Rupani v Ku-ring-gai Council

[2024] NSWLEC 1569

Land and Environment Court

New South Wales

Medium Neutral Citation:

Rupani v Ku-ring-gai Council [2024] NSWLEC 1569

Hearing dates:

Hearing and conciliation conference on 27 August 2024

Date of orders:

17 September 2024

Decision date:

17 September 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $30,000 in full and final settlement of this order and the Court’s s 8.15(3) costs order made on 28 May 2024.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. DA162/23 for the construction of a 90-place childcare centre with basement parking and associated works on Lot 4 DP 1263889 and Lot 1 DP 1263889, known as 113 Junction Road and 160 Eastern Road, Wahroonga, subject to the conditions contained in Annexure A. 

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – child care centre – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.3

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Education and Care Services National Regulations 2011, regs 107, 108

Environmental Planning and Assessment Regulations 2021, s 38

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.8, 6.9, 6.10 Ch 6

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, Pt 3.3

Texts Cited:

Ku-ring-gai Council Community Participation Plan 2020

Department of Planning Industry and Environment, Child Care Planning Guideline, September 2021

Category:

Principal judgment

Parties:

Sumeet Rupani (First Applicant)
Honey Rupani (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Staunton (First and Second Applicants)
A Stafford (Respondent)

Solicitors:
Project Lawyers Pty Ltd (First and Second Applicants)
Sparke Helmore (Respondent)

File Number(s):

2023/181035

Publication restriction:

No

Judgment

1. COMMISSIONER: Sumeet Rupani and Honey Rupani applied to Ku-ring-gai Council to construct a 96-place child care centre on a corner site at 113 Junction Road and 160 Eastern Road, Wahroonga. The Council refused this development application, DA162/23, and it is from this that these Class 1 proceedings arise.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act), and the hearing commenced with a site view on 27 August 2024. Upon return to the Court, the parties advised that they had reached agreement and the matter was listed for a further conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. At the conciliation conference, over which I presided, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021 (EPA Regs), the Council agreed to the applicant amending the development application to adequately respond to the Council’s contentions. These amendments included: alterations to setbacks, associated planting and building form; a reduction in the number of children attending; amendments to the fence alignment and subsequent area of outdoor play, and; amendments to supporting documentation.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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, which the parties identified and explained. From this I note the following points.

Jurisdictional matters

6. The development application was made with the written consent of the owner of the land.

7. A restriction is registered on the title of lots 1 and 4 of DP1263889 by way of a s 88B instrument under the Conveyancing Act 1919. This restriction prohibits the carrying out of excavations, soil level changes or construction works within the area designated as “C” on DP1263889, which designates a 15m radius from the centre of a retained Coast Redwood (T20) on the site. The proposed development incorporates limited excavation, soil level changes and construction works within this area for the purpose of planting, installing fences and fitting out the outdoor play area. The parties submit that they are satisfied that the proposed works will not have any adverse effect on T20, and subsequently the Council has agreed, as part of the parties’ terms under this s 34 agreement, to the applicant varying the restriction so that these works may be carried out in accordance with this development consent.

8. The application was adequately notified in accordance with the Ku-ring-gai Council Community Participation Plan 2020 from 11 May to 12 June 2023, during which time fifteen submissions were received. Two additional submissions were received outside the notification period, and two residents made oral submissions at the commencement of proceedings. Based on the amended application, the parties submit, and I accept, that the development as amended adequately responds to the concerns raised in these submissions.

9. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Preliminary Environmental Site Investigation Report by Environmental Consulting Services dated 23 January 2023 and the parties’ submission, I accept that there is no evidence of any potentially contaminating activities, and that the site is suitable for the intended use.

10. Chapter 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site as it is located within the Hawkesbury Nepean Catchment. The following documents provide supporting information for consideration of this development under general controls for development in this catchment set out in Pt 6.2 Div 2:

1. Stormwater plans by Greenview Consulting dated 9 February 2024;

2. Arboricultural Impact Assessment by Creative Planning Solutions dated 10 July 2024;

3. Preliminary Environmental Site Investigation Report by Environmental Consulting Services dated 23 January 2023; and

4. Geotechnical Investigation by Intrax Consulting Group dated 28 November 2023.

11. From these documents and the parties’ submissions, I accept that the matters identified in ss 6.6-6.10 of the SEPP BC have been considered, and that:

1. The proposed development will have a neutral effect on the quality of water entering a natural waterbody, and will have no impact on the water flow of a natural waterbody (s 6.6).

