Turramurra Avenue Development Pty Ltd v Ku-ring-gai Council

[2024] NSWLEC 1638

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Turramurra Avenue Development Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1638

Hearing dates:

Conciliation conference on 1 July, 16 July, 5 August, 16 August and 26 August 2024

Date of orders:

11 October 2024

Decision date:

11 October 2024

Jurisdiction:

Class 1

Before:

Pullinger AC

Decision:

The Court orders that:

(1) Leave is granted to the Applicant to amend Modification Application MOD0060/23 and rely on the amended plans and documents listed at Condition 1 of Annexure A.

(2) The appeal is upheld.

(3) Development Consent DA0002/22 is modified subject to the conditions of consent set out at Annexure A.

Development Consent DA0002/22 (as modified) is subject to the consolidated conditions of consent set out at Annexure B.

Catchwords:

MODIFICATION APPLICATION – residential apartment development – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.46, 4.55, 4.56, 8.9

Land and Environment Court Act 1979, s 34

Water Management Act 2000, ss 89, 90 and 91

Environmental Planning and Assessment Regulation 2021, ss 27, 102, 113

Ku-ring-gai Local Environmental Plan 2015, cll 4.1, 4.3, 4.4, 4.6, 5.10

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing) 2021, Ch 4, s 147, Sch 9

Cases Cited:

Turramurra Avenue Development Pty Ltd v Ku-Ring-Gai Council [2022] NSWLEC 1562

Texts Cited:

NSW Department of Planning, Apartment Design Guide (2015)

Category:

Principal judgment

Parties:

Turramurra Avenue Development Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
N Whatmough (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2023/445350

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Turramurra Avenue Development Pty Ltd (the Applicant) against the deemed refusal of Modification Application MOD0060/23 (the MA) by Ku-ring-gai Council (the Respondent).

2. At the date of its lodgement, the MA sought to modify Development Consent DA DA0002/22 (the parent DA) which granted consent for the construction of two residential apartment buildings containing 42 units above a shared common basement with 91 car spaces and associated landscape at 17-21 Gilroy Road and 14-18 Turramurra Avenue, Turramurra (the site).

3. Consent for the parent DA was granted by the Court on 14 October 2022 in Turramurra Avenue Development Pty Ltd v Ku-Ring-Gai Council [2022] NSWLEC 1562.

4. An earlier Modification Application (MOD0055/23) was lodged on 24 May 2023 and approved by the Respondent on 20 October 2023.

5. Demolition and early construction phase works have commenced lawfully on the site.

6. The MA which forms the subject of this appeal was lodged with the Respondent on 9 June 2023.

7. The Applicant filed a Class 1 Application with the Court against the Respondent’s deemed refusal of the MA on 13 December 2023.

8. At the date of its lodgement, the MA sought approval for the following modifications to the parent DA:

1. Removal of columns adjacent to pile walling.

2. Changes to bin room column and parking.

3. Adjustment to basement walling in two locations.

4. Changes to plant area and storage area located in underground area of ground floor.

5. Internal plan changes to ground floor apartment BG01.

6. Changes to external columns.

7. Changes to window.

8. Amendments to apartments 401, 403 and 501 within Building B.

9. Increase to height of building in location of lift overrun.

10. Changes to floor levels.

11. Changes to balustrading at Building B.

12. Change to share of the approved pool.

13. Changes to lift lobbies to accommodate additional service cupboard.

14. Change to resultant roof heights, including hobs and skylight arrangements.

15. Provision of plant room ventilation.

16. Removal of approved sun hoods.

9. 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 on 1 July, 16 July, 5 August, 16 August and 26 August 2024. I presided over the conciliation conference.

10. 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 approval to an amended MA, subject to conditions.

11. Of note, the MA has been amended during the conciliation conference to resolve the contentions pressed by the Respondent, which included concerns for impacts arising from excessive building bulk, scale and related inconsistency with the allowable floor space ratio (FSR), inadequate solar shading, and inappropriate materials and colours given the site’s heritage context.

12. During the conciliation conference, with the approval of the Respondent, the Applicant further amended the MA to relocate certain air conditioning equipment. This led to additional assessment now also captured in the parties’ agreement.

13. 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 4.55 of the EPA Act to modify the existing DA.

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

15. In that regard, I am satisfied the MA has been made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

16. Pursuant to s 4.56(2)(a) of the EPA Act, I am satisfied the amended MA remains substantially the same as the parent DA. The amendments are relatively minor, there is no change to the proposed use, no change to the number of levels above or below ground, no change to the number of dwellings, and the general appearance of the building continues to present as five-storey residential apartment development.

17. The parties agree, and I am satisfied, that the MA was notified in accordance with the Respondent’s Community Participation Plan. The MA was notified from 30 June to 14 July 2023 and the Respondent received two submissions raising concerns for a wide range of issues, including:

1. Reduction of deep soil, reduction of landscaping and absorption of rainwater, impacts to planting and overdevelopment of the site.

2. Non-compliance with cl 4.4 - Floor space ratio (FSR) - of the Ku-ring-gai Local Environmental Plan 2015 (KLEP).

3. Concern regarding changes to apartment 401 which will impact on the visual amenity of the apartment, impacts on the streetscape and within the site.

