CSR Building Products Ltd v Fairfield City Council

Case •

[2015] NSWLEC 1284

•

30 July 2015

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: CSR Building Products Ltd v Fairfield City Council [2015] NSWLEC 1284
Hearing dates:15-17 July 2015
Decision date: 30 July 2015
Jurisdiction:Class 1
Before: Morris C
Decision:

See para 77 and 78

Catchwords: DEVELOPMENT APPLICATION: subdivision, impacts on adjoining land
Legislation Cited: State Environmental Planning Policy (Western Sydney Employment Area) 2009; Fairfield Local Environmental Plan 2013; Rural Fires Act 1997; State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Category:Principal judgment
Parties: CSR Building Products Ltd (Applicant)
Fairfield City Council (Respondent)
Representation:

Counsel: Ms S Duggan SC (Applicant)

    Solicitors:
Ms J Wauchope, Gadens
Mr A Seton, Marsdens Law Group
File Number(s):10634 of 2014

Judgment

  1. CSR Building Products Pty Ltd lodged Development Application 893.1/2013 with Fairfield City Council on 19 December 2013 seeking consent for an industrial subdivision in three stages to create a total of 14 lots for employment purposes, a conservation lot, new public roads and associated drainage. The council has not determined the application and CSR is appealing its deemed refusal.

  2. The main issue in the case is the impact of the proposed subdivision on adjoining land.

The planning controls

  1. That part of the site that is proposed to be subdivided for employment purposes is zoned IN1 General Industrial under State Environmental Planning Policy (Western Sydney Employment Area) 2009 SEPP(WSEA). That part of the site that contains a conservation area is zoned E2 Environmental Conservation under that plan.

  2. SEPP(WSEA) prevails over any other environmental planning instrument in the event of any inconsistency (clause 8(2)).

  3. Clause 11(2) requires the consent authority to have regard to the objectives of a zone when determining a development application. The objectives of each zone are:

Zone IN1   General Industrial

Objectives of zone

•  To facilitate a wide range of employment-generating development including industrial, manufacturing, warehousing, storage and research uses and ancillary office space.

•  To encourage employment opportunities along motorway corridors, including the M7 and M4.

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

•  To facilitate road network links to the M7 and M4 Motorways.

•  To encourage a high standard of development that does not prejudice the sustainability of other enterprises or the environment.

•  To provide for small-scale local services such as commercial, retail and community facilities (including child care facilities) that service or support the needs of employment-generating uses in the zone.

Zone E2   Environmental Conservation

Objectives of zone

•  To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values.

•  To prevent development that could destroy, damage or otherwise have an adverse effect on those values.

  1. In accordance with the provisions of clause 14 of SEPP(WSEA) consent is required for subdivision. The provisions of clause 18(1) prohibits the granting of consent to development unless a development control plan has been prepared for the land to which the application applies. A draft development controls plan has been prepared and exhibited but not made. The parties agree that a plan has been prepared so the clause does not prevent consent being granted.

  2. Clause 21 is in the following form:

21 Height of buildings

The consent authority must not grant consent to development on land to which this Policy applies unless it is satisfied that:

(a) building heights will not adversely impact on the amenity of adjacent residential areas, and

(b) site topography has been taken into consideration.

  1. Clause 23 applies to development adjoining residential land and is in the following form:

(1) This clause applies to any land to which this Policy applies that is within 250 metres of land zoned primarily for residential purposes.

(2) The consent authority must not grant consent to development on land to which this clause applies unless it is satisfied that:

(a) wherever appropriate, proposed buildings are compatible with the height, scale, siting and character of existing residential buildings in the vicinity, and

(b) goods, plant, equipment and other material resulting from the development are to be stored within a building or will be suitably screened from view from residential buildings and associated land, and

(c) the elevation of any building facing, or significantly exposed to view from, land on which a dwelling house is situated has been designed to present an attractive appearance, and

(d) noise generation from fixed sources or motor vehicles associated with the development will be effectively insulated or otherwise minimised, and

(e) the development will not otherwise cause nuisance to residents, by way of hours of operation, traffic movement, parking, headlight glare, security lighting or the like, and

(f) the development will provide adequate off-street parking, relative to the demand for parking likely to be generated, and

(g) the site of the proposed development will be suitably landscaped, particularly between any building and the street alignment.

