Land and Environment Court New South Wales Medium Neutral Citation: Capital Corporation Wahroonga Pty Limited v Ku-ring-gai Council [2022] NSWLEC 1501 Hearing dates: Conciliation conference held 27 May, 7 June, 21 July, 2 and 12 August 2022, final agreement filed 12 August 2022 Date of orders: 15 September 2022 Decision date: 15 September 2022 Jurisdiction: Class 1 Before: Pullinger AC Decision: The Court orders that: (1) Leave is granted to the Applicant to amend Development Application DA0539/21 and rely on the amended plans and documents listed at Annexure A. (2) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. (3) The appeal is upheld. (4) Consent is granted to Development Application DA0539/21 (as amended) for the demolition of the existing structures, Torrens Title subdivision into three lots, construction of four residential flat buildings comprising 177 apartments with basement car parking, new internal road and associated site works including tree removal at 161-163, 167 and 169 Fox Valley Road, Wahroonga subject to the conditions of consent contained at Annexure B. Catchwords: DEVELOPMENT APPLICATION – residential apartment building – concept approval – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, s 7.2 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017, cll 2, Sch 2 Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cll 50, 55 Ku-ring-gai Local Environmental Plan 2015, cll 4.1, 5.10, 5.21, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.11 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Biodiversity and Conservation) 2021, cl 4.9 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.122 State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development, cl 30 Texts Cited: Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February 2022) Category: Principal judgment Parties: Capital Corporation Wahroonga Pty Limited (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: M Harker (Applicant) C Morton (Solicitor) (Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2022/35670 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application DA0539/21 (the DA) by Ku-ring-gai Council (the Respondent). The DA sought consent for the demolition of existing structures, Torrens Title subdivision of one lot into three lots, construction of four residential flat buildings comprising 177 apartments and a communal room with basement car parking, new internal road and associated works including tree removal at 161-163, 167 and 169 Fox Valley Road, Wahroonga (the site). 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 27 May, 7 June, 21 July, 2 and 12 August 2022. I presided over the conciliation conference. 3. Consistent with the Court's COVID-19 Pandemic Arrangements Policy, published in February 2022, and at the request of the parties, the matter was conducted by Microsoft Teams. 4. During the conciliation conference, the parties reached agreement as to the terms of a decision in these proceedings that would be acceptable to the parties. The agreement involves the Court upholding the appeal and granting development consent to an amended DA, subject to conditions. 5. Whilst the amended DA remains largely consistent with the original DA, a series of design changes have cumulatively resolved the contentions initially raised by the Respondent, which in turn related to streetscape impacts, inadequate internal amenity, inadequate communal open space, building height, access and car parking, deep soil provision and landscape design amongst other contentions. 6. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the amended DA. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 8. In that regard, I am satisfied the DA was made with the consent of the owner of the land. Australasian Conference Association Ltd as Corporate Trustee of Seventh-day Adventist Church (SPD) Limited, is the registered proprietor of the site as evidenced within the Class 1 Application accompanying this matter. 9. The DA was publicly notified for an initial 30 days from 24 December 2021. The amended DA was re-notified for a period of two weeks during the s34 conciliation conference from 28 June 2022. One submission was received by the Respondent in response to this re-notification. The parties agree, and I am satisfied, that the matters raised in submissions have been appropriately addressed by the amended DA. 10. The parties agree, and I am satisfied, the site forms part of the Wahroonga Estate, which is subject to a pre-existing Concept Approval MP07_0166, granted consent under Pt 3A of the EPA Act. Part 3A of the EPA Act was repealed on 1 October 2011, however a consent granted before the date of repeal is preserved by the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (Transitional Regulation). The Transitional Regulation applies to 'transitional Part 3A projects', which are defined at cl 2(1) to include a 'project the subject of an approved concept plan'. 