Beechworth Unit Trust ATF Beechworth Management Pty Ltd v Ku-ring-gai Municipal Council

[2022] NSWLEC 1600

Land and Environment Court

New South Wales

Medium Neutral Citation:

Beechworth Unit Trust ATF Beechworth Management Pty Ltd v Ku-ring-gai Municipal Council [2022] NSWLEC 1600

Hearing dates:

Conciliation Conference 13 October 2022

Date of orders:

01 November 2022

Decision date:

01 November 2022

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld

(2) Development consent is granted to development application number DA 0177/21, seeking consent for consolidation of existing lots and construction of thirteen attached self-contained dwellings (in the form of a residential flat building) including a basement, landscaping, and associated works at Lots 1, 2 and 3 in Deposited Plan 1226345, also known as 4, 4A, and 4B Beechworth Road, Pymble, subject to the conditions in Annexure 'B'.

(3) The Applicant is to pay the Respondent’s costs thrown away by the amended Development Application referred to in Annexure A, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

Catchwords:

DEVELOPMENT APPLICATION – attached self-contained dwellings – amended plans and further information – conciliation – agreement between the parties – orders made

Legislation Cited:

Biodiversity Conservation Act 2016

Biodiversity Conservation Regulation 2017, cl 7.2

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55(1)

Environmental Planning and Assessment Regulation 2021, cl 29

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 4.6, 6.1, 6.2, 6.3, 6.4, 6.5

Land and Environment Court Act 1979,s 34

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004, Div 2, Sch 3, cll 4, 26, 28, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40

State Environmental Planning Policy (Housing) 2021, Sch 7A

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.99, 2.100

State Environmental Planning Policy No 55—Remediation of Land

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cl 28, Sch 1

Cases Cited:

Club Marconi Limited v Fairfield City Council [2021] NSWLEC 132

Texts Cited:

NSW Department of Planning’s ‘Apartment Design Guide’

NSW Department of Planning’s ‘Development near Rail Corridors and Busy Roads Interim Guidelines’

Seniors Living Policy: Urban Design Guideline for Infill Development, March 2004

Category:

Principal judgment

Parties:

Beechworth Unit Trust ATF Beechworth Management Pty Ltd (Applicant)
Ku-ring-gai Municipal Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/00040412

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Ku-ring-gai Municipal Council of development application DA 0177/21. The development application, as amended, seeks consent for consolidation of existing lots and construction of thirteen self-contained dwellings (in the form of a residential flat building) including a basement, landscaping, and associated works at 4, 4A and 4B Beechworth Road, Pymble, known as Lots , 2 and 3 in Deposited Plan 1226345. The development is proposed at 4, 4A and 4B Beechworth Road, Pymble.

2. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

3. The appeal was initially listed for a conciliation conference on 17 May 2022 in accordance with s 34 of the Land and Environment Court Act 1979(LEC Act). No agreement was reached at the conciliation, which was terminated on 1 June 2022, and the matter was listed for hearing, following the conciliation discussions continued between the parties. These discussions led to the production of amended plans and documentation which assisted an agreement in principle being reached between the parties. The amended plans have been lodged on the NSW Planning Portal with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). At the request of the parties the matter was listed for a further conciliation conference on 13 October 2022. I presided at the further conciliation conference. A signed agreement pursuant to s 34(3) of the LEC Act was filed with the Court on 14 October 2022. That agreement is that the appeal be upheld, and the development application be approved, subject to the conditions of consent annexed to this judgment, pursuant to s 4.16(1) of the EPA Act.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons:

1. The development application was made with the consent of the owner of the subject site.

2. The application is made pursuant to the provisions of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors). State Environmental Planning Policy (Housing) 2021 (SEPP Housing) commenced on 26 November 2021. SEPP Housing was then amended on 8 March 2022. Relevantly, the amendment updated the savings and transitional provisions at Sch 7A of SEPP Housing. Applying the provisions of Sch 7A 2(a) of SEPP Housing, the instrument does not apply to a development application made but not determined before the commencement date.

