Burge v Wollondilly Shire Council

[2019] NSWLEC 1499

Land and Environment Court

New South Wales

Medium Neutral Citation:	Burge v Wollondilly Shire Council [2019] NSWLEC 1499
Hearing dates:	1 October 2019
Date of orders:	18 October 2019
Decision date:	18 October 2019
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders: (1)   The appeal is upheld. (2)   Development Application No. 10.2015.284.001 for use of land as a transport depot at 70 Prices Road, Douglas Park, also identified as Lot 1 in DP 249565, is determined by the grant of consent, subject to the conditions provided at Annexure ‘A’ to this judgment. (3)   The exhibits are returned, with the exception of Exhibits A and 1.
Catchwords:	DEVELOPMENT APPLICATION – transport depot – potential visual – dust and noise impacts
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 - Remediation of Land Wollondilly Local Environment Plan 2011
Texts Cited:	Wollondilly Development Control Plan 2016
Category:	Principal judgment
Parties:	Robert Burge (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Counsel: L Saw (Applicant) A Seton (Solicitor) (Respondent)   Solicitors: Marsdens Law Group (Respondent)
File Number(s):	2018/195460
Publication restriction:	No

Judgment

1. COMMISSIONER: Robert Burge (the Applicant) has appealed the refusal by Wollondilly Shire Council (the Respondent) of his Development Application No. 10.2015.284.001 for use of land as a transport depot (the Proposed Development) at 70 Prices Road, Douglas Park, also identified as Lot 1 in DP 249565, (the Subject Site).

2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and falls within Class 1 of the Court’s jurisdiction under the Land and Environment Court Act 1979 (LEC Act). It is determined under s 4.16 of the EP&A Act.

3. The Subject Site is zoned RU2 Rural Landscape Zone under the provisions of Wollondilly Local Environment Plan 2011 (WLEP). The proposed development is permissible on the Subject Site, with consent, under the provisions of WLEP as a transport depot.

4. On 17 August 2018 and 5 May 2019, in response to notices of motion filed by the Applicant, the Court granted leave for the Applicant to amend its development application. The Proposed Development, as it comes forward in this appeal, and as amended, proposes:

1. the use of a portion of the Subject Site as a transport depot;

2. the storage of a maximum of 23 “trailers” on the Subject Site in designated parking areas;

3. a maximum of four (4) prime mover vehicle movements into and out of the Subject Site per week between the following periods:

1. from the commencement of August until mid-October each year; and

2. from the commencement of February to mid-April each year.

4. during the periods identified above at [(3)], a maximum of two prime mover vehicle movements into and out of the Subject Site on any one day;

5. outside the periods identified above at [(3)], there will also be a maximum to two prime mover vehicle movements into and out of the Subject Site on any one day, up to a maximum of 15 prime mover vehicle movements within any calendar month;

6. remediation works;

7. construction of an earth bank for drainage;

8. repairs;

9. reshaping and widening of a driveway pavement;

10. road works to widen the pavement on Prices Road;

11. planning of vegetation for screening purposes.

5. An inspection of the Subject Site was undertaken at the commencement of the appeal during which two objectors made submissions in relation to the proposed development as follows:

1. Mr Andrew Imrie of 80 Prices Road, and a resident of that property located adjacent to the Subject Site, who said that he opposed the Applicant’s development application for the following reasons:

1. the Subject Site had previously been used for purposes that were not, in his understanding, permitted and approved uses, and which included:

1. storage of large numbers of boats, cars and trucks;

2. wrecking yard operations;

2. the activities which he said had been undertaken by the Applicant on the Subject Site had given rise to a range of impacts including:

1. amenity impacts on his family;

2. traffic impacts arising from the movement of trucks to and from the Subject Site along Prices Road, and the use of narrow approaches to Prices Road along adjoining roads and their bridges;

3. noise impacts on his family, including sleep disturbance impacts as, owing to his work shift worker, he needed to rest during the day;

4. broader environmental impacts, including pollution from the release of plastics, and the unregulated spillage of oils and industrial fluids into the ground, which he said posed a risk to the waters of the Nepean River and, as a consequence, flows to Warragamba Dam.

