Patel v Ku-ring-gai Council

[2023] NSWLEC 1355

Land and Environment Court

New South Wales

Medium Neutral Citation:

Patel v Ku-ring-gai Council [2023] NSWLEC 1355

Hearing dates:

Conciliation conference 22, 23 June 2023

Date of orders:

07 July 2023

Decision date:

07 July 2023

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1)   The Appeal is upheld.

(2)   Development Application No 0357/22 lodged on 19 August 2022, as amended, for the proposed alterations and additions to the existing dwelling, demolition of the existing swimming pool and carport, construction of a swimming pool and attached garage, removal of trees and associated works at 40 Powell Street, Killara, is determined by the grant of development consent subject to the conditions annexed hereto and marked Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environment Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

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

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 5.10, 6.2, 6.3, sch 5 Pt 1

Category:

Principal judgment

Parties:

Ilesh Patel (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
Hall and Wilcox (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2023/33367

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No DA0357/22 (DA) by Ku-ring-gai Council (Council).

2. The DA seeks consent for alterations and additions to the existing dwelling, demolition of the existing swimming pool and carport and construction of a swimming pool and attached garage, removal of trees and associated works at 40 Powell Street, Killara (site).

Conciliation and agreement between the parties

3. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) at which I presided. The conference was held on 22 and 23 June 2023. Soon after the conference, the parties filed an 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 consent to the DA, as amended, in accordance with agreed conditions.

4. In regard to the amendments, I note the advice of the parties, provided within the jurisdictional statement, that the amendments essentially involve:

• The retention of the western window to the family room;

• The relocation of the central curved stairwell to the north;

• Lowering of the height of the 2 storey addition by 300mm;

• Changing the roof form on the 2 storey addition from gable ends to hips;

• Deletion of the proposed cellar;

• Reduction of the excavation in the rear yard;

• Increase in the number of canopy trees to be planted, together with changes in species and locations.

5. I further note that Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending the DA to rely upon the following amended plans and documents:

1. Architectural Plans numbered DA-0000, DA-0400, DA-1100, DA-1101, DA-1103, DA-1202, DA-1203, DA-1300 and DA-1301 all Issue C1 prepared by David White Architects Pty Ltd all dated 22 June 2023;

2. Architectural Plans numbered DA-0200, DA-0201, DA-0202, DA-0300, DA-0301, DA-1200, DA-1201 and DA-2010 all Issue B1 prepared by David White Architects Pty Ltd all dated 22 March 2023.

3. BASIX Certificate number A352182_02 dated 22 June 2023.

Jurisdiction

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

7. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. Regarding jurisdiction, and noting the advice in the parties’ jurisdictional statement provided to the Court on 26 June 2023, I am satisfied in regard to the matters listed below.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

8. In regard to Ch 4 (concerned with remediation of land) and s 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development. I note that the likelihood of encountering contaminated soils on the subject site is low given the site’s historical use for residential purposes. I also note the advice of the parties that the property certificate in Council’s Bundle of Documents also confirms that there are no records held by Council that the Site is affected by contamination. In the circumstances, and fully mindful of s 4.6(1), no further investigation of land contamination is warranted.

Ku-ring-gai Local Environmental Plan 2015 (KLEP)

9. The Site is zoned R2 Low Density Residential. I have had regard to the zone objectives mindful of cl 2.3(2). The proposed alterations and additions are permissible within the zone. Clause 2.7 permits the proposed demolition.

10. I accept the advice of the parties that the proposed development would not contravene any development standard under KLEP.

11. The site is located within the Greengate Estate Heritage Conservation Area and the dwelling is listed as an item of local heritage significant (No I353) under Part 1 of Schedule 5 of the KLEP. There are other heritage items in the vicinity of the site, including No 42 Powell Street to the east and No 51 Greengate Street to the North. The Site is also in the vicinity of the Lynwood Avenue Heritage Conservation Area which is on the southern side of Powell Street. Under cl 5.10(4), a consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. A Heritage Impact Assessment prepared by Graham Brooks was lodged with the DA, considering potential heritage impacts. I have had regard to this and, mindful of cl 5.10(4), given consideration to the effect of the proposed development on the heritage significance of the existing listed item and the Greengate Estate Heritage Conservation Area, noting the advice of the heritage experts during the site inspection on 22 June 2023 where each were satisfied with the proposal, given the agreed amendments.

12. In respect to earthworks, I have given consideration to the matters at cl 6.2(3) and note the advice of the parties that the DA is accompanied by a geotechnical report and stormwater plans which, together with the lodged statement of environmental effects, have satisfied Council in regard to cl 6.2(3).

13. In respect of biodiversity protection and cl 6.3, I note that a quite minute portion of the site at the south west corner is located on land defined as “Biodiversity” on the Terrestrial Biodiversity Map. The only works proposed on that portion of the Site is improved landscaping. I note Council’s advice that with respect to biodiversity the development is designed, and will be sited and managed, to avoid any potentially adverse environmental impact. I have considered the listed matters at cl 6.3(3) and am satisfied in regard to each of the matters listed at cl 6.3(4). Accordingly, the requirements of cl 6.3 of KLEP are satisfied.

14. In respect to stormwater and water sensitive urban design, I note the advice of the parties that the proposal was accompanied by a Stormwater Management Plan that addresses the matters raised in cl 6.5(2). In particular, I note the advice in Council’s assessment report that Council’s specialist officers are satisfied that KLEP requirements are satisfied on this topic (Council bundle of documents filed 16 June 2023 p 181). I accept this technical advice and I too am satisfied in regard to the relevant matters at cl 6.5(2).

Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act

15. The parties have advised me on the submissions made following notification of the proposal. I have taken into consideration these objecting submissions in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act.

16. I have also given attention to the relevant development control plan, likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(a)(iii), (b), (c) and (e) of the EPA Act.

Conclusion

17. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

18. 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. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders

19. The Court orders that:

1. The Appeal is upheld.

2. Development Application No 0357/22 lodged on 19 August 2022, as amended, for the proposed alterations and additions to the existing dwelling, demolition of the existing swimming pool and carport, construction of a swimming pool and attached garage, removal of trees and associated works at 40 Powell Street, Killara, is determined by the grant of development consent subject to the conditions annexed hereto and marked Annexure A.

P Walsh

Commissioner of the Court

Annexure A

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Decision last updated: 07 July 2023