Bregenhoj v Northern Beaches Council

[2023] NSWLEC 1177

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bregenhoj v Northern Beaches Council [2023] NSWLEC 1177

Hearing dates:

Conciliation Conference 30 and 31 March 2023

Date of orders:

19 April 2023

Decision date:

19 April 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application No DA2022/0625 for demolition of existing structures and construction of a new dwelling, swimming pool, lift and associated landscaping at 27 Karloo Parade, Newport, is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPEAL – residential development – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34, 34AA

Pittwater Local Environmental Plan 2014, cll 4.3, 5.10, 7.1, 7.2, 7.5, 7.6, 7.7, 7.8, Sch 5

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.7, 2.8

Coastal Management Act 2016 ss 5, 6

Biodiversity Conservation Act 2016, ss 7.2, 7.4, 7.7

Biodiversity Conservation Regulation 2017, cl 7.3

State Environmental Planning Policy (Biodiversity and Conservation) 2021, s 2.10

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

Category:

Principal judgment

Parties:

Melissa Bregenhoj (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor)(Applicant)
A Gough (Solicitor)(Respondent)

Solicitors:
Mills Oakley (Applicant)
Storey & Gough (Respondent)

File Number(s):

22/327300

Publication restriction:

No

Judgment

1. COMMISSIONER: 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 DA2022/0625 for demolition works and construction of a new dwelling house including a swimming pool and spa (the Proposed Development) at 27 Karloo Parade, Newport legally described as Lot 16 in DP 12994 (the Site).

2. The parties rely on a number of Joint Expert Reports which addressed the contentions set out in the Statement of Facts and Contentions filed 16 December 2022. Those reports were filed with the Court as follows:

1. Landscaping Joint Expert Report prepared by Mr Julian Brady for the Applicant and Mr Joseph Tramonte for the Respondent filed 8 March 2023;

2. Ecological Joint Expert Report prepared by Mr Nicholas Skelton for the Applicant and Ms Kristie King for the Respondent; and

3. Town Planning Joint Expert Report prepared by Vaughan Milligan for the Applicant and Adam Croft for the Respondent.

3. 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 30 and 31 March 2023. I presided over the conciliation conference.

4. 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. An agreement pursuant to s 34 of the LEC Act was filed on 6 April 2023. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

5. 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. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. 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 to be the relevant provisions of the Pittwater Local Environmental Plan 2014 (PLEP) and relevant provisions of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) and the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreement Jurisdictional Note which I have considered and summarise, adopting the explanation as my reasons below.

8. The Respondent is the registered owner of the Site.

9. The provisions of the PLEP that are relevant to the Proposed Development and how they are satisfied are set out below.

10. The site is zoned C4 – Environmental Living (C4 Zone) pursuant to the Land Use Table and the zoning map in the PLEP. The Proposed Development for a ‘dwelling house’ is permissible with consent within the C4 Zone.

11. Pursuant to cl 4.3 of the PLEP, the maximum height of building development standard applicable to the Site is 8.5m. I have referred to Drawing 17.0 of Architectural Plans and I am satisfied that the Proposed Development stands at 8.28m at its highest point and complies with the development standard.

12. The Site is not a listed heritage item under Schedule 5 of the PLEP nor is it in immediate proximity to a heritage item, nor is it mapped within a heritage conservation area (cl 5.10, PLEP).

13. Pursuant to cl 7.1 the Site is mapped as a Class 5 Acid Sulfate Soils risk area and is not within 500m of a Class 1-4 land, accordingly, an Acid Sulfate Soils management plan is not required (cl 7.1(2), PLEP).

14. Development consent is sought for excavation and earthworks and I am satisfied that, pursuant to cl 7.2(3) of the PLEP, the prescribed mandatory considerations have been appropriately taken into account by the parties on entering the agreement. The objective of the cl 7.2 is to ensure that earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. The parties refer the Court to the Applicant’s Structural Engineering Report and Geotechnical Investigation Report (Tabs 8 and 9 of the Class 1 Application filed with the Court) which concludes that no geotechnical hazards will be created by the Proposed Development, provided it is carried out in accordance with the report’s recommendations (Pg 8).

