Winim Developments Pty Limited v Ku-ring-gai Council

[2023] NSWLEC 1651

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Winim Developments Pty Limited v Ku-ring-gai Council [2023] NSWLEC 1651

Hearing dates:

Conciliation conference on 14 June 2023

Date of orders:

02 November 2023

Decision date:

02 November 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders that:

(1) The Applicant agrees to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $31,104.00 within 28 days of judgment being handed down.

(2) The Applicant’s written request, pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the KLEP, is upheld.

(3) The appeal is upheld.

(4) Development Application No. 0219/22 is determined by the grant of consent for the demolition of existing structures and construction of a multi dwelling housing development containing 14 dwellings, basement carparking and associated works at 43-47 Dumaresq Street, Gordon (legally known as Lot A in DP 355865, Lot 5 in DP 962973 and Lot 4 in DP 962973) subject to the conditions contained at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing – cl 4.6 written request – height of buildings – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, s 34

Ku-ring-gai Local Environmental Plan 2015, cll 2.7, 4.3, 4.4, 5.21, 6.1, 6.2, 6.4, 6.5, 6.6

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

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Department of Planning and Environment, Planning Circular PS 18-003, 2018

Category:

Principal judgment

Parties:

Winim Developments Pty Limited (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
H Kahagalle (Solicitor) (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
Addisons (Respondent)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2022/393032

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act1979 (EPA Act) by Winim Developments Pty Ltd (the Applicant) which was filed on the basis of a deemed refusal, by Ku-ring-gai Council (the Respondent) of Development Application (the DA) No. DA0219/22.

2. The DA seeks development consent for demolition of existing structures and construction of multi dwelling housing development containing 14 dwellings, basement carparking and associated works at 43-47 Dumaresq Street, Gordon and legally known as Lot A in DP 355865, Lot 5 in DP 962973 and Lot 4 in DP 962973.

3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 14 June 2023. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached an in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application.

5. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted a further adjournment so that those amendments agreed to between the parties could be incorporated into agreed conditions of consent.

6. This agreement between the parties involves the Court upholding the appeal and granting development consent to the DA subject to those agreed conditions of consent.

7. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 27 September 2023. An updated agreement was subsequently filed on 24 October 2023.

8. The parties asked 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.

9. 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 one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

10. 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 they have been satisfied. From this I note the following:

1. The DA was notified between 9 June 2022 to 9 July 2022 in accordance with the Council’s community participation requirements. On 23 September 2022, the Development Application was notified to owners of surrounding properties for a period of 14 days and two submissions were received. The Amended DA was re-notified between 6 September 2023 and 20 September 2023. These submissions have been considered by the parties during the conciliation.

2. Pursuant to Ku-ring-gai Local Environmental Plan 2015 (KLEP) the Site is zoned R3 Medium Density Residential under the LEP and multi dwelling housing is development that is permitted with development consent under the KLEP in the R3 zone.

3. The parties agree and I accept that the Amended DA is consistent with the objectives of the R3 Zone which are:

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

• To provide a variety of housing types within a medium density residential environment

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

• To provide a transition between low density residential housing and higher density forms of development.

4. Clause 2.7 of the KLEP provides that demolition is permissible with consent. Demolition is proposed and has been considered with conditions included in the agreed conditions of consent.

5. Clause 4.3(2) of the KLEP prescribes a height of buildings development standard of 11.5m. The parties submit and I accept that the Amended DA has a maximum height of 11.7m, which breaches the height standard by 0.2m. The Applicant has prepared a Written Request that seeks to justify the contravention of the development standard, in accordance with cl 4.6 of the KLEP.

6. Clause 4.6(4) of the WLEP requires the consent authority to be satisfied the Applicant’s written request has adequately addressed the matters required by cl 4.6(3), and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard and the objectives for development within the zone in which the development is proposed to be carried out.

7. Additionally, cl 4.6(4)(b) of the KLEP requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

8. As required by cl 4.6 of the KLEP, the Applicant has provided a written request seeking to vary the height of buildings development standard set out at cl 4.3.