  1. The parties agree that the site does not adjoin or is not within 250m of land that is zoned primarily for residential purposes however the town planning experts agree that the clause provides guidance in assessing the impacts of the development from land to the south in Greenway Place, Horsley Park. This issue is the main contention in the case and is discussed in detail below.

  2. That land is zoned RU4 Primary Production Small Lots under Fairfield Local Environmental Plan 2013 (FLEP). The objectives of that zone are:

• To enable sustainable primary industry and other compatible land uses.

• To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To ensure that development is sympathetic to the rural environment and minimises risks from natural and man-made hazards.

  1. Clause 25 requires satisfaction as to adequate arrangements having been made to make available public utility infrastructure. There is no contention that the necessary services will not be available.

  2. Clause 26 requires the referral of a development application that applies to land that is situated on or in the vicinity of a proposed transport infrastructure route to the Director-General of the Department of Planning and Environment. The site is adjacent to such a route and the council has referred the application as required. The concerns of the department went to the location of the proposed western access point and its proximity to an approved intersection to the west on adjoining land.

  3. Roads & Maritime Services has, in correspondence dated 29 January 2015, Tab 14 Exhibit B, provided general support to the staged access principles identified within the application. It requires an internal access road at stage 3 and this was agreed by the applicant during the hearing. Consent conditions reflecting that requirement are required.

  4. Clause 28 of SEPP(WSEA) applies to the Industrial Release Area. The site is within that area. The object of the clause is to require assistance to authorities of the State towards the provision of regional transport infrastructure and services (including the Erskine Park Link Road Network) to satisfy needs that arise from development on land to which the clause applies. Pursuant to the provisions of subclause (3), consent must not be granted unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of that infrastructure and services. However, subclause (3) only applies if the land that is the subject of the application for development consent was not being used for industrial purposed immediately before the application was made.

  5. It is the applicant’s position that the land was being used for industrial purposes on the relevant date and continues to be so used. The council says that only part of the land was being used for industrial purposes with the remaining sections used for conservation and as a landfill.

  6. The applicant advises that should the Court find consent could be granted on merits that it would await the finalisation of a Voluntary Planning Agreement that has been offered to the Department. Once that has been finalised, the necessary certificate will be issued by the Director-General. That would allow final Orders to be made.

  7. Clause 31 of SEPP(WSEA) applies to design principles and requires a consent authority to take into consideration whether or not:

(a) the development is of a high quality design, and

(b) a variety of materials and external finishes for the external facades are incorporated, and

(c) high quality landscaping is provided, and

(d) the scale and character of the development is compatible with other employment-generating development in the precinct concerned.

  1. The application is Integrated Development and was referred to NSW Rural Fire Services (RFS). A bush fire safety authority has been issued as required under section 100B of the Rural Fires Act 1997 subject to a number of conditions. Those conditions have not been incorporated into the draft consent conditions and would need to be should consent be granted.

The site and its context

  1. The application relates to land described as Lot 1 DP 106143 and known as Nos 327-335 Burley Road, Horsley Park (site). The site has an area of 72.28 hectares, is rectangular in shape with an average width of 800m and depth of 911m. It is located on the southern side of Burley Road and a reserved road and at the southern end of Old Wallgrove Road.

  2. An operational extractive industry (brick quarry) and brick making facility is located in the northern part of the site with several dams located south and west of the existing factory buildings. An area of Environmental Conservation Land is at the south-eastern corner of the site. A former quarry has been filled. That landfill is located within proposed Lot 201(stage 2) and, according to the evidence has been filled with non-putrescible waste and is subject to ongoing maintenance and monitoring.

  3. The existing development has vehicular access via the intersection of Old Wallgrove Road and the unsealed portions of Burley Road and the reserved road. Sections of these roads (including along the frontage of the site) have been identified by the NSW Department of Planning and Environment (DPE) as part of a future State arterial road associated with the Erskine Park Southern Link Road Extension.

  4. The link road is associated with the Western Sydney Employment Area of which the site forms a part, being located in the south-eastern corner of the major section of the land.

  5. A large grassed bund constructed to approximately RL99 runs along the southern boundary of the site and returns along the western boundary of the conservation area providing a buffer between the brickworks and the rural land to the south and east of the site. Its footprint is up to around 60m in width.

  6. The proposal to remove and replace that bund with a vegetated engineered bund and retaining walls goes to the primary contention in the case.

