Truslan Dumaresq Development Pty Ltd v Ku-ring-gai Council

Decision

1. For the reasons given below, the appeal is upheld, and development consent is granted to the DA subject to the Council's conditions of consent in Annexure A.

The facts

1. The site is located on the northern side of Beaconsfield Parade within the R3 Medium Density Residential zone under the Ku-ring-gai Local Environmental Plan 2015 (LEP). The land is irregular in shape, with a 36.58m wide frontage to Beaconsfield Parade, a maximum depth of 113.4m and an area of 3,303m2.
2. The land slopes down from the street frontage to the rear, with a maximum level difference of approximately 11.7m across the property. And, while the development is permissible, it is apparent from the evidence before me that the Council has, for some time, expressed its concerns about the various stormwater management systems proposed by the application for this development.
3. Relevantly, cl 6.5 of the LEP requires the consent authority (now the Court) to be satisfied about stormwater disposal before the grant of development consent. The clause provides as follows: 6.5 Stormwater and water sensitive urban design (1) The objective of this clause is to avoid or minimise the adverse impacts of urban stormwater on the land on which development is to be carried out, adjoining properties, native bushland, waterways and groundwater systems. (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. (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.
4. Additionally, the Ku-ring-gai Development Control Plan (DCP) in Part 24R.5 requires for low level properties, that an inter-allotment easement for drainage is to be utilised to legally provide a controlled gravity drainage solution as far as the nearest available public drainage system.
5. The nearest public drainage system in this case is the Council's stormwater pit which is located on neighbouring land to the north and east of the site.
6. The applicant's stormwater plans prepared by Greenview Consulting (C01 Rev 8, C02 Rev 7, C03 Rev 7 and C04 Rev 11) propose a connection to that stormwater pit on the rear property via an easement to drain water through 18-20 Bent Street.
7. The applicant submits, as stated in the Supplementary Statement of Environmental Effects, and the Planning Advice on Future Drainage Works prepared by Tina Christy, town planner, of Gyde dated 6 August 2021, that the current DA does not seek consent for the proposed stormwater drainage works over 18-20 Bent Street. Instead, the applicant explained that it intends to lodge a future development application for those works after the grant of this DA. In short, it seeks development consent on the basis of a deferred commencement condition that provides that the consent will not operate until a stormwater drainage easement over 18-20 Bent Street is obtained and requires a development application to be lodged for the easement works.
8. The chronology in the ASOFC demonstrates that there has been extensive discussions between the Council and the applicant that have resulted in the amendment of the plans on at least four occasions - three of those occasions were granted by the Registrar before the day of the hearing on 17 August 2021, 15 December 2021, 2 February 2022; and the fourth occasion occurred on the day of the hearing before me as noted above. The hearing dates have also been vacated on a least one occasion.
9. However, the amendments did not stop there. At the conclusion of the evidence, the applicant identified that the terms of its deferred commencement condition were inaccurate in that they referred to the wrong engineering plans. It sought the Court's leave to revise the terms of its proposed deferred commencement condition. Over the Council's objection, I granted the applicant opportunity to file and serve a further version of the condition. I also allowed the Council an opportunity to respond by close of business the following day.
10. As it happened, the applicant did submit a further draft deferred commencement condition and so did the Council. They endorse the same engineering plans, and each require the lodgement of a DA for the easement works in accordance with this consent.
11. The applicant's draft deferred commencement condition reads as follows: "SCHEDULE A: Deferred Commencement - Terms to be satisfied prior to the consent becoming operable Pursuant to s4.16(3) Environmental Planning and Assessment Act the following Deferred Commencement conditions must be complied with to the satisfaction of Council within 36 months of the date of the Notice of Determination. This development consent will not operate until the Applicant satisfies Council as to the matters specified in this condition. 1. Stormwater Drainage A. Documentary evidence shall be submitted to Council, demonstrating that the property benefits from a registered drainage easement or easements over all downstream properties as far as the public drainage system. The easement is to be in a location consistent with that shown in Stormwater Discharge Plan prepared by Stronghold, Reference SH20426, sheets ST01 and ST02, Revision C, dated 6 August 2021. This Development Consent will not operate until the documentary evidence has been submitted to and approved by Council's Development Engineer. This documentation must include evidence that the easement has been registered with NSW Land Registry Services. Reason: To ensure that provision is made for stormwater drainage from the site in a proper manner that protects adjoining properties. B. Development Consent for Stormwater Works on Adjoining Properties a. The person with the benefit of the consent must obtain Development Consent for drainage works to be carried out within the Easement to Drain Water. This Development Consent will not operate until the documentary evidence in A and B above have been submitted to and approved by Council. Upon written receipt from the Council that the Deferred Commencement terms in Schedule A are satisfied, the Development Consent becomes operable, and the conditions in Schedule B will apply."
12. The Council's alternate version, which in my opinion is clearer and is to be preferred, provides as follows: "SCHEDULE A: Deferred Commencement - Terms to be satisfied prior to the consent becoming operable Pursuant to s4.16(3) Environmental Planning and Assessment Act the following Deferred Commencement conditions must be complied with to the satisfaction of Council within 36 months of the date of the Notice of Determination. This development consent will not operate until the Applicant satisfies Council as to the matters specified in this condition. 1. Stormwater Drainage A. Documentary evidence shall be submitted to Council, demonstrating that the property benefits from a registered drainage easement or easements over all downstream properties as far as the public drainage system. The easement is to be in a location consistent with that shown in Stormwater Discharge Plan prepared by Stronghold, Reference SH20426, sheets ST01 and ST02, Revision C, dated 6 August 2021. This Development Consent will not operate until the documentary evidence has been submitted to and approved by Council's Development Engineer. This documentation must include evidence that the easement has been registered with NSW Land Registry Services. Reason: To ensure that provision is made for stormwater drainage from the site in a proper manner that protects adjoining properties. B. Development Consent for Stormwater Works on Adjoining Properties a. The applicant must obtain Development Consent for drainage works to be carried out within the Easement to Drain Water. b. Nothing in this development consent implies approval for the separate drainage works Development Application. The stormwater drainage works referred to in A above must be undertaken in accordance with the conditions of consent of the Development Application for those works. This Development Consent will not operate until the documentary evidence in A and B above have been submitted to and approved by Council. Upon written receipt from the Council that the Deferred Commencement terms in Schedule A are satisfied, the Development Consent becomes operable, and the conditions in Schedule B will apply."

