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

Land and Environment Court

New South Wales

Medium Neutral Citation: Turramurra Avenue Development Pty Ltd v Ku-Ring-Gai Council [2022] NSWLEC 1562
Hearing dates: Conciliation conference held 19 July 2022, 5 and 19 August 2022, and 1 and 27 September 2022, final agreement filed 27 September 2022
Date of orders: 14 October 2022
Decision date: 14 October 2022
Jurisdiction: Class 1
Before: Pullinger AC
Decision:
The Court orders that:
(1) Leave is granted to the Applicant to amend Development Application DA 0002/22 and rely on the amended plans and documents reflected at condition 1 of 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 $6,600 within 35 days of the date of the parties’ signed agreement having been filed with the Court.
(3) The Applicant’s written request, pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the KLEP, is upheld.
(4) The appeal is upheld.
(5) Consent is granted to Development Application DA 0002/22 (as amended) for the demolition of existing buildings and construction of two residential flat buildings containing 42 units above a shared common basement with 91 car spaces and associated landscape works at 17-21 Gilroy Road and 14-18 Turramurra Avenue, Turramurra subject to the conditions contained at Annexure A.

Catchwords:
DEVELOPMENT APPLICATION – residential apartment development – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.15
Environmental Planning and Assessment Regulation 2000, cll, 50, 55
Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 4.3, 4.6, 5.10, 6.1, 6.2, 6.3, 6.5, 6.6
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021
State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development
Water Management Act 2000

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

Category: Principal judgment
Parties: Turramurra Avenue Development Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel:
L Cone (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Addisons (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2022/97284
Publication restriction: No

