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

1. 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

2. 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

3. 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 separate parts of the site are to be the subject of a subsequent development application or applications.

(2) In the case of a staged development, the application may set out detailed proposals for the first stage of development.

(3) A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application.

(4) If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless—

(a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or

(b) the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection.

(5) The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.

4. In this instance, the CDA seeks consent for a concept proposal for the site (for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications: s 4.22(1)). But in addition the CDA sets out detailed proposals for the first stage of development pursuant to s 4.22(2) and as such seeks the grant of consent for the first stage of development mindful of s 4.22(4)(b).

Notation of amendment

5. The applicant has made an application to amend the CDA which was originally filed with this appeal. The application to amend has been approved by Council pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021. The CDA as originally filed has been amended to comprise the documents, listed below:

Architectural Plans prepared by Giles Tribe Architects

Plan Name	Plan No.	Rev	Dated
Detail Survey Plan
Proposed Subdivision Plan	008	05	20 November 2023
Proposed Footprint	009	05	20 November 2023
Proposed Footprint – With Biodiversity	010	05	20 November 2023
Tree Removal Plan	011	04	20 November 2023
Biodiversity Overlay with Existing Footprint	012	03	20 August 2023
Calculation Sheet for No.48	013	04	20 November 2023
Demolition Plan	014	03	20 August 2023
Demolition Plan with Trees to be Removed	015	04	20 November 2023
Environmental Site Management Plan	016	01	20 November 2023
Environmental Site Management Plan – Construction	017	02	20 November 2023
Environmental Site Management Plan – Tree Management	018	02	20 November 2023

Stormwater Concept Design Plans prepared by JCO Consultants

Plan Name	Plan No.	Rev	Dated
Coversheet	DA-SW100	7	13 September 2023
Site Plan	DA-SW200	7	13 September 2023
Absorption Trench and Rainwater Tank Details	DA-SW402	7	13 September 2023
Erosion and Sediment Control Plan & Details	DA-SW600	7	13 September 2023

Civil Engineering Plans prepared by JCO Consultants

Plan Name	Plan No.	Rev	Dated
Coversheet	DA-C100	4	13 September 2023
General Notes, Specifications and Legends	DA-C101	4	13 September 2023
General Arrangement Plan – Sheet 01	DA-C200	4	13 September 2023
General Arrangement Plan – Sheet 02	DA-C201	4	13 September 2023
Driveway Longitudinal Sections – Sheet 01	DA-C500	4	13 September 2023
Driveway Longitudinal Sections – Sheet 02	DA-C501	4	13 September 2023
Internal Driveway Longitudinal Sections	DA-C600	4	13 September 2023
Details Sheet	DA-C601	4	13 September 2023
Cut and Fill Plan	DA-C602	4	13 September 2023
Turning Path Plan – Sheet 01	DA-C700	4	13 September 2023
Turning Path Plan – Sheet 02	DA-C701	4	13 September 2023

Services Plans prepared by Perspective Group Pty Ltd

Plan Name	Plan No.	Rev	Dated
Hydraulic Services Sewer Site Plan	H102	E	13 September 2023
Electrical Services Site Plan – Electrical	SKE-01	D	13 September 2023
Hydraulic Services water Subdivision Layout	H101	D	13 September 2023

Document(s)

Dated

Schedule of Amendments prepared by Texco Design

Updated Statement of Environmental Effects prepared by Mecone

21 November 2023

Appendix A - Statement of Environmental Effects (DCP Assessment) prepared by Mecone

Survey Plans prepared by Innovative Surveying Associates

21 July 2023

Arboricultural Impact Appraisal and Method Statement – Revised prepared by EziGrow

15 September 2023

Arboricultural Assessment (Driveway Plan) prepared by EziGrow

11 September 2023

Preliminary Construction Traffic Management Plan prepared by Traffix

23 November 2023

Geotechnical Report (Absorption System Permeability Test Assessment) prepared by Stantec

13 September 2023

Subdivision Plans and draft 88B Instrument (Surveyor’s Ref. 311012-1)

12 August 2023

Ecological Assessment Report prepared by Travers Bushfire & Ecology

18 December 2023

Waste Management Plan

15 July 2023

Owners Consent

-

Planning Certificate

46 and 48 Beechworth Road, Pymble

30 November 2021

14 November 2021

Geotechnical Report prepared by Stantec

25 January 2022

Cost Summary Report prepared by Bryan Design

1 June 2022

Title Search for Lot 3 and 3B of DP 419009

6. In addition to the above, Council has also agreed to a further amendment to include an updated Subdivision Plan and draft 88B Instrument (Surveyor's Ref. 311012-1) which was filed with the Court on 16 February 2024 which supersedes the material dated 12 August 2023 as referenced above.

