Land and Environment Court New South Wales Medium Neutral Citation: Gelder Architects v Ku-ring-gai Council [2020] NSWLEC 1308 Hearing dates: Conciliation conference on 13 July 2020 Date of orders: 17 July 2020 Decision date: 17 July 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is granted leave to amend the development application to rely upon the plans and documents referred to in Condition 3 of Annexure A to this agreement. (2) The Applicant is to pay the respondents costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in respect of the further amendments to the development application filed 10 July 2020. (3) The appeal is upheld. (4) Development Application DA0394/18 for refurbishment of three existing dwellings and construction of 8 additional seniors housing apartments at 67-71 Archbold Road, Roseville, is approved subject to the conditions in Annexure A to this agreement. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – seniors housing development – amended plans – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Regulation 2000 Ku-ring-gai Local Environmental Plan 2015 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 55—Remediation of Land Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Texts Cited: Department of Infrastructure, Planning and Natural Resources, Seniors Living Policy: Urban Design Guidelines for Infill Development, (March 2004) Category: Principal judgment Parties: Gelder Architects (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: M Staunton (Applicant) R Cunningham (Solicitor) (Respondent) Solicitors: Sattler & Associates (Applicant) Shaw Reynolds Lawyers (Respondent) File Number(s): 2019/103437 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant, Gelder Architects, appeals pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Ku-ring-gai Council of Development Application No. DA/0394/18. As amended, the development application seeks consent for the refurbishment of three existing dwellings on the site and construction of eight additional seniors housing apartments at 67-71 Archbold Road, Roseville (the site). 2. On 19 June 2020 the Registrar of the Court granted leave to the Applicant to amend its development application. It is this amended application that is the subject of this judgment and the basis of the agreement between the parties. 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to s 4.16 of the EPA Act. 4. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which was held on 25 November 2019. The parties were unable to reach agreement at that conciliation conference. The Commissioner who presided at this conciliation conference terminated the conciliation conference under s 34(4) of the LEC Act. The Court then fixed the proceedings for hearing. 5. Prior to the commencement of the hearing, at the request of the parties, the Court arranged a second conciliation conference under s 34(1)(a) of the LEC Act and adjourned the further hearing of the proceedings until after that conciliation conference had been held. Through the conciliation process, the parties have agreed an amended design for the development. Following the second 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 would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16 of the EPA Act. 6. 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 have formed this state of satisfaction for the following reasons: 1. The development application was lodged with the consent of the owners of the land to which the development relates: cl 49 of the Environmental Planning and Assessment Regulation 2000 (the Regulation). 2. As required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land, consideration has been given as to whether the subject site is contaminated. The planning certificate applicable for each of the relevant parcels of land to which the development relates notes: "A review of Council's readily available records has been conducted to identify previous land uses that may have caused land contamination. This review did not reveal any reason for contamination of this property". The Council does not raise a contention in relation to contamination. 3. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site. In determining the application, I have taken into consideration the matters in Division 2 of the instrument as are relevant to the development application. 4. The development application is made pursuant to the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD). The policy applies to the site as it is zoned R2: Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015): cl 4 SEPP HSPD. 5. Despite being located within a Heritage Conservation Area (HCA) the provisions of SEPP HSPD the provisions continue to apply as the development application was lodged prior to the commencement of cl 4A(2)(1) of SEPP HSPD. 6. The annexed conditions of consent include, at condition 114, a restriction on occupation of the seniors housing in accordance with s 18 of SEPP HSPD, satisfying cl 18(2) of the instrument. 7. I am satisfied, by the written evidence of Lindsay Perry in her report of 10 July 2020, the updated Disability Access Report dated 9 July 2020 and the civil works plans which form part of the approved plans, that residents of the proposed development will have access that complies with cl 26(2) of SEPP HSPD. 8. The site is not bushfire prone land: cl 27 of SEPP HSPD. 9. The site is connected to a reticulated water system and has adequate facilities for the removal or disposal of sewage: cl 28 of SEPP HSPD. 10. In determining the application, I have taken into consideration the criteria referred to in cll 25(5)(b)(i), (iii) and (v) of SEPP HSPD. 11. I am satisfied that applicant has taken into account a site analysis prepared in accordance with cl 30 of SEPP HSPD. Further, I have given consideration to the provisions of the Seniors Living Policy: Urban Design Guidelines for Infill Development published by the Department of Infrastructure, Planning and Natural Resources in March 2004. 12. In determining the application, I am satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2 of SEPP HSPD. 13. I am satisfied that the proposed development complies with the standards detailed at cl 40 and the standards listed at cl 41 of SEPP HSPD for self-contained dwellings. 14. The subject site is zoned R2 Low Density Residential under LEP 2015. I have given consideration to the objectives of the zone in determining the development application. 15. Consideration has been given as to the effect of the proposed development on the heritage significance of the HCA pursuant to cl 5.10(4) of LEP 2015. It is considered that any impact will be acceptable. 16. Clause 6.1: Acid sulfate soils in LEP 2015 is satisfied as the site is mapped as Class 5 and no works are within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land. 17. In determining to grant development consent for the ancillary earthworks I have given consideration to the matters at cl 6.2(3) of LEP 2015. 18. An updated BASIX certificate has been provided to satisfy the requirement in Schedule 1 of the Regulation and State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 19. The application was notified in accordance with the relevant development control plan and I am satisfied that the submissions have been considered. 1. 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. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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. 3. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are: 1. The Applicant is granted leave to amend the development application to rely upon the plans and documents referred to in Condition 3 of Annexure A to this agreement. 2. The Applicant is to pay the respondents costs thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), in respect of the further amendments to the development application filed 10 July 2020. 3. The appeal is upheld. 4. Development Application DA0394/18 for refurbishment of three existing dwellings and construction of 8 additional seniors housing apartments at 67-71 Archbold Road, Roseville, is approved subject to the conditions in Annexure A to this agreement. ……………………………….. D M Dickson Commissioner of the Court Annexure A (512922, pdf) Plans (19353941, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2020