Judgment

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 DA 0002/22 (the DA) by Ku-ring-gai Council (the Respondent). The DA sought consent for the demolition of existing structures and construction of two residential flat buildings comprising 42 units with basement car parking and associated site works, site consolidation and tree removal at 17-21 Gilroy Road and 14-18 Turramurra Avenue, Turramurra (the site).
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 19 July 2022, 5 and 19 August 2022, and 1 and 27 September 2022. I presided over the conciliation conference.
Consistent with the Court’s COVID-19 Pandemic Arrangements Policy, published in February 2022, the matter commenced with a site view before resuming by Microsoft Teams.
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.
Whilst the amended DA remains largely consistent with the original DA, a series of design changes cumulatively resolve the contentions raised by the Respondent, which in turn relate to the calculation of gross floor area, the relationship of the proposal to an anticipated future new road, the nature of the proposed building address and entries, internal residential amenity, natural light and ventilation, the provision of communal open space and landscape design quality amongst other contentions.
Of particular note, the amended DA has been reconfigured to improve the building address, landscape design response and presentation to the anticipated future new street, and has resolved the Respondent’s concerns for the presentation of the proposed buildings and way-finding across the site. Additional technical material has been provided by the Applicant to address the Respondent’s concerns for inadequate information. The amended DA continues to comprise a total of 42 apartments and a relatively minor height exceedance is proposed in a form supported by the Respondent.
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.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised.
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.
The original DA was publicly notified from 17 February to 19 March 2022. Fourteen submissions were received by the Respondent. Issues raised in these submissions include a number of matters reflected in the Respondent’s contentions, but also include concerns for traffic congestion, parking and safety, the cumulative impacts of development and renewal evident in the local area, tree removal, and the impacts of construction noise and vibration.
The amended DA was re-notified from 5 September to 19 September 2022. Two further submissions were received during this second public notification period. The parties agree that the final design changes incorporated within the amended DA satisfactorily resolve 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.
The parties agree, and I am satisfied, the amended DA is defined as Integrated Development and may require approval under the Water Management Act 2000. Consequently, and pursuant to s 4.46 of the EPA Act, General Terms of Approval have been issued by Water NSW on 19 July 2022 and are incorporated into the agreed conditions of consent.
The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is a relevant environmental planning instrument. The site is zoned R4 High Density Residential and the proposed development - characterised as residential apartment building - is permissible with consent.
The parties agree, and I am satisfied, that appropriate consideration has been given to the zone objectives set out at cl 2.3(2) of the KLEP and that the proposed development is consistent with these objectives. In particular the relevant objectives include to provide for the housing needs of the community within a high density residential environment, to provide a variety of housing types within a high density residential environment, and to provide for high density residential housing close to public transport, services and employment opportunities.
The parties agree, and I am satisfied, that all principal development standards of the KLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings - which establishes a height of buildings standard of 17.5m for the site.
In such an instance, cl 4.6(3) of the KLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.
Clause 4.6(4) of the KLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.
Additionally, cl 4.6(4)(b) of the KLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.
As required by cl 4.6 of the KLEP, the Applicant has provided a written request (prepared by Mecone and dated July 2022) seeking to vary the height of buildings development standard.
The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard for the following reasons.
The objectives of the KLEP Zone R4 High Density Residential land use zone include providing for the housing needs of the community within a high density residential environment, providing a variety of housing types and providing residential development in accessible locations close to public transport. I am satisfied the amended DA meets these objectives.
The objectives of cl 4.3 of the KLEP seek to ensure that proposed building height is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres, enabling built form that is compatible with the size of the land to be developed, and to establish a transition in scale to protect local amenity. I am satisfied the amended DA meets these objectives.
The amended DA exceeds the 17.5m height of building standard. The development proposes a maximum height of 17.86m which is 360mm greater than the standard, or a variation of approximately 2%.
The DA has been amended to resolve the contentions previously raised by the Respondent, and in particular the fifth storey of the building is set back behind the lower levels to minimise any visual impacts and the perceived scale of the proposal across the site frontages. A heigh exceedance associated with the lift overrun is centrally located within the site and is not visible from the ground level at the property boundaries. I am satisfied the variation to the height of building development standard brings with it no material environmental impacts or additional overshadowing.
Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variations to maximum building height.
The parties agree, and I am satisfied, that pursuant to cl 5.10 of the KLEP, Heritage conservation, the Applicant has provided a Heritage Impact Statement, prepared by Giles Tribe Architects and also amended the DA in a manner that appropriately responds to the heritage context of the site, including by incorporating red brick masonry elements into the proposed building façade, amending the upper-most floor of Building B, increasing setbacks to the anticipated future new street, and by omitting front fences to the primary street frontages. Each of these amendments improves the relationship between the proposal and identified heritage items at the Turramurra Uniting Church located to the south of the site at 10 Gilroy road, as well as with heritage items at 2 Nulla Nulla Street and 18-22 Gilroy Road.
Consequently, the parties agree, and I am satisfied, that the proposed development creates no unreasonable adverse impacts on the heritage items in the vicinity of the site, and as such satisfies the requirements at cl 5.10(5) of the KLEP.
The parties agree, and I am satisfied, that pursuant to cl 6.1 of the KLEP, Acid sulfate soils, the site is mapped as Class 5. The proposed development satisfies the considerations within cl 6.1 and I am satisfied the site is suitable for the proposed development.
The parties agree, and I am satisfied, that pursuant to cl 6.2 of the KLEP, Earthworks, the Applicant has provided a Proposed Residential Redevelopment Geotechnical Investigation Report, prepared by Cardno and dated 28 June 2022. This report demonstrates the amended DA satisfies the considerations set out at cl 6.2 and I am satisfied the site is suitable for the proposed development.
The parties agree, and I am satisfied, that pursuant to cl 6.3 of the KLEP, Biodiversity protection, the site is not identified as being located on land identified as containing terrestrial biodiversity. The parties agree that the proposed development satisfies the considerations within cl 6.3 and I am satisfied the site is suitable for the proposed development.
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 stormwater management plans prepared by Quantum Engineers and dated 16 July 2022. The parties agree the proposed development satisfies the considerations within cl 6.5 and I am satisfied the site is suitable for the proposed development.
The parties agree, and I am satisfied, that pursuant to cl 6.6 of the KLEP, Requirements for multi dwelling housing and residential flat buildings, the Applicant has provided a survey, prepared by Veris and dated 7 June 2022. As demonstrated by this survey plan, the site meets the minimum site area requirements set out at cl 6.6 and I am satisfied the site is suitable for the proposed development.
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. Having regard to the historic use of the site for residential purposes, the parties agree the land is unlikely to be contaminated. Accordingly, I am satisfied the amended DA addresses the matters outlined in s 4.6 of SEPP Resilience and Hazards.
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 (SEPP BASIX). An amended BASIX certificate, dated 2 September 2022 has been submitted with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.
The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the Applicant's architect, Giles Tribe Architects and its nominated architect Mr Stuart Hill (NSW registered architect 6459), has prepared a Design Verification Statement, dated 11 August 2022, fulfilling the requirements of cl 50(1AB) of the EPA Reg, and confirming that the final amended DA achieves the Design Quality Principles set out in SEPP 65.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Infrastructure) is an additional relevant environmental planning instrument. Having regard to the proposed development, I am satisfied it does not require assessment against SEPP Infrastructure as it does not constitute traffic-generating development and has no address or interface with a classified road.
The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument. Having regard to Ch 9 of SEPP BC, Hawkesbury Nepean River, I am satisfied the amended DA achieves the relevant aims of this chapter since the amended DA is consistent with relevant provisions of the Respondent’s Development Control Plan, and the proposal is unlikely to result in pollution of nearby waterways. Agreed conditions of consent are to be imposed dealing with erosion and sediment control.
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.
The Court notes that:

