CPDM Pty Ltd v Ku-ring-gai Council

Case •

[2024] NSWLEC 1478

•

07 August 2024

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: CPDM Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1478
Hearing dates: Conciliation Conference 5 June, 4 July, 22 July 2024
Date of orders: 07 August 2024
Decision date: 07 August 2024
Jurisdiction:Class 1
Before: Targett C
Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $14,700 within 28 days.

(2) The appeal is upheld.

(3) Development Application No 0248/23, as amended, is determined by the grant of consent for the demolition of three existing dwellings and associated structures, construction of 13 multi-storey townhouses and related landscaping, driveway and common areas at 5-9 Nulla Nulla Street, Turramurra, legally known as Lots 2, 3 and 4 in Deposited Plan 17642, subject to the conditions contained at Annexure A.

Catchwords:

APPEAL – Development application – multi dwelling housing – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, Sch 1, ss 2.22, 4.15, 4.46, 8.7, 8.10, 8.11, 8.15

Land and Environment Court Act 1979, ss 17, 34

Water Management Act 2000

Environmental Planning and Assessment Regulation 2021, Div 4, Pt 4, ss 27, 38

Ku-ring-gai Local Environmental Plan 2015 ss 4.3, 4.4, 5.10, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6

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

Texts Cited:

Ku-ring-gai Development Control Plan 2015

Category:Principal judgment
Parties: CPDM Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation:

Counsel:
H Kahagalle (Solicitor) (Applicant)
C Shaw (Solicitor) (Respondent)

Solicitors:
Addisons (Applicant)
Shaw Reynolds Lawyers (Respondent)
File Number(s): 2024/70391
Publication restriction: No

Judgment

COMMISSIONER:

Introduction

  1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (No 0248/23) (Development Application). The Development Application sought consent for the demolition of all existing structures and construction of 13 multi-dwelling houses with basement parking on land identified as Lots 2, 3 and 4 in Deposited Plan 17642, known as 5-9 Nulla Nulla Street, Turramurra (Subject Land).

  2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

  1. The Development Application was lodged with the respondent on 6 July 2023.

  2. The Development Application was notified between 18 July and 18 August 2023.

  3. On 27 July 2023, Water NSW requested additional information to enable assessment of the Development Application.

  4. On 14 August 2023, the applicant provided additional information to address Water NSW’s request.

  5. On 29 August 2023, the Development Application was re-referred to Water NSW.

  6. On 12 September 2023, General Terms of Approval (GTAs) were provided by Water NSW.

  7. On 26 October 2023, a preliminary assessment letter was issued by the respondent to the applicant raising various matters.

  8. On 11 December 2023, amended architectural plans and supporting documents were provided to the respondent.

  9. The Development Application was re-notified between 18 December 2023 and 2 January 2024.

  10. On 30 January 2024, GTA were re-issued by Water NSW.

  11. On 23 February 2024, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act and Div 4 of Pt 4 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

  12. The Court arranged a conciliation conference under s 34 of LEC Act between the parties, which was held on 5 June 2024 and adjourned on two occasions. I presided over the conciliation conference.

  13. During the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. Amended plans and further documentation (July 2024 Amendments) were provided to the Court on 22 July 2024 (cited at [52]) in conjunction with a signed s 34 agreement and agreed jurisdictional statement. The July 2024 Amendments primarily include:

  1. reducing the gross floor area (GFA) of the proposed development;

  2. amending the dwelling mix; and

  3. updating flood mapping.

  1. The July 2024 Amendments, together with the Class 1 Application (to the extent that the documents comprising the Class 1 Application were not superseded by the July 2024 Amendments) now comprise the Amended Development Application.

  2. The decision agreed upon is for the grant of consent to the Amended Development Application, subject to conditions of consent.

  3. 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.

Jurisdictional considerations

  1. 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 form this state of satisfaction for the reasons that follow.

Owners consent

  1. The registered proprietors of the Subject Land provided their consent to the Development Application when it was lodged with the respondent (see s 34 Bundle, tab 14).

Water Management Act 2000

  1. The parties agree that the proposed development is “integrated development” as defined by section 4.46 of the EPA Act and requires approval under the Water Management Act 2000 (WM Act).

  2. The development application was referred to Water NSW and its GTAs for those parts of the proposed development requiring a “Water Supply Work” approval under the WM Act were provided on 12 September 2023 and then re-issued on 30 January 2024 following re-notification of the Development Application, as amended.

