred to in Table 1 of the Contaminated Land Planning Guidelines.

3. An updated BASIX Certificate has been provided to satisfy the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

4. The amended development application is accompanied by a statement by a qualified designer, pursuant to the requirement in cl 50(1A) of the EP&A Regulation. In determining the development application, I have taken into account the design quality principles and the Apartment Design Guide: cl 28(2) of State Environmental Planning Policy No 65 —Design Quality of Residential Apartment Development.

5. Relevantly, cl 85(1) of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) applies to development adjacent to rail corridors. It applies to development on land that is in or adjacent to a rail corridor, if the development—

(a) is likely to have an adverse effect on rail safety, or

(b) involves the placing of a metal finish on a structure and the rail corridor concerned is used by electric trains, or

(c) involves the use of a crane in air space above any rail corridor, or

(d) is located within 5 metres of an exposed overhead electricity power line that is used for the purpose of railways or rail infrastructure facilities.

6. Pursuant to cl 85(2) of Infrastructure SEPP the development application was forwarded to Sydney Trains who proposed two conditions of consent which are included in the consent.

7. Clause 102 of the Infrastructure SEPP applies to development that is on land in or adjacent to a road corridor that has an annual average daily traffic volume of more than 20,000 vehicles. Although not directly adjoining the Pacific Highway, the Land is located 15m from the intersection of Merriwa Street and Pacific Highway – a classified road.

8. Clause 102(2) of the Infrastructure SEPP provides: 

Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette.

9. The Department of Planning (DoP) planning circular applying to Development Near Rail Corridors and Busy Roads – Interim Guideline has been taken into consideration in the Applicant’s Acoustic Report’s by Acoustic, Vibration and Noise Pty Ltd dated February 16, 2021. As required by cl 102(3) of the Infrastructure SEPP I am satisfied that the nominated acoustic criterion for the residential component of the development will be met by the development.

10. At the time of lodgement of the development application the Ku-ring-gai Local Environmental Plan Local Centres 2012 applied to the land. This instrument was repealed on 28 June 2021 without any savings and transitional provisions. The Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) applies to the land. The site is zoned B2 Local Centres under LEP 2015. Development for the purpose of shop top housing is a permissible use with consent in the zone. In determining the development application, I have had regard to the objectives of the zone.

11. Pursuant to cl 2.7 of LEP 2015 the development application seeks consent for partial demolition. To the extent that demolition is proposed, the impacts of that demolition have been considered and appropriate conditions are proposed to be applied to the consent.

12. Clause 4.3(2): Height of buildings of LEP 2015 prescribes a maximum building height of 23.5 metres for any building on the land. The development application, as amended, proposes a variation to the height development standard of a maximum of 0.77m. The Applicant have filed a written request pursuant to cl 4.6 of LEP 2015 seeking to vary the development standard. I have reviewed the written request and, in accordance with cl 4.6 of LEP 2015, I am satisfied that:

1. The written request demonstrates that compliance with the height development standard is unreasonable and unnecessary as the objectives of the height development standard are met notwithstanding the noncompliance (cl 4.6(3)(a) of LEP 2015).

2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the height standard (cl 4.6(3)(b) of LEP 2015).

3. On the preceding basis I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2015 are met.

4. For the reasons outlined in the written request I am satisfied that the development is in the public interest as it is consistent with the objectives of the B2 Local Centres zoneand the height development standard. On this basis I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2015 are met.

5. On appeal, the Court has the power under cl 4.6(2) of LEP 2015 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(6) of the LEC Act, but should still consider the matters in cl 4.6(5) of LEP 2015 (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [29]).

6. Pursuant to cl 4.6(5) of LEP 2015 I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

7. The states of satisfaction required by cl 4.6 of the LEP 2015 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the height control.

13. Clause 4.4; Floor space ratio, prescribes a maximum floor space ratio development standard of 2.5:1. The development application, as amended, proposes a floor space ratio of 2.48:1 which complies with the development standard.

14. The subject site is mapped as Class 5 on the Acid Sulfate Soils Map. I am satisfied that whilst the works are within 500m of another mapped class, the works will not lower the water table below 1m AHD: cl 6.1 of LEP 2015.

15. A geotechnical investigation report prepared by Geotechnique dated 17 July 2019 forms part of the development application. As required by cl 6.2 ‘Earthworks’ of LEP 2015, I have given consideration to the matters in cl 6.2(3) of LEP 2015 in determining to grant consent to the development.

16. Clause 6.5: Stormwater and Water Sensitive Urban Design requires the consent authority to be satisfied by matters listed at (a) to (d) of sub-cl (2) of that clause. The development application is accompanied by stormwater engineering plans and conditions are proposed as part of the consent. I am satisfied that the requirements of the clause are met.

17. Clause 6.7 (Active Street Frontage) applies to the Land. For the purposes of sub-cl 6.7(3) I am satisfied that after the development is carried out, the ground floor:

1. will not be used for the purposes of residential accommodation or a car park or to provide ancillary car parking spaces;

2. will consist of design elements that encourage interaction and flow between the inside of the building and the external public areas of the building; and

3. will be used for purposes that encourage the movement and flow of people between the internal and the external public areas of the building.

18. In considering cl 6.8 of LEP 2015 I am satisfied that:

1. because of the physical constraints of the land or adjoining land, it is not possible for the building to be erected on land with a primary street frontage of at least 20 metres; and

2. the development is otherwise consistent with the aims and objectives of this Plan.

19. The application was notified in accordance with the relevant Community Participation Plan. I have considered these submissions in determining the development application. I am satisfied that the development application, as finally amended by the Court orders, does not require re-notification. I accept the conclusion of the parties that any impacts arising from the amended application will be the same or lesser than the original development application.

5. 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.

6. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders.

7. The final orders to give effect to the parties’ agreement under s 34(3) of the LEC Act are:

1. The Applicant is granted leave to amend the development application and rely on:

1. Architectural plans A0007D, A1000C, A1001C, A1002D, A1003E, A1004E, A1005E, A1007E, A1008E, A1009E, A2003E, A2004E dated 21 July 2021 and A0001F, A0004D, A0006F, A1006F, A2001F, A2002F, A2101E, A2102E, A3001E dated 6 August 2021 prepared by Mackenzie Architects International;

2. Clause 4.6 variation – Height of Buildings dated 6 August 20201 prepared by Chapman Planning;

3. Amended SEPP 65 Design Verification Statement dated 21 July 2021 prepared by Mackenzie Architects International;

4. Landscape Plan drawings: LPS34 19-175 Page 1, (August 2021), Drawing: LPS34 19-175 Page 2, (August 2021), Drawing: LPS34 19-175 Page 3, (August 2021), Drawing: LPS34 19-175 Page 4, (August 2021)

5. BASIX Certificate No. 1006080M_05 dated 6 August 2021; and

6. Expert Report prepared by Elizabeth Ashby, dated 16 July 2021.

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 in a sum as agreed or assessed.

3. The request pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 to vary the development standard for the height of buildings contained in the clause 4.6 written request prepared by Chapman Planning Pty Ltd dated 6 August 2021 is upheld.

4. The appeal is upheld.

5. Development Application DA0344/19 for the partial demolition of existing structures and construction of a shop top housing development with basement car park on land at 2 Merriwa Street, Gordon is approved, subject to the conditions contained in the annexure marked A.

…………………………

D M Dickson

Commissioner of the Court

Annexure A (460289, pdf)

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Decision last updated: 19 August 2021