Proxima Venturo Pty Ltd ATF Proxima Venturo Fund v Ku-ring-gai Council

[2024] NSWLEC 1120

Land and Environment Court

New South Wales

Medium Neutral Citation:

Proxima Venturo Pty Ltd ATF Proxima Venturo Fund v Ku-ring-gai Council [2024] NSWLEC 1120

Hearing dates:

Conciliation conference on 18 March 2024

Date of orders:

18 March 2024

Decision date:

18 March 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, in the amount of $17,500 within 14 days from the date of these orders.

(2) The applicant’s written request pursuant to cl 4.6 of Ku-ring-gai Local Environmental Plan 2015 seeking a variation to the development standard for requirements for multi-dwelling housing and residential flat buildings set out in cl 6.6(2) of Ku-ring-gai Local Environmental Plan 2015 prepared by Weir Phillip Heritage and Planning dated 7 March 2024 is upheld.

(3) The appeal is upheld.

(4) Development application no. DA0437/22, as amended, for the demolition of existing structures and construction of a residential flat building with 6 units, basement parking, landscaping and associated works pursuant to State Environmental Planning Policy (Housing) 2021 for Lot 1 in Deposited Plan 945545, commonly known as 18 Culworth Avenue, Killara NSW 2071, is determined by the grant of development consent subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.15(3)

Environmental Planning and Assessment Regulation 2021, ss 27, 38

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10

State Environmental Planning Policy (Housing) 2021, ss 16, 17, 18, 19, 20, 21, 22

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

State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1, 4.2

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.99

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cl 28

Texts Cited:

Ku-ring-gai Development Control Plan

Category:

Principal judgment

Parties:

Proxima Venturo Pty Ltd ATF Proxima Venturo Fund (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
L Sims (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Hones Lawyers (Respondent)

File Number(s):

2023/51840

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following Ku-ring-gai Council’s refusal of development application no. DA0437/22 (DA) for the demolition of existing structures and construction of a residential flat building with 6 units, basement parking, landscaping and associated works pursuant to State Environmental Planning Policy (Housing) 2021 (Housing SEPP) for Lot 1 in Deposited Plan 945545, commonly known as 18 Culworth Avenue, Killara NSW 2071 (site).

2. The matter was listed for a two-day hearing on 18 and 19 March 2024. As it happened, the hearing did not proceed as the parties reached a resolution of the proceedings based on an amended application. They requested an adjournment of the hearing and the reallocation of the matter to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act).

3. The Court accommodated the parties’ request and the conciliation took place before me on 18 March 2024. The parties filed a written agreement in accordance with s 34 setting out the terms of the agreement with supporting documents which included a set of amended plans, an updated cl 4.6 written request and an updated BASIX certificate.

4. The parties’ decision involves the Court upholding the appeal and granting development consent to the amended DA subject to conditions.

5. 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.

6. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders were addressed in the parties’ joint jurisdictional submission and the cl 4.6 written request prepared by Weir Phillips Heritage and Planning dated 7 March 2024 seeking variation of the development standard for minimum lot size in cl 6.6 of Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015).

7. Following consideration of the parties’ submission and the cl 4.6 written request, I am satisfied on the evidence that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard, I note the following matters.

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

8. Section 4.6 nominates matters that must be considered before the DA is determined. The land has in the past been used for residential purposes and there is no history to suggest that the site is contaminated.

9. The parties submit and I accept that the relevant requirements have been considered and that the DA meets the objectives of this Policy.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

10. Section 2.99 applies to the site as the proposed development involves penetration of ground to a depth of at least 2m below ground level (existing) on land that is located within 25m (measured horizontally) of the rail corridor and within 25m (measured horizontally) of the ground directed below a rail corridor.

11. The DA was referred to Sydney Trains on 25 October 2022. State Rail provided general conditions which are included in the conditions of consent in Annexure A.

12. The Statement of Environmental Effects (SEE), prepared by Weir Phillips Heritage and Planning dated 14 September 2022 provides an assessment in accordance with s 2.99.

13. The parties submit and I accept that the relevant requirements have been satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

Chapter 10 Sydney Harbour Catchment

14. The site is not located within the foreshores and waterways area, a Strategic Foreshore site or listed as an item of environmental heritage under the BC SEPP and as such only the aims of the Plan are applicable. The proposal is consistent with these aims.

