20 Trentino Pty Limited v Ku-ring-gai Council [2022] NSWLEC 1283

Catchwords: DEVELOPMENT APPEAL – subdivision – construction of dwelling house - conciliation conference – agreement between the parties - orders Land and Environment Court New South Wales Medium Neutral Citation: 20 Trentino Pty Limited v Ku-ring-gai Council [2022] NSWLEC 1283 Hearing dates: Conciliation conference on 25 and 26 May 2022 Date of orders: 09 June 2022 Decision date: 09 June 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that : (1) the appeal is upheld. (2) development application DA0555/21 for the demolition of existing dwelling, Torrens title subdivision into 2 lots and construction of a dwelling house on each lot – Integrated Development – Water Management Act, 2000 at 20 Trentino Road, Turramurra, NSW 2074 (legally described as Lot 25B in DP370846 ) is determined by the grant of consent subject to the conditions set out in Annexure 'A' to this agreement. Catchwords: DEVELOPMENT APPEAL – subdivision – construction of dwelling house - conciliation conference – agreement between the parties - orders Legislation Cited: Biodiversity Conservation Act 2016 , s 7.4 and 7.7 Biodiversity Conservation Regulation 2017, cl 7.1 Environmental Planning and Assessment Act 1979, ss 2.22, 4.16, 4.46, 8.7 Ku-ring-gai Local Environmental Plan 2015, cl 4.1, 4.3, 4.4, 6.1, 6.2, 6.3, 6.4 and 6.5 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021 , s 4.6 Water Management Act 2000, ss 89, 90 and 91 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 Category: Principal judgment Parties: 20 Trentino Pty Limited (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel: J Lazarus SC (Applicant) C Rose (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2022/33018 Publication restriction: No Judgment COMMISSIONER : The nature of proceedings: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Development Application No. 0555/21 seeking development consent for the demolition of existing buildings , Torrens title subdivision into 2 lots , and construction of a dwelling house on each lot (the Proposed Development) at 20 Trentino Road, Turramurra legally described as Lot 25B in DP 370846 (the Site). The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 25 and 26 May 2022 . I have presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 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 involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and the parties explained how the jurisdictional prerequisites have been satisfied in an agreed joint jurisdictional statement which I summarise as relevant below. The development application was notified between 22 February 2022 and 22 March 2022 , in accordance with the community participation requirements of s 2.22 and Sch 1 of the EPA Act . Any submissions made have been considered by the parties, and the parties agree the matters raised have been addressed in the Applicant ’ s amended application. The Proposed Development complies with the following relevant development standards : Minimum subdivision lot size of 930m 2 per lot (cl 4.1 of the Ku-ring-gai Local Environmental Plan (KLEP) ) ; Maximum height of buildings of 9.5 m ( cl 4.3 of the K LEP ); Floor space ratio control of 0.3:1 ( cl 4.4 of the K LEP ) The Site is identified as being partially in a flood planning area on the “ Hydrology Map ” . The parties agree that the proposed development satisfied the considerations within clause 5.21 of the KLEP and that the Site is suitable for the development proposed. The Site is identified on the K LEP Maps as being affected by class 5 acid sulfate soils. The parties agree that the proposed development satisfies the considerations within cl 6. 1 of the KLEP , and the S ite is suitable for the Proposed D evelopment. The Applicant has provided a “ Proposed Residential Redevelopment Geotechnical Investigation Report ” prepared by Cardno dated 21 April 2022 in order to satisfy cl 6.2 of the K LEP. The parties agree that the proposed development satisfies the considerations within cl 6.2 and that the S ite is suitable for the development proposed. The Site is partially identified as an “ Area of Biodiversity Significance ” on the Terrestrial Biodiversity Map. The Applicant has provided a “ Biodiversity Development Assessment Report ” prepared by Fraser Ecology dated 16 May 2022 and a “ Arboricultural Impact Assessment Report ” prepared by Malcolm Bruce dated 5 May 2022 in order to satisfy the considerations within cl 6.3 of the K LEP. The parties agree that the proposed development satisfies the considerations within cl 6.3 and that the Site is suitable for the Proposed D evelopment. The Site is identified as being partially affected by Category 3 Riparian Lands on the Riparian Lands and Watercourses Map. The Applicant provided a Flora and Fauna Report, prepared by Narla Environmental, dated August 2021 in order to satisfy the considerations within cl 6.4 of the K LEP. The parties agree that the proposed development satisfied the considerations within clause 6.4 and that the Site is suitable for the Proposed D evelopment. The Applicant has provided stormwater management plans prepared by Quantum Engineers dated 13 May 2022. The parties agree that the proposed development satisfies the considerations within cl 