Warrimac Pty Ltd v Northern Beaches Council

[2024] NSWLEC 1766

Land and Environment Court

New South Wales

Medium Neutral Citation:

Warrimac Pty Ltd v Northern Beaches Council [2024] NSWLEC 1766

Hearing dates:

Conciliation Conference 18 November 2024

Date of orders:

28 November 2024

Decision date:

28 November 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA2023/0669, as amended, for demolition of the existing structures, community title subdivision, construction of 28 dwellings, delivery of associated infrastructure, including roadworks, tree removal, landscaping and dedication of a creek line corridor at 16 Macpherson Street, Warriewood NSW is determined by the grant of consent subject to the conditions contained in Annexure A.

Catchwords:

APPEAL – Development application - conciliation conference – agreement between the parties - orders

Legislation Cited:

Biodiversity Conservation Act2016, ss 7.2, 7.3, 7.7

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7, 8.10, 8.11

Fisheries Management Act 1994, ss 201, 219

Land and Environment Court Act 1979, ss 17, 34

Water Management Act 2000, s 91

Biodiversity Conservation Regulation 2017, cl 7.3

Environmental Planning and Assessment Regulation 2021, s 38

Pittwater Local Environmental Plan 2014, cll 4.1, 4.1AA, 4.3, 4.4, 5.21, 5.22, 6.1, 7.1, 7.2, 7.6, 7.10

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2

State Environmental Planning Policy (Sustainable Buildings) 2022, s 4.2

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

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

Category:

Principal judgment

Parties:

Warrimac Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

23/250329

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application (DA2023/0669) (Development Application). The Development Application sought consent for the demolition of existing structures, community title subdivision, construction of 28 dwellings, delivery of associated infrastructure, including roadworks, tree removal, landscaping and dedication of a creek line corridor on land identified as Lot 4 in Deposited Plan 553816, known as 16 Macpherson Street, Warriewood 2102, NSW (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 31 May 2023.

4. The Development Application was not publicly exhibited between 13 June and 14 July 2023. 12 written submissions were received in response to the notification. The issues raised include:

1. traffic access;

2. lack of street parking;

3. pedestrian safety;

4. common boundary site levels;

5. loss of trees and habitat; and

6. pedestrian links.

5. The Development Application was referred to:

1. Ausgrid with a response received on 14 June 2023 providing Ausgrid’s requirements and no objection to the proposal.

2. The Aboriginal Heritage Office with a response received on 14 June 2023 which did not raise any objections, however required a “preliminary inspection” to demonstrate “due diligence” in identifying if any relics may be present. This preliminary inspection was carried out (see Aboriginal Objects Due Diligence Assessment prepared by Curio Projects dated August 2023 (Aboriginal Assessment)).

3. Water NSW pursuant to s 91 of the Water Management Act 2000 (WM Act). A response was received on 21 March 2024 providing the Department of Planning and Environment-Water’s (DPE Water) General Terms of Approval (GTAs) for part of the proposed development requiring a controlled activity approval under the WM Act.

4. NSW Fisheries pursuant to ss 201 and 219 of the Fisheries Management Act 1994 (FM Act). A response was received on 27 July 2023 with general requirements and no objection to the proposal.

6. On 7 August 2023, the proceedings were commenced in relation to the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

7. On 30 August 2023, the applicant was granted leave to rely on amended documentation (August 2023 Amendments).

8. Following the termination of a conciliation conference arranged by the Court under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) on 16 April 2024, the matter was listed for hearing on 18 to 20 November 2024.

9. On 12 July 2024, the applicant was granted leave of the Court to further amend the Development Application (July 2024 Amendments).

10. Upon commencement of the hearing, the parties reached agreement and requested that the matter be listed for another s 34 conference. The Court granted this request, and the matter was listed for a s 34 conference on 18 November 2024, following which the hearing was vacated. I presided over the hearing (to the extent it was commenced) and conciliation conference.

11. The decision agreed upon is for the grant of consent to the Development Application, as amended by the August 2023 Amendments, July 2024 Amendments and further agreed amendments (Amended Development Application), subject to conditions of consent. The signed agreement is supported by a jurisdictional statement.

