Land and Environment Court New South Wales Medium Neutral Citation: CKDI Pty Ltd as trustee for CKDI Unit Trust v Ku-ring-gai Council [2023] NSWLEC 1018 Hearing dates: 15, 16 August 2022 Date of orders: 17 January 2023 Decision date: 17 January 2023 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is dismissed. (2) Development application DA0095/21 seeking consent for the consolidation of existing lots, conservation and restoration of former group home 'Warrina', reinstatement of tennis court and gardens, the construction of 8 x multi-dwelling houses, basement parking and associated site works at 8 Woonona Avenue, Wahroonga (Lot 1,2 and 3 in DP 218874) is determined by way of refusal. (3) Exhibits are returned with the exception of Exhibits A, B, C, G. Catchwords: DEVELOPMENT APPLICATION – reuse of existing locally listed heritage item – restoration and conservation works proposed – development application seeks to utilise heritage incentives clause for permissibility of the proposed use – planning and heritage matters agreed by experts – what are the works for which consent are sought – what is the land to which the development relates – does the applicant have owners consent for that land – does the proposed development provide adequate water management – does the stormwater management system include all reasonable measures to avoid adverse impacts on adjoining land – appeal dismissed. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.5, 4.15, 4.16, 4.17, 8.7, 77 Environmental Planning and Assessment Regulation 2000, cl 49, 55, Sch 1, cl 2, 3 Ku-ring-gai Local Environmental Plan 2015, cll 5.10, 6.5 Land and Environment Court Act 1979, s 40 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 Botany Bay City Council v Remath Investments No 6 Pty Ltd Limited ACN 001 804 673 [2000] NSWCA 364 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSW LR 638; [2011] NSWCA 349 Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council [2020] NSWCA 137 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; (1996) 137 ALR 644; [1996] HCA 20 Truslan Dumaresq Development Pty Ltd v Ku- ring- gai Council [2022] NSWLEC 1169 Category: Principal judgment Parties: CKDI Pty Ltd as trustee for CKDI Unit Trust (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: I Hemmings SC (Applicant) A Stafford (Respondent) Solicitors: HFW Australia (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2021/00344203 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal by the Applicant against the actual refusal of their development application (DA0095/21) by the Ku-ring-gai Local Planning Panel. The Applicant filed a Class 1 Application, appealing the refusal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). As amended the development application seeks consent for the consolidation of existing lots, conservation, restoration and change of use of former group home 'Warrina', reinstatement of tennis court and gardens, the construction of multi-dwelling housing comprising 10 dwellings, basement parking and associated site works. The development is proposed at 8 Woonona Avenue, Wahroonga (Lot 1,2 and 3 in DP 218874 (the site)). Issues in dispute 1. Despite the amendments to the development application and the provision of additional information, the Respondent maintains the development application warrants refusal. 2. The key issues in the proceedings are: 1. What are the works for which consent is sought by the development application? 2. How is a development application amended? 3. Do the works for which consent is sought have owners' consent? The site 1. The site comprises Lots 1, 2 and 3 in DP 218874, known as 8 Woonona Avenue, Wahroonga. The Applicant argues for the purposes of the development application, this is the site for which development is proposed. In contrast the Respondent argues that the development application, and specifically the proposed stormwater management of the development, involves works on neighbouring land (3-13 Bundarra Road). 2. Existing development on the site comprises the heritage listed building (which is a part single, part two storey building) and is proposed to be retained. The heritage item is a former group home, Warrina, which is a locally listed heritage item. A tennis court is located to the east of the heritage building, adjacent to the Woonona avenue frontage. There is a driveway crossover located at the northern end of the frontage, with a stone driveway running adjacent to the northern boundary and behind the Heritage building. There is a brick and timber fence along the street frontage with a pedestrian gate located centrally therein. An additional pair of brick pillars is located at the southern end of the street frontage. The site contains a number of canopy trees, predominately located along the northern, western and southern site boundaries. Public Submissions 1. The development application was notified by the Respondent to the owners and occupiers of surrounding properties for 30 days from 19 March 2021. The issues raised in the submissions can be summarised as: * removal of the existing Morton Bay Fig * stormwater impacts to 3-13 Bundarra Avenue * loss of vista to units at 2 Woonona Avenue due to tree removal * loss of privacy to units at 2 Woonona Avenue due to the proposed balconies, windows and tree removal. * loss of sunlight to units at 2 Woonona Avenue * height impacts arising from the three storey town houses * loss of local character * over development of the site * objection to easement by the Owners Corporation of 3-13 Bundarra Avenue * concerns relating to the condition and capacity of the existing pipe in the easement * traffic impacts and street parking * the omission of the dwelling at 14 Woonona Avenue from the three-dimensional rendering of the proposed development * the potential noise impacts