Leda Holdings Pty Ltd v Northern Beaches Council - [2022] NSWLEC 1179 - NSWLEC 2022 case summary — Zoe

NSWNSWLEC

Leda Holdings Pty Ltd v Northern Beaches Council

[2022] NSWLEC 1179

Land and Environment Court (NSW)|2022-03-28

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-03-28

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Judgment

COMMISSIONER: This appeal concerns a development application (DA) by Leda Holdings Pty Ltd (Applicant) for the demolition of existing structures and construction of a mixed use building containing 9 self-storage units and 27 industrial units (including carparking and landscaping works) (Proposed Development).
The Proposed Development will be carried out on the land described as Lot 100 DP 817162 known as 2 Cross St Brookvale (Site). The Site is located on the north-western corner of Green St and Cross St. It is generally flat and in a low-lying area affected by flooding. Adjoining and adjacent development to the east, west and north of the Site comprises a range of industrial and warehouse facilities (including storage units of the type proposed by the DA). The Warringah Mall is located to the south west of the Site.
The DA was made to the Council on 10 March 2021 and was refused by the Northern Beaches Local Planning Panel on 6 October 2021. The Applicant appeals from that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court's jurisdiction.
In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.
The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 15 March 2022. I presided over the conciliation conference.
Prior to the conciliation conference, the parties held without prejudice discussions as the result of which they reached an "in principle" agreement which resolved all of the Council's contentions. This led to the parties entering into an agreement at the conciliation conference pursuant to s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 28 March 2022 and is supported by a Jurisdictional Statement provided by the parties on the same date. The agreement involves the Court approving the DA, as amended with the agreement of the Council as consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), subject to conditions of consent.

[8]

Flood planning 1. At the time the application was lodged (on 10 March 2021), cl 6.3 (flood planning) of the LEP applied to the Site as the Site was identified as being within the 'flood planning area' on the flood planning map referred to in that clause. On 14 July 2021, State Environmental Planning Policy Amendment (Flood Planning) 2021 (Flood SEPP) commenced and repealed cl 6.3 of the LEP. On the same date, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (Flood Order) commenced. 2. Clause 8(1) of the Standard Instrument (Local Environmental Plans) Order 2006 contains the following savings provision: (1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order. 1. As a consequence, the new cl 5.21 of the LEP does not apply to the DA, which was lodged but not determined before 14 July 2021. 2. While the Flood SEPP repealed cl 6.3 of the LEP on 14 July 2021, it did not include a savings provision with respect to development applications lodged before 14 July 2021 and not determined by that date. 3. Having regard to the above, neither the provisions of the former, and now repealed, cl 6.3 of the LEP nor the provisions of the new cl 5.21, intended to replace cl 6.3, apply to the determination of the DA. In this regard I note that Commissioner Bish came to the same conclusion in IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 (at [28] - [32]) as did Commissioner Chilcott in Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649) (at [48]) and Acting Commissioner Morris in Gardiner v Central Coast Council [2022] NSWLEC 1007 (at [24]). 4. Notwithstanding this conclusion, as noted earlier in this judgment the Site is located in an area that is subject to flooding. Section 4.15(1)(c) of the EPA Act requires the consent authority to consider the suitability of the Site for the Proposed Development. A revised Flood Management Report (Flood Report) has been prepared by Tonkin Consulting to accompany the DA which considers the impacts of flooding on the Site and which makes recommendations to address those impacts. The parties have agreed, and I accept, that those recommendations have been incorporated into the stormwater management design for the Proposed Development, the amended engineering plans prepared by Tonkin dated 1 March 2022, as well as in condition 11 of the proposed conditions of consent. Having regard to those matters, I am satisfied that the flood impacts on the Site do not make the Site unsuitable for the Proposed Development.

[13]

State Environmental Planning Policy (Biodiversity and Conservation) 2021 1. The DA seeks consent for the removal of eight (8) trees, in accordance with the provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). The parties agree, and I accept, that this is below the threshold for biodiversity offsets in s 7.3 of the Biodiversity Conservation Act 2016, as per cl 2.6 of the Biodiversity SEPP. I also accept the parties' joint position that the Site is not identified as land that is included in the Biodiversity Value Land Map found within the LEP.

As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The Court notes that: 1. The Council as the relevant consent authority has agreed, under clause 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the DA with the plans, drawings and documents listed in Condition 1 of the Conditions of Consent in Annexure A. 2. The Applicant uploaded the amended development application on the NSW planning portal on 11 March 2022. 3. The Applicant filed the amended development application with the Court on 15 March 2022.
The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away as a result of the amendment of Development Application DA2021/0139, in the amount of $5,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The Applicant's written request prepared by Gyde Consulting Pty Ltd, dated 2 February 2022 pursuant to cl 4.6 of the Warringah Local Environmental Plan 2011, seeking to vary the height of buildings development standard in clause 4.3 of that plan, is upheld. 3. The Appeal is upheld. 4. Development consent is granted to Development Application DA2021/0139 for demolition works and the construction of a mixed-use building accommodating 9 self-storage units and 27 industrial units, including carparking and landscaping works at 2 Cross Street, Brookvale subject to the conditions in Annexure A.

Leda Holdings Pty Ltd v Northern Beaches Council

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (3)

Cited By (1)