9. The parties agree, and I am satisfied, that this written request adequately justifies the variance to the height of buildings development standard of 11.5m for the following reasons:

1. The amended DA proposes a maximum building height of 11.7m, exceeding the development standard by 0.2m or 1.7%. In addition, the proposal also results in a minor non-compliance of 11.53m to the solar panels of the southern built form.

2. The topography contributes to the extent of this variation. Specifically, the topography falls from the eastern boundary (Beans Farm Road) to the western (side) boundary, which exacerbates the extent of non-compliance. That is, the western edge of the southern built form is non-compliant with the 11.5m development standard, and it is where the topography falls towards the side boundary that the roof and solar panels vary the standard. It is only the western edge which is non-compliant with the development standard, with the remainder of the roof form and solar panels (of the southern built form) strictly complying.

3. Whilst the topographical variation increases the extent of non-compliance, it is considered acceptable as it pertains to minor roof elements and solar panels which do not contribute to any to any adverse increase of bulk and scale. The non-compliant elements are integrated into the high quality, cotemporary architectural form which limits any visual or physical impact.

4. The amended DA otherwise complies with the height of building development standard when measured from the site’s natural ground level.

5. The amended DA will remain consistent with the streetscape within its immediate context, including its relationship to recently approved development along Dumaresq Street.

6. The amended DA will be consistent with the desired future character of the area.

7. The objectives of the KLEP Zone R3 Medium Density Residential land use zone include: “to provide for the housing needs of the community within a medium density residential environment and to provide a variety of housing types within a medium density residential environment.” I am satisfied the amended DA meets these objectives.

8. The extent of the additional height creates no significant adverse overshadowing impacts to the adjoining low density residential dwellings or public domain when compared to a strictly compliant building envelope. That is, any additional overshadowing created by the non-compliance is onto the public domain or front setback of the residential dwelling (to the west) and will therefore have no adverse impact to amenity. As such, the increase to overshadowing caused by the non-compliant elements would be insignificant.

9. The height breach does not result in any additional privacy impacts as the non-compliant elements are limited to non-habitable roof forms and solar panels. As such, the loss of privacy caused by the non-compliant elements would be nil.

10. The height breach will not result in any significant view loss as the subject site does not contain any significant views across or from the public domain. The maximum height non-compliance is limited and any incidental view loss from will be a result of a compliant building envelope and height. As such, the extent of view loss caused by the non-compliant element would be insignificant.

11. The objectives of cl 4.3 of the KLEP include to ensure building heights preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, and to maintain satisfactory solar access to existing buildings and public areas. I am satisfied the amended DA meets these objectives.

10. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

11. Clause 4.4 of the KLEP prescribes a floor space ratio control for the Land of 0.8:1. The parties submit and I am satisfied that the Amended DA complies with the Floor Space Ratio (FSR) development standard with an FSR of 0.8:1 (see plan TP04.01 Rev G dated 01.08.2023).

12. Under Clause 5.21 of KLEP, the Site is within a flood planning area. The parties submit, and I am satisfied, that the proposed development is wholly compliant with the requirements of the flood planning control as outlined in the Flood Assessment prepared by Greenview Consulting dated 23 May 2023 and stormwater plans prepared by Greenview Consulting dated 25 July 2023.

13. The parties submit the Site is shown on the Acid sulfate soils map as Class 5 acid sulfate soils, although the Site is not located within 500m of adjacent Class 1, 2, 3 or 4 land and works are not proposed below 5m and are not likely to lower the water table below 1m AHD on adjacent Class 1, 2 or 3 land. The parties submit and I accept that the Amended DA satisfies the considerations within cl 6.1 and is suitable for the proposed development.

14. Clause 6.2 of the KLEP (Earthworks) applies to the Site. The proposal includes excavation in relation to lowering the ground level to a depth of approximately 3.635m. A Geotechnical Report dated 8 December 2022 and stormwater plans were lodged with the DA and I am satisfied that the requirements of cl 6.2(3) have been met.

15. Clause 6.3 of KLEP identifies that the rear of the Site is on the Terrestrial Biodiversity map in the LEP. The Applicant submitted an updated Flora and Fauna Assessment dated 30 May 2023 and Vegetation Management Plan dated 30 May 2023 prepared by Cumberland Ecology. The parties submit and I accept that the Amended DA satisfies the considerations within cl 6.3.