3. The provisions of SEPP Seniors remain relevant to the assessment of the development application. Accordingly,

• The subject site is zoned part R2 Low Density Residential and part E4- Environmental Living under the Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) and relies on the provisions of SEPP Seniors for permissibility. The subject site is land that is zoned for urban purposes, or land which adjoins land zoned for urban purposes and dwelling houses are a permitted use on the land, pursuant to cl 4 of SEPP Seniors the instrument applies, and the proposed development is permissible with consent. I am further satisfied that the C4 – Environmental Living is a zone primarily for urban purposes: Club Marconi Limited v Fairfield City Council [2021] NSWLEC 132 at [52].

• The parties submit, and I agree, that the part of the site which is zoned C4 – Environmental Living is not excluded by the operation of cl 4(6) of SEPP Seniors, as the land is not identified as environmentally sensitive land under Sch 3 of SEPP Seniors nor as a result of its mapping as Terrestrial Biodiversity under LEP 2015.

• I am satisfied that the site is in an accessible area with access to facilities and services not more than 400m from the proposed development: cl 26 of SEPP Seniors. The proposed development includes the requirement for the Applicant to undertake civil works to achieve compliant access to the proximate bus stops on the Pacific Highway.

• The site is connected to water and sewer infrastructure and an appropriate site analysis plan forms part of the development application: cll 28 and 30 of SEPP Seniors.

• In determining the development application, I have given consideration to the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development, March 2004 and the principles set out in Div 2 of SEPP Seniors: cll 31, 33-39 of SEPP Seniors.

• Clause 40 of SEPP Seniors contains a number of development standards that operate as preconditions to consent. The proposed development complies with the standards for minimum site area and with the site frontage provisions, subcll (2) and (3) respectively. However, the proposed development seeks a variation to two height standards: the maximum height limit of 8m and the requirement for a building adjacent to the boundary of the site to be no more than two storeys.

Maximum height standard variation

• The relevant definition of height in SEPP Seniors is:

height in relation to a building, means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.

• The proposed variation is a maximum of 1.216m in the location of Unit 12. The Applicant has prepared and submitted a written request to vary the standard pursuant to cl 4.6 of the LEP 2015. I have considered the written request in determining the development application. The written request defines, and the parties accept, the underlying objective of the standard is ‘to minimise the impact of development upon adjoining properties, particularly in relation to overlooking, overshadowing and visual bulk’. I accept this statement of the underlying objective of the control and I am satisfied that compliance with the maximum height development standards is unreasonable or unnecessary in the circumstances of this development application on the basis that the underlying objective of the standard is met notwithstanding the variation to the control. I adopt the reasoning detailed in the written request, including that the proposed development complies with the maximum height standard of 9.5m in LEP 2015 and the lack of impacts on adjoining properties arising from the variation.

• Further, I am satisfied that the environmental planning grounds advanced in the written request, in particular the responsiveness of the design of the development to the steep nature of the site, are sufficient to justify the variation sought.

Two storey standard variation

• The proposal will result in three parts of the proposed building which comprise of three storeys. The Applicant has prepared and submitted a written request to vary the standard pursuant to cl 4.6 of the LEP 2015. I have considered the written request in determining the development application. The written request defines, and the parties accept, the underlying objective of the standard is ‘to avoid an abrupt change in the scale of development in the streetscape’. I accept this statement of the underlying objective of the control. I am satisfied that compliance with the two storey development standards is unreasonable or unnecessary in the circumstances of this development application on the basis that the underlying objective of the standard is met notwithstanding the variation to the control. I adopt the reasoning detailed in the written request including that the proposed development is located at the end of a battle axe block and that the variation will not be visible from the street, that the development complies with the maximum height standard of 9.5m in LEP 2015, and the lack of impacts on adjoining properties arising from the variation.

• Further, I am satisfied that the environmental planning grounds advanced in the written request, in particular the responsiveness of the design of the development to the steep nature of the site, are sufficient to justify the variation sought.

