Mirvac Projects Pty Ltd v Ku-ring-gai Council

[2005] NSWLEC 275

Land and Environment Court

of New South Wales

CITATION:

Mirvac Projects Pty Ltd v Ku-ring-gai Council [2005] NSWLEC 275

PARTIES:

APPLICANT
Mirvac Projects Pty Ltd

RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S):

11508 and 11516 of 2004

CORAM:

Murrell C

KEY ISSUES:

Appeal :- s. 96 modification applications for: re-configuration of lots in approved subdivision and earthworks - demolition of a building - heritage item

LEGISLATION CITED:

Development Control Plan No. 12

CASES CITED:

Pittwater Road Pty Ltd v Pittwater Council;
Fortunate Investments v North Sydney Council

DATES OF HEARING:

01/03/2005-02/03/2005, 21/04/2005, 27/04/2005

EX TEMPORE JUDGMENT DATE:

05/04/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr C McKewen, SC
SOLICITORS
Coudart Brothers

RESPONDENT
Mr D Officer, QC
SOLICITORS
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

4 May 2005

11508 and 11516 of 2004 Mirvac Projects Pty Ltd v
Ku-ring-gai Council

JUDGMENT

1 The Court heard three appeals concurrently in March this year and made a determination with respect to one appeal in April this year. The three appeals were 11508, 11509 and 11516 of 2004. The appeal that the Court determined previously was 11509 for the demolition of the Interwar building on the subject land at 134 to 138 Eastern Road, Wahroonga. The Court approved the demolition of the building.

2 In the judgment of April the Court considered that the Interwar building was not of such significance that warranted its retention and it also provided the opportunity for Glenwood House, the heritage item on the subject site, to be appreciated in the round. The Court in bringing down its decision commented that there were appeals for two s 96 applications that were not determined by the Court at that time. The reason why the Court did not proceed to determine these was that there had been further submissions received by residents of the area after the conclusion of the hearing. During the proceedings the Court was advised that the s 96 applications for: amendment to the consent concerning earthworks; and the re-configuration of the subdivision lots were not determined by the council and as such were ‘deemed refusals.’ We have now been advised that the council has formally refused the s96 applications.

3 Today the parties have come before the Court and we note that the respondent agrees with the conditions to be amended as sought by the applicant. The respondent in the earlier proceedings advised that it follows that if the Court approves the demolition of the Interwar building that in fact the other s 96 applications should be approved however in light of the residents further submissions, we considered it appropriate to hear further evidence with respect to the issues of the s 96 matters.

4 This morning the Court has heard evidence from Mr Parr on behalf of the residents of Wahroonga about of the s 96 applications. He is concerned about the previous consents being adhered to in terms of the trees and other issues. I will go through each of the issues to advise as to what our decision has been in respect of those matters.

5 We preface our findings by saying there are two judgments that we have considered relevant to this matter. The first is of his honour, McClellan CJ, Pittwater Road Pty Limited v Pittwater Council (2004 NSWLEC 685, 15 December 2004), concerning a s 96 application and in his judgment the Chief Judge makes it clear that additional conditions can be set or imposed on developments when s 96 variations or modifications are sought. The other judgment is that of her honour Pearlman CJ - Fortunate Investments Pty Ltd v North Sydney Council (2001 NSWLEC 70). In the Fortunate Investments decision her Honour deemed it was appropriate to provide a condition to impose a s 88B instrument when there is “a proper planning purpose” identified for the imposition of such a condition. An instrument facilitates this being communicated to prospective purchasers.

6 The background to these s 96 appeals is that the original consent granted by council in May 2001 was for the subdivision of the subject parcel of land into eighteen allotments, seventeen lots and one common lot for the internal road. The conditions in the above consent required a further application for the earthworks. An appeal for the earthworks application was previously before this Court, Commissioner Watts determined that the earthworks, subject to a number of conditions be approved.

7 The council does not oppose the modifications as sought by the applicant and we have had the benefit of hearing from the objectors, Mr Parr providing further evidence to the Court this morning.

8 Condition 12 of the subdivision consent requires a restrictive covenant, 88B instrument, on the subject lots when they are created. The applicant now seeks for this condition to be deleted on the basis that council provides a clear planning regime in its LEP and Development Control Plan for residential development as well as its Development Control Plan No. 12. In particular the latter is for the heritage item on the subject site therefore the applicant argues that it is not necessary to provide a s.88B instrument.