  3. Water NSW’s GTAs are incorporated in the agreed conditions (see Condition 1).

EPA Regulation

  1. In compliance with the relevant requirements under s 27 of the EPA Regulation, the Amended Development Application is accompanied by BASIX certificate (Certificate No. 1395877M_07) dated 19 July 2024, prepared by Senica Consulting Group Pty Ltd (s 34 Bundle, tab 8).

State Environmental Planning Policy (Resilience and Hazards) 2021

  1. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

  1. it has considered whether the land is contaminated; and

  2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out; and

  3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

  1. The Amended Development Application contains a Stage 1 Preliminary (Environmental) Site Investigation Report prepared by EBG Environmental Geoscience dated 16 June 2023 (PSI) (s 34 Bundle, tab 24). The PSI concludes that due to, amongst other things, the historical residential use of the Subject Land (for at least 80 or so years), lack of suspected imported fill, and lack of potentially contaminating activities in the vicinity of the Subject Land, the Subject Land is considered suitable for the proposed use provided certain recommendations are implemented.

  2. I note that the recommendations of the PSI are incorporated in the agreed conditions (see Condition 1).

  3. The parties agree that the requirements of s 4.6(1) of the RH SEPP are satisfied.

  4. Having regard to the PSI and agreed conditions, I am satisfied that the Subject Land is suitable for the proposed development for the purposes of s 4.6(1) of the RH SEPP.

Ku-ring-gai Local Environmental Plan 2015

  1. The Site is zoned R3 Medium Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (KLEP). Accordingly, development for the purpose of multi-dwelling housing is permitted with consent in the R3 zone. I have had regard to the zone objectives which are extracted below:

• 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 a transition between low density residential housing and higher density forms of development.

  1. The parties agree that the Amended Development Application is consistent with the objectives of the R3 zone.

  2. Pursuant to cl 4.3 of the KLEP, a maximum height standard of 11.5m applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.

  3. Pursuant to cl 4.4 of the KLEP, a maximum floor space ratio (FSR) development standard of 0.8:1 applies to the Site. The parties agree that the Amended Development Application complies with this standard.

  4. The Subject Land is not listed as a heritage item or located in a heritage conservation area under the KLEP. However, the parties agree that it is located within the vicinity of local heritage items at 2 and 10 Nulla Nulla Street for the purposes of cl 5.10(5)(c) of the KLEP. The Amended Development Application is accompanied by a Heritage Impact Statement, prepared by PMDL dated June 2023 (s 34 Bundle, tab 22), which concludes that the proposed development shares no boundaries and has no visual connection with the local heritage items, and the “proposed development offers a selected palette and broad architectural treatment offering a complimentary rapport with existing and proposed development (sic) in the street” (see pp 12 and 13). The parties submit, and I accept, that the Amended Development will not have an adverse impact on these heritage items.

  5. Pursuant to cl 6.1 of the KLEP, the Subject Land is mapped as being affected by Class 5 Acid Sulfate Soils (ASS). As the Subject Land is not located within 500m of Class 1-4 land that is below 5 metres Australian Height Datum and will not lower the water table, the parties submit, and I accept, that an ASS management plan is not required in accordance with cl 6.1(2) of the KLEP and the Subject Land is suitable or the proposed development.

  6. Pursuant to cl 6.2(2) of the KLEP, the Amended Development Application seeks consent for earthworks. The Amended Development Application is accompanied by a Geotechnical Report prepared by Morrow Geotechnics dated 2 June 2023 (Geotech Report) (s 34 Bundle, tab 21). Having regard to the Geotech Report, I confirm that I have considered the matters set out in cl 6.2(3) of the NLEP.

  7. Pursuant to cl 6.3 of the KLEP, the Subject Land is identified as “Biodiversity” on the Terrestrial Biodiversity Map. Clause 6.3(3) requires the consent authority to consider specified matters and cl 6.3(4) requires the consent authority to be satisfied of specified matters prior to granting consent. Clause 6.3 of the KLEP is addressed in the Statement of Environmental Effects prepared by Mecone dated 16 June 2023 (SEE) (s 34 Bundle, tab 12, pp 35-36). The parties agree that the Amended Development:

  1. includes vegetation that is not identified on the Biodiversity Values Map and is unlikely to result in any adverse impact on regionally significant species; and

  2. includes the retention of existing vegetation and the addition of large native plantings to maintain the significance of the biodiversity corridor through the Subject Land and ensure no overall adverse impacts on the biodiversity significance of the Subject Land.

