Sandy Outlook Pty Ltd as trustee for Sandy Outlook Trust v Ku-ring-gai Council

[2024] NSWLEC 1111

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sandy Outlook Pty Ltd as trustee for Sandy Outlook Trust v Ku-ring-gai Council [2024] NSWLEC 1111

Hearing dates:

Conciliation conference on 15 February 2024

Date of orders:

14 March 2024

Decision date:

14 March 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application No. DA0151/22, as amended, for a three lot Torrens Title Residential Subdivision of Lot B DP 32907 at 4 Cliff Avenue, North Wahroonga, and associated vegetation removal, demolition, earthworks and provision of services including stormwater infrastructure at Lot 3 DP 1084328, known as 18 Cliff Avenue, North Wahroonga, is determined by the grant of consent subject to conditions at Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – subdivision – biodiversity – conciliation conference – agreement between the parties – orders

Legislation Cited:

Biodiversity Conservation Act 2016, ss 6.4, 7.2, 7.7, 7.13, 7.16,

Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 8.7

Land and Environment Court Act 1979, s 34

Rural Fires Act 1997, s 100B

Environmental Planning and Assessment Regulation 2021, s 38

Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 4.1, 6.1, 6.2, 6.3, 6.5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4

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

Texts Cited:

NSW Rural Fire Service, Planning for Bushfire Protection Guidelines, November 2019

Category:

Principal judgment

Parties:

Sandy Outlook Pty Ltd as trustee for Sandy Outlook Trust (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
M Seymour SC (Applicant)
L Sims (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/313321

Publication restriction:

Nil

JUDGMENT

Nature of proceedings

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 actual refusal of Development Application No 0151/22 for the demolition of structures on site, tree removal, Torrens title subdivision to create three allotments, construction of an access way, provision of stormwater, landscaping and the creation of a drainage easement at 4 Cliff Avenue (Lot B DP 32907) and 18 Cliff Avenue, North Wahroonga (Lot 3 DP 1084328) (site).

2. The proceedings were set down for a hearing on 13-15 February 2024. Following the joint conferencing of the experts, site viewing, further discussions between the parties and agreed conditions of consent, the parties agreed that the contested issues had been resolved. The parties therefore requested that the proceedings be adjourned and listed for a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act).

3. The Court granted the request and arranged a conciliation conference between the parties, which was held on 14 February 2024. I have presided over the conciliation conference. Further information was received by the Court on 28 February 2024.

4. The Respondent, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg 2021) to the applicant amending Development Application No DA 0151/22 in accordance with the document listed below (amended application):

• Vegetation Management Plan prepared by Anderson Environmental & Planning dated 1 February 2024.

5. 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. This decision involved the Court upholding the appeal for the amended application and granting development consent to the amended application, subject to conditions of consent.

6. I note that as part of the s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. 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.

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

Jurisdictional Prerequisites

9. 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 and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

10. The development application was lodged to Council on 14 April 2022.

11. I am satisfied that owners consent accompanied the development application.

12. The respondent notified the development application between 27 April 2022 and 11 May 2022. Seven submissions were received. The amended application was notified between 7 July 2023 and 27 July 2023, where five submissions were received. In reaching agreement, Council as the consent authority have considered the concerns raised.

Integrated Development – Rural Fires Act 1997

13. Pursuant to s 4.46 of the EPA Act 1979, the Applicant has nominated that the amended application is integrated development and requires General Terms of Approval (GTA) from the NSW Rural Fire Services (RFS). The amended application was referred to the RFS in accordance with s 100B of the Rural Fires Act 1997. The amended application is supported by Bushfire Protection Assessments prepared by Travers Bushfire and Ecology, dated 1 June 2022, 28 February 2023 and January 2024.

14. In correspondence dated 25 February 2024, the RFS raised no issues with the amended application and have issued their amended GTA subject to conditions. The conditions have been included in the conditions of consent at Annexure A.

15. A joint expert report from the bushfire experts was also prepared and concluded that the amended application complied with the NSW Rural Fire Service Planning for Bushfire Protection Guidelines dated November 2019.

Biodiversity Conservation Act 2016

16. Section 7.16 of the Biodiversity Conservation Act 2016 (BC Act) applies to the amended application as the site is mapped on the Biodiversity Values Map and proposes clearing of native vegetation. Section 7.16 stipulates that a development application must be refused if a proposed development is likely to have serious and irreversible impacts on biodiversity values.

17. Sections 7.2 and 7.7 require that a biodiversity development assessment report (BDAR) accompanies the development application. The amended application is supported by a Streamlined BDAR prepared by Anderson Environment and Planning dated 16 November 2023. The nominated appropriately accredited person of the BDAR is Craig Anderson. The BDAR was further supported by a report from Isobel Coulson in relation to Hygrocybe austropratensis.

