Steve Wu Architects Pty Ltd v Ku-ring-gai Council

[2024] NSWLEC 1190

Land and Environment Court

New South Wales

Medium Neutral Citation:

Steve Wu Architects Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1190

Hearing dates:

3 April 2024

Date of orders:

17 April 2024

Decision date:

17 April 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The development application number DA0109/23 for the demolition of existing structures, tree removal, subdivision of Lot X in DP 442469 into 6 residential lots, the extension of Dorset Drive and construction of stormwater infrastructure at 139 Rosedale Road, St Ives, is determined by the grant of development consent subject to the conditions in Annexure A.

(3) Exhibits A, B, C, J, H, 4 and 5 are retained, and Exhibits D, E, F, 1-3 are returned.

Catchwords:

APPEAL – development application – subdivision of land – offer to enter into a planning agreement for dedication of land – contentions addressed by additional information – agreed conditions of consent

Legislation Cited:

Biodiversity Conservation Act 2016, ss 7.7, 7.13

Environmental Planning and Assessment Act 1979, ss 4.15, 7.4, 7.5, 7.7, 8.7

Rural Fires Act 1997, s 100B

Biodiversity Conservation Regulation 2017, cl 7.2

Environmental Planning and Assessment Regulation 2021, ss 38, 204

Ku-ring-gai Council Local Environmental Plan 2015, cll 4.1, 6.3, 6.4, 6.5

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.9

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

Cases Cited:

Omaya Investments Pty Limited v Dean Street Holdings Pty Limited(No 5) [2020] NSWLEC 9

Texts Cited:

Ku-ring-gai Development Control Plan

Category:

Principal judgment

Parties:

Steve Wu Architects Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
G McKee (Solicitor) (Applicant)
C Novak (Respondent)

Solicitors:
McKees Legal Solutions (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s):

2023/167405

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Dorset Drive, in St Ives, is a road containing a northern and southern portion that remain separated by three large parcels of undeveloped land which also have frontage to Rosedale Road. The northernmost parcel is known as 139 Rosedale Road. This appeal concerns a development application by Steve Wu Architects Pty Ltd (the applicant) for the subdivision of 139 Rosedale Road into 6 residential lots and an additional lot to be dedicated for the extension of Dorset Drive. The development application was lodged with Ku-ring-gai Council (the Council) on 27 March 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The proposed development includes the demolition of an existing dwelling house, the subdivision of the lot into 6 residential lots, the extension of Dorset Drive including the construction of the road and its dedication to the Council in accordance with a planning agreement, the construction of stormwater facilities and tree removal.

3. In the course of the hearing of the appeal, the Council approved an amendment to the development application, pursuant to s 38(2) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), by the provision of an amended Vegetation Management Plan dated 6 March 2024 (VMP). The VMP is proposed for the eastern portion of the site.

4. The Council now agrees that the development application can be granted subject to conditions of consent, which include a deferred commencement condition requiring the applicant to enter into a planning agreement in terms of an offer made on 28 March 2024. The conditions of consent are agreed to by the applicant. The Council now accepts that each of the contentions initially raised in its Statement of Facts and Contentions have been adequately addressed.

5. I am nonetheless required to carry out an assessment of the development application pursuant to s 4.15 of the EPA Act to determine if it is appropriate to grant development consent. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, and regulations. Section 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development and any submissions made by the local residents. For the reasons that are set out below, I accept the parties’ agreed position that the contentions raised by the Council on the appeal have now been addressed and that development consent can be granted subject to the agreed conditions of development consent. I am also satisfied that each of the jurisdictional preconditions to the grant of development consent is met.

The site and the locality

6. The site is legally described as Lot X in DP 442469 and is 8,625m² with a frontage of 43.79m to Rosedale Road. Part of its northern boundary has frontage with the southern end of northern portion of Dorset Drive, where the roadway terminates without any turning circle or cul-de-sac bulb.

7. The site is burdened by a 3.66m wide easement along its entire northern boundary. The site is sparsely vegetated and contains remnant Blue Gum High Forest (BGHF) and Sydney Turpentine-Ironbark forest (STIF) species, with an area to the east more densely vegetated and proposed to be subject to the VMP.

