Telegraph St Ives Development Pty Ltd v Ku-ring-gai Council

[2023] NSWLEC 1528

Land and Environment Court

New South Wales

Medium Neutral Citation:

Telegraph St Ives Development Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1528

Hearing dates:

Conciliation Conference on 18 July 2023

Date of orders:

14 September 2023

Decision date:

14 September 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The application is granted.

(2) Development consent DA0415/16 for demolition of an existing dwelling and construction of 10 townhouses for seniors living including basement car parking, drainage/infrastructure works, and landscaping, is modified in the terms set out in Annexure A.

(3) Development consent DA0415/16 as modified by the Court is Annexure B.

Catchwords:

APPLICATION – an application to modify a consent granted by the Court – seniors living – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Environmental Planning and Assessment Regulation 2021, ss 100, 113

Land and Environment Court Act 1979, s 34

Cases Cited:

Brass Homes Pty Limited v Ku-ring-gai Council [2018] NSWLEC 1580

Category:

Principal judgment

Parties:

Telegraph St Ives Development Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
D Tyrell (Solicitor) (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
Tyrrell’s Planning Law (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2023/93605

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings are an application to the Court to modify the development consent granted by the Court in Brass Homes Pty Limited v Ku-ring-gai Council [2018] NSWLEC 1580 for the construction of 10 townhouse dwellings for seniors living, including basement car parking, drainage/ infrastructure works and landscaping at 76 Telegraph Road, Pymble. The application seeks to modify the approved roof form, internal configuration, basement layout and driveway, and materials and finishes. The application is made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), which gives the Court the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders on the application, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 18 July 2023. I presided over the conciliation conference.

3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The final signed agreement was filed on 4 September 2023, following the approval by the respondent, as the consent authority as defined under the EPA Act, of an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments made in the amended modification application relate to the roof form of Block A, changes to the materials and finishes, and the provision of a Heritage Statement prepared by GBA Heritage dated 28 July 2023.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The signed agreement was accompanied by a jurisdictional note, which sets out a number of planning instruments that apply to the site. Based on the jurisdictional note and the documents referred to therein, I have considered any matters of relevance that are required to be considered pursuant to ss 4.55(3) and 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the reason that the modification concerns alterations to the roof form, the internal configuration, basement design and materials and finishes, and does not alter any essential element or result in any change to the type or size of the development, which remains for the construction of 10 townhouses for seniors living.

6. The modification application was notified between 10 and 24 May 2023, and I have considered the issues raised in the two submissions received in response.

7. Consistent with the requirements of s 100(3)(a) of the EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 31 July 2023.

8. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

10. The Court notes that:

1. The Respondent has approved, under section 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Modification Application DA0415/16 to rely upon the following amended plans and documents (Amended Modification Application):

1. Architectural Plans, prepared by Gelder Group Architects dated 18 July 2023:

1. S4.56-01 Revision K

2. S4.56-02 Revision K

3. S4.56-03 Revision K

4. S4.56-04 Revision L

5. S4.56-05 Revision K

6. S4.56-06 Revision K

7. S4.56-07 Revision K

8. S4.56-08 Revision K

9. S4.56-08A Revision K

10. S4.56-09 Revision K

11. S4.56-010 Revision K

12. S4.56-011 Revision K

13. S4.56-012 Revision K

2. Heritage Statement prepared by GBA Heritage dated 28 July 2023.

3. Further Amended Statement of Environmental Effects prepared by Minto Planning Services dated 31 July 2023.

4. Amended Landscaping Plans Issue K prepared by Paul Scrivener Landscape dated 19 July 2023.

5. Amended Stormwater plans prepared by ACOR Consultants issue G dated 27 July 2023.

6. BASIX Certificate prepared by Building Sustainability Assessments, Certificate Number: 1360492M_03, dated 31 July 2023.

11. The Court orders that:

1. The application is granted.

2. Development consent DA0415/16 for demolition of an existing dwelling and construction of 10 townhouses for seniors living including basement car parking, drainage/infrastructure works, and landscaping, is modified in the terms set out in Annexure A.

3. Development consent DA0415/16 as modified by the Court is Annexure B.

J Gray

Commissioner of the Court

93605.23 Annexure A

93605.23 Annexure B

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Decision last updated: 14 September 2023