Lorraine Fashion Pty Ltd v Ku-ring-gai Council

Catchwords: DEVELOPMENT APPLICATION – indoor recreational facility – cl 4.6 written request – height of buildings – agreement between the parties – orders

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.14, 8.15
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021, ss 37, 38
Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 4.3, 4.6, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.5
State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 6.6, 6.7, 6.9, 6.10, Chs 2, 6,
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Sustainable Buildings) 2022, s 3.2, Ch 3

Texts Cited: NSW Department of Planning and Environment, Planning Circular PS 20-002, May 2020

Category: Principal judgment

Parties: Lorraine Fashion Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
A Gadiel (Solicitor) (Applicant)
C Morton (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2024/362709

Publication restriction: Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), brought by Lorraine Fashion Pty Ltd (the Applicant), against the refusal of Development Application eDA0191/23 (the DA), by Ku-ring-gai Council (the Respondent).

2. At the date of its lodgment on 2 February 2024, the DA sought consent for the demolition of existing structures and construction of a multi-level indoor recreation facility with basement parking and associated works at 6 West Street Pymble (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 11 March, 8 April, and 5 and 22 May 2025. I presided over the conciliation conference.

4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions.

5. Of particular note, the proposal has been amended by agreement between the parties to resolve the contentions initially raised by the Respondent. These contentions included issues of owner’s consent, excessive building height, unsatisfactory urban design, inadequate rear building setback, unacceptable internal amenity, unacceptable rooftop amenity, inadequate ceiling heights and inadequate biodiversity enhancement, amongst other contentions.

6. Agreed design amendments have been made to improve the proposed building’s relationship to the site, its context, and the desired future character of this part of Pymble, particularly to the mapped riparian and biodiversity corridor to the rear of the site. Changes have been made to improve the internal arrangement of the proposal, its address, circulation, and access configuration. The proposal has also been amended to improve the amenity available on the roof terrace, including landscape treatments. These agreed amendments also have the effect of confirming the amount of gross floor area proposed, which is now agreed to be consistent with the relevant development standard for floor space ratio (FSR).

7. 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 function under s 4.16 of the EPA Act to grant consent to the amended DA.

8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. In that regard, I am satisfied the DA was made with the consent of the owner of the land, evidenced within the Class 1 Application accompanying this matter.

10. For the portion of the DA associated with an awning proposed to overhang the site boundary above the public footpath, the parties agree and I am satisfied, that giving consent to the making of the DA is an aspect of the power to determine the DA. In this instance, the Court has the power to grant such owner’s consent pursuant to s 8.14(1) of the EPA Act.

11. The DA was publicly notified between 27 February and 28 March 2024. Three submissions were received by the Respondent raising concerns including:

12. The need to prepare a dilapidation report for nearby properties.

13. The need for proposed windows along the common boundaries to be blocked if neighbouring properties were to be developed in the future.

14. Any proposed bulk and scale of development should be consistent with controls set out in the Respondent’s Development Control Plan.

15. Avoiding encroachments upon neighbouring properties, including during construction.

16. Potential loss of business to neighbouring properties along West Street.

17. Traffic and parking impacts during construction, insufficient parking proposed on-site, concerns for the accuracy of traffic report counts, ongoing traffic impacts to surrounding road network and intersections including Ryde Road, reliance on off-street parking and public car parks, traffic impacts from competitions or school events, the use of proposed traffic light and one way ramp systems.

18. Streetscape impacts resulting from excessive bulk and scale.

19. The proposed use of boxing gym and multi-function spaces is vague.

20. The parties agree, and I am satisfied, that the matters raised in these public submissions have been considered, and where relevant, the amended DA and conditions of consent satisfactorily address a number of those matters raised. Accordingly, I am satisfied that s 4.15(1)(d) of the EPA Act has been appropriately addressed.

21. The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is the relevant local environmental planning instrument. The site is zoned E3 Productivity Support. The amended DA - characterised as a recreational facility (indoor) - is permissible with consent within the E3 zone.

22. The parties agree, and I am satisfied, that pursuant to cl 2.3 of the KLEP, the amended DA is consistent with the E3 Productivity Support zone objectives.

23. The parties agree, and I am satisfied, that pursuant to cl 2.7 of the KLEP, demolition of existing structures is permissible with consent. The amended DA proposes demolition of the existing structures occupying the site.

24. The parties agree, and I am satisfied, that all principal development standards of the KLEP have been met by the amended DA, with the exception of cl 4.3 - Height of buildings.

