Urban Peninsula Pty Limited v Ku-Ring-Gai Council

[2011] NSWLEC 1144

Land and Environment Court

New South Wales

Medium Neutral Citation:

Urban Peninsula Pty Limited v Ku-Ring-Gai Council [2011] NSWLEC 1144

Hearing dates:

13 April 2011

Decision date:

13 April 2011

Jurisdiction:

Class 1

Before:

Morris C

Decision:

1.The application as amended is upheld in part.

2.Pursuant to s 96(8) of the Environmental Planning and Assessment Act 1979, the development consent granted by the Court on 21 April 2006 (Proceedings No 10110 of 2005) for the demolition of existing structures and the construction of a residential flat building over basement car-parking with associated landscaping is modified in respect of Conditions 1 (in respect to plan particulars), 85, 86, 86A, 86B, 90, 91, 93 and 94A subject to the conditions annexed hereto and marked "A".

3.For the purposes of cl 95(5) of the Environmental Planning and Assessment Regulation 2000 the Court notifies the Applicant that it is satisfied as to the matters in deferred commencement consent conditions A(1) and A(2).

4.The proceedings are stood over for further directions before the Registrar on 29 April 2011.

5.The exhibits, other than exhibits A and C, are returned.

Catchwords:

CONSENT ORDERS - Whether Deferred Commencement conditions are satisfied - Modification of consent conditions

Legislation Cited:

Environmental Planning and Assessment Act, 1979; Environmental Planning and Assessment Regulation 2000

Cases Cited:

Urban Peninsula Pty Limited v Ku-Ring-Gai Council [2006] NSWLEC 196

Category:

Principal judgment

Parties:

Urban Peninsula Pty Limited (Applicant)

Ku-Ring-Gai Council (Respondent)

Representation:

Solicitors:
Mr N Eastman
D G Briggs & Associates (Applicant)

Mr G Shapiro
Norton Rose Australia (Respondent)

File Number(s):

10235 of 2011

Judgment

This determination was given extemporaneously and has been edited prior to publication.

1. This is an appeal under s 96(8) of the Environmental Planning and Assessment Act, 1979 (the Act) which seeks to modify a development consent issued by the Court in relation to matter Urban Peninsula Pty Limited v Ku-Ring-Gai Council [2006] NSWLEC 196. That consent was issued on a deferred commencement basis and authorised the demolition of existing dwellings and the construction of a five storey residential flat building containing thirty-five dwellings at 2-6 Buckingham Road, Killara.

1. Leave has been granted by the Court for those matters in the proceedings which affect the commencement of works and operation of the consent to be expedited as the time period in which the consent will expire is approaching, that date being April 21, 2011, unless it is found that the deferred commencement conditions have been satisfied or the consent modified to delete all of the deferred commencement conditions.

1. The issues between the parties, the subject of this expedited hearing, have been resolved and they are seeking orders from the Court.

1. The matters the subject of the appeal are the deferred commencement provisions of the consent and those conditions that require the preparation and installation of erosion and sediment controls on the site, stormwater matters and the consolidation of allotments.

1. The applicant was initially seeking modification to the deferred commencement conditions by deletion of those conditions on the basis that the requirements of the conditions have now been met. Those conditions relate to the finalisation of all hydraulic design and certification of works and the obtaining and registration of a drainage easement over downstream properties.

1. The applicant has tendered evidence that the requirements of the two deferred commencement conditions have now been satisfied and the council accepts that the conditions have been met. I do not consider that it is appropriate to delete the conditions, rather than to determine whether those conditions have been satisfied in accordance with the requirements of cl 95(5) of the Environmental Planning and Assessment Regulation 2000 (the Regulation) .

1. The draft consent orders sought include, in condition 1 of the General Conditions of Consent, the addition of reference to the approved plans that reflect the requirements of condition 1 to Schedule A of the consent. This provides further certainty that the drainage issues which were a contention in the 2006 hearing and are the matters included in the deferred commencement conditions, are properly addressed.

1. The conditions that relate to the obtaining of construction certificates and the timing, implementation and maintenance of erosion and sediments controls, stormwater drainage works and management (conditions 86, 90, 91 and 94) have been considered by the parties' experts and it is agreed that modification of those conditions to reflect the staging of works proposed by the applicant is appropriate.

1. Agreement has also been reached with regard to the timing of the registration of the plan of consolidation of the allotments (condition 85) so that this is now to occur prior to the issue of any interim occupation certificate. The original condition referred to an occupation certificate. Minor changes which alter the timing of approvals with regard to a decision by the electricity provider are also proposed (condition 93) and agreed.

1. Alternate agreed conditions have been provided to the Court in the draft consent orders.

1. There are two matters which I must decide, firstly, whether the deferred commencement conditions have been satisfied and secondly, whether the modifications sought have legal effect.

1. I find, based on the evidence provided and in particular that evidence of the registration of the drainage easement included as part of exhibit 1 and the drainage plans tendered as exhibit C, that pursuant to the provisions of cl 95(5) of the Regulation, the deferred commencement provisions of the consent issued by the Court on 21 April 2006, to DA No 1353/04, have been satisfied.

1. From the evidence provided, I am also satisfied that the modifications to the General Conditions of Consent sought are appropriate and that the consent should be modified to reflect the agreed changes to those conditions.

1. The remaining conditions of consent, part of the original application to the Court but not part of these proceedings, are ones which the council could resolve pursuant to the provisions of s 96(8) of the Act and the matter should be listed before the Registrar to finalise the outstanding issues.

1. Accordingly, I find that it is appropriate to grant the orders sought.

1. By consent, I make the following Orders:

1.   The application as amended is upheld in part.

2. Pursuant to s 96(8) of the Environmental Planning and Assessment Act 1979, the development consent granted by the Court on 21 April 2006 (Proceedings No 10110 of 2005) for the demolition of existing structures and the construction of a residential flat building over basement car-parking with associated landscaping is modified in respect of Conditions 1 (in respect to plan particulars), 85, 86, 86A, 86B, 90, 91, 93 and 94A subject to the conditions annexed hereto and marked "A".

3. For the purposes of cl 95(5) of the Environmental Planning and Assessment Regulation 2000 the Court notifies the Applicant that it is satisfied as to the matters in deferred commencement consent conditions A(1) and A(2).

4.   The proceedings are stood over for further directions before the Registrar on 29 April 2011.

5.   The exhibits, other than exhibits A and C, are returned.

Sue Morris

Commissioner of the Court

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Decision last updated: 07 June 2011