Land and Environment Court New South Wales Medium Neutral Citation: Castle Constructions Pty Ltd v Ku-ring-gai Council [2021] NSWLEC 1515 Hearing dates: Conciliation conference on 29-30 July and 5 August 2021 Date of orders: 03 September 2021 Decision date: 03 September 2021 Jurisdiction: Class 1 Before: Chilcott C Decision: Orders – see [17] Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7(1), 8.14 Environmental Planning and Assessment Regulation 2000, cll 55(1), 77 and Sch 1 Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 5.10, 6.1, 6.5 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Texts Cited: Ku-ring-gai Development Control Plan 2015 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (April 2021) Category: Principal judgment Parties: Castle Constructions Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: T Robertson SC (Applicant) G Farland (Respondent) Solicitors: Domain Legal (Applicant) Hones Lawyers (Respondent) File Number(s): 2021/81273 Publication restriction: No Judgment 1. COMMISSIONER: Castle Constructions Pty Ltd (the Applicant) has appealed the refusal by Ku-ring-gai Council (the Respondent) of its development application (DA 0424/20) the demolition of existing structures and the construction of a two storey dwelling with swimming pool, front fence and associated works (the Proposed Development) at 42 Northcote Avenue, Killara (the Subject Site). 2. The Subject Site is zoned R2 Low Density Residential under Ku-ring-gai Local Environmental Plan (KLEP). The Proposed Development is permissible with consent on the Subject Site. 3. The appeal comes to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The proceedings are determined pursuant to the provisions of s 4.16 of the EP&A Act. 4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 29-30 July, and 5 August 2021, and I presided over the conciliation conference. 5. The conciliation conference was convened in a manner consistent with the Court's COVID-19 Pandemic Arrangements Policy (the Policy). A site view was not undertaken as part of the conciliation conference, and no objectors had sought to make representations to the Court in relation to the proceedings. 6. 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. This decision involved the Court upholding the appeal and granting consent to the Applicant's development application, subject to conditions. 7. 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. 8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows: 1. in relation to the provisions of cl 7 of State Environmental Planning Policy No 55—Remediation of Land (SEPP55), the Parties have confirmed, and I accept that: 1. contamination was not raised as a contention in the proceedings nor an issue in the assessment of the Applicant's development application (DA 0424/20); 2. as the historic use of the Subject Site has been residential, and the Proposed Development is for continuing residential use, no change of use is proposed for the Subject Site; 3. a certificate issued to the Applicant by the Respondent under s 10.7 of the EP&A Act and dated 19 August 2021 has confirmed that "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." 4. having considered whether the land is contaminated, and on the basis of the information provided above (at [(a)], [(b)] and [(c)]) the provisions of cl 7 of SEPP55 are satisfied and no further investigation of the Subject Site is required; 1. in relation to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX), the Applicant has provided BASIX Certificate number: 1139836S in satisfaction of the provisions of SEPP BASIX; 2. in relation to the provisions of KLEP, the Parties advise, and I accept that: 1. the land is zoned R2 Low Density Residential. Dwelling houses are permissible with consent under the provisions of cl 2.3(1)(c) of KLEP; 2. development on the Subject Site is subject to a height of buildings (HoB) development standard of 9.5m under the provisions of cl 4.3 of KLEP, and the Proposed Development exceeds this standard. The exceedance of the height plane is shown on the Applicant's drawing DA-1103. The vertical exceedances are 0.335m at the rear of the proposed dwelling and 0.360m at its front. The Applicant has provided a written request, pursuant to the provisions of cl 4.6 of KLEP, to vary the HoB development standard, and I am satisfied that, pursuant to the provisions of subcll 4.6(3) and 4.6(4) of KLEP, the Applicant's written request has justified the proposed contravention of the HoB development standard because: 1. compliance with the standard is unreasonable or unnecessary in the circumstances of this case because the relevant objective of the standard is achieved n notwithstanding the non-compliance. The relevant objective in this case is objective (c) which seeks to enable development with a built form that is compatible with the size of the