  1. Having regard to the SEE and agreed position of the parties, I confirm that I have considered the matters listed in cl 6.3(3) and am satisfied of the matters listed in cl 6.3(4) of the KLEP.

  2. Pursuant to cl 6.4 of the KLEP, the Subject Land is identified as “Category 3a” on the Riparian Lands and Watercourses Map. Clause 6.4(3) requires the consent authority to consider specified matters and cl 6.4(4) requires the consent authority to be satisfied of specified matters prior to granting consent. Clause 6.4 of the KLEP is addressed in the SEE (pp 37-38). The parties agree that the Amended Development Application:

  1. will divert and manage the watercourse/flow path through a subsurface drainage system (which is not an open watercourse and not considered riparian land) as it is not practical to reinstate the waterway; and

  2. satisfies cl 6.4(4) notwithstanding the above, as detailed in the Landscape Plans prepared by StudioIZ, date 18 June 2024 (s 34 Bundle, tab 2) (Landscape Plans) which demonstrate that Blue Gum High Forest ecological communities will be concentrated along the proposed flow path to create a biodiversity corridor to avoid adverse environmental impacts and integrate riparian, stormwater and flooding measures.

  1. Having regard to the SEE, Landscape Plans and agreed position of the parties, I confirm that I have considered the matters listed in cl 6.3(3) and am satisfied of the matters listed in cl 6.3(4) of the KLEP.

  2. Pursuant to cl 6.5(2) of the KLEP (relating to stormwater and water sensitive urban design), a consent authority must be satisfied of specified matters before granting development consent. Clause 6.5 of the KLEP is considered in the SEE (see pp 27 and 34). The Amended Development Application is accompanied by Concept Stormwater Drawings prepared by Smart Structures Australia, dated 8 June 2023 (s 34 Bundle, tab 3) (Stormwater Plans). The parties submit, and I accept that, the Stormwater Plans demonstrate that:

  1. water sensitive urban design principles are incorporated into the design of the proposed development;

  2. stormwater run-off will be managed via a range of pits and pipes throughout the Subject Land; and

  3. the stormwater management design incudes provision of an on-site detention tank to hold stormwater before being discharged to the public drainage network, and a stormwater pipe and easement on the western boundary of the Subject Land to downstream properties.

  1. Having regard to the SEE, Stormwater Plans, and agreed position of the parties, I confirm that I am satisfied of the matters listed in cl 6.5(2) of the KLEP.

  2. Pursuant to cl 6.6(2) of the KELP (relating to requirements for multi dwelling housing and residential flat buildings), development consent must not be granted for the erection of multi-dwelling housing on a lot in a residential zone unless, relevantly, the lot has an area of at least 1,200m2 and complies with specified minimum dimensions. The parties submit, and I accept, that the Subject Land has an area of 2,801.4m2 and width of approximately 36.91 metres, thereby satisfying the requirements in cl 6.6(2) of the KLEP.

Ku-ring-gai Development Control Plan 2015

  1. The SEE considers the provisions of the Ku-ring-gai Development Control Plan 2015 (KDCP) that are of relevance to the proposal (see pp 28-32). The respondent does not contend that the Amended Development Application is inconsistent with the relevant provisions of the KDCP.

Remaining matters in s 4.15(1) of the EPA Act

  1. In relation to s 4.15(1)(b) of the EPA Act, the parties agree that the proposed development will not have a significant impact on the natural or built environment (see p 39 of the SEE).

  2. In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the proposed development (see p 39 of the SEE).

  3. In respect of s 4.15(1)(d), the Development Application was notified between 18 July 2023 and 18 August 2023 and the amended Development Application was re-notified between 18 December 2023 and 2 January 2024, in accordance with the community participation requirements of s 2.22 and Sch 1 of the EPA Act. Five written submissions were received in response to the notification of the proposal. One of the objectors addressed the Court at the on-site view associated with the conciliation conference.

  4. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

  5. In relation to s 4.15(1)(e), the parties agree that the proposed development is in the public interest (see p 40 of the SEE).

Conclusion

  1. 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.

  2. 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.