16. Clause 6.4 of the KLEP (Riparian Land and adjoining waterways) applies to the Site. Stormwater Plans were submitted with the DA and detailed conditions have been imposed which satisfy me that the Amended DA meets the requirements of cl 6.4(3). The northern section of the Site includes Riparian Land and a Category 3 Watercourse. An updated Flora and Fauna Assessment dated 30 May 2023 and a Vegetation Management Plan dated 30 May 2023 prepared by Cumberland Ecology and a Concept Watercourse Design prepared by Martens and Associates Pty Ltd dated 31 May 2023 have been submitted as part of the Amended DA. The parties are satisfied that these documents address the considerations within cl 6.4.

17. As the Site includes Riparian Land, cl 6.5 Stormwater and water sensitive urban design applies. The Applicant has submitted three documents to address cl 6.5, including a Flood Assessment, stormwater plans and the Concept Watercourse Design. The parties agree and I am satisfied that based on these documents, the considerations under cl 6.5 are addressed.

18. The proposed development is for multi dwelling housing and therefore cl 6.6 of KLEP applies. The parties agree and I accept that the Site, with an area of 3061m² and a width of 45.89m to Dumaresq Street satisfies cl 6.6(b).

19. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is a relevant environmental planning instrument. The parties agree, and I am satisfied, that the site has been historically used for residential purposes unlikely to result in contamination and no change of use is proposed. Accordingly, I am satisfied the amended DA addresses those matters outlined in s 4.6 of SEPP Resilience and Hazards.

20. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. A BASIX certificate dated 11 August 2023 has been provided with the amended DA. Agreed conditions of consent are to be imposed to ensure compliance with the BASIX certificate.

Conclusion

11. For the above reasons 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. I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

12. 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.

13. The Court notes that that Ku-ring-gai Council, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulations 2021 to the Applicant amending Development Application No. 0219/22 in accordance with the following plans and documents:

Architectural Plans prepared by Rothelowman

Plan Name	Plan No.	Rev	Dated
Cover Page	TP00.00	F	11.08.2023
Development Summary	TP00.01	G	11.08.2023
Constraint Plan	TP00.02	D	25.07.2023
Demolition Plan	TP00.03	D	25.07.2023
Proposed Site Plan	TP00.04	G	11.08.2023
Excavation Plan	TP00.10	D	25.07.2023
Basement 2 Plan	TP01.00	F	11.08.2023
Basement 1 Plan	TP01.01	G	11.08.2023
Ground Floor Plan	TP01.02	G	11.08.2023
Level 1 Plan	TP01.03	G	11.08.2023
Level 2 Plan	TP01.04	G	11.08.2023
Roof Plan	TP01.05	G	11.08.2023
Elevations 01	TP02.01	G	11.08.2023
Elevations 02	TP02.02	G	11.08.2023
Elevations 03	TP02.03	G	11.08.2023
Elevations 04	TP02.04	F	11.08.2023
Dumaresq Street Context Elevation	TP02.06	D	11.08.2023
Beans Farm Road Context Elevation	TP02.07	D	11.08.2023
Riparian Creek Context Elevation	TP02.08	D	11.08.2023
Sections 01	TP03.01	F	11.08.2023
Sections 02	TP03.02	F	11.08.2023
Sections 03	TP03.03	D	11.08.2023
Sections 04	TP03.04	D	11.08.2023
Sections 05	TP03.05	C	11.08.2023
Sections 06	TP03.06	-	11.08.2023
GFA	TP04.01	G	1.08.2023
Deep Soil	TP04.02	F	1.08.2023
Site Coverage	TP04.04	E	25.07.2023
Communal Open Space	TP04.05	F	11.08.2023
11.5m Height Plane Diagram	TP04.06	C	11.08.2023
Storage Plan	TP04.07	B	25.07.2023
Solar POV Studies	TP04.10	G	11.08.2023
Solar POV Studies	TP04.11	G	11.08.2023
Solar POV Studies	TP04.12	G	11.08.2023
Solar POV Studies	TP04.13	G	11.08.2023
Shadow Studies	TP04.14	F	11.08.2023
Shadow Studies	TP04.15	F	11.08.2023
Waste Management Plan	TP04.20	E	11.08.2023
Visitable Pathways Diagram	TP04.22	C	11.08.2023
Sightline and Separation Diagram	TP04.23	C	11.08.2023
Sightline and Separation Diagram	TP04.24	B	1.08.2023

