Background
Huiyong Fang and Wenbing Xue sought approval to demolish existing structures at 20 Pymble Avenue, Pymble, and construct six townhouses above a single-level basement car park. After Ku-ring-gai Council did not determine the application, the applicants appealed its deemed refusal under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW).
The parties reached an in-principle resolution at a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW), then settled amended plans and consent conditions. Their agreement proposed approval despite the development exceeding the applicable 9.5-metre height standard by up to 720 millimetres, principally through lift structures and, for one dwelling, basement clearance needed for on-site waste collection.
The Court’s Holding
The Court upheld the applicants’ written request under cl 4.6 of the Ku-ring-gai Local Environmental Plan 2015. It accepted that strict compliance with the height standard was unreasonable or unnecessary in the circumstances and that sufficient environmental-planning grounds justified the limited exceedance.
Commissioner Horton found that the jurisdictional prerequisites for granting consent were satisfied, including requirements concerning floor-space ratio, nearby heritage items, acid sulfate soils, excavation, biodiversity, stormwater, tree canopy, contamination, BASIX and embodied emissions. Because the parties’ agreed decision was one the Court could properly make, s 34(3) required the Court to give effect to it. The Court upheld the appeal and granted development consent subject to agreed conditions, while expressly stating that it had not undertaken a merits assessment of the issues originally disputed.
Key Takeaways
- A cl 4.6 request justified a maximum 720-millimetre departure from the 9.5-metre building-height standard where the exceedance was largely confined to lift structures and necessary basement clearance.
- The Housing SEPP permitted the multi-dwelling development in the R2 zone because the site was about 250 metres from Pymble Station and within a low- and mid-rise housing area.
- In a s 34 conciliation matter, the Court must implement the parties’ agreement if it is satisfied that the agreed outcome is one the Court could lawfully reach in the proper exercise of its functions.
Why It Matters
The decision illustrates how a modest height exceedance may be approved when its physical extent and planning causes are specifically identified and supported by a cl 4.6 request. It also demonstrates the jurisdictional review the Land and Environment Court performs before entering consent orders agreed through conciliation.
The ruling should not be treated as a merits determination of the parties’ original disputes: the Court’s role was to confirm that the agreed approval was legally available and then dispose of the appeal in accordance with that agreement.