XLJ Investment Group Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1607

Land and Environment Court New South Wales

Medium Neutral Citation: XLJ Investment Group Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1607 Hearing dates: 17-23 September 2020 Date of orders: 4 December 2020 Decision date: 04 December 2020 Jurisdiction: Class 1 Before: Walsh C Decision: The orders of the Court are: (1) Leave is granted to the Applicant to amend the application in accordance with the following material in the Applicant's bundle of documents filed 17 September 2020: architectural and landscape drawings, BASIX certificate and design verification statement. (2) The Applicant is to pay the Respondent's costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. (3) The appeal is dismissed. (4) Development application DA 495/18 is refused. (5) The exhibits are returned with the exception of Exhibits A, C, DD, EE and 3. Catchwords: DEVELOPMENT APPLICATION – residential flat building – orderly development – whether the securing of property-related rights, using easements over adjoining land, should provide the same assistance as site consolidation – interpretation of "site area" and implications for development standards – interpretation of "significant development" for the purposes of site area calculations – interpretation of controls to prevent "double dipping" in relation to floor space – biodiversity protection – Blue Gum High Forest – interpretation of whether potentially adverse environmental impact cannot be avoided – overshadowing – significance of compliance with a design guidance measure vs design criteria under the Apartment Design Guide – interpretation of "neighbouring properties" under the Apartment Design Guide – the need to consider design alternatives in instances of overshadowing –contravention of floor space ratio control Legislation Cited: Biodiversity Conservation Act 2016 Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Ku-ring-gai Local Environmental Plan (Local Centres) 2012 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Cases Cited: Antoniades Architects Pty Ltd v Canada Bay City Council [2014] NSWLEC 1019 Arkibuilt Pty Ltd v Ku-ring-gai Council [2014] NSWLEC 1161 Barrett and ors v Blue Mountains City Council [2011] NSWLEC 1341 Chehab v City of Canada Bay Council (2002) 123 LGERA 431; [2002] NSWLEC 220 Drummoyne v Roads and Traffic Authority (1989) 67 LGRA 155; [1989] NSWLEC 19 Edwards v Blue Mountains City Council [1961] NSWR 803 Futurespace Pty Ltd v Ku-Ring-Gai Council (2009) 169 LGERA 45; [2009] NSWLEC 153 Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2009] NSWLEC 149 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Louden Pty Ltd v Canterbury-Bankstown Council [2018] NSWLEC 1285 Mulpha Norwest Pty Ltd v The Hills Shire Council (No 2) [2020] NSWLEC 74 Oshlack v Richmond River (1993) 82 LGERA 222 Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 S J Connelly Pty Ltd v Ballina Shire Council [2010] NSWLEC 167 TK Commercial Property Holdings Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 144 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Wenli Wang v North Sydney Council [2018] NSWLEC 122 Texts Cited: Apartment Design Guide – NSW Department of Planning AS4282-1997 Control of the obtrusive effects of outdoor lighting Ku-ring-gai Local Centres Development Control Plan Macquarie Dictionary Online, accessed 13 November 2020 Category: Principal judgment Parties: XLJ Investment Group Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) J Smith (Respondent)