PJM Pty Ltd v Ku-ring-gai Council

Land and Environment Court (NSW)|2024-01-12

Judgment

COMMISSIONER: These proceedings relate to a modification application which seeks to amend the development consent for DA 337/17, issued by the Court with the judgement Mackenzie Architects International Pty Ltd v Ku-ring-gai Council [2020] NSWLEC 1276 (Court approval). The Court approval was for demolition of existing structures and the construction of a residential flat building comprising 36 units, basement parking and associated landscaping, at 1456-1456A Pacific Highway, Turramurra (site).
The modification application (MA) was lodged directly with the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act).

Conciliation and agreement reached between the parties

The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The conference was held on 12 January 2024. I was appointed to preside. Prior to this, the parties had advised the Court that agreement had been reached based on certain amendments to the modification application. On 17 January 2024 the parties filed an 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 consent to the modification application in accordance with agreed conditions.

Outline of proposed modifications

I accept the outline of the modifications to the development consent for DA 337/17, as proposed in the MA, as outlined by the parties. This is as described in Council's statement of facts and contentions filed on 11 July 2023 (pars 1-6) but incorporating the amendments, advised to the Court on 17 January 2024, which have come about in the interim, including as a consequence of the conciliation between the parties. All of the proposed modifications are to Schedule B of the conditions of consent (noting that Schedule A comprises deferred commencement conditions). The changes to the development consent for DA 337/17 sought with the MA, as now before the Court, can be summarised as follows: 1. Changes to the approved plans (as nominated at Condition 1 of Schedule B) to increase the number of residential units from 36 units to 37 units. The dwelling mix will be modified and will comprise of: 1. 2 x 1 bedroom/studio units. 2. 23 x 2 bedroom units. 3. 8 x 3 bedroom units. 4. 4 x 4 bedroom units. 1. Changes to the approved plans such that vehicular access to the site would be provided from Finlay Road via the basement of the adjoining childcare centre at 1458 Pacific Highway (development approved under Modification Application No. MOD0127/22 involved a reconfiguration of the basement to enable this property to provide vehicular access to Finlay Avenue). 2. Changes to the approved plans such that the number of vehicle parking spaces will increase from 59 spaces to 63 spaces. 3. Changes to the approved plans providing for reconfiguration of the ground / basement parking, internal circulation and servicing area to facilitate the amended site access and parking yield. 4. Deletion of condition 95 of Schedule B, requiring the dedication of 63m2 of land for a slip lane off Pacific Highway. 5. Consequential changes to other conditions related to the modifications sought to the approved plans (in particular conditions 1, 5, 11, 13, 14, 17, 20, 29, 30(i), 30(ii), 33, 34, 36, 49-51, 53, 62, 78, 80, 81, 82, 95-98, 105, 122, 128 of Schedule B). 6. One of the trees identified in the evaluation process (Tree 50) has fallen. As such, conditions requiring the protection of this tree are sought to be amended. The conditions to be modified include: 13, 14, 17, 20, 78, 80, 82 of Schedule B.

Jurisdiction

Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions.
There are certain jurisdictional pre-requisites which require attention before this function can be exercised. The parties outlined jurisdictional matters of relevance in these proceedings in an agreed jurisdictional statement filed on 17 January 2024 (Annexure C to filed s 34 agreement). Regarding jurisdiction, and noting the advice in the parties' jurisdictional statement, I am satisfied in regard to the matters listed below.
Having regard to s 4.55(2) of the EPA Act: 1. Mindful of subs 4.55(2)(a), I am satisfied that the development to which the consent as modified would relate is substantially the same development as the development for which the consent was originally granted. On this, I have noted the detailed particulars of the modification as explained by the parties. I have also reviewed a summary of the relevant case law as provided by the parties in their jurisdictional statement (par 12) and the reasoning behind the parties' agreement on this matter (par 13). At an essential level, the development application as modified would continue to provide for a residential apartment building. Here I accept the advice of the parties that the building form and façade would remain 'essentially' or 'materially' the same. Quantitatively, there is only a small increase to the number of apartments (one unit) and a small increase in number of parking spaces. 2. Qualitatively, there is a change to the access from Pacific Highway to Finlay Road and associated reconfigurations to basement parking. This does not breach the substantially the same test, in my view, in that the essential requirements relating to vehicular access and basement parking would continue to be provided. The previous arrangements for gross floor area (GFA) configuration within the site generally would continue. That is, providing for the concentration of GFA to the front (northern portion) of the site, preserving the ecological significance of the southern portion of the land. On that point, there would remain a technical breach of floor space ratio (FSR) for that northern portion of the site. But in this instance (of a modification application under s 4.55 of the EPA Act) there is no strict pre-requisite for compliance: North Sydney Council v Michael Standley and Associates (1998) 43 NSWLR 468 at 481 D; [1998] NSWSC 163 ("Michael Standley"). 3. It follows from the above that I agree with the parties that the modified development would be quantitatively and qualitatively the same as the development for which the consent was originally granted, and, as such, is substantially the same. 4. Council advises that there has been consultation and notification as per the requirements of subs 4.55(2)(b) and (c) of the EPA Act. During the conciliation, the parties took me through the substance of the objections received as a consequence of the notification period. The requirements of s 4.55(2)(d) of the EPA Act have also been met.
Having regard to s 4.55(3) of the EPA Act, I have taken into consideration the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the application. Assisting me here were the matters outlined in the parties' jurisdictional statement, which included reference to relevant provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Biodiversity and Conservation) 2021, Biodiversity Conservation Act 2016, State Environmental Planning Policy (Transport and Infrastructure) 2021 and Ku-ring-gai Local Environmental Plan 2015. The parties' explained how the relevant provisions have considered, with respect to these instruments, which I accept. Again, mindful of Michael Standley (481 D) and subsequent decisions, there is no requirement for a jurisdictional finding of the Court in regard to such provisions.
Further, and again having regard to s 4.55(3) of the EPA Act, I have taken into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified (as per the judgement associated with the Court approval).