6.5 of the KLEP and that the Site is suitable for the Proposed D evelopment. In relation to the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), t he Proposed Development is on land which has historically been used for residential purposes and is unlikely to contain any contamination. The parties agree that Clause 4.6 of the SEPP Resilience and Hazards is satisfied , and that the Site is suitable for the development proposed. The parties also rely on the Council ’ s Assessment Report, pages 88-89 (addressing contamination) and 91-92 (addressing clause 5.21 of the LEP) contained at Tab 14 of the Respondent ’ s bundle filed with the Court on 23 May 2022: The proposed development is BASIX affected development as prescribed by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) . The Applicant has provided the following documents to satisfy the requirements of SEPP BASIX: Updated BASIX Stamped Plans 05 May 2022 Updated BASIX Certificate for Lot A 23 May 2022 Updated BASIX Certificate for Lot B 23 May 2022 Section s 7.4 and 7.7 of the Biodiversity Conservation Act 2016 ( BC Act ) apply to the P roposed D evelopment on the Site. Clause 7.1(3) of the Biodiversity Conservation Regulation 2017 (BC Regulation ) applies to the Site. The Applicant has provided a “ Biodiversity Development Assessment Report ” prepared by Fraser Ecology dated 16 May 2022 to satisfy clause 7.1(3) of the BC Regulation. The Parties agree that clause 7.1(3) of the BC Regulation has been satisfied. The proposed development is “ Integrated Development ” as defined by section 4.46 of the EPA Act as it may require an approval under s s 89, 90 and 91 of the Water Management Act 2000 ( WM Act ) . The Parties agree that the development application was referred to Water NSW and no terms of approval from Water NSW are required for the development. 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. I adopt the reasons given by the parties as summarised above in this judgment. As the parties ’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties ’ decision. Notations The Court notes that : Ku-ring-gai Council as the relevant consent authority has, pursuant to clause 55 of the Environmental Planning and Assessment Regulation 20 00 consented to the following amendments to development application DA 0555/21: Title of document Dated Updated Architectural Plans for Lot A Drawing no. Name Rev Dated A1.00B Site Analysis Plan B 19 April 2022 A1.01C Proposed Site and Roof Plan C 19 April 2022 A1.02C Proposed Plans C 19 April 2022 A1.03C Proposed Elevations C 19 April 2022 A1.04C Proposed Sections C 19 April 2022 A1.06B Plan of Detail Subdivision B 19 April 2022 A1.08B Shadow Diagrams Winter B 19 April 2022 A1.09B Compliance Calculations B 19 April 2022 A1.10B Environmental Site Management Plan B 19 April 2022 A1.11C Subdivision Plan – Scope of Works C 26 May 2022 A3.01 Lot A – Material Sample Board 23 May 2022 Updated Architectural Plans for Lot B Drawing no. Name Rev Dated DA01 Site Analysis Plan B 20 April 2022 DA02 Lot B – Proposed Roof/Site Plan D 20 April 2022 DA03 Lot B – Proposed Ground Floor Plan F 20 May 2022 DA04 Lot B – Proposed First Floor Plan E 20 April 2022 DA05 Lot B – Proposed Basement E 20 May 2022 DA06 Lot B – Proposed Elevations 01 & Section E 20 May 2022 DA07 Lot B – Proposed Elevations 02 & Section E 20 May 2022 DA08 Sections B 20 May 2022 DA09 Lot B – Area Calculations D 20 May 2022 DA10 Lot B – Proposed Shadow Diagrams B 12 October 2021 Updated Landscape Plans Drawing no. Name Rev Dated Lot A – L01 Landscape Concept Plan, Plant Images and Schedule C 21 May 2022 LOT A – L02 Details, Images and Notes. C 21 May 2022 LOTB – L01 Landscape Concept Plan C 21 May 2022 LOT B-L02 Plant Schedule, Details, Images and Notes. C 21 May 2022 Updated Stormwater Plans 13 May 2022 Updated Subdivision and Civil Works Plans 13 May 2022 Proposed Residential Redevelopment Geotechnical Investigation Report 21 April 2022 Updated Arboricultural Impact Assessment of a Tree Located on or Near 20 Trentino Road, Turramurra 05 May 2022 Drivecon Permeable Concrete Performance Specifications Updated Waste Management Plan 28 April 2022 Updated Biodiversity Development Assessment Report 16 May 2022 Updated BASIX Stamped Plans 05 May 2022 Updated BASIX Certificate for Lot A 23 May 2022 Updated BASIX Certificate for Lot B 23 May 2022 Updated National House Energy Rating Scheme for Lot A 05 May 2022 Updated National House Energy Rating Scheme for Lot B 05 May 2022 the Applicant uploaded the amended application on the NSW planning portal on 25 May 2022 and 26 May 2022. the above documents which comprise the amended application were filed with Court on 26 May 2022. Orders The Court orders that : the appeal is upheld. development application DA0555/21 for the demolition of existing dwelling, Torrens title subdivision into 2 lots and construction of a dwelling house on each lot – Integrated Development – Water Management Act, 2000 at 20 Trentino Road, Turramurra, NSW 2074 (legally described as Lot 25B in DP370846 ) is determined by the grant of consent subject to the conditions set out in Annexure 'A' to this agreement. ………………………. E Espinosa Commissioner of the Court (Annexure A) (387395, pdf) ********** 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: 09 June 2022