land to be developed. The Applicant's request submits that this objective is achieved by the marginal exceedance of the height plane which provides a roof form that is typical of those constructed within the neighbouring Heritage Conservation Area (HCA), and on similar sized lots, thus ensuring that the Proposed Development is compatible with the size of the Subject Site; 2. sufficient environmental planning grounds exist to justify the non-compliance because the variation enables the Proposed Development, located within a HCA, to achieve an acceptable heritage outcome by sloping the roof at a steeper angle, which can only be achieved by an exceedance of the HoB standard. The request notes that the inter-war buildings which are contributory to the HCA in the local area are of a two-storey built form, have a steeply sloping roof and predominantly exceed the HoB standard. The Applicant's request also notes that in their joint report the Parties' heritage experts agreed that the HoB proposed within the Applicant's amended plans was acceptable and was not sufficiently perceptible from the public realm to warrant refusal; 3. the Applicant's proposed HoB non-compliance is consistent with the objectives of development within the R2 zone of the Subject Site, because the two relevant zone objectives are to provide for the housing needs of the community within a low density residential environment and to provide for housing that is compatible with existing environmental and built character of Ku-ring-gai. The Applicant's written request states that the Proposed Development is consistent with the first of these objectives because the Proposed Development is for low-density housing. It also submits that it is consistent with the second objective because the design now reflects architectural elements from the inter-war era, and is of high quality within a garden setting typical of large, two-storey dwellings such that it is in character with housing of the relevant era in Ku-ring-gai; 4. approval of the Proposed Development will be in the public interest because it is consistent with the objectives of the HoB development standard and with the objectives for development within the R2 zone in which the Proposed Development is proposed to be carried out; 1. development on the Subject Site is subject to the provisions of cl 4.4 of KLEP in relation the floor space ratio (FSR) development standard, and I am satisfied that the Proposed Development is compliant with the FSR development standard applicable to the Subject Site. The Parties have advised, and I accept, that compliance with this standard ceased to be a contention between the Parties once gross floor area was correctly calculated in the Applicant's amended plans; 2. the provisions of cl 5.10(4) of KLEP do not form a jurisdictional prerequisite to the grant of consent to the Proposed Development but do require that the Court consider the impact of the Proposed Development on the heritage significance of the HCA. In relation to this: 1. an amended heritage impact statement has been prepared (3 August 2021), within which the amended design is assesses as satisfactory; 2. any difference in opinion between the heritage experts concerning the provisions of cl 5.10 of KLEP related to the composition of the Proposed Development's façade and the degree of formality (expressed as symmetry) that was thought by one of the experts to be atypical within the street. This difference in opinion was resolved through the Applicant's preparation of amended plans that included amendment to the presentation of the front façade of the Proposed Development; 3. I am satisfied that, having given consideration to the provisions of cl 5.10(4) of KLEP, the Proposed Development (as amended) is acceptable in terms of its potential impact on the heritage significance of the HCA; 1. development on the Subject Site is subject to the provisions of cl 6.1 in relation to acid sulphate soils, in relation to which the Parties have advised, and I accept, that: 1. the Subject Site is identified on the Respondent's acid sulphate soils mapping as containing class 5 acid sulphate soils; 2. no works are proposed within 500m of adjacent land mapped as class 1, 2, 3 or 4 acid sulphate soils land that is below 5m AHD and on which the water table is likely to be lowered below 1m AHD on the adjacent land; and 3. the requirement for an acid sulphate soils management plan, which is imposed by cl 6.1(3), does not therefore apply; 1. development on the Subject Site is subject to the provisions of cl 6.5 of KLEP concerning stormwater and water sensitive urban design, and in relation to which the Parties had advised, and I am satisfied, that: 1. water sensitive urban design principles are incorporated into the design of the Proposed Development as confirmed through the Applicant's engineering plans in satisfaction