EDC Group Pty Ltd v Sutherland Shire Council

[2025] NSWLEC 1321

Land and Environment Court

New South Wales

Medium Neutral Citation:

EDC Group Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1321

Hearing dates:

Conciliation Conference 6 March 2025

Date of orders:

09 May 2025

Decision date:

09 May 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $7,000 payable within 28 days.

(2) The appeal is upheld.

(3) Development Application DA24/0573, as amended, for the demolition of the existing structure and construction and use of a new warehouse at 25 Marshall Road, Kirrawee, is determined by the grant of consent subject to the conditions at Annexure A.

Catchwords:

APPEAL – Development application – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.10, 8.11, 8.15

Land and Environment Court Act 1979, ss 17, 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, s 3.6, Sch 5

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

Sutherland Local Environmental Plan 2015, cll 4.3, 4.4, 6.2, 6.4, 6.14, 6.15, 6.16

Category:

Principal judgment

Parties:

EDC Group Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
J Oldknow (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2024/473909

Publication restriction:

No

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the respondent’s deemed refusal of the applicant’s development application DA24/0573 (Development Application) for the demolition of an existing structure and the construction of a new two-storey warehouse, land use and erection of a business identification sign on land identified as Lot 61 in Deposited Plan 545276, known as 25 Marhsall Road, Kirrawee (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. For the purposes of this appeal, the Development Application is accepted as being lodged on 13 October 2024.

4. On 6 December 2024, the application was notified for a period of 14 days plus additional time to account for the legislated exclusion period. The notification period ceased on 13 January 2025. No submissions were received in response to the notification.

5. On 20 December 2024, the proceedings were commenced by the applicant against the deemed refusal of the Development Application, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 6 March 2025 and adjourned on two occasions.

7. During the course of the conciliation process, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Development Application in an amended form, subject to conditions of consent.

8. The agreed amendments to the Development Application include:

1. revising the stormwater management scheme;

2. updating plans to demonstrate additional landscaped area;

3. raising the building by 800mm to facilitate efficient stormwater disposal;

4. relocating skip bins for waste collection;

5. providing a demolition plan; and

6. updating architectural plans,

7. (collectively, the Amended Development Application).

9. The parties provided a signed s 34 agreement supported by a jurisdictional statement on 22 April 2025.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

Jurisdictional considerations

11. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

12. The applicant is the registered proprietor of the Subject Land and provided its consent to the lodgement of the Development Application (see Class 1 Application, tab 1).

State Environmental Planning Policy (Resilience and Hazards) 2021

13. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. 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

3. 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.

14. A Detailed Site Investigation was prepared by Geotechnique dated 21 March 2025 (DSI) which determined that the Subject Land is likely contaminated, however, can be made suitable for its intended use if remediated in accordance with the Remedial Action Plan prepared by Geotechnique, dated 7 April 2025 (RAP).

15. The parties agree, and I accept, that the Subject Land will be remediated and made suitable for its intended use before the land is used for that purpose by way of:

1. Condition 41 of the Agreed Conditions, which requires the Subject Land to be remediated in accordance with the RAP; and

2. Condition 59 of the Agreed Conditions, which requires the preparation of a validation report prior to the issue of an occupation certificate, which verifies that the Subject Land has been remediated in accordance with the RAP.

16. Pursuant to s 4.6(1) of the RH SEPP, in determining the Amended Development Application and having regard to the DSI, RAP and Conditions 41 and 59 of the Agreed Conditions, I am satisfied that the Subject Land will be remediated and made suitable for the purpose for which the development is proposed to be carried out before the land is used for that purpose.

State Environmental Planning Policy (Transport and Infrastructure) 2021

17. Chapter 3 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP) applies to the proposal as the Amended Development Application proposes the erection of a business identification sign.

18. Section 3.6 of the TISEPP relevantly provides that a consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied that the proposed signage is consistent with the objectives of the chapter and satisfies the criteria specified in Sch 5.

19. The proposed signage has been assessed against the objectives of Ch 3 and the assessment criteria specified in Sch 5 of the TISEPP in the Statement of Environmental Effects prepared by Maximus Developments dated September 2024 (SEE) (see pp 9-11).

20. Having regard to the SEE and agreement of the parties, I accept that the proposed signage is consistent with the objectives of Ch 3 and satisfies the assessment criteria specified in Sch 5 of the TISEPP.

Sutherland Local Environmental Plan 2015

21. The Subject Land is zoned E4 General Industrial under the Sutherland Local Environmental Plan 2015 (SLEP). Accordingly, the proposal is permitted with consent in the E4 zone. I have had regard to the zone objectives which are extracted below:

• To provide a range of industrial, warehouse, logistics and related land uses.

• To ensure the efficient and viable use of land for industrial uses.

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

• To encourage employment opportunities.

• To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

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

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

22. I note that the parties agree that the Amended Development Application is consistent with these objectives.

23. Pursuant to cl 4.3 of the SLEP, the maximum building height permissible for the Subject Land is 16m. The parties agree that the Amended Development Application complies with this standard.

24. Pursuant to cl 4.4 of the SLEP, a maximum floor space ratio (FSR) development standard of 1:1 applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.