  7. Development to the immediate east and part of the southern section of the site is outside the area to which SEPP(WSEA) applies. That land is within the Fairfield Council local government area (LGA) and is zoned for rural purposes. To the immediate south of the site that land is used primarily for large lot housing and the objections the council received came from owners of that land in Greenway Place, Horsley Park. It is that land that is zoned RU4 Primary Production Small Lots.

  8. Land to the south on the western side of the site and to the west is within the Penrith LGA, is within the employment area and subject to the provisions of SEPP(WSEA). The adjoining allotment is an L-shaped lot with an area of 100ha and has been described during the hearing as the Jacfin land. It has frontage to the unmade section of Burley Road and the proposed arterial road and is currently used for grazing cattle however a concept plan and stage 1 project approval has been issued by the Planning and Assessment Commission. That approval, issued on 28 October 2013, provides for the development of the land as a distribution park of warehouses, distribution centres, light industries and associated infrastructure. The concept plan approval provides approval for stages 1 to 3A. That covers the western side of the land and follows the alignment of the western boundary of the subject site. A total of 15 lots would be created.

  9. The area to the immediate south of the site is described as stages 3B, 4 and 5 and would add a further 7 lots however is subject to the provisions of condition 4 which is in the following terms:

Scope of Approval

4.   Stages 1 to 3A are approved, subject to the modifications in this approval.

Stages 3B to 5 are not approved until written approval has been received from the Director-General. In seeking the Director-General’s written approval, the Proponent must:

(a)   Include revised plans (developed in consultation with the existing adjoining residents) and associated technical studies to demonstrate that:

A reasonable level of amenity (including visual and noise) is maintained for existing residents through the provision of appropriate mitigation measures, which could include an appropriate separation distance, building design and layout, landscaping, and/or bunding; and

Any change in ground levels have been appropriately engineered, including in relation to drainage;

(b)   Include a Landscape Management Plan prepared by a suitably qualified and experienced expert which sets out the visual mitigation measures in detail including how they will be maintained and managed over time;

(c)   detail the legally binding arrangements to be implemented to provide for the ongoing maintenance and management of the mitigation measures in the revised plans, including associated landscaping;

(d)   demonstrate consistency with the modifications of this approval; and

(e)   provide a timetable for the implementation of the revised plans and associated legally binding arrangements, consistent with the Staging Plan required in Modification 6 below, and demonstrate the mitigation measures (that are not building works) and the legally binding arrangements will be implemented, and appropriately established, prior to any building works commencing on Stages 3B to 5.

  1. Modification 6 requires a detailed staging plan is prepared in consultation with Penrith Council and relevant utility and service providers to show how development within the site is likely to be staged over the life of the Concept Plan. It must be approved by the Director-General prior to the lodgement of any applications for development within Stages 2 and 5.

  2. The Project approval relates to the stage 1 works which include subdivision of the land into two lots and the construction of a warehouse on the north eastern corner of the site on the subdivided lot. That would require the construction of a road access across the front of the site and the subject site to link to the intersection of Old Wallgrove Road and the made portion of Burley Road with access to the approved subdivision off the proposed arterial road approximately 220m to the west of the western boundary of the subject site.

  3. Land to the north of the site is undergoing redevelopment for industrial and logistics uses.

Background and the proposal

  1. The application proposes the staged subdivision of the land into 14 lots for employment uses and a conservation lot. A U-shaped public road would provide access to the lots, the eastern portion aligning as a southern extension of Old Wallgrove Road and the proposed western leg approximately 200m to the west of that intersection. Staging would be:

Stage 1   2 Lots, drainage work, draining of 2 dams, earthworks and filling of dams, tree removal, road construction in reserved road/Burley Road and new 20m wide public road accessed off that new roadwork. Proposed Lots 101 and 102 both have an area of 5.03ha and would be located in the north western corner of the site.

Stage 2   4 industrial lots and 1 conservation lot across the southern section of the site, extension of 20m wide road to service those lots, drainage work, draining of 1 dam, earthworks (including removal/reconstruction of bund) and filling of dam, tree removal within proposed industrial lots. The conservation lot would be accessed via a 6m wide right-of-way to be provided to the north of proposed lot 203. The areas of the proposed lots are

Lot 201 (landfill lot)         13.35ha

Lot 202            5.04ha

Lot 203            4.02ha

Lot 204            4ha

Lot 205 (conservation lot)      11.51ha

Stage 3   8 industrial lots, completion of 20m public road to link to the intersection of Burley and Old Wallgrove Roads, drainage work, earthworks and tree removal. The decommissioning of the brickworks factory and remediation of the site would be subject to a separate development application.