  3. The Court notes that the respondent, as the relevant consent authority, has agreed under s 38 of the EPA Regulation, to the applicant amending its development application so as to rely on the following amended materials:

Architectural Plans prepared by PMDL

Plan name

Plan No

Rev

Date

Cover Page

DA001

7

18 June 2024

Site analysis – context plan

DA011

5

18 June 2024

Site analysis – existing site

DA012

5

18 June 2024

Site analysis – context photography

DA013

5

18 June 2024

Site analysis – proposed site plan

DA014

6

18 June 2024

Deep Soil Plan

DA015

8

18 June 2024

Site Coverage

DA016

7

18 June 2024

Site Basement Level -2 & -3 Plan

DA100

7

18 June 2024

Site Basement Level -1 Plan

DA101

7

18 June 2024

Site Ground Level – Plan

DA102

7

18 June 2024

Site First Level – Plan

DA103

7

18 June 2024

Site Second Level – Plan

DA104

7

18 June 2024

Site Roof Level – Plan

DA105

6

18 June 2024

Site Roof Level – Building D Plan

DA106

6

18 June 2024

Site Second Level – 2.2m Ceiling Diagram

DA107

5

18 June 2024

Units 1A-4A – Ground Level

DA110

6

18 June 2024

Units 1A-4A – First Level

DA111

7

18 June 2024

Units 1A-4A – Second Level

DA112

6

18 June 2024

Units 5-6B & 7-8C – Ground Level

DA120

7

18 June 2024

Units 5-6B & 7-8C – First Level

DA121

6

18 June 2024

Units 5-6B & 7-8C – Second Level

DA122

6

18 June 2024

Units 9D-13D – Ground Level

DA130

6

18 June 2024

Units 9D-13D – First Level

DA131

7

18 June 2024

Units 9D-13D – Second Level

DA132

6

18 June 2024

Sample Board / Materials & Finishes

DA200

5

18 June 2024

North Elevation (Nulla Nulla St)

