Baxter v Northern Beaches Council

[2024] NSWLEC 1811

Land and Environment Court

New South Wales

Medium Neutral Citation:

Baxter v Northern Beaches Council [2024] NSWLEC 1811

Hearing dates:

Conciliation conference on 27 November 2024

Date of orders:

17 December 2024

Decision date:

17 December 2024

Jurisdiction:

Class 1

Before:

Coetzee AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA2023/0121 for the subdivision of three existing lots into five new lots resulting in a residue lot and reconfiguration of a proposed detention basin, at 25B, 27 and 29 Dove Lane, Warriewood, legally described as Lot 102 in DP 1303366 and Lots 2 and 3 in DP 1272851, subject to the conditions of consent annexed hereto and marked Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – subdivision, residue lot, agreement between parties – orders

Legislation Cited:

Conveyancing Act 1919, ss 88B

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.15, 8.16

Land and Environment Court Act 1979, ss 34, 39

Roads Act 1993, ss138

Water Management Act 2000, s 91

Pittwater Local Environmental Plan 2014, cll 2.3, 2.6, 2.7, 4.1, 6.1, 7.1, 7.2, 7.10

Environmental Planning and Assessment Regulation 2021, ss 23, 38,

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.45, 2.48

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Texts Cited:

Northern Beaches Council Community Participation Plan 2019

Northern Beaches Council, Warriewood Valley Release Area Masterplan and Design Guideline, 2018

Northern Beaches Council, Warriewood Valley Urban Land Release Water Management Specification, February 2001

Category:

Principal judgment

Parties:

Thomas Baxter (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2023/00457575

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Northern Beaches Council of Development Application DA2023/0121 (the DA) for the proposed subdivision of three existing lots into four, resulting in an additional residential lot and reconfiguration of a previously approved and constructed water quality system including a bio filtration detention basin on 25B, 27 and 29 Dove Lane, Warriewood, legally described as Lot 102 in DP 1303366 and Lots 2-3 in DP1272851 (the site).

2. The Court, exercising the functions of the Northern Beaches Council pursuant to s 39(2) of the Land and Environment Court Act 1979, has approved under the s 38(1) of the Environmental Planning and Assessment Regulation 2021 (Regulation), the Applicant amending Development Application DA2023/0121, filed with the Court on 4 October 2024 by Notice of Motion. On the 15 October 2024, the Applicant was granted leave to rely on an amended application (Amended Application) which included the following changes:

1. provision for a 3m wide deep soil vegetated buffer between the basin and the drainage easement to the north;

2. reduction in the size of the residue lot from 616m² down to 500m²;

3. an increase in the landscaped area from 587m² to 709m²;

4. an increase in the surface area of the below ground basin from 324.1m² to 352.8m² and a reduction in the internal depth from 2m to 1.7m;

5. addition of a 350m² and 600mm deep vegetated bio-retention basin above the below ground detention tank with the planting of Macrophytes; and

6. modification of the local road and drainage inlets adjacent to the basin lot to facilitate a drainage catchment.

3. The Applicant subsequently provided further amended material and information referred to at paragraph 2 of the s 34 Agreement. The Respondent has agreed to the amendment of the development application to incorporate these documents pursuant to s 38 of the Regulation (Further Amended Application). The additional amendments made to the proposed development include:

1. Provision of a revised s 88B Instrument pursuant to the Conveyancing Act 1919, outlining the terms of the restrictions on title that relate to the maintenance of the stormwater basin;

2. An amended subdivision plan proposing subdivision of the existing detention basin which comprises three existing lots into five lots, including the conversion of the new lot into a residue lot; and

3. A maintenance schedule and further details as to the required procedures required to maintain the adequate function of the stormwater system.

4. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, at which I presided on 27 November 2024. The Court notes that no objectors wished to speak at the conciliation conference.

5. Prior to the conciliation conference, the parties reached an in-principle agreement. This agreement between the parties involves the Court upholding the appeal and granting development consent to the Further Amended Application subject to those agreed conditions of consent. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 25 November 2024 and a revised agreement filed on 2 December 2024.

6. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to Further Amended Application plans that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement and is included in Annexure A.

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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised. These pre-requisites were explained by the parties during the conciliation conference, in order to allow the Court to make the agreed orders at [29].

Jurisdictional Prerequisites

Owners Consent

8. Pursuant to s 23 of the Regulation, Abax Contracting Pty Ltd is the proprietor of the three lots (Lot 2 and Lot 3 in DP1272851 and Lot 102 in DP 1303366) proposed for subdivision.

9. The proposal requires works in the road reserve to regrade Dove Lane, which is a Northern Beaches Council owned Road. Pursuant to s 39(2) of the LEC Act, the Court has the power to grant development consent to a development application on Council owned land. Additionally, through the s 34 agreement and Condition 15 of the Conditions of Consent in Annexure A, that requires the Applicant to obtain a s 138 approval under the Roads Act 1993, Council has provided its consent of the proposed works within the road reserve.