8. Development in the vicinity of the site comprises low density residential development. Immediately to the north of the site are residential dwellings that have frontage to either Dorset Drive or Rosedale Road, with a dwelling either side of Dorset Drive and third dwelling fronting Rosedale Road. The streetscape is characterised by single and two storey dwellings within a landscaped setting of canopy trees and vegetated gardens.

The planning framework

9. The site is zoned R2 Low Density Residential pursuant to the Ku-ring-gai Council Local Environmental Plan 2015 (KLEP). The objectives of the zone are as follows:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai.

10. Clause 4.1 of the KLEP imposes a minimum subdivision lot size development standard, with which the proposed development complies. Each lot created by the subdivision, including the land to be dedicated to the Council, exceeds the minimum subdivision lot size of 930m².

11. The proposed development includes the clearing of vegetation to an extent that exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report (BDAR) is therefore required pursuant to the Biodiversity Conservation Act 2016 (the BC Act). Consistent with s 7.7 of the BC Act, the development application includes a BDAR prepared by Ecological Australia, dated 16 March 2023. The BDAR concludes that there is no significant impact on either the BGHF or the STIF, that the VMP will result in the restoration of the vegetation community of BGHF, and that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act.

12. Clause 6.3 of the KLEP concerns biodiversity conservation and applies to the site, which contains land identified as “biodiversity” on the Terrestrial Biodiversity Map. Clause 6.3(3) sets out matters that must be considered before determining a development application, and cl 6.3(4) sets out matters about which the consent authority must be satisfied prior to the grant of consent, as follows:

6.3 Biodiversity protection

(1) The objective of this clause is to protect, maintain and improve the diversity and condition of native vegetation and habitat, including—

(a) protecting biological diversity of native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the recovery of threatened species, communities, populations and their habitats, and

(d) protecting, restoring and enhancing biodiversity corridors.

(2) This clause applies to land identified as “Biodiversity” on the Terrestrial Biodiversity Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider—

(a) the impact of the proposed development on the following—

(i) any native vegetation community,

(ii) the habitat of any threatened species, population or ecological community,

(iii) any regionally significant species of plant, animal or habitat,

(iv) any biodiversity corridor,

(v) any wetland,

(vi) the biodiversity values within any reserve,

(vii) the stability of the land, and

(b) any proposed measure to be undertaken to ameliorate any potential adverse environmental impact, and

(c) any opportunity to restore or enhance remnant vegetation, habitat and biodiversity corridors.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a) is consistent with the objectives of this clause, and

(b) is designed, and will be sited and managed, to avoid any potentially adverse environmental impact or, if a potentially adverse environmental impact cannot be avoided—

(i) the development minimises disturbance and adverse impacts on remnant vegetation communities, habitat and threatened species and populations, and

(ii) measures have been considered to maintain native vegetation and habitat in parcels of a size, condition and configuration that will facilitate biodiversity protection and native flora and fauna movement through biodiversity corridors, and

(iii) the development avoids clearing steep slopes and facilitates the stability of the land, and

(iv) measures have been considered to achieve no net loss of significant vegetation or habitat.

(5) In this clause—

biodiversity corridor means an area that facilitates the connection and maintenance of native fauna and flora habitats and, within the urban landscape, includes areas that may be broken by roads and other urban elements and may include remnant trees and associated native and exotic vegetation.

13. Based on the VMP, the BDAR dated 16 March 2023 and the arboricultural impact assessment report dated 1 November 2023, I have considered the matters in cl 6.3(3) and I am satisfied of the matters in cl 6.3(4).

14. Clause 6.4 of the KLEP concerns riparian lands and adjoining waterways, and applies to the site. Based on the stormwater plans (within the Civil Engineering Plan set dated 6 December 2023) and the fact that the area that is mapped as riparian land will be subject to the VMP, I have considered the matters in cl 6.4(3) and I am satisfied of the matters in cl 6.4(4).

15. Clause 6.5 of the KLEP applies to the proposed development and concerns stormwater and water sensitive urban design. It provides:

6.5 Stormwater and water sensitive urban design

(1) The objective of this clause is to avoid or minimise the adverse impacts of urban stormwater on the land on which development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems.

(2) Before granting development consent to development on any land to which this Plan applies, the consent authority must be satisfied that—

(a) water sensitive urban design principles are incorporated into the design of the development, and

(b) riparian, stormwater and flooding measures are integrated, and

(c) the stormwater management system includes all reasonable management actions to avoid any adverse impacts on the land to which the development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems, and

(d) if a potential adverse environmental impact cannot be feasibly avoided, the development minimises and mitigates the adverse impacts of stormwater runoff on adjoining properties, native bushland, waterways and groundwater systems.

