Land and Environment Court New South Wales Medium Neutral Citation: RD Beechworth Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1074 Hearing dates: Conciliation conference on 19 February 2024 Date of orders: 27 February 2024 Decision date: 27 February 2024 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) The Applicant is to pay $15,500 to the Respondent in satisfaction of the costs order made on 6 December 2023 within 28 days of judgment being handed down. (2) The appeal is upheld. (3) Concept Development Application No. 0326/22 is determined by the grant of consent for the Torrens title subdivision of two existing residential allotments into four new allotments, and includes a detailed first stage of works, including: the demolition of existing structures, the construction of new works (including stormwater works, driveways and retaining walls) and tree removal to facilitate the proposed subdivision at 46 and 48 Beechworth Road, Pymble, NSW 2073 (legally known as Lot 3 and Lot 3B of DP 419009), subject to the conditions contained at Annexure A. Catchwords: DEVELOPMENT APPLICATION – concept development application – demolition – subdivision – certain construction works – certain tree removal – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.22, 8.7, Div 4.4 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulations 2021, s 38 Ku-ring-gai Local Environmental Plan 2015, cll 2.3, 2.7, 5.10, 6.3, 6.5 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.6, Pt 2.3 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Category: Principal judgment Parties: RD Beechworth Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: A Rhodes (Solicitor) (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2023/103714 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal brought by the applicant under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Ku-ring-gai Council (Council) of a development application referenced as 0326/22. Concept development application 1. The development application is lodged pursuant to Div 4.4 of the EPA Act and, accordingly, comprises a concept development application (CDA). The CDA, as amended, seeks development consent for the Torrens title subdivision of two existing residential allotments into four new allotments, and includes a detailed first stage of works, including: the demolition of existing structures, the construction of new works (including stormwater works, driveways and retaining walls) and tree removal to facilitate the proposed subdivision at 46 and 48 Beechworth Road, Pymble, NSW 2073, legally known as Lot 3 and Lot 3B of DP 419009 (site). Concept development applications - statutory outline 1. Section 4.22 of the EPA Act provides as follows: 4.22 Concept development applications (1) For the purposes of this Act, a concept development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications. (2) In the case of a staged development, the application may set out detailed proposals for the first stage of development. (3) A development application is not to be treated as a concept development application unless the applicant requests it to be treated as a concept development application. (4) If consent is granted on the determination of a concept development application, the consent does not authorise the carrying out of development on any part of the site concerned unless— (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the concept development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. The terms of a consent granted on the determination of a concept development application are to reflect the operation of this subsection. (5) The consent authority, when considering under section 4.15 the likely impact of the development the subject of a concept development application, need only consider the likely impact of the concept proposals (and any first stage of development included in the application) and does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications. 