Land and Environment Court New South Wales Medium Neutral Citation: Burns Rd Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1340 Hearing dates: Conciliation conference on 15 June 2023 Date of orders: 04 July 2023 Decision date: 04 July 2023 Jurisdiction: Class 1 Before: Chilcott C Decision: In proceedings 2022/210035, the Court orders that: (1) Pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000 the Court, exercising the functions of the consent authority, agrees to the amendment of modification application MOD 0215/21 to include the amended plans and documents listed in Annexure A; (2) The appeal is upheld. (3) Development Consent No. DA0429/10, granted by the Respondent on 29 September 2010, is modified in the terms set out in Annexure B pursuant to modification application MOD0215/21; (4) Development Consent No. DA0429/10 as modified by the Court is at Annexure C. In proceedings 2023/28496, the Court orders that: (1) The appeal is upheld. (2) The Respondent is directed to issue a building information certificate for application no. EBCU0076/22, for works carried out to the carport roof and parapet wall for House B at 113 Burns Road, Wahroonga (legally described as Lot 1 in Deposited Plan 234275). Legislation Cited: Environmental Planning and Assessment Act 1979, s 4.55, 8.9, 8.25 Environmental Planning and Assessment Regulation 2000, cl 121B Land and Environment Court Act 1979, s 34 Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 6.3 State Environmental Planning Policy No.53- Metropolitan Residential Development 1997 State Environmental Planning Policy (Repeal of State Environmental Planning Policy No 53—Metropolitan Residential Development) 2011 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 Texts Cited: Department of Urban Affairs and Planning and NSW Environment Protection Authority, Managing Land Contamination: Planning Guidelines SEPP 55–Remediation of Land 1998 NSW Government Gazette No. 53 of 3 June 2011 Ku-ring-gai Development Control Plan 2023 Category: Principal judgment Parties: Burns Rd Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Vatala S (Solicitor)(Applicant) Morton C (Solicitor)(Respondent) Solicitors: Dentons Australia Limited (Applicant) Sparke Helmore (Respondent) File Number(s): 2022/210035 2023/28496 Publication restriction: Nil Judgment 1. COMMISSIONER: These two appeals concern a dual occupancy under construction at 113 Burns Road, Wahroonga (the Subject Site). The Applicant in the appeals is Burns Rd Pty Ltd and the Respondent is Ku-ring-gai Council. 2. The first appeal (2022/210035) (the modification appeal) relates to an application made pursuant to the provisions of s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent for the construction of the dual occupancy to accommodate a double garage and separate driveway (the Proposed Modification). 3. The second appeal (2022/28496) (the building information certificate appeal) is against the refusal of a building information certificate for works carried out to the carport roof and parapet wall at the premises. The final orders in each of the appeals, outlined in [17]-[18] below, are made as a result of agreements between the Parties that were reached following a conciliation conference. 4. The appeal with respect to the modification application, made with owner's consent, was lodged pursuant to s 8.9 of the EPA Act, and the appeal with respect to the building information certificate, also made with owner's consent, was lodged pursuant to s 8.25 of the Act. 5. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The Court also has broad powers with respect to the appeal concerning the building information certificate, pursuant to s 8.25(3) of the EPA Act. Section 8.25(3) provides: (3) On hearing the appeal, the Court may do any one or more of the following— (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. 1. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the Parties for both appeals, which was held on 15 June 2023. I presided over the conciliation conference. 2. At the conciliation conference, agreements under s 34(3) of the LEC Act were reached between the parties as to the terms of a decision in each of the proceedings that was acceptable to the Parties. The agreements reflect the signed agreements that were filed on 30 May 2023 in each appeal. 3. Under the Parties' agreements, which included the terms of a decision in the proceedings that would be acceptable to the Parties, the appeal is to be finalised through the Court upholding the appeal and granting consent to the Applicant's modification application, subject to conditions, and its building certificate application. 4. 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. 5. 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: The modification appeal 1. A jurisdictional requirement for modification applications is the precondition that the application, as modified, must be "substantially the same" development as the development for which consent was originally granted and before that consent, as originally granted, was modified (if at all) (s 4.55(2)(a) of the EPA Act). 2. The Parties agree, and I am satisfied, that, consistent with the evidence in the Planning Report prepared by Planning Outcomes Pty Ltd and filed with the Court on 21 March 2023 and the further letter prepared by Urbanesque Planning and filed with the Court on 27 April 2023, the Proposed Modification satisfies the requirements of section 4.55(2) for the following reasons: 1. the Proposed Modification is substantially the same as the approved development being an attached dual occupancy building with Torrens Title subdivision (semi-detached dwellings) with the provision of two on-site parking spaces per dwelling. The current approved and proposed plans can be seen to be essentially the same development as follows: 1. same ridge height and roof form; 2. same placement of windows; 3. same setbacks; 4. same floor space ratio as the approved plans above; 5. minor reduction in height of garage roof of 750mm; 6. same building footprint; and 7. remains two semi-detached dwellings. 