Wang v Ku-ring-gai Council [2023] NSWLEC 1782 (19 December 2023)

Last Updated: 9 February 2024

Land and Environment Court New South Wales

Case Name:	Wang v Ku-ring-gai Council
Medium Neutral Citation:	[2023] NSWLEC 1782
Hearing Date(s):	Conciliation conference on 18-19 December 2023
Date of Orders:	19 December 2023
Decision Date:	19 December 2023
Jurisdiction:	Class 1
Before:	Dixon SC
Decision:	The Court orders: (1) The appeal is upheld. (2) Development consent is granted to development application DA0114/23 for the construction of a two-storey home, pool and tennis court including associated landscaping at 3 Graham Avenue, Pymble, being Lot 8 DP 1291190, subject to conditions annexed hereto and marked ‘Annexure A’.
Catchwords:	APPEAL – development application – conciliation conference – agreement between the parties – orders
Legislation Cited:	Biodiversity Conservation Act 2016, ss 6.12, 7.7 Environmental Planning and Assessment Act 1979, ss 4.16, 8.12 Environmental Planning and Assessment Regulation 2021, ss 27, 38 Heritage Act 1977, s 57 Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 4.3, 4.4, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4; Sch 5, Pt 1 Land and Environment Court Act 1979, ss 34, 34AA State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.10 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Category:	Principal judgment
Parties:	Xuenan Wang (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: J Reid (Applicant) J Walker (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Maddocks (Respondent)
File Number(s):	2023/205549
Publication Restriction:	Nil

JUDGMENT

1. These proceedings arise following the Council’s deemed refusal of development application (DA0114/23) (DA) for demolition works and the construction of a dwelling house, swimming pool, tennis court at Lot 8 in Deposited Plan 1291190, otherwise known as 3 Graham Avenue, Pymble (site).
2. This matter was listed for a mandatory conciliation conference and hearing under s 34AA of the Land and Environment Court Act 1979 (LEC Act) between the parties on 18-19 December 2023, commencing with an onsite view.
3. Prior to the conference, the Council agreed to the applicant amending its application. A full list of the amendments is set out in the Amended Schedule of Amendments prepared by McCullum Ashby Architects dated 6 December 2023 provided at Tab 3 of the s34 agreement bundle. The main changes include:

(1) deletion of batter at the bottom of the secondary driveway;

(2) deletion of overland flow sandstone kerb;

(3) an adjustment of the secondary driveway levels; and a change to the surface of that driveway from cobblestone to no fines concrete;

(4) the addition of an overflow garage element to the gymnasium/studio;

(5) the addition of a 1.2m pool fence atop the pool retaining wall; and

(6) the reduction in size of the “overflow garage/gym/studio” and the raising of the finished floor level by an additional 200mm.

4. Subject to the imposition of the agreed conditions of consent the Council is now satisfied that the amended application addresses the Council’s contentions in its Statement of Facts and Contentions dated 25 July 2023.
5. The parties have forwarded to the Court an executed s34 agreement setting out the terms of a decision in the proceedings that would be acceptable to them. This decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the development application on a conditional basis.
6. 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.

Jurisdictional preconditions

7. Based on the parties’ written jurisdictional submission and the evidence before me, I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard, I note the following matters.

Owner’s consent

8. The applicant is the owner of the subject land (see the Development Application form and Title Search filed with the Class 1 Application (Tab 1 of the Class 1 Application)).

Heritage Act 1977 (Heritage Act)

9. The access handle that forms part of the site is mapped to be within State Heritage Item at 29 Telegraph Road, being item No. 188 within Pt 1 of Sch 5 to the Ku-ring-gai Local Environmental Plan 2015 (LEP). Part of the works proposed by the DA include works at the front of the access handle.
10. Pursuant to s 57(1) of the Heritage Act, a person must not carry out development on land within the precinct except in pursuance of an approval.
11. On 12 April 2023, the Council referred the DA to the NSW Heritage Office.
12. On 16 May 2023, the NSW Heritage Office provided a response granting concurrence, subject to appropriate conditions outlined in its General Terms of Approval. These conditions have been incorporated into the agreed conditions of consent.
13. On 4 December 2023, the Council notified the NSW Heritage Office of the appeal and the conciliation conference and hearing dates, pursuant to s 8.12 of the EPA Act. The NSW Heritage Office has not indicated that it wishes to be heard in the proceedings.