2. Mr Bruce Azzopardi, of 60 Prices Road, a resident of that property, also located adjacent to the Subject Site, who objected to the Applicant’s proposed development for the following reasons:

1. elements of his residence faced towards the Subject Site, including his kitchen, bedroom and verandah, which he said gave rise to visual, dust and noise impacts;

2. traffic impacts generated by vehicle movements into and out of the Subject Site.

Statutory context

Environmental Planning and Assessment Act 1979

6. The objects of the of the EP&A Act are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

7. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

8. Section 4.15(3A) of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

Wollondilly Local Environmental Plan 2011

9. Development on the Subject Site is subject to the provisions of WLEP, and the following provisions of that plan are of particular relevance in this appeal:

1. Clause 2.3 of WLEP, which provides the zone objectives and land use table for WLEP. The Subject Site is zoned RU2 Rural Landscape under the provisions of WLEP, and the objectives of that zone are to:

encourage sustainable primary industry production by maintaining and enhancing the natural resource base;

maintain the rural landscape character of the land;

provide for a range of compatible land uses, including extensive agriculture;

provide areas where the density of development is limited in order to maintain a separation between urban areas.

1. Clause 7.3 of WLEP, concerning water protection, the objective of which is to maintain the hydrological functions of riparian land, waterways and aquifers, including protecting water quality, natural water flows, the stability of the bed and banks of waterways, and groundwater systems. The clause also provides as follows:

…

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider any adverse impact of the proposed development on the following:

(a) the water quality of receiving waters,

(b) the natural flow regime,

(c) the natural flow paths of waterways,

(d) the stability of the bed, shore and banks of waterways,

(e) the flows, capacity and quality of groundwater systems.

(4) Development consent must not be granted to 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 adverse environmental impact, or(b) if that impact cannot be 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.

State Environmental Planning Policy No 55 - Remediation of Land

10. State Environmental Planning Policy No 55 - Remediation of Land (SEPP55) provides a state-wide planning approach to the remediation of contaminated land. The policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment by:

(a) specifying when consent is required, and when it is not required, for a remediation work; and

(b) specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular; and

(c) requiring that a remediation work meet certain standards and notification requirements.

11. Clause 7 of SEPP55 requires that contamination and remediation are to be considered in determining a development application, and provides as follows:

(1) A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4) The land concerned is:

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land:

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

Wollondilly Development Control Plan 2016

12. The aim of WDCP is to assist in the realisation of the aims of WLEP.

13. The following elements of Volume 7 of WDCP, concerning industry and infrastructure are of particular relevance in this appeal:

1. Clause 2.3, concerning general parking and access requirements for industry and infrastructure, and the provisions of which include the following objectives and control:

“Objectives

(a) To ensure that adequate provision is made for off street parking, appropriate to the volume and turnover of traffic generated by the development,

(b) To ensure that adequate manoeuvring areas are available on-site to permit forward entry and exit of vehicles,

(c) To enable the efficient functioning of parking areas, loading bays and access driveways,

(d) To ensure that parking areas and access ways are constructed with a smooth trafficable surface and to avoid conflict between pedestrians and vehicles, and

(e) To ensure parking areas are visually attractive and designed and constructed to encourage safe usage.

Control

1. Car parking, manoeuvring areas, driveways, access, signposting and loading bays must be designed in accordance with Council’s Design Specification.”

2. Clause 2.5 concerning open storage areas, the provisions of which include the following objective and controls:

“Objective

(a) To minimise the visual impact of open storage areas on the streetscape.

Controls

1. Land between any road and the façade of any building or visible from a public road, must not be used for the storage, sale or display of goods.

2. Areas used for storage must be suitably screened.”

3. Clause 3.1, concerning, inter alia, parking and access specifically in relation to transport depots, and the provisions of which include the following objective and control:

“Objective

(a) To provide development guidelines for the sustainable development of rural industries.