2. The impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development, and further, there will be no impact on aquatic reserves, natural waterbodies or wetlands (s 6.7).

3. The land is not considered ‘flood liable land’ (s 6.8) nor will it have any impact on recreation and public access (s 6.9) or downstream local government areas (s 6.10).

12. Two Syncarpia glomulifera (Sydney Turpentine) trees are located on the verge to Junction Road, adjacent to the site. This species is part of the Sydney Turpentine Ironbark Forest (STIF) ecological community which, in the Sydney Basin Bioregion, is listed as a critically endangered ecological community (CEEC) under the Biodiversity Conservation Act2016 (BC Act). These trees are proposed for retention, and are unlikely to be impacted by the proposed development. Pursuant to the requirements of s 7.3 of the BC Act, a Test of Significance (5-part test) has been prepared by Cumberland Ecology dated 6 June 2024. From this document and the parties’ submission, I accept that the matters listed in s 7.3 have been taken into account and that the proposal is unlikely to significantly affect this threatened ecological community and is acceptable.

13. Chapter 3, Pt 3.3 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T & I) provides specific development controls for early education and care facilities and applies to the proposed development. From the parties’ submissions and the information contained in the amended application I accept:

1. The floor area of the building complies with indoor and outdoor space requirements of the Education and Care Services National Regulations 2011 (regs 107 & 108).

2. The applicable provisions of the Child Care Planning Guideline have been considered, and the proposed development is acceptable against these requirements. Particular detail is provided regarding matters of acoustics, traffic, parking, pedestrian management and air quality in the jurisdictional note submitted to the Court.

14. The subject site is zoned R2 Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP), within which development for the purposes of a centre-based child care facility is permissible with consent. The proposed development is consistent with the objectives of this zone.

15. Pursuant to KLEP cl 4.3, a maximum building height of 9.5m applies to the subject site. From the parties’ submission and the sections on drawing DA05.01 by ArtMade Architects dated 26 August 2024, I accept that the proposed development complies with this development standard.

16. KLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 0.3:1. The proposed development again complies with this development standard with a maximum FSR of 0.27:1.

17. The site is not identified as a heritage item, nor located within a heritage conservation area. However, the site is located in the vicinity of two heritage listed items at 158 Eastern Road and 121 Junction Lane. From the parties’ submissions and the Heritage Impact Statement by Weir Phillips Heritage and Planning dated 30 January 2023, I accept the work will have a minimal and acceptable impact on both heritage items (KLEP cl 5.10).

18. Pursuant to KLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, but is not within 500m of Class 1, 2, 3 or 4 land that is below 5m AHD. Further, the parties submit and I accept that the proposed development is not likely to lower the water table. From this, no acid sulfate soils management plan is required, and the requirements of this clause are satisfied.

19. The proposal is supported by a Geotechnical Investigation Report by Intrax Consulting Group dated 28 November 2023 which, along with the parties’ submissions, demonstrates that the earthworks-related matters listed under KLEP cl 6.2 have been considered and the proposal is acceptable.

20. KLEP cl 6.3 provides requirements to ensure the diversity and condition of native vegetation and habitat is protected, maintained and improved. As stated above, the two Sydney Turpentine trees on adjacent Council land form part of an EEC and are subsequently mapped as ‘Areas of Biodiversity Significance’ under the KLEP. The proposed development has been amended to ensure no encroachment on the tree protection zone or canopy of either tree. From the parties’ submission and the architectural and landscape plans, I accept that the development is consistent with the objectives of this clause, and is designed and sited, and will be managed to avoid any potentially adverse environmental impact.

