Woodside Lindfield Pty Ltd v Ku-ring-gai Council

[2023] NSWLEC 1510

Land and Environment Court

New South Wales

Medium Neutral Citation:

Woodside Lindfield Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1510

Hearing dates:

Conciliation conference on 31 August 2023

Date of orders:

08 September 2023

Decision date:

08 September 2023

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The Applicant is granted leave to amend the development application to rely on:

(a) Architectural plans Revision D dated 16 August 2023, with the exception of Architectural plans DA01.02, DA02.04, DA02.08 DA03.02, DA03.05 DA03.01 and DA08.02 Revision E dated 30 August 2023;

(b) Stormwater section prepared by Kozarovski & Partners dated 31 August 2023;

(c) Revised Clause 4.6 submission (height) dated 30 August 2023 prepared by Ingham Planning;

(d) Design Verification Statement Revised final 22 Aug 2023 1-3 Woodside Avenue - SEPP 65 & Apartment Design Guide Assessment- Issue C 22 August 2023;

(e) Access Report 23 August 2023 for revised plans 23095 - 1-3 Woodside Ave Lindfield - R1.3;

(f) Letter from Megan Geddes of Zenith Landscaping dated 31 August 2023;

(g) Updated BASIX Certificate dated 25 August 2023.

(2) The request pursuant to clause 4.6 of the Ku-Ring-Gai Local Environment Plan 2015 to vary the development standard for height of buildings contained in Revised Clause 4.6 submission (height) dated 30 August 2023 prepared by Ingham Planning is upheld.

(3) The appeal is upheld.

(4) Development Application DA0013/22 for demolition of the existing structures and construction of a residential flat building comprising 13 units with basement parking, landscaping and associated works at No 1 - 3 Woodside Avenue, Lindfield is determined by the grant of consent, subject to the conditions contained in the annexure marked A.

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development in R4 High Density Residential zone – flood planning – conciliation conference – agreement between parties – orders

Legislation Cited:

Architects Act 2003

Conveyancing Act 1919, s 88B

Environmental Planning and Assessment Act 1979, ss 1.3, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cll 3, 50, 55

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.5, 6.6

Land and Environment Court Act 1979, s 34

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

State Environmental Planning Policy (Housing) 2021, ss 16, 17, 18, 19, 20, 21

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

State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cll 28, 30

Texts Cited:

NSW Department of Planning and Environment, Apartment Design Guide, July 2015

Category:

Principal judgment

Parties:

Woodside Lindfield Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
C Rose (Solicitor)(Respondent)

Solicitors:
Boskovitz Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2022/238485

Publication restriction:

Nil

Judgment

1. COMMISSIONER: A residential flat building is proposed on land located to the east of the Northern Line rail corridor at Lindfield, between Woodside Avenue and Havilah Road.

2. To this end, development application DA0013/22 (the DA) was lodged with Ku-ring-gai Council (the Respondent) on 27 January 2022, which was subsequently notified between 10 February 2022 and 19 March 2022.

3. As the DA was otherwise undetermined, the Applicant in these proceedings, Woodside Lindfield Pty Ltd, filed an appeal in Class 1 of the Court’s jurisdiction on 12 August 2022, pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The DA was amended by Notice of Motion on 13 June 2023 (the amended DA). The Amended DA was re-notified to surrounding occupants from 12 July - 26 July 2023.

5. As a result of joint conferencing between experts on the Amended DA in the disciplines of town planning, stormwater and flooding, the parties agree that contentions pressed by the Respondent in this matter have been resolved.

6. Accordingly, while the matter was initially listed before me for hearing, the parties sought the matter be re-allocated by the Court under s 34 of the Land and Environment Court Act 1979 (LEC Act).

7. On 31 August 2023, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the LEC Act at which I presided.

8. At the conciliation conference, the parties reached agreement on the matters in contention, and a signed agreement was filed with the Court on 31 August 2023, in accordance with s 34(10) of the LEC Act.

9. The parties ask me to uphold the appeal and grant conditional development consent to the development application according to terms 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, 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.

10. 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 function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites, with respect to the following environmental planning instruments that must be satisfied before this function can be exercised:

1. Ku-ring-gai Local Environmental Plan 2015 (KLEP)

2. State Environmental Planning Policy No 65 – Design quality of residential apartment development (SEPP 65)

3. State Environmental Planning Policy (Housing) 2021 (Housing SEPP)

4. State Environmental Planning Policy (Resilience and Hazards) 2021

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

11. For the reasons set out below, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

12. The site is located within the R4 High Density Residential zone, according to the KLEP, in which residential flat buildings are permitted with consent, where consistent with the following objectives of the R4 zone:

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

•  To provide a variety of housing types within a high 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 high density residential housing close to public transport, services and employment opportunities.

13. The height of building standard applicable to the site at cl 4.3(2A) of the KLEP is 11.5m. The proposed development exceeds the height standard and the Applicant relies on a written request authored by Mr Nick Juradowitch in accordance with cl 4.6 of the KLEP, dated 30 August 2023 (the written request).