1. In this instance, the CDA seeks consent for a concept proposal for the site (for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications: s 4.22(1)). But in addition the CDA sets out detailed proposals for the first stage of development pursuant to s 4.22(2) and as such seeks the grant of consent for the first stage of development mindful of s 4.22(4)(b). Notation of amendment 1. The applicant has made an application to amend the CDA which was originally filed with this appeal. The application to amend has been approved by Council pursuant to s 38 of the Environmental Planning and Assessment Regulations 2021. The CDA as originally filed has been amended to comprise the documents, listed below: Architectural Plans prepared by Giles Tribe Architects Plan Name Plan No. Rev Dated Detail Survey Plan Proposed Subdivision Plan 008 05 20 November 2023 Proposed Footprint 009 05 20 November 2023 Proposed Footprint – With Biodiversity 010 05 20 November 2023 Tree Removal Plan 011 04 20 November 2023 Biodiversity Overlay with Existing Footprint 012 03 20 August 2023 Calculation Sheet for No.48 013 04 20 November 2023 Demolition Plan 014 03 20 August 2023 Demolition Plan with Trees to be Removed 015 04 20 November 2023 Environmental Site Management Plan 016 01 20 November 2023 Environmental Site Management Plan – Construction 017 02 20 November 2023 Environmental Site Management Plan – Tree Management 018 02 20 November 2023 Stormwater Concept Design Plans prepared by JCO Consultants Plan Name Plan No. Rev Dated Coversheet DA-SW100 7 13 September 2023 Site Plan DA-SW200 7 13 September 2023 Absorption Trench and Rainwater Tank Details DA-SW402 7 13 September 2023 Erosion and Sediment Control Plan & Details DA-SW600 7 13 September 2023 Civil Engineering Plans prepared by JCO Consultants Plan Name Plan No. Rev Dated Coversheet DA-C100 4 13 September 2023 General Notes, Specifications and Legends DA-C101 4 13 September 2023 General Arrangement Plan – Sheet 01 DA-C200 4 13 September 2023 General Arrangement Plan – Sheet 02 DA-C201 4 13 September 2023 Driveway Longitudinal Sections – Sheet 01 DA-C500 4 13 September 2023 Driveway Longitudinal Sections – Sheet 02 DA-C501 4 13 September 2023 Internal Driveway Longitudinal Sections DA-C600 4 13 September 2023 Details Sheet DA-C601 4 13 September 2023 Cut and Fill Plan DA-C602 4 13 September 2023 Turning Path Plan – Sheet 01 DA-C700 4 13 September 2023 Turning Path Plan – Sheet 02 DA-C701 4 13 September 2023 Services Plans prepared by Perspective Group Pty Ltd Plan Name Plan No. Rev Dated Hydraulic Services Sewer Site Plan H102 E 13 September 2023 Electrical Services Site Plan – Electrical SKE-01 D 13 September 2023 Hydraulic Services water Subdivision Layout H101 D 13 September 2023 Document(s) Dated Schedule of Amendments prepared by Texco Design Updated Statement of Environmental Effects prepared by Mecone 21 November 2023 Appendix A - Statement of Environmental Effects (DCP Assessment) prepared by Mecone Survey Plans prepared by Innovative Surveying Associates 21 July 2023 Arboricultural Impact Appraisal and Method Statement – Revised prepared by EziGrow 15 September 2023 Arboricultural Assessment (Driveway Plan) prepared by EziGrow 11 September 2023 Preliminary Construction Traffic Management Plan prepared by Traffix 23 November 2023 Geotechnical Report (Absorption System Permeability Test Assessment) prepared by Stantec 13 September 2023 Subdivision Plans and draft 88B Instrument (Surveyor's Ref. 311012-1) 12 August 2023 Ecological Assessment Report prepared by Travers Bushfire & Ecology 18 December 2023 Waste Management Plan 15 July 2023 Owners Consent - Planning Certificate 30 November 2021 46 and 48 Beechworth Road, Pymble 14 November 2021 Geotechnical Report prepared by Stantec 25 January 2022 Cost Summary Report prepared by Bryan Design 1 June 2022 Title Search for Lot 3 and 3B of DP 419009 1. In addition to the above, Council has also agreed to a further amendment to include an updated Subdivision Plan and draft 88B Instrument (Surveyor's Ref. 311012-1) which was filed with the Court on 16 February 2024 which supersedes the material dated 12 August 2023 as referenced above. Conciliation and agreement between the parties 1. Following exchanges between the parties, the parties made a request to the Court for the matter to be listed for a conciliation under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). A listing was made for a conciliation conference on 19 February 2024, and I was appointed to preside. 2. At the conciliation conference, the parties outlined their agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. 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 involved the Court upholding the appeal and granting development consent to the concept development application, under s 4.16(1) of the EPA Act, subject to conditions. 3. Before this function can be exercised there are jurisdictional prerequisites that must be satisfied. The parties identified the jurisdictional prerequisites of relevance in these proceedings in a written submission provided to the Court on 16 February 2024, and in oral submissions at the conciliation conference. 