O'Mahoney v Ku-ring-gai Council

[2019] NSWLEC 1570

Land and Environment Court

New South Wales

Medium Neutral Citation:	O’Mahoney v Ku-ring-gai Council [2019] NSWLEC 1570
Hearing dates:	Conciliation conference 15 November 2019
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1) The Applicant is granted leave to amend Development Application DA0559/2017 and to rely upon the amended plans and documents listed in Condition 1 of Annexure “A” hereto. (2) The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $2,500.00 within 14 days of the date of these orders. (3) The appeal is upheld. (4) Development consent for Development Application DA0559/17 for the demolition of existing dwelling, swimming pool, tennis court & outbuilding and construction of a seniors living development comprising ten (10) x 3 bedroom dwellings and a basement carpark at 273 Mona Vale Road, St Ives NSW 2075 is granted subject to the conditions of consent annexed hereto and marked “A”.
Catchwords:	DEVELOPMENT APPEAL: seniors living – housing for seniors and people with a disability – conciliation conference – agreement between the parties - orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 Roads Act 1993 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Category:	Principal judgment
Parties:	Maureen O’Mahoney (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: S Kondilios (Solicitor) (Applicant) A Hudson (Solicitor) (Respondent)   Solicitors: Hall and Wilcox (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2019/118443
Publication restriction:	No

Judgment

1. COMMISSIONER: The Applicant is appealing the refusal of development application DA0559/17 under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) which seeks consent to demolish the existing structures and construct a seniors living development comprising 10 dwellings (as amended) with basement parking and associated works on land at 273 Mona Vale Road, St Ives NSW.

2. The site is a battle-axe shaped allotment legally described as Lot 1 in DP 365788 having a general width of 31.138m, and depth of 76.2m a total site area of 3155m² when measured beyond the battle axe access.

3. 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 15 November 2019. I presided over the conciliation conference.

4. Prior to the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 7 November 2019.

5. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

6. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings including the provisions of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD), and I am satisfied that the jurisdictional preconditions identified by the parties have been achieved for the following reasons:

1. The site is located within the R2 Low Density Residential zone, and relies on the operation of the SEPP HSPD to overcome the prohibition on seniors housing in the Ku-ring-gai Local Environmental Plan 2015 (KLEP).

2. I am satisfied on the basis of the Disability Access Report prepared by Philip Chun Building Compliance, dated 3 October 2017 that the development satisfies the requirements of the location and access to facilities provisions in accordance with cl 26 of SEPP HSPD.

3. I am satisfied that the development is not located on land identified as ‘bush fire prone land’ pursuant to cl 27 of SEPP HSPD.

4. I am satisfied that the development meets the requirements of provision of water and sewerage facilities in accordance with cl 28 of SEPP HSPD.

5. As the proposal constitutes integrated development, it requires concurrence from the Roads and Maritime Services (RMS) under s 138 of the Roads Act 1993. I have read a letter from the RMS dated 26 April 2018 and I am satisfied that the RMS will provide concurrence subject to conditions that appear at Condition 41 in Annexure ‘A’.

6. With respect to the provisions referred to by cl 32 of SEPP HSPD, and contained in Division 2, Part 3 of the SEPP HSPD, I rely on the Architects Design Statement, prepared by Chris Owen, of CDJ Architects dated 21 November 2017 and the Statement of Environmental Effects, prepared by Ian Glendinning dated November 2017 to be satisfied that the applicant has demonstrated that the design of the proposed development has given adequate regard to the design principles.

7. Finally I am satisfied that the development complies with the ‘minimum sizes and building height’ development standard under cl 40 of SEPP HSPD; and complies with those development standards specified in Schedule 3 of SEPP HSPD, pursuant to cl 41 ‘standards for hostels and self-contained dwellings’.

8. In relation to cl 7 of the State Environmental Planning Policy No.55 – Remediation of Land, I am satisfied on the basis of the assessment of the site by the Council that it is unlikely to have been used for a potentially contaminating activity.

9. I am satisfied that the amended plans contain details as to the retention of Tree 1, which was a subject of the original contentions between the parties.

7. 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.

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

9. The Court orders:

1. The Applicant is granted leave to amend Development Application DA0559/2017 and to rely upon the amended plans and documents listed in Condition 1 of Annexure “A” hereto.

2. The Applicant is to pay the Respondent’s costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $2,500.00 within 14 days of the date of these orders.

3. The appeal is upheld.

4. Development consent for Development Application DA0559/17 for the demolition of existing dwelling, swimming pool, tennis court & outbuilding and construction of a seniors living development comprising ten (10) x 3 bedroom dwellings and a basement carpark at 273 Mona Vale Road, St Ives NSW 2075 is granted subject to the conditions of consent annexed hereto and marked “A”.

…………………………

T Horton

Commissioner of the Court

Annexure A (542 KB)

Plans (2.17 MB)

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Decision last updated: 22 November 2019