14. The written request explains that while the height of buildings map at cl 4.3(2) of the KLEP identifies a height standard of 17.5 applies to the site, that standard is limited, by operation of cl 4.3(2A) of the KLEP, where a site has an area of less than 1800m². As the site area is 1,404m² in the circumstances of this case, the height of 11.5m applies.

15. The objectives of cl 4.3 are as follows:

(a)  to ensure that the height of buildings is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres,

(b)  to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity,

(c)  to enable development with a built form that is compatible with the size of the land to be developed.

16. I am satisfied the written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the KLEP for the reasons set out in the written request, summarised as follows:

1. Firstly, I accept compliance with the height standard is unreasonable or unnecessary in the circumstances of the case, because the proposed development complies with the objectives of the standard notwithstanding the non-compliance. When those objectives, at [15], are considered, I accept that the site is located at the edge of the Lindfield town centre that includes buildings of 8 storeys in height where heights of 29.5m are permitted, and where the proposal comprises a maximum of 4 storeys, adjoining existing development of 6 storeys, with a height that is at somewhat of a midpoint between adjoining development.

2. Next, I accept the environmental planning grounds advanced by the written request are sufficient to justify the contravention of the standard because:

1. I accept that the site is flood affected, and the exceedance of the height standard enables the ground floor of the proposal to be constructed above the 1% AEP level, without imposing an adverse impact on adjoining development. In particular, when the written request is read in conjunction with the sun eye diagrams, it is evident that the setback of the exceedance from the boundary with 59 Lindfield Road imposes no overshadowing on adjoining development.

2. The proposal is consistent with objects of the EPA Act. In particular, s 1.3(d) to promote the delivery and maintenance of affordable housing by dedicating 810m² of affordable housing floor space in seven apartments, which amounts to 46.4% of the gross floor area of the proposed development.

17. Finally, the written request asserts consistency with the objectives of the zone, at [12], because the proposed height variation is within the range of existing high density residential development, provides 7 affordable apartments in a development that includes 2, 3 and 4 bedroom units located around 120m from Lindfield railway station and local shops.

18. I note here that the Respondent is satisfied that the height request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the KLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the R4 High Density Residential zone.

19. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the KLEP.

20. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the height development standard under cl 4.3 is justified.

21. I am satisfied under cl 4.6(4) that the height request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the R4 High Density Residential zone, for the reasons given in the request.

22. In forming this opinion of satisfaction, I accept that the perimeter of the proposed development would comply with the height standard if the height of the subfloor plenum void that permits overland flow in the event of flood was not provided, and that the resultant height, including the exceedance, provides a transition in height from the existing development at 2B Havilah Road to 59 Lindfield Road.

23. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the KLEP and I find no grounds on which the Court should not uphold the written request.

24. According to cl 4.4(2) of the KLEP, the floor space ratio standard for the site is 0.8:1. However, as the proposal includes affordable housing, additional FSR of 0.46:1 is permitted by operation of Housing SEPP. The proposed FSR is expressed as 1.24:1, which is less than the maximum FSR permitted on the site of 1:26:1.

25. The site is not identified as an item of heritage significance, is not located in the vicinity of a heritage item, and is not within a heritage conservation area. As such, cl 5.10 of the KLEP does not apply.

26. The site is flood prone and so the provisions at cl 5.21 of the KLEP apply. Experts in flooding have prepared a joint statement, filed with the Court on 30 August 2023. The agreed statement includes an assessment of the proposed development against those matters at cl 5.21(3) of the KLEP, concluding that:

1. the proposal allows overland flow to pass through a subfloor plenum void that lowers existing flood levels to adjoining properties according to flood modelling, and so is compatible with the flood function and behaviour on the land and will not adversely affect other development;

2. the proposal provides for safe occupation of the proposed development in the event of a flood, by proposing a ground floor level in excess of the rarest flood event, and appropriate measures to manage risk to life in the event of flood including the provision of safe vehicular access and by requiring a Flood Risk Management Plan at Condition 120a of the agreed Conditions of consent;

3. the proposed landscaping is designed so as not to adversely affect the environment.

27. On the basis of the agreed position of the experts, the proposed conditions of consent and the assessment set out in the joint statement, I am satisfied of those matters at cl 5.21(2) of the KLEP.

28. Relatedly, cl 6.5 of the KLEP deals with stormwater and water sensitive urban design. Experts in stormwater have likewise prepared a joint statement in respect of stormwater, and amended Stormwater Plans have been prepared that I am satisfied satisfactorily demonstrate water sensitive urban design principles are evident; that stormwater and flooding measures are integrated in the form of modelling overland flow path, stormwater drainage and fencing details, and that reasonable actions are proposed to avoid adverse impacts on adjoining properties and the like, pursuant to cl 6.5(2) of the KLEP.