Conciliation and agreement between the parties

7. Following exchanges between the parties, the parties made a request to the Court for the matter to be listed for a conciliation under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). A listing was made for a conciliation conference on 19 February 2024, and I was appointed to preside.

8. At the conciliation conference, the parties outlined their agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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 involved the Court upholding the appeal and granting development consent to the concept development application, under s 4.16(1) of the EPA Act, subject to conditions.

9. Before this function can be exercised there are jurisdictional prerequisites that must be satisfied. The parties identified the jurisdictional prerequisites of relevance in these proceedings in a written submission provided to the Court on 16 February 2024, and in oral submissions at the conciliation conference.

10. After consideration of the parties’ submissions, and on my evaluation otherwise, 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. The jurisdictional particulars are outlined below.

Whether the grant of consent available with proper exercise of the Court’s functions

Ku-ring-gai Local Environmental Plan 2015 (KLEP)

11. The site is zoned R2 – Low Density Residential. It is clear from the parties’ jurisdictional statement that consideration has been given to the objectives of Zone R2 as required by cl 2.3(2) of the LEP. I accept the advice of the parties that the proposal is permissible with consent in the zone under cl 2.3. Demolition is permissible under cl 2.7.

12. The parties’ jurisdictional statement outlines how the proposal does not breach any development standard under KLEP.

13. I note that the site is not located within a Heritage Conservation Area and does not contain heritage items. Clause 5.10, relating to heritage conservation, therefore does not apply to the proposal.

14. As a small area in the northeast part of the site is mapped in KLEP’s Terrestrial Biodiversity map, cl 6.3 applies. Clause 6.3, relating to biodiversity protection, includes matters for consideration (at subcl 6.3(3)) and requirements for satisfaction in regard to certain matters (at subcl 6.3(4)). The parties indicate that consideration has been given to the matters listed and that they are satisfied, relevantly, with the requirements. While the parties’ assessment was not necessarily limited to this, the parties referred me to the Statement of Environmental Effects (SEE) accompanying the amendments to the CDA (prepared by Mecone and dated November 2023). I have reviewed the relevant sections of the SEE and note the reasoning behind its conclusions on this issue. Having regard to all of the material before me I am satisfied in regard to each of the tests at subcl 6.3(4).

15. Clause 6.5, relating to stormwater and water sensitive urban design (WSUD), applies. Subclause 6.5(2) includes requirements for satisfaction in regard to certain matters. The parties indicate their satisfaction in regard to the relevant matters, having regard to the Stormwater Concept Design Plans and Civil Engineering Plans prepared by JCO Consultants dated 13 September 2023, which accompanied the amendments to the CDA, and the SEE. It is noteworthy that the amended proposal accommodates nominated WSUD principles as a consequence of agreed amendments to a previous pump-out stormwater solution. I am satisfied in regard to the relevant provisions of subcl 6.5(2).

State Environmental Planning Policy (Resilience and Hazards) 2021

16. The parties advise that the proposal is on land which has historically been used for residential purposes and is unlikely to contain any contamination. I accept the advice of the parties and agree that no further action is required in regard to s 4.6(1).

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP)

17. Section 2.6 in Ch 2 provides that a person must not clear vegetation in a non-rural area of the State to which Pt 2.3 applies without the authority conferred by a permit granted by the council under that Part. The parties agree that removal of the proposed 16 trees is appropriate, and the relevant provisions of the Biodiversity and Conservation SEPP are satisfied.

Other considerations

18. I am mindful of s 4.15(1)(d) of the EPA Act and submissions from members of the public. In this instance, the parties have explained that the amendments to the proposal, which included substantive responses to concerns about tree loss and stormwater management, resulted in a substantial reduction in objecting submissions. It is clear to me that the requirement to give consideration to objecting submissions has occurred.

Conclusion

19. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

20. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Orders

21. 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.

P Walsh

Commissioner of the Court

Annexure A

Decision last updated: 27 February 2024