9 We are of the opinion that the dwelling house to be erected on Lot 3 that adjoins Glenwood House should have a height restriction imposed equivalent to the height of one storey above ground. That would allow for a partial two-storey portion in terms of the garaging of the subject dwelling. However, it is important in our assessment, which is reflected in our previous judgment on the demolition of the Interwar building, that the adjoining dwelling on Lot 3 be restricted in terms of its height and also in terms of its setback to the heritage item. As such we consider it is appropriate that there be an 88B instrument prepared to encompass an RL equivalent to the height of a one-storey dwelling on the subject Lot 3. For lot 4 in our assessment, it is not necessary to provide a height restriction and we are satisfied that the importance of the heritage item will be maintained with a restriction on the height of the dwelling to be erected on Lot 3. For the other matters that were contained in the original condition 12 we do not think it is necessary to impose these in an 88B instrument as council’s controls provide appropriate guidelines for the assessment of future dwellings on the subject sites.

10 Condition 16, requires 11 trees to be retained and the applicant is seeking an amendment to remove trees 5, 6 and 7. It is noted that the Landscape Master Plan allows for the removal of trees 5, 6 and 7 although the residents state that this is inconsistent with council’s original consent. However we are satisfied and accept the applicant’s evidence and council’s assessment in terms of the approval of the Landscape Master Plan that the plane trees No’s 5, 6 and 7 may be removed. We also note that council’s Development Control Plan for residential development requires the planting of a certain number of trees for the construction of dwelling houses on each lot related to their size. Also in terms of the residents’ concerns about the trees and the remediation works we noted in Commissioner Watts’ decision that four additional trees were identified for retention and we are satisfied following the discussion this morning that the consolidated version or updated version of the conditions of consent will in fact ensure the protection of those trees.

11 With respect to condition 112, for the additional retaining walls and landscaping works we accept the applicant’s submission that the proposed amended conditions are not inconsistent with Commissioner Watts’ decision. We are also satisfied there are provisions of other legislation to ensure the protection of the important ecological area.

12 Conditions 94, 95 and 97, the applicant is also seeking to have deleted from the consent: Condition 94 is for the minimum width of the proposed access handle to proposed Lot 18; 95 requires the concrete access road be constructed to a minimum width and 97 provides for internal road to be reduced in width from 6 m to 4 m. We also heard the residents’ concerns about the compliance with the bushfire provisions in terms of the road. The subdivision application was assessed by the council and approved and the purpose of the internal road is to provide a relatively minimum pavement to the access for the subject lots and it will have less interference with a number of trees. The applicant had agreed to retain certain trees and the reconfiguration allows for the retention of those trees. We are satisfied that there is protection within the consents issued, even with the amendment to condition 16 of the original consent for the protection of trees and the road reconfiguration will allow for further retention of trees.

13 The condition 111 of the consent is that Lot 14 be increased to a minimum of 800 sq m and the applicant is seeking for this to be reduced. We accept the applicant’s submission that the number of lots in the s 96 re-configuration is not to be increased for the total estate and this matter consider is appropriate for deletion as at the ultimate yield being the same in terms of the subdivision.

14 With respect to the s 96 earthworks application, conditions 1 and 2, there is concern about the trees being replaced. We accept the council and the applicant’s position that this condition is not necessary and that there is adequate protection for the trees and it also allows for further planting in terms of council’s DCP in the assessment of the individual applications for the dwelling houses.

15 For the residents’ concerns for a dilapidation report and damage, in our assessment we have concluded that it is not necessary to impose such a condition, as the earthworks are considerably removed from any existing dwellings and therefore a condition to this effect is not warranted.

16 In summing up we accept the agreement reached by the council and the applicant, the only exception being with respect to an 88B instrument for a maximum RL of the ridge height of a dwelling house on Lot 3 such that it will have the appearance of a single storey from the street and from the heritage item.

17 We also noted that there are a number of conditions within the consent that should be updated to reflect our decision allowing the demolition of the ‘Interwar Building’ and these should also be amended and consolidate into a final set of updated conditions so that there is a consolidated set of conditions. This is a matter that we ask the parties to further investigate. It is noted that conditions 29 and 30 would need some amendment. It is also noted that condition 31 needs to be deleted in terms of our determination of a covenant for Lot 3 and for the purpose of consistency of the conditions.

18 With respect to the orders of the Court, on the receipt of the consolidated set of conditions to reflect the Court’s judgment in this matter there will be a formal order issued in chambers.

19 The orders of the Court will be:

1. The appeals in respect of the s 96 applications, appeals 11508 and 11516 of 2004 are upheld.
2. The s 96 modifications sought to the earthworks consent and the subdivision consent are approved subject to conditions.
3. The exhibits with the exception of M and 23 are returned.
_____________________ __________________
Dr J Roseth J S Murrell
Commissioner of the Court Commissioner of the Court
Rjs/ljr