Land and Environment Court New South Wales Medium Neutral Citation: Metro St Ives Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1287 Hearing dates: Conciliation Conference on 18 April 2023 Date of orders: 09 June 2023 Decision date: 09 June 2023 Jurisdiction: Class 1 Before: O'Neill C Decision: The orders of the Court are: (1) The Applicant is granted leave to amend Development Application No. 0270/22 in accordance with the schedule of plans referred to in Condition 1 of the conditions of consent at Annexure A. (2) The appeal is upheld. (3) The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application in the amount of $17,133, within 21 days of the date of these orders, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (4) Development Application No. 0270/22, as amended, for the demolition of existing structures and construction of a multi dwelling housing development containing 25 dwellings, basement parking and associated works, at 46-50 Cowan Road, St Ives, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – multi-dwelling housing development – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Ku-ring-gai Local Environmental Plan 2015, cll 6.2, 6.5, 6.6 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Metro St Ives Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: H Irish (Applicant) P Shumack (Solicitor) (Respondent) Solicitors: Minter Ellison (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2022/354887 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 0270/22, as amended, for the demolition of existing structures and construction of a multi dwelling housing development containing 25 dwellings, basement parking and associated works (the proposal), at 46-50 Cowan Road, St Ives (Lot 2 DP 22368, Lot 3 DP 22368 and Lot 4 DP 22368) (the site), by Ku-ring-gai Council (the Council). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 April 2023. I presided over the conciliation conference. 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. 3. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 4. There are preconditions to the exercise of power to grant development consent for the proposal. Jurisdiction pre-requisites 1. The site is zoned R3 Medium Density Residential pursuant to Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). Multi-dwelling housing is a nominate permissible use with consent in the R3 zone. The objectives of the zone, to which regard must be had, are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To provide a transition between low density residential housing and higher density forms of development. 1. Clause 6.6(2) of LEP 2015 requires a minimum allotment size of 1200m2 for multi-dwelling housing in the R3 zone and the site has an area of 5,901m2. 2. Clause 6.2(3) of LEP 2015 requires development consent for earthworks to ensure they will not have a detrimental impact, and the consent authority, or the Court exercising the functions of the consent authority, must consider the matters set out under cl 6.2(3), as follows: (3) In deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the following matters— (a) the likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development, (b) the effect of the development on the likely future use or redevelopment of the land, (c) the quality of the fill or the soil to be excavated, or both, (d) the effect of the development on the existing and likely amenity of adjoining properties, (e) the source of any fill material and the destination of any excavated material, (f) the likelihood of disturbing relics, (g) the proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area, (h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. Clause 6.5 of LEP 2015 requires the consent authority, or the Court exercising the functions of the consent authority, to be satisfied of various matters regarding stormwater and water sensitive urban design set out under subcl (2), as follows: (2) Before granting development consent to development on any land to which this Plan applies, the consent authority must be satisfied that— (a) water sensitive urban design principles are incorporated into the design of the development, and (b) riparian, stormwater and flooding measures are integrated, and (c) the 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, native bushland, waterways and groundwater systems, and (d) if a potential adverse environmental impact cannot be feasibly avoided, the development minimises and mitigates the adverse impacts of stormwater runoff on adjoining properties, native bushland, waterways and groundwater systems. 1. I accept the Council's submission that the above matters are satisfied by the amendments made to the application and the detailed response in the Statement of Environmental Effects filed with the application. 2. I am satisfied that the development is suitable for the site as the site has been used for residential purposes for an extended period of time, pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021. Conclusion 1. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 12 May 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions. Orders 1. The orders of the Court are: 1. The Applicant is granted leave to amend Development Application No. 0270/22 in accordance with the schedule of plans referred to in Condition 1 of the conditions of consent at Annexure A. 2. The appeal is upheld. 3. The Applicant is to pay those costs of the Respondent that have been thrown away as a result of the amendment of the application in the amount of $17,133, within 21 days of the date of these orders, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 4. Development Application No. 0270/22, as amended, for the demolition of existing structures and construction of a multi dwelling housing development containing 25 dwellings, basement parking and associated works, at 46-50 Cowan Road, St Ives, is determined by the grant of consent, subject to the conditions of consent at Annexure A. Susan O'Neill Commissioner of the Court 354887.22 Annexure A (410104, 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: 09 June 2023