15. The Site is not identified on the Coastal Risk Planning Map (cl 7.5, PLEP).

16. The Site is identified as ‘biodiversity’ on the PLEP Biodiversity Map and cl 7.6(3) of the PLEP prescribes a number of matters that must be considered prior to the granting of a development consent, including whether the development is likely to have any adverse impact on the condition or ecological value of the fauna and flora on the land, cl 7.6(4) of the PLEP further provides that a consent authority must not grant development consent unless it is satisfied that:

(a)   the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact

17. In the Ecological Joint Report, the experts conclude that the Proposed Development as amended would serve to avoid adverse impacts to biodiversity values or native vegetation which leads me to be satisfied as required by cl 7.6(4) of the PLEP.

18. The Site is identified as “Geotechnical Hazard H1” (cl 7.7, PLEP). The objectives of this clause are to ensure that development on land susceptible to geotechnical hazards:

(a) matches the underlying geotechnical conditions of the land, and

(b) is restricted on unsuitable land, and

(c) does not endanger life or property.

19. A number of matters are prescribed as mandatory considerations prior to the granting of a development consent, including the development’s design, site layout and the geotechnical constraints of the site (cl 7.7(3), PLEP). Clause 7.7(4) provides that a consent authority must not grant development consent unless it is satisfied that:

(a) … the development will appropriately manage waste water, stormwater and drainage across the land so as not to affect the rate, volume and quality of water leaving the land, and

(b)...that—

(i) the development is designed, sited and will be managed to avoid any geotechnical risk or significant adverse impact on the development and the land surrounding the development, or

(ii) if that risk or impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that risk or impact, or

(iii) if that risk or impact cannot be minimised—the development will be managed to mitigate that risk or impact.

20. In response to cl 7.7(4)(a), the amended stormwater plans, as assessed by the ecological experts, are designed so as to minimise any change to existing natural stormwater flow and drainage across the Site, and preserve its quality (pg 5, Ecological Joint Report).

21. In response to cl 7.7(4)(b), these considerations are addressed in the Applicant’s Structural Engineering Report and Geotechnical Investigation Report found at Tabs 8 and 9 of the Class 1 Application filed with the Court. The Applicant’s geotechnical report concludes at page 8 that the Proposed Developed is suited to the Site and that no geotechnical hazards will be created by the Proposed Development, provided it is carried out in accordance with the report’s recommendations.

22. The foreshore building line protrudes approximately 7m into the lot area of the Site from its eastern boundary (cl 7.8, PLEP) and I am satisfied that as a result of the amendment to the Proposed Development there are no works (including tree removal works) proposed in the foreshore area.

23. Pursuant to s 5(a) of the Coastal Management Act 2016, the Site is within a coastal zone, by virtue of being identified on the Coastal Wetlands and Littoral Rainforests Area Map under the Resilience and Hazards SEPP, as defined under s 6 of the Coastal Management Act 2016.

24. As the Site is identified as being within a coastal wetlands and littoral rainforests area, the development application is subject to assessment under Chapter 2 of the Resilience and Hazards SEPP. Limited forms of development may occur on land identified as littoral rainforest (s 2.7, Resilience and Hazards SEPP). The area of land on the Site which is mapped as being within the coastal wetlands and littoral rainforests area is isolated to a small portion in the north-eastern corner of the lot as depicted in Drawing No 19 of Architectural Plans filed with the Court on 6 April 2023 and located under Tab 2 of the s 34 Agreement Bundle. I am satisfied that no works are proposed on land mapped as littoral rainforest. Accordingly, s 2.7 of the Resilience and Hazards SEPP does not apply.

