Land and Environment Court New South Wales Medium Neutral Citation: Bellevue Projects Pty Ltd v Ku-ring-gai Council [2024] NSWLEC 1557 Hearing dates: Conciliation conference on 6 September 2024 Date of orders: 11 September 2024 Decision date: 11 September 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) The Development Application DA0236/23 is determined by grant of consent for development at 35 Water Street, Wahroonga known as Lot 100 DP 1278904 for the Torrens title subdivision of the existing lot into 4 lots, being a single Torrens title lot containing the original Smeaton Grange dwelling and stables, and subdivision under the Community Land Development Act 2021 Neighbourhood Scheme for proposed Lots 3-5, construction of a new dwelling on proposed Lot 4, construction of a new dwelling and pool on proposed Lot 5, restoration and conversion of stables on Lot 1 to secondary dwelling, vegetation management works on proposed Lot 3 and various heritage conservation works on proposed Lot 4 and proposed Lot 1, subject to the conditions contained at Annexure A. Catchwords: APPEAL – development application – conciliation conference – agreement reached – orders made Legislation Cited: Biodiversity Conservation Act 2016, ss 7.7, 7.13 Community Land Development Act 2021 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 Biodiversity Conservation Regulation 2017, cl 7.3 Environmental Planning and Assessment Regulation 2021, ss 27, 37, 38 Ku-ring-gai Local Environmental Plan 2015, cll 2.6, 4.1, 4.1AA, 5.4, 5.10, 6.1, 6.2, 6.3, 6.5, Sch 5 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7, 6.9 Category: Principal judgment Parties: Bellevue Projects Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: J Cole (Solicitor) (Applicant) N Ferguson (Solicitor) (Respondent) Solicitors: Messenger Cole Solicitors (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2023/430325 Publication restriction: Nil Judgment 1. COMMISSIONER: This appeal concerns a development application for the proposed development of 35 Water Street, Wahroonga. A development application was lodged with the Council on 28 June 2023. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 September 2024. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. 4. The final agreement was subsequently provided on the same date, following the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021). The proposed development, as amended, includes a 4-lot Torrens title subdivision, with three of those lots (Lots 3 to 5) to become a Community title lot with a Neighbourhood Scheme under the Community Land Development Act 2021. Proposed Lot 1 remains a Torrens title lot and contains the original Smeaton Grange dwelling and stables, with the proposed development also seeking the restoration and conversion of the stables to a secondary dwelling. The proposed development also seeks construction of a new dwelling on proposed Lot 4, construction of a new dwelling and pool on proposed Lot 5, vegetation management works on proposed Lot 3 and heritage conservation works on proposed Lots 1 and 4. The amendments included a change to the Neighbourhood Scheme, removal of a driveway to protect the Blue Gum High Forest (BGHF), reduction in the size of building footprints, a new Biodiversity Development Assessment Report, and a detailed Heritage Impact Statement and Conservation Works Schedule. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement, dated 6 September 2024, is supported by a Statement of Agreed Jurisdictional Prerequisites. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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 formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: 1. The subdivision of land is permissible with development consent pursuant to cl 2.6 of Ku-ring-gai Local Environmental Plan 2015 (KLEP). 2. The site is zoned C4 Environmental Living under the KLEP, and development for the purposes of dwelling houses and secondary dwellings are permissible with development consent in the zone. 3. The proposed Torrens title subdivision meets the development standards for the minimum subdivision lot size in cl 4.1(3) and for the minimum width along a line 12m from the street frontage, in cl 4.1(3A) of the KLEP. 4. The lots created by the proposed Neighbourhood Scheme Plan meet the minimum lot size development standard in cl 4.1AA of the KLEP. 5. The proposed dwellings meet the development standards for height and floor space ratio (FSR), and the existing buildings on Lot 1 will also comply with the FSR development standard. 