McIntyre Development Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1760

Land and Environment Court New South Wales

Medium Neutral Citation: McIntyre Development Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1760 Hearing dates: Conciliation conference held on 17 July, 23 August, 18 September, 27 October and 13, 20 and 24 November 2023 Date of orders: 19 December 2023 Decision date: 19 December 2023 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA0038/23 and rely upon the amended plans and documents referred to in condition 1 at Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application in the agreed sum of $28,228 within 28 days of the date of these orders. (3) The Applicant's written request, pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the KLEP, is upheld. (4) The Applicant's written request, pursuant to cl 4.6 of the KLEP, seeking to vary the development standard for site dimensions as set out at cl 6.6 of the KLEP, is upheld. (5) The appeal is upheld. (6) Consent is granted to Development Application DA0038/23 (as amended) for demolition of existing structures and construction of two residential apartment buildings comprising 31 apartments over basements and associated civil and landscaping works at 26, 28 and 30 McIntyre Street, Gordon, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPLICATION – residential apartment building – cl 4.6 written request – height of buildings – site dimensions – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, ss 29, 38 Land and Environment Court Act 1979, s 34 Ku-ring-gai Local Environmental Plan 2015, cll 2.3 4.3, 4.6, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6 State Environmental Planning Policy (Sustainable Buildings) 2022 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 10 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.122 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Texts Cited: NSW Department of Planning, Apartment Design Guide (2015) Department of Planning and Environment, Planning Circular PS 18-003, February 2018 Category: Principal judgment Parties: McIntyre Development Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: A Lindeman-Jones (Solicitor) (Applicant) C Rose (Solicitor) (Respondent)