SRGD No. 2 Pty Ltd v Ku-ring-gai Council

[2022] NSWLEC 1686

Land and Environment Court

New South Wales

Medium Neutral Citation:

SRGD No. 2 Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1686

Hearing dates:

Conciliation conference held 26 July, 25 August and 6, 21 and 31 October 2022, final agreement filed 28 October 2022

Date of orders:

8 December 2022

Decision date:

08 December 2022

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Development Application DA0043/22 and reply upon amended plans and documents referred to in condition1 at Annexure A.

(2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $16,000 within 28 days of the date of these orders.

(3) The appeal is upheld.

(4) Consent is granted to Development Application DA0043/22 (as amended) for the demolition of existing buildings, removal of trees, consolidation of lots, the construction of 20 dwellings with one level of basement car parking, and associated civil and landscaping works at 6-12 Nulla Nulla Street, Turramurra, subject to the conditions contained at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – multi-dwelling housing development – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Ku-ring-gai Local Environmental Plan 2015, cll 4.1, 4.3, 4.4, 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 (Building Sustainability Index: BASIX) 2004

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

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)

Category:

Principal judgment

Parties:

SRGD No. 2 Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
A Lindeman-Jones (Solicitor) (Applicant)
K Arthur (Solicitor) (Respondent)

Solicitors:
Addisons Lawyers (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2022/115714

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA0043/22 (the DA) by Ku-ring-gai Council (the Respondent). The DA sought consent for demolition of existing structures, consolidation of existing lots and construction of 21 multi dwelling houses with basement parking, easement relocation, tree removal and associated site works on land at 6-12 Nulla Nulla Street, Turramurra (the site).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 July, 25 August and 6, 21 and 31 October 2022. I presided over the conciliation conference.

3. Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, the matter commenced with a site view limited in the number of participants before resuming in person and by Microsoft Teams.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the DA has been amended during the conciliation conference so as to resolve the contentions initially raised by the Respondent, which related to issues of site layout, exceedance of the relevant height of building and floor space ratio (FSR) development standards, inappropriate building setbacks and form, impaired visual privacy and shading, and inadequate landscape design outcomes, amongst other contentions.

6. The design amendments include changes to reduce the bulk and scale of the proposal, accompanied by a resultant reduction in its building height and FSR. The total number of dwellings has reduced from 21 to 20 and amendments to the site planning work to improve visual privacy between neighbouring dwellings while revised setbacks result in the proposal being made compatible with the desired future character of the area. Additionally, an amended landscape design satisfactorily resolves contentions regarding deep soil, plant species, ecology and water sensitive urban design.

7. 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 amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. The original DA was publicly notified for 30 days from 11 March 2022. Twenty-five submissions were received by the Respondent, which raised concerns including traffic and parking congestion, tree loss, excessive building bulk, scale and height, incompatible streetscape character, visual and acoustic privacy impacts and the cumulative impacts of construction.

11. At the site view on 26 July 2022, four resident objectors addressed the Court emphasising particular concerns for visual privacy, traffic and parking congestion, tree loss and ecology.

12. The parties agree that the amended DA satisfactorily resolves the matters raised in these public submissions. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

13. The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is the relevant local environmental planning instrument. The site is zoned R3 Medium Density Residential, and the proposed development - characterised as multi-dwelling housing - is permissible with consent.

14. The parties agree, and I am satisfied, that all principal development standards of the KLEP have been met by the amended DA. Specifically, this includes cll 4.1, 4.3 and 4.4, which deal with minimum subdivision lot size, height of building and floor space ratio respectively.

15. The parties agree, and I am satisfied, that pursuant to cl 5.10 of the KLEP, Heritage conservation, the site is not a listed heritage item but does adjoin a heritage item to the west. The Applicant has provided a Heritage Impact Assessment prepared by Giles Tribe and dated 1 August 2022. This assessment indicates that the proposed development will not have any adverse impact on the heritage significance of the adjoining heritage item.

16. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the KLEP, Acid sulfate soils, the site is mapped within a Class 5 Acid Sulfate Soils area. However, the site is not within 500m of any Class 1, 2, 3 or 4 Acid Sulfate Soils areas. Accordingly, the parties agree, and I am satisfied, that an Acid Sulfate Soils Management Plan is not required.

17. The parties agree, and I am satisfied, that pursuant to cl 6.2 of the KLEP, Earthworks, the Applicant has provided a Geotechnical Report prepared by Morrow Geotechnics dated 22 November 2021. This report concludes that the site is suitable for the proposed development. Agreed conditions of consent reflecting the report’s recommendations are imposed to mitigate against any potential impacts of earthworks.

18. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the KLEP, Biodiversity protection, the site is partially identified “Biodiversity" on the Terrestrial Biodiversity Map. The Applicant has provided an Ecological Statement prepared by Keystone Ecological dated 14 September 2022. I am satisfied the statement addresses the considerations set out at cl 6.3 of the KLEP and that amendments made to the landscape design meet the objectives of this clause.

19. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the KLEP, Riparian land and adjoining waterways, the site is identified as containing “Riparian Land Category 3a” on the Riparian Lands and Watercourses Map. The Applicant has provided an Ecological Statement prepared by Keystone Ecological dated 14 September 2022. I am satisfied the statement addresses the considerations set out at cl 6.4 of the KLEP and that amendments made to the proposal’s stormwater system and overland flow path meet the objectives of this clause.

20. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the KLEP, Stormwater and water sensitive urban design, the Applicant has provided a Stormwater Management Report dated 8 August 2022 and concept stormwater management plans prepared by Smart Structures Australia. The report concludes that water sensitive urban design principles incorporated into the proposed design will appropriately manage stormwater run-off across the site. The stormwater management design includes rainwater re-use, on-site detention and a piped stormwater easement on the western boundary of the site, meeting the objective of this clause.

21. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.6 of the KLEP, Requirements for multi dwelling housing and residential flat buildings. The site has an area greater than 1,800sqm and a width and depth greater than 30m.

22. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is an additional relevant environmental planning instrument. The parties agree the site has historically been used for residential purposes not associated with contamination. Consequently, I am satisfied the site is unlikely to be contaminated and further investigation is not required. Accordingly, I am satisfied the amended DA addresses the matters outlined in s 4.6 of SEPP Resilience and Hazards.

23. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. A BASIX certificate dated 18 October 2022 has been submitted with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.

24. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

25. The Court notes that:

1. Pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the agreement of the Respondent.

2. The Applicant has filed the amended DA with the Court on 27 October 2022.

Orders

26. The Court orders that:

1. Leave is granted to the Applicant to amend Development Application DA0043/22 and rely upon amended plans and documents referred to in condition 1 at Annexure A.

2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $16,000 within 28 days of the date of these orders.

3. The appeal is upheld.

4. Consent is granted to Development Application DA0043/22 (as amended) for the demolition of existing buildings, removal of trees, consolidation of lots, the construction of 20 dwellings with one level of basement car parking, and associated civil and landscaping works at 6-12 Nulla Nulla Street, Turramurra, subject to the conditions contained at Annexure A..

………………………..

M Pullinger

Acting Commissioner of the Court

Annexure A (492560, pdf)

Architectural Drawings (31991187, pdf)

**********

Decision last updated: 08 December 2022