12. The further amendments include reliance on the:

1. Acid Sulfate Soils Assessment and Management Plan prepared by EI Australia dated 23 September 2024 (Acid Sulfate Soils Plan);

2. Pittwater Local Environmental Plan 2014 Biodiversity Assessment Letter prepared by AEP dated 23 September 2024 (Biodiversity Letter);

3. Pittwater Local Environmental Plan 2014 Supplementary Flooding Assessment Letter prepared by Martens dated 20 September 2024 (Flooding Letter);

4. Pittwater Local Environmental Plan 2014 Earthworks Assessment Letter prepared by EI Australia dated 30 October 2024 (Earthworks Letter); and

5. Updated Voluntary Planning Agreement Letter of Offer prepared by BBF Planners dated 15 November 2024 (Updated VPA Offer).

13. 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.

Jurisdictional considerations

14. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owners consent

15. The Development Application was lodged by IPM Property on behalf of the applicant with the consent of the owners of the site (see tab 1 of the Class 1 Application).

WM Act

16. The Amended Development Application comprises integrated development under s 4.46 of the EPA Act as it requires a controlled activity approval under s 91 of the WM Act.

17. A mapped second order watercourse (Narrabeen Creek) marks the east boundary of the Subject Land. The Amended Development Application proposes certain civil and rehabilitation works within the creek line, being “waterfront land” for the purposes of the WM Act.

18. DPE Water provided its GTAs on 27 March 2023 which have been incorporated in the Agreed Conditions.

FM Act

19. The proposed development includes works associated with the regrading and rehabilitation of the creek line corridor consistent with the Warriewood Valley Landscape Masterplan and Design Guidelines (Public Domain) 2018 (Warriewood Valley Guidelines).

20. Section 201 of the FM Act requires a person to obtain a permit issued by the Minister for dredging work or reclamation work. Section 201(2)(b) notes that this section does not apply to “work carried out, or authorised, by a relevant public authority (including a local government authority).”

21. Section 219(1) identifies the matters taken to be an offence under the FM Act. Section 219(5) notes that the section does not apply to “any activity that is otherwise permitted by or under this Act or any other Act”.

22. By letter dated 27 July 2023, the Department of Primary Industries provided a response to the Development Application, noting:

“We were unable to locate any assessment of the aquatic habitat values within Narrabeen Creek as part of this proposal, or potential impacts of the proposed development on these values. Following a desk-top analysis we note that the creek is not mapped key fish habitat and a site inspection by myself confirmed this. As such, we have no objections to the proposed works within and adjacent to the waterway.”

23. The parties submit, and I accept, that ss 201 and 219 have been considered and approval is not required pursuant to s 201(2)(b) of the FM Act.

Biodiversity Conservation Act 2016 and Biodiversity Conservation Regulation 2017

24. Section 7.7(2) of the Biodiversity Conservation Act 2016 (BC Act) relevantly provides that if proposed development is likely to significantly affect threatened species, the application is to be accompanied by a biodiversity development assessment report (BDAR). Section 7.2 of the BC Act provides a series of triggers for when a proposed development is deemed “likely to significant affect threatened species”.

25. In this regard, the parties agree that:

1. The proposal will not have a significant impact on any threatened species having regard to the analysis carried out in the Ecological Assessment Report prepared by AEP dated August 2023 (Ecological Assessment Report) for the purposes of ss 7.2(1)(a) and 7.3 of the BC Act.

2. Although the Subject Land is partly identified as land to which the Biodiversity Values Map (BV Map) applies for the purposes of s 7.2(1)(b), the proposed development does not exceed the biodiversity offsets scheme threshold due to the operation of cl 7.3(5) of the Biodiversity Conservation Regulation 2017 (BC Regulation). This is because the Development Application was lodged on 31 May 2023 and the identification of a portion of land on the BV Map occurred on 13 September 2024. This means that the Subject Land was the subject of an application for planning approval when the area was so included in the BV Map for the purposes of cl 7.3(5) of the BC Regulation. Additionally, the proposed amount of clearing is under the relevant biodiversity offset scheme threshold of 0.5ha.