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.

The amended DA was uploaded to the NSW Planning Portal on 20 September 2022.

The Applicant has filed the amended DA with the Court on 21 September 2022.

Orders

The Court orders that:

Leave is granted to the Applicant to amend Development Application DA 0002/22 and rely on the amended plans and documents reflected at condition 1 of Annexure A.

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 $6,600 within 35 days of the date of the parties’ signed agreement having been filed with the Court.

The Applicant’s written request, pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the KLEP, is upheld.

The appeal is upheld.

Consent is granted to Development Application DA 0002/22 (as amended) for the demolition of existing buildings and construction of two residential flat buildings containing 42 units above a shared common basement with 91 car spaces and associated landscape works at 17-21 Gilroy Road and 14-18 Turramurra Avenue, Turramurra subject to the conditions contained at Annexure A.

………………………..

M Pullinger

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 14 October 2022

Medium Neutral Citation:	Turramurra Avenue Development Pty Ltd v Ku-Ring-Gai Council [2022] NSWLEC 1562
Hearing dates:	Conciliation conference held 19 July 2022, 5 and 19 August 2022, and 1 and 27 September 2022, final agreement filed 27 September 2022
Date of orders:	14 October 2022
Decision date:	14 October 2022
Jurisdiction:	Class 1
Before:	Pullinger AC
Decision:	The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA 0002/22 and rely on the amended plans and documents reflected at condition 1 of 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 $6,600 within 35 days of the date of the parties’ signed agreement having been filed with the Court. (3) The Applicant’s written request, pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at clause 4.3 of the KLEP, is upheld. (4) The appeal is upheld. (5) Consent is granted to Development Application DA 0002/22 (as amended) for the demolition of existing buildings and construction of two residential flat buildings containing 42 units above a shared common basement with 91 car spaces and associated landscape works at 17-21 Gilroy Road and 14-18 Turramurra Avenue, Turramurra subject to the conditions contained at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – residential apartment development – cl 4.6 written request – height of buildings – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.46, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll, 50, 55 Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 4.3, 4.6, 5.10, 6.1, 6.2, 6.3, 6.5, 6.6 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 9 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Water Management Act 2000
Texts Cited:	Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022)
Category:	Principal judgment
Parties:	Turramurra Avenue Development Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: L Cone (Solicitor) (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2022/97284
Publication restriction:	No