Land and Environment Court New South Wales Medium Neutral Citation: Muzi v Ku-ring-gai Council [2018] NSWLEC 1428 Hearing dates: 7 August 2018 Date of orders: 15 August 2018 Decision date: 15 August 2018 Jurisdiction: Class 1 Before: Bish C Decision: The Orders of the Court are: (1) The appeal is upheld. (2) Amended Development Application DA0193/16 for a two storey dwelling at Lot 11 DP 700720, known as 4 Jacana Close, Wahroonga is approved, subject to the conditions in Annexure A. (3) The Exhibits, except Exhibits 1, A, B, C, E, G, J, K and L, are returned. Catchwords: DEVELOPMENT APPLICATION: two storey dwelling; geotechnical risk; environmental sensitivity; bush fire. Legislation Cited: Environmental Planning and Assessment Act 1979 Ku-ring-gai Development Control Plan 2016 Ku-ring-gai Local Environment Plan 2015 Land and Environment Court Act 1979 Category: Principal judgment Parties: Damian Muzi (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: Dr J Smith (Respondent) Solicitors: P Vergotis, McCabes Lawyers (Applicant) Hones Lawyers (Respondent) File Number(s): 17/214737 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against refusal of amended Development Application DA0193/16 for a two storey dwelling at Lot 11 DP 700720, known as 4 Jacana Close, Wahroonga (hereafter the site). 2. The site is rectangular in shape with a frontage to Jacana Close of 23.1 m and a total area of 92 m2. 3. A significant feature of the site is the steep north-south trending escarpment located 20 m from the street frontage, which consists of sandstone boulders at various angles due to faulting and fractures within the rock. The rock face of the escarpment is relatively steep with a fall in elevation to the remainder of the site at the rear of the property, where remnant bushland vegetation dominates. 4. The eastern portion of Jacana Close is defined by the sandstone escarpment, with dwellings either side of the site, setback and designed to accommodate the limitations of the escarpment. Background 1. The site was part of an 18 lot residential subdivision in 1984, and has remained undeveloped. 2. The original DA was for an attached dual occupancy with swimming pool. DA0193/16 was lodged with Ku-ring-gai Council (the respondent) on 9 May 2016 and notified to residents on 18 May 2016, after which three submissions were received. Issues raised by residents relate to: slope stability; bushfire risk; privacy and overshadowing; stormwater management; and vegetation protection. 3. The DA was the subject of numerous discussions between the applicant and respondent, which resulted in amendments to plans and provision of supporting reports including geotechnical and slope risk assessment. 4. The appeal of DA 0193/16 was the subject of conciliation conferences on 22 November 2017 and 17 January 2018, pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act 1979). After which, the Commissioner determined to terminate the conciliation and adjourn the hearing, pursuant to s 34AA(3) due to a lack of preparedness on the issue of geotechnical risk, making the application unsuitable to be assessed at a hearing. 5. The DA and dwelling design was subsequently amended to a two storey dwelling, by leave of the Court with costs thrown away. 6. Amended plans were notified to residents on 17 July 2018 and written objections were received from two residents. The Court also heard from one resident in oral submission at the hearing. Issues raised by the residents to the amended development include: geotechnical stability of rock face and risk assessment; privacy; and overshadowing. 7. By agreement of the parties, no site inspection was undertaken at the hearing, as the site and objectors properties were viewed at the s 34AA conciliation conference. 8. At the hearing the Court granted leave, with no objection from the respondent, to rely on the following tendered documents: * amended Development Application DA 0193/16 in Exhibit A, with associated amended plans by Innovate Architects, in Exhibit B * amended geotechnical report by JK Geotechnics, dated and filed with the Court on 28 March 2018, and tendered as Exhibit G, * joint geotechnical expert report dated 9 July 2018, Exhibit H, * expert planning reports in Exhibit J and within Exhibit 2, * bushfire assessment and certificate dated 19 July 2018 and 17 July 2018, respectively, Exhibit F, * amended stormwater drainage plans by BMB Engineers, dated 22 June 2018, Exhibit E, * amended landscape plan by TGS dated 16 July 2018, Exhibit C, and * amended BASIX certificate dated 22 June 2018, Exhibit D. 1. The Court grants leave to rely on amended draft conditions of consent resolved by agreement of both parties during the hearing, and filed with the Court on 7 August 2018. Planning controls 1. The site is mapped as being located on bushfire prone land. Therefore, the consent authority must be satisfied that s 4.14 of the Environmental Planning and Assessment Act 1979 (EP&A Act 1979) has been complied with. 4.14 Consultation and development consent—certain bush fire prone land (cf previous s 79BA) (1) Development consent cannot be granted for the carrying out of development for any purpose (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire protection purpose) on bush fire prone land (being land for the time being recorded as bush fire prone land on a relevant map certified under section 10.3 (2)) unless the consent authority: (a) is satisfied that the development conforms to the specifications and requirements of the version (as prescribed by the regulations) of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service in co-operation with the Department (or, if another document is prescribed by the regulations for the purposes of this paragraph, that document) that are relevant to the development (the relevant specifications and requirements), or (b) has been provided with a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bush fire risk assessment stating that the development conforms to the relevant specifications and requirements. (1A) If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may, despite subsection (1), grant consent to the carrying out of the development but only if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire. (1B) This section does not apply to State significant development. (1C) The regulations may exclude development from the application of this section subject to compliance with any requirements of the regulations. The regulations may (without limiting the requirements that may be made): (a) require the issue of a certificate by the Commissioner of the NSW Rural Fire Service or other qualified person in relation to the bush fire risk of the land concerned, and (b) authorise the payment of a fee for the issue of any such certificate. 