Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1044

Land and Environment Court New South Wales

Medium Neutral Citation: Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1044 Hearing dates: Conciliation conference on 1 February 2023 Date of orders: 07 February 2023 Decision date: 07 February 2023 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Applicant is granted leave to file in Court the documents referred to in [8]. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay those costs of the Respondent that were thrown away as a result of amending the development application to rely upon the clause 4.6 written requests referred to in note 1(b) & (c) of these orders in a sum as agreed or assessed. (3) The amended written request pursuant to clause 4.6 of Ku-ring-gai Local Environmental Plan 2015 seeking the grant of development consent in contravention of clause 4.3(2A) – Height of Buildings dated 31 January 2023 prepared by Chapman Planning is upheld. (4) The amended written request pursuant to clause 4.6 of Ku-ring-gai Local Environmental Plan 2015 seeking the grant of development consent in contravention of clause 4.4(2C) – floor space ratio dated 31 January 2023 prepared by Chapman Planning is upheld. (5) The appeal is upheld. (6) Development Application DA0574/21 for construction of a residential flat building comprising 11 units with basement carparking and associated works at 1074 Pacific Highway, Pymble (Lot 2 in Deposited Plan 1221712) is granted development consent subject to the conditions contained in the annexure marked "A". Catchwords: APPEAL – development application – residential flat building – breach of height development standard – potential breach of FSR development standard – 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 2000, cll 50, 55, Sch 1 Environmental Planning and Assessment Regulation 2021 Ku-ring-gai Local Environmental Plan 2015 cll 4.3, 4.4, 4.6, 5.10, 6.2, 6.3, 6.5, 6.6 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development cll 28, 30 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.119, 2.120, 2.121, 2.122 Texts Cited: NSW Department of Planning, Apartment Design Guide, July 2015 Category: Principal judgment Parties: Mackenzie Architects International Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: M Staunton (Applicant) A Stafford (Respondent)