Salerno v Ku-ring-gai Council

[2019] NSWLEC 1207

Land and Environment Court

New South Wales

Medium Neutral Citation:	Salerno v Ku-ring-gai Council [2019] NSWLEC 1207
Hearing dates:	Conciliation Conference on 2 May 2019
Date of orders:	14 May 2019
Decision date:	14 May 2019
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders: (1) Leave is granted to the applicant to rely upon the amended plans as set out in condition No. 1 of Annexure “A”. (2) Pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed. (3) The Appeal is upheld. (4) Development Application 2018/0286 for alterations and additions to an approved but not yet constructed residential flat building at 1 Russell Avenue, Lindfield is approved subject to the conditions in Annexure “A”.
Catchwords:	DEVELOPMENT APPEAL against deemed refusal – conciliation conference – residential apartment development – affordable rental housing – agreement between the parties – orders
Legislation Cited:	Architects Act 2003 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environment Plan (Local Centres) 2012 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Texts Cited:	Apartment Design Guide Development near Rail Corridors and Busy Roads – Interim Guideline
Category:	Principal judgment
Parties:	Antonio Salerno (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: M Staunton (Applicant)   Solicitors: Sattler & Associates Pty Ltd (Applicant) A Hudson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2018/281073
Publication restriction:	No

Judgment

1. COMMISSIONER: This Class 1 appeal concerns a development application brought before the Court under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application No. DA0286/18 which seeks alterations and additions to Development Consent No. DA0375/14 for an approved but not yet constructed residential flat building, comprising the demolition of the existing dwelling house and ancillary structures, and the construction of a 4-storey residential flat building above 2 levels of basement providing 17 car parking spaces and services.

2. 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 2 May 2019. I presided over the conciliation conference.

3. At 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 2 May 2019.

4. 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.

5. As the presiding Commissioner, I was satisfied that the decision to grant development consent to the amended application, subject to conditions of consent, is a decision that the Court can make in the proper exercise of its functions under s 34(3) of the LEC Act. I formed this opinion of satisfaction as each of the jurisdictional requirements identified by the parties have been met as follows:

1. The proposed development is a residential flat building which is permitted on the site pursuant to Sch 1, cl 9 of the Ku-ring-gai Local Environment Plan (Local Centres) 2012 (Local Centres LEP). Additionally, cl 2.5(1) of the Local Centres LEP permits development on particular land that is described or referred to in Sch 1 and which states, at (2), in effect, that it is operative despite anything to the contrary in the Land Use Table or other provision of the Plan.

2. The parties agree, and I am satisfied that the site has been used for residential purposes and there is no history to suggest that the site is contaminated and so as a consequence there is no need for further consideration under cl 7 of State Environmental Planning Policy No 55—Remediation of Land.

3. Clause 87 of the State Environmental Planning Policy (Infrastructure) 2007 requires a consent authority to consider the ‘Development near Rail Corridors and Busy Roads – Interim Guideline’ published by the Department of Planning. I have read the Noise Impact Assessment report, prepared by SLR global environment solutions dated 24 March 2016, and I am satisfied that the specified acoustic levels will not be exceeded prior to the granting of consent.

4. The parties agree that conditions of consent will achieve the commitments included in the BASIX Certificate, pursuant to cl 97A of the Environmental Planning and Assessment Regulation 2000.

5. The proposed development is Residential Apartment Development, and so the State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development applies. Clause 28(2) requires that consent must not be granted if the development or modification does not demonstrate that adequate regard has been given to (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria.

6. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), and include attestations in relation to subcll 28(2)(b) and (c). I am satisfied that the statement signed by the architect, Mr Aleksandar Jelicic of Aleksandar Design Group dated 2 May 2019, is in a complying form.

6. 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.

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.

Orders

8. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. Leave is granted to the applicant to rely upon the amended plans as set out in condition No. 1 of Annexure “A”.

2. Pursuant to Section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application in a sum as agreed or assessed.

3. The Appeal is upheld.

4. Development Application 2018/0286 for alterations and additions to an approved but not yet constructed residential flat building at 1 Russell Avenue, Lindfield is approved subject to the conditions in Annexure “A”.

……………………….

Tim Horton

Commissioner of the Court

Annexure A (438 KB, pdf)

Schedule 1 (821 KB, pdf)

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Decision last updated: 14 May 2019