BC Sands Pty Ltd v Sutherland Shire Council

[2022] NSWLEC 1310

Land and Environment Court

New South Wales

Medium Neutral Citation:

BC Sands Pty Ltd v Sutherland Shire Council [2022] NSWLEC 1310

Hearing dates:

Conciliation conference on 10 May 2022

Date of orders:

16 June 2022

Decision date:

16 June 2022

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

Orders – see [14].

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2000, cll 77, 121B

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy No 55 - Remediation of Land

State Environmental Planning Policy (Resilience and Hazards) 2021, Chs 2, 4, cll 2.8, 2.10,

Sutherland Local Environmental Plan 2011, cll 2.3, 6.1, 6.2, 6.4, 6.7, 6.14

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy (February, 2022)

Sutherland Development Control Plan 2015

Category:

Principal judgment

Parties:

BC Sands Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
T Ward (Solicitor)(Respondent)

Solicitors:
Addisons (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2021/276194

Publication restriction:

No

Judgment

1. COMMISSIONER: BC Sands Pty Ltd (the Applicant) has appealed the refusal by Sutherland Shire Council (the Respondent) of its modification application (no. MA20/0295 (the Modification Application) seeking to amend certain conditions of consent imposed in respect of the determination of its development application (DA 13/1045) for the storage and processing of recycled fill, truck parking and construction of storage bins for landscaping and building material (the Proposed Development) at 39 Mangrove Lane, Taren Point (also identified as Lot 7 in DP 1036920) (the Subject Site).

2. The appeal is made under s 8.9 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.55(1A) of the EP&A Act.

3. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), the Modification Application was notified between November and 1 December 2020, and no submissions were received in response to that notification.

4. On 10 May 2022, the Parties participated in a s 34 conciliation conference and reached an in-principle agreement regarding the granting of consent to the DA, subject to conditions.

5. The conciliation conference was convened in a manner consistent with the Court’s COVID-19 Pandemic Arrangements Policy (the Policy). A site inspection was undertaken prior to the conciliation conference as one objector provided a submission during the site view.

6. At the conciliation conference, undertaken via Microsoft Teams, 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 consent to the Applicant’s development application, subject to conditions.

7. Under s 34(3) of the Land and Environment Court Act 1979 (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. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Modification Application. More specifically, in determining the Modification Application, the following matters are relevant to the development under s 4.15(1) of the EPA Act and the reasons given by the consent authority for the grant of the consent sought to be modified, and those requirements have been satisfied as follows:

1. in relation to the provisions of Ch 4 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H) (incorporating the provisions of the former and now repealed State Environmental Planning Policy No. 55 - Remediation of Land):

1. the Court is required to consider whether land is contaminated prior to granting consent to carrying out of any development on that land, and:

2. the Parties submit, and I am satisfied, that the likelihood of encountering contaminated soils on the Subject Site is extremely low given the Modification Application does not change the use previously approved in the development consent that is sought to be modified in this appeal;

2. in relation to the provisions of Ch 2 of SEPP R&H (incorporating the provisions of the former and now repealed State Environmental Planning Policy (Coastal Management) 2018):

1. the Subject Site is located within the designated:

1. coastal environment area; and

2. proximity area for coastal wetlands.

2. clause 2.8 of SEPP R&H provides:

(1) Development consent must not be granted to development on land identified as “proximity area for coastal wetlands” … on the Coastal Wetlands and Littoral Rainforests Area Map unless the consent authority is satisfied that the proposed development will not significantly impact on—

(a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or

(b) the quantity and quality of surface and ground water flows to and from the adjacent “coastal wetland” or “littoral rainforest”....

3. clause 2.10 of SEPP R&H provides:

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

4. The Parties have advised and I am satisfied, that the Modification Application would:

1. reduce potential impacts on the coastal environment by proposing an improved landscaping species matrix and landscaping of a width that is wider than previously approved; and

2. minimise potential adverse impacts with the proposed installation of three stormwater pits that would ensure that water flowing from the Subject Site does not drain to the wetland located adjacent to the Subject Site;

3. in relation to the provisions of Sutherland Shire Local Environmental Plan 2015 (SLEP):

1. clause 2.3(2) requires the consent authority to ‘have regard to the objectives for development in a zone’ in relation to the proposal, and:

1. the Subject Site is zoned IN1 – General Industrial and the objectives of the zone are as follows:

To provide a wide range of industrial and warehouse land uses.

To encourage employment opportunities.

To minimise any adverse effect of industry on other land uses.

To support and protect industrial land for industrial uses.

To enhance the visual appearance of the employment area by ensuring new development achieves high architectural and landscape standards.

To minimise the impact of development in the zone on areas of environmental significance.

2. the Applicant has provided a Modification Report that includes consideration of the objectives in relation to the Applicant’s Modification Application; and

3. on the basis that the Modification Application is minor in nature and does not propose any change of use of the Subject Site the Parties agree, and I am satisfied, that the Modification Application will achieve the objectives of the zone to the same degree as the approved development that is sought to be modified;

2. clause 6.1 relates to acid sulfate soils and the Subject Site is mapped as Class 3 lands, and:

1. no works are proposed more than 1 metre below the natural ground surface or where the water table is likely to be lowered more than 1 metre below the natural ground surface; and

2. on this basis the Parties advise, and I am satisfied, that the Modification Application is consistent with the provisions of cl 6.1;

3. clause 6.2 relates to earthworks, and

1. clause 6.2(3) provides:

“Before granting development consent for earthworks, the consent authority must consider the following matters -

