Land and Environment Court New South Wales Medium Neutral Citation: Hengji Pymble Pty Ltd v Ku-ring-gai Council [2018] NSWLEC 1123 Hearing dates: Conciliation conference on 24 Nov 2017, 13 Dec 2017 and 09 Mar 2018 Date of orders: 09 March 2018 Decision date: 09 March 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See (5) below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy 2004 Category: Principal judgment Parties: Bruce Woolf, Woolf Associates Solicitors (Applicant) Christopher Shaw, Shaw Reynolds Lawyers(Respondent) Representation: Solicitor: Hengji Pymble Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) File Number(s): 2017/211786 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the deemed refusal by Ku-ring-gai Council of development application DA0192/17. The application sought consent for a development comprising 10x3 bedroom townhouses under State Environmental Planning Policy 2004 (Housing for Seniors or People with a Disability). This included the demolition and removal of; the existing two (2) storey dwelling house, an attached garage and carport, forty seven (47) trees, swimming pool, tennis court and brick shed and excavation across the majority of the site. The works are proposed at 75 Telegraph Road, Pymble. 2. In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to "dispose of the proceedings in accordance with the decision". 3. The Court Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The orders made to give effect to the agreement constitute that document. 4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. 5. The final orders to give effect to the parties' agreement under s34(3) of the Land and Environment Court Act 1979 are: 1. The Applicant is granted leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application: Drawing(s) Reference/ Version Prepared By Dated Architectural DA031 Proposed Context Site Analysis DA-3 Morrison Design Partnership 01.02.2018 DA034 Proposed Site Roof Plan DA-1 Morrison Design Partnership 01.02.2018 DA040 Demolition and Tree Removal Plan DA-4 Morrison Design Partnership 01.02.2018 DA060 Proposed Site Levels and Retaining Walls DA-2 Morrison Design Partnership 01.02.2018 DA100 Basement Plan DA-4 Morrison Design Partnership 01.02.2018 DA101 Ground Floor Plan DA-5 Morrison Design Partnership 01.02.2018 DA102 Level 1 Floor Plan DA-3 Morrison Design Partnership 01.02.2018 DA201 Telegraph Road North Elevations DA-3 Morrison Design Partnership 01.02.2018 DA202 South Elevation DA-3 Morrison Design Partnership 01.02.2018 DA203 East Elevation DA-3 Morrison Design Partnership 01.02.2018 DA204 West Elevations DA-3 Morrison Design Partnership 01.02.2018 DA301 Sections DA-2 Morrison Design Partnership 01.02.2018 DA401 Deep Soil and Private Open Area Calculations DA-3 Morrison Design Partnership 01.02.2018 DA501 Solar Study DA-3 Morrison Design Partnership 01.02.2018 DA502 Solar Study DA-3 Morrison Design Partnership 01.02.2018 Engineering DA600 Driveway Plan DA-2 Morrison Design Partnership 15.12.17 DA602 Driveway Section DA-2 Morrison Design Partnership 18.12.17 DA700 Overall Footpath Analysis DA-1 Morrison Design Partnership 07.12.17 DA701 Footpath Analysis Sheet 1 DA-2 Morrison Design Partnership 07.12.17 DA702 Footpath Analysis Sheet 2 DA-2 Morrison Design Partnership 07.12.17 DA703 Footpath Analysis Sheet 3 DA-2 Morrison Design Partnership 07.12.17 DA710 Footpath Section Telegraph Road Overall DA-1 Morrison Design Partnership 07.12.17 Landscape 000 Cover Sheet and Site Plan F Landscape Architects 18.12.2017 C100 Landscape Plan Ground Floor Render F Landscape Architects 18.12.2017 101 Landscape Plan Ground Floor F Landscape Architects 18.12.2017 201 Planting Plan Ground Floor F Landscape Architects 18.12.2017 501 Landscape Specification & Planting Schedule F Landscape Architects 18.12.2017 502 Landscape Details F Landscape Architects 18.12.2017 503 Landscape Details F Landscape Architects 18.12.2017 Stormwater C00.01 General Notes H Engineering Studio Civil & Structural 13.02.2018 C01.01 Sediment & Erosion Control Plan H Engineering Studio Civil & Structural 13.02.2018 C02.01 Roof Drainage Plan H Engineering Studio Civil & Structural 13.02.2018 C03.01 Ground Drainage Plan H Engineering Studio Civil & Structural 13.02.2018 C03.02 Stormwater Details Sheet H Engineering Studio Civil & Structural 13.02.2018 C03.03 Proposed Easement & Catchment Plan H Engineering Studio Civil & Structural 13.02.2018 C04.01 Basement Drainage Plan H Engineering Studio Civil & Structural 13.02.2018 Document(s) Reference/ Version Prepared By Dated BASIX Certificate 820354M_05 Partners Energy Management 6 March 2018 Cl 26 Compliance Statement Morrison Design Partnership Architects 14 December 2017 Thermal Performance Specifications prepared by Morrison Design Partnership Architects A801 Morrison Design Partnership Architects 6 March 2018 Document(s) Reference/ Version Prepared By Dated Access Report Amended Accessibility Solutions (Mark Relf). 23 November 2017 Revised Vehicular Access and Car Parking Arrangements Varga Traffic Planning Pty Ltd 14 November 2017 Foot path levels survey Sheets 1 & 2 – 5537-DET2_A Mepstead & Associates 05 October 2017 Arboricultural Impact Assessment (Summary) For Proposed Seniors Living Residential Development (Revised02) at 73-75 Telegraph Road Pymble Revised02 Tree Wise Men Australia Pty Ltd January 2018 Geo-environmental Engineering Report ID: G17031PYM-R01F Geotechnical Investigation Report 4 April 2017 1. The appeal is upheld. 2. Development consent is granted to Development Application No. DA0192/17 for the construction of a multi-dwelling Seniors Living development at 75 Telegraph Road, Pymble (lot 6 and 7 DP 10712) as per plans depicted in the schedule in clause 2.1 above, subject to the conditions of consent annexed hereto and marked "A". 3. Pursuant to section 8.15 (previously 97B) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent's costs in the amount of $18,000, excluding GST, to be paid on exchange of this section 34 agreement. ………………………. D M Dickson Commissioner of the Court Annexure A (237 KB, pdf) Annexure B - (15.1 MB, pdf) 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: 09 March 2018