Biodiversity Conservation Act 2016 (BC Act) and Biodiversity Conservation Regulation 2017

14. A part of the site is mapped as biodiversity values. The mapped area contains the following threatened ecological community with potential for serious and irreversible impacts: Blue Gum High Forest in the Sydney Basin Bioregion. As the development will affect land identified on the NSW Biodiversity Values Map, the application for development must be accompanied by a biodiversity development assessment report (BDAR) pursuant to s 7.7 of the BC Act.
15. In compliance with s 7.7 and s 6.12 of the BC Act, the applicant has prepared a BDAR prepared by Ecoplanning (Tab 6 of the Class 1 Application).
16. The BDAR undertakes the required method of assessment for the proposal, including the assessment of avoidance strategies and recommends the implementation of mitigation measures. Compliance with these measures is incorporated in the agreed conditions of consent. I am satisfied that the implementation of the proposed mitigation measures will appropriately limit the impacts of the proposal on the threatened ecological community.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

17. Chapter 2, s 2.10(3) of the BC SEPP relates to clearing vegetation in non-rural areas. The proposed development seeks to remove six (6) trees on the site. The removal of these trees has been assessed by the amended Arboricultural Implication Assessment (AIA) and Arboricultural Method Statement prepared by Horticultural Resources Consulting Group dated 17 October 2023 (Tab 11 of the s34 agreement bundle).
18. The removal of these trees is consistent with local planning objectives, having regard to the landscaping strategy for the site. Conditions of consent have been imposed requiring the development to implement the landscaping as identified in the vegetation management plan prepared by Ecoplanning (Tab 7 of the Class 1 Application) and in the amended landscape plans prepared by Site Design + Studios (Tab 9 of the s34 agreement bundle). Based on the evidence before me, the parties submit, and I accept that the proposed development is consistent with Ch 2 of the BC SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

19. Pursuant to s 4.6 of the RH SEPP, I must be satisfied that appropriate consideration has been given to whether the site is contaminated, the suitability of the site to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so.
20. The site has been used for residential purposes for a significant period of time. The proposal does not involve a change of use and seeks to maintain the existing residential use of the land. The proposal does not seek to alter the existing ground or sub-surface. See Addendum to Statement of Environmental Effects prepared by Minto Planning Services dated 1 December 2023 (Tab 12 of s34 agreement bundle).
21. There is no basis to conclude that the land is contaminated.
22. The parties submit, and I accept that the land is suitable for the proposed use.

BASIX development

23. The application is BASIX development within the meaning of the Dictionary to the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). In compliance with cl 27 of the EPA Regulation, the applicant has provided a BASIX Certificate prepared by Taylor Smith Consulting dated 9 March 2023 to reflect the proposed development. The BASIX Certificate is provided at Tab 9 of the Class 1 Application.
24. As indicated above, the main changes in the amended application relate to external elements and to the overflow garage/gym/studio. Notwithstanding this, an amended BASIX certificate (1373413S_02 dated 7 December 2023) has been provided for the amended application.

Ku-ring-gai Local Environmental Plan 2015

25. Clause 2.3 (Land Zone) refers to the zone objectives and the Land Use Table. The site is zoned R2 Low Density Residential. The proposed development remains permissible with consent (see Statement of Environmental Effects prepared by Minto Planning Services dated 16 March 2023 provided in Tab 3 of the Class 1 Application).
26. Clause 4.3 (Height of Buildings) refers to height of buildings. The maximum building height for the site is 9.5m. The proposed development will have a maximum height of 9.14m. The maximum height of the proposed development is included in the Amended Architectural Plans prepared by McCullum Ashby Architects, specifically drawings 11-13 and 15 Revision G dated 5 October 2023 and drawing 14 Revision J dated 7 December 2023 (Tab 3 of the s34 agreement bundle).
27. Clause 4.4 (Floor Space Ratio) refers to floor space ratio (FSR), the maximum FSR of 0.3:1 is permitted on the site. The proposed development will have a total gross floor area of 997m² with a FSR of 0.29:1. The calculations of the gross floor area and FSR is included in the Amended Architectural Plans prepared by McCullum Asbhy Architects, specifically drawing 1 Revision J dated 7 December 2023 (Tab 4 of the s34 agreement bundle).
28. Clause 5.10 (Heritage) refers to heritage conservation. The applicant prepared a Heritage Impact Statement (Tab 4 of the Class 1 Application) which confirmed that the proposed development will have no impact on the Conservation Area and that significant views will be retained. Furthermore, in the Heritage Joint Expert Report, the respective Heritage experts of the parties agreed that supplementary information prepared by the applicant demonstrated that the heritage-related contentions raised by the Council in its SOFC are resolved (Joint Expert Report of Mr Philips and Ms Holtham dated 10 November 2023).
29. Clause 5.21 (Flood Planning) refers to flood planning. The site is not mapped on the LEP Flood Planning Map and is not considered to be in a flood affected area. Accordingly, this clause does not apply to the proposed development.
30. Clause 6.1 (Acid Sulfate Soils) refers to acid sulfate soils. The site is mapped as containing Class 5 acid sulfate soils. The proposed development is not likely to lower the water table below 1.0m Australian Height Datum on any land within 500m of a Class 1, 2, 3 and 4 land classifications and therefore the further matters required in cl 6.1 of the LEP do not apply (Tab 8, Class 1 Application, pp 9-10).
31. Clause 6.2 (Earthworks) refers to earthworks. The proposed development will require some ancillary earthworks. The amended application will assist in significantly reducing the extent of excavation.
32. Clause 6.2(3) requires the consent authority to consider the following heads of consideration:

