Wheatley v Ku-ring-gai Council

[2021] NSWLEC 1386

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wheatley v Ku-ring-gai Council [2021] NSWLEC 1386

Hearing dates:

Conciliation conference on 29 June 2021

Date of orders:

5 July 2021

Decision date:

05 July 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to amend the development application to rely upon Landscape Plan, Drawing No. LA-01, prepared by CAB Consulting Pty Ltd dated 6 June 2021.

(2)   The appeal is upheld.

(3)   Development Application No. DA0256/2020, for alterations and additions to the existing dwelling and new swimming pool at 65 Billyard Avenue, Wahroonga (Lot 1 in DP 972204), is approved subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to dwelling house – item of local heritage significance – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000

Ku-ring-gai Local Environmental Plan 2015, cll 5.10, 6.2, 6.5, Schedule 5

Land and Environment Court Act 1979, ss 34, 34AA

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Category:

Principal judgment

Parties:

Kim Wheatley (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
C Drury (Solicitor) (Respondent)

Solicitors:
Jaku Legal (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2020/333043

Publication restriction:

No

Judgment

1. COMMISSIONER: The owner of the property at No 65 Billyard Avenue, Wahroonga, Mr Kim Wheatley, brings this Class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Ku-ring-gai Council of Development Application No.0256/2020 for alterations and additions, including a new swimming pool on the site legally described as Lot 1, in DP 972204 (the site).

2. The appeal was listed for mandatory conciliation on 29 June 2021, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act).

3. However, prior to the conciliation conference, an agreement, under s 34(3) of the LEC Act, was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 29 June 2021.

4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

5. 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 explained to me during the conference as to how the requirements of the relevant environmental planning instruments have been satisfied in order to allow the Court to make the agreed orders at [9].

6. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the following reasons:

1. The site is located within the R2 Low Density Residential zone under the Ku-ring-gai Local Environmental Plan 2015 (KLEP) in which dwelling house development is permitted with consent. The objectives of the R2 zone are:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

2. The existing dwelling house is identified in Schedule 5 of the KLEP as an item of local heritage significance, and so the provisions at cl 5.10 of the KLEP apply to the site. On the basis of the Heritage Impact Statement prepared by GBA Heritage dated June 2020, and the agreement of the heritage experts, I am satisfied, pursuant to cl 5.10 of the KLEP, that the effect of the proposed development is not detrimental to the heritage significance of the item. I also accept that Condition 24 of the agreed conditions of consent identifies certain works that are required to be carried out as part of the development so as to retain the heritage significance of the item.

3. I am also satisfied that the Stormwater Management Plans, Environmental Site Management Plan, amended landscape plan and the agreed conditions of consent achieve the requirements of cl 6.2(3) of the KLEP in respect of earthworks proposed as part of the development, and cl 6.5(2) of the KLEP in respect of Stormwater and water sensitive urban design.

4. On the basis of the conclusions reached in the Heritage Impact Statement, I am satisfied that the site is not contaminated within the meaning of cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land.

5. A BASIX Certificate (Certificate No. A379450_03) accompanies the application, prepared by Building Sustainability dated 26 April 2021 in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2000.

6. Finally, I note the development application was notified on two occasions, including following amendment of the application, and public submissions were received and considered.

Conclusion

7. 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.

8. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

9. The Court orders that:

1. The Applicant is granted leave to amend the development application to rely upon Landscape Plan, Drawing No. LA-01, prepared by CAB Consulting Pty Ltd dated 6 June 2021.

2. The appeal is upheld.

3. Development Application No. DA0256/2020, for alterations and additions to the existing dwelling and new swimming pool at 65 Billyard Avenue, Wahroonga (Lot 1 in DP 972204), is approved subject to the conditions of consent in Annexure A.

……………………

T Horton

Commissioner of the Court

Annexure A (395969, pdf)

Plan (4818272, pdf)

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Decision last updated: 05 July 2021