Agit Investment Pty Ltd v Strathfield Municipal Council

[2024] NSWLEC 1056

Land and Environment Court

New South Wales

Medium Neutral Citation:

AGIT Investment Pty Ltd v Strathfield Municipal Council [2024] NSWLEC 1056

Hearing dates:

Conciliation conferences on 24 January and 7 February 2024

Date of orders:

20 February 2024

Decision date:

20 February 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is granted.
(2) Development consent No DA2021/52
is modified in the terms in Annexure A.
(3) Development consent No DA2021/52 as modified by the Court is Annexure B.

Catchwords:

MODIFICATION APPLICATION – industrial – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55
Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 113

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Strathfield Local Environmental Plan 2012, cll 4.4, 6.2

Cases Cited:

AGIT Investment Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1419

Category:

Principal judgment

Parties:

AGIT Investment Pty Ltd (Applicant)
Strathfield Municipal Council (Respondent)

Representation:

Counsel:
M Sonter (Solicitor) (Applicant)
M Mallos (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Strathfield Municipal Council (Respondent)

File Number(s):

2023/266842

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is a modification application made to the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), being a modification application to a Land and Environment Court development consent (AGIT Investment Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1419). The modification application was filed with the Court on 22 August 2023.

2. The applicant seeks to modify DA2021/52. The modifications can be summarised as minor external and internal reconfiguration of the warehouses and offices, minor adjustments to portions of the internal driveway, carparking relocation, relocation and reconfiguration of OSD and stormwater drainage, changes to awnings, tree removal and changes to the landscaping. These changes result in an overall decrease of gross floor area from 23,705m² to 23,555m² and a decrease in landscaped area from 7,000m² to 6,418m² to the approved development at 2-34 Davidson Street, Greenacre.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 24 January 2024. I presided over the conciliation conference and subsequent adjourned conference on 7 February 2024.

4. The respondent, as the relevant consent authority, has approved under s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) to the applicant amending DA2021/52/A in accordance with the documents listed at [18] (modification application).

5. 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 for the modification application and modifying the development consent.

6. Accompanying the submitted s 34 agreement, the parties have submitted a jurisdictional statement setting out how the proposal has satisfied the jurisdictional requirements and other matters.

7. 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.

8. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent.

Jurisdictional Prerequisites

9. 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 explained how the jurisdictional prerequisites have been satisfied. With consideration of the agreed jurisdictional note and documentation within the Class 1 Application, 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. This is set out below.

10. I am satisfied that owner’s consent accompanied the modification application.

11. I am satisfied that the development as proposed to be modified will be substantially the same as the original development, with consideration of the amended Statement of Environmental Effects prepared by Willowtree Planning dated 25 January 2024 (amended SEE). The proposed modifications are overall minor, seeking mostly reconfiguration works with a decrease in floor space ratio (FSR) and comparatively small reduction in landscaping including removal of four trees and replacement of six trees. I am satisfied that the development as sought to be modified will be substantially the same as the original development for warehousing and ancillary offices. The works do not radically alter the original development, building envelope or functions as initially approved.

12. With respect to 4.55(2)(c) and (d) of the EPA Act, the modification application was notified from 13 October 2023 to 3 November 2023. No submissions were received.

13. With respect to 4.55(3) of the EPA Act, in reviewing AGIT Investment Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1419 and noting that the parties had reached agreement in that decision, I am satisfied that the proposed modification application does not offend the reasons for the grant of consent.

14. The parties agree and I accept that the provisions required to be considered by ss 4.55(2), 4.55(3) and 4.15(1) of the EPA Act have been met as evidenced in the documentation accompanying the Class 1 appeal, as amended, and supported by the jurisdictional statement as set out below:

1. The modification application includes the removal of four trees and replacement planting of six trees. The removal of trees, as supported by the Arborist Report prepared by Jackson Nature Works dated 18 October 2023, meets the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021.

2. The modification application results in an overall decrease in the gross floor area and remains below the allowable FSR of 1:1 pursuant to cl 4.4 of the Strathfield Local Environmental Plan 2012 (SLEP) as demonstrated in the amended SEE.

3. The modification application includes a minor increase to the area of earthworks pursuant to cl 6.2 of the SLEP. Documentation accompanying the modification application and the conditions of consent at Annexure B demonstrate the development continues to meet the provisions of cl 6.2.

Conclusion

15. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

16. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

17. 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.

18. The Court notes that the respondent has approved, as the relevant consent authority, under s 113 of the EPA Reg to the applicant amending DA2021/52/A to rely upon the following amended plans and documents:

Plan name	Drawing Number	Date	Revision	Prepared by
Amended Architectural Plans
Site Plan	1190038_A100	25/10/2023	AD	Reid Campbell
Warehouse 2 Plan	1190038_A101	12/04/2023	M	Reid Campbell
Warehouse Roof Plan	1190038_A102	12/04/2023	L	Reid Campbell
Warehouse 1 Expansion Plan	1190038_A103	12/04/2023	K	Reid Campbell
Office 1 Plan – Ground Floor	1190038_A110	12/04/2023	L	Reid Campbell
Office 1 Plan – First Floor	1190038_A111	12/04/2023	L	Reid Campbell
Office 2A & B Plans	1190038_A112	12/04/2023	P	Reid Campbell
Warehouse Elevation – (North and south)	1190038_A200	12/04/2023	O	Reid Campbell
Warehouse Elevations- East and West	1190038_A201	12/04/2023	M	Reid Campbell
Office Elevations 1	1190038_A202	12/04/2023	I	Reid Campbell
Office Elevations 2A	1190038_A203	12/04/2023	N	Reid Campbell
Office Elevations 2B	1190038_A204	12/04/2023	I	Reid Campbell
Warehouse 2 Sections	1190038_A300	12/04/2023	M	Reid Campbell
Office 1 Sections	1190038_A301	12/04/2023	H	Reid Campbell
Office 2A & 2B – Sections	1190038_A302	12/04/2023	H	Reid Campbell
Signage Plan	1190038_A400	12/04/2023	L	Reid Campbell
Details	1190038_A401	12/04/2023	D	Reid Campbell
Landscape Plans
Landscape Plan	1337_L-01	24/01/2024	V	Site Design + Studios
Detail Plan 1	1337_L-02	24/01/2024	V	Site Design + Studios
Detail Plan 2	1337_L-03	24/01/2024	V	Site Design + Studios
Detail Plan 3	1337_L-04	24/01/2024	V	Site Design + Studios
Detail Plan 4	1337_L-05	24/01/2024	V	Site Design + Studios
Deep Soil Landscape Plan Calculation Plan	1337_L-06	24/01/2024	V	Site Design + Studios
Existing Trees and Canopy Plan	1337_L-07	24/01/2024	V	Site Design + Studios
Section A	1337_L-08	24/01/2024	V	Site Design + Studios
Planting Details	1337_L-09	24/01/2024	V	Site Design + Studios
Existing Trees Plan	1337_L-10	24/01/2024	V	Site Design + Studios
Landscape Specification	1337_L-11	24/01/2024	V	Site Design + Studios
Stormwater Plans
Cover Page & Drawing Schedule	DA1101	19/01/2024	2	Sparks + Partners
Specification Sheet	DA1201	19/01/2024	2	Sparks + Partners
Sediment & Erosion Control Plan	DA2101	09/11/2023	2	Sparks + Partners
Sediment & Erosion Control Details	DA2701	01/02/2023	1	Sparks + Partners
Bulk Earthworks Cut to Fill Plan	DA3101	09/11/2023	2	Sparks + Partners
Bulk Earthworks Contour Plan	DA3201	09/11/2023	2	Sparks + Partners
Bulk Earthworks Sections	DA3501	09/11/2023	2	Sparks + Partners
Concept Stormwater Management Plan – Sheet 1	DA4101	09/11/2023	2	Sparks + Partners
Concept Stormwater Management Plan – Sheet 2	DA4102	09/11/2023	2	Sparks + Partners
Concept Stormwater Management Plan – Sheet 3	DA4103	09/11/2023	2	Sparks + Partners
Concept Stormwater Management Plan – Sheet 4	DA4104	09/11/2023	2	Sparks + Partners
Concept WSUD Stormwater catchment plan	DA4301	19/01/2024	2	Sparks + Partners
Concept OSD Stormwater Catchment Plan	DA4311	19/01/2024	1	Sparks + Partners
Stormwater Management Details Sheet	DA4701	01/02/2023	1	Sparks + Partners
Stormwater OSD Details – Sheet 1	DA4711	01/02/2023	1	Sparks + Partners
Stormwater OSD Details – Sheet 2	DA4712	19/01/2024	2	Sparks + Partners
Concept Siteworks & Grading Plan – Sheet 1	DA5101	09/11/2023	2	Sparks + Partners
Concept Siteworks & Grading Plan – Sheet 2	DA5102	09/11/2023	2	Sparks + Partners
Concept Siteworks & Grading Plan – Sheet 3	DA5103	09/11/2023	2	Sparks + Partners
Concept Siteworks & Grading Plan – Sheet 4	DA5104	09/11/2023	2	Sparks + Partners
Reports
Statement of Facts and Contentions Response letter prepared by Willowtree Planning dated 18 December 2023
Amended S 4.55(8) Application prepared by Willowtree Planning dated 24 January 2024
Traffic and Parking Assessment Report prepared by Transport and Traffic Planning Associates dated January 2024
Noise Impact Assessment prepared by Acoustic Logic dated 3 November 2023
Landscape Statement prepared by Site Design Studios dated 24 January 2024
Letter RE Arborist services at 2 – 34 Davidson Street, Greenacre – The Site prepared by Jacksons Nature Works dated 18 October 2023
Amended Construction Methodology Statement – Existing Trees and TPZ Plan prepared by Prime Projects dated 6 April 2023
Amended Operational Waste Management Plan prepared by Elephants Foot dated 14 June 2023
Amended Construction & Demolition Waste Management Plan prepared by Elephants Foot dated 14 June 2023
Amended Civil Engineering Design Statement Prepared by Sparks and Partners dated 23 January 2023

19. The Court orders:

1. The appeal is granted.

2. Development consent No DA2021/52 is modified in the terms in Annexure A.

3. Development consent No DA2021/52 as modified by the Court is Annexure B.

S Porter

Commissioner of the Court

Annexure A

Annexure B

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Decision last updated: 20 February 2024