4. Concern regarding visual impacts associated with the proposed eave extension of apartment 401.

5. Concern regarding proposed changes to apartment 403 giving rise to additional FSR and building bulk, scale, impacts to amenity and streetscape.

6. Concern regarding changes to apartment 501 giving rise to additional FSR.

7. Concern regarding proposed increase in building height and resultant adverse impacts to neighbouring properties and the streetscape, which are inconsistent with the character of the area and heritage significance of surrounding properties.

8. Concern regarding proposed changes to floor levels, increased building heights, increased overshadowing impacts, and amenity and streetscape impacts.

9. Concern regarding the proposed removal of sun hoods, resulting in insufficient architectural relief, and impacts on residential amenity including privacy and climate control.

10. Impacts upon local traffic and parking, worsening traffic conditions, concern regarding pedestrian safety.

11. Concern regarding removal of trees, loss of biodiversity values, ecosystems, wildlife, view loss, oxygen, carbon storage and soil stabilisation.

18. The amended MA was notified a second time between 23 July and 6 August 2024. Two further submissions were received by the Respondent restating many of the concerns noted above.

19. The parties agree, and I am satisfied, the amended MA adequately addresses the concerns raised by objectors.

20. The parties agree, and I am satisfied, that the KLEP is the relevant local environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development - characterised as residential apartment development - is permissible with consent, and that the amended MA maintains the objectives of the R4 zone.

21. The parties agree, and I am satisfied, that pursuant to cl 4.1 of the KLEP - Minimum subdivision lot size - the site continues to comply with the relevant minimum lot size development standard.

22. The parties agree, and I am satisfied, that pursuant to cl 4.3 of the KLEP - Height of buildings - the site is subject to a 17.5m height control. The parent DA was granted consent with a building height exceedance of 360mm. This exceedance was accompanied by a written request (pursuant to cl 4.6 of the KLEP) which justified the variance of the development standard.

23. The amended MA includes a further exceedance of the building height development standard by a maximum of 240mm, however as the amended MA is made pursuant to s 4.55 of the EPA Act, no further cl 4.6 written request to vary the FSR development standard is required.

24. The parties agree, and I am satisfied, that pursuant to cl 4.4 of the KLEP - Floor space ratio (FSR) - the parent DA was consistent with the relevant FSR development standard of 1.3:1.

25. The amended MA increases the FSR of the proposed building to 1.328:1, however as the MA is made pursuant to s 4.55 of the EPA Act, a further cl 4.6 written request to vary the FSR development standard is not required.

26. In any case, I note that the increase in FSR associated with this MA is configured in a manner that does not materially alter the approved building bulk, form or scale and does not give rise to unreasonable additional impacts.

27. Pursuant to cl 5.10 of the KLEP - Heritage conservation - the parties agree, and I am satisfied, that the MA brings no unreasonable adverse impacts to heritage items in the vicinity of the site.

28. The parties agree, and I am satisfied, that the amended MA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). Pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), an amended BASIX Certificate No. 1260806M_08 dated 5 July 2024, has been provided by the Applicant. Conditions of consent are imposed to ensure compliance with the BASIX certificate.

29. The parties agree, and I am satisfied, that the amended MA remains subject to the provisions of Ch 4 of State Environmental Planning Policy (Housing) 2021 (SEPP Housing). Relevantly, s 147 of SEPP Housing requires the consent authority to consider a range of matters prior to modifying the parent DA.

30. Accordingly, and pursuant to s 102 of the EPA Reg, the Applicant's architect Mr Kevin Cheong (NSW registered architect 9975), has prepared a Design Verification Statement confirming that the amended MA does not diminish or detract from the design quality or compromise the design intent of the parent DA for which consent was granted, and stating how the design quality principles set out at sch 9 of SEPP Housing and the objectives of Parts 3 and 4 of the NSW Apartment Design Guide have been achieved.

31. I am satisfied that the amended MA appropriately addresses the requirements of SEPP Housing.

32. The parties agree, and I am satisfied, that the amended MA involves integrated development as defined by s 4.46 of the EPA Act as it requires approval under ss 89, 90 and 91 of the Water Management Act 2000. The MA was referred to Water NSW which confirmed that its general terms of approval, originally provided on 3 August 2023, do not change as a result of the amended MA.

33. 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.

34. The Court notes that:

1. Pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the MA with the approval of the Respondent.

2. The Applicant has filed the amended MA with the Court on 30 August 2024.

Orders

35. The Court orders that:

1. Leave is granted to the Applicant to amend Modification Application MOD0060/23 and rely on the amended plans and documents listed at Condition 1 of Annexure A.

2. The appeal is upheld.

3. Development Consent DA0002/22 is modified subject to the conditions of consent set out at Annexure A.

4. Development Consent DA0002/22 (as modified) is subject to the consolidated conditions of consent set out at Annexure B.

M Pullinger

Acting Commissioner of the Court 

Annexure A 

Annexure B 

Architectural Plans 

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Amendments

23 May 2025 - Corrected legal representation for the Respondent.

30 September 2025 - Removed underlining

Decision last updated: 30 September 2025