from the communal use of the tennis courts to 14 Woonona Avenue * visual bulk impacts to the dwelling at 14 Woonona Avenue from the western townhouses * the heritage value of the existing mature trees on the site * means of enforcing the proposed conservation works to the heritage building * the heritage impact of new development on the existing building 1. The amended development application was renotified by the Respondent in September 2021. An additional three submissions were received which raised the following new issues in addition to the preceding list of concerns: * Solar access impacts to ground level balconies of No. 1 Woonona Avenue * Impact on property values * Amenity impacts of construction noise * Request compensation if approval granted * Advice regarding water servicing and wastewater servicing 1. At the commencement of the hearing, a member of the public addressed the Court detailing their concerns with the development application on behalf of the Owners Corporation of strata plan SP 83732 (3-13 Bundarra Avenue). They expressed their strong objection to any proposed easement through the common property of their strata plan to drain water from the subject site. 2. In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act. Expert Evidence 1. The Court was assisted by stormwater engineering experts, Mr Jack Shi for the Applicant and Mr Ross Guerrera for the Respondent. The joint reports of these experts were tendered as Exhibits 2 and 6 in the proceedings. In addition to their joint reports, the experts were called for cross examination. 2. The remaining experts in the proceedings noted in their respective joint reports the resolution of their issues on the basis of the amended plans or agreed conditions. As a result, they were excused from cross examination. What is development? 1. The EPA Act defines development at s 1.5 as any of the following: (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. 1. Pursuant to s 4.15(1) of the EPA Act a person may, subject to the regulations, apply to a consent authority for consent to carry out development. As the development application was lodged, but not finally determined, prior to 1 March 2022 the relevant regulation is the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). Clause 49(1) of the EPA Regulation states: (1) A development application may be made— (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent of the owner of that land. What are the works for which consent is sought by the development application? Background 1. The extent of the proposed stormwater management works for which consent is sought in the development application, and the land to which the development relates, are the subject of the principal dispute between the parties. 2. The development application form describes the site as 8 Woonona Avenue, Wahroonga comprising lots 1, 2 and 3 in DP 218874. Further, the development application form declares that consent from the owner of the land has been provided to the submission of the development application. It is agreed between the parties that if the Court holds that the works on 3-13 Bundarra Road (SP 83732) (the neighbouring land) form part of the development application, the Applicant does not have owners' consent from for those works. 3. As noted above, the development application form itself nominates the site as 8 Woonona Avenue, Wahroonga comprising lots 1, 2 and 3 in DP 218874. By reference to the development application form the works for which consent is sought on that land as Multi Dwelling Housing, with the following description of development: "Amalgamation, Conservation and Restoration of the Existing Dwelling, Tennis Court and Garden and the adaptive reuse into two 3 bed dwellings, and the construction of 8 x attached dwellings with a total of 23 car parking spaces. The attached dwellings are contained in two buildings with 5 x 4 bed dwellings in a three storey building on the west of the site and 3 x 4 bed dwelling in a three storey building on the south-east side of the site." 1. An initial stormwater management plan formed part of the development application submission filed with the Respondent in March 2021 along with the Statement of Environment Effects (SEE), the architectural plans and other documents. The stormwater management plan nominated stormwater discharge over 1681 and 1683 Pacific Hwy, Wahroonga (SP 21817 and SP 3379) and ultimately public infrastructure in Bundarra Avenue. 2. Pursuant to cl 55(1) of the EPA Regulation a development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined, by lodging the amendment or variation on the NSW planning portal. Relevantly, subcl (2) states: (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development. 1. The appeal was the subject of conciliation on 16 March 2022 which was terminated on 13 May 2022. Following the conciliation on 27 May 2022 the Applicant sought, and was granted leave, to amend their development application. This is confirmed by the Applicant's solicitor in his affidavit of 9 August 2022 which states: "On 27 May 2022, the Applicant was granted leave of the Court to amend the development application with reference to the documents at 'Exhibit JFD-2' to my Second Affidavit." 1. Relevant to the issues in despite, amongst a raft of supporting documents, the amendment incorporated a new 'Stormwater Management and Sediment Control Plan' drawings (revision 8, dated 24 March 2022) which document and detail the management of stormwater proposed and the resulting the civil drainage design into the development application. (Exhibit B) Relevantly drawings D01, D03 and D08 in the Stormwater Management and Sediment Control Plan drawings show a new inter-allotment pipe passing through the common property of SP 83732, known as 3-13 Bundarra Avenue. 