Mcintyre Development Pty Ltd v Ku-ring-gai Council

Category: Principal judgment

Parties: Mcintyre Development Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation: Counsel:
A Lindeman-Jones (Solicitor) (Applicant)
D Taylor (Solicitor) (Respondent)
Solicitors:
Addisons (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2024/375019

Publication restriction: No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the deemed refusal, by Ku-ring-gai Council, of the applicant’s request to modify a development consent DA0038/23 for the demolition of existing structures and construction of two residential flat buildings containing 31 units, with basement parking and associated civil and landscape works at 26-30 McIntyre Street, Gordon. The site is legally described as Lot C DP 348677, Lot 1 DP 525670 and Lot 4 DP 525670.

2. Modification Application eMOD0078/24 requests: the deletion of basement level 4; layout changes to other basement levels; an increase of units from 31 to 32; design changes to some apartments; changes to the proportions of communal open space; provision of additional rooftop private open space, and; building envelope changes.

3. These proceedings have been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. 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 13 June 2025. I presided over the conciliation conference.

5. At the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings, which involved the Court upholding the appeal and modifying the consent in accordance with the modification application.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.56 of the EPA Act to modify the development consent that was originally granted consent by the Court.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied, and from this I note the following points.

8. Pursuant to s 4.56(1) of the EPA Act, I must be satisfied that the development to which the consent, as modified, relates is substantially the same as the development for which consent was originally granted. In this regard I note:

9. The proposed use and form of the development will not change, nor will the site coverage or deep soil.

10. The modifications are generally minor in nature and do not impact the compliance of the development with the relevant instruments, policies and guidelines.

11. The amendments will not give rise to any adverse environmental impacts.

12. From this I am satisfied that in both qualitative and quantitative terms the development, as modified, will be substantially the same as the development for which consent was originally granted.

13. The modification application was notified from 5 August to 19 August 2024 in accordance with Council’s Community Participation Plan. The amended application was notified from 9 May to 23 May 2025, and no submissions were received in either period.

14. Based on the information contained in the Statement of Environmental Effects by Mecone, the amended documents and the parties’ joint submission on jurisdictional prerequisites, I am satisfied that all matters referred to in the EPA Act s 4.15(1), as are of relevance to the development the subject of this application, have been considered, as required by EPA Act s 4.56(1A). I have further taken into consideration the reasons given by the consent authority for the grant of consent that is sought to be modified. Accordingly, I am satisfied that all jurisdictional prerequisites have been met.

15. For these reasons, 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 and accordingly, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. The Court notes:

17. Ku-ring-gai Council as the relevant consent authority, has approved, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending modification application eMOD0078/24 in accordance with the following plans and documents:

Updated Documents

| Tab | Document | Date | | 1. | Architectural Plans prepared by Giles Tribe Drawing Name Drawing No. Rev. Date Cover Sheet DA000 N 22 April 2025 Site Plan DA100 D 3 February 2025 Basement 4 Plan DA200 D 22 April 2025 Basement 3 Plan DA201 G 22 April 2025 Basement 2 Plan DA202 P 22 April 2025 Basement 1 Plan DA203 T 22 April 2025 Ground Level Plan DA204 O 22 April 2025 Level 1 Plan DA205 N 22 April 2025 Level 2 Plan DA206 N 22 April 2025 Level 3 Plan DA207 O 22 April 2025 Level 4 Plan DA208 Q 22 April 2025 Roof Level DA209 L 22 April 2025 Elevations & Sections DA300 P 22 April 2025 Elevations & Sections DA301 Q 22 April 2025 Street Elevation & Sections DA302 O 22 April 2025 Elevations & Sections DA303 K 22 April 2025 Elevations & Ramp Section DA304 J 22 April 2025 Elevations & Sections DA305 F 22 April 2025 FSR Calculation DA400 N 22 April 2025 Environmental Site Management Plan DA404 D 3 February 2025 Communal Open Space Plan DA407 F 3 March 2025 External Shadow Diagram - June 21 (Proposed) DA502 G 3 March 2025 External Shadow Diagram - June 21 (Proposed) DA503 F 3 March 2025 Solar Access Diagram - 29-33 Dumaresq St Summary DA505 D 3 February 2025 Solar Access Diagram - 32-34 Mcintyre St Summary DA506 D 3 February 2025 Solar Access Diagrams - 9am DA507 E 3 February 2025 Solar Access Diagrams - 9.15am DA508 E 3 February 2025 Solar Access Diagrams - 9.30am DA509 D 3 February 2025 Solar Access Diagrams - 9.45am DA510 D 3 February 2025 Solar Access Diagrams - 10am DA511 D 3 February 2025 Solar Access Diagrams - 10.15am DA512 D 3 February 2025 Solar Access Diagrams - 10.30am DA513 D 3 February 2025 Solar Access Diagrams - 10.45am DA514 D 3 February 2025 Solar Access Diagrams - 11am DA515 D 3 February 2025 Solar Access Diagrams - 11.15am DA516 D 3 February 2025 Solar Access Diagrams - 11.30am DA517 D 3 February 2025 Solar Access Diagrams - 11.45am DA518 D 3 February 2025 Solar Access Diagrams - 12pm DA519 D 3 February 2025 Solar Access Diagrams - 12.15pm DA520 D 3 February 2025 Solar Access Diagrams - 12.30pm DA521 D 3 February 2025 Solar Access Diagrams - 12.45pm DA522 D 3 February 2025 Solar Access Diagrams - 1pm DA523 D 3 February 2025 Solar Access Diagrams - 1.15pm DA524 D 3 February 2025 Solar Access Diagrams - 1.30pm DA525 E 3 February 2025 Solar Access Diagrams - 1.45pm DA526 D 3 February 2025 Solar Access Diagrams - 2pm DA527 D 3 February 2025 Solar Access Diagrams - 2.15pm DA528 D 3 February 2025 Solar Access Diagrams - 2.30pm DA529 D 3 February 2025 Solar Access Diagrams - 2.45pm DA530 D 3 February 2025 Solar Access Diagrams - 3pm DA531 D 3 February 2025 Window Schedule DA600 G 3 February 2025 Window Schedule DA601 H 3 February 2025 Basement 2 Storage Area Section DA700 A 3 February 2025 | Various | | Drawing Name | Drawing No. | Rev. | Date | | Cover Sheet | DA000 | N | 22 April 2025 | | Site Plan | DA100 | D | 3 February 2025 | | Basement 4 Plan | DA200 | D | 22 April 2025 | | Basement 3 Plan | DA201 | G | 22 April 2025 | | Basement 2 Plan | DA202 | P | 22 April 2025 | | Basement 1 Plan | DA203 | T | 22 April 2025 | | Ground Level Plan | DA204 | O | 22 April 2025 | | Level 1 Plan | DA205 | N | 22 April 2025 | | Level 2 Plan | DA206 | N | 22 April 2025 | | Level 3 Plan | DA207 | O | 22 April 2025 | | Level 4 Plan | DA208 | Q | 22 April 2025 | | Roof Level | DA209 | L | 22 April 2025 | | Elevations & Sections | DA300 | P | 22 April 2025 | | Elevations & Sections | DA301 | Q | 22 April 2025 | | Street Elevation & Sections | DA302 | O | 22 April 2025 | | Elevations & Sections | DA303 | K | 22 April 2025 | | Elevations & Ramp Section | DA304 | J | 22 April 2025 | | Elevations & Sections | DA305 | F | 22 April 2025 | | FSR Calculation | DA400 | N | 22 April 2025 | | Environmental Site Management Plan | DA404 | D | 3 February 2025 | | Communal Open Space Plan | DA407 | F | 3 March 2025 | | External Shadow Diagram - June 21 (Proposed) | DA502 | G | 3 March 2025 | | External Shadow Diagram - June 21 (Proposed) | DA503 | F | 3 March 2025 | | Solar Access Diagram - 29-33 Dumaresq St Summary | DA505 | D | 3 February 2025 | | Solar Access Diagram - 32-34 Mcintyre St Summary | DA506 | D | 3 February 2025 | | Solar Access Diagrams - 9am | DA507 | E | 3 February 2025 | | Solar Access Diagrams - 9.15am | DA508 | E | 3 February 2025 | | Solar Access Diagrams - 9.30am | DA509 | D | 3 February 2025 | | Solar Access Diagrams - 9.45am | DA510 | D | 3 February 2025 | | Solar Access Diagrams - 10am | DA511 | D | 3 February 2025 | | Solar Access Diagrams - 10.15am | DA512 | D | 3 February 2025 | | Solar Access Diagrams - 10.30am | DA513 | D | 3 February 2025 | | Solar Access Diagrams - 10.45am | DA514 | D | 3 February 2025 | | Solar Access Diagrams - 11am | DA515 | D | 3 February 2025 | | Solar Access Diagrams - 11.15am | DA516 | D | 3 February 2025 | | Solar Access Diagrams - 11.30am | DA517 | D | 3 February 2025 | | Solar Access Diagrams - 11.45am | DA518 | D | 3 February 2025 | | Solar Access Diagrams - 12pm | DA519 | D | 3 February 2025 | | Solar Access Diagrams - 12.15pm | DA520 | D | 3 February 2025 | | Solar Access