11. As a consequence of this pre-existing Concept Approval and in accordance with the Transitional Regulation, the subject DA proposed use - characterised as residential apartment development - is permissible with consent. 12. The parties agree, and I am satisfied, that Sch 2 cl 3B(2)(d) of the Transitional Regulation requires the DA (as amended) to be 'generally consistent with the terms of the Concept Approval.' In this case, the final amended DA remains generally consistent with key elements of the Concept Approval including building footprints, the internal road network, location of the detention basin, the dimensions of nominated Asset Protection Zones and the proposed height of buildings (noting a minor height non-compliance, which has been addressed and in itself is not a jurisdictional consideration). 13. The parties agree, and I am satisfied, that the Ku-ring-gai Local Environmental Plan 2015 (KLEP) is a relevant environmental planning instrument. As noted above however, the terms of the existing Concept Approval has the effect of setting aside a number of provisions of the KLEP. In this instance, the Concept Approval makes the proposed development permissible with consent. 14. The parties agree, and I am satisfied, that the remaining relevant principal development standards of the KLEP have been met by the amended DA, and in particular cl 4.1 - Minimum subdivision lot size - establishing a minimum lot size of 1,200sqm for the site, is comfortably met by the proposal. 15. The parties agree, and I am satisfied, that pursuant to cl 5.10 - Heritage conservation - of the KLEP, the amended DA is situated on land with no identified heritage items or Aboriginal objects, nor is the site situated within a heritage conservation area. The site is however, located within the vicinity of Local Heritage Item 929 the 'Seventh-Day Adventist administrative building, including interiors and front garden setting' at 148 Fox Valley Road. The Applicant has prepared a Statement of Heritage Impact which concludes that the DA has no adverse impact on the significance of this heritage item. 16. The parties agree, and I am satisfied, that pursuant to cl 5.21 - Flood planning - of the KLEP, the amended DA is not situated within a flood planning area, and therefore cl 5.21 does not apply. 17. The parties agree, and I am satisfied, that pursuant to cl 6.1 - Acid sulfate soils - of the KLEP, the site of the amended DA is mapped as Class 5 on the Acid Sulfate Soils Map, however the proposal does not involve works within 500 metres of any adjacent Class 1, 2, 3 or 4 land, and therefore no acid sulfate soils management plan is required. 18. The parties agree, and I am satisfied, that pursuant to cl 6.2 - Earthworks - of the KLEP, the amended DA will not have 'a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land.' The Applicant's Preliminary Geotechnical Assessment and subsequent Phase 2 Detailed Site Contamination Assessment satisfactorily considers the matters set out in cl 6.2(3). 19. The parties agree, and I am satisfied, that pursuant to cl 6.3 - Biodiversity protection - of the KLEP, a portion of the site is identified on the Terrestrial Biodiversity Map as comprising 'Biodiversity'. Given the proposed development is not situated on that portion of the site, the provisions of cl 6.3 are not enlivened. 20. The parties agree, and I am satisfied, that pursuant to cl 6.4 - Riparian land and adjoining waterways - of the KLEP, a portion of the site is identified on the Riparian Lands and Watercourses Map. Given the proposed development is not situated on that portion of the site, the provisions of cl 6.4 are not enlivened. 21. The parties agree, and I am satisfied, that the amended DA meets the requirements of cl 6.5 - Stormwater and water sensitive urban design - of the KLEP. The Applicant has provided a technical statement describing how water sensitive urban design principles have been incorporated into the design of the DA, what stormwater and flooding measures have been integrated, and how the proposed stormwater management system avoids any adverse impact on the adjoining properties, native bushland, waterways, and groundwater systems. 22. The parties agree, and I am satisfied, that pursuant to cl 6.6 - Requirements for multi dwelling housing and residential flat buildings - of the KLEP, the amended DA comfortably meets the requirements for minimum lot size, and by virtue of the existing Concept Approval, sets aside other provisions of cl 6.6. 