Community participation

10. The DA was notified between 26 April and 24 May 2023. One submission was received during this period, which the Respondent addressed. The Amended Application was further publicly notified on 25 October 2024 and 8 November 2024 in accordance with the Northern Beaches Council Community Participation Plan (2019), with no further submissions received. Further minor amendments to the application did not require re-notification as Council considered the environmental impact of the amendments the same or lesser than the DA.

Water Management Act 2003

11. The DA is nominated as Integrated Development requiring an approval under s 91 of the Water Management Act 2003 (WM Act) for works within 40m of Fern Creek. The DA was referred to Water NSW on 28 October 2022. Pursuant to s 91(2) of the WM Act, Water NSW Issued their General Terms of Approval in November 2023. The Amended Application was submitted back to Water NSW on 25 October 2024 and Water NSW have confirmed that the General Terms of Approval granted in November 2023 remain unchanged. These requirements are incorporated into Condition 2 in Annexure A.

State Environmental Planning Policy (Transport and Infrastructure) 2021

12. Pursuant to ss 2.45 and 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP), the DA was referred to Ausgrid. Ausgrid provided a response on 26 April 2023 with no objection to the DA, however required the design to comply with relevant Ausgrid Network Standards and SafeWork NSW Codes of Practice for construction works near existing electrical assets. This requirement has been incorporated into Condition 4(m) in Annexure A.

State Environmental Planning Policy (Resilience and Hazards) 2021

13. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use.

1. The site is currently used for the purposes of a stormwater detention basin which was approved under an earlier DA Consent N0379/14. As part of DA N0379/14, a Preliminary Site Investigation (PSI) Report was prepared by Geotechnique. The recommendations in the PSI were imposed as conditions of consent on DA N0379/14 and were to be implemented prior to the issue of a construction certificate. Given that this work is now completed under construction certificate 15002 (Dated 04/09/2018, Land Development Certificates), I am satisfied that contamination has been adequately considered.

2. The Further Amended Application for subdivision does not seek any change of use to the land and can therefore be considered to remain suitable for the proposed development in its current state.

14. Based on the above reasons, the Court is satisfied for the purposes of s 4.6 of the Resilience and Hazards SEPP that the site is suitable for the proposed development.

Pittwater Local Environmental Plan 2014 (PLEP)

15. The site is subject to the Pittwater Local Environmental Plan 2014 (PLEP) and is zoned R3 Medium Density Residential. Pursuant to cl 2.3(2) the consent authority must have regard to the zone objectives when determining the development application. The parties agree that the Further Amended Application can be approved having regard to those objectives. The R3 zone objectives are:

•  To provide for the housing needs of the community within a medium density residential environment.

•  To provide a variety of housing types within a medium density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To provide for a limited range of other land uses of a low intensity and scale, compatible with surrounding land uses.

16. The Further Amended Application does not seek consent to change the use of the land. The existing use of the land is for a stormwater detention basin associated with the residential use of the surrounding land (as approved under an earlier consent DA N0379/14). Specifically, the surrounding residential uses that rely on the basin are dual occupancies and multi dwelling houses. These are both permissible uses in the R3 zone.

17. Pursuant to cl 2.6(1) of the PLEP development consent is required for subdivision. The Further Amended Application seeks consent for the subdivision of Lot 2 and 3 in DP 1272851 and Lot 102 in DP 1303366 which is shown in the Amended Subdivision Plan prepared by CitiSurv Pty Ltd (Dated:09/08/2024) included in the s 34 Agreement. The Court notes that there are further Conditions of Consent in Annexure A that the Applicant will be required to address prior to issue of the subdivision certificate.

18. Pursuant to cl 2.7 of the PLEP, demolition of a building or work requires development consent. The Further Amended Application seeks consent for demolition of the existing structures on the site, as documented in the Demolition Plan (Revision H, dated 14 September 2024 prepared by GDS Group Development Services Pty Ltd) and this has been referenced in Condition 1 of the Conditions of Consent in Annexure A.

19. Clause 4.1 of the PLEP relates to the minimum subdivisions lot size, however there is no minimum lot size on the Lot Size Map for the site.

20. Pursuant to cl 6.1 the site is located within the Warriewood Valley Release Area (Map Ref URA_012) and applies to the Further Amended Application. The site is identified as being in Sector 901A. Pursuant to cl 6.1(3) development consent must not be granted unless the consent authority is satisfied that the total number of dwellings erected in Sector 901A will not be more than 190 dwellings or less than 154 dwellings. As the Further Amended Application does not seek consent for the erection of any dwellings, it will not result in a change in the number of dwellings in Sector 901A.

21. Pursuant to cl 6.1(4) of the PLEP, the consent authority must not grant consent to the development unless it is satisfied that the proposed development will not have any significant adverse impact on any of the matters in 6.1(4)(a)-(c). I am satisfied that these requirements have been met as the parties advise:

1. The development is adjacent to the Fern Creek Creek Line Corridor and will not have any direct impact on aquatic and riparian vegetation, habitats and ecosystems within the corridor. No tree removal is proposed, and the Further Amended Application will provide additional deep soil vegetation planting adjacent to the Creek Line Corridor along the northern boundary. Additionally, the Landscape Plan (Revision C, prepared by iScape Landscape Architecture, dated 25/09/24 and Section Plan prepared by iScape Landscape Architecture, dated 25/09/24) propose species that are nominated in the Warriewood Valley Release Area Masterplan and Design Guideline (2018) which will enhance the opportunities for rehabilitation of riparian vegetation, habitats, and ecosystems in the Fern Creek Creek Line Corridor.

