Urban Peninsula Pty Limited v Ku-Ring-Gai Council (No 2)

[2011] NSWLEC 1150

Land and Environment Court

New South Wales

Medium Neutral Citation:

Urban Peninsula Pty Limited v Ku-Ring-Gai Council (No 2) [2011] NSWLEC 1150

Hearing dates:

7 June 2011

Decision date:

07 June 2011

Jurisdiction:

Class 1

Before:

Morris C

Decision:

1.The application as amended is upheld;

2.Pursuant to section 96(8) of the Environmental Planning and Assessment act 1979, the development consent grated by the Court on 21 April 2006 in proceedings No. 10110 of 2005 (as subsequently amended by the slip rule) 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 to conditions 1 (in respect to plan particulars), 50, 57, 73 and 82 as annexed hereto and marked "A".

Catchwords:

CONSENT ORDERS - Modification of conditions

Legislation Cited:

Environmental Planning and Assessment Act 1979

Cases Cited:

Urban Peninsula Pty Limited v Ku-Ring-Gai Council [2006] NSWLEC 196
Urban Peninsula Pty Limited v Ku-Ring-Gai Council [2011] NSWLEC 1144

Category:

Principal judgment

Parties:

Urban Peninsula Pty Limited (Applicant)
Ku-Ring-Gai Council (Respondent)

Representation:

Solicitors:
Mr D Briggs
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-one dwellings at 2-6 Buckingham Road, Killara.

1. That part of the proceedings that applied to the deferred commencement conditions was expedited and I heard and determined the matters on 13 April 2011, Urban Peninsula Pty Limited v Ku-Ring-Gai Council [2011] NSWLEC 1144. The application as amended was upheld in part and in particular, the Court was satisfied that the applicant had satisfied the matters in the deferred commencement consent conditions. The consent granted is now operative and the applicant is seeking further modification of conditions.

1. The remaining matters to be determined are conditions 50, 57, 70, 73 and 82. In addition, the parties seek to amend condition 1 in terms of plan references to ensure that the approved plans are those referred to in the original decision.

1. The issues sought to be addressed in the residual conditions in dispute in the proceedings are:

Condition 50: access to basement at all times for waste collection;

Condition 57: reasonableness of minimum dimension on root systems required to be cut under the supervision of an arborists;

Condition 70: Timing of payment of Long Service Levy fees;

Condition 73: Timing of payment and quantum of section 94 contributions;

Condition 82: Lawfulness of a requirement for the payment of a landscape bond.

1. The applicant no longer presses the modification sought to condition 70.

1. The parties have agreed on the modifications and are seeking orders from the Court. Alternate agreed conditions have been provided. Accordingly, I must be satisfied that the modifications sought are within power.

1. With regard to conditions 50 and 57, I am satisfied that the modified conditions are acceptable. In relation to condition 82, I am satisfied that there is no power to impose such a condition and that it should be deleted.

1. The modifications sought to conditions 1 (in relation to plan numbers) and condition 73 with regard to the amount and timing of payment of contributions under s 94 of the Act are a result of the amendments made to the plans during the 2006 hearing. From the evidence of Mr Shapiro and a review of the file, it is apparent that the plans referred to in that judgment approved by the Court are those plans tendered in those proceedings as exhibit 17. Those plans reflect the changes to the originally proposed thirty-five units, to the approved thirty-one and also reflect changes made to address overshadowing, site coverage, landscaping, setbacks, bulk, height and scale as discussed in the judgment. Accordingly, it is appropriate that this error is addressed as part of these proceedings.

1. As the s 94 contributions were based on thirty-five units and only thirty-one were approved, the quantum of that contribution should be reduced so that it is paid for thirty-one units only.

1. I find, based on the evidence provided 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. By consent, I make the following Orders:

(1)   The application as amended is upheld;

(2) Pursuant to section 96(8) of the Environmental Planning and Assessment Act 1979, the development consent grated by the Court on 21 April 2006 in proceedings No. 10110 of 2005 (as subsequently amended by the slip rule) 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 to conditions 1 (in respect to plan particulars), 50, 57, 73 and 82 as annexed hereto and marked "A".

Sue Morris

Commissioner of the Court

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Decision last updated: 09 June 2011