Zou v Ku-ring-gai Council

[2023] NSWLEC 1425

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zou v Ku-ring-gai Council [2023] NSWLEC 1425

Hearing dates:

Conciliation conference on 21 July 2023

Date of orders:

08 August 2023

Decision date:

08 August 2023

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as agreed in the sum of $2,300 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2)   The appeal is upheld.

(3)   Development consent is granted to Development Application DA0226/22 lodged on 7 June 2022, as amended, for the Torrens title subdivision of one lot into two, demolition of four outbuildings and associated works at 4 Illoura Avenue Wahroonga NSW 2076, subject to the conditions of consent at Annexure A.

Catchwords:

APPEAL – development application – Torrens title subdivision and retention of heritage item – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2021, ss 37, 38

Ku-ring-gai Local Environmental Plan 2015, cll 2.6, 2.7, 4.1, 4.3, 4.4, 5.10, 6.2, 6.3, 6.5

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2, 9, ss 2.10, 6.65, 9.3

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

Category:

Principal judgment

Parties:

Minghai Zou (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
S Frost (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Hall & Wilcox (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/352160

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This appeal concerns a development application for the Torrens title subdivision of land at 4 Illoura Avenue, Wahroonga, which includes the retention of the existing heritage item which will remain on one of the subdivided lots. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 21 July 2023. I presided over the conciliation conference.

3. At 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. The final agreement was filed on 24 July 2023, following the Council’s approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments made were to achieve consistency between the engineering plans, the vegetation management plan and biodiversity development assessment report, which now reflect the area of the on-site detention basin for OSD 2 including an above ground landscaped area.

4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement that provides details of the site and zoning, and addresses the jurisdictional matters about which the Court must be satisfied prior to the grant of development consent. I have considered the contents of the Jurisdictional Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The proposed development, as amended, seeks the carrying out of works and subdivision at 4 Illoura Avenue, Wahroonga, and the development application was made with the consent of the owner of the land.

• The development includes the subdivision of land, the demolition of buildings, and the carrying out of engineering works for the subdivision, which is permissible in the R2 Low Density Residential zone in which the site is located, pursuant to cll 2.6 And 2.7 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP).

• The subdivided lots that result from the proposed development comply with the development standards for minimum lot size of subdivided lots in cl 4.1 of the KLEP and minimum width for subdivided lots in cl 4.1(3A). The proposed development does not result in a breach of either the height of buildings development standard in cl 4.3 or the floor space ratio development standard in cl 4.4 of the KLEP.

• A heritage item is located on the site. The effect of the development on the heritage significance of the heritage items has been considered, as required by cl 5.10(4) of the KLEP. A heritage impact assessment prepared by Mr Graham Brooks accompanied the Class 1 Application and I am satisfied that the proposed development does not unacceptably impact the heritage significance of the heritage item.

• The development application includes earthworks for the provision of the stormwater drainage. Based on the stormwater concept design plans and the limited extent of any excavation, I have considered the matters set out in cl 6.2(3) of the KLEP.

• The north-western corner of the Site is located on land defined as “Biodiversity” on the Terrestrial Biodiversity Map under the KLEP, such that cl 6.3 of the KLEP applies. Based on the Biodiversity Development Assessment Report dated 26 June 2023, the Vegetation Management Plan dated 26 June 2023 and the Arboricultural Impact Report dated 5 May 2023, I have considered the matters in cl 6.3(3) of the KLEP and I am satisfied of the matters in cl 6.3(4).

• Based on the stormwater concept design that forms part of the amended development application, I am satisfied of the matters in cl 6.5(2) of the KLEP concerning stormwater and water sensitive urban design.

• Pursuant to s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C), the repealed Ch 9 of the SEPP B&C continues to apply to the proposed development. Chapter 9 concerns the Hawkesbury-Nepean River system. Based on the documents accompanying the Class 1 Application and the amended development application, I have considered the matters required to be considered by s 9.3.

• Chapter 2 of the SEPP B&C concerns the clearing of vegetation in non-rural areas. Consistent with the requirements of s 2.10(3), if applicable to a development application, I am satisfied that the removal of the trees on the site as part of the proposed development is of a relatively minor nature and will not affect the heritage significance of the heritage item.

• Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated.

• The development application was notified between 21 June 2022 and 5 July 2022 and again between 13 July 2022 and 27 July 2022. I have considered the issues raised in those submissions, which are summarised in the Statement of Facts and Contentions filed on 13 December 2022.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

8. The Court notes that:

1. Ku-ring-gai Council, as the relevant consent authority, has agreed under section 38 of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Development Application No DA0226/22 in accordance with the documents listed below:

Plan no.	Drawn by	Dated
Civil Engineering plans
CC180622 Dwg No. D1, D2, D3, D4, D6, D7, D9, D10, D11, D12, D13 all issue ‘G’	ACOR Consultants	13/09/2022
CC180622, B1, B2, B3, B4, issue B	ACOR Consultants	26/05/2023
SK1 and SK2	ACOR Consultants	23/02/2023
Subdivision plans
DA-3003, issue H, subdivision plan and proposed new driveway	David White Architects Pty Ltd	2/5/2023
DA-4001, issue E, Lot 1: existing house, existing outbuilding & approved pool house & gym fsr: ground floor	David White Architects Pty Ltd	2/5/2023
DA-4002, issue B, lot 1: existing house, existing outbuilding & approved pool house & gym fsr: upper floor	David White Architects Pty Ltd	2/5/2023
Landscape plan
LP04 B, landscape plan – subdivision, issue B	Selena Hannan	2/5/2023

Document(s)

Dated

Arboricultural Impact Assessment Report, Subdivision Access Driveway

prepared by Selena Hannan

27/09/2021

Arboricultural Impact Assessment Report, Subdivision: indicative house footprint and driveway within subdivided lot (not including access driveway),

REVISION B: prepared by Selena Hannan

5/05/2023

Vegetation Management Plan prepared by Land Eco Consulting

26/06/2023

Biodiversity Development Assessment Report Version 2

26/06/2023

9. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as agreed in the sum of $2,300 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA0226/22 lodged on 7 June 2022, as amended, for the Torrens title subdivision of one lot into two, demolition of four outbuildings and associated works at 4 Illoura Avenue WAHROONGA NSW 2076, subject to the conditions of consent at Annexure A.

J Gray

Commissioner of the Court

352160.22 Annexure A

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Decision last updated: 08 August 2023