2. I note this August amendment to the development application incorporated an amendment to stormwater management. The original development application submission which relied on stormwater discharge over 1681 and 1683 Pacific Hwy, Wahroonga (SP 21817 and SP 3379) and ultimately public infrastructure in Bundarra Avenue, the amended application relied on stormwater discharge over 3-13 Bundarra Avenue (SP 83732). 3. An amended Statement of Facts and Contentions was filed on 20 June 2022 which included the following contention: "a) A detailed construction methodology has not been submitted to show how the pipe can be installed without damaging existing structures, services and vegetation. The following details shall be provided: i. The inter-allotment pipe long section will need to show the location of all services (electrical, gas, stormwater and sewer) to verify that the inter-allotment pipe can be thrust bored without impacting existing services. Any adjustments to existing underground services are to be shown for setting out for construction. ii. the 900 x 900mm Pit E1 located within the easement route is to be located wholly within the site boundary of 8 Woonona Avenue. iii. How support would be maintained to the footings for the units along the northern side of No. 3-13 Bundarra Avenue South. Structural design engineer to endorse the stormwater plans and any recommendations are to be noted on the plans." (Exhibit 3) 1. By Notice of Motion filed 9 August the Applicant sought the following orders at the commencement of the hearing: "1. The Applicant has leave to further amend the development appeal application with respect to the documents contained in Exhibit JFD-3 to the Affidavit of Joachim Frances Delaney affirmed on 9 August 2022, 2. The Applicant is to bear the Respondent's costs thrown away to be agreed or assessed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979." (Emphasis added.) 1. Within Exhibit JFD-3 to the Notice of Motion were the following documents: 1. Stormwater Management and Sediment Control Plan revised on 22 July 2022 2. Underboring Construction Methodology Report dated 27 July 2022 (Exhibit C) 1. The Court granted the Notice of Motion filed on 9 August 2022 and granted the leave to the Applicant to further amend their development application. The Court further directed the Applicant to upload the documents to the NSW Planning Portal. The Respondent's position 1. Mr Stafford for the Respondent argues that if the Court concludes that the new inter-allotment pipe works are works for which consent is sought it is precluded from granting consent to the development application because the Applicant does not have consent from the neighbouring property. Or alternatively, if the Court finds that new inter-allotment pipe works do not form part of the development for which consent is sought it is precluded from granting consent because the preconditions at cll 6.5(1) and 5.10(1) of Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) are not satisfied. 2. Further, the Respondent argues that the proposed inter-allotment pipe on the neighbouring land is part of the development application as firstly it is shown on the plans for which consent is sought, and secondly because the Applicant relies on the works to demonstrate satisfaction of the two relevant pre-conditions to consent in LEP 2015, namely: * clause 5.10: Heritage conservation, subcl (10)(e): (10) Conservation incentives The consent authority may grant consent to development for any purpose of a building that is a heritage item or of the land on which such a building is erected, or for any purpose on an Aboriginal place of heritage significance, even though development for that purpose would otherwise not be allowed by this Plan, if the consent authority is satisfied that— (a) the conservation of the heritage item or Aboriginal place of heritage significance is facilitated by the granting of consent, and (b) the proposed development is in accordance with a heritage management document that has been approved by the consent authority, and (c) the consent to the proposed development would require that all necessary conservation work identified in the heritage management document is carried out, and (d) the proposed development would not adversely affect the heritage significance of the heritage item, including its setting, or the heritage significance of the Aboriginal place of heritage significance, and (e) the proposed development would not have any significant adverse effect on the amenity of the surrounding area. (Emphasis added.) * cl 6.5: Stormwater and water sensitive urban design, subcl (2): (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. (Emphasis added.) 1. In other words, if the proposed inter-allotment drainage and stormwater discharge over 3-13 Bundarra Avenue (SP 83732) does not form part of the development application (the works for which consent is sought) the Court could not be satisfied of the preceding preconditions. 2. In support of his submissions, Mr Stafford argues: 1. that the amendment to the development application on both 27 May, 20 June 2022 incorporated drawings from SYJ Consulting Engineers which show an inter-allotment pipe and associated works over the neighbouring property. Mr Stafford argues in making this amendment the development application was amended to incorporate these works. In other words, these works are clearly shown on plans for which approval is sought. 2. that by reference to their joint report the planning experts for both the Applicant and the Council are in agreement that the proposed development includes stormwater works on the neighbouring property. 3. the purpose of the inter-allotment drainage is required to discharge stormwater from the subject site to the public drainage system. Without this inter-allotment pipe, there is no means of discharging the stormwater from the subject site without adverse impacts on the downstream properties. 