Vigor Master Pty Ltd v Ku-Ring-Gai Council

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Vigor Master Pty Ltd v Ku-Ring-Gai Council [2023] NSWLEC 1710

Hearing dates:

16 August 2023

Date of orders:

28 November 2023

Decision date:

28 November 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Consent No. DA0255/15 is modified in the terms in Annexure A.

(3) Development Consent No. DA0255/15 as modified by the Court is Annexure B.

Catchwords:

DEVELOPMENT APPEAL – modification application– boarding house – increase number of rooms – conciliation conference – agreement between the parties – orders

Legislation Cited:

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

Public Health Regulation 2012

Public Health Regulation 2022

Cases Cited:

193 Liverpool Road Pty Ltd ACN 163231810 v Inner West Council [2022] NSWLEC 1197

Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227

Garbourg v Ku-ring-gai Council [2022] NSWLEC 1429

Realize Architecture Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1437

Category:

Principal judgment

Parties:

Vigor Master Pty Ltd (Applicant)
Ku-Ring-Gai Council (Respondent)

Representation:

Counsel:
T Robertson SC (Applicant)
C Rose (Solicitor)(Respondent)

Solicitors:
Vigor Masters Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

22/268806

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of modification application MOD0072/22 seeking approval to modify DA0255/15 (the Consent) for the increase of boarding rooms from 26 to 29, a new roof top terrace and changes to internal layout (the Proposed Modification) at 5 Sixth Mile Lane Roseville legally described as Lot 1 DP785223 (the Site).

2. The proceedings commenced on site. No objectors present. At the conclusion of the hearing on 16 August 2023 I directed the parties to file Proposed/Draft Conditions of Consent to be marked Ex 5 in the usual form in accordance with the templates published on the Court’s website and these were filed on 1 September 2023 indicating a number of contested conditions which I will come back to.

3. The Respondent’s case is as set out in the Statement of Facts and Contentions (SOFAC) filed 18 October 2022 (Ex 2) and contends that the Proposed Modification should be refused for three reasons as follows:

1. Not substantially the same development (s 4.56(1)(a), EPA Act) (Contention 1);

2. Boarding house amenity – the proposal does not provide satisfactory internal communal open space to provide for appropriate living arrangements with respect to low-income housing (Contention 2); and

3. Occupancy rates ratio to room sizes: the development provides insufficient information to satisfactorily address the required area size to occupancy rate to the area size of the resident rooms (Contention 4).

4. The Applicant filed a Statement of Facts and Contentions in Reply (SOFAC in Reply) on 3 November 2022 (Ex D).

5. The parties rely on the expert evidence contained in the Joint Expert Report prepared by Nigel Dickson, Architect for the…