18. Section 7.13 provides that any biodiversity offsets scheme applying to the proposed development must be retired through conditions of consent. The amended application and conditions of consent at Annexure A impose credits above the requirement (in accordance with s 6.4 of the BC Act).

19. The parties agree and I accept their detailed submissions within the jurisdictional statements and the BDAR itself, that the amended application and BDAR meet the jurisdictional requirements of the BC Act and that appropriate conditions of consent have been included at Annexure A. I am satisfied and accept the parties’ agreement that the proposed development will not have a serious and irreversible impact on biodiversity in accordance with the provisions of s 7.13.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

20. Chapter 4 Koala habit protection of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the site as there is no approved koala plan of management and the site is more than 1 hectare in size in a nominated local government area. The BDAR accompanying the amended application undertook research and surveys of the site for indications of Koala habitation. The BDAR found no indication of Koala’s or Koala habitats on site. I accept the parties’ agreement that the provisions of Ch 4 have been met.

State Environmental Planning Policy (Resilience and Hazards) 2021

21. The provisions of s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) apply to the site. The amended application has been accompanied by the following relevant reports, all prepared by Construction Sciences Pty Ltd:

1. Stage 1 Preliminary Site Investigation dated 8 May 2020.

2. Stage 2 Detailed Site Investigation dated 17 September 2020.

3. Bonded Asbestos Site Remediation and Bonded Asbestos Site Remediation and Validation Report dated 21 February 2022 (remediation report).

22. The remediation report details the remediation undertaken to date. The remediation report concludes that the remediation goal has been achieved and that the site is suitable for residential use with accessible soil. The parties agree and I accept that there the land has been remediated and is suitable for the proposed residential use.

Ku-ring-gai Local Environmental Plan 2015

23. The site is zoned C4 Environmental Living under the Ku-ring-gai Local Environmental Plan 2015 (KLEP). The proposed development residential subdivision is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone.

24. Clause 2.7 states that demolition requires development, which is sought in the amended application.

25. Clause 4.1 minimum subdivision lot size stipulates a minimum lot size of 1,500m² in accordance with the lot size map. The three proposed lots are over 1,500m², at 1,913m², 3,462m² and 4,407m² as shown on the subdivision plans prepared by ADW Johnson dated 25 October 2013 Version G.

26. Clause 6.1 Acid sulfate soils applies as the site is mapped as Class 5 soils. The amended application is accompanied by a Stage 2 Detailed Site Investigation prepared by Construction Sciences Pty Ltd dated 17 September 2020 (DSI), which concluded that further assessment of acid sulfate soils is not required. It is noted that the amended application itself will not lower the water table. With consideration of the DSI and conditions of consent at Annexure A, I accept the parties’ agreement that the provisions have been satisfied.

27. Clause 6.2 earthworks applies. I accept that the parties have adequately considered the provisions of cl 6.2 on the basis of the Geotechnical Investigation prepared by Construction Sciences Pty Ltd dated 14 February 2022 and Geotechnical Letter regarding the Stormwater Pipeline prepared by Geosciences dated 5 February 2024, the concept engineering plans prepared by ADW Johnson dated 8 November 2023 (engineering plans) at Annexure A and the conditions of consent at Annexure A.

28. Clause 6.3 biodiversity protection applies to the site, which is mapped as ‘biodiversity’ on the Terrestrial Biodiversity Map. With respect to the matters of consideration within cl 6.3(3), I accept the agreement of the parties within the jurisdictional statement that the impacts of the amended application as supported by the BDAR, proposed subdivision pattern and conditions of consent contained within Annexure A have adequately considered the provisions.

29. With respect to cl 6.3(4), I accept the agreement of the parties and am satisfied that the provisions have been met on the basis of the jurisdictional statement, relied upon BDAR and conditions of consent at Annexure A.

30. Clause 6.5 stormwater and water sensitive urban design applies. I accept the agreement of the parties that the clause is satisfied on the basis of the engineering plans, Water Cycle Management Plan prepared by ADW Johnson Pty dated 15 February 2022 in relation to water sensitive urban design principles, conditions of consent at Annexure A and jurisdictional statement.

Conclusion

31. 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.

32. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

33. 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.

Orders

34. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA0151/22, as amended, for a three lot Torrens Title Residential Subdivision of Lot B DP 32907 at 4 Cliff Avenue, North Wahroonga, and associated vegetation removal, demolition, earthworks and provision of services including stormwater infrastructure at Lot 3 DP 1084328, known as 18 Cliff Avenue, North Wahroonga, is determined by the grant of consent subject to conditions at Annexure ‘A’.

S Porter

Commissioner of the Court

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Annexure A

Decision last updated: 14 March 2024