The likely disruption of, or any detrimental effect on, drainage patterns and soil stability in the locality of the development (cl 6.2(3)(a))

33. The application is supported by a Geotechnical Investigation Report prepared by Geo-Environmental Engineering, Report ID: G21083PYM-R02F (Geotech Report) (Tab 8, Class 1 Application).
34. The Geotech Report confirms that the investigation included the drilling and logging of four boreholes to assess the subsurface conditions across the site (pp 11-12, Figure 1 and Appendix C). The investigation results are set out in Part 4 of the Geotech Report commencing on p 14.
35. The proposal includes excavation of up to 5.5m, which is not expected to reach groundwater (water table), but perched seepage water directly recharged by rainfall events near the soil-bedrock interface and from natural joints and fractures within the underlying bedrock formation is expected. The Geotech Report identifies the expected water inflow at Part 5.3.3 and concludes that drainage of the site can be adequately managed through pumping in the construction phase and stormwater drainage in the longer term. The stormwater management plans form part of the amended application and are consistent with the Geotech Report.
36. The Geotech Report analysed the soil samples taken from the bore holes and makes recommendations for excavation support, vibration management and foundation design having regard to soil stability in Part 5.

The effect of the development on the likely future use or redevelopment of the land (cl 6.2(3)(b))

37. The proposal will enable future development for a dwelling house and modern basement parking. That use is consistent with the Council’s future strategy of encouraging single dwellings in the zone. Any redevelopment is likely to be a dwelling and there is no reason the site conditions could not be adapted to that use.

The quality of the fill or the soil to be excavated, or both (cl 6.2(3)(c))

38. The site has historically always been used for residential purposes and it is likely that the soil will therefore not be contaminated, which is consistent with the indicative soil sampling in the Geotech Report.

The effect of the development on the existing and likely amenity of adjoining properties (cl 6.2(3)(d))

39. The excavation phase of the construction period will have some impact on the amenity of adjoining properties. The Geotech Report addresses the likely impact under Part 5.3.1 and 5.3.5 and makes recommendations for the type of equipment to be used to reduce vibration and noise. The conditions of consent require compliance with the Geotech Report in condition 1.

The source of fill material and the destination of any excavated material (cl 6.2(3)(e))

40. The parties agree that it is unlikely that fill material will be required on site as the excavated material can be redistributed. To the extent that any fill is to be imported on site the applicant accepts a condition that it be certified as ENM or VENM fill. The applicant also accepts a condition that any excavated material that is not reused, is to be transported to a licensed waste facility consistent with the obligation under the Protection of the Environment Operations Act 1997.

The likelihood of disturbing relics (cl 6.2(3)(f))

41. The site is not registered on the State or Local Heritage Register as containing any relic, nor is there any record of a relic on the Aboriginal Heritage Information Management System (AHIMS).
42. There is no reason to suspect that a relic find is likely. To the extent that a relic is found the usual unexpected finds procedures would apply.

The proximity to, and potential for adverse impacts on, any waterway, drinking water catchment or environmentally sensitive area (cl 6.2(3)(g))

43. The site is not mapped on Council’s Riparian Lands Map and is disconnected from any watercourse by more than 200m. The site is not in a drinking water catchment but is in proximity of Blue Gum High Forest. The proposal is unlikely to affect groundwater and stormwater will be managed through the stormwater design such that there is unlikely to be an impact on the vegetation. The proposal incorporates erosion and sediment controls during construction as shown in the stormwater plans.

