Roberts v Ku-Ring-Gai Council

[2019] NSWLEC 1550

Land and Environment Court

New South Wales

Medium Neutral Citation:	Roberts v Ku-Ring-Gai Council [2019] NSWLEC 1550
Hearing dates:	Conciliation conference on 2 September 2019; 21 October 2019; 29 October 2019
Date of orders:	14 November 2019
Decision date:	14 November 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1) The Applicant is granted leave to rely on the amended plans referred to in condition 1 of Annexure “A”. (2) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments in the sum of $13,000 payable within 28 days of the date of this agreement, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW). (3) The appeal is upheld. (4) Development consent is granted to Development Application No. DA0515/18 seeking consent for the demolition of the existing dwelling and swimming pool, and construction of 8 new units, basement carparking and associated works in accordance with the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 on the land at 205 Eastern Road, Wahroonga NSW 2076 (formally known as Lot A in DP 408410), subject to the conditions of consent annexed hereto and marked “A.”
Catchwords:	DEVELOPMENT APPLICATION – 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 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No.55 – Remediation of Land
Category:	Principal judgment
Parties:	Daniel Roberts (Applicant) Ku-Ring-Gai Council (Respondent)
Representation:	Counsel: M Parrino (Solicitor) (Applicant) C Drury (Solicitor) (Respondent) Solicitors: Project Lawyers (Applicant) Sparke Helmore(Respondent)
File Number(s):	2019/14877
Publication restriction:	No

Judgment

1. COMMISSIONER: The Applicant is appealing the deemed refusal of development application DA0515/18 under s 8.7 of the Environmental Planning and Assessment Act (EPA Act) which seeks consent for the demolition of an existing dwelling and ancillary structures, removal of trees and the construction of a 1 and 2-storey seniors’ living development comprising 8 self-contained dwellings over a basement on land at 205 Eastern Road, Wahroonga NSW.

2. The site is located on the eastern side of Eastern Road and is legally described as Lot A in DP 408410 with a frontage to Eastern Road of 24.515m and side boundary lengths of 90.17m to the north and 90.15m to the south, giving a total site area of 2,210m².

3. In accordance with the Court’s usual practice, the conference commenced onsite following a number of public submissions from residents of adjoining properties.

4. Following the onsite view, the parties and experts reconvened at the Council Chambers to continue the conciliation conference, at which time the parties reached agreement as to the terms of a decision that would be acceptable to the parties. This agreement involved the Court upholding the appeal and granting development consent to the development application subject to the preparation of amended plans, and agreed conditions.

5. I granted an adjournment in order for the Applicant to prepare amended plans on which the parties could settle conditions of consent. A signed agreement and conditions of consent were prepared in accordance with s 34(10) of the LEC Act and was filed with the Court on 29 October 2019.

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 that SEPP HSPD applies to the site as the description of the site in the Terrestrial Biodiversity Map under cl 6.3(2) of the KLEP does not satisfy the categories of Schedule 1 of SEPP HSPD that would exclude its application, pursuant to cl 4(6) of the SEPP HSPD.

3. I am satisfied on the basis of the Disability Access Report prepared by Lindsay Perry Access, dated 4 July 2019, and updated footpath plans that the development satisfies the requirements of the location and access to facilities provisions in accordance with cl 26 of SEPP HSPD.

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

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

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 am 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.

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 rely on the amended plans referred to in condition 1 of Annexure “A”.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments in the sum of $13,000 payable within 28 days of the date of this agreement, pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

3. The appeal is upheld.

4. Development consent is granted to Development Application No. DA0515/18 seeking consent for the demolition of the existing dwelling and swimming pool, and construction of 8 new units, basement carparking and associated works in accordance with the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 on the land at 205 Eastern Road, Wahroonga NSW 2076 (formally known as Lot A in DP 408410), subject to the conditions of consent annexed hereto and marked “A.”

…………………………

T Horton

Commissioner of the Court

Annexure A (197 KB)

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Decision last updated: 15 November 2019