25. In tandem with s 2.7, s 2.8 of the Resilience and Hazards SEPP provides for additional mandatory considerations and controls for development on land that is in proximity to land identified as coastal wetlands or littoral rainforest. The Court notes that the Site is located wholly within the littoral rainforest proximity area, as per the Coastal Wetlands and Littoral Rainforests Area Map.

26. Development consent must not be granted to development within the proximity area for littoral rainforest unless the consent authority is satisfied that the Proposed Development will not significantly impact on:

(a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or

(b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.

(s 2.8(1), Resilience and Hazards SEPP).

27. These considerations are reflected in the Respondent’s Statement of Facts and Contentions, which note potential impacts on the nearby littoral rainforest area as a result of tree removal within the mapped area, as well as uncertainty regarding the impacts of stormwater runoff. In response, the Applicant has prepared amended DA materials effecting the following changes:

1. No tree removal works are proposed with littoral-mapped area;

2. Provision of stormwater quality improvements system, OSD tanks and level spreader outside of the rear eastern setback which will not have a detrimental impact on the littoral rainforest or biodiversity values on the site, or downslope.

28. These amendments and the considerations under s 2.8(1) of the Resilience and Hazards SEPP are assessed and considered in the Ecological Joint Report filed 10 March 2023. I accept that the experts are mutually satisfied that all ecological contentions, including those addressed under s 2.8(1) of the Resilience and Hazards SEPP have been resolved.

29. Part 7 of the Biodiversity Conservation Act 2016 (BC Act) regulates the biodiversity assessment requirements for various types of development approvals under the EPA Act including the Biodiversity Offset Scheme, which provides a framework for offsetting unavoidable impacts on biodiversity prescribed under Part 6 of the BC Act as well as the Biodiversity Conservation Regulation 2017 (BC Regs).

30. Section 7.4 of the BC Act provides that a proposed development is to be considered as exceeding the biodiversity offsets threshold if it is development of a kind that the regulations declare to exceed the threshold. Clause 7.3 of the BC Regs provides that the clearing of any land identified within the Biodiversity Values Map exceeds the biodiversity offsets threshold. Subsection 7.2(1) of the BC Act further prescribes that any development or activity which exceeds the biodiversity offsets scheme threshold shall be deemed to be “likely to significantly affect threatened species”. Under s 7.7(2), this would then trigger the need for a development application to be accompanied by a biodiversity development assessment report (BDAR). The small portion of littoral-mapped land on the north-eastern corner of the site is also a biodiversity values mapped area.

31. The Respondent’s Statement of Facts and Contentions contemplates the potential need for the removal of vegetation within this area, and accordingly, contends that the offsets scheme is triggered and a BDAR is to be prepared. However, the Proposed Development no longer proposes any tree removal or land clearing works from the littoral area.

32. These matters have been considered in the Ecological Joint Report filed 10 March 2023. The experts are now satisfied that the Proposed Development does not trigger the biodiversity offsets scheme or require the preparation of a BDAR.

33. The Development Application was lodged under the provisions of the Biodiversity SEPP. Chapter 2, s 2.10 (3) of the Biodiversity SEPP relates to clearing vegetation in non-rural areas. The Proposed Development (as amended) seeks the removal of 3 trees on the site. 2 of these trees will be transplanted. The tree to be removed is known as T1 and is being removed following the provision of the bushfire assessment found under Tab 7 of the Class 1 Application filed with the Court.

34. The removal of these trees has been assessed by the Amended Arborist Report prepared by Hugh the Arborist dated 28 February 2023 filed under Tab 7 of s 34 Agreement Bundle on 6 April 2023.

35. The parties advise the Court that the ecological experts have reviewed the findings and recommendations of the Amended Arborist Report and they are satisfied with its conclusion. Accordingly, the Court as the consent authority is satisfied that the Proposed Development is consistent with Chapter 2 of the Biodiversity SEPP.

36. In compliance with the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, the Applicant has filed a BASIX Certificate dated 5 April 2023.

37. 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.