Landscape Plans prepared by Arcadia

Plan Name	Plan No.	Rev	Dated
Planting Schedule	L-400	8	11.08.2023
Softworks Plan – Trees/VMP	L-401	8	11.08.2023
Softworks Plan – Trees/VMP	L-402	8	11.08.2023
Softworks Plan – Trees/VMP	L-403	8	11.08.2023
Softworks Plan – Trees/VMP	L-404	8	11.08.2023
Softworks Plan – Trees/VMP	L-405	8	11.08.2023
Softworks Plan – Trees/VMP	L-406	8	11.08.2023
Softworks Plan – Understorey	L-411	4	11.08.2023
Softworks Plan – Understorey	L-412	3	25.07.2023
Softworks Plan – Understorey	L-413	3	25.07.2023
Softworks Plan – Understorey	L-414	3	25.07.2023
Softworks Plan – Understorey	L-415	3	25.07.2023
Softworks Plan – Understorey	L-416	3	25.07.2023
Landscape Details Suspended Walkway	L-600	1	30.05.2023

Stormwater Management and Civil Plans prepared by Greenview Consulting

Plan Name	Plan No.	Rev	Dated
Notes & Legends	C01	5	25.07.2023
Basement 2 Drainage Plan	C02	5	25.07.2023
Basement 1 Drainage Plan	C03	5	25.07.2023
Ground Floor Drainage Plan	C04	6	25.07.2023
Site Stormwater Details Sheet 1	C05	5	25.07.2023
Site Stormwater Details Sheet 2	C06	5	25.07.2023
Site Stormwater Details Sheet 3	C07	5	25.07.2023
Catchment Plan	C08	4	25.07.2023
Basement 1 Turning Paths Sheet 5	C15	1	11.08.2023
Basement 1 Turning Paths Sheet 6	C16	1	11.08.2023
Basement 1 Turning Paths Sheet 7	C17	1	11.08.2023

Document(s)	Dated
Schedule of Amendments prepared by Rothelowman (Rev E)	11 August 2023
Arboricultural Impact Assessment Report prepared by Blues Bros Arboriculture	25 May 2023
BASIX Certificate	11 August 2023
BASIX Stamped Plans	11 August 2023
Clause 4.6 Variations – Height of Building prepared by Planning Ingenuity
Construction Traffic Management Plan prepared by Greenview Consulting	31 May 2023
Concept Watercourse Design prepared by Martens & Associates Pty Ltd	31 May 2023
Flora and Fauna Assessment prepared by Cumberland Ecology	30 May 2023
Flood Assessment prepared by Greenview Consulting	23 May 2023
Landscape Report dated prepared by Arcadia	11 August 2023
NatHERS Certificates and report	11 August 2023
Noise and Vibration Impact Assessment prepared Stantec Australia Pty Ltd	25 March 2022
Traffic Impact and Parking Assessment prepared by Greenview Consulting	31 May 2023
Vegetation Management Plan prepared by Cumberland Ecology	30 May 2023

14. The Applicant has filed the amended DA with the Court on 27 September 2023.

Orders

15. The Court orders that:

1. The Applicant agrees to pay the Respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $31,104.00 within 28 days of judgment being handed down.

2. The Applicant’s written request, pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the KLEP, is upheld;

3. The appeal is upheld.

4. Development Application No. 0219/22 is determined by the grant of consent for the demolition of existing structures and construction of a multi dwelling housing development containing 14 dwellings, basement carparking and associated works at 43-47 Dumaresq Street, Gordon (legally known as Lot A in DP 355865, Lot 5 in DP 962973 and Lot 4 in DP 962973) subject to the conditions contained at Annexure ‘A’.

L Sheridan

Acting Commissioner of the Court

Annexure A

**********

Amendments

01 March 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule"), correction is made to the Floor Space Ratio of the Development and plans referenced at [10(11)] of the Judgment.

Decision last updated: 01 March 2024