Consideration

1. As the applicant identified in its final submissions to the Court, the giving of owner's consent to the making of a development application with respect to the owner's land for the purposes of cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) is an essential prerequisite to, and part of the process of, a consent authority's determination of the application. On appeal, the Court cannot uphold the appeal and grant development consent to the development application unless the owner's consent to the making of the application has been obtained: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 (Al Maha) at [95] (per Preston CJ of the LEC); Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34(c) and (e)].
2. However, the applicant submits that the consent of the landowners at 18-20 Bent Street is not required here in this instance because the current DA does not seek approval for the easement works on that land. It refers to the comments of Preston CJ of the LEC as stated in Al Maha at [94]: "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]."
3. It is submitted that the Supplementary Statement of Environmental Effects, and the Planning Advice on Future Drainage Works prepared by the applicant's planner Tina Christy, makes clear that the DA is confined to only the subject site and does not seek consent for the easement works on 18-20 Bent Street.
4. Accepting that I am required to consider the "likely impacts of the development, including environmental impacts on both the natural and built environment …" under s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act) including off site impacts that have a real and sufficient link with the proposed development, the applicant submits there is evidence before me to allow such assessment.
5. In particular, the applicant refers me to the 1-page supplementary EIS prepared by its planner which addresses the likely impacts of the works required to install the proposed easement on 18-20 Bent Street. The supplementary report assesses the easement works which are as follows:

• 900 x 900 mm pit to be located at the rear north-western boundary of the site,
• construction of a 300 mm diameter pipe from that pit, across the rear boundary, to connect to the existing 900 x 900 mm pit in the rear of 18-20 Bent Street,
• the pipe will be a length of approximately 3.8 m from the common boundary, and
• the pipe will be approximately 0.5-1 m below ground level, with the construction methodology adopting a trench between the two pits.