Control

1. Site access roads in rural areas may need to be sealed depending on the nature of the proposal.”

4. The provisions of cll 2.6 (Landscaping), 2.8 (Waste Management), 2.9 (Stormwater Management) and 2.11 (Noise).

Contentions

14. The contentions in this appeal related to the following matters:

1. potential impacts on the character of the area, including in relation to the objectives of the RU2 zone applicable to the Subject Site, potential acoustic impacts and the density of use of the Subject Site under the Proposed Development;

2. vehicular access issues, including in relation to the use of Prices Road, the turning of vehicles on the Subject Site and the location of trailers proposed to be stored on the Subject Site;

3. the remediation of contaminated land on certain areas of the Subject Site, and whether the Applicant had fulfilled the requirements of SEPP55;

4. requirements for the protection of local waterways, including in relation to compliance with the provisions of cl 7.3 of WLEP and potential impacts on environmentally sensitive land;

5. the provisions of additional information required by the Respondent to ensure consistency within the Applicant’s documentation and in order to assess the compliance of the Proposed Development with the provisions of WLEP and WDCP;

6. the adequacy of the Applicant’s proposed Plan of Management to support the implementation of its Proposed Development should it be subject to a grant of consent.

15. At the commencement of the proceedings at Court, the Parties advised that the matters that had been in contention between them had been resolved as a result of the Applicant’s amended plans, and on the basis of their agreement in relation to conditions of consent that should be imposed should consent be granted to the Proposed Development.

16. The Respondent confirmed that, in its assessment, and in the opinion of its experts, the matters identified by the objectors, Mr Imrie and Mr Azzopardi had also been adequately addressed by the Applicant’s amended plans and the proposed conditions of consent. More specifically, the Respondent said that the Proposed Development, as amended, would:

1. numerically and qualitatively limit traffic, and specifically truck movements into and out of the Subject Site, on a weekly, monthly and annual basis;

2. improve the design, functionality and safety of Prices Road for all users of that road;

3. mitigate the visual, dust and noise impacts of the Proposed Development on neighbouring properties through:

1. the improved definition of locations for the movement and parking of vehicles and trailers on the Subject Site;

2. remediation of areas within the Subject Site to mitigate contamination of areas to be used for the Proposed Development;

3. the construction of earth banks along certain areas bounding neighbouring properties, and the planting of trees and other vegetation to provide dust mitigation and visual screening of the proposed Development from neighbours.

17. The Respondent further submitted that it was satisfied that the Proposed Development, as amended, and along with the proposed imposition of the Parties’ agreed conditions of consent, was:

1. acceptable to Endeavour Energy in terms of the management of easements for transmission lines on the Subject Site, and that Endeavour Energy had confirmed this in writing to the Respondent;

2. compliant with the relevant provisions of SEPP55;

3. compliant with all applicable provisions of WLEP and WDCP; and

4. did not engage the provisions of cl 7.3 of WLEP as the Proposed Development did not include the use of any part of the Subject Site that contained environmentally sensitive lands, and did not affect any of the types of land identified within scl 7.3(3) of WLEP.

18. The Parties had tendered as evidence their proposed condition of consent along with a proposed Plan of Management prepared by Weir Phillips Heritage and Planning at the hearing.

19. In response to several questions from the Court, the Parties requested a short period of time to revise and finalise both documents following the conclusion of the hearing, and that request was granted.

20. Final agreed conditions of consent, and a revised Plan of Management, have now been filed with the Court. I have reviewed these documents and agree with submission of the Parties that, when taken together with the Applicant’s amended plans, they satisfactorily resolve the contentions in this appeal.

Conclusion

21. As noted above, I am satisfied that the Applicant’s amended plans, including its revised Plan of Management, along with the agreed conditions of consent filed by the Parties, have resolved the contentions in this appeal.

22. As a consequence, I find that the Applicant’s Development Application No. No. 10.2015.284.001 for use of land as a transport depot at 70 Prices Road, Douglas Park, also identified as Lot 1 in DP 249565, is in the public interest and should be approved.

Orders

23. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 10.2015.284.001 for use of land as a transport depot at 70 Prices Road, Douglas Park, also identified as Lot 1 in DP 249565, is determined by the grant of consent, subject to the conditions provided at Annexure ‘A’ to this judgment.

3. The exhibits are returned, with the exception of Exhibits A and 1.

………………………………..

Michael Chilcott

Commissioner of the Court

Annexure A (213 KB)

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Decision last updated: 18 October 2019