Associated World Investments Pty Ltd v Cumberland Council

[2024] NSWLEC 1450

Land and Environment Court

New South Wales

Medium Neutral Citation:

Associated World Investments Pty Ltd v Cumberland Council [2024] NSWLEC 1450

Hearing dates:

Conciliation conference on 26 July 2024

Date of orders:

31 July 2024

Decision date:

31 July 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Consent No DA2022/0214 for a self-storage facility at 33 Parramatta Road, Lidcombe, Part Lot 2 in DP 1268932, is modified in the terms set out at Annexure A.

(3)   Development Consent No DA2022/0214, as modified, is set out at Annexure B.

Catchwords:

MODIFICATION APPLICATION – self-storage facility – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act1979, ss 4.15, 4.55, 8.9, 8.15

Land and Environment Court Act 1979, s 34

Cumberland Local Environmental Plan 2014, cl 4.4, 4.6

Environmental Planning and Assessment Regulation 2021, ss 107, 113

Texts Cited:

Cumberland Development Control Plan

Category:

Principal judgment

Parties:

Associated World Investments Pty Ltd (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
J Cole (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
Messenger Cole Solicitors (Applicant)
Cumberland Council (Respondent)

File Number(s):

2024/125253

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the approval in part, by Cumberland City Council, of the applicant’s request to modify development consent DA2022/0214 to increase the approved floor space to a self-storage facility at 33 Parramatta Road, Lidcombe, Lot 2 in DP 1268932.

2. This modification application, MOD2023/0216, seeks to infill underutilised space within an existing self-storage building to create additional self-storage units, and to reconfigure the basement car parking. This application was approved in part on 12 January 2024, however the additional floor space and storage units at levels 2 and 4 were not incorporated as part of the approved modifications. It is the refusal of the additional floor space and storage units that the applicant is appealing, and the matter has subsequently been brought to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. The Court arranged a conciliation conference and hearing under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 July 2024. I presided over the conciliation conference.

4. 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 modifying development consent DA2022/0214 subject to conditions.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.55 of the EPA Act to grant consent to the modification application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

6. The parties have provided a jurisdictional note which addresses relevant matters of jurisdiction engaged by s 4.55(2) of the EPA Act, and from this I accept that:

1. The modification will retain the approved use and built form. All modifications are internal, and result in no increase to height or bulk, and result in no discernible environmental impacts. From this, I am satisfied that in both qualitative and quantitative terms the development, as modified, will be substantially the same as the development for which the consent was originally granted (s 4.55(2)(a).

2. No further consultation is required with any Minister, public authority or approval body pursuant to s 4.55(2)(b), as no concurrence or GTAs were required in the original development consent and the modification does not generate any additional requirement.

3. The modification application was notified for a period of 14 days, as per the notification of the original application, in accordance with s 107(2)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Reg) and as per the requirements of the Cumberland Development Control Plan (s 4.55(2)(c)). No submissions were received (s 4.55(2)(d)).

7. Pursuant to the EPA Act s 4.55(3), I must consider the relevant matters referred to in EPA Act s 4.15(1), and the reasons given by the consent authority for the grant of the consent that is sought to be modified. In relation to this, the parties submit that the modification does not give rise to any additional considerations pursuant to s 4.15(1) beyond that which was considered in the original consent, however the parties note that the modification does result in a substantial increase in floor space ratio (FSR) above the maximum FSR of 1:1 set by the Cumberland Local Environmental Plan 2021 (CLEP) cl 4.4.

8. As this is a modification application, a request pursuant to CLEP cl 4.6 to contravene the development standard at cl 4.4 is not required, and the parties submit that the increase in FSR from 0.98:1 to 1.85:1 is acceptable on merits because it does not alter the external built form but rather infills underutilised space within the existing building.

9. I note also, from the parties’ submission and the information contained in the amended application, that the additional storage units have a negligible impact on traffic generation (Traffic and Parking Assessment Report prepared by Varga Traffic Planning dated 6 March 2023), and no impact on stormwater, earthworks, flooding or acid sulfate soils.

10. Pursuant to s 4.55(3), the notice of determination does not provide overarching reasons for the granting of consent, however reasons were provided for each condition of consent. The parties submit, and I accept, that the modification does not contravene any of these reasons in such a way that warrants the refusal of the modification application.

11. There are no other jurisdictional issues raised by the applicant and, based on my consideration of the parties’ jurisdictional note and the information in the application before the Court, 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.

12. 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.

13. The Court notes:

1. Cumberland City Council, as the relevant consent authority approves, under s 113(4) of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Modification Application MOD2023/0216 to include the following plans:

Architectural Plans prepared by BJB Architects

1. Lower Ground Floor Plan – Parking A1101 Revision D

2. Level 1 – Storage – A1103 Revision D prepared by BJB Architects

3. Level 1 Mezzanine – A1104 Revision D prepared by BJB Architects

4. Level 2 Plan – A1105 Revision D prepared by BJB Architects

5. Level 3 Plan – A1106 Revision D prepared by BJB Architects

6. Level 4 Plan – A1107 Revision D prepared by BJB Architects

Engineering plans prepared by Henry and Hymas dated 9 May 2023

1. C0000 Cover Sheet, Drawing Schedule, Notes and Locality Sketch Rev 03

2. SE01Sediment and Erosion Control Plan Rev 02

3. SE02 Sediment and Erosion Control Details Rev 02

4. C101 Lower Ground Floor Rev 02

5. C101A Level Ground Office Vehicle Crossing and Driveway Plan Rev 02

6. C102 Level 1 Floor Rev 02

7. C110 Vehicle Crossing and Driveway Sections and Details Rev 02

8. C200 Stormwater Miscellaneous Details and Pit Schedule Rev 03

9. C201 OSD Tank Plan, Sections and Details Sheet 1 of 2 Rev 03

10. C201A OSD Tank Plan, Sections and Details Sheet 2 of 2 Rev 02

11. C202 OSD Basin Sections and Details Sheet 1 of 2 Rev 02

12. C202A OSD Basin Sections and Details Sheet 2 of 2 Rev 01

13. C210    OSD Calculations Rev 02

14. C250 Post Development Catchment Plan Rev 02

15. C250A Pre Development Catchment Plan Rev 02

16. C251 Music Catchment Plan Rev 02

17. C252 Flood Storage Section Rev 02

1. The parties have agreed that the applicant is to pay the respondents’ costs thrown away in the agreed sum of $500.00 within 28 days of these orders being made.

14. The Court orders:

1. The appeal is upheld.

2. Development Consent No DA2022/0214 for a self-storage facility at 33 Parramatta Road, Lidcombe, Part Lot 2 in DP 1268932, is modified in the terms set out at Annexure A.

3. Development Consent No DA2022/0214, as modified, is set out at Annexure B.

E Washington

Commissioner of the Court

125253.24 (Annexure A)

125253.24 (Annexure B)

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Decision last updated: 31 July 2024