Xu v Ku-ring-gai Council

[2024] NSWLEC 1219

Land and Environment Court

New South Wales

Medium Neutral Citation:

Xu v Ku-ring-gai Council [2024] NSWLEC 1219

Hearing dates:

Conciliation Conference 16 and 17 April 2024

Date of orders:

26 April 2024

Decision date:

26 April 2024

Jurisdiction:

Class 1

Before:

Targett AC

Decision:

The Court orders that:

1) The appeal is upheld.

2) Development application number DA0340/22, as amended, for alterations and additions, including an upper floor addition, detached carport, swimming pool and associated works, for Lot 651 in Deposited Plan 752031, known as 14 Canberra Crescent, East Lindfield, is determined by the grant of development consent subject to the conditions included at Annexure A.

Catchwords:

APPEAL – Development application –alterations and additions –conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.14

Environmental Planning and Assessment Regulation 2021, s 38

Land and Environment Court Act 1979, ss 17, 34, 34AA

Ku-ring-gai Local Environmental Plan 2015, cll 4.3, 4.4, 6.1, 6.2, 6.5

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

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Resilience and Hazards) 2021

Category:

Principal judgment

Parties:

Ming Xu (First Applicant)
Liang Ren (Second Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
T March (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Shaw Reynolds Lawyers (Respondent)

File Number(s):

2023/298123

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application (DA0340/22) (Development Application) for alterations and additions to a dwelling house, new detached garage, swimming pool and associated works located on land identified as Lot 651 in Deposited Plan 752031, known as 14 Canberra Crescent, East Lindfield (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). The proceedings are determined pursuant to the provisions of s 8.14 of the EPA Act.

The Development Application

3. The Development Application as lodged with the respondent via the New South Wales Planning Portal (Planning Portal) on 25 July 2022, sought consent for alterations and additions to an existing dwelling, including partial demolition of the existing dwelling, the construction of a new detached garage, swimming pool and associated works.

4. Following numerous discussions between the applicants and the respondent, and multiple amendments to the Development Application, the Ku-ring-gai Local Planning Panel refused the Development Application on 20 March 2023.

5. On 9 May 2023, a review pursuant to s 8.2 of the EPA Act was submitted via the Planning Portal, proposing further amendments to the Development Application.

6. On 21 August 2023, the amended Development Application was refused by the Ku-ring-gai Planning Panel.

7. On 19 September 2023, the proceedings were commenced by the applicants, being within the appeal period prescribed by s 8.10 of the EPA Act.

8. On 10 October 2023, the respondent filed its Statement and Facts and Contentions.

9. On 1 November 2023, the applicants filed and served their Statement of Facts and Contentions in Reply.

10. On 20 February 2024, the applicants obtained leave to amend their Class 1 Application as follows:

1. reduce the highlight window and roof above the entry hallway by 615mm to comply with the maximum height of building control in the Ku-ring-gai Local Environmental Plan 2015 (KLEP).

2. reduce the pergolas over the first floor balconies to comply with the maximum height of building control in the KLEP;

3. reconstruct existing dilapidated walls for the study/library and laundry; and

4. provide additional information in relation to setbacks and overshadowing.

11. Following orders of the Court, on 5 March 2024, the respondent filed its Amended Statement of Facts and Contentions.

12. The Court arranged a conciliation conference under s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 16 and 17 April 2024. I presided over the conciliation conference.

13. Further amended plans prepared by Paul Meyer Design Pty Ltd were provided to the Court as part of the conciliation process (Amended Development Application) cited at [41]. The amendments can be summarised as follows:

1. converting the proposed garage to a proposed carport and lowering the level of the concrete slab supporting the carport and height of the carport structure;

2. utilising a portion of the road reserve on Canberra Crescent to improve access to the Subject Land;

3. providing screening to the carport under croft areas and carport balustrade by way of aluminium louvres to improve visual impacts and avoid light spill to 12 Canberra Crescent, East Lindfield;

4. installing a car turntable to provide safe egress from the Subject Land in a forward direction;

5. increasing boundary setbacks; and

6. providing further articulation on the western wall.

14. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent. The signed agreement is supported by an agreed jurisdictional statement.

15. 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.

Jurisdictional considerations

16. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

17. The applicants are the registered proprietor of the Subject Land and provided consent to the development application when it was lodged with the respondent.

18. For completeness, the Amended Development Application requires works to the road reserve owned by the respondent on Canberra Crescent adjacent to the Subject Land (Road Reserve). The respondent has provided its owners consent to the Amended Development Application in respect of works proposed on the Road Reserve.

19. The parties agree that condition 15 of the Agreed Conditions still requires relevant approvals under the Roads Act 1993 to be obtained prior to the issue of any Construction Certificate.

State Environmental Planning Policy (Resilience and Hazards) 2021

20. I accept the parties’ submission that the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021 have been considered and the Subject Land is suitable to accommodate the development the subject of the Amended Development Application. This is primarily because of the Subject Land’s longstanding history of residential use with no known history of potentially contaminating uses or events.

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

21. The Amended Development Application is accompanied by a BASIX certificate (No. A415906_03, dated 8 April 2024) prepared by Paul & David Consulting Pty Ltd in accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 and the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

22. For completeness, I note that State Environmental Planning Policy (Sustainable Buildings) 2022 does not apply to a development application submitted but not finally determined before 1 October 2023 and the provisions of SEPP BASIX continue to apply to the Amended Development Application.

Ku-Ring-Gai Local Environmental Plan

23. The Site is zoned R2 – Low Density Residential under the KLEP. Accordingly, dwelling houses are permitted with consent in the R2 zone. I have had regard to the zone objectives which are extracted below:

• 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.