(a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,

(b) the effect of the proposed development on the likely future use or redevelopment of the land,

(c) the quality of the fill or the soil to be excavated, or both,

(d) the effect of the proposed development on the existing and likely amenity of adjoining properties,

(e) the source of any fill material and the destination of any excavated material,

(f) the likelihood of disturbing relics,

(g) the proximity to and potential for adverse impacts on any

watercourse, drinking water catchment or environmentally sensitive area,

(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

2. the Applicant’s plans in relation to the Modification Application allow for removal of fill rather than natural soil; and

3. the plans provide for the installation of three new drainage pits to prevent drainage towards the east of the Subject Site and towards areas that are environmentally sensitive;

4. the Parties agree, and I am satisfied, that the Applicant’s plans in relation to the Modification Application represent an improvement on the current situation through the augmentation of drainage or substantial landscaping, and that the provisions of cl 6.2 of SLEP are satisfied;

4. clause 6.4 relates to stormwater management: and

1. under its provisions the consent authority, or the Court on appeal, must be satisfied that the Applicant’s Modification Application:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

2. the Parties agree, and I am satisfied, that the Modification Application is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and that the Applicant’s proposals for additional drainage pits would ensure that the Modification Application would not give rise to any significant adverse impacts in relation to stormwater runoff on adjoining properties, native bushland or receiving waters;

5. clause 6.7 applies to the Subject Site because it is identified as “Environmentally Sensitive Land” on the Riparian Lands and Watercourse Map within SLEP, and:

1. clause 6.7 relevantly provides:

(3) In deciding whether to grant development consent for development on land to which this clause applies, the consent authority must consider -

(a) whether or not the development is likely to have any adverse impact on the following -

(i) the water quality and flows within the watercourse,

(ii) aquatic and riparian species, habitats and ecosystems of the watercourse,

(iii) the stability of the bed and banks of the watercourse,

(iv) the free passage of fish and other aquatic organisms within or along the watercourse,

(v) any future rehabilitation of the watercourse and riparian areas, and

(b) whether or not the development is likely to increase water extraction from the watercourse, and

(c) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that -

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised - the development will be managed to mitigate that impact.

2. The Parties agree, and I am satisfied, that the matters identified in cl 6.4(3) have been considered, and the increased landscaping area, provision of stormwater facilities and the updated and detailed air quality management plan that form part of the Modification Application will mitigate and reduce potential environmental impacts on the Subject Site, consistent with the provisions of cl 6.4(4) of SLEP;

6. clause 6.14 relates to minimum landscaped area requirements, and the Parties advise, and I am satisfied, that Modification Application increases the landscaped area on the Subject Site;

4. in relation to the provisions of Sutherland Development Control Plan 2015 (SDCP), the Parties have confirmed, and I am satisfised, that Applicant’s Modification Application satisfies the requirements of relevant controls within SDCP, most notably in relation to the controls in Chapter 28 and Chapter 39 of SDCP;

5. in relation to further provisions of the EP&A Act, pursuant to s 4.55(1A) under which terms the Modification Application is sought, the Parties have advised, and I am satisfied, that:

1. the proposed modification is of minimal environmental impact because:

1. it updates and replaces an outdated Dust Management Plan applicable to the Subject Site;

2. it will improve landscaping and stormwater management outcomes on the Subject Site; and

3. it will reduce potential visual impacts and potential impacts of dust generating activity on the Subject Site.

2. the approved development on the Subject Site as modified by the Modification Application is substantially the same development as originally approved on a qualitative and quantitative basis, noting that the operations undertaken under the modified consent would be the same as those currently undertaken but with improved environmental management outcomes and reduced potential impacts.

3. as required under the provisions of s 4.55(3), consideration has been given to the reasons provided by the consent authority for the grant of the consent that is sought to be modified in this appeal, and:

1. the Respondent’s original consent to DA 13/1045 does not contain specific reasons for the granting of the consent;

2. notwithstanding this, the approved of the Modification Application would not be contrary to the conclusions reached within the assessment of the original application and the basis for those conclusions.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1) of the EP&A Act; and

2. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 8.9 of the EP&A Act have been so satisfied.

10. Further, 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.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

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

13. The Court notes that the Parties have confirmed that:

1. Sutherland Shire Council, as the relevant consent authority under cl 121B of the EP&A Regulation, has agreed to the Applicant amending its Modification Application No. MA20/0295 to reflect the following documents:

1.	Schedule of Amendments	10 May 2022
2.	Stormwater plans prepared by Costin Roe Consulting: Revised Roto-Mill Extent Sketch Co14636.00-SKC05	9 May 2022
3.	Landscape Plans prepared by Site Image: Coversheet SS13-2713 Drawing 000 Revision G Sheet 1 Landscape plan SS13-2713 Drawing 101 Revision K Planting matrix SS13-2713 Drawing 501 Revision E Landscape details and specifications SS13-2713 Drawing 502 Revision E	Various
4.	Air Quality Management Plan by Northstar Air Quality Reference 22.1051.FR1V5:	28 April 2022

2. the Modification Application, as amended, has been uploaded on the NSW Planning Portal;

3. the Applicant has filed the amended Modification Application with the Court on 20 May 2022.

Orders

14. The orders of the Court are:

1. the appeal is upheld;

2. pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979, Modification application No. MA20/0295 for amendments to the stormwater, landscaping and air quality management at 39 Mangrove Lane, Taren Point (Lot 7 in DP 1036920) is approved subject to the consolidated conditions set out in Annexure 'A' to this agreement.

………………………..

M Chilcott

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 21 June 2022