Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:
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.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1970f86c11f766708a49e494)
Disclaimer: Curated by HT Syndication.