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

15. The BASIX SEPP continues to apply to the DA by operation of ss 4.1 and 4.2(1)(a) of the State Environmental Planning Policy (Sustainable Buildings) 2022. The DA is supported by BASIX Certificate No. 1338498M_06 issued by AENEC dated 15 March 2024. This certificate confirms that the project passes the BASIX requirements.

16. The provided BASIX Certificate satisfies the requirement in s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development (SEPP 65)

17. Clause 28(2) of SEPP 65 nominates matters that must be considered before the DA is determined. The DA is supported by a Design Verification Statement prepared by Registered Architect Hsien Ming Lee (Registration No. 11348) dated 20 February 2024. The DA is also supported by a SEPP 65 Design Quality Principles and Apartment Design Guide – Compliance Table prepared by TEXCO Design dated 20 February 2024.

Housing SEPP

In-fill affordable housing

18. The SEE prepared by Weir Phillips Heritage and Planning includes a summary compliance table for the DA, as amended.

State Environmental Planning Policy (Housing) 2021 Part 2: Development for Affordable Housing Summary Compliance Table
Clause No.	Standard	Proposed	Complies
Division 1	In-fill affordable housing
10	Development to which Division applies
16(1)	This Division applies to residential development if—
16(1)(a)	the development is permitted with consent under another environmental planning instrument, and	Residential flat building permitted in the zone.	Y
16(1)(b)	at least 20% of the gross floor area of the building resulting from the development will be used for the purposes of affordable housing, and	The percentage of gross floor area of the development that is to be used for the purposes of affordable housing is 30.6% (160.82m2).	See below.
16(1)(c)	for development on land in the Greater Sydney region, Newcastle region or Wollongong region—all or part of the development is within an accessible area, and	The land is located approximately 25 metres walking distance of Killara Railway Station.	Y
16(1)(d)	for development on other land—all or part of the development is within 800m walking distance of land within 1 or more of the following zones or an equivalent land use zone— (i) Zone B1 Neighbourhood Centre, (ii) Zone B2 Local Centre, (iii) Zone B4 Mixed Use.	Located in the Greater Sydney Region.	N/A
17	Floor space ratios
17(1)	The maximum floor space ratio for development to which this Division applies is the maximum permissible floor space ratio for residential accommodation on the land plus an additional floor space ratio of—
17(1)(a)	if the maximum permissible floor space ratio is 2.5:1 or less—	Allowable FSR in the Ku-ring-gai Local Environmental Plan 2015: 0.8:1	Y
17(1)(a) (i)	if at least 50% of the gross floor area of the building resulting from the development will be used for affordable housing—0.5:1, or	N/A	N/A
17(1)(a) (ii)	if less than 50% of the gross floor area of the building will be used for affordable housing—Y:1, where— AH is the percentage of the gross floor area of the building that is used for affordable housing. Y= AH ÷ 100 Or 30.6% (160.82m2) of the gross floor area of the building would be used for affordable housing.	0.3:1	Y The FSR is 0.794:1
17(1)(b)	if the maximum permissible floor space ratio is more than 2.5:1—	N/A	N/A
17(1)(b) (i)	if at least 50% of the gross floor area of the building will be used for affordable housing—20% of the maximum permissible floor space ratio, or	N/A	N/A
17(1)(b) (ii)	if less than 50% of the gross floor area of the building will be used for affordable housing—Z% of the maximum N/A N/A permissible floor space ratio, where— AH is the percentage of the gross floor area of the building that is used for affordable housing. Z= AH ÷ 2.5
17(2)	The additional floor space ratio must be used for the purposes of affordable housing.	No additional floor space ratio is relied upon for this proposal.	Y
18	Non-discretionary development standards - the Act, s4.15
18(1)	The object of this section is to identify development standards for particular matters relating to development for the purposes of in-fill affordable housing that, if complied with, prevent the consent authority from requiring more onerous standards for the matters.
18(2)	The following are non-discretionary development standards in relation to the carrying out of development to which this Division applies—
18(2)(a)	a minimum site area of 450m2,	Site area: 607.3m2	Y
18(2)(b)	for a development application made by a social housing provider—at least 35m2 of landscaped area per dwelling,	The application is not made by a social housing provider.	N/A
18(2)(c)	if paragraph (b) does not apply—at least 30% of the site area is landscaped area, Required: 182.19m2	42.3% (256.66m²)	Y
18(2)(d)	a deep soil zone on at least 15% of the site area, where— Required: 91.095m2	14.7% (89.18m²) Reason: Given the isolated undersized nature of the Site, deep soil has been maximised and the objective of this standard is met	A
18(2)(d)(i)	each deep soil zone has minimum dimensions of 3m, and	Each deep soil zone included in the calculation in 18(2)(d) would have a minimum dimension of 3m.	Y
18(2)(d) (ii)	if practicable, at least 65% of the deep soil zone is located at the rear of the site, Required: 0.65*93.96m2 =61.07m2	48.8% (43.52m²) It is not practicable to provide more given the area required for the basement. Despite this, the overall area of deep soil on the site is compliant.	A