21. From the parties’ submission and the Stormwater Plans by Greenview Consulting dated 9 February 2024, I accept that:

1. Water sensitive urban design principles are incorporated into the design of the development;

2. The proposed development incorporates integrated stormwater measures with management actions to avoid any adverse impact of stormwater on the subject site and adjoining properties. The site is not located nearby to any native bushland, waterways or riparian areas.

3. The requirements of KLEP cl 6.5 are subsequently met.

Conclusion

22. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

23. 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.

24. The Court notes:

1. that the Respondent approves the applicant amending Development Application No DA162/23 pursuant to s 38 of the Environmental Planning & Assessment Regulation 2021, to include the following plans and documents:

Plans	Rev	Date
Architectural Plans prepared by ArtMade Architects
i) Cover Page, dwg no. DA00.00	L	26 August 2024
ii) Site Plan/Demolition, dwg no. DA02.01	J	23 August 2024
iii) Overall Floor Plans – Sheet 1, dwg no. DA03.01	H	23 August 2024
iv) Overall Floor Plans – Sheet 2, dwg no. DA03.02	F	23 August 2024
v) Lower Ground Floor Plan, dwg no. DA03.03	K	26 August 2024
vi) Upper Ground Floor Plan, dwg no. DA03.04	H	23 August 2024
vii) Level 1 Floor Plan, dwg no. DA03.05	F	23 August 2024
viii) Calculations – Sheet 1, dwg no. DA03.06	D	19 July 2024
ix) Calculations – Sheet 2, dwg no. DA03.07	E	19 July 2024
x) Calculations – Sheet 3, dwg no. DA03.08	C	14 December 2023
xi) External Elevations – Sheet 1, dwg no. DA04.01	F	19 July 2024
xii) External Elevations – Sheet 2, dwg no. DA04.02	H	26 August 2024
xiii) Sections and Details, dwg no. DA05.01	H	23 August 2024
xiv) Shadow Diagrams, dwg no. DA06.01	D	19 July 2024
xv) View from the Sun and Outdoor Play Diagram, dwg no. DA06.02	G	26 August 2024
xvi) Outdoor Play Area Solar and Shade Calculation, dwg no. DA06.03	H	26 August 2024
xvii) Kitchen Details, dwg no. DA06.04	C	14 December 2023
xviii) Views from Sun – Sheet 1, dwg no. DA06.05	D	19 July 2024
xix) Views from Sun – Sheet 2, dwg no. DA06.06	D	19 July 2024
xx) Site Analysis, dwg no. DA06.07	D	26 August 2024
Landscape Plans prepared by Melissa Wilson Landscape Architects
xxi) Cover Page	K	26 August 2024
xxii) Site Plan | Existing Trees, dwg no. LS01	K	26 August 2024
xxiii) Upper Ground Floor, dwg no. LS02	K	26 August 2024
xxiv) Lower Ground Floor, dwg no. LS03	K	26 August 2024
xxv) Notes + Typical Details, dwg no. LS04	K	26 August 2024
Updated Air Quality Report prepared by Zephyr Environmental	F02	26 August 2024
Preliminary Construction Traffic Management Plan prepared by Stanbury Traffic Planning	-	25 July 2024
Arboricultural Impact Assessment prepared by Creative Planning Solutions	C	10 July 2024
Tree Protection Plan & Specification prepared by Creative Planning Solutions	D	25 July 2024
Arboricultural Management Plan prepared by Creative Planning Solutions	C	25 July 2024
Conceptual Methodology for Construction prepared by ArtMade Architects	C	23 July 2024
5-Part Test of Significance prepared by Cumberland Ecology	-	6 June 2024
Environmental Noise Impact Assessment prepared by Day Design Pty Ltd	B	21 May 2024

25. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $30,000 in full and final settlement of this order and the Court’s s 8.15(3) costs order made on 28 May 2024.

2. The appeal is upheld.

3. Development consent is granted to Development Application No DA162/23 for the construction of a 90-place childcare centre with basement parking and associated works on Lot 4 DP 1263889 and Lot 1 DP 1263889, known as 113 Junction Road and 160 Eastern Road, Wahroonga, subject to the conditions contained in Annexure A.

E Washington

Commissioner of the Court

**********

Annexure A

Decision last updated: 17 September 2024