3. The Subject Land is not identified as a declared area of outstanding biodiversity value for the purposes of s 7.2(1)(c) of the BC Act.

26. Having regard to the above, the parties submit, and I accept, that the proposed development does not trigger the biodiversity offsets scheme or require the preparation of a BDAR.

State Environmental Planning Policy (Resilience and Hazards) 2021

27. Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. If the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

28. The Amended Development Application is accompanied by an “Additional Site Investigation” prepared by EI Australia dated 25 May 2023 (Contamination Report) which concludes that the Subject Land can be made suitable for the proposed use subject to the implementation of recommended measures. The Contamination Report notes that borehole log results demonstrate that contaminant concentrations in the soil samples were all below the adopted investigation levels applicable to residential use with garden/accessible soil.

29. Further, the agreed conditions of consent address contamination and remediation (see conditions 2, 29 and 30).

30. The parties agree that the requirements of s 4.6(1) of the RH SEPP are satisfied.

31. Having regard to the Contamination Report and agreed conditions of consent, I am satisfied that to the extent the Subject Land is contaminated, it can be made suitable for the purposes for which development consent is sought before the Subject Land is used for those purposes.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

32. The Development Application was lodged prior to the commencement of State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP SB). In accordance with the savings provisions under s 4.2 of SEPP SB, State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) applies instead. In compliance with the relevant requirements of SEPP BASIX, an updated BASIX Certificate has been provided as part of the Amended Development Application.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

33. The Amended Development Application seeks consent for the removal of 38 trees and four groupings of trees on the Subject Land.

34. The parties agree that as the Amended Development Application seeks development consent to remove the identified trees, Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relating to permits, is not enlivened due to the BC SEPP regulating a different and separate scheme to seeking development consent under the EPA Act.

35. The parties agree, and I accept, that there is no matter that would prevent consent being granted for the removal of the identified trees proposed to facilitate the proposed development.

Pittwater Local Environmental Plan 2014

36. The Site is zoned R3 Medium Density Residential under the Pittwater Local Environmental Plan 2014 (PLEP). Accordingly, development for the purposes of subdivision, dwelling houses, attached and semi-detached dwellings, are permitted with consent in the R3 zone. I have had regard to the zone objectives which are extracted below:

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

• •  To provide a variety of housing types within a medium 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 a limited range of other land uses of a low intensity and scale, compatible with surrounding land uses.

37. Pursuant to cl 4.1(4)(b) of the PLEP, as the Amended Development Application is for community title development, there is no minimum lot size that applies to the proposal. Similarly, cl 4.1AA of the PLEP does not apply to the Amended Development Application as the Subject Land is zoned R3 Medium Density Residential.

38. Pursuant to cl 4.3 of the PLEP, a maximum height development standard of 10.5m applies to the Subject Land. However, cl 4.3(2F) relevantly provides that development on land identified as “Area 6” on the Height of Buildings Map must not exceed 8.5m within the area that is 12.5m measured from the boundary of any property relevantly fronting Macpherson Street. The Subject Land is identified within Area 6 on the Height of Building Map and accordingly, dwellings located within 12.5m of the Subject Land’s western boundary fronting Macpherson Street (proposed Lots 2-6) are subject to an 8.5m height restriction, whilst the remaining lots are subject to a 10.5m height restriction.

39. The parties agree that the Amended Development Application complies with the relevant height standard controls.

40. Pursuant to cl 4.4 of the PLEP, as the Subject Land is not identified on the Floor Space Ratio Map, a maximum floor space ratio development standard does not apply to the Amended Development Application.

41. Pursuant to cl 5.21 of the PLEP, development consent must not be granted to development relevantly on land within the flood planning area unless the consent authority is satisfied of the matters in cl 5.21(2) and has considered the matters in cl 5.21(3). The parties agree that the Subject Land is located within a flood planning area and the provisions of cl 5.21 apply.