29. The site is identified on the Acid Sulfate Soils Map at cl 6.1(2) of the KLEP as Class 5, but is not within 500m of soil classified differently.

30. On the basis of the conclusions and recommendations contained in the Geotechnical Investigation Report prepared by ESWNMAN dated 14 December 2020, the Stormwater plans listed in Condition 1 of the agreed Conditions of consent, and the extent of the site proposed to be retained at natural ground level, I have considered those matters at cl 6.2 of the KLEP which I conclude have been satisfactorily addressed.

31. Clause 6.6 requires sites on which residential flat buildings are proposed to be at least 24m in width where the area of the land is less than 1,800m². The site comprises two lots that each span between Woodside Avenue and Havilah Road. The Lots are described as Lots 2A and 3A in DP 17538, that are otherwise known as 1-3 Woodside Avenue, Lindfield. The two lots present a combined frontage to Woodside Avenue measuring 34.39m and a frontage to Havilah Road measuring 32.16m.

State Environmental Planning Policy (Housing) 2021

32. The proposed development is residential development of a sort described at s 16(1) of the Housing SEPP.

33. The additional FSR cited at [24] derives from s 17 of the Housing SEPP.

34. The proposed development achieves those non-discretionary development standards set out at s 18 of the Housing SEPP, but for those standards that do not apply by virtue of the development application being prepared by an entity other than a social housing provider and, in the case of s 18(2)(d)(ii) where the flood affectation of the site precludes the dedication of 65% of land at the rear of the site being deep soil.

35. The town planning experts agree that the design requirements at s 19 of the Housing SEPP are addressed in the amended development application or by the agreed Conditions of consent. The same matters are also addressed by the ‘SEPP 65 & Apartment Design Guide Assessment’ completed by the architect Mr Martin Bednarczyk to which s 20 of the Housing SEPP is also directed.

36. Condition 122 of the agreed conditions of consent provides for restriction on title under s 88B of the Conveyancing Act 1919 to ensure that the seven apartments identified as affordable units are retained as such for a period of 15 years, in accordance with s 21 of the Housing SEPP.

State Environmental Planning Policy No 65 – Design quality of residential apartment development

37. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c) of the SEPP 65 and I am satisfied that the ‘SEPP 65 & Apartment Design Guide Assessment’ completed by the architect Mr Martin Bednarczyk (Arch Reg No 8912) dated August 2023 is in a complying form.

38. Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the Apartment Design Guide (ADG) for the relevant design criteria. On the basis of the architect’s statement demonstrating how the objectives of Parts 3 and 4 of the ADG have been achieved, I am satisfied that adequate regard has been given to the ADG.

State Environmental Planning Policy (Resilience and Hazards) 2021

39. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 requires a consent authority to consider whether the land is contaminated and requires remediation. On the basis of the statements made in respect of contamination contained in the Statement of Environment Effects prepared by Corona Projects dated February 2021, I am satisfied that the site is suitable for the development proposed.

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

40. Finally, the application is accompanied by a BASIX certificate (Cert No 1187392M_04 dated 25 August 2023) prepared by Greenworld Architectural Drafting in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the EPA Regulation.

Conclusion

41. 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.

42. 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.

43. The Court notes that:

1. Ku-ring-gai Council, as the relevant consent authority, agrees to the Applicant amending the development application pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000.

2. The Applicant lodged the amended plans and other documents on the NSW planning portal, that give effect to the amended development application on 1 September 2023.

Orders

44. The Court orders that:

1. The Applicant is granted leave to amend the development application to rely on:

1. Architectural plans Revision D dated 16 August 2023, with the exception of Architectural plans DA01.02, DA02.04, DA02.08 DA03.02, DA03.05 DA03.01 and DA08.02 Revision E dated 30 August 2023;

2. Stormwater section prepared by Kozarovski & Partners dated 31 August 2023;

1. Revised Clause 4.6 submission (height) dated 30 August 2023 prepared by Ingham Planning;

2. Design Verification Statement Revised final 22 Aug 2023 1-3 Woodside Avenue - SEPP 65 & Apartment Design Guide Assessment- Issue C 22 August 2023;

3. Access Report 23 August 2023 for revised plans 23095 - 1-3 Woodside Ave Lindfield - R1.3;

4. Letter from Megan Geddes of Zenith Landscaping dated 31 August 2023;

5. Updated BASIX Certificate dated 25 August 2023.

2. The request pursuant to clause 4.6 of the Ku-Ring-Gai Local Environment Plan 2015 to vary the development standard for height of buildings contained in Revised Clause 4.6 submission (height) dated 30 August 2023 prepared by Ingham Planning is upheld.

3. The appeal is upheld.

4. Development Application DA0013/22 for demolition of the existing structures and construction of a residential flat building comprising 13 units with basement parking, landscaping and associated works at No 1 - 3 Woodside Avenue, Lindfield is determined by the grant of consent, subject to the conditions contained in the annexure marked A.

T Horton

Commissioner of the Court

Annexure A

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Decision last updated: 08 September 2023