6. The proposed secondary dwelling on Lot 1 meets the requirement of cl 5.4(9) of the KLEP in that the total floor area of the secondary dwelling does not exceed 25% of the total floor area of the principal dwelling. 7. The site is a locally listed heritage item under Sch 5 of the KLEP, known as "Rippon Grange" and including the house, grounds and associated buildings. The site is also located within the Wahroonga Heritage Conservation Area. The effect of the development on the heritage significance of the heritage item and the heritage conservation area has been considered, as required by cl 5.10(4) of the KLEP. Based on the Conservation Works Schedule and the Heritage Impact Statement, each prepared by Architectural Projects dated July 2024, I am satisfied that the proposed development does not unacceptably impact the heritage significance of the heritage items. 8. The site is mapped as having Class 5 Acid Sulfate Soils but is not within 500m of adjacent land mapped as Class 1-4, such that no further assessment is required under cl 6.1 of the KLEP. 9. The development application includes earthworks for the driveway and preparatory works for the dwellings. Based on the Civil Engineering Plans prepared by Deboke Engineering Consultants dated 13 August 2024, I have considered the matters set out in cl 6.2(3) of the KLEP. 10. The Site is located on land defined as "Biodiversity" on the Terrestrial Biodiversity Map under the KLEP, such that cl 6.3 of the KLEP applies. Based on the Biodiversity Development Assessment Report dated July 2024 (BDAR), the Vegetation Management Plan dated 19 July 2024 (VMP) and the Arboricultural Impact Assessment Report dated July 2024, I have considered the matters in cl 6.3(3) of the KLEP and I am satisfied of the matters in cl 6.3(4). 11. Based on the stormwater concept design in the Civil Engineering Plans prepared by Deboke Engineering Consultants dated 13 August 2024, I am satisfied of the matters in cl 6.5(2) of the KLEP concerning stormwater and water sensitive urban design. 12. The proposed development includes impacts to native vegetation that is mapped on the Biodiversity Map pursuant to cl 7.3 of the Biodiversity Conservation Regulation 2017 (BC Regulation). Consistent with s 7.7 of the Biodiversity Conservation Act 2016 (the BC Act), the development application includes the BDAR. The BDAR concludes that the proposal will retain 98% of the BGHF trees and will directly impact 183m2 of BGHF, that the proposed VMP will maintain and protect the retained BGHF in Lots 4 and 5, and that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act. 13. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. As the site has a history of use for the purposes of residential premises, it is unlikely to be contaminated. 14. The site is located in the Hawkesbury-Nepean Catchment, and therefore Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies. Based on the location of the site, the VMP and the Civil Engineering Plans prepared by Deboke Engineering Consultants dated 13 August 2024, I am satisfied of the matters in ss 6.6(2), 6.7(2) and 6.9(2) of the SEPP BC. 15. Consistent with the requirements of s 27 of the EPA Regulation 2021, the development application is accompanied by BASIX certificates dated 9 August 2024 for the two dwellings and the second dwelling. 16. The development application was notified between 11 July 2023 and 11 August 2023, and again between 15 August 2024 and 29 August 2024. Four submissions were received in the first notification period, and two submissions were received in the later notification period. I have considered the issues raised in those submissions, which are summarised in the Statement of Facts and Contentions and the Statement of Agreed Jurisdictional Prerequisites. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 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 assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court notes that Ku-ring-gai Council, as the relevant consent authority, approves under s 38 of the Environmental Planning and Assessment Regulation 2021 the Applicant amending Development Application no. DA0236/23 to include the following plans and documents: Plan Ref Date Description Issue Architectural Plans prepared by Habitation Design and Interiors 000 12.08.24 Site Location Plan D 001 12.08.24 Draft Subdivision D 002 12.08.24 Site Plan D 003 12.08.24 Calculation Sheet D 004 12.08.24 Existing Main House Floor Plans D 005 12.08.24 Fence Details D D100 12.08.24 Former Stables Basix D D101 12.08.24 Former Stables Ground Floor Plan D D102 12.08.24 Former Stables Attic