4. Applying the reasoning of the Court in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 (Al Maha) at [91-94] details of the proposed means of draining the land is part of the required drawings for the development. Therefore, "where stormwater management drawings indicate that development is to be undertaken on land neighbouring that shown formally in the development application form, that is nonetheless land on which development is proposed to be carried out for the purpose of the application (regardless of what the application form, or anything else, says)." (Respondent's written submissions 15 August 2022) 5. That the lack of owners' consent cannot, and is not, cured by the proposed deferred commencement condition as the Court has no power to grant consent to the proposal unless, at the time of determination, owners' consent to the works on the neighbouring property has been given. This is because owners' consent is required for the land to which the development application relates, not the land to which the development consent relates. 1. In relation to the Applicant's submissions on the authority of Truslan Dumaresq Development Pty Ltd v Ku-ring-gai Council [2022] NSWLEC 1169 (Trusland v Ku-ring-gai), Mr Stafford argues that whilst the decision is not binding, it is also distinguished on the facts in the current case on the following basis: 1. In this matter all of the experts in their joint reports accept, or assume, that the inter-allotment pipe is clearly part of the development application. 2. the Applicant sought and was granted leave to rely on stormwater plans and an underboring report which he argues that show the inter-allotment pipe is part of the development for which consent is sought, and 3. In his submission Trusland v Ku-ring-gai misapplies the reasoning of Al Maha at [94] in that Preston CJ specified and SEE could confine the land that is otherwise described in the development application form. In contrast, Mr Stafford argues that in Trusland v Ku-ring-gai the Court relies on an addendum to confine the works indicated on the plans accompanying the development application. He argues this is contrary to the approach in Al Maha which he argues concludes that "if works are shown on other land, as part of the necessary plans required by the regulation as part of the development application, then owners' consent is required for those works before the Court has power to approve the application." (Respondents written submissions 15 August 2022) 1. Further, Mr Stafford argues that the Applicant's proposed deferred commencement condition pursuant to s 4.16(3) of the EPA Act does not resolve the need for owners' consent from the neighbouring land on two bases. Firstly, on the basis that deferred commencement condition requiring an easement (a property right) does not address the need for owners' consent to carry out works (development) in the development application itself. Secondly, to the extent that the deferred commencement condition seeks to remove the need for owners' consent on the neighbouring land, it is ineffective in circumstances where those works are shown on the development application plans for the following reasons (emphasis original): "(a) first, granting a consent to a development 'except for a specified part or aspect of that development' under s 4.16(4) (b) does not change the 'development for which consent is sought' (being the words used to refer to 'that' development under s 4.16 (4)(a)), so that owners of the 'land to which to development application relates' under cl 49(1) of the EPA Regulation still includes the owners of Strata Plan 83732 even if consent is granted to only part of that development. That is, granting consent to only part of the development for which approval is sought does not remove the need for owners' consent from all owners of the land to which the development application relates. Owners' consent is required for the land to which the development application relates and not for the land to which the development consent relates. Put another way, the requirement for owners' consent applies to the development for which approval is sought and not only to the part of the development for which approval is granted; and (b) secondly, if there is no approval for stormwater works on the neighbouring property then stormwater is not incorporated or integrated into the proposal, and stormwater impacts from the development are not addressed, and there is no power to approve the proposal for the reasons in Part B." (Respondents written submissions 15 August 2022) 1. I note that the limitation to which Mr Stafford refers in (b) in the preceding is the requirement to satisfy the preconditions at cll 6.5(1) and 5.10(1) of LEP 2015 which are extracted at [26]. 2. Finally, Mr Stafford argues that the imposition of a deferred commencement condition is not a decision under s 4.16(4) of the EPA Act to grant an approval to only part of the development, it is a condition that must be satisfied before that consent is operable. The Applicant's position 1. Mr Hemmings for the Applicant submits that any works in the easement, or the creation of the easement itself, are not works for which consent is sought under the development application. He argues that the information provided to the Respondent in relation to the proposed stormwater management works fall into the category of information provided in support of the development application, rather than forming part of the development application or works for which consent is sought. In support of this submission Mr Hemmings references the initial Statement of Facts and Contentions filed by the Respondent which raised as an insufficient information contention 'water management', and specifically sought additional information on the methodology for construction of the pipe through the easement, a longitudinal section and details of the high-level overflow from the OSD tank to the inter-allotment drainage. On this basis Mr Hemmings submits that the contention was raised insufficient information in relation to water management on the site on how you dispose of it, offsite information provided, not an amendment to the application to incorporate the carrying out of development on the neighbouring land, the provision of additional information. He thus categorises the stormwater management drawings from SYJ Consulting Engineers (which show an inter-allotment pipe and associated works over the neighbouring property) and the associated methodology as information in support of the application but not an amendment to the application. 