Wang v Ku-ring-gai Council

[2018] NSWLEC 1600

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wang v Ku-ring-gai Council [2018] NSWLEC 1600
Hearing dates:	Conciliation conference on 15 November 2018
Date of orders:	19 November 2018
Decision date:	19 November 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	See [7] below
Catchwords:	DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Category:	Principal judgment
Parties:	Alan Wang (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Solicitors: D Tyrrell, McKees Legal Solutions (Applicant) C Morton, Sparke Helmore (Respondent)
File Number(s):	2017/335429
Publication restriction:	No

Judgment

COMMISSIONER:

1. This Class 1 appeal, brought by Alan Wang under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), concerns Ku-ring-gai Council’s deemed refusal of a development application (DA0376/17) for nine townhouses and nine residential apartments over basement parking, and associated works, at 2-4 Eton Road and 205 Pacific Highway Lindfield.

2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 15 November 2018. I presided over the conciliation conference.

3. At the conciliation conference and in follow-up communication afterwards, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. 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 decision making function under s 4.16 of the EPA Act to grant conditional consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how each has been satisfied. Below I reference the jurisdictional prerequisites and summarise the basis of the parties’ advice on their satisfaction:

1. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP) – Clause 30(2): Design Verification Statement under the SEPP was prepared (dated August 2017) and lodged with the application. Further design responses were accommodated in amended plans mindful of Apartment Design Guide Objectives. In addition, Construction and Occupation Certificate requirements under cll 143A and 154A of the Environmental Planning and Assessment Regulation 2000 provide for verification of approval requirements.

2. State Environmental Planning Policy No 55 – Remediation of Land –Clause 7(1): Statement of Environmental Effects accompanying DA and filed with the Class 1 application (p46) indicated that the site is not contaminated. Council subsequently undertook an assessment of the site having regard to its aerial mapping facility and site usage records. That assessment concluded that the site was unlikely to have been used for a potentially contaminating activity.

3. State Environmental Planning Policy (Infrastructure) 2007 (SEPP (Infrastructure) 2007) – Clause 87(3): This matter (and its concerns relating to rail noise and vibration) is satisfied via condition 55 of the consent (being Annexure “A”). An acoustic assessment was carried out on behalf of the applicant and filed with Class 1 application.

4. SEPP (Infrastructure) 2007 - Clause 101(2): This matter (and its concerns relating to development fronting Classified Roads) is satisfied by the development providing access other than via a Classified Road (via Eton Road). In addition a letter was provided to Council from Roads and Maritime Services (13 November 2017) indicating conditional support for the proposal, with such conditions appropriately brought forward into the consent. Matters related to the emission of smoke or dust from the site and traffic noise and vehicle emissions are addressed in the conditions of consent (Annexure “A”).

5. Ku-ring-gai Local Environmental Plan 2015 – Clause 6.5: This matter (and its concerns in regard to stormwater and water sensitive urban design) has been satisfied as a consequence of the design solutions incorporated into the consent.

5. I have considered the advice of the parties and relevant documentation and am satisfied that the jurisdictional questions have been satisfied. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

6. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

7. The Court orders:

1. The Appeal is upheld.

2. Development Application DA0376/17 for the demolition of all existing structures on land at 2-4 Eton Road and 205 Pacific Highway, Lindfield, NSW, the consolidation of those lots and the erection of 9 townhouses and 9 residential apartments over 1 level of basement parking, is approved subject to the conditions set out in Annexure “A”.

……………………….

Peter Walsh

Commissioner of the Court

Annexure A (436 KB, pdf)

Plans (8.71 MB, pdf)