  1. It is the applicant’s intention to rebuild the western portion of the bund and replace it with vegetation and retaining walls in Stage 1 with the remainder of the bund reconstructed during Stage 2 however Ms Duggan, for the applicant, has indicated that this could be brought forward and constructed at any time and the evidence is that it could be constructed in such a manner that it would not require the removal of the northern part of the existing bund until the new bund was completed. Ms Duggan advises it would need to remain in place until such time as the quarrying operations have been completed. Mr Seton, for the council, says that the bund should be retained until such time as the brick making activities cease.

The issues

  1. The contentions in the case are that consent cannot be granted because the Director-General has not certified that satisfactory arrangements have been made for the provision of Regional transport infrastructure and services as required under clause 28 of SEPP(WSEA); the development would result in adverse amenity and visual impacts to residents of the adjoining area and the method of ensuring long term maintenance of the conservation allotment has not been resolved.

  2. As stated at [12 and 13], the applicant, to avoid the argument between the parties, submits that should certification under clause 28 be the only issue remaining after the merit issues are determined, it would be seeking directions from the Court that the certification be obtained to allow the grant of consent and final orders to be made. The council does not oppose that proposition.

  3. In relation to the amenity and visual impacts, Mr Seton advises that this contention would be resolved if the application was amended to provide for the retention of the existing grassed bund. The applicant is not prepared to amend the application due to the land take involved and proposes an alternate bund to be constructed adjacent to the Primary Production Small Lots in Greenway Place with a smaller (21m) footprint but similar height. That bund would extend approximately 70m to the west of the western boundary with those lots. A retaining wall structure of varying height would be constructed from the western extent of the bund to the western property boundary with landscaping proposed within that wall and at grade where the finished levels of the site are consistent with the adjoining land (western extent of site).

  4. The applicant proposes the environmental lot be maintained as a separate lot whereas the council is advocating it should be part of one of the industrial lots.

The evidence

  1. The matter had been the subject of earlier conciliation however no agreement had been reached and that process was terminated and the matter proceeded to hearing. At the commencement of the conciliation phase the Court had undertaken an inspection of the site and heard evidence from residents of Greenway Place which included observation of the site from within the rear yards of those properties.

  2. The hearing commenced on site with further evidence heard from four residents of Greenway Place. The issues raised are summarised as follows:

  • No objection to the proposed bund adjacent to my property however concerned it is too close and too steep, that the proposed plantings will either not grow or not be adequately maintained and will cause rainwater runoff onto property;

  • Want the existing bund maintained, it is part of the landscape;

  • Don’t want to see any industrial development from within property;

  • Concerned the removal of the bund will result in noise and dust pollution during construction and whilst the brickworks continues operation and will not provide appropriate screening of future industrial uses;

  • Proposed boundary treatment is inconsistent with the character of the area;

  • The extent of landscaping proposed is inadequate and will present as a huge difference as to what is currently seen;

  • The setbacks required for complying development are 50m so that equates to the existing bund;

  • Development fails to have regard to the amenity requirements of clause 23 of SEPP(WSEA);

  • Building pads should be lowered and hours of operation should be limited so there is no 24/7 hours of operation;

  • There is a proposal for the Jacfin land to be zoned rural residential and the development should respond to that possibility;

  • The proposed tree barrier is insufficient;

  • Concerned that barrier will not be maintained;

  • Concerns about amenity impacts from lighting;

  • Concerned the mound is contaminated;

  • Height of buildings should be limited.

  1. Expert evidence was heard from:

Applicant          Council

Town planning            Mr P Lee           Mr P Grech

Engineering                Mr S Green       Ms N Diacopoulos

Landscape                 Mr G Sturt          Ms C Mackenzie

Visual Impact              Mr J Holland

  1. These experts prepared a Joint Report, Exhibit 4. That report included details of a method of construction that may be utilised for the proposed bund wall. Those details had been provided to the applicant’s experts by Mr R Blinman. Mr Blinman was not an expert in the proceedings but was required to provide evidence, particularly in relation to the council’s contention that went to the adequacy, steepness and ability to vegetate the new bund. He is a geotechnical engineer.