DA201

5

18 June 2024

East Elevation

DA202

6

18 June 2024

West Elevation

DA203

6

18 June 2024

South Elevation

DA204

5

18 June 2024

Units 1A-4A – Long Elevations

DA211

6

18 June 2024

Units 1A-4A – Short Elevations

DA212

6

18 June 2024

Units 5&6B – Long Elevations

DA213

6

18 June 2024

Units 5&6B – Short Elevations

DA214

6

18 June 2024

Units 7&8C – Long Elevations

DA215

6

18 June 2024

Units 7&8C – Short Elevations

DA216

5

18 June 2024

Units 9D-13D – Long Elevations

DA217

6

18 June 2024

Units 9D-13D – Short Elevations

DA218

6

18 June 2024

Screening & Fencing Details

DA220

6

18 June 2024

Basement Section

DA301

6

18 June 2024

Section - 1A-4A

DA302

6

18 June 2024

Section – 5B-8C

DA303

6

18 June 2024

Section – 9D-13D

DA304

6

18 June 2024

Proposed Solar Access

DA501

5

18 June 2024

Proposed Solar Access

DA502

5

18 June 2024

Solar Impact Study – Winter Solstice

DA503

5

18 June 2024

Solar Impact Study – Winter Solstice

DA504

5

18 June 2024

Shadow Impact – Western Neighbour

DA505

5

18 June 2024

Shadow Impact – Western Neighbour

DA506

5

18 June 2024

Shadow Impact – Eastern Neighbour

DA507

5

18 June 2024

Shadow Impact – Eastern Neighbour

DA508

5

18 June 2024

Cut and Fill Diagram

DA600

5

18 June 2024

Environmental Site Management Plan

DA601

5

18 June 2024

Height Plane Diagram

DA602

5

18 June 2024

Privacy Analysis

DA603

6

18 June 2024

Sections – Basement Ramps

DA604

5

18 June 2024

Height Plane Diagram Basement Study

DA605

5

18 June 2024

OSD/RWT Section

DA606

5

18 June 2024

Typical AL1 to AL2 Privacy Interface

DA607

2

18 June 2024

GFA – Site Basement Level -2 & -3

DA610

5

18 June 2024

GFA - Site Basement Level -1

DA611

5

18 June 2024

GFA Site Ground Level

DA612

5

18 June 2024

GFA Site First Level

DA613

5

18 June 2024

GFA Site Second Level

DA614

5

18 June 2024

GFA Site Roof Level

DA615

6

18 June 2024

Landscape Plans prepared by StudioIZ

Plan name

Plan No

Rev

Date

Cover Sheet

LA-00

D

18 June 2024

General Arrangement Plan - Sheet 1

LA-01

D

18 June 2024

General Arrangement Plan - Sheet 2

LA-02

D

18 June 2024

Planting Plan - Sheet 1

LA-03

D

18 June 2024

Planting Plan - Sheet 2

LA-04

D

18 June 2024

Landscape Sections

LA-05

D

18 June 2024

Planting Schedule & Palette

LA-06

D

18 June 2024

Typical Details

LA-07

D

18 June 2024

Specification Notes

LA-08

D

18 June 2024

Concept Stormwater Management Plans prepared by Smart Structures Australia

Plan name

Plan No

Rev

Date

Cover Sheet, Legend & Drawing Schedule

D00

C

1 December 2023

Basement Level -2 & -3 Stormwater Drainage Plan

D01

C

1 December 2023

Basement Level -1 Stormwater Drainage Plan

D02

C

1 December 2023

Ground Level Stormwater Drainage Plan

D03

C

1 December 2023

Pre And Post Development Catchment Plan

D10

B

1 December 2023

Catchment Plan and Music Model Results

D11

C

1 December 2023

Stormwater Drainage Sections and Details Sheet 1

D15

B

1 December 2023

OSD Design Computation and Details Sheet 1

D20

C

1 December 2023

OSD Design Computation and Details Sheet 2

D21

C

1 December 2023

Erosion And Sediment Control Plan and Details Sheet 1

D25

B

13 June 2023

Erosion And Sediment Control Plan and Details Sheet 2

D26

A

8 June 2023

RWT Sizing Calculations

D30

A

8 June 2023

Flood Mitigation Plans prepared by ACOR Consultants

Plan name

Plan No

Rev

Date

Flood Mitigation Plan

FM2

C

17 June 2024

Flood Mitigation Sections

FM3

C

17 June 2024

Flood Mapping Plans prepared by ACOR Consultants

Plan name

Plan No

Rev

Date

TUFLOW Model Plan

F1

C

17 June 2024

Pre-development 1% AEP Flood Depth and Level Plan

F2

C

17 June 2024

Pre-development 1% AEP Flood Velocity Plan

F3

C

17 June 2024

Pre-development 1% AEP Provisional Flood Hazard Plan

F4

C

17 June 2024

Pre-development 1% AEP Flood Hazard Vulnerability Classification Plan

F5

C

17 June 2024

Post-development 1% AEP Flood Depth and Level Plan

F6

C

17 June 2024

Post-development 1% AEP Flood Velocity Plan

F7

C

17 June 2024

Post-development 1% AEP Provisional Flood Hazard Plan

F8

C

17 June 2024

Post-development 1% AEP Flood Hazard Vulnerability Classification Plan

F9

C

17 June 2024

Post-development 1% AEP Flood Level Difference Plan

F10

C

17 June 2024

Roadworks Civil Engineering Plans prepared by HYDRACOR Consultants

Plan name

Plan No

Rev

Date

Coversheet and Notes

R1

A

14 June 2024

Roadworks Plan

R2

A

14 June 2024

Pit Details Sheet 1 of 2

R3

A

14 June 2024

Pit Details Sheet 2 of 2

R4

A

14 June 2024

Detail Sheet

R5

A

14 June 2024

Drainage Catchment Plan

R6

A

14 June 2024

Drainage Easement Hydraulic Analysis YSIS 20 Year ARI

R7

A

14 June 2024

Drainage Easement Hydraulic Analysis YSIS 100 Year ARI

R8

A

14 June 2024

Dial Before You Dig Diagram

R9

A

14 June 2024

Document(s)

Dated

Preliminary Construction Traffic Management Plan prepared by Traffix

BASIX certificate No. 1395877M_07

19 July 2024

NatHERS Stamped Plans

14 July 2024

NatHERS Certificates

14 July 2024

  1. The above documents were filed with the Court on 22 July 2024.

Orders

  1. The Court orders that:

  1. The applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $14,700 within 28 days.

  2. The appeal is upheld.

  3. Development Application No 0248/23, as amended, is determined by the grant of consent for the demolition of three existing dwellings and associated structures, construction of 13 multi-storey townhouses and related landscaping, driveway and common areas at 5-9 Nulla Nulla Street, Turramurra, legally known as Lots 2, 3 and 4 in Deposited Plan 17642, subject to the conditions contained at Annexure A.

N Targett

Commissioner of the Court

70391.24 Annexure A 

**********

Decision last updated: 07 August 2024

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