Land and Environment Court New South Wales Medium Neutral Citation: Taylor v Ku-ring-gai Council [2023] NSWLEC 1642 Hearing dates: Conciliation conference on 25 October 2023 Date of orders: 31 October 2023 Decision date: 31 October 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The appeal is upheld. (2) Development Consent is granted to Development Application Number DA0422/22 for alterations and additions to the existing dwelling including construction of a basement level and reconstruction of a tennis court above, on land legally described as Lot 1 DP 577743 and Lot 2 DP 577743 known as 26A Merrivale Road, Pymble NSW 2073, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, s 38 Ku-Ring-Gai Local Environmental Plan 2015, cll 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, Sch 5 Land and Environment Court Act 1979, s 34, 34AA State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: Victoria Taylor (Applicant) Ku-Ring-Gai Council (Respondent) Representation: Counsel: D Tyrrell (Solicitor) (Applicant) C Morton (Solicitor) (Respondent) Solicitors: Tyrrells Planning Law (Applicant) Sparke Helmore (Respondent) File Number(s): 2023/140200 Publication restriction: No Judgment 1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Ku-ring-gai Council, of development application No. DA0422/22 which seeks consent for alterations and additions, involving construction of a first floor addition and basement (below tennis court), to an existing heritage listed dwelling at 26A Merrivale Road, Pymble, Lot 1 in DP 577743 and Lot 2 in DP 5577743. 2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court arranged a conciliation conference under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 25 October 2023. I presided over the conciliation conference, at which the parties reached agreement as to the acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if that decision is one 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, however there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following points. 5. The development application has been made with the consent of the owner of the subject site. 6. The development application was appropriately notified, and no submissions were received. Further, the parties submit, and I accept, that the application as amended through this process does not require re-notification as the environmental impact of the amendments will be the same or lesser than the original proposal. 7. Pursuant to the provisions of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), the site is zoned R2 Low Density Residential. Development for the purposes of dwelling house is permissible with consent in this zone. 8. As demonstrated by architectural drawing A202 Rev G, the proposed building is below the maximum building height control of 9.5m established by KLEP cl 4.3. 9. The site is located within the A3 floor space area zone pursuant to KLEP cl 4.4, which places a maximum floor space ratio (FSR) provision over the site of 0.3:1. The application as amended has an FSR of 0.285:1, which is compliant with this development standard. 10. The site is identified as an item of local heritage significance in Sch 5 of the KLEP. Based on the parties' submission and the information contained in the Statement of Heritage Impact prepared by GBA Heritage, the Evolutionary Drawings that formed the basis of the joint report, and the Construction Management Report prepared by McKee and Associates Pty Ltd, I accept that the application as amended meets the relevant heritage conservation objectives of KLEP cl 5.10, as it will conserve the environmental significance of Ku-ring-gai and the significance of the existing building. 11. The site is not considered to be within a flood planning area, and so the provisions of KLEP cl 5.21 do not apply to this application. 12. Pursuant to KLEP cl 6.1, although the site is mapped as Class 5 on the Acid Sulfate Soils Map, it is not located within 500m of any land mapped as Class 1, 2, 3 or 4. Subsequently, no works identified in the table within subcl 6.1(2) are proposed, and no development consent is required pursuant to this clause. 13. Pursuant to the requirements of KLEP cl 6.2, the parties submit, and I accept that the matters relating to earthworks that are identified in subcl 6.2(3) have been adequately considered as part of the assessment of the amended application, and that the proposed bulk earthworks and excavation are acceptable. 14. The NSW Biodiversity Map shows the subject site as partially containing land of biodiversity significance, however it is not identified as containing terrestrial biodiversity. The documents filed with the amended application confirm the parties' submission that no works are proposed within the mapped area, and the proposal therefore satisfies the requirements of KLEP cl 6.3. 15. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) requires the consent authority to consider whether the land is contaminated. Based on the information contained within the Statement of Environmental Effects and the parties' submission, I accept that the site has been historically used for residential purposes and there are no known actions that may have led to contamination of the subject site. Subsequently, I am satisfied that there is no evidence of contamination or potentially contaminated activities and that, pursuant to the requirements of s 4.6, the site is suitable for its intended purpose. 16. A BASIX certificate has been filed with the amended application in accordance with State Environmental Planning Policy (Building Sustainability Index) (BASIX) 2004. 17. For these reasons, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 18. As the parties' decision is one that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 19. The Court notes: 1. The Respondent, Ku-ring-gai Council, has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA0422/22 to rely upon the following amended plans and documents: Amended Architectural Plans Plan Prepared by Dated Architectural Plans A000 – A803 Revision G Playoust Churcher Architects 25 September 2023 Supporting Documentation BASIX Certificate No. A472901_03 Gradwell Consulting 26 September 2023 Colours and Finishes schedule A1000 Revision G Playoust Churcher Architects 25 September 2023 Construction Management Report for Underpinning the house over the basement connecting passage McKee and Associates Pty Ltd 31/08/2023 1. The Court orders: 1. The appeal is upheld. 2. Development Consent is granted to Development Application Number DA0422/22 for alterations and additions to the existing dwelling including construction of a basement level and reconstruction of a tennis court above, on land legally described as Lot 1 DP 577743 and Lot 2 DP 577743 known as 26A Merrivale Road, Pymble NSW 2073, subject to the conditions of consent at Annexure A. E Washington Acting Commissioner of the Court Annexure A ********** 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: 01 November 2023