Land and Environment Court New South Wales Medium Neutral Citation: Cowan Road Developer Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1211 Hearing dates: Conciliation conference on 12 April 2024 Date of orders: 23 April 2024 Decision date: 23 April 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The Applicant is granted leave to rely on the amended plans and documents listed at paragraph 11 of this judgment. (2) The modification application relating to the development consent to development application DA 0270/22 is approved subject to the conditions at Annexure A. (3) As a consequence of Order (2), the development consent to development application DA 0270/22 is now subject to the consolidated, modified conditions at Annexure B. Catchwords: APPLICATION – an application to modify a consent granted by the Court – multi dwelling housing – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, ss 100, 113 Cases Cited: Metro St Ives Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1287 Category: Principal judgment Parties: Cowan Road Developer Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: T Kahrovic (Solicitor) (Applicant) P Shumack (Solicitor) (Respondent) Solicitors: MinterEllison (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2023/349886 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an application by Cowan Road Developer Pty Ltd to modify a Court granted consent for the construction of a multi dwelling housing development comprising 25 dwellings, basement parking and associated works at 46-50 Cowan Road, St Ives. The original consent was granted by the Court (in Proceedings 2022/354887) on 9 June 2023 by the agreement of the parties following a conciliation conference. The application is lodged pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act). The Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders on the application, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The modification application seeks to change aspects of the built form of the development, including reducing the basement levels, changing the OSD and rainwater tank arrangement, changing mechanical and plant room arrangements, relocating air conditioning condensers, changing pedestrian pathways and entrance levels, changing balcony depths of some of the dwellings, changing the roof profile, adjusting internal levels in townhouses 10 to 13, changing door and window heights, and changing some of the materiality. 3. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 April 2024. I presided over the conciliation conference. 4. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The agreement follows the agreement of Ku-ring-gai Council to an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The amendments relate largely to the provision of additional detail on the elevations, overshadowing, balcony dimensions and landscaping. 5. The signed agreement, which was provided on 12 April 2024, was accompanied by a Jurisdictional Statement, which sets out a number of planning instruments that apply to the site. Based on the Jurisdictional Statement and the Statement of Environmental Effects dated November 2023, I have considered any matters of relevance that are required to be considered pursuant to ss 4.55(3) and 4.15(1) of the EPA Act. I have also considered the reasons given by the Court on the grant of development consent, as set out in Metro St Ives Pty Ltd v Ku-ring-gai Council [2023] NSWLEC 1287. 6. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction on the basis that the modification application merely involves changes to aspects of the built form and the development remains for a multi-dwelling housing development containing 25 dwellings, basement parking and associated works, in the same configuration as the development the subject of the development consent granted on 9 June 2023. As a result, the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. 7. The modification application was notified by the respondent between 13 and 27 December 2023 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, one submission was received. I have considered the issues raised in that submission. 8. Consistent with the requirements of s 100(3)(a) of the EPA Regulation 2021, the modification application is accompanied by the BASIX certificate dated 20 October 2023. 9. Having reached the state of satisfaction that the decision 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 required me to "set out in writing the terms of the decision" (s 34(3)(b)). 10. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 11. The Court notes that: 1. Ku-ring-gai Council, as consent authority, pursuant to s 113(4) of the Environmental Planning and Assessment Regulation 2021, has approved the application for an amendment to the modification application made to the Court under s 4.55(8) of the Environmental Planning and Assessment Act 1979 on 3 November 2023, which seeks to modify the development consent to development application DA 0270/22 (as modified), to rely on the following amended plans and documents: 1. Architectural plans prepared by Marchese Partners comprising: 1. Cover Sheet, Drawing DA.0.01 Revision Z dated 22 March 2024; 2. Level 00, Drawing DA2.02 Revision Z dated 22 March 2024; 3. Level 01, Drawing DA2.03 Revision Y dated 22 March 2024; 4. West Elevation, Drawing DA3.02 Revision X dated 22 March 2024; 5. Internal Elevation - East, Drawing DA3.06 Revision W dated 22 March 2024; 6. Overshadowing Study - AP 30-32, Drawing DA10.01 Revision A dated 22 March 2024; 7. Overshadowing Study - AP 30-32, Drawing DA10.02 Revision A dated 22 March 2024; 8. Overshadowing Study - AP 30-32, Drawing DA10.03 Revision A dated 22 March 2024; 9. Level 01 Changes to Depth of Balconies, Drawing DA10.11 Revision A dated 22 March 2024; 10. Level 02 Changes to Depth of Balconies, Drawing DA10.12 Revision A dated 22 march 2024; and 11. Level 03 Changes to Depth of Balconies, Drawing DA10.13 Revision A dated 22 March 2024. 1. Landscape plans prepared by Paterson Design Studio Pty. Ltd. comprising: 1. Landscape Plan - Overview, Drawing DWG NO LA-5 Revision E dated 20 March 2024; 2. Landscape Diagrams - Communal Facilities, Drawing DWG NO LA-7, Revision E dated 20 March 2024; 3. Landscape Plan - Front Garden, Drawing DWG NO LA-8, Revision E dated 20 March 2024; 4. Landscape Plan - Side Screening Neighbour Buffers, Drawing DWG NO LA-9, Revision E dated 20 March 2024; 5. Landscape Plan - Central Courtyard, Drawing DWG NO LA-10, Revision E dated 20 March 2024; 6. Landscape Plan - Rear Golf Course Interface, Drawing DWG NO LA-11, Revision E dated 20 March 2024; 7. Planting Plan, Drawing DWG NO LA-15 Revision E dated 20 March 2024; 8. Planting Plan, Drawing DWG NO LA-16 Revision E dated 20 March 2024; 9. Planting Plan, Drawing DWG NO LA-17 Revision E dated 20 March 2024; 10. Planting Plan, Drawing DWG NO LA-18 Revision E dated 20 March 2024; and 11. Planting Plan, Drawing DWG NO LA-19 Revision E dated 20 March 2024. 1. Civil plans prepared by Enspire Solutions comprising: 1. Cover Page, Drawing 210186-DA-C01.01 Revision 5 dated 10 October 2023; 2. Siteworks and Stormwater Management Plan - Level B1, Drawing 210186-DA-C05.01 Revision 6 dated 19 January 2024; 3. Siteworks and Stormwater Management Plan - Level 00, Drawing 210186-DA-C05.02 Revision 9 dated 19 January 2024; 4. Siteworks and Stormwater Management Plan - Level 01, Drawing 210186-DA-C05.03 Revision 9 dated 19 January 2024; 5. Stormwater Details - Sheet 01, Drawing 210186-DA-C18.01 Revision 9 dated 19 January 2024; and 6. Stormwater Details - Sheet 02, Drawing 210186-DA-C18.02 Revision 9 dated 19 January 2024; 1. Civil Engineering / Stormwater Management Report prepared by Enspire Solutions dated 22 January 2024; and 2. Mechanical engineering letter prepared by Meinhardt (NSW) dated 23 January 2024. 1. The Court orders that: 1. The Applicant is granted leave to rely on the amended plans and documents listed at paragraph 11 of this judgment. 2. The modification application relating to the development consent to development application DA 0270/22 is approved subject to the conditions at Annexure A. 3. As a consequence of Order (2), the development consent to development application DA 0270/22 is now subject to the consolidated, modified conditions at Annexure B. ………………………. J Gray Commissioner of the Court Annexure A Annexure B ********** 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: 23 April 2024