NEW SOUTH WALES COURT ISSUES JUDGEMENT FOR BEACONSFIELD PDE V/S KU-RING-GAI COUNCIL CASE

Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 16:

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by Beaconsfield Pde Pty Ltd (the Applicant) against the refusal of their development application DA eDA0376/24. The development application, as amended, seeks consent for demolition of existing structures, tree removal, construction of a residential apartment building comprising 36 apartments, basement carparking and associated landscaping and civil works. The development is proposed at 4 and 4A Beaconsfield Parade, Lindfield, legally known as Lot B in DP 342546 and Lot A in DP 342546 (the site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties, which was held on 17 April 2025. Following the conciliation conference, the parties were provided additional time by the Court however the conciliation was ultimately terminated and the matter listed for hearing.

3. Notwithstanding the termination of the conciliation conference, the parties continued to negotiate in relation to the form of the development and appropriate conditions of consent. These negotiations were productive. The Applicant further amended the development application in May 2025, seeking to address the Respondent's concerns. The parties continued discussions on the amended plans and reached an agreement based on the amended development application. The parties' agreement is for the grant of consent to the application, as amended, subject to the conditions in Annexure A. The parties sought a further conciliation conference which was arranged for 4 July 2025. I presided over the further conciliation conference.

4. As the presiding Commissioner, I am satisfied that the decision is one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties agreed resolution: see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]. I form this state of satisfaction on the basis that:

1) The development application was lodged with the consent of the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation).

2) The development application was notified publicly from 1 to 31 October 2024. Three objections were received in relation to the development application. I am satisfied that the submissions have been considered in the determination of the development application by either amendment of the application or through the imposition of conditions of consent: s 4.15(1)(d) of the EPA Act.

3) Section 4.6(1) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered whether the land is contaminated. The Respondent and the Applicant agree, and I accept, that the site has a long history of residential purposes and no known records of contaminating activity being conducted on the site. This history is detailed in the Statement of Environmental Effects. I find that s 4.6(1) of SEPP RH is satisfied.

4) The provisions of Ch 4 and Ch 5 of the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) apply to the development application as the proposed development is for a residential flat building in a "relevant residential zone" as defined in s 151 of the Housing SEPP. The site is located within a "Transport Oriented Development Area" (TOD Area) as defined in s 152 of the Housing SEPP.

5) Section 147 of the Housing SEPP requires that the consent authority consider the Design Principles in Sch 9 of the Housing SEPP and the Apartment Design Guide (ADG) when granting consent to a residential apartment development. The Applicant submitted a Design Verification Statement and Apartment Design Guide Assessment as part of the development application. With the benefit of those documents and reviewing the plans, I accept the parties' agreement that the proposed development complies with s 147 of the Housing SEPP.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198077a76f649911f8c2d141)

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