4. After consideration of the parties' submissions, and on my evaluation otherwise, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. The jurisdictional particulars are outlined below. Whether the grant of consent available with proper exercise of the Court's functions Ku-ring-gai Local Environmental Plan 2015 (KLEP) 1. The site is zoned R2 – Low Density Residential. It is clear from the parties' jurisdictional statement that consideration has been given to the objectives of Zone R2 as required by cl 2.3(2) of the LEP. I accept the advice of the parties that the proposal is permissible with consent in the zone under cl 2.3. Demolition is permissible under cl 2.7. 2. The parties' jurisdictional statement outlines how the proposal does not breach any development standard under KLEP. 3. I note that the site is not located within a Heritage Conservation Area and does not contain heritage items. Clause 5.10, relating to heritage conservation, therefore does not apply to the proposal. 4. As a small area in the northeast part of the site is mapped in KLEP's Terrestrial Biodiversity map, cl 6.3 applies. Clause 6.3, relating to biodiversity protection, includes matters for consideration (at subcl 6.3(3)) and requirements for satisfaction in regard to certain matters (at subcl 6.3(4)). The parties indicate that consideration has been given to the matters listed and that they are satisfied, relevantly, with the requirements. While the parties' assessment was not necessarily limited to this, the parties referred me to the Statement of Environmental Effects (SEE) accompanying the amendments to the CDA (prepared by Mecone and dated November 2023). I have reviewed the relevant sections of the SEE and note the reasoning behind its conclusions on this issue. Having regard to all of the material before me I am satisfied in regard to each of the tests at subcl 6.3(4). 5. Clause 6.5, relating to stormwater and water sensitive urban design (WSUD), applies. Subclause 6.5(2) includes requirements for satisfaction in regard to certain matters. The parties indicate their satisfaction in regard to the relevant matters, having regard to the Stormwater Concept Design Plans and Civil Engineering Plans prepared by JCO Consultants dated 13 September 2023, which accompanied the amendments to the CDA, and the SEE. It is noteworthy that the amended proposal accommodates nominated WSUD principles as a consequence of agreed amendments to a previous pump-out stormwater solution. I am satisfied in regard to the relevant provisions of subcl 6.5(2). State Environmental Planning Policy (Resilience and Hazards) 2021 1. The parties advise that the proposal is on land which has historically been used for residential purposes and is unlikely to contain any contamination. I accept the advice of the parties and agree that no further action is required in regard to s 4.6(1). State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) 1. Section 2.6 in Ch 2 provides that a person must not clear vegetation in a non-rural area of the State to which Pt 2.3 applies without the authority conferred by a permit granted by the council under that Part. The parties agree that removal of the proposed 16 trees is appropriate, and the relevant provisions of the Biodiversity and Conservation SEPP are satisfied. Other considerations 1. I am mindful of s 4.15(1)(d) of the EPA Act and submissions from members of the public. In this instance, the parties have explained that the amendments to the proposal, which included substantive responses to concerns about tree loss and stormwater management, resulted in a substantial reduction in objecting submissions. It is clear to me that the requirement to give consideration to objecting submissions has occurred. Conclusion 1. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. Orders 1. The Court orders that: 1. The Applicant is to pay $15,500 to the Respondent in satisfaction of the costs order made on 6 December 2023 within 28 days of judgment being handed down. 2. The appeal is upheld. 3. Concept Development Application No. 0326/22 is determined by the grant of consent for the Torrens title subdivision of two existing residential allotments into four new allotments, and includes a detailed first stage of works, including: the demolition of existing structures, the construction of new works (including stormwater works, driveways and retaining walls) and tree removal to facilitate the proposed subdivision at 46 and 48 Beechworth Road, Pymble, NSW 2073 (legally known as Lot 3 and Lot 3B of DP 419009), subject to the conditions contained at Annexure A. P Walsh Commissioner of the Court Annexure A 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: 27 February 2024