  2. Mr Blinman advised that the proposed 1 in 1 slope of the batter could be constructed and be landscaped as shown on the landscape buffer plan DA-1408-01C that forms Appendix B to the Vegetation Management Plan VMP (Tab 25 Exhibit B) however, the lower parts of the batter would require the trees to be planted in deeper fill. That plan provides for a 3m wide area adjacent to the southern property boundary for maintenance which forms part of the 21m wide buffer area. the bund would have a footprint of around 18m.

  3. He was shown a sketch that had been prepared by Mr Sturt (Exhibit D) and said that this could be readily constructed to achieve the desired landscaping. In response to a question from the Court, he advised that it would be possible to mound growing medium on the top of the batter at a grade of 2:1 to provide for the planting of shrubs and achieve a soil depth of 1000-1100mm. In relation to maintenance of the batter, he advised that no structural maintenance was required, that terracing could be incorporated to assist with landscape maintenance and anchor points installed within the structure to facilitate safety apparatus. The openings in the mesh that retain the growing medium are 80x100mm.

  4. Having heard Mr Blinman’s evidence and explanation of how the system could be implemented, the experts agreed that it would not be possible to plant trees on the top of the bund however small shrubs such as acacia could be planted and achieve a height of around 4m. Ms Mackenzie agreed that these could be planted at 2m spacing and supplemented with ground covers and shrubs. Mr Sturt envisaged a planting density of 4 plants/sqm.

  5. Mr Holland says that if planted as proposed with the 4m species on the top of the bund and larger species at the base as he proposes, ultimately a 15m high building constructed on those lots that adjoin the bund would not be visible from the adjoining Greenway Place properties however conceded that until the vegetation was established that part of a building higher than 10m would be visible. As the view towards the site increase from properties further to the south the industrial buildings would be more visible through a cluster of trees. In this regard he stated that it would be appropriate to ensure denser planting at the toe of the bund to reduce the visual impact.

  6. Ms Mackenzie said a soil depth of 800-1000mm would be required to ensure tree growth at the toe of the bund and that the mesh would constrain larger plantings on the embankment however agreed that smaller shrubs may be possible and the area could be grassed and achieve the outcome proposed by Mr Sturt. Despite deferring to the engineering evidence for structural stability Ms Mackenzie remained concerned that the embankment would be subject to soil creep. She had not seen the system proposed and stated that it would be necessary to ensure appropriate performance and maintenance provisions were applied and any conditions of consent were appropriately worded, required certification of the objectives and delivered the planting densities required.

  7. Similarly, Ms Diacopoulos maintained concerns about the design of the drainage swale at the base of the proposed bund however agreed that provided appropriate performance criteria are specified, the swale is capable of being accommodated within the 3m setback. She agreed that it would be possible to engineer the bund to the slopes proposed.

  8. Mr Grech also accepts that it is possible to engineer the bund as proposed however says the crest of the existing bund is 21m from the southern boundary and the proposed bund will be much closer, steeper and look less natural. He shares Ms Mackenzie’s concerns about the final appearance of the landscaping and the ability to maintain it. Despite this fact he agrees that the bund and vegetation would deal with the visual impact of the subdivision however considers a more appropriate solution would be to construct a more natural element rather than engineered solutions.

  9. Mr Lee says the details provided by Mr Blinman and Mr Sturt demonstrate that a satisfactory screen can be provided between the future industrial development on the site and the adjoining rural lands in Greenway Place. He is satisfied that the bund can be landscaped and maintained and that it will provide an appropriate interface between the two zones. He accepts that if taller buildings are ultimately constructed on the site that the tops of those buildings would be visible but says this is appropriate in the circumstances and that there is no requirement for invisibility. As this is the first site to be developed at the zone interface, it will establish the new character and he says that it is compatible with the character of the area.

  10. Mr Sturt and Ms Mackenzie agree that it would take between 10 to 15 years for the trees to achieve a height of 10-12m and up to 30 years to achieve their ultimate height however, within 7 years they may achieve around half the expected growth. The plans propose for the planting of trees that would reach an agreed mature height of between 5m and 30m.