42. The Amended Development Application is accompanied by a Flood Impact Assessment prepared by Martens dated July 2024 (Flood Assessment) which considers each of the matters specified in cl 5.21(2) and (3) of the PLEP (see pp 33-35). Further, flood issues are considered in the Joint Expert Report of the flooding experts filed 12 September 2012 (Joint Flooding Report) where the parties’ flood experts conclude:

1. any minor increases to flood waters in neighbouring properties in a limited number of flood events (specifically to the northwestern rear yard area of 14 Macpherson St adjacent to the riparian corridor) are within permitted tolerance levels, and isolated to areas that are already impacted by floodwaters – and are therefore not considered detrimental or a significant risk to life and property (see paragraphs 15-18);

2. in all other modelled flood events, the peak flood level at the affected location would in fact decrease – as would other areas of the surrounding area, including in Brands Lane and Macpherson Street (see paragraph 19-20); and

3. with respect to other properties noted in Council’s contention, the changes in floodwaters and velocity will not be materially changed following development.

43. In determining the Amended Development Application, I confirm that I have considered the matters in cl 5.21(3) and am satisfied of the matters in cl 5.21(2) having regard to the Flood Assessment, Joint Flooding Report and Agreed Conditions (see conditions 2, 11, 12, 13, 75, 76, 110 (Flood Conditions)).

44. Pursuant to cl 5.22 of the PLEP regarding special flood considerations, development consent must not be granted to development on land to which this clause applies unless the consent authority has considered the matters listed in cl 5.22(3). The parties agree that cl 5.22 applies by virtue of the Subject Land being located in the flood planning area and meeting the criteria in cl 5.22(2)(b). The Flood Assessment addresses the matters in cl 5.22(3) of the PLEP, concluding that the proposed development:

1. will not affect the safe use or occupation of residents or neighbouring sites for the purposes of cl 5.22(3)(a) (see, pp 28, 29 and 32);

2. incorporates appropriate measures to manage risk to life in the event of a flood – adopting floor levels at or above the PMF to enable shelter-in-place in the event that evacuation has not occurred for the purposes of cl 5.22(3)(b) (see p 34); and

3. is not likely to adversely affect the environment in the event of a flood, noting that changes to flood behaviour is not anticipated to cause increased vegetation losses or erosion during flooding, either within the creek-line, or in the adjoining vegetated riparian zone for the purposes of cl 5.22(3)(c) (see p 34).

45. In determining the Amended Development Application, I confirm that I have considered the matters in cl 5.22(3) of the PLEP having regard to the Flood Assessment, Joint Flooding Report and Agreed Conditions (see Flood Conditions).

46. Pursuant to cl 6.1 regarding the Warriewood Release Area, development consent must not be granted for development on land in a specified buffer area or sector unless the consent authority is satisfied that the total number of dwellings identified in the table of that clause will be erected. The parties agree that the Subject Land is identified as being within Sector 303 and that the number of dwellings to be erected on this land must be not more than 29 dwellings or less than 23 dwellings. The Amended Development Application proposes a total of 28 dwellings, in compliance with this clause.

45. Clause 6.1(4) further provides that development consent must not be granted for development to which the clause applies unless the consent authority is satisfied that the proposed development will not have any significant adverse impacts on the matters listed in cl 6.1(4). The parties agree that cl 6.1(4) of the PLEP applies on the basis that the Subject Land is identified as having a creek line corridor on the Urban Release Area Map. The Amended Development Application is accompanied by the following documents:

1. Biodiversity Letter; and

2. Flooding Letter.

48. In determining the Amended Development Application, I confirm that I am satisfied of the matters listed in cl 6.1(4) of the PLEP having regard to the Biodiversity Letter, Flooding Letter and Agreed Conditions.

49. Pursuant to cl 7.1 of the PLEP, the Subject Land is mapped as a Class 5 Acid Sulfate Soils (ASS) risk area. As the proposed works include excavation of more than 2.0m below the natural ground surface, an acid sulfate soils management plan must be provided prior to the grant of development consent pursuant to cl 7.1(3). In compliance with this clause, the Amended Development Application includes an Acid Sulfate Soils Plan. Conditions 2 and 51 of the Agreed Conditions require compliance with this document.

