Kinala Pty Limited v Port Stephens Council (No 2) [2023] NSWLEC 1601

Land and Environment Court New South Wales

Medium Neutral Citation: Kinala Pty Limited v Port Stephens Council (No 2) [2023] NSWLEC 1601 Hearing dates: 12, 13 and 14 April 2023 Date of orders: 12 October 2023 Decision date: 12 October 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) The appeal is upheld. (2) Development application no 16-2021-781-1 for residential flat building (nine storeys) comprising 23 apartments, commercial tenancy, basement parking, landscaping, business identification sign and associated civil works at 17-19 Yacaaba Street, Nelson Bay is determined by granting consent to the application subject to the conditions in Annexure A. (3) All exhibits are retained. Catchwords: DEVELOPMENT APPEAL – residential flat building – contravention of the height of building development standard –interface with zone and interface with height of building – character – hierarchy of town centre - orders Cases Cited: Kinala Pty Limited v Port Stephens Council [2023] NSWLEC 1502 Category: Principal judgment Parties: Kinala Pty Limited ACN 608592258 (Applicant) Port Stephens Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) H Irish (Respondent)

Solicitors: LAS Lawyers and Consultants (Applicant) Local Government Legal (Respondent) File Number(s): 2022/188267 Publication restriction: Nil

JUDGMENT 1. COMMISSIONER: On 6 September 2023, I handed down my reasons for judgment in the Class 1 Development Appeal (Kinala Pty Limited v Port Stephens Council [2023] NSWLEC 1502) to uphold the appeal subject to conditions. 2. I made certain findings regarding additional conditions to be included and for ease of reference I reproduce [73]-[75] from my reasons as follows: "73. Regarding deep soil, the Applicant amended its design to include an accessible ramp which resulted in reducing deep soil landscaping from 7% to 3% on the southern boundary, being at a zone and HOB interface. I find that this is an important interface and accept the Applicant's closing submission that 'the evidence you have before you is that it can be redesigned to set it back further, thereby reintroduce some soft landscaping." Accordingly, a condition of consent should be included to the effect that the accessible ramp be redesigned to set it back further, thereby reintroduce some soft landscaping at the southern boundary. 74. As to sliding privacy screens, the Applicant submits in closing submission that: "in terms of separation distances, that is adequately dealt with by sliding privacy screens. If there needs to be a condition that says that the additional screening is to be provided to the balconies of units 501 and 503, and indeed 601, 603, 701 and 703 and 801 and 803, up the building, that can be done by condition, and also a condition to require that the screening on both the west and the northern elevation of those apartments is to be movable and not fixed. That will address both the privacy concerns and indeed the sustainability concern in terms of additional shading to, providing additional shading to the west facing balconies." (Tcpt, 13 April 2023, p(30)) 75. I find that a condition of consent should be included to the effect that additional screening is to be provided to the balconies of units 501 and 503, and indeed 601, 603, 701 and 703 and 801 and 803, up the building." 1. I directed the Parties to confer, and if possible, agree on the terms of conditions of consent, and amendments to other documents as may be necessary, relating to the redesign of the accessible ramp and inclusion of privacy screens to reflect the findings at [73] and [75], and to file the agreed conditions and any other appropriate amended documents as necessary. 2. On 28 September 2023, the parties filed agreed conditions of consent. On the same day, the Applicant filed a set of architectural plans and landscape plans in accordance with the approved plans listed in condition 1.0(2). It is now appropriate to grant the consent subject to those conditions.