Land and Environment Court New South Wales Medium Neutral Citation: HMR Developments Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1001 Hearing dates: Conciliation conference on 20 December 2019 Date of orders: 07 January 2020 Decision date: 07 January 2020 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is granted leave to amend the development application and rely on the amended plans referred to in Condition 1 of Annexure A to this judgment. (2) The written request made, pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015, to vary the requirements of the building height located in the rear 25% area of the site in accordance with clause 40(4)(c) of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 is upheld. (3) The appeal is upheld. (4) Development Application DA 0263/18 for the demolition of existing structures and construction of a seniors living development at 14-18 Kitchener Street, St Ives, NSW is approved subject to the conditions set out in Annexure A to this judgment. Catchwords: DEVELOPMENT APPLICATION – seniors living development – 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: HMR Developments Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: D Tyrrell (Solicitor) (Applicant) C Drury (Solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2018/268386 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 DA/0263/18. The development application, as amended with leave of the Court, seeks approval for demolition of existing structures and construction of a seniors living development comprising 20 apartments with basement parking and associated works. The development is proposed at 14, 16 and 18 Kitchener Street, St Ives (Lot 2, 5 & 6 DP233352). 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 28 March 2019. At the request of the parties, a further conciliation conference was held on 20 December 2019. I presided over the further conciliation conference. 3. Following the further 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 amended development application subject to conditions of consent. 4. 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. The consent of the relevant land owners has been provided as part of the Development Application. 2. The development has received the General Terms of Approval from the NSW Rural Fire Service (s 4.5 of the EPA Act) and their conditions are incorporated in the attached conditions. 3. The development application was notified by the Respondent for a period, in accordance with the Ku-ring-gai Development Control Plan. I am satisfied the submissions have been considered. 4. The site has historically been utilised for residential purposes. The Applicant submitted a geotechnical report (STS GeoEnvironmental, May 2018) which did not identify any contamination issues: cl 7 of State Environmental Planning Policy No 55 – Remediation of Land. 5. The application is made pursuant to State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP HSPD). Consistent with cl 18 of SEPP HSPD, a condition is imposed on the consent restricting occupation of the development. 6. The site is zoned for urban purposes (R2 Low Density Residential) and dwelling houses are permitted. The application is compliant with the development standards in Ku-ring-gai Local Environmental Plan 2015 (LEP 2015). 7. Pursuant to cl 4 of SEPP HSPD, the proposed development is permissible. 8. Further the subject site complies with cl 26 as it is located in an 'accessible area' as defined by SEPP HSPD. 9. The proposed development satisfies the standards detailed at cll 40(2), 40(3) and 40(4)(a) and (b) of SEPP HSPD. 10. The Applicant has filed a cl 4.6 variation request to vary the standard at cl 40(4)(c) of SEPP HSPD, namely that: a building located in the rear 25% area of the site must not exceed 1 storey in height. This request accords with the amended plans. I have reviewed the request and in accordance with cl 4.6 of LEP 2015, I am satisfied that: 1. The written request demonstrates that compliance with the development standard is unreasonable and unnecessary on the basis of the specific circumstances of the development (cl 4.6(3)(a) of LEP 2015). 2. The written request adequately establishes sufficient environmental planning grounds that justify the breach of the standard (cl 4.6(3)(b) of LEP 2015). 3. On the preceding basis, I am satisfied that the requirements of cl 4.6(4)(a)(i) of LEP 2015 are met. 4. For the reasons outlined in the written request, I am satisfied that the development is in the public interest as it is consistent with the objectives of the R2 Low Density Residential zone and the height development standard. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of LEP 2015 are met. 5. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development. 6. The states of satisfaction required by cl 4.6 of the LEP 2015 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control. 1. State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies to the proposed development. The amended development is accompanied by BASIX certificate number: 934887M_03 in compliance with the instrument. 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 the development application and rely on the amended plans referred to in Condition 1 of Annexure A to this judgment. 2. The written request made, pursuant to clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015, to vary the requirements of the building height located in the rear 25% area of the site in accordance with clause 40(4)(c) of State Environmental Planning Policy (Housing for Seniors and People with a Disability) 2004 is upheld. 3. The appeal is upheld. 4. Development Application DA 0263/18 for the demolition of existing structures and construction of a seniors living development at 14-18 Kitchener Street, St Ives, NSW is approved subject to the conditions set out in Annexure A to this judgment ……………………………… D M Dickson Commissioner of the Court Annexure A (235 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: 09 January 2020