18(2)(e)	living rooms and private open spaces in at least 70% of the dwellings receive at least 3 hours of direct solar access between 9am and 3pm at mid-winter,	100% (6 units)	Y
18(2)(f)	for a development application made by a social housing provider for development on land in an accessible area— (i) for each dwelling containing 1 bedroom—at least 0.4 parking spaces, or (ii) for each dwelling containing 2 bedrooms—at least 0.5 parking spaces, or (iii) for each dwelling containing at least 3 bedrooms— at least 1 parking space, Required:	N/A	N/A
18(2)(g)	if paragraph (f) does not apply—	See below.	N/A
18(2)(g)(i)	for each dwelling containing 1 bedroom— at least 0.5 parking spaces, or Required 0.5 space	1	Y
18(2)(g) (ii)	for each dwelling containing 2 bedrooms—at least 1 parking space, or Required: 5 spaces = 5 spaces	5	Y
18(2)(g) (iii)	for each dwelling containing at least 3 bedrooms—at least 1.5 parking spaces,	N/A	N/A
18(2)(h)	for development for the purposes of residential flat buildings—the minimum internal area specified in the Apartment Design Guide for each type of apartment,	Unit G01 (2 Bed): 75.36m2 Unit G02 (2 Bed): 81.91m2 Unit 101 (2 Bed): 77.32m2 Unit 102 (2 Bed):80.08m2 Unit 201 (1 Bed): 60.42m2 Unit 202 (2 Bed): 80.08m2	Y
18(2)(i)	for development for the purposes of dual occupancies, manor houses or multi dwelling housing (terraces)—the minimum floor area specified in the Low Rise Housing Diversity Design Guide,	N/A	N/A
18(2)(j)	if paragraphs (h) and (i) do not apply, the following minimum floor areas— (i) for each dwelling containing 1 bedroom—65m2, or (ii) for each dwelling containing 2 bedrooms—90m2, or (iii) for each dwelling containing at least 3 bedrooms—115m2 plus 12m2 for each bedroom in addition to 3 bedrooms.	N/A	N/A
19	Design requirements
19(1)	Development consent must not be granted to development to which this Division applies unless the consent authority has considered the following, to the extent to which they are not inconsistent with this Policy—
19(1)(a)	the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004,	N/A	N/A
19(1)(b)	for development for the purposes of dual occupancies, manor houses or multi dwelling housing (terraces)—the Low Rise Housing Diversity Design Guide.	N/A	N/A
19(2)	Subsection (1) does not apply to development to which State Environmental Planning Policy No 65— Design Quality of Residential Apartment Development applies.	SEPP 65 applies therefore cl. 19(1) is not applicable.	Noted
19(3)	Development consent must not be granted to development to which this Division applies unless the consent authority has considered whether the design of the residential development is compatible with—
19(3)(a)	the desirable elements of the character of the local area, or	The proposal would be compatible with the character of the local area and would satisfy the following: • Scale: The scale of the proposal would be compatible with the adjacent heritage item ‘Dorchester Flats’, the heritage conservation area, and the more recently developed residential flat buildings in the area.	Y
• Height: The proposal is as amended compliant. • Streetscape: The proposed development would be compatible in its streetscape as it would present as a three-storey building from Culworth Avenue, like the apartment buildings at Nos. 1 and 3 Marian Street. Further, the development would also be in scale with the large mature trees that line Culworth Avenue. • Front Setback: A front setback that varies between 8m and 11m is proposed, which would generally be in alignment with that provided by the adjacent heritage item at No. 1 Marian Street. • Landscaping: Front, side, and rear landscaping with deep soiled zones to the front and rear would enable substantial planting to ensure residential amenity. • Built Form: The built form is consistent with that in the street.
19(3)(b)	for precincts undergoing transition—the desired future character of the precinct.	N/A	N/A
20	Continued application of SEPP 65
Nothing in this Policy affects the application of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development to residential development to which this Division applies.	SEPP 65 would apply, and the proposal has been formulated in accordance with the Policy.	Y
21	Must be used for affordable housing for at least 15 years
21(1)	Development consent must not be granted under this Division unless the consent authority is satisfied that for a period of at least 15 years commencing on the day an occupation certificate is issued—
21(1)(a)	the affordable housing component of the residential development will be used for affordable housing, and	Requirement included in conditions of consent, at annexure ‘A’	C
21(1)(b)	the affordable housing component will be managed by a registered community housing provider.	Requirement included in conditions of consent at annexure ‘A’	C
21(2)	Subsection (1) does not apply to development on land owned by a relevant authority or to a development application made by, or on behalf of, a public authority.	N/A	N/A
21(3)	In this section— affordable housing component, in relation to development to which this Division applies, means the dwellings used for the purposes of affordable housing in accordance with section 16(1)(b).	Noted.	Noted.
22	Subdivision permitted with consent
Land on which development has been carried out under this Division may be subdivided with development consent.	Strata subdivision into 6 lots.	Y
Legend: Y=Complies, N = Does not Comply, C = Condition of consent, N/A = Not applicable, A = Does not strictly comply but acceptable