  11. In relation to the removal of the western portion of the bund and the replacement with tiered gabion basket rock retaining walls and/or landscaping, the plans provide for a 10m wide landscaped setback. That area includes a 3m wide access/drainage swale on the lower existing ground level, and, depending on the levels of the site, the area would be tiered in one, two or three levels. Mr Green advised that, as foreshadowed in the Joint Report, investigations were undertaken to determine whether the finished level of proposed Lot 201 could be lowered whilst ensuring site drainage would be satisfactory. He advises the level of that lot could be reduced from RL88 to RL86.5 and therefore the height of the retaining wall would be reduced by 1.5m. At its highest point, allowing for the 1.5m reduction, the wall would be 7.8m.

  12. The adequacy of the 10m wide area to support landscaping that would provide an appropriate level of screening was in contention between the experts. Whilst initially concerned in relation to the structural adequacy of the proposed walls, that issue was resolved through the hearing.

  13. Ms Mackenzie agreed that the planting as proposed in Drawing No DA-1408-02C included in the VMP could be planted and maintained provided any built form did not take place in proximity to the top level planting. She was concerned that any building, if it was to be constructed in close proximity to the boundary, would affect the root zones of that planting. She agreed that it was important any planting in that area was shade tolerant due to its southern aspect.

  14. Mr Sturt confirmed that the planting shown on that top level is likely to be destroyed if a building were to be constructed to within 10m of the boundary as shown on the plan. He also agreed, having regard to the height of the wall and proposed finished ground levels that a tree planted on ground would have to reach 8m in height to equate to the maximum finished wall height however did state that larger species could be included in the second tier planting interspersed with smaller species so as to provide taller plantings. Ms Mackenzie agreed that it would be possible to plant 12-15m trees at the intermediate level.

  15. When asked what the width of the landscaped area should be, Mr Grech says from 6-10m with 10 providing for branch spread, Mr Sturt says the proposal as shown on the plans is adequate and more than required to screen any development but agrees a 4m planting width at the top with root barriers is appropriate. Ms Mackenzie says that if you were to centre the tree at 2m and looking at medium to tall trees you will still get canopy up against the building at 4.5m at a pinch but 6m would be desirable.

  16. The experts agree that the commencement of the wall is within 250m of the boundary with the Greenway Place properties and that the distances shown on an aerial photograph, Exhibit 7, are reasonable estimates of that distance. That plan shows the nearest dwelling to be 125m (No 41-43 Greenway Place) with the two dwellings to the south being some 213m (No 38) and 228m (No 33-37).

  17. Mr Lee says the views to the wall are oblique views without any interruption across the adjoining Jacfin land and that the proposed landscape treatment is adequate to provide suitable screening.

  18. Mr Holland considers the 10m planted buffer will provide an effective screen along the southern boundary and because this area is viewed obliquely, this extends the depth of view of the planting. The rock wall face will utilise stone colour to suit the landscape with planting at the base and the top to mask the rock work.

  19. In relation to the conservation lot (proposed Lot 205), Mr Lee and Mr Grech agree that it should be consolidated with at least one industrial lot to ensure that it is maintained for this purpose in perpetuity. Mr Lee states that the Environment Conservation area would be managed via the proposed VMP and that the protection of this conservation area is appropriate to be addressed in the conditions of the development consent and there is sufficient information to consider the matter.

  20. Mr Grech says that it is best practice that conservation lots form part of a development lot rather than be left to a separate entity with no incentive to maintain the land. He did accept that any landowner was bound to comply with consent conditions and those conditions were capable of being enforced in the same way as someone who owns a factory unit.

  21. Despite the agreement of the experts, the applicant opposes the consolidation of the conservation lot with another lot and submits it can be adequately maintained as a separate lot.

Conclusion and findings

  1. The applicant has agreed, for the purposes of the jurisdictional provisions of clause 28 of SEPP(WSEA), and in the event that the Court finds the development acceptable on merits, that findings in the matter are made and orders made on receipt of the necessary certification. It is satisfied that on finalisation of the Voluntary Planning Agreement that certification will be issued. I will proceed on that basis.

  2. At the end of the evidence, the difference in the parties is that the council says there is a need to ensure that any future development on the land is not visible from the Greenway Place properties and that the existing bund should be maintained. It does not object in principle to the subdivision and is looking to ensure the visual impacts of any future industrial development are acceptable and that the proposed landscaping is capable of achieving the intent of the design and can be adequately maintained. It says the proposal is unacceptable in the form proposed.

  3. It is the position of the applicant’s experts that the extent of planting on the proposed bund and within the retaining walls is an appropriate response to screen the development and that it is not necessary that any future development is not visible from the rural area.