2. In support of the proposed deferred commencement condition, and its requirements to undertake works offsite, Mr Hemmings relies on the condition power at s 4.17 of the EPA Act and the decision of the Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSW LR 638; [2011] NSWCA 349. In that case Mr Hemmings argues the Court held that as long as there is a relevant nexus between development that may be carried out that does not form part of the development application, the Court is entitled and indeed is required to take into account the likely impacts that might arise from the development that is going to be carried out on land that is not land to which the development application relates, but that does not make those works part of the development application. Applying this principle to the current development application, Mr Hemmings submits his client is proposing development of its land which requires an easement over the downstream property. Those works are covered by the deferred commencement condition but are not works for which consent is sought. 3. Further, Mr Hemmings directs the Court to the authority of the High Court decision in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; (1996) 137 ALR 644; [1996] HCA 20 (Ligon) which dealt with the question of whether the development of land which has the benefit of an easement over adjacent land, requires the consent of the other of that land under the then provisions of s 77(1) of the EPA Act. Mr Hemmings submits that the Court in Ligon held it did not. Applying that principle to the current proceedings he submits that the fact that in the carrying out of the development for which consent is sought under the development application may require an easement over adjoining land land does not change the proper consideration of the 'land to which the development application relates' and therefore the land for which owners' consent is required. 4. Finally, Mr Hemmings argues that the deferred commencement condition proposed may be facilitated by the provisions at s 40 of the Land and Environment Court Act 1979, namely: 40 Additional powers of Court—provision of easements (1) This section applies if— (a) the Court has determined to grant or modify a development consent pursuant to proceedings on an appeal under the Environmental Planning and Assessment Act 1979, or (b) proceedings on an appeal under the Environmental Planning and Assessment Act 1979 with respect to the granting or modification of a development consent are pending before the Court (whether constituted by a Judge or by one or more Commissioners). (2) The appellant may make an application to the Court for an order imposing an easement over land. (3) The parties to an application under this section include the owner of the land to be burdened by the easement, and each other person having an estate or interest in the land, as evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900. (4) In dealing with an application under this section, the Court may exercise the jurisdiction of the Supreme Court under section 88K of the Conveyancing Act 1919 and, in that event, section 88K of the Conveyancing Act 1919 applies to the Court's exercise of that jurisdiction in the same way as it applies to the exercise of that jurisdiction by the Supreme Court. 1. Further, he submits that to apply the Respondent's interpretation would frustrate the legislative scheme of s 40 on the basis that such an application would be required each time consent is sought over the land of an intended easement. Mr Hemmings submits such an outcome is contrary to the determination of 'land to which the development relates' detailed in the authorities of Ligon, and Al Maha. 2. Finally, Mr Hemmings submitted that the Court should follow the reasoning and decision of the Court in Truslan v Ku-ring-gai for reasons of judicial comity, on the basis it is founded on similar facts, is not plainly wrong and correctly applied the relevant legal principles in Ligon and Al Maha. Mr Hemmings concludes the Court would take the same approach as Truslan v Ku-ring-gai that the requirement for owner's consent for the land over the proposed easement and any works in the easement is not required. Consideration 1. The requirement in the EPA Act and the EPA Regulation that a development application be made with the consent of the owners of the land is a jurisdictional precondition that needs to be satisfied in order for the consent authority (the Court) to be able to exercise the function of determining the development application: Al Maha at [79]. 2. The owner whose consent to the making of the development application is required is the owner of the land to which the development application relates: cl 49(1) of the EPA Regulation or 'the owner of the land on which the development the subject of the development application is to be carried out": Ligon at [476-477]. 