Land and Environment Court New South Wales Medium Neutral Citation: Brass Homes Pty Limited v Ku-ring-gai Council [2018] NSWLEC 1580 Hearing dates: Conciliation conference on 2 November 2018 Date of orders: 02 November 2018 Decision date: 02 November 2018 Jurisdiction: Class 1 Before: Gray C Decision: See [5] below Catchwords: DEVELOPMENT APPLICATION – seniors living - 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 (Housing for Seniors or People with a Disability) 2004 Category: Principal judgment Parties: Brass Homes Pty Limited (Applicant) Ku-ring-gai Council (Respondent) Representation: Solicitors: D Tyrrell, McKees Legal Solutions (Applicant) R Cunningham, Shaw Reynolds (Respondent) File Number(s): 2017/333318 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by Brass Homes Pty Limited against the deemed refusal by Ku-ring-gai Council of development application No. DA0415/16. The application seeks consent for the demolition of an existing dwelling and the construction of 10 townhouse dwellings for seniors living, including basement car parking, drainage/infrastructure works and landscaping at 76 Telegraph Road, Pymble (Lot B DP 439322). 2. In this matter, at 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 can make in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). I formed this state of satisfaction as seniors living is permissible with development consent pursuant to cl 15 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ("SEPP HSPD"), and the application demonstrates that the proposal provides a suitable access pathway to a public transport service (bus stop) as required by cl 26 of SEPP HSPD. 3. 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 Act requires me to "dispose of the proceedings in accordance with the decision". 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 s 34(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: Plan Title Reference / Version Prepared By Dated Architectural Plans DA01 Site Plan Revision D Connor + Solomon Architects June 2018 DA02 Basement Carpark Plan Revision E Connor + Solomon Architects September 2018 DA03 Ground Floor Plan Revision E Connor + Solomon Architects September 2018 DA04 First Floor Plan Revision D Connor + Solomon Architects June 2018 DA05 Attic Storage Floor Plan Revision D Connor + Solomon Architects June 2018 DA06 Roof Plan Revision D Connor + Solomon Architects June 2018 DA07 Building A Front Elevation Revision D Connor + Solomon Architects June 2018 DA08 Building A Rear Elevation Revision D Connor + Solomon Architects June 2018 DA09 Building B Front Elevation Revision D Connor + Solomon Architects June 2018 DA10 Building C Front Elevation Revision D Connor + Solomon Architects June 2018 DA 11 Building C Rear Elevation Revision D Connor + Solomon Architects June 2018 DA12 Long Elevations Revision D Connor + Solomon Architects June 2018 DA13 Long Section A-A Revision D Connor + Solomon Architects June 2018 DA14 Cross Section B-B Revision D Connor + Solomon Architects June 2018 DA15 Cross Section C-C Revision D Connor + Solomon Architects June 2018 DA16 Unit Type X Detailed Floor Plans Revision D Connor + Solomon Architects June 2018 DA17 Unit Type Y Detailed Floor Plans Revision D Connor + Solomon Architects June 2018 DA21 Site Calculations Revision G Connor + Solomon Architects July 2018 DA34 Footpath Gradient + Cross-Falls Revision D Connor + Solomon Architects June 2018 DA35 Unit Type Z Detailed Floor Plans Revision D Connor + Solomon Architects June 2018 Landscape Plans L-00 Cover Sheet Revision K habit8 20 July 2018 L-01 Landscape Plan 1 of 2 Revision K habit8 20 July 2018 L-02 Landscape Plan 2 of 2 Revision K habit8 20 July 2018 L-03 Deep Planting Plan Revision K habit8 20 July 2018 L-04 Basement Carpark Plan Revision K habit8 20 July 2018 L-05 Specification Notes & Landscape Details Revision K habit8 20 July 2018 L-06 Indicative Construction Details Revision K habit8 20 July 2018 L-07 Deep Planting General Landscape Areas Plan Revision K habit8 20 July 2018 Arboricultural Plans Arb_602 Trees Impact Plan: Basement Issue G Elke Landscape Consultants 7 June 2018 Arb_603 Trees Impact Plan: Ground Level Issue G Elke Landscape Consultants 7 June 2018 Arb_604 Arborist Plan – St Canisius Easement. Tree Retention Rating and Impact Plan Issue G Elke Landscape Consultants 7 June 2018 Tree Assessment Table A Sheet 1-2 Elke Landscape Consultants 31 March 2017 Trees 80-99 Engineering Plans HDA00 Cover Sheet, Legend & Drawing Schedule P3 Jones Nicholson Consulting Engineers 27 June 2018 HDA01 Site Plan, Erosion and Sediment Control Plans & Details P5 Jones Nicholson Consulting Engineers 27 June 2018 HDA02 Catchment Plan P5 Jones Nicholson Consulting Engineers 27 June 2018 HDA03 Basement Carpark Plan P7 Jones Nicholson Consulting Engineers 14 June 2018 HDA04 Ground Floor Plan P8 Jones Nicholson Consulting Engineers 28 September 2018 HDA05 Easement Drainage Plan P5 Jones Nicholson Consulting Engineers 14 June 2018 HDA06 Drainage Longitudinal Section P4 Jones Nicholson Consulting Engineers 14 June 2018 HDA07 Details Sheet P6 Jones Nicholson Consulting Engineers 14 June 2018 HDA08 Channel Sections P3 Jones Nicholson Consulting Engineers 27 June 2018 HDA09 Driveway Longitudinal Sections P3 Jones Nicholson Consulting Engineers 27 June 2018 HDA10 Drainage Channel Sections P1 Jones Nicholson Consulting Engineers 27 June 2018 Supporting Documents Reference / Version Prepared By Dated Basix certificate Certificate No. 734954M_05 NSW Planning and Environment 12 June 2018 Access Review V4 Morris-Goding Accessibility Consulting 6 July 2018 Arboricultural Impact Assessment Report Addendum Rev C Elke Landscape Consultants 7 June 2018 Geotechnical Investigation Ref: 29419SYrpt JK Geotechnics 7 June 2016 Plan of Kerb Apex Surveying 7 May 2015 Footpath Levels Mapstead and Associates 5 July 2018 1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the applicant is to pay the respondent's costs in the amount of $15,000, inclusive of GST, to be paid on exchange of this agreement. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA0415/16 for the demolition of an existing dwelling and construction of 10 townhouses for seniors living including basement car parking, drainage/infrastructure works, and landscaping, subject to the conditions of consent annexed hereto and marked "A". ………………………. Joanne Gray Commissioner of the Court Annexure A (572 KB, pdf) Architectural Drawings (7.06 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: 06 November 2018