1. The site is zoned E4 Environmental Living, pursuant to the Ku-ring-gai Local Environmental Plan 2015 (KLEP 2015). The proposed development is permissible in this zone. The objectives of this zone, to which the consent authority must have regard, according to cl 2.3 of the KLEP 2015, are as follows: Zone E4 Environmental Living 1 Objectives of zone • To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To ensure development does not result in further fragmentation of ecological communities, biodiversity corridors or other significant vegetation or habitat. • To minimise direct and indirect risks to life, property and the environment from bushfire events. • To ensure that development in this zone on land that adjoins land in Zone E1 National Parks and Nature Reserves or Zone E2 Environmental Conservation is compatible with the objectives of those zones. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The amended development complies with the non-discretionary standards of the KLEP 2015. 2. The relevant section of the Ku-ring-gai Development Control Plan 2016 (KDCP 2016) for consideration of the amended development is found in 4A.2 relating to front and side setbacks. Evidence and submissions 1. The Court heard from the following experts: geotechnical, Mr Roberts for the applicant and Mr Kotze for the respondent; and planning, Mr Choi for the applicant and Mr McInnes for the respondent. 2. The experts agree that the amended documents, specifically the amended plans and geotechnical report resolve the contentions as set out in the Statement of Facts and Contentions (SoFC) dated 10 August 2017, Exhibit 1 and issues raised by residents in Exhibit 2. 3. The geotechnical experts agree that the risk assessment provided in Exhibit G considers and together with the conditions proposed (in Exhibits 5 and M) mitigates to their satisfaction the potential for slope instability, specifically the rock face. The experts commented that should rock fall occur, the blocky/tabular nature of the strata will be captured by the 1.5 m fence to be located at the toe of the slope. In addition, the proposed works to secure, fill and fix in place the strata will mitigate rock fall occurring. This resolves the earthworks and geotechnical stability issues raised by Council and the residents. 4. Further to this the experts agree that certification of the geotechnical stabilisation works post construction is required to ensure stability, as documented in Exhibit M, which will be incorporated into the conditions of consent. This resolves the issue of certification raised by the resident. 5. The planning experts agree that the amended design of the dwelling is sympathetic to the geotechnical limitations of the site, together with the retention of 25 trees is consistent with the objectives of the E4 zone and satisfies the KDCP 2016 privacy requirements for neighbouring properties. This resolves the issues of zone consistency, development description, privacy, and character raised by Council and the resident. 6. The experts also agree that neighbouring properties will not be adversely impacted from solar access, and will receive 4 hours of solar between 9.00 am and 1.00 pm in winter to the required spaces, thereby satisfying the KDCP 2016 requirements for this control, and the solar access issue raised by both council and the resident. 7. Based on the above, Mr McInnes is satisfied that the amended design's non-compliance with the numerical control for side and front setbacks in the KDCP 2016 will not adversely affect the neighbouring properties and is in the public interest, and is therefore acceptable. This resolves the public interest contention of Council. 8. Mr McInnes is also satisfied that adequate measures have been taken and the certification provided by the applicant, documented in Exhibit F, addresses the bushfire risk, pursuant to s 4.14 of the EP&A Act 1979. 9. The amended design resolves the contentions of: front fencing (removed); height (compliant with amended design); s94 contribution (resolved by condition); BASIX (amended); and driveway (relocated with amended design). Conclusion and findings 1. My jurisdiction to hear and dispose of the application arises from s 17(e) of the LEC Act 1979, which provides for appeals to the Court under s 8.7 of the EP&A Act 1979. 2. The parties are in agreement that all the contentions raised by Council and issues raised by residents have been addressed with the amended dwelling design that addresses the physical limitations posed by the site and is consistent with the character of the zone. 3. I am satisfied that the amended design takes due consideration of the geotechnical limitations, detailed in Exhibit G and together with the conditions of consent, provided in Annexure A, satisfactorily mitigates the geotechnical risk associated with the site and ensures the amenity of the neighbouring properties is not adversely affected. 4. I am satisfied that the proposed amended development is lawful and complies with the relevant provisions of the EP&A Act 1979 and KLEP 2015. Orders 1. The orders of the Court are: 1. The appeal is upheld. 2. Amended Development Application DA0193/16 for a two storey dwelling at Lot 11 DP 700720, known as 4 Jacana Close, Wahroonga is approved, subject to the conditions in Annexure A. 3. The Exhibits, except Exhibits 1, A, B, C, E, G, J, K and L, are returned. ……………………. Sarah Bish Commissioner of the Court Annexure A (237 KB, 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: 16 August 2018