3. As detailed in Al Maha at [91] the land on which the development is to be carried out is determined not only from the address and particulars detailed on the development application form, but also from the documents accompanying the development application as follows: "…The Regulation requires the development application to be accompanied by specified documents, including "a site plan", "a sketch of the development", and "a statement of environmental effects" (in the case of development other than designated development or State significant development) or "an environmental impact statement" (in the case of designated development or State significant development) (cl 2(1)(a),(b),(c),(e) of Sch 1 of the Regulation). The site plan must indicate, amongst other matters, "the location, boundary dimensions, site area and north point of the land" (cl 2(2)(a) of Sch 1 of the Regulation). The sketch must indicate the following matters: (3) The sketch referred to in subclause (1) (b) must indicate the following matters: (a) the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land's boundaries and adjoining development, (b) floor plans of any proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building, (c) elevations and sections showing proposed external finishes and heights of any proposed buildings (other than temporary structures), (c1) elevations and sections showing heights of any proposed temporary structures and the materials of which any such structures are proposed to be made (using the abbreviations set out in clause 7 of this Schedule), (d) proposed finished levels of the land in relation to existing and proposed buildings and roads, (e) proposed parking arrangements, entry and exit points for vehicles, and provision for movement of vehicles within the site (including dimensions where appropriate), (f) proposed landscaping and treatment of the land (indicating plant types and their height and maturity), (g) proposed methods of draining the land, (h) in the case of development to which clause 2A applies, such other matters as any BASIX certificate for the development requires to be included on the sketch, (i) in the case of BASIX optional development—if the development application is accompanied by a BASIX certificate or BASIX certificates (despite there being no obligation under clause 2A for it to be so accompanied), such other matters as any BASIX certificate for the development requires to be included on the sketch." (Clause 2(3) of Sch 1 of the Regulation) (Emphasis added.) 1. The clause of the EPA Regulation referenced in the preceding remains in force for the subject development application as detailed in par [13]. 2. The accompanying documents (namely the 'site plan', 'sketch of the development' and the 'statement of environmental effects') describe the development to be carried out and the land on which the development is to be carried out: Al Maha at [93]. 3. Compliance with the EPA Act and EPA Regulation requirements for documents that form a development application can be satisfied by later provision of information or documents. This includes the provision of owners' consent which can be provided up until the time of determination: Botany Bay City Council v Remath Investments No 6 Pty Ltd Limited ACN 001 804 673 [2000] NSWCA 364 at [5]-[7]. 4. Relevant to the issues in dispute between the parties, Al Maha at [94] includes the following discussion of the circumstance where accompanying documents reveal that part of the development extends to land beyond the subject site: "If the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application: see Owners – Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32]. Conversely, the description of the land on which the development is to be carried out in the accompanying documents (such as the statement of environmental effects) can also confine the land to which the development application relates to be a lesser parcel of land than is described in the development application form: see Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208 at [60]-[63]." 1. It is my reading of Al Maha that in using the term 'accompanying documents' Preston CJ is referencing the documents listed at cl 2(1) of Sch 1 of the EPA Regulation ie. those requirements extracted at [42]. In that way the focus of the enquiry to answer the question 'What are the works for which consent is sought by the development application?' is on those documents. 2. I note that at [16] I have included an extract of the description of the development and the site address from the Development Application Form. Statement of Environmental Effects (SEE) 1. A SEE was prepared and filed with the Respondent in March 2021. No amended SEE was prepared and filed during the progress of the development application. 2. The SEE nominates the site as: Lot 1, 2 and 3 in DP 218874, known as 8 Woonona Avenue Wahroonga. The SEE provides a detailed description of the works for which consent is sought, that description excludes any reference to stormwater works. The SEE reproduces cl 6.5 of LEP 2015 and provides the following assessment against its provisions: "6.5 Stormwater and water sensitive urban design (1) The objective of the clause is to avoid or minimise the adverse impacts of stormwater on the land on which development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems. (2) Before granting consent to development on any land to which this Plan applies, the consent authority must be satisfied: (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. A stormwater concept plan prepared by SYJ Consulting which includes on-site retention and the use of the existing drainage easement benefiting the site. The proposal is considered to be consistent with the provisions of the clause." (Exhibit A) 1. The reference in the SEE is reflective of the initial proposal for stormwater discharge over 1681 and 1683 Pacific Hwy, Wahroonga (SP 21817 and SP 3379) and ultimately public infrastructure in Bundarra Avenue, not the amended application relied on stormwater discharge over 3-13 Bundarra Avenue (SP 83732). 