TECP Consulting Pty Ltd v Ku-ring-gai Council

[2022] NSWLEC 1531

Land and Environment Court

New South Wales

Medium Neutral Citation:

TECP Consulting Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1531

Hearing dates:

Conciliation conference 31 August and 1 September 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

1) The Appeal is upheld.

2) Development Application No. 0048/22 lodged on 11 February 2022, as amended, for construction of a three level dwelling house with external gym, cabana, inground swimming pool and tennis court and associated landscaping works at the property known as 3 and 3A Graham Avenue, Pymble is approved subject to the conditions annexed hereto and marked Annexure A.

Catchwords:

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

Legislation Cited:

Contaminated Land Management Act 1997, Pt 3, Div 2

Environmental Planning and Assessment Act 1979, ss 4.15, 8.9

Environment Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6

Ku-ring-gai Local Environmental Plan 2015, cll 2.23, 5.10, 6.2, 6.3, 6.5

Category:

Principal judgment

Parties:

TECP Consulting Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
S Kondilios (Solicitor) (Applicant)
A Hemmings (Respondent)

Solicitors:
Hall and Wilcox (Applicant)
Maddocks Lawyers (Respondent)

File Number(s):

2022/184813

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. DA0048/22 (DA) by Ku-ring-gai Council (Council).

2. The DA, as amended, seeks consent for construction of a three level dwelling house with external gym, cabana, inground swimming pool and tennis court and associated landscaping works at the property known as 3 Graham Avenue, Pymble (Site).

3. In regard to the amendments, I note the advice of the parties provided within the documentation filed with the Court on 19 September 2022, that:

1. Council, as the relevant consent authority, has agreed to the amendment of the application (pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000) to accord with the plans and documents at Condition 1 of Annexure A.

2. The amendments were lodged on the NSW planning portal on 8 September 2022.

Conciliation and agreement between the parties

4. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) at which I presided. The conference was held on 5 September 2022.

5. On 19 September 2022, the parties filed an 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 and granting consent to the DA, as amended, in accordance with agreed conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions.

Jurisdiction

7. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. Regarding jurisdiction, and noting the advice in the parties’ jurisdictional statement also filed on 19 September 2022, I am satisfied in regard to the matters listed below.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

8. In regard to Ch 4 (concerned with remediation of land) and cl 4.6(1), the consent authority must not grant consent to development unless it has considered whether the subject land is contaminated and, subject to its status of contamination, is satisfied that the land is or will be made to be suitable for the development.

9. I accept the advice of the parties that the likelihood of encountering contaminated soils on the subject site is low given that:

1. Council’s records indicate that the Site has only been used for residential uses.

2. The Site and surrounding land are not currently zoned to allow for any uses or activities listed in Table 1 of the contaminated land planning guidelines of SEPP Resilience and Hazards.

3. The subject site does not constitute land declared to be an investigation area by a declaration of force under Div 2 of Pt 3 of the Contaminated Land Management Act 1997.

10. In the circumstances, and fully mindful of cl 4.6(1) of SEPP Resilience and Hazards, no further investigation of land contamination is warranted.

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

11. The Site is zoned R2 Low Density Residential, and the proposal is permissible within the zone. I have had regard to the zone objectives mindful of cl 2.3(2).

12. I accept the advice of the parties that the proposed development would not exceed any development standard under Pt 4 of KLEP.

13. The Site is located within the Park Estate Heritage Conservation Area and is located adjacent to a local heritage item at 21 Telegraph Road being Item No. I87 and a state heritage item at 29 Telegraph Road being Item No. I88, as nominated in Sch 5 of KLEP. Under cl 5.10(4), a consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. I have had regard to this and given consideration to the effect of the proposed development on the heritage significance of the Park Estate Heritage Conservation Area, noting the advice of the heritage experts during the site inspection on 5 September 2022.

14. In respect to earthworks, I have given consideration to the matters at cl 6.2(3) of KLEP and note the advice of the parties that the DA is accompanied by a Geotechnical Assessment and Stormwater Management Plans, and that the Construction Waste Management Plan has provided information on the source of any fill material and the destination of any excavated material.

15. In respect to biodiversity, and noting the Site is located on land defined as “Biodiversity” on the Terrestrial Biodiversity Map, I have given consideration to the matters at cl 6.3(3) of KLEP, noting the advice of the parties that the proposal is appropriately designed and sited to avoid and minimise any potentially adverse environmental impact.

16. In respect to stormwater and water sensitive urban design, the proposal was accompanied by a Stormwater Management Plan (SMP) that addresses the matters raised cl 6.5(2) of KLEP. I am advised that the SMP concludes that the proposed development will 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. Having considered the analysis in the SMP, I am advised that the Respondent’s relevant experts are satisfied in regard to the matters listed at cl 6.5(2). I accept this technical advice and I too am satisfied in regard to the relevant matters.

Other provisions of s 4.15(1) of the EPA Act

17. The parties have advised me on the submissions made after notification of the proposal both prior to and following amendments. I have taken into consideration these objecting submissions in accordance with the requirement of s 4.15(1)(d)(iii) of the EPA Act. Here I particularly note the commentary in the jurisdictional statement in relation to the question of stormwater management, geotechnical concerns and tree impacts, and the manner in which such matter has been addressed through further analysis and conditions of consent.

18. I have also given attention to the relevant development control plan, likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(a)(iii), (b), (c) and (e) of the EPA Act.

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 required 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 Appeal is upheld.

2. Development Application No. 0048/22 lodged on 11 February 2022, as amended, for construction of a three level dwelling house with external gym, cabana, inground swimming pool and tennis court and associated landscaping works at the property known as 3 and 3A Graham Avenue, Pymble is approved subject to the conditions annexed hereto and marked Annexure A.

.…………………………

P Walsh

Commissioner of the Court

**********

Annexure A

Decision last updated: 28 September 2022