1. The report refers to a portion of the area of the proposed works on 18-20 Bent Street having newly landscaped ground cover and shrubs and a boundary fence constructed on or about the boundary line and includes a photograph at Fig. 2. Ms Christy then states that the pipe is to be constructed below ground and will go under the existing boundary fence. While she acknowledges that some newly planted shrubs may need to be removed to allow for installation of the pipe, she offers the view that they can be replaced. Ms Christy also identifies that there are no significant trees within the proximity of the proposed location of the pipe. Ultimately, Ms Christy relies on the original SEE dated November 2019 and the s8.2 Review of Determination Planning Report of March 2021 prepared by her company as a basis to conclude in her supplementary report that the easement works will have minimal to no environmental impact.
2. Additionally, the applicant offers the landscape experts' agreement (Ex 4 par 9) that stormwater disposal via the proposed easement is the preferred landscape outcome for the development as another reason why I can be satisfied about the proposed stormwater disposal system for the site and submits that it is open to me to make a preliminary finding that the DA is acceptable subject to the applicant obtaining the easement from 18-20 Bent Street. And, while the applicant acknowledges that the matter could be adjourned subject to the commencement and determination of Class 3 proceedings under s 40(1)(b) of the Land and Environment Court Act 1979, it submits that the Court should only use this avenue if there is such uncertainty that the Court is not satisfied that development consent can be granted without the easement. The applicant submits that this is not required in this case as an assessment of the impacts of the easement is before the Court, and a deferred commencement condition is put forward that provides that the consent cannot operate until the easement is obtained and requires lodgement of a development application for any works within the easement.
3. Having assessed the application under s 4.15 of the EPA Act, including the matters required by cl 6.5 of the LEP, I am satisfied on the uncontradicted evidence of the parties' engineers, planners and landscape architects that the likely environmental impacts of the easement for stormwater disposal on the site and the adjoining properties is understood and that those impacts are satisfactory. In that circumstance, it is my considered opinion that the imposition of the Council's deferred commencement, based on the engineers agreed evidence, is appropriate and satisfactorily resolves the remaining issue in the case.
4. I am also satisfied that the following jurisdictional requirements have been satisfactorily addressed.

Objector submissions

1. The DA was notified in accordance with Council's notification policy on 5 December 2019 for a period of 30 days. Twenty submissions were received, and considered, by Council.
2. On 27 March 2020, the Council provided the applicant with a preliminary assessment letter and on 1 May 2020 the applicant provided the Council with conceptual design responses to the issues raised in that letter.
3. On 5 May 2020, the Council provided a response to the applicant regarding the conceptual design changes.
4. On 13 May 2020, the applicant provided further conceptual design changes.
5. On 21 May 2020, the Council provided its comments on the further conceptual design changes.
6. On 24 June 2020, the applicant submitted formal amended plans.
7. On 15 July 2020, the amended plans were notified for 14 days. One submission objecting to the proposal was received.
8. For the reasons outlined, I am satisfied that the contentions raised in the objections have been adequately considered, and addressed by the DA as amended and the agreed conditions of consent.

Ku-ring-gai Local Environmental Plan 2015

1. Clause 2.3 of the LEP requires the Court to have regard to the R3 zone objectives when determining the DA. An assessment against those objectives can be found on page 29 of the Statement of Environmental Effects prepared by City Plan dated 12 November 2019.
2. Clause 2.7 of the LEP requires that the demolition of a building or work be carried out only with development consent.
3. Clause 4.1 of the LEP provides that the subject site must have a minimum lot size of 1200m2. The proposal would result in the amalgamation of 5 and 7 Beaconsfield Parade, which would have a total site area of 3303m2. As such, the proposal satisfies the minimum lot size standard.
4. Clause 4.3 of the LEP includes a height of building standard, which prescribes a maximum building height of 11.5m on the site. The proposed development complies with this standard (see architectural drawings DA3100 and DA3200).
5. Clause 4.4 of the LEP includes a floor space ratio (FSR) standard, which prescribes a maximum FSR of 0.8:1 on the site. The proposed development complies with this standard (see architectural drawings DA9001).
6. Clause 6.2 of the LEP applies as the proposal involves excavation of the site to accommodate the proposed basement carpark. A Geotechnical Investigation Report prepared by STS GeoEnvironmental dated March 2019 has been submitted as part of the Class 1 application. Updated stormwater plans address stormwater and drainage. The matters in cl 6.2(3) have been addressed in the reports accompanying the DA.
7. Clause 6.5 of the LEP requires the consent authority to be satisfied about the stormwater and water sensitive urban design of the proposal. As discussed above, the applicant's amended stormwater plans and the Planning Advice on Future Drainage Works prepared by Gyde dated 6 August 2021 addresses cl 6.5.
8. Clause 6.6 of the LEP includes minimum width and depth requirements for multi dwelling housing developments. The proposed development complies with this standard as the site has a total area of 3303m2 (where the minimum site area is 1,200m2) and 36.58m street frontage (where the minimum street frontage width is 30m).
9. For the reasons outlined, I am satisfied on the evidence that there is no jurisdictional impediment to consent arising from the provisions of the LEP.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP) - Ch 4