Diagrams - 12.30pm | DA521 | D | 3 February 2025 | | Solar Access Diagrams - 12.45pm | DA522 | D | 3 February 2025 | | Solar Access Diagrams - 1pm | DA523 | D | 3 February 2025 | | Solar Access Diagrams - 1.15pm | DA524 | D | 3 February 2025 | | Solar Access Diagrams - 1.30pm | DA525 | E | 3 February 2025 | | Solar Access Diagrams - 1.45pm | DA526 | D | 3 February 2025 | | Solar Access Diagrams - 2pm | DA527 | D | 3 February 2025 | | Solar Access Diagrams - 2.15pm | DA528 | D | 3 February 2025 | | Solar Access Diagrams - 2.30pm | DA529 | D | 3 February 2025 | | Solar Access Diagrams - 2.45pm | DA530 | D | 3 February 2025 | | Solar Access Diagrams - 3pm | DA531 | D | 3 February 2025 | | Window Schedule | DA600 | G | 3 February 2025 | | Window Schedule | DA601 | H | 3 February 2025 | | Basement 2 Storage Area Section | DA700 | A | 3 February 2025 | | 2. | Design Verification Statement prepared by Giles Tribe | 30 April 2025 | | 3. | BCA Design Assessment Report prepared by DC Partnership | 19 May 2025 | | 4. | Livable Housing Report prepared by DC Partnership | 16 April 2025 | | 5. | Acoustic DA Assessment prepared by Acouras Consultancy | 22 April 2025 | | 6. | Accessibility Capability Statement for DA Submission prepared by DC Partnership | 16 April 2025 | | 7. | Section 34 Conciliation – Summary of Changes to Architectural drawings to address SOFAC contentions prepared by Giles Tribe Architects | 22 April 2025 | | 8. | Landscape plans prepared by StudioIZ Plan Name Plan No. Rev Dated Cover Sheet LA-000 J 24 April 2025 Landscape Plan GF - Sheet 1 LA-100 J 24 April 2025 Landscape Plan GF - Sheet 2 LA-101 J 24 April 2025 Planting Plan GF - Sheet 1 LA-200 J 24 April 2025 Planting Plan GF - Sheet 2 LA-201 J 24 April 2025 Landscape Plan – Level 2 & Level 4 LA-300 J 24 April 2025 Landscape Plan – Level 3 LA-301 J 24 April 2025 Landscape Sections – Sheet 1 LA-400 J 24 April 2025 Landscape Sections – Sheet 2 LA-401 J 24 April 2025 Planting Palette LA-500 J 24 April 2025 Details & Specification Notes LA-600 J 24 April 2025 | | | Plan Name | Plan No. | Rev | Dated | | Cover Sheet | LA-000 | J | 24 April 2025 | | Landscape Plan GF - Sheet 1 | LA-100 | J | 24 April 2025 | | Landscape Plan GF - Sheet 2 | LA-101 | J | 24 April 2025 | | Planting Plan GF - Sheet 1 | LA-200 | J | 24 April 2025 | | Planting Plan GF - Sheet 2 | LA-201 | J | 24 April 2025 | | Landscape Plan – Level 2 & Level 4 | LA-300 | J | 24 April 2025 | | Landscape Plan – Level 3 | LA-301 | J | 24 April 2025 | | Landscape Sections – Sheet 1 | LA-400 | J | 24 April 2025 | | Landscape Sections – Sheet 2 | LA-401 | J | 24 April 2025 | | Planting Palette | LA-500 | J | 24 April 2025 | | Details & Specification Notes | LA-600 | J | 24 April 2025 | | 9. | Stormwater Management and Civil Plans prepared by JCO Consultants Plan Name Plan No. Rev Dated Coversheet DA-SW100 3 24 April 2025 General Notes and Specifications DA-SW101 3 24 April 2025 Stormwater Management Plan - Basement 4 Plan DA-SW200 3 24 April 2025 Stormwater Management Plan - Basement 3 Plan DA-SW201 3 24 April 2025 Stormwater Management Plan - Basement 2 Plan DA-SW202 3 24 April 2025 Stormwater Management Plan - Basement 1 Plan DA-SW203 3 24 April 2025 Stormwater Management Plan - Ground Floor Plan Sheet 1 of 2 DA-SW204 3 24 April 2025 Stormwater Management Plan - Ground Floor Plan Sheet 2 of 2 DA-SW205 3 24 April 2025 Stormwater Management Plan - Roof Floor DA-SW206 3 24 April 2025 Details Sheet - 1 DA-SW300 3 24 April 2025 Details Sheet - 2 DA-SW301 3 24 April 2025 WSUD Design & Details DA-SW400 3 24 April 2025 Existing & Proposed Flow Comparison DA-SW500 3 24 April 2025 Erosion and Sediment Control Plan & Details DA-SW600 3 24 April 2025 | | | Plan Name | Plan No. | Rev | Dated | | Coversheet | DA-SW100 | 3 | 24 April 2025 | | General Notes and Specifications | DA-SW101 | 3 | 24 April 2025 | | Stormwater Management Plan - Basement 4 Plan | DA-SW200 | 3 | 24 April 2025 | | Stormwater Management Plan - Basement 3 Plan | DA-SW201 | 3 | 24 April 2025 | | Stormwater Management Plan - Basement 2 Plan | DA-SW202 | 3 | 24 April 2025 | | Stormwater Management Plan - Basement 1 Plan | DA-SW203 | 3 | 24 April 2025 | | Stormwater Management Plan - Ground Floor Plan Sheet 1 of 2 | DA-SW204 | 3 | 24 April 2025 | | Stormwater Management Plan - Ground Floor Plan Sheet 2 of 2 | DA-SW205 | 3 | 24 April 2025 | | Stormwater Management Plan - Roof Floor | DA-SW206 | 3 | 24 April 2025 | | Details Sheet - 1 | DA-SW300 | 3 | 24 April 2025 | | Details Sheet - 2 | DA-SW301 | 3 | 24 April 2025 | | WSUD Design & Details | DA-SW400 | 3 | 24 April 2025 | | Existing & Proposed Flow Comparison | DA-SW500 | 3 | 24 April 2025 | | Erosion and Sediment Control Plan & Details | DA-SW600 | 3 | 24 April 2025 | | 10. | Traffic and Parking Assessment prepared by Traffix | April 2025 | | 11. | Arboricultural Impact Appraisal and Method Statement prepared by Naturally Trees | 4 April 2025 | | 12. | BASIX Certificate | 9 April 2025 | | 13. | NatHERS Summary | 8 April 2025 | | 14. | Council Cost Report prepared by Duo Quantity Surveyors | 8 April 2025 |