25. In such an instance, cl 4.6 of the KLEP requires consideration of a written request from the Applicant demonstrating that compliance with this development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard.

26. Clause 4.6 of the KLEP then requires the consent authority (the Court in this instance) to be satisfied that the Applicant’s written request adequately addresses the matters set out at cl 4.6, and that the proposed development will be in the public interest because it is consistent with the objectives of the particular development standard (for height of buildings) and the objectives for development within the zone (E3 Productivity Support) in which the development is proposed to be carried out.

27. Additionally, cl 4.6 of the RLEP requires the concurrence of the Planning Secretary be obtained, and requires the Planning Secretary to consider whether the proposed contravention of the development standard raises matters of significance for State environmental planning, and the public benefits of maintaining the standard.

28. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 20-002 issued on 5 May 2020), the Court may assume the concurrence of the Planning Secretary in this matter.

29. The Applicant has provided a written request seeking to vary the height of buildings development standard, prepared by Perica and Associates and dated 24 March 2025.

30. Pursuant to cl 4.3 of the KLEP the site is subject to a height of building development standard of 32.5m.

31. The amended DA proposes a maximum building height of 35.17m, exceeding the relevant height of building development standard by 2,670mm and representing a variance of approximately 8.2%.

32. The parties agree, and I am satisfied, that the written request adequately justifies the proposed variance to the height of buildings development standard for the following reasons:

33. The amended DA is agreed to be of an appropriate form and scale that is compatible with the existing streetscape and desired future character of the immediate locality.

34. The area of building height exceedance relates to a relatively small portion of the upper-most floor generally set towards the rear of the site and away from the street-facing front facade of the proposed building, which otherwise complies with the relevant height of building control as it presents to the streetscape.

35. The proposed height exceedance does not give rise to unreasonable adverse visual impacts, overshadowing, disruption to views or loss of privacy to neighbouring properties.

36. The site has sloping topography that contributes to the exceedance of the height of building since the proposed ground level is approximately aligned with the street-facing site boundary at the site’s high point and the building’s use is not one that can accommodate a step in the plan.

37. The amended DA is now agreed to provide reduced site coverage, increased landscape areas and deep soil sufficient to allow for the enhancement of biodiversity and riparian values on the site, which contributes to the additional building height.

38. The objectives of the KLEP Zone E3 Productivity Support land use zone include to provide a range of facilities and services, light industries, warehouses and offices; to provide for land uses that are compatible with, but do not compete with, land uses in surrounding local and commercial centres; to maintain the economic viability of local and commercial centres by limiting certain retail and commercial activity; to provide for land uses that meet the needs of the community, businesses and industries but that are not suited to locations in other employment zones; to provide opportunities for new and emerging light industries; and to enable other land uses that provide facilities and services to meet the day to day needs of workers, to sell goods of a large size, weight or quantity or to sell goods manufactured on-site. I am satisfied the amended DA is consistent with these objectives.

39. The objectives of cl 4.3 of the KLEP - Height of buildings - includes ensuring that the height of buildings is appropriate for the scale of the different centres within the hierarchy of Ku-ring-gai centres; to establish a transition in scale between the centres and the adjoining lower density residential and open space zones to protect local amenity; and to enable development with a built form that is compatible with the size of the land to be developed. I am satisfied the amended DA meets these objectives.

40. Consequently, I am satisfied the Applicant’s cl 4.6 written request adequately justifies the proposed variation to the height of buildings development standard, and I find to uphold the written request.

41. Pursuant to cl 5.10 of the KLEP - Heritage conservation - the site is not a listed heritage item, nor is it situated within a Heritage Conservation Area (HCA). Accordingly, the parties agree, and I am satisfied that the amended DA is consistent with cl 5.10 of the KLEP.

42. Pursuant to cl 5.21 of the KLEP - Flood planning - the site is not mapped within a flood planning area.

43. The parties agree, and I am satisfied, that pursuant to cl 6.1 of the KLEP - Acid sulfate soils - the site is mapped within a Class 5 acid sulfate soils area. However, the amended DA involves works that are not likely to lower the water table below 1m AHD on any class of land within 500m of the site and therefore cl 6.1 is appropriately addressed.

44. The parties agree, and I am satisfied, that the amended DA proposes excavation works forming a matter for consideration pursuant to cl 6.2 of the KLEP - Earthworks. The matters set out at cl 6.2(3) are agreed to have been given appropriate consideration. Conditions of consent are imposed to regulate excavation and construction phase works.