24. I note that the parties believe the Amended Development Application is consistent with these objectives.

25. Pursuant to cl 4.3 of the KLEP, the maximum building height permissible for the Subject Land is 9.5m. The parties agree that the Amended Development Application complies with this standard.

26. Pursuant to cl 4.4(2A) of the KLEP, a maximum floor space ratio (FSR) development standard of 0.34:1 applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.

27. Pursuant to cl 6.1 of the KLEP relating to Acid Sulfate Soils, the Subject Land is mapped as Class 5. The parties agree that pursuant to cl 6.1(2) of the KLEP, the Subject Land is not in proximity to land classified in classes 1-4, therefore, this provision is satisfied.

28. Pursuant to cl 6.2 of the KLEP, a consent authority must consider various matters in deciding whether to grant development consent for earthworks. The parties agree that:

1. the proposed development will not disrupt or detrimentally effect drainage patterns and soil stability in the locality.

2. the earthworks are related to and necessary for the future use and redevelopment of the Subject Land.

3. the quality of soil to be excavated is presently unknown but conditions of consent are proposed to be imposed to ensure it is disposed of to an appropriate location.

4. setbacks to the basement and appropriate construction techniques can ensure the excavation has insignificant and acceptable amenity effects for adjoining properties.

5. fill is required to accommodate the proposed development. Conditions of consent are proposed to be imposed for the disposal of excavated material at an appropriate location.

6. the likelihood of disturbing relics is remote and not of determinative weight.

7. the Subject Land is not proximate to and will have a negligible to no impact upon a waterway, drinking water catchment or environmentally sensitive area.

29. The parties further agree that a geotechnical report was provided with the Development Application and the agreed conditions of consent require compliance with the recommendations of this report.

30. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 6.2(3) of the KLEP.

31. Pursuant to cl 6.5 of the KLEP, before granting development consent, a consent authority must be satisfied of the matters listed in cl 6.5(2). The Amended Development Application is supported by stormwater plans prepared by Engineering Studio and the parties agree that:

1. water sensitive urban design principles are incorporated into the design of the proposed development;

2. riparian, stormwater and flooding measures are integrated;

3. the stormwater management system includes all reasonable management actions to avoid any adverse impacts on the Subject Land, adjoining properties, native bushland, waterways and groundwater systems; and

4. if a potential adverse environmental impact cannot be feasibly avoided, the development minimises and mitigates the adverse impacts of stormwater runoff on adjoining properties, native bushland, waterways and groundwater systems.

32. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 6.5(2) of the KLEP.

Other jurisdictional matters – s 4.15 of the EPA Act

33. The matters set out in s 4.15(1)(a), (b), (c) and (e) have been considered above to the extent they are relevant to the Amended Development Application.

34. In relation to s 4.15(1)(d) of the EPA Act, the Development Application, as lodged, was notified between 19 August to 2 September 2022. Three written submissions objecting to the Development Application were received in response to the notification.

35. A further written submission was received on 10 April 2024.

36. Further, one of the objectors addressed the Court at the on-site view associated with the conciliation conference and the Court visited this objector’s property.

37. The parties agree that the Amended Development Application did not require re-notification as the environmental impacts of the amendments will be the same or lesser than the original proposal and the amendments made to the Development Application responded to the submissions made.

38. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

39. 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.

40. 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.

41. The Court notes that:

1. The respondent, as the relevant consent authority, has agreed under s 38 of the EPA Regulation, to the applicant amending its Development Application so as to rely on the following amended materials:

Document Description	Prepared By	Date
Architectural Plans
01 Site Plan	Paul Meyer Design	17 April 2024
02 Site Analysis Plan	Paul Meyer Design	17 April 2024
03 Existing Floor Plan	Paul Meyer Design	17 April 2024
04 Demolition Plan	Paul Meyer Design	17 April 2024
05 Lower Floor Plan	Paul Meyer Design	17 April 2024
05A LF Dimension Plan	Paul Meyer Design	17 April 2024
06 Middle Floor Plan	Paul Meyer Design	17 April 2024
06A Middle Floor Dimension Plan	Paul Meyer Design	17 April 2024
07 Top Floor Plan	Paul Meyer Design	17 April 2024
07A TF Dimension Plan	Paul Meyer Design	17 April 2024
08 Elevation 1	Paul Meyer Design	17 April 2024
09 Elevation 2	Paul Meyer Design	17 April 2024
10 Section 1-1	Paul Meyer Design	17 April 2024
Landscape Plans
L-01- Site Plans – Issue C	Site Design Studios	4 April 2024
L-02- Landscape Area Calculations – Issue C	Site Design Studios	4 April 2024
L-03- Front Yard Landscape Plan – Issue C	Site Design Studios	4 April 2024
L-04- Rear Yard Landscape Plan – Issue C	Site Design Studios	4 April 2024
L-05- Planting Details – Issue C	Site Design Studios	4 April 2024
Other
Survey Plan	Pang Surveyors	2 April 2024
BASIX Certificate No A415906_03	Paul & David Consulting Pty Ltd	8 April 2024

2. The applicant filed the amended plans outlined above with the Court on 17 April 2024.

Orders

42. The Court orders that:

1. The appeal is upheld.

2. Development application number DA0340/22, as amended, for alterations and additions, including an upper floor addition, detached carport, swimming pool and associated works, for Lot 651 in Deposited Plan 752031, known as 14 Canberra Crescent, East Lindfield, is determined by the grant of development consent subject to the conditions included at Annexure A.

N Targett

Acting Commissioner of the Court

**********

Annexure A

Decision last updated: 26 April 2024