Frasers Greencliff Developments Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1259

Land and Environment Court of New South Wales

CITATION : Frasers Greencliff Developments Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1259

APPLICANT Frasers Greencliff Developments Pty Limited PARTIES : RESPONDENT Ku-ring-gai Council

FILE NUMBER(S) : 11030 of 2007

CORAM: Murrell C

KEY ISSUES: Appeal - Section 96 Modification :- right of carriageway, timing of occupation certificate, public interest

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan No. 194

14/12/2007 DATES OF HEARING: 27/02/2008 Conditions 6/03/2008

DATE OF JUDGMENT: 30 June 2008

APPLICANT Mr D. Brigden, solicitor of Holding Redlich Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Hudson, solicitor of Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

30 June 2008

11030 of 2007 Frasers Greencliff Developments Pty Limited v Ku-ring-gai Council

JUDGMENT 1 The applicant in these proceedings is seeking to modify the development consent issued by Ku-ring-gai Council 17 February 2006 for the approval of a residential flat building containing forty apartments with basement parking. The subject land is known as 25A, 27, 29 Lorne Avenue Killara. 2 The subject site is Lot 2, DP 547371 and is one of the sites rezoned for higher density in the Ku-ring-gai Environmental Local Plan No. 194. 3 The site is rectangular in shape and has a total area of 4022 square metres. The frontage to Lorne Avenue is approximately 57 metres and the northern boundary 50 metres with an eastern boundary 84 metres and a western boundary of about 76 metres. For a distance of some 30 metres the site shares a 7 m wide driveway with the adjoining properties known as Nos. 23 and 25 Lorne Avenue. Approximately half the driveway is within the subject land, however, this is burdened by a right of carriageway for the benefit of Nos. 23 and 25. 4 The development is substantially constructed and the applicant seeks to modify a number of conditions. In particular, Condition No. 4 which states that: "The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plan and Occupation Certificate has been issued." 5 The modification application has been submitted to address difficulties that the applicant is experiencing negotiating the right of carriageway where landscaping is approved for the proposed development. 6 The Council refused the s. 96 application for the following reasons: 1. The proposed modification is inconsistent with condition No. 45 which confers upon the applicant a responsibility of ensuring that the development consent does not set aside or affect the rights at law which may be conferred upon any party or terms of the grant or any easements or rights of carriageway on or over the subject lot. Council clearly stated in Condition No. 45 that it accepts no responsibility in this regard, now or in the future. 2. The proposed modification is not in the public interest. 7 The contention identified by the respondent in the proceedings is: "The Council contends that the landscaping and the acoustic fence along the eastern part of the boundary should be completed prior to the development being occupied as they are an integral part of the development addressing amenities issues for the completed development, the streetscape, and the adjoining properties to the east." 8 The modification application proposes that Condition 4 be amended as follows: 4A 'The landscaping and other works shown in the drawings referred to in Condition 1 in relation to the strip of land over which the right of way in favour of Nos. 23 and 25 Lorne Avenue runs do not need to be carried out until the right of way has been modified to reflect the revised driveway location shown on Figure 1 provided that, at the time when the Occupation Certificate is issued, the applicant has provided to Council a bond or bank guarantee in the sum of $10,000, which will be returned on completion of the works. If an agreement has not been reached with the owners of Nos. 23 and 25 Lorne Avenue to the modification of the right of way which the Occupation Certificate is issued: (a) the applicant must make all reasonable endeavours to conclude its negotiations with those owners; and (b) if agreement is not reached within 31 days of the issuing of the Occupation Certificate, and it it has not already done so the applicant must commence proceedings in the Supreme Court under section 89 of the Conveyancing Act to obtain orders to modify the right of way and diligently pursues the section 89 proceedings.' 9 The applicant also proposes to add a new condition to be known as 113A: "113A. An Occupation Certificate for the approved buildings may be issued and a Compliance Certificate may be issued under Condition 113 notwithstanding that the works referred to in Conditions 4A have not been carried out before the issue of those certificates. However, applicable certificates must be obtained following the completion of the works." 10 The consent contains Condition 113 which states: "Prior to the release of any Occupation Certificate, a Compliance Certificate must be obtained from an accredited certifier, certifying that the building works for the building to be occupied comply with the plans and specifications approved by this development consent; and any Construction Certificate associated with this consent for the buildings to be occupied. If the PCA is not the Council, then this Compliance Certificate must be submitted to the Council at the same time as the occupation certificate is submitted to the Council in accordance with Clause 151(2) of the Environmental Planning and Assessment Act regulations 11 The development consent was granted by the Council in February 2006 and since that time there have been four modifications as detailed in the Statement of Facts. 12 The Court met on-site with the parties and heard from the adjoining neighbours. Mr Martin from No. 25 objected to the modification and stated that the matter is a question of timing and the developer knew about the carriageway before commencing development. He is concerned that there is a question of amenity if the appeal is upheld and that there may not be a resolution and as such a solution needs to be found now in terms of the right of carriageway. He also stated that it is a matter of safety for Mrs Burke who owns No. 23. 13 Ms Kim, also of No. 25 advised the Court that in her opinion the modification should not be approved and should await the outcome of the Supreme Court action for the right of carriageway. 14 Mr Hackney of Wallaroo Close told the Court that in his opinion it was not in the public interest to modify the consent as the issue of right of carriageway may not be resolved in the applicant's favour and that it would then fall on the Body Corporate. 15 Ms Amy Mary Coleman represented her mother of No. 23 Lorne and said that a test drive had been undertaken and she could not access the southern garage with the development as approved. That includes part of the right of carriageway for the landscaping area for the development. She expressed concern that the application had been approved by the Council without adequate testing of the garage to No. 23 and access to the road. 16 Mrs Bourke, who owns No. 23, expressed concern about the modification because of the difficulty of accessing her property. She said that if the development required 50 per cent landscaping that the issue of the right of carriageway and access to her property should have been resolved earlier. 17 During the proceedings the applicant offered a further amendment to Condition 4A to provide a more significant guarantee. This reads as follows: 4A The landscaping and other works shown in the drawings referred to in Condition 1 in relation to the strip of land over which the right of way in favour of Nos. 23 and 25 Lorne Avenue run do not need to be carried out until the right of way has been modified to reflect the revised driveway location shown on Figure 1 provided that: the applicant must reserve from sale one of the units in the development and must not sell, occupy, lease or otherwise dispose of that unit until such time as the landscaping and other works referred to in Condition 4A have been completed in accordance with the approved plans. The applicant must tell the Council which unit has been reserved from sale before the Occupation Certificate is issued. The applicant can change the nominated unit from time to time as long as at least one unit remains unsold, unleased and otherwise in the ownership of the applicant until the landscaping and other works have been completed in accordance with the approved plans.