45. The parties agree, and I am satisfied, that pursuant to cl 6.3 of the KLEP - Biodiversity protection - a portion of the site is identified on the relevant Terrestrial Biodiversity Map as “Biodiversity”. Consequently, cl 6.3 sets out a series of matters for consideration.

46. The Applicant has provided a Flora and Fauna Assessment prepared by Anderson Environmental and dated 31 March 2025, which is agreed to satisfactorily address the matters set out at cl 6.3(3).

47. The parties agree, and I am satisfied, that pursuant to cl 6.4 of the KLEP - Riparian land and adjoining waterways - a portion of the site is identified on the relevant Riparian Lands and Watercourses Map as “Riparian Land Category 3”.

48. Accordingly, cl 6.4(3)(a) sets out a series of matters of consideration. The Applicant’s Flora and Fauna Assessment is agreed to satisfactorily address these matters, and the landscape plans indicate the introduction of planting to support the rehabilitation of the riparian land.

49. The parties agree, and I am satisfied, that pursuant to cl 6.5 of the KLEP - Stormwater and water sensitive urban design - the amended DA includes agreed measures to avoid or minimise the adverse impacts of urban stormwater, including the incorporation of water sensitive urban design principles.

50. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience) is an additional relevant environmental planning instrument. Pursuant to s 4.6 of SEPP Resilience, the Applicant has provided a Preliminary Site Investigation, prepared by Tetra Tech Coffey and dated 27 November 2024, which concludes that the site can be made suitable for the proposed recreational facility use. Agreed conditions of consent reflect the recommendations of the PSI.

51. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is an additional relevant environmental planning instrument.

52. Chapter 2 of SEPP BC deals with vegetation in non-rural areas. The parties agree and I am satisfied, that the final amended DA seeks consent for the removal of vegetation and proposes appropriate replacement trees. I am satisfied that a permit or approval to clear vegetation is not required under Ch 2 of SEPP BC if it is clearing of a kind that is granted consent within the amended DA.

53. Chapter 6 of SEPP BC deals with water catchments. The parties agree, and I am satisfied, that the site is situated within the Sydney Harbour Catchment.

54. Pursuant to the provisions of s 6.6 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon water quality and quantity within the catchment. Agreed conditions of consent are imposed to control erosion and sediment during construction.

55. Pursuant to the provisions of s 6.7 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will not create adverse impacts upon aquatic ecology within the catchment.

56. Pursuant to the provisions of s 6.9 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no impact upon recreational land or public access to foreshores or natural water bodies within the catchment.

57. Pursuant to the provisions of s 6.10 of SEPP BC, the parties agree, and I am satisfied, that the amended DA will have no adverse impacts upon adjacent or downstream local government areas within the catchment.

58. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP Sustainable Buildings).

59. Chapter 3 of SEPP Sustainable Buildings deals with non-residential development. Pursuant to s 3.2 of SEPP Sustainable Buildings, the Applicant has provided an ESD Report prepared by Dynamic Optimum and dated 24 April 2025 and a NABERS Embodied Emissions Materials Form prepared by Outsource Ideas.

60. I am satisfied these reports meet the requirements of s 3.2(1)-(2) of SEPP Sustainable Buildings by identifying energy, water and waste efficiencies and by quantifying the embodied emissions attributable to the amended DA.

61. The parties agree, and I am satisfied, that those remaining relevant matters set out at s 4.15 of the EPA Act have been taken into consideration, and that the amended DA warrants the grant of consent, subject to conditions.

62. Having considered each of the preceding jurisdictional requirements and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter.

63. The Court notes that:

64. Pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant has amended the DA with the approval of the Respondent.

65. The Applicant has lodged the amended DA with the Court on 22 May 2025.

Orders

49. The Court orders that:

50. Leave is granted to the Applicant to amend Development Application eDA0191/23 and rely upon the amended plans and documents referred to in Condition 1 at Annexure A.

51. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of amending the Development Application in the agreed sum of $15,749 within 14 days of the date of these orders.

52. The Applicant’s written request, pursuant to cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015 (KLEP), seeking to vary the development standard for height of buildings as set out at cl 4.3 of the KLEP, is upheld.

53. The appeal is upheld.

54. Consent is granted to Development Application eDA0191/23 (as amended) for the demolition of the existing building and erection of a new multi-level recreation facility (indoor) at 6 West Street Pymble, subject to the conditions of consent at Annexure A.

M Pullinger

Acting Commissioner of the Court

Annexure A (351 KB, pdf)

Architectural Plans (16.0 MB, pdf)

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