25. Pursuant to cl 6.2 of the SLEP relating to earthworks, the consent authority must consider the matters listed in cl 6.2(3) in deciding whether to grant development consent. The parties agree, and I accept, that:

1. the proposed works are not expected to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land; and

2. the SEE considers cl 6.2 of the SLEP and concludes that the earthworks are considered to be minimal and commensurate of that of other industrial uses with similar topography (see p 12).

26. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 6.2(3) of the SLEP having regard to the agreed position of the parties, SEE and Agreed Conditions.

27. Pursuant to cl 6.4 of the SLEP relating to stormwater management, a consent authority must be satisfied of the matters listed in cl 6.4(3) before granting development consent. The parties submit and I accept that the matters listed in cl 6.4(3) of the SLEP are satisfied by the Amended Development Application having regard to the Amended Stormwater Management Plans prepared by M.M Farah Civil Structural which confirm:

1. a rainwater tank has been included above ground;

2. stormwater will flow towards Marshall Road and to an existing stormwater pit;

3. the use of water permeable surfaces will be maximised and significant adverse impacts from stormwater runoff on adjoining properties avoided; and

4. that relevant flood measures have been considered.

28. Pursuant to cl 6.14 of the SLEP relating to landscaped area in certain residential, employment, conservation and waterway zones, 10% of the site area must be landscaped area. The parties agree that the Amended Development Application complies with this clause.

29. Pursuant to cl 6.15 of the SLEP relating to energy efficiency and sustainable building techniques for commercial and industrial developments, development consent must not be granted to relevant development unless the consent authority has considered the matters specified in cl 6.15(2). The parties agree and I accept that the matters listed in cl 6.15(2) are considered in the Part J BCA Report prepared by Sustainability-Z dated 30 August 2024 (J Report).

30. Pursuant to cl 6.16 of the SLEP relating to urban design - general, the consent authority must consider the matters specified in cl 6.16(1) in deciding whether to grant development consent. The parties agree, and I accept, that the proposal exhibits an acceptable high quality design in accordance with cl 6.16(1) of the SLEP.

Sutherland Development Control Plan 2015

31. The parties submit, and I accept, that the provisions of the Sutherland Development Control Plan 2015 that are of relevance have been taken into account in assessing the Amended Development Application.

Remaining matters under s 4.15 of the EPA Act

32. The parties agree that the Amended Development Application can be approved taking into consideration the matters listed in s 4.15(1)(b)-(e) of the EPA Act.

33. Matters relevant to subsections (b), (c) and (e) are considered generally in the SEE (see p 31).

34. In relation to s 4.15(1)(d) of the EPA Act, details of the notification of the Development Application is set out above at [4]. As also set out at [4], no submissions were received in relation to the notification.

Conclusion

35. 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.

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

37. The Court notes that:

1. The respondent, as the relevant consent authority, has approved, under s 38(1) of the Environmental Planning and Assessment Regulation 2021, the applicant’s amendment to Development Application DA24/0573, in accordance with the following plans and documents:

TAB	DOCUMENT	DATE
1.	Architectural Plans (Rev F) prepared by David De Chiara • 1: Cover Page • 2: Site Plan • 3: Ground Floor Plan • 4: First Floor Plan • 5: Roof Plan • 6: Front, Rear Elevations and Colour Schedule • 7: Side Elevations • 8: Sections • 9: Areas & Driveways • 10: Landscape Area Plan • 11: Ambulant Details • 12: Disabled Details • 13: WC Details • 14: Demo Plan • 15: Swept Path • 16: Safety Notes	9 April 2025
2.	Landscape Plans prepared by Monaco Designs Pty Ltd • Sheet 1 of 2: DA Landscape Concept • Sheet 2 of 2: Landscape Details	27 March 2025
3.	Stormwater Plans prepared by M.M Farah Civil / Structural • Sheet 1 of 2: Stormwater and Sediment Control Plan • Sheet 2 of 2: Stormwater and Sediment Control Plan	17 February 2025
4.	Survey Plan (Rev B) prepared by Ensure Consulting	19 March 2025
5.	Swept Path Diagrams including: • B99 • MRV (reversing) • SRV	-
6.	Service Location Survey prepared by Geoscope Utility Detection Services Pty Ltd • Sheet 1 of 3 • Sheet 2 of 3 • Sheet 3 of 3	14 March 2025
7.	Fire Hydrant Service Assessment prepared by C & M Consulting Engineers	14 March 2025
8.	Truck Management Plan prepared by Saluq Traffic Engineering Services	April 2025
9.	Remedial Action Plan prepared by Geotechnique Pty Ltd	7 April 2025
10.	Detailed Site Investigation prepared by Geotechnique Pty Ltd	21 March 2025

2. The documents referred to above were filed with the Court on 22 April 2025.

Orders

38. The Court orders that:

1. The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the agreed amount of $7,000 payable within 28 days.

2. The appeal is upheld.

3. Development Application DA24/0573, as amended, for the demolition of the existing structure and construction and use of a new warehouse at 25 Marshall Road, Kirrawee, is determined by the grant of consent subject to the conditions at Annexure A.

N Targett

Commissioner of the Court 

Annexure A (447 KB, pdf)

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Decision last updated: 09 May 2025