19. The parties submit and I accept that the proposed development satisfies the provisions of the Housing SEPP.

KLEP 2015

Land Use Table

20. The land is zoned R4 High Density Residential. The proposed development is permissible in the zone.

Zone objectives

21. Clause 2.3 of KLEP 2015 indicates that regard must be had to the zone objectives. The relevant zone objectives in the R4 High Density Residential Zone are:

• To provide for the housing needs of the community within a high-density residential environment.

• To provide a variety of housing types within a high-density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for high density residential housing close to public transport, services and employment opportunities.

22. The parties have considered the zone objectives in relation to the amended development the subject of the s34 agreement. The parties are satisfied the proposed development, as amended, is compatible with the zone objectives.

Clause 2.7 – Demolition requires development consent

23. Demolition is permissible with consent.

Clause 4.3(2A) – Height of Buildings

24. The maximum permissible building height is 11.5m. The DA, as amended, is below the maximum building height.

Clause 4.4 – Floor Space Ratio (FSR)

25. The maximum FSR is 0.8:1. The DA, as amended, has a FSR of 0.794:1, which complies with this clause.

Clause 5.10 – Heritage

26. The site is not listed as a heritage item and not located in heritage conservation area but is located in the immediate vicinity of a heritage item and Marian Street Conservation Area. The DA is supported by a Heritage Impact Statement prepared by Weir Phillips Heritage and Planning, dated September 2022. The parties submit and I accept that this clause is satisfied.

Clause 6.1 – Acid Sulfate Soils

27. The site is identified as being within Class 5 Acid Sulfate Soils area. The DA is supported by a Geotechnical Investigation Report prepared by Cardno now Stantec, dated 6 August 2022. The parties submit and I accept that this clause is satisfied.

Clause 6.2 – Earthworks

28. Earthworks are proposed as part of the DA, including the construction of the basement. The extent of the proposed excavation, including setbacks is detailed in the architectural plans. The DA is supported by a Geotechnical Investigation Report prepared by Cardno now Stantec, dated 6 August 2022. The report includes recommendations for excavation works. The parties submit and I accept that this clause is satisfied.

Clause 6.3 – Biodiversity protection

29. The site is not identified as containing “Areas of Biodiversity Significance” on Ku-ring-gai’s Natural Resource Biodiversity Map. The DA will not have any unreasonable impact upon any significant vegetation or endangered flora or fauna species. The parties submit and I accept that this clause is satisfied.

Clause 6.4 – Riparian land and waterways

30. The site is not identified as containing a watercourse or associated riparian zone. Therefore, this clause is not relevant.

Clause 6.5 – Stormwater and water

31. The DA, as amended, is supported by Stormwater management plans which provide for the collection and disposal of stormwater, with both on-site detention and retention/re-use of collected stormwater.

