Land and Environment Court New South Wales Medium Neutral Citation: Perrignon v Ku-ring-gai Council [2022] NSWLEC 1054 Hearing dates: 8 and 9 December 2021, 11 February 2022 Date of orders: 18 February 2022 Decision date: 18 February 2022 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application number DA 0084/21 lodged with the Respondent on 5 March 2021 and subsequently amended as filed with the Court on 28 January 2022, seeking consent for alterations and additions to the existing dwelling and garage and a new swimming pool on Lot 11 in DP 5168, also known as 16 Mackenzie Street, Lindfield, subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to a dwelling in a heritage conservation area – amended plans – conciliation conference – agreement reached. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cll 49, 55, Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 4.4, 4.6, 5.10, Sch 5 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land, cl 7 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cl 13, Div 2 Category: Principal judgment Parties: Matthew William Perrignon (First Applicant) Betina Perrignon (Second Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: A Pickles, SC (Applicants) K Gerathy, Solicitor (Respondent) Solicitors: Bick & Steele Lawyers (Applicants) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/249861 Publication restriction: No Judgment 1. COMMISSIONER: The proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicants against the deemed refusal of Development Application No. DA/0084/21 by Ku-ring-gai Council (the Respondent). The development application, as amended, seeks consent for alterations and additions to the existing dwelling and garage, and a new swimming pool. The development is proposed at 16 Mackenzie Street, Lindfield (Lot 11 in DP 5168). 2. 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(3)] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 3. The Court was required to arrange a conciliation conference between the parties, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 8 December 2021. I presided over the conciliation conference. 4. 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 agreement was subsequently filed on 15 February 2022, following the lodging of amended plans on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) on 28 January 2022. 5. The decision agreed upon is for the grant of development consent to the amended development application subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. 6. 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 are met, for the following reasons: 1. The Applicants, Matthew Perrignon and Betina Perrignon, are the owners of the site and, therefore, were able to lodge the DA pursuant to cl 49 of the EPA Regulation; 2. The DA was notified and publicly exhibited between 17 and 31 March 2021 in accordance with the EPA Act. I am satisfied that the submissions made by the public have been considered in the determination of the development application. 3. Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) applies to the site. Pursuant to LEP 2015, the site is zoned R2 Low Density Residential. Development for the purposes of residential dwelling houses is permitted in the R2 Zone. Demolition is permissible pursuant to cl 2.7 of LEP 2015. In determining the development application, I have had regard to the objectives of the zone: cl 2.3(2) of LEP 2015. 4. The proposed development complies with the development standard for height in the LEP 2015 but seeks a variation to the applicable development standard for floor space ratio (FSR) at cl 4.4 of LEP 2015. Pursuant to cl 4.4, the maximum FSR applicable to the site is 0.3:1. The proposed development exceeds the FSR development standard by approximately 3m². On the following basis I am satisfied that consent should be granted notwithstanding the contravention of the height development standard. 1. I am satisfied that the written request dated January 2022, lodged pursuant to cl 4.6 of the LEP 2015, adequately establishes sufficient environmental planning grounds that justify the breach in the height development standard, by demonstrating that: firstly, the breach allows for greater separation between the existing dwelling (a contributory item in the heritage conservation area) and the new addition, and secondly, the breach allows for the retention of the existing garage which is a preferred streetscape outcome. 2. I am also satisfied that the written request demonstrates that compliance with the standard is unreasonable and unnecessary given that the proposal is consistent with the objectives of the standard notwithstanding the non-compliance. 3. Further, I am satisfied, based on the content of the written request, that the proposal is in the public interest because it is consistent with the objectives of the zone and of the standard. 4. The states of satisfaction required by cl 4.6 of LEP 2015 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the FSR control. 1. The site is located in the Crown Blocks Heritage Conservation area under Sch 5 of LEP 2015. In determining the development application, I have considered the effect of the proposed development on the heritage significance of the heritage conservation area, as required by cl 5.10(4) of the LEP 2015. 2. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55—Remediation of Land. The Statement of Environmental Effects filed with the development application notes that the current and previous use of the land is for a residential purpose. Based on the historical use of the site as residential, it is considered unlikely that the site will require remediation works. No change of use is proposed by the development application. I accept that the site will be suitable for the proposed development. 3. An amended BASIX certificate has been filed to reflect the amended architectural plans in satisfaction of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004. 4. Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP SHC) applies to the site. No specific contention is raised by the Respondent in relation to the instrument. I accept the agreement of the parties that the proposed development is consistent with the planning principles set out in at cl 13 of SREP SHC and the matters for consideration at Div 2 of SREP SHC. 1. 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)). 2. 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. 3. The Court notes: 1. That the Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicants' amending DA 0084/21 in accordance with the following amended plans and documents: 1. Revised architectural plans (Rev D) – prepared by Bean Project Management & Design dated 17 December 2021: (i) Drawing 1 of 10: Site Analysis and Site Plan; (ii) Drawing 2 of 10: Ground Floor Plan and Site Plan; (iii) Drawing 3 of 10: First Floor Plan and Site Plan; (iv) Drawing 4 of 10: Roof Plan and Site Plan; (v) Drawing 5 of 10: Ground Floor Demolition Plan; (vi) Drawing 6 of 10: Path Driveway Edging Demolition Plan; (vii) Drawing 7 of 10: Pool and Studio Wall Demolition Plan; (viii) Drawing 8 of 10: First Floor Demolition Plan; (ix) Drawing 9 of 10: Elevations; (x) Drawing 10 of 10: Sections A-A and B-B; Pool Sections C-C and D-D; (xi) Drawing 1 of 2: Ground Floor Space Calculation Plan; (xii) Drawing 2 of 2: First Floor Space Calculation Plan; (xiii) Drawing 1 of 1: Built Upon Area Calculation Plan 1. Revised shadow diagrams (Rev D) prepared by Bean Project Management & Design dated 24 January 2022: (i) Drawing 1 of 4: 9:00am 21 June; (ii) Drawing 2 of 4: 12:00pm 21 June; (iii) Drawing 3a of 4: 1:00pm 21 June; (iv) Drawing 3b of 4: 1:00pm 21 June; (v) Drawing 4 of 4: 3:00pm 21 June; 1. Amended schedule of external materials and colours – prepared by Bean Project Management & Design dated 13 December 2021. 2. Revised stormwater plans (Rev D) – prepared by StormCivil dated 22 December 2021. 3. Revised environmental site management plan (Rev D) - prepared by StormCivil dated 22 December 2021. 4. Revised landscape plan (Rev D) – prepared by Peta Gilliland Landscape Design dated 18 December 2021. 5. Amended BASIX Certificate dated 20 December 2021. 6. Clause 4.6 Request prepared by Eugene Sarich of Urbanesque Planning dated 24 January 2022. 1. That the Applicants have uploaded the amended development application on the NSW planning portal on 28 January 2021. 2. That the parties agree that the Applicants' request pursuant to cl 4.6 of the LEP 2015 to a minor variation of the floor space ratio control in cl 4.4 of the LEP 2015 should be upheld. 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application number DA 0084/21 lodged with the Respondent on 5 March 2021 and subsequently amended as filed with the Court on 28 January 2022, seeking consent for alterations and additions to the existing dwelling and garage and a new swimming pool on Lot 11 in DP 5168, also known as 16 Mackenzie Street, Lindfield, subject to the conditions in Annexure A. ………………………… D M Dickson Commissioner of the Court Annexure A (289621, 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: 18 February 2022