2. The SEE relies on the stormwater concept plans, as part of the 'proposal', to demonstrate compliance with the precondition contained at subcl (2) of cl 6.5 of LEP 2015. Throughout the SEE the term 'proposal' is utilised to describe the development for which consent is sought, for example at Section 3 of the SEE, titled 'Proposed Development' states: "The proposal comprises: - Retention of the existing heritage Warrina building, stone pavement, tennis court gardens and protected trees; - Construction of two new buildings and the adaptive reuse of 'Warrina' to accommodate a total provision of 10 residential dwellings … - A total provision of 23 car parking spaces, including: … - Retention of the existing vehicular access, situated on the north-eastern corner of the site; - An extension to the driveway to provide access to the western basement; and - Provision of a new vehicular access for the south-east building, situated in the south-east corner of the site." (Exhibit A) 1. The terms 'proposal' and 'proposed development' are used interchangeably throughout the SEE to describe the works for which consent is sought, including those works detailed in the stormwater concept plans which form part of the works for which consent is sought. 2. In my view it is fair to conclude that the SEE overtly relies on the Stormwater Management and Sediment Control Plans to establish that the precondition contained at subcl (2) of cl 6.5 of LEP 2015 is met. Further, it does not engage in clarifying or seeking to confine the land to which the development application relates to be a lesser parcel of land than is described in the development application. Site Plan 1. The relevant site plan is that which forms part of the architectural plan set granted leave by the Court on 27 May 2022. The affidavit supporting the motion noted that the amended plans and additional documents had been uploaded to the NSW Planning Portal. 2. The site plan meets the requirements of the EPA Regulation and does not show any works proposed to occur within the neighbouring land (either 3-13 Bundarra Avenue (SP 83732) or 1681 and 1683 Pacific Hwy, Wahroonga (SP 21817 and SP 3379)). The sketch 1. As detailed at [28] 'the sketch' referred to in cl 3 of Sch 1 of the EPA Regulation must indicate, amongst other things the following: … (f) proposed landscaping and treatment of the land (indicating plant types and their height and maturity), (g) proposed methods of draining the land, … 1. As is the case in this matter, often to provide those details the architectural plans are supplemented by technical drawings or landscape design plans. 2. The relevant plans addressing cl 3 (f) of Sch 1 of the EPA Regulation are the updated landscape plans for which leave was also granted by the Court on 27 May 2022. These plans do not show any works proposed to occur within the neighbouring land. However, they do document the location of the underground onsite detention tank adjacent the rear boundary with a note stating: 'Underground OSD tank – refer hydraulic engineers drawing for detail'. (Exhibit B) 3. The relevant plans addressing cl 3 (g) of Sch 1 of the EPA Regulation are the updated Stormwater Management and Sediment Control Plans for which leave was granted at the commencement of the hearing, refer [22 and 23]. Those plans make a number of important notations: * firstly, they nominate the underground OSD tank as requiring an overflow pipe, the flow of which is to be directed to the rear property boundary (common boundary with SP 83732, 3-13 Bundarra Avenue). * secondly, the plans nominate a 300-diameter pipe exiting the OSD tank to a stormwater pit proposed to be located on the northwestern corner of the rear boundary, just inside the subject site. On the plans that pipe is designated with a blue dashed line and an arrow showing the direction of water flow. A second pipe is shown, also of 300-diameter, exiting the proposed pit to its west and travelling into the proposed easement. This pipe is located within the neighbouring property (ie within SP 83732, 3-13 Bundarra Avenue). On the plans the pipe exiting the pit, in the neighbouring property, is designated with the same blue dashed line and an arrow showing the direction of water flow. There is nothing on the plans indicating these works are not proposed to be constructed as part of the development application, or that they are not required as part of the scheme of stormwater management proposed. * the set of Stormwater Management and Sediment Control Plans includes a plan labelled 'Easement Pathway Plan'. Whilst this plan does include a note 'proposed 1.3m wide easement', the notation for the pipe and infrastructure work within the proposed easement includes details of levels, means of construction and rodding points. There is nothing on the plan indicating the work in the easement is not proposed to be constructed as part of the development, or that it is not required as part of the scheme of stormwater management proposed by the engineers. * the set of Stormwater Management and Sediment Control Plans includes a plan labelled 'Inter-allotment Pipe Cross Section' which demonstrates the location of the pipe within the proposed easement in proximity to existing services. * The stormwater design relies on the ability of the subject site to connect to Council's stormwater infrastructure in Bundarra Avenue South, via a pipe along the neighbouring property. Put plainly, without the inter-allotment works (or pipe within the proposed easement) overflow from the OSD tank which traverses into Pit E1 on drawing DO3 would flow uncontrolled into neighbouring land SP 83732, 3-13 Bundarra Avenue. 