  4. There was also some disagreement in relation to consent conditions, in particular, the requirement for positive covenants to be registered over the lots. The applicant did not oppose the requirements as it applied to the right-of-way and the need for a covenant to protect the landscape embankments along the southern boundary however did object to those parts that reflected the terms as it says they were superfluous as these reflected the way the instrument was legally required to be made under relevant legislation. I agree.

  5. Whilst not discussed, the applicant’s conditions in reply delete conditions that require a maintenance bond. Such condition would only be appropriate where the bond is to ensure maintenance of works required on public land and not within the proposed lots.

  6. I agree that the provisions of clause 23 of SEPP(WSEA) do not apply to the application. That is because the site is not within 250 metres of land zoned primarily for residential purposes. The land in Greenway Place is zoned for Primary Production Small Lots with objectives that relate to rural rather than residential purposes. Whilst dwellings are permissible with consent in the zone, residential use is not the intent of the RU4 zone.

  7. Similarly, the greater setback requirements under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP2008) would not apply and buildings up to 15m in height could be constructed to the rear boundary of the site and to within 10m of the environmentally sensitive area provided at least 3m of that area is landscaped area. This fact highlights the importance of providing an appropriate buffer.

  8. I do accept the agreed position of Mr Lee and Mr Grech that the terms of clause 23 do provide guidance as to the assessment of the application. I note that the majority of its provisions apply to either built form or operational matters and accept that the proposed engineer bund would be a “building” for the purposes of the clause. Operational matters are not relevant to the assessment of an application for subdivision however would be relevant at the time a development application is lodged for the construction of buildings or use of the lots for any purpose. Of particular relevance to the application is that the proposed building is compatible with the height, scale, siting and character of existing residential buildings and that the site will be suitably landscaped.

  9. Having regard to the evidence, I am satisfied that a new bund can be constructed at the grades proposed. I am also satisfied that it can be landscaped as proposed in the VMP provided consent conditions reflect the performance standards, tree siting and density discussed and agreed by the landscape experts. The draft conditions do not adequately reflect that requirement and should be worded to achieve those objectives.

  10. The height of the proposed bund is similar to that of the existing bund. It would be considerably steeper and more heavily vegetated, thereby appearing as closer in proximity to the Greenway Place properties. I do not consider that this is unacceptable in the context of the site and accept the agreed position of the experts that the proposal provides an appropriate visual solution. The area has been zoned for employment purposes. SEPP(WSEA) has amongst its aims to promote economic development and the creation of employment in the area and ensure that development occurs in a logical, environmentally sensitive and cost-effective manner. This will result in change to the area and it is necessary to balance that change. The evidence of the experts is the proposal is acceptable to deal with the visual impacts of the development and I accept that evidence.

  11. The retention of the existing bund would thwart those aims due to the large footprint it occupies which is better suited to employment generating uses. What is important is that the new bund is constructed early and the landscaping reaches heights adequate to provide a visual buffer to any factory buildings that would be constructed in stage 2. The buildings in stages 1 and 3 are sufficiently distant from Greenway Place that they would not require any screening. It is not necessary that any future buildings are not visible at all. That is apparent from the wording of clause 23 of SEPP(WSEA) that requires developments that are visible from residential areas to be compatible, have goods, plant etc screened from view and facades of buildings exposed to view from that land to present an attractive appearance. There is no expectation that the buildings would be invisible.

  12. Provided the landscaping is of sufficient density as proposed by Mr Sturt and agreed by Ms Mackenzie, the outcome will result in a balanced buffer between the employment zone and the rural zone. However, until such time as the tree planting achieves heights of at least 5m above the finished lot levels, development should not occur. The early construction of the landscape setback will facilitate the establishment of plantings. As an alternate, the construction of a similar bund wall to that proposed along the eastern section of the site in that area would be acceptable.

  13. In the event that employment development within Stages 3B to 5 of the Jacfin land is approved, such requirement would no longer be relevant as that land would provide the necessary buffer. For that reason, consent conditions should be prepared that provide for that scenario.

  14. As the applicant proposes to continue quarrying and brick making at the site, the works should be done whilst the existing bund is in place and its height maintained. Mr Green says that this is possible and I accept that evidence. I am also satisfied that it will be possible to construct the necessary drainage swale within the 3m at grade setback along the site’s southern boundary. That should be designed to provide for the retention of the existing trees within that area where possible to assist in achieving the necessary screening. It is also important that access from each lot is provided to the rear to facilitate maintenance of the landscaping. Conditions that reflect this requirement are required.

