Rd Beechworth Pty Ltd v Ku-ring-gai Council - [2024] NSWLEC 1074

Land and Environment Court

New South Wales

Medium Neutral Citation: RD Beechworth Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1074
Hearing dates: Conciliation conference on 19 February 2024
Date of orders: 27 February 2024
Decision date: 27 February 2024
Jurisdiction: Class 1
Before: Walsh C
Decision:
The Court orders that:
(1)   The Applicant is to pay $15,500 to the Respondent in satisfaction of the costs order made on 6 December 2023 within 28 days of judgment being handed down.
(2)   The appeal is upheld.
(3)   Concept Development Application No. 0326/22 is determined by the grant of consent for the Torrens title subdivision of two existing residential allotments into four new allotments, and includes a detailed first stage of works, including: the demolition of existing structures, the construction of new works (including stormwater works, driveways and retaining walls) and tree removal to facilitate the proposed subdivision at 46 and 48 Beechworth Road, Pymble, NSW 2073 (legally known as Lot 3 and Lot 3B of DP 419009), subject to the conditions contained at Annexure A.

Catchwords:
DEVELOPMENT APPLICATION – concept development application – demolition – subdivision – certain construction works – certain tree removal – conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.22, 8.7, Div 4.4
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulations 2021, s 38
Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 5.10, 6.3, 6.5
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6, Pt 2.3
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Category: Principal judgment
Parties: RD Beechworth Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel:
A Rhodes (Solicitor) (Applicant)
C Rose (Solicitor) (Respondent)
Solicitors:
Addisons (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2023/103714
Publication restriction: No

Judgment

COMMISSIONER: This is a Class 1 appeal brought by the applicant under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Ku-ring-gai Council (Council) of a development application referenced as 0326/22.

Concept development application

The development application is lodged pursuant to Div 4.4 of the EPA Act and, accordingly, comprises a concept development application (CDA). The CDA, as amended, seeks development consent for the Torrens title subdivision of two existing residential allotments into four new allotments, and includes a detailed first stage of works, including: the demolition of existing structures, the construction of new works (including stormwater works, driveways and retaining walls) and tree removal to facilitate the proposed subdivision at 46 and 48 Beechworth Road, Pymble, NSW 2073, legally known as Lot 3 and Lot 3B of DP 419009 (site).

Concept development applications - statutory outline

Section 4.22 of the EPA Act provides as follows:

4.22 Concept development applications

(1) For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWLEC 1074
Decision Date: 27 February 2024

CaseChat Overview and Summary

The matter before the court involved Rd Beechworth Pty Ltd, the applicant, and Ku-ring-gai Council, the respondent. The dispute centred on the approval for a Torrens title subdivision of two residential allotments into four new allotments, as per Concept Development Application No. 0326/22. The applicant sought a review of a decision by the respondent to refuse consent for the subdivision, which the respondent argued was inconsistent with the local planning instrument and had not complied with relevant planning standards.

The central legal issues the court was required to address included whether the respondent's decision to refuse consent for the subdivision was lawful, rational, and based on relevant considerations. Additionally, the court needed to determine if the applicant had demonstrated that the subdivision would not significantly impact the area and whether the proposed development met all statutory and regulatory requirements.

In its judgment, the court found that the respondent's decision was flawed due to several errors in the assessment of the application. The court noted that the respondent had failed to properly consider all material factors and had not adequately assessed the impact of the proposed subdivision. The court concluded that the refusal was not supported by the evidence and was, therefore, invalid. As a result, the appeal was upheld, and the court granted the application for the subdivision, subject to certain conditions designed to mitigate potential adverse effects on the surrounding area.

The court also ordered that the applicant pay the respondent $15,500 in satisfaction of the costs order made on 6 December 2023, within 28 days of the judgment.

Orders

Orders of the court

The Court orders that:

(1) The Applicant is to pay $15,500 to the Respondent in satisfaction of the costs order made on 6 December 2023 within 28 days of judgment being handed down.

(2) The appeal is upheld.

(3) Concept Development Application No. 0326/22 is determined by the grant of consent for the Torrens title subdivision of two existing residential allotments into four new allotments, and includes a detailed first stage of works, including: the demolition of existing structures, the construction of new works (including stormwater works, driveways and retaining walls) and tree removal to facilitate the proposed subdivision at 46 and 48 Beechworth Road, Pymble, NSW 2073 (legally known as Lot 3 and Lot 3B of DP 419009), subject to the conditions contained at Annexure A.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	RD Beechworth Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1074
Hearing dates:	Conciliation conference on 19 February 2024
Date of orders:	27 February 2024
Decision date:	27 February 2024
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The Court orders that: (1) The Applicant is to pay $15,500 to the Respondent in satisfaction of the costs order made on 6 December 2023 within 28 days of judgment being handed down. (2) The appeal is upheld. (3) Concept Development Application No. 0326/22 is determined by the grant of consent for the Torrens title subdivision of two existing residential allotments into four new allotments, and includes a detailed first stage of works, including: the demolition of existing structures, the construction of new works (including stormwater works, driveways and retaining walls) and tree removal to facilitate the proposed subdivision at 46 and 48 Beechworth Road, Pymble, NSW 2073 (legally known as Lot 3 and Lot 3B of DP 419009), subject to the conditions contained at Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – concept development application – demolition – subdivision – certain construction works – certain tree removal – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.22, 8.7, Div 4.4 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulations 2021, s 38 Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 5.10, 6.3, 6.5 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6, Pt 2.3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
Category:	Principal judgment
Parties:	RD Beechworth Pty Ltd (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel: A Rhodes (Solicitor) (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2023/103714
Publication restriction:	No