• In relation to both requests to the vary development standards at cl 40(4) of SEPP Seniors, I am satisfied that the proposed development will be in the public interest as it is consistent with the objectives for development in both the R2 Low Density Residential zone and the C4 – Environmental Living zone for the reasons stated in the written request.

• Finally, cl 4.6(4)(b) of the LEP 2015 requires the concurrence of the Planning Secretary be obtained, while cl 4.6(5) requires the Planning Secretary to consider whether, in granting this concurrence, the proposed contravention of the development standard raises any matters of significance for State environmental planning, the public benefits of maintaining the standard, and any other matters required to be considered by the Planning Secretary. Given the earlier written advice of the Planning Secretary (in the form of Planning Circular PS 18-003 issued on 21 February 2018), the Court may assume the concurrence of the Planning Secretary in this matter.

• On the preceding basis, I am satisfied that the requirements of cl 4.6 of LEP 2015 to allow the variation to the development standard are met.

1. The development application is accompanied by a BASIX certificate, satisfying the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.

2. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) came into force on 1 March 2022. SEPP Resilience and Hazards transfers the provisions of State Environmental Planning Policy No 55—Remediation of Land to the new instrument. Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of SEPP Resilience and Hazards. The Statement of Environmental Effects includes a review of the site history which indicates that it has been used for residential purposes. There is no indication of previous uses that would cause contamination. I accept that the site will be suitable for the proposed development. Further, the annexed conditions of development consent incorporate a requirement for removal and verification of site debris prior to the issue of any construction certificate: see condition 3 in Annexure B.

3. Due to the site’s location in proximity to the rail corridor and the proposed excavation, ss 2.99 and 2.100 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEEP TI) apply to the development application. Pursuant to s 2.99, the development application (including the prepared geotechnical report) was referred to Sydney Trains for concurrence. Concurrence was provided by letter dated 23 August 2021.

4. Pursuant to s 2.100 of SEPP TI, the consent authority must not grant consent to proposed residential development unless firstly it has taken into consideration the guidelines (subcl (2)) and secondly it is satisfied that appropriate measures that will be taken to ensure that the following acoustic criteria are not exceeded (subcl (3)):

(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10.00 pm and 7.00 am,

(b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time.

5. In determining the development application, I have reviewed the applicant’s acoustic assessment and I am satisfied it demonstrates that the development application will comply with the nominated acoustic criteria.

6. The relevant guidelines pursuant to s 2.100 of SEPP TI are the NSW Department of Planning’s ‘Development near Rail Corridors and Busy Roads Interim Guidelines’. These guidelines replicate the acoustic criterion in SEPP TI and were considered and addressed in the Applicant’s Acoustic Assessment. In determining the development application, I have given consideration to the guidelines.

7. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 of SEPP 65 requires a consent authority, or the Court on appeal, to take into consideration advice from the design review panel, and the design quality of the development when evaluated in accordance with the design quality principles, and the Apartment Design Guide (ADG). I have reviewed the amended development application against these provisions, and I am satisfied that adequate regard has been given to the design quality principles at Sch 1 of SEPP 65, and the objectives specified in the ADG.

8. Clause 29(2) of the Environmental Planning and Assessment Regulation 2021 requires an application for residential apartment development to be accompanied by a statement by a qualified designer. A complying design verification statement prepared by the architect Stuart Gelder (6126) accompanies the application.

9. Pursuant to the Biodiversity Conservation Act 2016 (BC Act) the site includes an area identified on the Biodiversity Values Map as containing high biodiversity value. However, the proposed amount of clearing for the development does not exceed the threshold (0.25ha for the size of the subject site) that triggers the requirement for a biodiversity offset pursuant to cl 7.2(4) the Biodiversity Conservation Regulation 2017. As a result, the Applicant prepared test of significance for all threatened fauna having a likelihood to occur within the subject site and study area as well as for the native plant community Blue Gum High Forest which occurs on the site. That assessment concluded that ‘(t)he proposed residential development is unlikely to have a significant effect on threatened species, populations or ecological communities listed on the EPBC and/or BC Act’. Further, the proposed development incorporates a vegetation management plan to preserve and enhance native vegetation on the subject site. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have therefore been satisfied.