2. The proposed development stormwater system provides stormwater filtration prior to discharge into Council drainage infrastructure and then into Fern Creek. The Amended Stormwater Assessment prepared by Civil Certification Pty Ltd (Dated 26 August 2024) confirms that annual post development discharge loads from the site are below pre-development levels, and the stormwater detention measures on site will effectively manage peak runoff flow rates as required in the Warriewood Valley Urban Land Release Water Management Specification (2001).

3. As the site is located outside of the Creek Line Corridor, there will not be a direct impact on the bed, shore or bank stability of Fern Creek. The stormwater basin will discharge water directly into an existing pit and stormwater pipe that flows under Garden Street (to the east) discharging into Fern Creek. The discharge of stormwater as a controlled flow into existing stormwater infrastructure will ensure that the development will not adversely impact on the stability of the bed, shore or bank of the Creek Line Corridor.

22. Pursuant to cl 7.1 of the PLEP, the site is mapped as Class 5 acid sulfate soils (ASS). The parties have advised that the proposed works will require excavation to a maximum depth of 10.2RL and will not lower the water table below 1m AHD (Site Sections Drawing No P00541-CI-DA-1231 Revision H, dated 14/09/24, prepared by Group Development Services Pty Ltd). Pursuant to the table in cl 7.1(2) for Class 5 land, development consent is not required.

23. Pursuant to cl 7.2(3) of the PLEP, the consent authority is required to consider the following matters in 7.2(3)(a)-(i) before granting consent for earthworks. The parties advise that:

1. Stormwater management plans have been prepared that capture, manage and discharge stormwater on the site. An erosion and sediment control plan is also provided to manage soil stability, stormwater flows and quality during exaction and site works. (Erosion and sediment control plan and details, Drawing No P00541-CI-DA-1101 Revision H, dated 14/09/24, prepared by Group Development Services Pty Ltd).

2. The development will facilitate the future use of the site as a stormwater basin and will not prevent other future uses of the land.

3. The earthworks fill material is not expected to contain contaminated material.

4. The development is not likely to cause an adverse impact on the amenity of the adjoining properties. The proposed stormwater management measures will ensure no adverse impacts to the surrounding properties.

5. Any proposed fill to be imported to the site will be clean material.

6. The site does not contain, and is not in close proximity to a heritage item, archaeological site or heritage conservation area. If any heritage items are uncovered during the works, they will be managed under an unexpected finds protocol.

7. The development is designed to capture, treat and store stormwater before discharging it into an existing stormwater system. The treatment of stormwater will ensure that discharge will not result in an adverse impact on drinking water, a waterway or environmentally sensitive area.

8. The development has been engineered to include a concrete stormwater basin provided below ground with a bio retention basin above, to minimise impacts associated with the development and an erosion and sediment control plan has also been prepared.

9. The site does not contain and is not in close proximity to a heritage item, archaeological site or heritage conservation area.

24. Pursuant to cl 7.10(a)-(e) of the PLEP, the consent authority must be satisfied that there are essential services for the proposed development. The parties advise that the development does not require all the nominated essential services. I am satisfied that the site is within a recently completed subdivision, and that the supply of water and electricity are available, there is the ability to dispose and manage sewage, there is stormwater drainage or on-site conservation and there is suitable vehicular access.

Conclusion

25. On consideration of the advice of the parties provided above, I am satisfied that:

1. Pursuant to s 4.15(1)(a)(i)-(iv) of the EPA Act, all relevant environmental planning instruments, development control plans and regulations have been taken into consideration.

2. The applicants’ Further Amended Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EPA Act.

3. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been satisfied.

26. Further, I am satisfied that the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, and I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

27. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

28. The Court notes that:

1. The Northern Beaches Council as the relevant consent authority, pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 has approved the Applicant amending DA 2023/0121 to reply on the documents specified below:

No.	Document	Date
1	Section 88B Instrument prepared by Citisurv Pty Ltd	25/11/2024
2	Stormwater Response to Council Comments prepared by Civil Certification	16/10/2024
3	Amended Subdivision Plan prepared by CitiSurv Pty Ltd	09/08/2024
4	25 Dove Lane, Warriewood: Ecology Advice Statement	18/11/2024

Orders

29. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA2023/0121 for the subdivision of three existing lots into five new lots resulting in a residue lot and reconfiguration of a proposed detention basin, at 25B, 27 and 29 Dove Lane, Warriewood, legally described as Lot 102 in DP 1303366 and Lots 2 and 3 in DP 1272851, subject to the conditions of consent annexed hereto and marked Annexure A.

L Coetzee

Acting Commissioner of the Court

Annexure A

**********

Decision last updated: 17 December 2024