Conclusion

With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.

Notation

The Court notes that the Respondent has agreed to the Applicant amending, pursuant to s 38(1) of the Environment Planning and Assessment Regulation 2021, the application to modify Development Application No. 0337/17 lodged with the Land and Environment in these proceedings pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, to include the following plans and documents: Reference Description Author/Drawn Dates DA - 001 Rev A6 Development Summary 1 December 2023 DA - 002 Rev A6 Site Analysis 1 December 2023 DA - 003 Rev A6 Local Context 1 December 2023 DA - 100 Rev A6 Site/Roof Plan 1 December 2023 DA - 101 Rev A6 Basement 5 - Level 166 1 December 2023 DA - 102 Rev A6 Lower Ground 4/B4 - Level 169 1 December 2023 DA - 103 Rev A6 Lower Ground 3/ B3 - Level 172 1 December 2023 DA - 104 Rev A6 Lower Ground 2/B2 - Level 175 1 December 2023 DA - 105 Rev A7 Lower Ground 1/B1 - Level 178 7 December 2023 DA - 106 Rev A6 Ground Floor Level 181 1 December 2023 DA - 107 Rev A6 Level 1 (roof terrace) -Level 184 1 December 2023 DA - 108 Rev A6 Level 2 - Level 188 (previously L-187) 1 December 2023 DA - 109 Rev A6 Level 3 - Level 191 (previously L-190) 1 December 2023 DA - 110 Rev A6 Level 4 - Level 194 (previously L-193) 1 December 2023 DA - 111 Rev A6 Level 5 (roof terrace) - Level 17 (previously L-196) 1 December 2023 DA - 112 Rev A6 Excavation Plan 1 December 2023 DA - 200 Rev A6 Elevations | Sections 1 December 2023 DA - 201 Rev A6 Elevations | Sections 1 December 2023 DA - 202 Rev A9 Elevations | Sections 21 December 2023 DA - 203 Rev A6 Ramp Section 1 December 2023 DA - 204 Rev A6 Ramp Section 1 December 2023 DA - 205 Rev A6 Streetscape 1 December 2023 DA - 206 Rev A6 Material Schedule 1 December 2023 DA - 300 Rev A6 Photomontage 1 1 December 2023 DA - 301 Rev A6 Photomontage 2 1 December 2023 DA - 400 Rev A6 3D Image 1 December 2023 DA - 401 Rev A6 3D Image 1 December 2023 SP - 100 Rev A6 Area Calculation - FSR Zhinar architects 1 December 2023 SP - 101 Rev A6 Area Calculation - Deep Soil/Landscape 1 December 2023 SP - 102 Rev A6 Shadows - 21 June 1 December 2023 SP - 103 Rev A6 Shadows - 21 March / September 1 December 2023 SP - 104 Rev A6 Height Study 1 December 2023 SP - 105 Rev A6 Sun View 1 1 December 2023 SP - 106 Rev A6 Sun View 2 1 December 2023 SP - 200 Rev A6 Comparison B5 1 December 2023 SP - 201 Rev A6 Comparison B4 1 December 2023 SP - 202 Rev A6 Comparison B3 1 December 2023 SP - 203 Rev A6 Comparison B2 1 December 2023 SP - 204 Rev A6 Comparison B1 1 December 2023 SP - 205 Rev A6 Comparison GF 1 December 2023 SP - 206 Rev A6 Comparison L1 1 December 2023 SP - 207 Rev A6 Comparison L2 1 December 2023 SP - 208 Rev A6 Comparison L3 1 December 2023 SP - 209 Rev A6 Comparison L4 1 December 2023 SP - 210 Rev A6 Comparison L5 1 December 2023 SP - 211 Rev A6 Comparison Elevation 1 December 2023 SP - 212 Rev A6 Comparison Elevation 1 December 2023 SP - 213 Rev A6 Comparison Elevation 1 December 2023 SP - 214 Rev A6 Comparison Section 1 December 2023 SP - 300 Rev A6 Comparison Landscape 1 December 2023 SP - 301 Rev A6 Proposed Cross Ventilation Calculation 1 December 2023 SP - 302 Rev A6 