10. In determining the development application, I have had regard to the objectives of the R2 Low Density Residential and the C4 – Environmental Living zones: cl 2.3 of LEP 2015.

11. The subject site is proximate to a number of heritage items listed in LEP 2015. In determining the development application, I have considered the effect of the proposed development on the heritage significance of these items. I am satisfied the development will not have a detrimental impact sufficient to warrant refusal.

12. The site is identified on the maps in LEP 2015 as located in in an area in no known occurrence of acid sulfate soils. The development application is accompanied by a Geotechnical Investigation Report which assesses the likelihood of acid sulfate soils on the site as being low. I find that cl 6.1 of LEP 2015 is satisfied.

13. In accordance with the cl 6.2 of LEP 2015 the development application is accompanied by a Geotechnical report which concludes that the development can be undertaken with appropriate engineering design and construction controls, such that the risks of slope instability associated with the works and the completed development will be acceptable. Such requirements are included in the conditions of consent at Annexure B. In determining the development application, I have given consideration to the Geotechnical report and the matters listed at cl 6.2(3) of LEP 2015. I find that cl 6.2 of LEP 2015 is satisfied.

14. The site is partially identified as “biodiversity” on the Terrestrial Biodiversity Map, cl 6.3- Biodiversity Protection applies. The development application is accompanied by an ecology report and assessment. In determining the development application, I have given consideration to the ecology report and the matters listed at cl 6.3(3) of LEP 2015. Further, I am satisfied that the development is consistent with the objectives of cl 6.2 of LEP 2015 and is designed, and will be sited and managed, to avoid any potentially adverse environmental impact. I find that cl 6.3 of LEP 2015 is satisfied.

15. Part of the rear portion of the site is mapped on the Riparian Land and Waterways Map. The proposed development does not extend into this portion of the site. In determining the development application, I have given consideration to whether the development is likely to have an adverse impact on the riparian land by reference to the factors listed at subcl (3). Further, I am satisfied that the development application, including the proposed vegetation management plan and the landscape works, is consistent with the objectives of cl 6.4 of LEP 2015; integrates riparian, stormwater and flooding measures; and is designed, sited and will be managed to avoid any potential adverse environmental impacts. I find that cl 6.4 of LEP 2015 is satisfied.

5. By reference to the expert reports filed in the proceedings, and consistent with the preceding findings, as required by cl 6.5 of LEP 2015, I am satisfied that: appropriate water sensitive urban design principles are incorporated into the design of the development; that riparian, stormwater and flooding measures are integrated; and that the proposed stormwater system includes all reasonable management actions to avoid any adverse impacts on the land to which the development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems. I find that cl 6.5 of LEP 2015 is satisfied.

6. The development application was notified to adjoining and proximate properties. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. In particular, I am satisfied that the objections raised by adjoining neighbours have been appropriately considered by either amendment to the application or in the imposition of conditions of consent.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

6. 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.

7. The Court notes:

1. That the Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending DA 0177/21 in accordance with the plans and documents listed at Annexure 'A'.

2. That the parties agree that the Applicant’s written request, pursuant to cl 4.6 of LEP 2015, seeking a variation to the development standard for building height and number of storeys set out in SEPP Seniors should be upheld.

3. That the amended plans were uploaded by the Applicant to the NSW Planning Portal on 14 October 2022.

8. The Court orders that:

1. The appeal is upheld

2. Development consent is granted to development application number DA 0177/21, seeking consent for consolidation of existing lots and construction of thirteen attached self-contained dwellings (in the form of a residential flat building) including a basement, landscaping, and associated works at Lot 1 in Deposited Plan 1226345, Lot 2 in Deposited Plan 1226345, and Lot 3 in Deposited Plan 1226345, also known as 4, 4A, and 4B Beechworth Road, Pymble, subject to the conditions in Annexure 'B'.

3. The Applicant is to pay the Respondent’s costs thrown away by the amended Development Application referred to in Annexure A, in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed.

.…………………………

D M Dickson

Commissioner of the Court

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Decision last updated: 01 November 2022