Any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development (cl 6.2(3)(h))

44. The proposal concentrates the built form in the eastern portion of the site to minimise impacts on the Blue Gum High Forest species. By doing so, the proposal incorporates basement parking. The impacts of earthworks are mitigated through the conditions of consent which adopt the recommendations in the Geotech Report and by the construction method shown on the plans and stormwater design.
45. For the reasons outlined above, the parties submit, and I accept that the proposal will not have any unreasonable impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.
46. Clause 6.3 (Biodiversity Protection) refers to biodiversity protection. A portion of the site is mapped as containing land of biodiversity significance on Council’s mapping system and is mapped on the NSW Biodiversity Values Map. The proposal requires the removal of six (6) trees which are dead or in significant decline and an additional three (3) trees of moderate retention value, as detailed in the Arboricultural Implication Assessment (AIA) and Arboricultural Method Statement prepared by Horticultural Resources Consulting Group dated 17 October 2023 (Tab 11 of the s34 agreement bundle).
47. None of the trees proposed for removal are identified as having a high retention value.
48. Clause 6.4 (Riparian land and adjoining waterways) refers to Riparian land and adjoining waterways. The site is not mapped on the LEP Riparian Lands Map and is not considered to be in a flood affected area. Accordingly, this clause does not apply to the proposed development.

Public submissions

49. The DA was publicly notified from 13 April 2023 to 4 May 2023 for a period of 14 days. Three (3) public submissions were received in response to the public notification of the DA. The main issues raised in the objections included:

(1) Excessive excavation.

(2) View loss.

(3) Stormwater runoff.

50. The parties agree that the public submissions have been sufficiently addressed by the amended application and/or through the imposition of conditions and not a basis for refusal.

Conclusion

51. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties’ decision.
52. In making the orders to give effect to the agreement between the parties, 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.
53. The Court notes:

(1) That Ku-ring-gai Council, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant amending development application DA0114/23 in accordance with the documents listed below:

No.	Document	Date
1.	Amended Architectural Plans, prepared by McCullum Ashby Architects • 00 Cover Page – Revision G, 5 October 2023 • 01 Development Data – Revision J – 7 December 2023 • 02 Site Analysis – Revision G – 5 October 2023 • 03 Site Analysis – Maps – Revision G – 5 October 2023 • 04 Site – Basement – Revision J – 7 December 2023 • 05 Site - Ground Floor – Revision G – 5 October 2023 • 06 Site - First Floor – Revision G – 5 October 2023 • 07 Site - Roof Plan – Revision G – 5 October 2023 • 08 Basement – Revision J – 7 December 2023 • 09 Ground Floor Plan – Revision G – 5 October 2023 • 10 First Floor – Revision G – 5 October 2023 • 11 East & North Elevations – Revision G – 5 October 2023 • 12 West & South Elevations – Revision G – 5 October 2023 • 13 Section A & B – Revision G – 5 October 2023 • 14 Section C & D – Revision J – 7 December 2023 • 15 Section E – Revision G – 5 October 2023 • 16 Excavation & Environmental Management Plan – Revision J – 7 December 2023 • 17 Demolition Plan – Revision G – 5 October 2023 • 18 Shadow Diagram 9am - 21 June – Revision G – 5 October 2023 • 19 Shadow Diagram 10am - 21 June – Revision G – 5 October 2023 • 20 Shadow Diagram 11am - 21 June – Revision G – 5 October 2023 • 21 Shadow Diagram 12pm - 21 June – Revision G – 5 October 2023 • 22 Shadow Diagram 1pm - 21 June – Revision G – 5 October 2023 • 23 Shadow Diagram 2pm - 21 June – Revision G – 5 October 2023 • 24 Shadow Diagram 3pm - 21 June – Revision G – 5 October 2023 • 25 Notes – Revision G – 5 October 2023 • 27 3D Views 01 – Revision G – 5 October 2023 • 28 3D Views 02 – Revision G – 5 October 2023 • 29 3D Views 03 – Revision G – 5 October 2023	Various
2.	Certification of Height Poles, prepared by M.Y. Xu & Co, Rev C	24 August 2023
3.	Photomontage Methodology Statement prepared by McCullum Ashby Architects	6 October 2023
4.	View Impact Study prepared by McCullum Ashby Architects, DA01-D03, Rev C	5 October 2023
5.	View Loss Assessment prepared by Minto Planning Services	10 October 2023
6.	Amended Landscape Plans, Issue K, prepared by Site Design + Studios	16 November 2023
7.	Amended Stormwater Plans, Revision H, prepared by ACOR Consultants (CC) Pty Ltd	15 November 2023
8.	Arboricultural Implication Assessment (AIA) and Arboricultural Method Statement, Issue H, prepared by Horticultural Resources Consulting Group	17 October 2023
9.	Addendum Statement of Environmental Effects prepared by Minto Planning Services	1 December 2023
10.	Amended BASIX Certificate, 1373413S_02	7 December 2023

54. The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to development application DA0114/23 for the construction of a two-storey home, pool and tennis court including associated landscaping at 3 Graham Avenue, Pymble, being Lot 8 DP 1291190, subject to conditions annexed hereto and marked ‘Annexure A’.

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S Dixon

Senior Commissioner of the Court

Annexure A (336217, pdf)

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