20 Trentino Pty Limited v Ku-ring-gai Council
[2022] NSWLEC 1283
•09 June 2022
Land and Environment Court
New South Wales
Medium Neutral Citation: 20 Trentino Pty Limited v Ku-ring-gai Council [2022] NSWLEC 1283 Hearing dates: Conciliation conference on 25 and 26 May 2022 Date of orders: 09 June 2022 Decision date: 09 June 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that:
(1) the appeal is upheld.
(2) development application DA0555/21 for the demolition of existing dwelling, Torrens title subdivision into 2 lots and construction of a dwelling house on each lot – Integrated Development – Water Management Act, 2000 at 20 Trentino Road, Turramurra, NSW 2074 (legally described as Lot 25B in DP370846) is determined by the grant of consent subject to the conditions set out in Annexure 'A' to this agreement.
Catchwords: DEVELOPMENT APPEAL – subdivision – construction of dwelling house - conciliation conference – agreement between the parties - orders
Legislation Cited: Biodiversity Conservation Act 2016, s 7.4 and 7.7
Biodiversity Conservation Regulation 2017, cl 7.1
Environmental Planning and Assessment Act 1979, ss 2.22, 4.16, 4.46, 8.7
Ku-ring-gai Local Environmental Plan 2015, cl 4.1, 4.3, 4.4, 6.1, 6.2, 6.3, 6.4 and 6.5
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Water Management Act 2000, ss 89, 90 and 91
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004
Category: Principal judgment Parties: 20 Trentino Pty Limited (Applicant)
Ku-ring-gai Council (Respondent)Representation: Counsel:
Solicitors:
J Lazarus SC (Applicant)
C Rose (Solicitor) (Respondent)
Addisons (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2022/33018 Publication restriction: No
Judgment
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COMMISSIONER: The nature of proceedings: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No. 0555/21 seeking development consent for the demolition of existing buildings, Torrens title subdivision into 2 lots, and construction of a dwelling house on each lot (the Proposed Development) at 20 Trentino Road, Turramurra legally described as Lot 25B in DP 370846 (the Site).
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The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 25 and 26 May 2022. I have presided over the conciliation conference.
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At the conciliation conference, the parties reached 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 development consent to the development application subject to conditions.
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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 development application.
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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 the parties explained how the jurisdictional prerequisites have been satisfied in an agreed joint jurisdictional statement which I summarise as relevant below.
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The development application was notified between 22 February 2022 and 22 March 2022, in accordance with the community participation requirements of s 2.22 and Sch 1 of the EPA Act. Any submissions made have been considered by the parties, and the parties agree the matters raised have been addressed in the Applicant’s amended application.
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The Proposed Development complies with the following relevant development standards:
Minimum subdivision lot size of 930m2 per lot (cl 4.1 of the Ku-ring-gai Local Environmental Plan (KLEP));
Maximum height of buildings of 9.5 m (cl 4.3 of the KLEP);
Floor space ratio control of 0.3:1 (cl 4.4 of the KLEP)
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The Site is identified as being partially in a flood planning area on the “Hydrology Map”. The parties agree that the proposed development satisfied the considerations within clause 5.21 of the KLEP and that the Site is suitable for the development proposed.
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The Site is identified on the KLEP Maps as being affected by class 5 acid sulfate soils. The parties agree that the proposed development satisfies the considerations within cl 6.1 of the KLEP, and the Site is suitable for the Proposed Development.
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The Applicant has provided a “Proposed Residential Redevelopment Geotechnical Investigation Report” prepared by Cardno dated 21 April 2022 in order to satisfy cl 6.2 of the KLEP. The parties agree that the proposed development satisfies the considerations within cl 6.2 and that the Site is suitable for the development proposed.
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The Site is partially identified as an “Area of Biodiversity Significance” on the Terrestrial Biodiversity Map. The Applicant has provided a “Biodiversity Development Assessment Report” prepared by Fraser Ecology dated 16 May 2022 and a “Arboricultural Impact Assessment Report” prepared by Malcolm Bruce dated 5 May 2022 in order to satisfy the considerations within cl 6.3 of the KLEP. The parties agree that the proposed development satisfies the considerations within cl 6.3 and that the Site is suitable for the Proposed Development.