38. 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:

39. The Court notes that:

1. Northern Beaches Council, as the relevant consent authority, has agreed, under section 37 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No DA2022/0625 in accordance with the documents listed below:

Plan name	Drawing Number	Prepared by	Dated
Amended Architectural Plans
Site Plan	01.0	Paul Clout Design	03.04.2023
Level 1 Floor Plan	02.0	Paul Clout Design	03.04.2023
Level 2 Floor Plan	03.0	Paul Clout Design	03.04.2023
Level 3 Floor Plan	04.0	Paul Clout Design	03.04.2023
Roof Plan	05.0	Paul Clout Design	03.04.2023
Landscape Access and Window Schedule	06.0	Paul Clout Design	03.04.2023
Elevations	07.0	Paul Clout Design	03.04.2023
Elevations	08.0	Paul Clout Design	03.04.2023
Sections	09.0	Paul Clout Design	03.04.2023
Landscape Plan Level 1	10.0	Paul Clout Design	03.04.2023
Landscape Plan Level 2	11.0	Paul Clout Design	03.04.2023
Landscape Plan Level 3	12.0	Paul Clout Design	03.04.2023
Landscape Plan Roof	13.0	Paul Clout Design	03.04.2023
Cut/Fill Plan	14.0	Paul Clout Design	03.04.2023
Demolition Plan	15.0	Paul Clout Design	03.04.2023
Building Footprint Plan	16.0	Paul Clout Design	03.04.2023
Building Height Planes	17.0	Paul Clout Design	03.04.2023
Building Envelopes	18.0	Paul Clout Design	03.04.2023
Littoral Rainforest Plan	19.0	Paul Clout Design	03.04.2023
Colour Schedule	20.0	Paul Clout Design	03.04.2023
Amended Landscape Plans
Site Plans	L-01	Site Design Studios	04.04.2023
Level 1 Landscape Plan	L-02	Site Design Studios	04.04.2023
Level 2 Landscape Plan	L-03	Site Design Studios	04.04.2023
Level 3 Landscape Plan	L-04	Site Design Studios	04.04.2023
Roof Landscape Plan	L-05	Site Design Studios	04.04.2023
Planting Details	L-06	Site Design Studios	04.04.2023
Notes	L-07	Site Design Studios	04.04.2023
Specification	L-08	Site Design Studios	04.04.2023
Enlarged Landscape Plan	L-09	Site Design Studios	04.04.2023
Amended Stormwater Plans
Construction Notes and Standard Details	SW1026-1	Wehbe Consulting	02.03.2023
Roof Layout	SW1026-2	Wehbe Consulting	02.03.2023
Level 3 Layout	SW1026-3	Wehbe Consulting	02.03.2023
Level 2 Layout	SW1026-4	Wehbe Consulting	02.03.2023
Level 1 Layout	SW1026-5	Wehbe Consulting	02.03.2023
Access and Landscape Plan	SW1026-6	Wehbe Consulting	02.03.2023
OSD Details and Calculations	SW1026-7	Wehbe Consulting	02.03.2023
MUSIC Model Catchment Plan	SW1026-8	Wehbe Consulting	02.03.2023
Updated Survey Plan
Survey Plan	3024 DS	Richard & Loftus	02.02.2023
Supporting Documentation
Solar Analysis Diagrams		Deneb Design	30.03.23
Amended Arboricultural Report		HughtheArborist	23.02.23
Updated NatHERS & BASIX Certificate No 1291233S_03		Efficient Living	05.04.23

2. The amended development application was filed with the Court on 6 April 2023.

Orders:

40. The Court orders:

1. The appeal is upheld.

2. Development Application No DA2022/0625 for demolition of existing structures and construction of a new dwelling, swimming pool, lift and associated landscaping at 27 Karloo Parade, Newport, is determined by a grant of consent subject to conditions contained in Annexure ‘A’.

E Espinosa

Commissioner of the Court

**********

Annexure A 

Decision last updated: 19 April 2023