Land and Environment Court New South Wales Medium Neutral Citation: Arcare Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1638 Hearing dates: Conciliation conference on 31 October 2019; 20 December 2019 Date of orders: 20 December 2019 Decision date: 20 December 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders: (1) The Applicant is granted leave to amend Development Application No. DA0319/18 to rely on the amended plans to in Condition 1 of Annexure 'A'. (2) The Applicant is to pay the Respondent the sum of $2,000 within seven days of this agreement, for costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (3) The Appeal is upheld. (4) Development Application No. DA0319/18 for lot consolidation, demolition, tree removal and the construction comprising 125 beds, basement parking, landscaping and associated works on land at 97-103 Killeaton Street and 265-269 Mona Vale Road, St Ives is approved, subject to conditions set out in Annexure 'A'. Catchwords: DEVELOPMENT APPLICATION – residential aged care facility – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan 2015 Land and Environment Court Act 1979 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 55 – Remediation of Land Category: Principal judgment Parties: Arcare Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: F Rourke (Solicitor) (Applicant) C Shaw (Solicitor) (Respondent) Solicitors: Allens (Applicant) Shaw Reynolds Lawyers (Respondent) File Number(s): 2019/63141 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the Applicant against the deemed refusal of its development application DA0319/18. The development application (as amended) seeks approval for the demolition of existing structures, removal of trees, consolidation of lots and construction of a seniors living residential aged care facility with basement parking, landscaping and associated works. The development is proposed at 97-103 Killeaton Street and 265-269 Mona Vale Road, St Ives. The site comprises the following lots: Lot 1 DP 205677, Lot A DP 420945, Lot 2 DP205677, Lot 10 DP 19088, Lot 11 DP 19088, Lot 1 DP 611997, and Lot 7 DP 19088. 2. On the 7 August 2018, the Applicant lodged a development application with Ku-ring-gai Council. Following the expiration of the deemed refusal period, the Applicant filed a Class 1 Application with the Court. 3. In accordance with the Court's usual practice, the matter was referred to a Court arranged conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (LEC Act), which was held on the 31 October 2019. Through the conciliation process, the parties have agreed amendments to the proposed development. The agreed orders provide leave to the Applicant to rely on this amended material in their development application. 4. Following the conciliation, 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 would be acceptable to them. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application subject to conditions of consent. 5. 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 have formed this state of satisfaction for the following reasons: 1. Landowners consent was provided by the owners of the land at the time of the lodgement of the Development Application and is included in the Class 1 Application. 2. The site is zoned for urban purposes (R2 Low Density Residential) and dwelling houses are permitted. Pursuant to cl 4 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD) the proposed development is permissible. Further the proposed development complies with cl 17 as it seeks consent only for a 'residential care facility'. 3. The restrictions at cl 18 of SEPP HSPD are met and incorporated in the proposed conditions of consent: Condition 109. 4. The proposed development includes written evidence that future residents of the development will have access that complies with the requirements of cl 26(2) of SEPP HSPD. 5. The site will be connected to reticulated water and have adequate facilities for the removal and disposal of sewerage: cl 28 of SEPP HSPD. 6. The Applicant has taken into account a site analysis prepared in accordance with cl 30 of SEPP HSPD, and has given regard to the principles listed at Chapter 3, Part 3, Division 2 of the instrument. 7. The proposed development satisfies the standards detailed at cl 40 of SEPP HSPD and includes a fire sprinkler system in compliance with cl 55 of the instrument. 8. I am satisfied in the basis if the agreed submission of the parties that State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 does not apply to the proposed development as the individual rooms within the proposed residential aged care facility do not meet the definition of 'dwelling' in the instrument. 9. Consistent with the requirements of cl 7 of State Environmental Planning Policy No 55 – Remediation of Land the applicant submitted a Preliminary Site Investigation prepared by Arcadis Design and Consultancy, dated 9 March 2018. That report concludes that the site poses a low risk of contamination present onsite. 10. The proposed development does not contravene the minimum lot size requirement in the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). Further, in deciding whether to grant development consent to the application, I have given consideration to the matters at cl 6.2 and cl 6.3 of LEP 2015. I am satisfied that the lots comply with the earthworks development standard and the site is not identified as being within a flood affected area. 11. The original application was notified in accordance with the relevant development control plan and the submissions have been considered. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. The Applicant is granted leave to amend Development Application No. DA0319/18 to rely on the amended plans to in Condition 1 of Annexure 'A'. 2. The Applicant is to pay the Respondent the sum of $2,000 within seven days of this agreement, for costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The Appeal is upheld. 4. Development Application No. DA0319/18 for lot consolidation, demolition, tree removal and the construction comprising 125 beds, basement parking, landscaping and associated works on land at 97-103 Killeaton Street and 265-269 Mona Vale Road, St Ives is approved, subject to conditions set out in Annexure 'A'. ………………………… D M Dickson Commissioner of the Court Annexure A (458 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: 30 December 2019