1. the Proposed Modification will result in a slight increase to the approved landscape area within the front setback maintaining the landscaped character of the street and locality. The design of the front landscaped garden will minimise the impact of the driveways and garages on the streetscape; 2. accordingly, the Parties agree, and I am satisfied, that, based on a qualitative and quantitative assessment, the essential features of the development remain "substantially the same"; 3. for the purposes of section 4.55(2)(c) of the EPA Act, the Modification Application was notified by the Respondent for 14 days from 15 November 2021 and no submissions were received in response to that notification. 4. section 4.55(2) of the EPA Act also requires that the Court to take into consideration such matters referred to in section 4.15(1) of the Act that are of relevance to the development the subject of the application, and in relation to this: 1. concerning the provisions of Ku-ring-gai Local Environmental Plan 2015 (KLEP) and Ku-ring-gai Development Control Plan 2023 (KDCP): 1. the Subject Site is zoned R2 Low Density Residential under the provisions of cl 2.3 of the KLEP and the Applicant's dual occupancy development is a prohibited form of development in this zone; 2. however, State Environmental Planning Policy No.53 - Metropolitan Residential Development (SEPP 53) came into effect in 1997 and applied to Councils in the Greater Metropolitan Region (including Ku-ring-gai Council), and notwithstanding the zoning of the Subject Site as R2 Low Density Residential the original consent was granted pursuant to the provisions of SEPP 53 on 20 September 2010; 3. SEPP53 was repealed on 3 June 2011 through the commencement of State Environmental Planning Policy (Repeal of State Environmental Planning Policy No 53—Metropolitan Residential Development) 2011, but the modifications proposed in the application before the Court do not propose to change the approved land use; 4. further, the Parties agree, and I am satisfied that the Proposed Development as modified would remain compatible with the objectives of the R2 zone; 5. the application as amended would otherwise not breach any numerical controls of KLEP and is not located in an area map "Biodiversity" on the Respondent's Terrestrial Biodiversity Map for the purposes of clause 6.3 of KLEP; and 6. finally, the Parties agree, and I am satisfied, that the Applicant's amended plans can also be approved having regard to the provisions of KDCP applicable at the time that consent was granted on 29 September 2010 and s 4.15(1)(a)(iii) of the EPA Act; 1. concerning the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H): 1. In relation to the provisions of s 4.6(1) of SEPP R&H, the Parties agree, and I am satisfied, that consideration has been given to this matter and that consent can be granted; 2. for the purposes of ss 4.6(2) and 4.6(4) of SEPP R&H, the Parties agree, that the Subject Site is located within an established residential area with residential land uses continuing to the present and has a low risk for potential land contamination; 3. accordingly, the Parties agree and I am satisfied that the application is not on land specified in s 4.6(4) of SEPP R&H because there is no knowledge of development either being carried out for a purpose of a development listed in Table 1 of Managing Land Contamination: Planning Guidelines SEPP 55–Remediation of Land 1998, or such development being permissible and thereon satisfies clause 4.6(2) of SEPP R&H. The building information certificate appeal 1. The agreement in the building information certificate appeal directs the Council to issue a building information certificate for the carport roof and parapet wall for House B. 2. I am satisfied that the decision to direct the Council to issue a building information certificate for the carport roof and parapet wall, is a decision that the Court can make in the proper exercise of its functions. This is because such a decision falls within the broad power of the Court set out in s 8.25(3)(a) of the EPA Act to "direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit". 3. Having reached the state of satisfaction that the decision in each appeal 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)). 4. In making the orders to give effect to the agreement between the Parties in the modification appeal, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act Orders 1. In proceedings 2022/210035, the Court orders that: 1. pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000 the Court, exercising the functions of the consent authority, agrees to the amendment of modification application MOD 0215/21 to include the amended plans and documents listed in Annexure A: 2. the appeal is upheld. 3. Development Consent No. DA0429/10, granted by the Respondent on 29 September 2010, is modified in the terms set out in Annexure B pursuant to modification application MOD0215/21. 4. Development Consent No. DA0429/10 as modified by the Court is at Annexure C. 1. In proceedings 2023/28496, the Court orders that: 1. the appeal is upheld. 2. the Respondent is directed to issue a building information certificate for application no. EBCU0076/22, for works carried out to the carport roof and parapet wall for House B at 113 Burns Road, Wahroonga (legally described as Lot 1 in Deposited Plan 234275). M Chilcott Commissioner of the Court Annexure A (97114, pdf) Annexure B (220782, pdf) Annexure C (356033, 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: 04 July 2023