50. Pursuant to cl 7.2 regarding earthworks, in deciding whether to grant consent for earthworks, the consent authority must consider the matters in cl 7.2(3) of the PLEP. The Amended Development Application seeks consent for excavation and earthworks and the parties agree that this clause applies. The Amended Development Application is accompanied by the following relevant documents:

1. Earthworks Letter;

2. Geotechnical Report prepared by EI Australia dated 25 November 2022 (Geotechnical Report);

3. Contamination Report;

4. Acid Sulfate Soils Plan;

5. Aboriginal Assessment Report;

6. Water Cycle Management Report prepared by Craig & Rhodes dated May 2023 (Water Cycle Report);

7. Sediment and Erosion Control Plan (Dwg. No 048-22C-DA-0901);

8. Creek Rehabilitation Works Plans; and

9. Flood Assessment,

10. (collectively, Earthworks Documents).

51. In determining the Amended Development Application, I confirm that I have considered the matters in cl 7.2(3) of the PLEP, having regard to the Earthworks Documents and Agreed Conditions.

52. Pursuant to cl 7.6 of the PLEP regarding biodiversity, development consent must not be granted to relevant development unless the consent authority has considered the matters in cl 7.6(3) and is satisfied of the matters in cl 7.6(4). The Subject Land is identified on the “Biodiversity Map” under cl 7.6(2) of the PLEP and the parties agree that this clause applies. The Amended Development Application is accompanied by the following relevant documents:

1. Biodiversity Letter;

2. Water Cycle Report;

3. Creek Rehabilitation Works Plans;

4. Ecological Assessment Report; and

5. Biodiversity Management Plan prepared by AEP dated October 2023,

6. (collectively, the Biodiversity Documents).

53. In determining the Amended Development Application I confirm that I have considered the matters in cl 7.6(3) and am satisfied of the matters in cl 7.6(4) having regard to the Biodiversity Documents and Agreed Conditions.

54. Pursuant to cl 7.10 of the PLEP regarding essential services, the parties submit, and I accept, that all services essential for the development are available or adequate arrangements have been made to make them available when required.

Pittwater 21 Development Control Plan 2012

55. Relevant provisions of the Pittwater 21 Development Control Plan 2012 are considered at pp 19-33 of the Statement of Environmental Effects prepared by BBF Town Planners dated May 2023 (SEE).

Remaining matters in s 4.15(1) of the EPA Act

56. In relation to s 4.15(1)(a)(iii) of the EPA Act, the applicant has offered to enter into a voluntary planning agreement (see letter from the applicant dated 15 November 2024). Condition 1 of the Agreed Conditions (being a deferred commencement condition) requires the applicant to enter into a planning agreement generally consistent with the offer made in the letter of 15 November 2024.

57. The matters set out in s 4.15(1)(b), (c), and (e) are addressed in the SEE (see pp 34-38).

58. In relation to s 4.15(d), the Development Application, as lodged, was notified between 13 June and 14 July 2023 and renotified on 12 July 2024. Twelve separate written submissions were received in response to the notifications.

59. I am satisfied that the submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

Conclusion

60. 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.

61. 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.

62. The Court notes that the respondent, as the relevant consent authority, has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA2023/0669 to incorporate the documents listed below:

Document Title	Prepared by	Dated
Acid Sulfate Soils Assessment and Management Plan	EI Australia	23 September 2024
Pittwater Local Environmental Plan 2014 Biodiversity (cl 6.1 & 7.6) Assessment Letter	AEP	23 September 2024
Pittwater Local Environmental Plan 2014 Supplementary Flooding (cl 6.1) Assessment Letter	Martens	20 September 2024
Pittwater Local Environmental Plan 2014 Earthworks (cl 7.2) Assessment Letter	EI Australia	30 October 2024
Updated VPA Letter of Offer	BBF Planners	15 November 2024

63. The parties agree that the amendments set out in [62] above are considered minor.

Orders

64. The Court orders that:

1. The appeal is upheld.

2. Development Application No. DA2023/0669, as amended, for demolition of the existing structures, community title subdivision, construction of 28 dwellings, delivery of associated infrastructure, including roadworks, tree removal, landscaping and dedication of a creek line corridor at 16 Macpherson Street, Warriewood NSW is determined by the grant of consent subject to the conditions contained in Annexure A

N Targett

Commissioner of the Court 

Annexure A

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Decision last updated: 28 November 2024