Roof Plan D D103 12.08.24 Former Stables Roof Plan D D104 12.08.24 Former Stables Elevations D D105 12.08.24 Former Stables Elevations D D106 12.08.24 Former Stables Section D D107 12.08.24 Former Stables Materials and Finishes D D108 12.08.24 Former Stables Demolition Plan D D400 12.08.24 Lot 4 BASIX D D401 12.08.24 Lot 4 Ground Floor Plan D D402 12.08.24 Lot 4 First Floor Plan D D403 12.08.24 Lot 4 Roof Plan D D404 12.08.24 Lot 4 Elevations D D405 12.08.24 Lot 4 Elevations D D406 12.08.24 Lot 4 Section D D407 12.08.24 Lot 4 Materials and Finishes D D408 12.08.24 Lot 4 Shadow Diagrams D D500 12.08.24 BASIX D D501 12.08.24 Lot 5 Ground Floor D D502 12.08.24 Lot 5 First Floor D D503 12.08.24 Lot 5 Roof Plan D D504 12.08.24 Lot 5 Elevations D D505 12.08.24 Lot 5 Elevations D D506 12.08.24 Lot 5 Sections D D507 12.08.24 Lot 5 Materials and Finishes D D508 12.08.24 Lot 5 Shadow Diagrams D SD01 12.08.24 Subdivision Plan 1 D SD02 12.08.24 Subdivision Plan 2 D Landscape Plans prepared by Paul Scrivener 1/8 12.08.24 Landscape site plan Lots 4 & 5 O 2/8 12.08.24 Lot 4 Detail plan – Area A O 3/8 12.08.24 Lot 4 Planting plan – Area A O 4/8 12.08.24 Lot 4 Roof plan O 5/8 12.08.24 Lot 5 Detail plan – Area B O 6/8 12.08.24 Planting plan – Area B O 7/8 12.08.24 Lot 5 First floor and Roof plan O 8/8 12.08.24 Details & Notes O Stormwater Plans prepared by Deboke Engineering Consultants S101 13.08.24 Specifications Sheet 05 S110 13.08.24 Site Plan 05 S111 13.08.24 General Arrangement Plan 05 S200 13.08.24 Lot 4 Ground Floor Plan 05 S210 13.08.24 Lot 5 Ground Floor Plan 05 S220 13.08.24 Lot 1 Ground Floor Plan 1 of 2 05 S221 13.08.24 Lot 1 Ground Floor Plan 2 of 2 05 S222 13.08.24 Details Sheet 1 of 4 05 S223 13.08.24 Details Sheet 2 of 4 05 S224 13.08.24 Details Sheet 3 of 4 05 S225 13.08.24 Details Sheet 4 of 4 05 S300 13.08.24 Environment Site Management Plan 05 S301 13.08.24 Environment Site Management Details 05 Civil Plans prepared by Deboke Engineering Consultants S101 12.06.24 Specifications Sheet 03 S200 12.06.24 Lot 05 General Arrangement Plan 03 S201 12.06.24 Lot 05 General Arrangement Plan 03 S300 12.06.24 Grading Plan 1 of 2 03 S301 12.06.24 Grading Plan 2 of 2 03 S302 12.06.24 Slope Analysis Plan 1 of 2 03 S303 12.06.24 Slope Analysis Plan 2 of 2 03 S400 12.06.24 Bulk Earthworks Plan 1 of 2 03 S401 12.06.24 Bulk Earthworks Plan 2 of 2 03 S500 12.06.24 Driveway Long Sections 1 of 3 03 S501 12.06.24 Driveway Long Sections 2 of 3 03 S502 12.06.24 Driveway Long Sections 3 of 3 03 S600 12.06.24 Vehicle Swept Path 1 of 6 03 S601 12.06.24 Vehicle Swept Path 2 of 6 03 S602 12.06.24 Vehicle Swept Path 3 of 6 03 S603 12.06.24 Vehicle Swept Path 4 of 6 03 S604 12.06.24 Vehicle Swept Path 5 of 6 03 S605 12.06.24 Vehicle Swept Path 6 of 6 03 S700 12.06.24 Council Standard Drawing 03 S701 12.06.24 Council Standard Drawing 03 BASIX Certificate No. 1395505S_04 prepared by Opus dated 9 August 2024 BASIX Certificate No. 1395043S_04 prepared by Opus dated 9 August 2024 BASIX Certificate No. 1395044S_04 prepared by Opus dated 9 August 2024 Town Planning Statement prepared by Andrew Martin Planning dated 23 July 2024 Vegetation Management Plan Prepared by Keystone Ecological dated 19 July 2024 Conservation works schedule prepared by Architectural Projects dated July 2024 Heritage Impact Statement prepared by Architectural Projects dated July 2024 Arboricultural Impact Assessment Report prepared by Earthscape Horticultural Services dated July 2024 Advice on Conservation of Garden Folly Stone Wall prepared by Traditional Stone dated 24 July 2024 Biodiversity Development Assessment Report prepared by Keystone Ecological dated July 2024 1. The Court orders that: 1. The appeal is upheld; 2. Development Application DA0236/23 is determined by grant of consent for development at 35 Water Street, Wahroonga known as Lot 100 DP 1278904 for the Torrens title subdivision of the existing lot into 4 lots, being a single Torrens title lot containing the original Smeaton Grange dwelling and stables, and subdivision under the Community Land Development Act 2021 Neighbourhood Scheme for proposed Lots 3-5, construction of a new dwelling on proposed Lot 4, construction of a new dwelling and pool on proposed Lot 5, restoration and conversion of stables on Lot 1 to secondary dwelling, vegetation management works on proposed Lot 3 and various heritage conservation works on proposed Lot 4 and proposed Lot 1, subject to the conditions contained at Annexure A. J Gray Commissioner of the Court 430325.23 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: 11 September 2024