of cl 6.5(2)(a) of KLEP and Part 24 of Ku-ring-gai Development Control Plan 2015 (KDCP) in relation to water management; 2. the Subject Site is not close to native bushland, waterways, groundwater systems or riparian areas, and the Applicant has confirmed that stormwater overflows will be discharged via a drain to a grated inlet pit at the north-eastern property boundary and then drained by an existing pipe easement approved in accordance with an earlier development consent through number 44 and an adjoining property to the street. Further, while three boreholes were drilled by GK Geotechnics as reported in its Geotechnical report, lodged with the Applicant's development application, none encountered a high water table, some groundwater seepage was observed in the course of drilling, but there was no evidence of a groundwater system. As a consequence, in my assessment riparian, stormwater and flooding measures are integrated within the Proposed Development and the Applicant's stormwater management system includes all reasonable management actions to avoid any adverse impacts on the land to which the development is to be carried out, adjoining properties, in satisfaction of subcll 6.5(2)(b) and 6.5(2)(c); 3. on the basis of the above (at [(i)] and [(ii)]), adverse environmental impact have been avoided, in satisfaction of cl 6.5(2)(d); 1. the Applicant's development application was notified between 2 and 16 November 2020, consistent with the provisions of cl 77 and Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) and of the KDCP, and no submissions were received in response to that notification. 1. There are no other jurisdictional prerequisites that must be satisfied before the Court can exercise the power to determine the appeal under s 4.16 of the EP&A Act. 2. Having considered the advice of the Parties, provided above at [8], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied. 3. I am further satisfied that the Parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 4. As the Parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties' decision. 5. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties. 6. I have previously made an order that, exercising under s 8.14(1) of the EP&A Act the functions and discretions of the relevant consent authority under cl 55(1) of the EP&A Regulation, the Court agrees to the Applicant amending the development application DA0424/20 in accordance with the following plans and documents: DRAWING NO. ISSUE NO. DATE NAME DA-400 K 29/07/21 Site Plan DA-1100 M 16/07/21 Lower Ground Plan DA1101 M 29/07/21 Ground Floor Plan DA-1102 M 29/07/21 First Floor Plan DA-1103 H 29/07/21 Roof Plan DA-1200 J 29/07/21 Elevations DA-1201 J 29/07/21 Elevations DA-1203 C 29/07/21 Front Elevation Streetscape Massing DA-1300 I 29/07/21 Sections DA-2040 G 02/08/21 Amended Schedule of Finishes DRAWING NO. ISSUE NO. DATE NAME LP-01-C C 01/06/21 Landscaping Plan ------- ------ 03/08/21 42 Northcote Avenue – South Elevation – Proposed Planting -------- ------- 29/07/21 42 Northcote Avenue – Driveway East Elevation 1. Statement of Environmental Effects, prepared by Nolan Planning Consultants for 42 Northcote Avenue, Killara NSW 2071, Revision 3, dated August 2021. 2. Request for variation to development standard under cl 4.6 of the KLEP in respect of cl 4.3 of the KLEP dated 30 July 2021. 3. Statement of Heritage Impact (Amended) for the proposed development at 42 Northcote Avenue, Killara NSW 2071, prepared by GBA Heritage, dated 3 August 2021. 1. I have also previously directed that: 1. the Respondent, Ku-ring-gai Council, is to lodge the amendment of the development application in the NSW Planning Portal within 7 days of the date of this order and notify the Applicant after it has been lodged. 2. the Applicant is to file a copy of the amended development application as lodged on the NSW Planning portal with the Court within 7 days of the Respondent completing lodgement on the Planning Portal. 1. The Parties have now complied with Court's directions above (at [15]) and so I can make final orders to dispose of this appeal. Orders 1. The Court orders: 1. The Applicant's written request prepared pursuant to the provisions of cl 4.6 of KLEP and seeking a variation to the height of building development standard in cl 4.3 of the KLEP is upheld. 2. The Appeal is upheld. 3. Development consent is granted to DA 0424/20 (as amended) for the demolition of existing pool and construction of a new dwelling with pool, front fence and associated works at 42 Northcote Avenue, Killara NSW 2071, subject to the conditions in Annexure "A". 4. The Respondent is directed to upload the development consent to the Planning Portal within 7 days of this judgment. ………………………….. M Chilcott Commissioner of the Court Annexure A (255916, 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: 03 September 2021