  15. Conditions that require the retention and maintenance of the landscape setback to the southern boundary are also required to ensure that SEPP2008 does not permit the removal of that work and the construction of a building to the boundary. The provisions of clause 5A.5 ensure that such a condition would not be contravened. Such conditions are to include legally binding arrangements that provide for the ongoing maintenance and management of the bund, retaining walls and landscaping. Such requirement is consistent with that imposed on the Jacfin land.

  1. In relation to the conservation lot, Lot 205, I accept the agreed position of the planning experts and Mr Seton’s submission that it should be consolidated with one of the lots, either in stage 2 or 3. This would obviate the need for the right-of-way. The requirement for the maintenance of that area in accordance with the VMP should be part of the stage 1 works with similar legally binding arrangements.

  2. In relation to the issues raised by residents in terms of hours of operation, noise and lighting, I am satisfied that these issues are appropriately addressed through the draft DCP that will ultimately be made or the mandatory conditions imposed through SEPP2008, in particular conditions 21,22 and 23.

  3. For the reasons outlined above and subject to the reworking of conditions that relate to the treatment of the southern boundary so that they are performance based, there is no reason why consent should not be granted once certification under the provisions of clause 28 of SEPP(WSEA) is obtained.

Directions

  1. Having determined that consent could be granted on receipt of the certification required under clause 28 of State Environmental Planning Policy (Western Sydney Employment Area) 2009, the parties are directed to:

  1. prepare consent conditions and file those amended conditions by 31 August 2015 that reflect the findings of this judgment and in particular the following matters:

  • Finished level of lot 201 shall be RL86.5;

  • The landscaped setback along the entire southern property boundary shall be completed as part of the stage 1 works and shall be carried out without reducing the effective height of the existing bund and completed prior to release of subdivision certificate for stage 1;

  • landscaping shall achieve a minimum height of 7m above the finished level of Lots 201 for that portion of the site that does not have the bund in place prior to the release of the subdivision certificate for that lot unless stages 3b - 5 of the Jacfin land are approved in accordance with the provisions of condition 4 of Schedule 2 to the Concept Plan approval, Exhibit 5 whereby the requirement for planting to reach 7m is deleted; Ensure adequate area is provided for access to the rear of all lots that require the landscaped setback for maintenance purposes;

  • Rewording of the landscaping conditions so that they are performance based and retain the maintenance and certification provisions included in the draft conditions;

  • require denser tree planting at the toe of the bund/retaining walls with a minimum 1m soil depth, a planting density of 4 plants/sqm on the bund of which one is to be a small tree/large shrub with a trunk that will not exceed 80mm diameter at maturity;

  • retention of existing trees and accommodation of necessary drainage swale in the 3m lower portion of the setback adjacent to the southern property boundary,

  • retaining wall in max of 2 tiers (2 x 1.5m high sections as indicated on the plans in the joint report) with top tier at 10m line to increase width of planter beds to 6m and provide a 4m landscaped setback from the top of the retaining wall to negate the need for the top tier “sacrificial planting”, use shade tolerant plantings,

  • include a condition that a minimum 10m (western portion without retaining walls, 14m (western section where retaining walls are proposed) and 21m (eastern section with bund) wide landscape setback be provided along the southern boundary and maintained for the life of the consent to ensure no conflict with SEPP2008;

  • Inclusion of conditions that reflect the RFS bush fire safety authority;

  • Provide for the internal link road and limitations on access to lots in stage 1 to ensure closure of the western intersection with the arterial road is required;

  • conservation area (proposed lot 205) is to be maintained as per the VMP at stage 1 and beyond and form part of a lot in either stage 2 or 3,

  1. On receipt of the conditions referred to at (1) and the Director-General’s Certification in accordance with the provisions of clause 28 of State Environmental Planning Policy (Western Sydney Employment Area) 2009, final orders will be issued in Chambers.

_______________

Sue Morris

Commissioner of the Court

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Decision last updated: 30 July 2015

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CSR Building Products Ltd v Fairfield City Council [2025] NSWLEC 1357
CSR Building Products Ltd v Fairfield City Council [2015] NSWLEC 1415
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