(3) For the purposes of subclause (2)(a), the water sensitive urban design principles are—

(a) protection and enhancement of water quality, by improving the quality of stormwater runoff from urban catchments,

(b) minimisation of harmful impacts of urban development on water balance and on surface and groundwater flow regimes,

(c) integration of stormwater management systems into the landscape in a manner that provides multiple benefits, including water quality protection, stormwater retention and detention, public open space, and recreational and visual amenity,

(d) retention, where practical, of on-site stormwater for use as an alternative supply to mains water, groundwater or river water.

16. Based on the stormwater plans, I am satisfied of the matters in cl 6.5(2).

17. The site falls within the Sydney Harbour Catchment, which means that Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) applies to the development application. Section 6.6 concerns maintaining water quality and minimising impact on water flows, and s 6.7 concerns minimising impact on aquatic ecology. Based on the stormwater plans, the BDAR and the VMP, I am satisfied of the matters in ss 6.6(2) and 6.7(2). The development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2), which concerns recreation areas and public access to waterbodies.

18. The proposal is integrated development pursuant to s 100B(3) of the Rural Fires Act 1997, and the NSW Rural Fire Service has issued a Section 100B Bush Fire Safety Authority. The general terms of approval have been incorporated in the agreed conditions of consent.

19. The Ku-ring-gai Development Control Plan (KDCP) applies to the proposed development. The relevant provisions, which are contained in Part 3A, 17 and 18, are outlined in detail in the revised Statement of Environmental Effects dated August 2023 (SEE), and relate to the design of the subdivision of land and associated infrastructure, riparian land protection and biodiversity conservation. Based on the SEE, I have considered those provisions and the way in which the proposed development achieves compliance with them.

Each of the contentions raised by the Council has been resolved

20. As a result of amendments made to the development application in the course of the appeal proceedings, each of the contentions raised by the Council on the appeal has been resolved.

General terms of approval from NSW Rural Fire Service

21. The Council raised a contention, in its Statement of Facts and Contentions, that development consent could not be granted absent General Terms of Approval from the NSW Rural Fire Service concerning the approval required by s 100B(2) of the Rural Fires Act 1997.

22. As indicated above, General Terms of Approval have now been obtained and a Bush Fire Safety Authority was issued on 30 July 2023.

The requirement for a preliminary investigation report

23. The Council also raised a contention that a preliminary investigation report had not been obtained, and therefore the requirements of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) could not be satisfied.

24. A preliminary site investigation was undertaken and a report by Sydney Environmental Group dated 15 March 2023 has now been furnished in an amended development application that was approved by the Court on 16 February 2024. Consistent with the requirements of cl 4.6(2) of the SEPP RH, I have considered this report. The report confirms that the site can be made suitable for the proposed development subject to a number of recommendations. These recommendations are required to be complied with by the agreed conditions of development consent.

Insufficient information contentions

25. The Council also raised a number of contentions that identified matters about which there was insufficient information to enable an assessment of the development application. This included insufficient information concerning the Grey Ironbark located on the site, the correct location of other trees on the site and lack of assessment by an arborist, inadequate landscape plans, inaccurate information in the Statement of Environmental Effects first lodged with the development application, insufficient water management measures in the stormwater plans, and insufficient information concerning vehicular access, construction management and waste collection.

26. Each of these insufficient information contentions have now been adequately addressed through the provision of additional information in the amendment to the development application approved by the Court on 16 February 2024. In particular:

• The Arboricultural Impact Assessment Report dated 1 November 2023 provides the required tree assessments and the information concerning the Grey Ironbark.

• The landscape plans dated 6 December 2023 address the matters identified by the Council.

• The Statement of Environmental Effects was superseded by the SEE that addresses the inaccuracies identified by the Council.

• The civil engineering plans have been updated to provide the water management measures identified by the Council as being lacking in the earlier design.

• The civil engineering plans have been amended to provide information on the driveway sections for proposed vehicular access.

• A preliminary construction traffic management plan has been provided that details how construction will occur.

• Swept path diagrams have been provided that demonstrate that a waste truck is able to complete a turning manoeuvre in the area of the proposed road, which is wholly within the site of the proposed development.