1. Unlike the decision in Truslan v Ku-ring-gai, with the exception of the submissions of Mr Hemmings, there is nothing in the accompanying documents to the development application which seek to make clear that the development application is confined to only the subject site. Nor do the accompanying documents to the development application make clear that it does not seek consent for the stormwater works in the proposed easement works on the neighbouring land. 2. In fact, the planning experts in the proceedings conclude: "Part A: Facts: … 9. The Experts note that the stormwater works are proposed pursuant to the proposed development. These works include drainage lines and pits; rainwater tanks an underground OSD tank upon the subject site No. 8 Woonona Avenue. The proposal also includes drainage works in a proposed 1.3m wide easement upon the adjoining property at No. 3-13 Bundarra Avenue, Wahroonga." (Exhibit 1) 1. In my view it is plain that the Stormwater Management and Sediment Control Plans relied on by the Applicant demonstrate works on the neighbouring land and is part of 'the sketch' referred to in Sch 1 of the EPA Regulation. It is artificial to say that the stormwater management design is limited to the subject site. To take this approach would result in pit receiving the overflow pipe from the OSD having no means of draining to the Council infrastructure. As detailed at [60] this is not the design envisaged by the Applicant's stormwater engineer. 2. I accept and adopt the submissions of Mr Stafford at [29] and his reasoning as summarised at [30]. Further, when the 'accompanying documents' listed at cl 2(1) of Sch 1 of the EPA Regulation are looked at collectively that the answer to answer the question 'What are the works for which consent is sought by the development application?' is that in addition to the development for which consent is sought on Lots 1, 2, 3 DP 218874, the development application seeks consent for development (stormwater management and drainage works) proposed on the neighbouring land being SP 83732, 3-13 Bundarra Avenue. I am satisfied that SP 83732, 3-13 Bundarra Avenue is firstly, land to which the development application relates and secondly, land on which the development is to be carried out. I find that the consent of the owner of SP 83732, 3-13 Bundarra Avenue is required as it is land on which development is to be carried out and to which the development application relates. 3. At the time of determination of the development application the consent of the owner of the neighbouring land, SP 83732, 3-13 Bundarra Avenue has not been obtained. Owner's consent is a jurisdictional precondition to the exercise of power to grant consent: Al Maha at [174]. Consequently, there is no power to grant consent to the development application and the application must fail. The requirements of cl. 6.5(2) of LEP 2015 are not met 1. Further, to the preceding findings I accept the submissions of Mr Stafford that if, contrary to my findings, the works on SP 83732, 3-13 Bundarra Avenue are found to not be works for which the Applicant seeks consent, I am independently satisfied that the development application fails to satisfy the precondition at subcl (2) of cl 6.5 of LEP 2015. 2. The precondition requires the consent authority, before granting 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. 1. In relation to cl 6.5(2)(c) of LEP 2015, if the development for which consent is sought is determined to be limited to those works on Lots 1, 2, 3 DP 218874 (8 Woonona Avenue), as noted at [60] the works proposed in the development application would result in uncontrolled water flow exiting from Pit E1 over the neighbouring land at times of overflow of the site OSD. I find I cannot be satisfied in those circumstances that the proposed stormwater management system includes all reasonable management actions to avoid any adverse impact, uncontrolled stormwater discharge, on adjoining properties (SP 83732, 3-13 Bundarra Avenue). 2. Further, in relation to cl 6.5(2)(d) of LEP 2015, to the extent that avoidance is not feasible, I find I cannot be satisfied that, in the absence of some proposed management of, or direction of, stormwater exiting the site before ultimately reaching public infrastructure in Bundarra Avenue, that adverse impacts to the adjoining property are minimised or mitigated. On the preceding basis I find that the precondition at cl 6.5(2) of LEP 2015 is not satisfied. 3. Applying the reasoning in Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council [2020] NSWCA 137 at [10, 26, 30-37] I reject the submissions of Mr Hemmings that I can rely on the deferred commencement condition to form the state of satisfaction required by cl 6.5(2) of LEP 2015 as the terms of the clause are referrable to reaching a state of satisfaction 'before granting development consent'. 4. The satisfaction of cl 6.5(2) of LEP 2015 is a jurisdictional precondition to the exercise of power to grant consent. I find that the precondition at cl 6.5(2) of LEP 2015 is not satisfied. Consequently, there is no power to grant consent to the development application and the application must fail. Orders 1. The Court orders that: 1. The appeal is dismissed. 2. Development application DA0095/21 seeking consent for the consolidation of existing lots, conservation and restoration of former group home 'Warrina', reinstatement of tennis court and gardens, the construction of 8 x multi-dwelling houses, basement parking and associated site works at 8 Woonona Avenue, Wahroonga (Lot 1,2 and 3 in DP 218874) is determined by way of refusal. 3. Exhibits are returned with the exception of Exhibits A, B, C, G. ………………………….. D Dickson Commissioner of the Court ********** 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: 17 January 2023