The Owners - Strata Plan No. 12175 v North Sydney Council

[2024] NSWLEC 1713

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No. 12175 v North Sydney Council [2024] NSWLEC 1713

Hearing dates:

Conciliation conference on 22 July 2024; 7 August 2024; 12 September 2024; 4, 18 & 25 October 2024; 1 November 2024; s34 agreement received on 1 November 2024

Date of orders:

05 November 2024

Decision date:

05 November 2024

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application DA213/23 for Torrens title subdivision for boundary adjustment is determined by the grant of development consent, subject to the conditions set out in Annexure A.

Catchwords:

APPEAL – development application – Torrens title subdivision for boundary adjustment – conciliation conference – agreement between the parties – orders

Legislation Cited:

Coastal Management Act 2016, s 5

Environmental Planning and Assessment Act 1979, s 4.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 38

North Sydney Local Environmental Plan 2013, cll 2.2, 2.6, 5.10, 5.23, 6.9, 6.10

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6 ss 6.6, 6.7, 6.9, 6.28, 6.32, 6.41; Div 3

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 2.11, 2.12, 2.13; Ch 4, s 4.6

Category:

Principal judgment

Parties:

The Owners – Strata Plan No. 12175 (First Applicant)
The Owners – Strata Plan No. 13551 (Second Applicant)
Rahnch Constructions Pty Ltd (Third Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Gadiel (Solicitor) (Applicants)
C Morton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicants)
Sparke Helmore (Respondent)

File Number(s):

2023/462897

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an appeal against North Sydney Council’s refusal of development application no. DA213/23 (DA), which sought consent for Torrens title subdivision for boundary adjustment on land known as 115-115A Kurraba Road, Kurraba Point (site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was first held on 22 July 2024 and reconvened over an extended period. I presided over the conciliation conferences.

3. At the conciliation conference the parties were able to reach an agreement as to the terms of a decision in the proceedings that would be acceptable to them. The decision involved the grant of a deferred commencement development consent, subject to the conditions in Annexure A.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ signed agreement if the Court could have made that decision in the proper exercise of its functions.

Jurisdictional preconditions

5. The preconditions relevant to the exercise of the Court’s power to make the proposed final orders are addressed in a joint jurisdictional submission annexed to the parties’ s34 written agreement.

6. After a consideration of the parties’ submissions and the documentation attached to the executed s34 agreement, I am satisfied that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard I note the following:

7. Owner’s consent has been obtained from each of the owners of the land as required by s 23 of the Environmental Planning and Assessment Regulation 2021, for the proposed development (Class 1 Application Tab 7).

North Sydney Local Environmental Plan 2013 (LEP)

Clause 2.2 Zoning of land to which Plan applies and Land Use Table

8. The land to which the DA relates is zoned R4 High Density Residential on the LEP land zoning map.

9. The parties submit and I accept that the proposed development gives effect to the following relevant objectives of the R4 zone. Specifically:

• the boundary adjustment the subject of the DA will enable a disused portion of land in the R4 zone to be more rationally used as part of any future redevelopment of the adjoining land at 115 Kurraba Road, thereby providing for the housing needs of the community within a high density residential environment consistent with first objective of the R4 zone; and

• the consolidation of the disused portion of land in the R4 zone with the adjoining land at 115 Kurraba Road will enable that land to be used as part of any future re-development of 115 Kurraba Road, thereby encouraging the development of sites for high density housing consistent with the fourth objective of the R4 zone.

• The Council only considers the relevant objectives are met on the basis that tenure of access is procured in the way contemplated in the deferred commencement conditions of the consent the subject of these proceedings.

10. The proposed development is for subdivision simpliciter and does not involve any physical works, therefore the second, third and fifth objectives of the zone are not relevant to the development.