Class 1 Application documents (not superseded)

| Tab | Tab from Class 1 Application | Document | Date | | 15. | 1. | Development Application Form | 22 July 2024 | | 16. | 2. | Statement of Environmental Effects prepared by Mecone | 25 June 2024 | | 17. | 3. | Owners Consent | | | 18. | 5. | List of consent conditions to be modified and deleted prepared by Mecone | June 2024 | | 19. | 7. | DCP Assessment prepared by Mecone | June 2024 | | 20. | 12. | Geotechnical statement prepared by Stantec | 29 November 2023 |

14. The Court orders:

15. The appeal is upheld.

16. Development Application No. DA0038/23 granted on 19 December 2023 is modified by Modification Application No. eMOD0078/24 for layout changes to the basement levels, an increase of one apartment from 31 to 32 apartments, layout and design changes to some apartments, changes to the proportions of some communal open space areas, provision of additional rooftop private open space areas and building envelope changes, at 26-30 McIntyre Street, Gordon (legally described as Lot C DP 348677, Lot 1 DP 525670 and Lot 4 DP 525670) in the terms set out in Annexure A.

17. Development Consent No. DA0038/23 as modified by the Court is set out in Annexure B.

E Washington

Acting Commissioner of the Court

Annexure A (250 KB, pdf)

Annexure B (423 KB, pdf)

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