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The Site is identified as being partially affected by Category 3 Riparian Lands on the Riparian Lands and Watercourses Map. The Applicant provided a Flora and Fauna Report, prepared by Narla Environmental, dated August 2021 in order to satisfy the considerations within cl 6.4 of the KLEP. The parties agree that the proposed development satisfied the considerations within clause 6.4 and that the Site is suitable for the Proposed Development.
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The Applicant has provided stormwater management plans prepared by Quantum Engineers dated 13 May 2022. The parties agree that the proposed development satisfies the considerations within cl 6.5 of the KLEP and that the Site is suitable for the Proposed Development.
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In relation to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), the Proposed Development is on land which has historically been used for residential purposes and is unlikely to contain any contamination. The parties agree that Clause 4.6 of the SEPP Resilience and Hazards is satisfied, and that the Site is suitable for the development proposed. The parties also rely on the Council’s Assessment Report, pages 88-89 (addressing contamination) and 91-92 (addressing clause 5.21 of the LEP) contained at Tab 14 of the Respondent’s bundle filed with the Court on 23 May 2022:
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The proposed development is BASIX affected development as prescribed by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). The Applicant has provided the following documents to satisfy the requirements of SEPP BASIX:
Updated BASIX Stamped Plans
05 May 2022
Updated BASIX Certificate for Lot A
23 May 2022
Updated BASIX Certificate for Lot B
23 May 2022
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Sections 7.4 and 7.7 of the Biodiversity Conservation Act 2016 (BC Act) apply to the Proposed Development on the Site. Clause 7.1(3) of the Biodiversity Conservation Regulation 2017 (BC Regulation) applies to the Site. The Applicant has provided a “Biodiversity Development Assessment Report” prepared by Fraser Ecology dated 16 May 2022 to satisfy clause 7.1(3) of the BC Regulation. The Parties agree that clause 7.1(3) of the BC Regulation has been satisfied.
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The proposed development is “Integrated Development” as defined by section 4.46 of the EPA Act as it may require an approval under ss 89, 90 and 91 of the Water Management Act 2000 (WM Act). The Parties agree that the development application was referred to Water NSW and no terms of approval from Water NSW are required for the development.
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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. I adopt the reasons given by the parties as summarised above in this judgment.
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As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
Notations
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The Court notes that:
Ku-ring-gai Council as the relevant consent authority has, pursuant to clause 55 of the Environmental Planning and Assessment Regulation 2000 consented to the following amendments to development application DA 0555/21:
| Title of document | Dated | ||||||||||||||||||||||||||||||||||||||||||||||
| Updated Architectural Plans for Lot A
| |||||||||||||||||||||||||||||||||||||||||||||||
| Updated Architectural Plans for Lot B
| |||||||||||||||||||||||||||||||||||||||||||||||
| Updated Landscape Plans
| |||||||||||||||||||||||||||||||||||||||||||||||
| Updated Stormwater Plans | 13 May 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Updated Subdivision and Civil Works Plans | 13 May 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Proposed Residential Redevelopment Geotechnical Investigation Report | 21 April 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Updated Arboricultural Impact Assessment of a Tree Located on or Near 20 Trentino Road, Turramurra | 05 May 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Drivecon Permeable Concrete Performance Specifications | |||||||||||||||||||||||||||||||||||||||||||||||
| Updated Waste Management Plan | 28 April 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Updated Biodiversity Development Assessment Report | 16 May 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Updated BASIX Stamped Plans | 05 May 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Updated BASIX Certificate for Lot A | 23 May 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Updated BASIX Certificate for Lot B | 23 May 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Updated National House Energy Rating Scheme for Lot A | 05 May 2022 | ||||||||||||||||||||||||||||||||||||||||||||||
| Updated National House Energy Rating Scheme for Lot B | 05 May 2022 |
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the Applicant uploaded the amended application on the NSW planning portal on 25 May 2022 and 26 May 2022.
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the above documents which comprise the amended application were filed with Court on 26 May 2022.
Orders
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The Court orders that:
the appeal is upheld.
development application DA0555/21 for the demolition of existing dwelling, Torrens title subdivision into 2 lots and construction of a dwelling house on each lot – Integrated Development – Water Management Act, 2000 at 20 Trentino Road, Turramurra, NSW 2074 (legally described as Lot 25B in DP370846) is determined by the grant of consent subject to the conditions set out in Annexure 'A' to this agreement.
……………………….
E Espinosa
Commissioner of the Court
(Annexure A) (387395, pdf)
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Decision last updated: 09 June 2022
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