Attard v Ku-ring-gai Council [2020] NSWLEC 1167

Land and Environment Court New South Wales

Medium Neutral Citation: Attard v Ku-ring-gai Council [2020] NSWLEC 1167 Hearing dates: Conciliation conference on 12 March 2020 Date of orders: 08 April 2020 Decision date: 08 April 2020 Jurisdiction: Class 1 Before: Walsh C Decision: See [7] below Catchwords: DEVELOPMENT APPLICATION – 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 No 55— Remediation of Land Category: Principal judgment Parties: Zachary Attard (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: G Long (Solicitor) (Applicant) M Mallos (Solicitor) (Respondent)

Solicitors: Nexus Lawyers (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2019/350023 Publication restriction: No

Judgment 1. COMMISSIONER: This Class 1 appeal, brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), concerns Ku-ring-gai Council's deemed refusal of a development application (DA0398/19) for a proposal for alterations and additions to an existing dwelling (heritage item) including a new swimming pool on land at 26 Braeside Street, Wahroonga NSW. 2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 12 March 2020. I presided over the conciliation conference. 3. At the conciliation conference and in follow-up communication afterwards, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the decision making function under s 4.16 of the EPA Act to grant conditional consent to the development application. There are jurisdictional prerequisites that the parties have indicated satisfaction with through the particulars of the agreement, and I must be satisfied with myself, before this function can be exercised. Below I reference them relevantly: 1. The development is permissible within the zone under Ku-ring-gai Local Environmental Plan 2015 ('LEP') and complies with all relevant development standards in the LEP. 2. In regard to cl 5.10(4) of the LEP, and noting that the site is a listed heritage item, is located within a heritage conservation area (HCA) and is in the vicinity of other heritage items; I have considered the effect of the proposed development on the heritage significance of the item and the HCA. The agreement of the heritage experts on the acceptability of the (amended) proposal on heritage grounds has assisted me here. 3. I also note that relevantly cl 6.2 of the LEP (with respect to earthworks), and cl 6.3 (with respect to biodiversity protection) have been considered. In regard to cl 6.5(2) of the LEP (and its concerns in regard to stormwater and water sensitive urban design) I believe that the requirements of subclause (2) have been satisfied as a consequence of the design solutions incorporated into the consent. Here I am mindful of the internal memo of advice from a Council specialist dated 4 November 2019, and included in Council's bundle of documents filed with the Court on 5 March 2020 (electronic stamped as p48, behind Tab 6). 4. In relation to State Environmental Planning Policy No 55—Remediation of Land, and in particular cl 7(1), I have considered whether there may be any contamination and associated remediation required. In keeping with the position of the parties and based on the long term use of the land for residential purposes, the site is unlikely to have resulted in contamination, and there is no evidence the land requires remediation. Any potential asbestos contamination, within the building or on the site, is managed by way of conditions of the consent. 1. I have considered the advice of the parties and relevant documentation and am satisfied that the jurisdictional questions have been satisfied. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 2. 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. 3. The Court orders: 1. Leave is granted to the Applicant to rely on the following amended plans and documents: 1. Drawing A1.01A - Detailed Ground Floor/ Site Plan Revision D prepared by BDT dated 12 March 2020 2. Drawing A1.01B – Demolition Plan Revision B prepared by BDT dated 12 March 2020 3. Drawing A1.02 – First Floor Plan Revision C prepared by BDT dated 12 March 2020 4. Drawing A1.03 – Roof Plan Revision B prepared by BDT dated 6 February 2020 5. Drawing A1.04 – Elevations Revision C prepared by BDT dated 12 March 2020 6. Drawing A1.05 – Section Revision B prepared by BDT dated 8 March 2020 7. BASIX Certificate No. A356838_02 dated 9 March 2020 8. Cover Sheet and Specifications Drawing No. SW-01 Revision C prepared by GEBA Consulting dated 24 February 2020 9. Site Stormwater Plan Drawing No. SW-01 Revision C prepared by GEBA Consulting dated 24 February 2020 10. Details Sheet Drawing No. SW-03 Revision C prepared by GEBA Consulting dated 24 February 2020 11. Landscape Plan Drawing No. C1_BDT2 Revision E prepared by Contour dated 25 February 2020 1. The Appeal is upheld. 2. Development Application DA0398/19 for alterations and additions including pool at 26 Braeside Street, Wahroonga is approved subject to the conditions in Annexure A.