23. The parties agree, and I am satisfied, that pursuant to cl 6.11 - Wahroonga Estate, Fox Valley Road, Wahroonga - of the KLEP, the number of dwellings on land identified within the Wahroonga Estate must not exceed 500. The amended DA proposes 177 dwellings, which is consistent with the dwelling numbers granted consent within the Concept Approval, and additionally the total number of dwellings across the Wahroonga Estate has not been reached. 24. The parties agree, and I am satisfied, that State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) is a relevant environmental planning instrument. The DA was accompanied by a Phase 1 Environmental Site Assessment and a Phase 2 Detailed Site Contamination Assessment. The Phase 2 assessment conducted intrusive sampling, soil sampling, logging, screening, and laboratory testing of samples. The Phase 2 assessment concludes that the land can be made suitable for the proposed development subject to further recommendations, which are reflected in the conditions of consent. Accordingly, I am satisfied the amended DA addresses the matters outlined in cl 4.6 of SEPP Resilience and Hazards. 25. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX). Two BASIX certificates prepared by Cundall and dated 23 June 2022 have been submitted with the DA (as amended). Conditions of consent are imposed to ensure compliance with the BASIX certificate. 26. The parties agree, and I am satisfied, that the amended DA is subject to the provisions of State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65). Clause 30(2) of SEPP 65 sets out matters which the consent authority must be satisfied have been given adequate regard. Additionally, and pursuant to the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), the Applicant's architect, Lisa-Maree Carrigan (NSW registered architect 7,568), has prepared a Design Verification Statement dated 23 March 2022, addressing those matters referred to in cl 30(2) of SEPP 65 and fulfilling the requirements of cl 50(1AB) of the EPA Reg. 27. The parties agree, and I am satisfied, that State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP) is a relevant environmental planning instrument. Clause 2.122 of the Infrastructure SEPP requires the consent authority to give written notice to, and consider any submissions from, Transport for NSW (TfNSW) for a development resulting in more than 200 car parking spaces (the amended DA proposes 324 spaces). This consultation has occurred, and on 22 December 2021, TfNSW indicated it supported the DA, subject to conditions. 28. The parties agree, and I am satisfied, that State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) is a relevant environmental planning instrument. Pursuant to cl 4.9(2) of the BC SEPP, the consent authority must assess whether the DA is likely to have any impact on koalas or koala habitat. The amended DA is sited in an area clear of vegetation. Trees proposed to be removed are adjacent to Fox Valley Road and includes a deciduous tree separated from bushland to be retained on the site. I am satisfied that the DA will not impact on koalas or koala habitat. 29. The parties agree, and I am satisfied, that the Biodiversity Conservation Act 2016 (BC Act) is a matter for consideration for the amended DA. A portion of the site is mapped within the relevant Biodiversity Values Map, however no mapped vegetation is impacted by the amended DA and the parties agree the development is not 'likely to significantly affect threatened species' within the meaning of s 7.2(1) of the BC Act. 30. Having considered each of the preceding jurisdictional requirements, and having formed the necessary view required by s 34(3) of the LEC Act, I find it is appropriate to make the orders agreed to by the parties and now dispose of the matter. 31. The Court notes that: 1. Pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000, the Applicant has amended the DA with the consent of the Respondent. 2. The amended DA was uploaded to the NSW Planning Portal on 2 August 2022. 3. The Applicant has filed the amended DA with the Court on 21 July 2022. Orders 1. The Court orders that: 1. Leave is granted to the Applicant to amend Development Application DA0539/21 and rely on the amended plans and documents listed at Annexure A. 2. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent's costs thrown away as a result of amending the Development Application as agreed or assessed. 3. The appeal is upheld. 4. Consent is granted to Development Application DA0539/21 (as amended) for the demolition of the existing structures, Torrens Title subdivision into three lots, construction of four residential flat buildings comprising 177 apartments with basement car parking, new internal road and associated site works including tree removal at 161-163, 167 and 169 Fox Valley Road, Wahroonga subject to the conditions of consent contained at Annexure B. ……………………….. M Pullinger Acting Commissioner of the Court ********** Annexure A Annexure B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2022