Song v Ku-ring-gai Council

[2023] NSWLEC 1495

Land and Environment Court

New South Wales

Medium Neutral Citation:

Song v Ku-ring-gai Council [2023] NSWLEC 1495

Hearing dates:

Conciliation Conference on 23 August 2023

Date of orders:

1 September 2023

Decision date:

01 September 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA0138/22, as amended, for alterations and additions to the existing dwelling, removal of the existing swimming pool and construction of a new pool within a heritage conservation area at 46 Hastings Road, Warrawee, is determined by the grant of development consent subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions – heritage – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, s 38

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 5.10, 6.1, 6.2, 6.5

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6

Category:

Principal judgment

Parties:

Xinyi Song (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Tyrrells Planning Law (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2023/68397

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), being an appeal against the actual refusal of Development Application No. DA0138/22 for alterations and additions to the existing dwelling, removal of the existing swimming pool and construction of a new pool within a heritage conservation area at 46 Hastings Road, Warrawee, legally described as Lot 2 in DP12748 (the subject site).

2. Amended plans were filed with the Court 23 August 2023 (amended development application) cited at [23]. The amendments can be summarised as follows:

• Removal of the front terrace addition and retention of the terrace, veranda and front roof form;

• Proposed rear roof lowered;

• Deletion of the proposed cabana building and front lychgate;

• Alterations to the proposed garage;

• Privacy measures to bedroom 3 to remove the balcony and replace with a window and shade structure; and

• Further information and details regarding stormwater, landscaping, materials and other matters.

3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 August 2023. I have presided over the conciliation conference.

4. 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 for the amended development application and granting development consent to the amended development application subject to conditions.

5. I note that as part of the filed s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

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.

7. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional Prerequisites

8. 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 and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

9. I am satisfied that owners consent accompanied the development application.

10. The subject site is zoned R2 Low Density Residential pursuant to the Ku-ring-gai Local Environmental Plan 2015 (KLEP), where the proposed development is permissible with consent. In accordance with cl 2.3, I have had regard to the objectives of the zone:

• To provide for the housing needs of the community within a low 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 housing that is compatible with the existing environmental and built character of Ku-ring-gai.

11. Clause 4.3 Height of Buildings of the KLEP applies to the site. The parties agree and I accept that the proposal is below the maximum permitted building height of 9.5m on the basis of the architectural plans, drawn by Gelder Group Architects, Issue M, dated 31 July 2023.

12. Clause 4.4 Floor Space Ratio of the KLEP applies to the subject site, which permits a maximum FSR of 0.3:1. The parties agree and I accept that the proposal is below the maximum permitted floor space ratio on the basis of the architectural plans, drawn by Gelder Group Architects, Issue M, dated 31 July 2023.

13. The subject site is located within the Warrawee Heritage Conservation Area C3 and is in the vicinity of numerous heritage items. The subject site is not a heritage item. Accordingly, cl 5.10 Heritage conservation of the KLEP applies. On the basis of the Statement of Heritage Impact report authored by GBA Heritage dated December 2021, the heritage joint expert report, the amended development application and conditions of consent, the parties agree, and I accept that the amended development application responds appropriately to the Warrawee Heritage Conservation Area C3 and does not adversely impact the heritage items in the vicinity of the site.

14. Clause 6.1 Acid sulfate soils of the KLEP applies to the site which is mapped as Class 5, but is not within 500m of Class 1, 2, 3 or 4 acid sulfate soils. The parties agree and I accept that consent under cl 6.1(2) is not required.

15. Clause 6.2 Earthworks applies to the site. The parties agree that the provisions have been considered and are acceptable as contained within the jurisdictional statement. On the basis of the Stormwater Management Plans, Revision B prepared by Approved Consulting Engineers dated 16 August 2023, Erosion and Soil Management Plan prepared by Gelder Group Architects dated 31 July 2023 and the conditions of consent, I have considered the provisions of cl 6.2(3) and conclude that those matters to be considered have been adequately addressed.

16. Clause 6.5 Stormwater and water sensitive urban design applies to the site. The parties agree that the amended development application has considered the principles and integrated water sensitive urban design within the proposal and also incorporated appropriate flood management measures in accordance with 6.5(2). On the basis of the jurisdictional statement, Stormwater Management Plans, Revision B prepared by Approved Consulting Engineers dated 16 August 2023 and the conditions of consent, I am satisfied that the provisions of cl 6.5 have been met.

17. The parties agree and I accept that the amended development application is accompanied by an amended BASIX Certificate that satisfies the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

18. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) apply to the site. The amended development application does not change the previous use of the site as a residential property. The parties agree and I am satisfied with consideration of the Statement of Heritage Impact authored by GBA Heritage dated December 2021, that the subject site has a long, continuous history of residential use and accordingly, the provisions of s 4.6 of SEPP Resilience have been adequately addressed.

19. The Respondent notified the development application between 19 April 2022 and 3 May 2022. The development application received three submissions, with further submissions received during the appeal process and oral submissions at the on-site viewing of the s34AA proceedings. The Respondent, as the consent authority, has considered the concerns expressed.

Conclusion

20. 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.

21. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

22. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

23. The Court notes that the Respondent, as the relevant consent authority, has approved under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No. DA0138/22 in accordance with the documents listed below:

• Architectural Plans, Issue M, prepared by Gelder Group Architects dated 31 July 2023;

• Landscape Plans, Issue D, prepared by Paul Scrivener Landscape dated 24 July 2023;

• BASIX Certificate A447390_02 dated 11 August 2023; and

• Stormwater Plans, Revision B, prepared by Approved Consulting Engineers dated 16 August 2023.

24. The Court notes the Applicant has filed a copy of the amended documents on 23 August 2023.

Orders:

25. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA0138/22, as amended, for alterations and additions to the existing dwelling, removal of the existing swimming pool and construction of a new pool within a heritage conservation area at 46 Hastings Road, Warrawee, is determined by the grant of development consent subject to the conditions of consent at Annexure A.

S Porter

Commissioner of the Court

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Annexure A

Decision last updated: 01 September 2023