Mirvac Projects Pty Limited v Ku-ring-gai Council

[2007] NSWLEC 854

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:     Mirvac Projects Pty Limited v Ku-ring-gai Council [2007]  NSWLEC 854

PARTIES:
APPLICANT
Mirvac Projects Pty Limited

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):     11097  of       2007

CATCHWORDS:       Consent Orders :- amendment of original consent, setbacks, car parking, deep soil landscaping, and other landscaping, boundary fencing, storm water drainage.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy No. 1

CASES CITED:

CORAM:        Hoffman C

DATES OF HEARING:          11/12/2007

EX TEMPORE DATE:           11 December 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr S. Simmington, solicitor
of Lindsay Taylor Lawyers

RESPONDENT
Mr P. Marincowitz, solicitor
of DLA Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

11 December 2007

11097 of 2007                 Mirvac Projects Pty Limited v Ku-ring-gai Council

JUDGMENT

1. This is appeal 11097 of 2007 between Mirvac Projects Pty Limited and Ku-ring-gai Council in regard to development application DA0879/07 in regard to a development at 10 Marian Street, Killara. 

1. The development consists of five residential flat buildings on a site having an area in excess of 10,000 square metres and it has been the subject of previous Court decisions for amendment of the original consent which was development application 1388/04.  The development has largely been completed, and due to various changes to the building during the construction process, there has arisen the need to consider amendments which had not been either part of the original consent or which have not been approved in subsequent applications.  The parties come to the Court today in this appeal with consent orders. 

1. The only objectors to the application after having been exhibited twice were the next door neighbours, Mr and Mrs Inglis at No.s 4 and 8 Marian Street.  They have, however, in Exhibit 3 by letter of 29 November 2007, having received advice from the council and from the applicant in regard to their concerns, withdrawn all actions and objections to the proposal.  In fact now they support the proposal and seek to see it completed as swiftly as possible.

2. In this application there are conditions agreed to by the parties under s 80A(1)(b) of the Act that would amend the original consent, plus those matters that are future works in the proposal. 

1. Part of the original difficulties approving any amendments has been thoroughly investigated in judgments by his Honour Justice Talbot and her Honour Justice Jagot, and the only reason, subject to appropriate conditions, that stood out in their minds was non-compliance with the deep soil landscape requirement under the Ku-ring-gai Planning Scheme Ordinance that required fifty per cent of the site to be of such soil. 

1. The actual deep soil landscape content has been calculated in various ways but seems to be between 44.9% and 45.4% of the site area.  If certain other areas such as:

   1.rip-rap drainage beds and

   2.deep soil landscape reduction required as a result of compliance with council conditions

were included, the deep soil landscaping has been calculated at 49%. 

1. If those areas that are definitely not deep soil landscape such as landscaped areas on top of basement car parks, but nevertheless contain substantial vegetation are included, the actual total landscaped area of the site would be about 55%.  There are large side boundary setbacks and spaces between buildings to enable substantial landscaping and tall trees to grow to maturity with full canopy spreads away from buildings.

1. The applicant has filed a State Environmental Planning Policy No. 1 objection to the need to comply with the standard.  Having read the relevant judgments and having considered the objectives of the deep soil landscaped area.  I agree with the opinions of his Honour Justice Talbot.  Although there might not be strict compliance with cl 25I(2)(c) of the Ku-ring-gai Planning Scheme Ordinance, the proposal would achieve the objectives of cl 25C(i)(a), 25C(ii)(b), (c) and (e), and 25I (i)(a), (c), (d) and (e). As a result the objection is well-founded and the various changes to the plans would in fact produce a landscape outcome better than the original approval. 

2. It would therefore comply better with the intentions of the standard to encourage the protection of existing trees within setback areas, and to encourage the provision of sufficient viable deep soil landscaping and tall trees in the rear and front gardens where new works are to be carried out.  Also it will provide side setbacks that enable effective landscaping and tree planting between buildings, separation of buildings for privacy, and views from the street to rear landscaping.

1. The outcome will be compatible with the objective to provide built upon area controls to protect tree canopy of Ku-ring-gai and to ensure particularly the provision of viable deep soil landscaping in order to maintain and improve the tree canopy density and height in a sustainable way.  The tree canopy when mature will be in scale with the built form of this development.  As far as possible given the 5-storey buildings the mature trees will dominate or provide a heavily landscaped setting.

2. Overall therefore I find no reason sufficient to refuse the consent orders sought by the parties.  The orders of the Court by consent are:

   1    The appeal is upheld.

   2    Development application No. DA 0879/07 lodged with the Respondent Council on 13 September 2007 for:

   (a)Construction of Future works;

   (b)The use of the whole of the completed development including: the development approved by the Existing Consent, the Existing Works and Future Works;

   (c)The modification of the Existing Consent pursuant to conditions imposed under S80A(1)(b) of the Act to the extent necessary to achieve harmony between the Existing Consent and the development for which consent is sought (Future Works and use);

   (d)The deletion of conditions 131 to 135 of the Existing Consent; at 10-16 Marian Street, Killara, being Lot 10 DP 1089333, is approved subject to the conditions in Annexure A.

   In this paragraph:

   "Future Works", "Existing Consent" and "Existing Works" have the meaning described in the Statement of Environmental Effects prepared by Robinson Urban Planning dated September 2007 as amended by correspondence from the Applicant to the Respondent dated 12 and 18 October and 2 November 2007.

   3There is no order as to costs.

   4The exhibits are returned to the parties except exhibits A, B, 1 and 4

   ___________________

   K G Hoffman
   Commissioner of the Court

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