1. The provisions of Ch 4 of the Resilience and Hazards SEPP and the Draft Statement of Environmental Planning Policy for the Remediation of Land and associated Draft Contaminated Land Planning Guidelines requires the consent authority to consider whether the site is contaminated.
2. The site has a history of residential use.
3. Consideration has been given to whether the site, on which the development is to occur, is contaminated. The consideration can be found in the Preliminary Site Investigation Report prepared by Geotechnique Pty Ltd dated 23 October 2019, filed with the Class 1 Application.
4. The Preliminary Site Investigation Report recommended that after the site has been demolished, further sampling and testing is required to address any potential contaminants. However, it is considered reasonable for any development consent to include a condition requiring the further sampling and testing.
5. A condition has been included to satisfactorily address this issue.
6. In relation to cl 4.6(1) of the Resilience & Hazards SEPP, the Court can be satisfied that consent can be granted because it: 1. has considered whether the site is contaminated, and 2. is satisfied that the site will be suitable for the purpose for which the development is proposed to be carried out, and 3. on the basis of conditions of consent, is satisfied that if there is contamination on the site, then the site will be remediated before it is used for that purpose.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity & Conservation SEPP) - Ch 2

1. Chapter 2 of the Biodiversity & Conservation SEPP does not apply to the DA by operation of cl 2.7(1) of the Biodiversity & Conservation SEPP and s 60O of the Local Land Services Act 2013 as the removal of proposed trees will be authorised by the approval of the DA. Notwithstanding that Ch 2 of the Biodiversity & Conservation SEPP does not apply, the DA, meets the aims of Ch 2.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP)

1. An updated BASIX Certificate 28 September 2021 has been provided.

Ku-ring-gai Development Control Plan

1. I am satisfied on the evidence that the DA as amended can be approved having regard to the provisions of the DCP and s 4.15(a)(iii) of the EPA Act.

Site isolation

1. Control 3 of Part 3B of the DCP requires that within a business zone, medium density and high-density residential zone, sites are to be consolidated to avoid isolating an adjoining site or sites. In particular potential redevelopment of the adjoining site or sites in accordance with its zoning must not be compromised.
2. The planning principle in Karavellas v Sutherland Shire Council [2004] NSWLEC 251 requires an applicant to demonstrate the following: 1. Is amalgamation of the sites feasible? 2. Can orderly and economic use and development of the separate sites be achieved if amalgamation is not feasible?
3. From the outset, and prior to lodging the DA, the applicant made offers (based on valuations) to the owner of 5A Beaconsfield Parade, Lindfield to acquire the property. The issue of site isolation was canvassed with Council at the pre-DA meeting.
4. Throughout the assessment process of the DA, the Council has raised the issue of site isolation with the applicant a number of times and the applicant had sought to address that issue on multiple occasions. In particular the applicant had prepared a conceptual design for a multi-dwelling housing development on No. 5A.
5. Ultimately, in the Council's Assessment Report prepared for the Ku-ring-gai Local Planning Panel dated December 2020, it concluded that: 1. The planning principles and planning controls do not demand that an agreement to acquire potentially isolated allotment be reached, 2. The applicant commenced negotiations to acquire No. 5A well before the lodgement of the DA, 3. The applicant had negotiated and made a reasonable offer (based on valuation reports) to the owner of No. 5A for the purpose of that property, and 4. That No. 5A can be developed independently with an appropriate urban form, for the purpose of multi-dwelling housing, without requiring amalgamation with the subject site.
6. I am satisfied that the issue of site isolation has been appropriately considered and addressed by the parties and is not a basis to refuse the DA.

Accessibility requirements under the Building Code of Australia (BCA)

1. Control 4 of Part 6C.5 of the DCP requires at least 70% of all dwellings are to be visitable.
2. Table D3.1 of Part D3 sets out the minimum accessibility requirements for a Class 2 (residential) building, such as the proposed development.
3. The proposal includes vertical platform lifts to ensure the accessibility requirements are satisfied (see Statement of Compliance Access for People with a Disability by ABS dated 14 September 2021).
4. I am satisfied on the evidence that the proposed development meets the accessibility requirements under the BCA.

Conclusion

1. For the reasons outlined above, I find the application acceptable on its merits subject to the imposition of the Council's conditions.
2. Accordingly, the Court orders that: 1. The appeal is upheld. 2. Development consent is granted to development application no. 0472/2019 for the demolition of existing structures and construction of a multi-dwelling housing comprising 18 townhouses, basement parking, fencing, landscaping and associated works at 5 and 7 Beaconsfield Parade, Lindfield, subject to the conditions of consent set out in Annexure A. 3. The exhibits are returned except for A, D, G, A1, B2, B10, 1, 3 and 4. ……………………….. S Dixon Senior Commissioner of the Court Annexure A (384219, pdf)

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