Approved Cross Ventilation Calculation 1 December 2023 SP - 303 Rev A6 Reflected Ceiling Plan (RCP) 1 December 2023 SP - 304 Rev A6 Services Diagram and Sections 1 December 2023 SP - 305 Rev A9 Terrace Sections 21 December 2023 LPS455-23/227, Sheet LP01 Issue H Site Plan 28 November 2023 LPS455-23/227, Sheet LP02 Issue H Tree Survey 28 November 2023 LPS455-23/227, Sheet LP03 Issue H Landscape Plan 1 28 November 2023 LPS455-23/227, Sheet LP04 Issue H Supplementary Planting 28 November 2023 LPS455-23/227, Sheet LP05 Issue H Hardscape plan and courtyard plan 28 November 2023 LPS455-23/227, Sheet LP06 Issue H Landscape plan - Roof Terraces Conzept Landscape Architects 28 November 2023 LPS455-23/227, Sheet LP07 Issue H Vegetation Management 28 November 2023 LPS455-23/227, Sheet LP08 Issue H Details 28 November 2023 LPS455-23/227, Sheet LP09 Issue H Section & Planting Matrix 28 November 2023 LPS455-23/227, Sheet LP10 Issue H Sections 28 November 2023 LPS455-23/227, Sheet LP11 Issue H Deep soil & BASIX calculation 28 November 2023 22MB9173/D01, Sheet 1 of 5 Rev G Ground floor drainage plan 20 November 2023 22MB9173/D02, Sheet 2 of 5 Rev G Basement 4 Drainage Plan 20 November 2023 22MB9173/D03, Sheet 3 of 5 Rev G Basement 5 Drainage Plan United Consulting Engineers 20 November 2023 22MB9173/D04, Sheet 4 of 5 Rev G Drainage Details 20 November 2023 22MB9173/D04, Sheet 5 of 5 Rev G MUSIC Results 20 November 2023 8805_Detail_220815_ Rev C Detail and Level Survey SDG Pty Ltd 3 August 2023 22-224 Preliminary Construction Traffic Management Plan Stanbury Traffic Planning 30 November 2023 Rev B Access Design Review and Statement of Design Compliance Ergon Consulting 1 December 2023 0006180197 Thermal Assessor Certificate Tutis Consulting 11 December 2023 1372858M_05 BASIX Certificate Green Star Energy Solutions 12 December 2023

Orders

The Court orders that: 1. The appeal is upheld. 2. Development Consent No. DA 0337/17, granted by the Land and Environment Court on 29 June 2020, is modified as set out in Annexure A. 3. Development Consent No. DA 0337/17, as modified, is contained in Annexure B.

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: 23 January 2024

With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect.

The Court notes that the Respondent has agreed to the Applicant amending, pursuant to s 38(1) of the Environment Planning and Assessment Regulation 2021, the application to modify Development Application No. 0337/17 lodged with the Land and Environment in these proceedings pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979, to include the following plans and documents:

Level 5 (roof terrace) - Level 17 (previously L-196)

Access Design Review and Statement of Design Compliance

(1) The appeal is upheld.

(2) Development Consent No. DA 0337/17, granted by the Land and Environment Court on 29 June 2020, is modified as set out in Annexure A.

(3) Development Consent No. DA 0337/17, as modified, is contained in Annexure B.

Planning and Assessment Act 1979

Planning and Assessment Regulation 2021

Conservation Act 2016

Environment Court Act 1979

Environment Planning and Assessment Regulation 2021

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (3)