Clause 2.6 Subdivision—consent requirements

11. The proposed subdivision is permissible with development consent under cl 2.6(1) of the LEP.

12. No consent is sought for “use” or any other development over the Transport Asset Holding Entity of NSW (TAHE) land as the use of the TAHE land for access (as part of the residential use of 115A Kurraba Road) is based on either existing use rights (if the access is a residential use and so prohibited) or continuing use rights (if the access is a “road” use and so is permissible with consent) as explained in the affidavit of Elizabeth Gorman affirmed 3 October 2024 and filed in the proceedings.

13. The development consent imposes a deferred commencement condition requiring the registration of a right of footway in the terms set out in the s88 instrument marked Annexure A to the conditions, and in the location identified in the plan marked Annexure B to the conditions.

Clause 5.10(4) Heritage conservation

14. The site is identified as a heritage item ‘I0660’ under the LEP’s Heritage Map. The proposed development is for subdivision of land on which a heritage item is located (cl 5.10(2)(f)). The impact of the proposed development on the heritage significance of the item has been assessed by Sue Rosen and Associates in the Heritage Impact Statement prepared dated April 2024 (HIS) and found to be acceptable.

Clause 5.23 Public bushland

15. The proposed development is for subdivision simpliciter only and will not disturb and is not reasonably likely to disturb public bushland. Accordingly, cll 5.23(3)-(4) do not apply.

Clause 6.9 Limited development on foreshore area

16. This clause does not apply as the subdivision of land is permissible on the site in accordance with cl 2.6 of the LEP and no physical works are proposed on the land (as this is an application for subdivision simpliciter).

Clause 6.10 Earthworks

17. The proposed development does not involve any earthworks. Accordingly, this clause does not apply.

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

Section 2.10 Development on land within the coastal environmental area

18. The land is identified on the Coastal Environment Area Map as ‘coastal environmental area’.

19. However, ss 2.10(1)-(2) do not apply as the site is within the ‘Foreshore and Waterways Area’ on the Foreshores and Waterways Area Map in accordance with s 2.10(3).

Section 2.11 Coastal Use Area

20. The land is identified on the Coastal Use Area Map under the RH SEPP as ‘coastal use area’.

21. However, s 2.11(1) does not apply as the site is within the ‘Foreshore and Waterways area’ on the Foreshores and Waterways Area Map in accordance with s 2.11(2).

Section 2.12 Development in the coastal zone generally—development not to increase the risk of coastal hazards

22. The land is within the ‘coastal zone’ as defined under s 5 of the Coastal Management Act 2016 and therefore this section applies.

23. The proposed development is not likely to cause increased risk of coastal hazards on that land or other land as the development is for subdivision simpliciter only and involves no physical change to the coastal environment.

Section 2.13 Development in coastal zone generally—coastal management programs to be considered

24. There is no certified coastal management plan that applies to the land. Accordingly, s 2.13 does not apply.

Section 4.6 Contamination and remediation to be considered in determining development application

25. Chapter 4 of the RH applies to the land. The site is unlikely to be contaminated given the historical use of the land for residential purposes as recorded in the HIS and is suitable for the purpose for which the development is proposed to be carried out. The proposed development does not involve any change in the use of the land.

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

Chapter 6 Water catchments

26. The site is within the Sydney Harbour Catchment and ‘Foreshores and Waterways Area’ on the Foreshores and Waterways Area Map. Therefore, Ch 6 of the BC SEPP applies to the site.

Section 6.6(2) Water quality and quantity

27. The development the subject of the DA is subdivision simpliciter and therefore no physical works form part of the proposed development which would affect the quality of water or the waterflow entering Sydney Harbour or any other natural waterbody.

28. The parties submit and I accept that the proposed development will ensure that:

• the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and

• the impact on water flow in a natural waterbody will be minimised.

Section 6.7(2) Aquatic ecology

29. The development the subject of the DA is subdivision simpliciter and therefore no physical works form part of the proposed development that can affect aquatic ecology.

30. The parties submit and I accept that the proposed development will ensure that:

• the direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development;

• there will be no direct, indirect or cumulative adverse impact on aquatic reserves;

• the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised; and

• the adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised.