Clause 4.6 written request – cl 6.6(2) - Site requirements for multi dwelling housing and residential flat buildings

32. Multi-dwelling housing development requires a minimum lot size of 1,200m², and, for lots with an area of less than 1,800m², a minimum width and depth of 24m. The site has an area of 607.3m² with a frontage width to Culworth Avenue of 15.235m and the dimensions of the Lot cannot be changed as the Lot is constrained by its location between a public car park and a local heritage item. The DA, as amended, is supported by a cl 4.6 variation request prepared by Weir Phillips Heritage and Planning dated 7 March 2024. The cl 4.6 variation request provides a detailed assessment of the development’s compliance with the matters raised in cl 4.6 and concludes that:

• Compliance with the development standard in respect of minimum lot dimensions in cl 6.6 of KLEP 2015 is unreasonable or unnecessary in the circumstances of this case because the development achieves the objectives of the standard and the zone notwithstanding the breach.

• The development will promote the orderly and economic development of the land by providing a change of use of the site from a prohibited dual occupancy to a permissible residential flat building consistent with the R4 High Density Residential zone objectives close to public transport and employment. The number of occupancies on the site will increase from two to six. These environmental planning grounds it is submitted justify contravening the development standard.

• The proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development within the zone in which the development is proposed to be carried out.

33. The parties submit and I accept that the cl 4.6 written request adequately addresses the matters that are required to be demonstrated under cl 4.6 of KLEP 2015 and therefore the request is upheld in this case.

Ku-ring-gai Development Control Plan (DCP)

34. The Council has reviewed the DA, as amended, against the provisions of the DCP and is satisfied that it is generally consistent with the applicable controls and objectives.

Public notification

35. The DA was notified by Council for 30 days concluding on 28 November 2022. Ten submissions were received and were considered by Council.

Owner’s consent

36. The DA was made with the written consent of the owner of the subject site.

Conclusion and orders

37. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties’ decision.

38. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the Environmental Planning and Assessment Act 1979.

39. The Court notes:

1. That Ku-ring-gai Council, as the relevant consent authority, has approved, under s 38 of the EPA Reg, to the applicant amending development application DA0437/22 in accordance with the documents below:

