Teda Eastern Coast Pty Ltd v Ku-ring-gai Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Teda Eastern Coast Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1128

Hearing dates:

Conciliation Conference on 2 February 2022

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.
(2) Development Application No. 0341/21 for the demolition of existing structures and construction of a two storey seniors’ living development comprising five self-contained dwellings over basement parking, at 26 Russell Avenue, Lindfield, is approved, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – seniors housing development – contravention of development standards – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Environmental Planning and Assessment Regulation 2000, cll 2, 55, Sch 6

Ku-ring-gai Local Environmental Plan 2015, cl 4.6

Land and Environment Court Act 1979, ss 34, 39

State Environmental Planning Policy (Housing) 2021, Sch 7, cl 2

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, cll 26, 40

Standard Instrument (Local Environmental Plans) Order 2006, cl 4.6

Cases Cited:

Australian Nursing Home Foundation Ltd v Ku-ring-gai Council [2019] NSWLEC 1205

Cumming v Cumberland Council (No 2) [2021] NSWLEC 117

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73

Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Category:

Principal judgment

Parties:

Teda Eastern Coast Pty Ltd (Applicant)
Ku-ring-gai Municipal Council (Respondent)

Representation:

Counsel:
S. Kondilios (Solicitor) (Applicant)
C. Morton (Solicitor) (Respondent)

Solicitors:
Hall & Wilcox Lawyers (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2021/266181

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0341/21 for the construction of a two storey seniors’ living development comprising five self-contained dwellings over basement parking (the proposal) at 26 Russell Avenue, Lindfield (the site) by Ku-ring-gai Municipal Council (the Council).

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 2 February 2022. 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.

4. 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.…