The issues raised by the residents are adequately addressed

27. The development application was notified to the residents and owners of surrounding properties between 4 April 2023 to 18 April 2023, and 18 written submissions were received in response. At the commencement of the hearing, two residents attended and shared their concerns with respect to the proposed development. The issues raised in the written submissions and on site at the hearing can be summarised as falling into the three categories identified by counsel for the Council as follows:

• Issues concerning access to the site along Dorset Drive by construction vehicles during construction and waste vehicles post-development.

• Biodiversity and ecological impacts.

• Stormwater impacts.

28. Other issues raised relate to concerns about the future extension of Dorset Drive to enable a completed connection of both portions of the road. As there is no proposal before the Court for that completed connection, this is not an issue on the proposed development.

29. The biodiversity, ecological and stormwater impacts have all been adequately addressed in the amended development application documents. This includes the BDAR, VMP, arboricultural assessment report and the stormwater plans. Based on those documents, I am satisfied that there are no unacceptable impacts on biodiversity, ecology or stormwater flows.

30. In relation to the access to the site through Dorset Drive, I am satisfied that, based on the swept path diagrams, the post-development access by waste vehicles is acceptable. The swept path diagrams demonstrate that waste vehicles that service this northern portion of Dorset Drive will be able to safely turn around within the boundary of the site, on the area of land that is proposed to be dedicated to the Council by the proposed Voluntary Planning Agreement (VPA). This means that the proposed development will actually resolve an issue that presently exists on this part of Dorset Drive, where waste vehicles are unable to turn around within the public road and are required to use private driveways.

28. In relation to the access to the site through Dorset Drive during construction, I appreciate that some access can be provided from Rosedale Road but that some access through Dorset Drive will nevertheless be required to carry out road construction and earthworks. Whilst the impact of such access is acceptable, to ensure that it occurs in a satisfactory manner the parties have agreed on a condition of consent that requires the applicant to submit a construction traffic management plan that is to be approved by the Council prior to the commencement of any works.

29. For these reasons, none of the matters raised by the residents warrant refusal of the development application.

Development consent should be granted

33. For the reasons expressed above, each of the contentions raised by the Council on the appeal have been adequately addressed through additional information and amendments to the development application. As such, there is no reason advanced that could form a basis upon which development consent should be refused. The proposed development is permissible on the site and complies with the relevant development standard concerning minimum lot size. It also complies with the relevant provisions in the KLEP and the SEPP B&C concerning the protection of biodiversity, riparian areas and water quality. I am satisfied that the matters raised by the objectors have been satisfactorily addressed, and that the jurisdictional preconditions identified by the parties throughout the course of the hearing have been met.

34. Further, the proposed VPA provides a lawful manner in which interests in land can be dedicated to Council and I am satisfied that the offer to enter into a VPA meets the requirements of s 7.4 of the EPA Act, including that it provides for the dedication of land and the carrying out of works, and the provision of a material public benefit, to be used for a public purpose. The Court has the power, pursuant to s 7.7(3) of the EPA Act, to impose a condition of consent that requires the developer to enter into the VPA in the terms of the offer made by the developer. The parties agree that this can be done by a deferred commencement condition, pursuant to s 4.16(3) of the EPA Act, and that the requirement to notify the proposed VPA, pursuant to s 7.5 of the EPA Act and s 204 of the EPA Regulation 2021, can be met following the grant of consent and prior to entry into the VPA (see Omaya Investments Pty Limited v Dean Street Holdings Pty Limited(No 5) [2020] NSWLEC 9 at [270]-[272]).

35. It is therefore appropriate to grant development consent in the circumstances, subject to the conditions agreed by the parties.

Final orders

36. The Court orders that:

1. The appeal is upheld.

2. The development application number DA0109/23 for the demolition of existing structures, tree removal, subdivision of Lot X in DP 442469 into 6 residential lots, the extension of Dorset Drive and construction of stormwater infrastructure at 139 Rosedale Road, St Ives, is determined by the grant of development consent subject to the conditions in Annexure A.

3. Exhibits A, B, C, J, H, 4 and 5 are retained, and Exhibits D, E, F, 1-3 are returned.

……………………….

J Gray

Commissioner of the Court

Annexure A

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Decision last updated: 17 April 2024