Section 6.9(2) Recreation and public access

31. The proposed development does not involve any change to the existing public access enjoyed to the Sydney Harbour.

32. The parties submit and I accept that the proposed development will therefore:

• maintain or improve public access to and from natural waterbodies for recreational purposes without adverse impact on natural waterbodies, watercourses, wetlands or riparian vegetation;

• ensure that existing points of public access between natural waterbodies and the site of the development will be stable and safe; and

• the development does not involve making the foreshore of a natural waterbody which is in private ownership available for public access, and therefore s 6.9(2)(c) is irrelevant to the application.

Section 6.28(2) General

33. Division 3 ‘Development in Foreshores and Waterways Area’ applies to the land, as the land is within the ‘Foreshores and Waterways Area’ on the BC SEPP’s Foreshore and Waterways Area Map.

34. The proposed development is subdivision simpliciter and therefore no physical works form part of the proposed development. Accordingly, the parties submit and I accept that the development:

1. will retain the character and function of a working harbour;

2. is compatible with adjoining uses of land, including the Kurraba Wharf Reserve;

3. will result in no additional traffic congestion in the zoned waterway and along the foreshore; and

4. will maintain the unique visual qualities of the Foreshores and Waterways Area and its islands, foreshores and tributaries, including views and vistas to and from—

1. the Foreshores and Waterways Area, and

2. public places, landmarks and heritage items.

35. The development is not for or in relation to commercial or industrial purposes, and therefore s 6.28(2)(c) is irrelevant to the application.

Section 6.32(3) Rocky foreshores and significant grasses

36. The land is identified on the Rocky Foreshores and Significant Seagrasses Map, as ‘Seagrass Proximity (40m)’.

37. The proposed development is for subdivision simpliciter and does not involve any physical works that are capable of affecting seagrass or rocky foreshores at Sydney Harbour. Therefore, the parties submit and I accept that the proposed development:

• will preserve the health and integrity of seagrasses, areas containing seagrasses and ecological communities in rocky foreshore areas;

• will maintain the connectivity of seagrass vegetation and natural landforms;

• will not contribute to, the fragmentation of aquatic ecology; and

• will not cause physical damage to aquatic ecology.

Section 6.41 Subdivision of land not owned by TfNSW

38. The proposed development is for subdivision simpliciter and no physical works are proposed as part of the development. The boundary adjustment the subject of the application will not result in any reduced public access to the Sydney Harbour foreshore. The development therefore does not result in reduced public access to foreshores or waterways.

39. The Council only considers that the impacts of the development are appropriate (or that the site is appropriate) on the basis that that tenure of access is procured in the way contemplated in the deferred commencement conditions in the consent the subject of these proceedings.

40. The DA was not publicly notified.

Conclusion and orders

41. As I am satisfied that parties’ decision is within power as required by s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with their decision.

42. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

43. The Court notes:

1. That North Sydney Council, as the relevant consent authority, has pursuant to s 38(1) of the EPA Reg approved the applicants amending DA 213/23 to rely on the following documents below:

Tab 1 Subdivision plan
Plan name	Date	Revision	Prepared By
Subdivision plan showing part C.P of S.P. 13551 to be consolidated with S.P. 12175 115-115A Kurraba Road – Kurraba Point	4 September 2024	C	P. S Graham & Associates Pty Ltd
Tab 2 Other documents
Document name	Date	Revision	Prepared By
Heritage Impact Statement	April 2024	-	Sue Rosen & Associates

2. The applicants have filed the amended application with the Court on 1 November 2024.

44. The Court orders:

1. The appeal is upheld.

2. Development application DA213/23 for Torrens title subdivision for boundary adjustment is determined by the grant of development consent, subject to the conditions set out in Annexure A.

………………..

S Dixon

Senior Commissioner of the Court

Annexure A (383957, pdf)

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Decision last updated: 05 November 2024