1. Architectural Plans prepared by TEXCO design

1. DA001- Cover page;

2. DA002 – BASIX Specifications, Rev 6, dated 12 December 2023;

3. DA003- Building Statistics, Rev 7, dated 11 March 2024;

4. DA004 – Site Analysis, Rev 5, dated 31 August 2023;

5. DA005 – Survey;

6. DA006 – Demolition Plan, Rev 5, dated 31 August 2023;

7. DA007- Site Plan, Rev 6, dated 11 March 2024;

8. DA008- Tree Protection Plan, Rev 5, dated 31 August 2023;

9. DA009- Excavation Diagram, Rev 5, dated 31 August 2023;

10. DA010 – Streetscape Analysis, Rev 7, dated 11 March 2024;

11. DA011 – GFA Calculation, Rev 7, dated 13 February 2024;

12. DA012 – Affordable Unit Schedule, Rev 6, dated 13 February 2024;

13. DA013- Unit Schedule, Rev 7, dated 13 February 2024;

14. DA014- Storage Schedule, Rev 6, dated 13 February 2024;

15. DA015- Landscape Calculation, Rev 6, dated 11 March 2024;

16. DA016- Deep Soil Calculation, Rev 5, dated 31 August 2023;

17. DA018- Solar Access Diagram, Rev 5, dated 31 August 2023;

18. DA019 – Cross Ventilation Diagram, Rev 5, dated 31 August 2023;

19. DA020- Height Plane Diagram, Rev 8, dated 13 March 2024;

20. DA021- Solar Diagram 9AM 21 JUNE, Rev 6, dated 11 March 202431 August 2023;

21. DA022- Solar Diagram 10AM 21 JUNE, Rev 6, dated 11 March 2024;

22. DA023 – Solar Diagram 11AM 21 June, Rev 6, dated 11 March 2024;

23. DA024 - Solar Diagram 12PM 21 JUNE, Rev 6, dated 11 March 2024;

24. DA025 – Solar Diagram 1PM 21 JUNE, Rev 6, dated 11 March 2024;

25. DA026- Solar Diagram 2PM 21 JUNE, Rev 6, dated 11 March 2024;

26. DA027- Solar Diagram 3PM 21 JUNE, Rev 6, dated 11 March 2024;

27. DA028 – Existing Sun Eye Diagram, Rev 1, dated 22 November 2023;

28. DA029 – Proposed Sun Eye Diagram, Rev 8, dated 11 March 2024;

29. DA030- Proposed Sun Eye Diagram, Rev 3, dated 11 March 2024;

30. DA031- Northeast Elevation Shadow Diagram, Rev 2, dated 12 December 2023;

31. DA032 – Northwest Elevational Shadow Diagram, Rev 2, dated 12 December 2023;

32. DA101- Basement Plan, Rev 9, dated 13 March 2024;

33. DA102 – Ground Floor Plan, Rev 7, dated 12 December 2023;

34. DA103 – Level 01 Floor Plan, Rev 7, dated 12 December 2023;

35. DA104 – Level 02 Floor Plan, Rev 8, dated 13 March 2024;

36. DA105 – Rooftop Plan, Rev 9, dated 13 March 2024;

37. DA201- East and North Elevations, Rev 8, dated 11 March 2024;

38. DA202- West and South Elevations, Rev 8, dated 11 March 2024;

39. DA301- Sections, Rev 8, dated 13 March 2024;

40. DA401- Material Schedule, Rev 6, dated 11 March 2024;

41. DA402- Door Schedule, Rev 6, dated 12 December 2023;

42. DA403- Window Schedule, Rev 6, dated 12 December 2023

2. Landscape Plans prepared by Conzept Landscape Architects, Rev J, dated 26 February 2024;

1. Sheet 1- Hardscape Plans

2. Sheet 2- Landscape Plan - GF

3. Sheet 4 – Sections

4. Sheet 5- Details and Specifications

5. Sheet 6- Details 2

3. Stormwater Plans prepared by JCO Consultants Pty Ltd, Rev 7, dated 23 February 2024;

1. DA -SW100- Coversheet

2. DA-SW200- Stormwater Water Concept Design - Basement Plan

3. DA-SW201- Stormwater Water Concept Design - Ground Floor Plan

4. DA- SW300- Stormwater Water Concept Design - Details Sheet – Sheet 1 of 2

5. DA- SW301- Stormwater Water Concept Design - Details Sheet- Sheet 2 of 2

6. DA-SW500- Stormwater Water Concept Design - Music Catchment Plan

7. DA-SW600- Erosion and Sediment Control Plan & details

4. Request to contravene a development standard under Clause 4.6 Report: Minimum Lot Dimensions, prepared by Weir Phillips Heritage and Planning, Rev B, dated 7 March 2024;

5. Design Verification Statement prepared by TEXCO Design, dated 20 February 2024;

6. Acoustic Report prepared by Acoustic Logic, Revision 2 dated 23 August 2023;

7. Traffic and Car Parking Assessment prepared by Genesis Traffic, dated 9 August 2023;

8. BASIX certificate No. 1338498M_06, prepared by AENEC, dated 15 March 2024;

9. NatHERS Certificates as follows;

1. NatHERS Certificate No. 1ESX3ZPKJW-05, dated 26 February 2024;

2. NatHERS Certificate No. 8TCANUFDGF-06, dated 26 February 2024;

3. NatHERS Certificate No. 9SE1H157A9-05, dated 26 February 2024;

4. NatHERS Certificate No. CK4AHIPF7N-05, dated 26 February 2024;

5. NatHERS Certificate No. MI2PXKJJVU-05, dated 26 February 2024;

6. Class 2 Summary- NatHERS Certificate No. DC4VUSL17K, dated 27 February 2024; and

7. NatHERS Certificate No. XRF03B3TSE-05, dated 26 February 2024.

2. The amended application was filed in Court on 18 March 2024.

40. The Court orders:

1. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the costs of the respondent consent authority that are thrown away as a result of amending the development application, in the amount of $17,500 within 14 days from the date of these orders.

2. The applicant’s written request pursuant to cl 4.6 of Ku-ring-gai Local Environmental Plan 2015 seeking a variation to the development standard for requirements for multi-dwelling housing and residential flat buildings set out in cl 6.6(2) of Ku-ring-gai Local Environmental Plan 2015 prepared by Weir Phillip Heritage and Planning dated 7 March 2024 is upheld.

3. The appeal is upheld.

4. Development application no. DA0437/22, as amended, for the demolition of existing structures and construction of a residential flat building with 6 units, basement parking, landscaping and associated works pursuant to State Environmental Planning Policy (Housing) 2021 for Lot 1 in Deposited Plan 945545, commonly known as 18 Culworth Avenue, Killara NSW 2071, is determined by the grant of development consent subject to the conditions in Annexure A.

…………………………

S Dixon

Senior Commissioner of the Court

Annexure A (411711, pdf)

**********

Decision last updated: 19 March 2024