Epping Real Estate Pty Ltd v Blacktown City Council

[2024] NSWLEC 1442

Land and Environment Court

New South Wales

Medium Neutral Citation:

Epping Real Estate Pty Ltd v Blacktown City Council [2024] NSWLEC 1442

Hearing dates:

Conciliation conference 2 May 2024, 18 July 2024

Date of orders:

16 August 2024

Decision date:

16 August 2024

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

In proceedings 2023/317256:

The Court orders that:

(1) The Applicant is granted leave to rely on the amended development application.

(2) The appeal is upheld.

(3) Development Application No. DA-23-00932, as amended, seeking consent for use of existing structures at 4 Steel Street, Blacktown NSW as storage premises, warehouse and distribution centre and vehicle repair station including two existing (2) fuel containers is determined by the grant of development consent subject to the conditions in Annexure A.

(4) The Applicant is to pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment as agreed or assessed.

In proceedings 2023/236164:

The Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order issued by the Respondent to the Applicant on 30 June 2023 under Div 9.3 and Sch 5 Pt 1 of the Environmental Planning and Assessment 1979 (EPA Act) is, pursuant to s 8.18(4)(a) of the EPA Act, revoked.

(3) Each party shall pay its own costs of these proceedings.

Catchwords:

DEVELOPMENT APPLICATION – use of existing structures – conciliation conference – amended plans- agreement between the parties – orders made

DEVELOPMENT CONTROL ORDER – stop use order – demolish works order- conciliation conference – additional information provided – agreement between the parties – development control order to be revoked – orders made.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15, 8.18, 9.34

Land and Environment Court Act 1979, s 34, Div 9.3, Sch 5 Pt 1

Blacktown Local Environmental Plan 2015, cll 4.3, 7.7

Environmental Planning and Assessment Regulation 2021, ss 23, 38

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 3.6, 3.11, 3.12, 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.112

Texts Cited:

Blacktown Development Control Plan 2015

Department of Planning ‘Hazardous and Offensive Development Application Guidelines: Applying SEPP 33’, January 2011

Category:

Principal judgment

Parties:

Epping Real Estate Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
S Scheider (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Houston Dearn O’Connor Lawyers (Respondent)

File Number(s):

2023/236164
2023/317256

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: In the matter 2023/236164, the Applicant appeals pursuant under s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) the issue of a development control order (DCO) by Blacktown City Council. The DCO has two parts. Firstly, an Order 1 “Stop Use” and secondly an Order 3 “Demolish Works”, both were issued under s 9.34(1)(b) of the EPA Act. The ‘Stop use’ order was issued as the premises were being utilised for a purpose which was prohibited, namely as a storage premises and for short term accommodation for truck drivers. The ‘Demolish Works’ order was issued as some structures and buildings on the premises had been erected without development consent. The DCO was issued over Lot 1 DP 591314, 4 Steel Street, Blacktown. On 16 August 2023 Moore J granted, by consent, a stay of the DCO to allow time for the resolution of the issues raised by it, including until the final determination of the related Development Application.

2. Matter 2023/317256, by orders of the Registrar, ran concurrently with 2023/236164. In that matter the Applicant appeals pursuant to s 8.7 of the EPA Act against the deemed refusal of development application DA-23-00932. That development application, as amended, seeks consent for use of existing structures at 4 Steel Street, Blacktown as storage premises, warehouse and distribution centre and vehicle repair station including two existing fuel containers.

3. The Court arranged a conciliation conference for both matters under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 May and 18 July 2024. I presided over the conciliation conference. At the conciliation conference the parties reached agreement in principle and the conciliation was adjourned to allow the parties to prepare the relevant documentation and amendments to give effect to their agreement. The parties have continued discussions and have reached an agreement as to the resolution of the proceedings. The parties’ agreement is for the revocation of the DCO and the grant of consent to the application, as amended, subject to conditions. 

2023/236164: the DCO appeal

4. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

(4) On hearing an appeal, the Court may:

(a) revoke the development control order; or

(b) modify the development control order; or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

5. It is clear that the Court has power to revoke a DCO pursuant to s 8.18(4)(b) of the EPA Act.

6. 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. I make those orders at [1].

2023/236164: the development application appeal

7. 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 on the basis that:

1. The site is owned by the Applicant; however, the development application was made by RAM Building Group as agent for the Applicant. Owner’s consent has been provided as required by s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2. Between 17 and 31 October 2023, the Development Application was notified by the Respondent. No submissions were made in response to the notification.

3. Pursuant to s 2.112(4) of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) a consent authority must give written notice of the application to Transport for NSW (TfNSW) within 7 days after the application is made and take into consideration any submissions provided by TfNSW in providing consent. The Development Application was referred to TfNSW and on 7 September 2023. TfNSW advised that no objections were raised to the Development Application however, recommended that swept paths be provided by the Applicant for the Respondent to consider. TfNSW also recommended that survey data is used to obtain trip data entering and exiting the Site as the Development Application concerned existing development with no changes. Both documents above have been supplied by the Applicant to the Respondent, and the parties agree and I accept I can be satisfied that the Development Application will not have any impacts on traffic safety, road congestion or parking implications, and that the requirements of the SEPP TI have been met.

4. Section 3.12 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires that a consent authority must consider the items at s 3.12 before granting consent grant consent for development that is a ‘hazardous’ or ‘offensive’ industry or has the potential to be a ‘hazardous’ or ‘offensive’ industry. The Development Application seeks consent for the use of 2 x 22,000L integrally bunded diesel fuel tanks located on the Site. The storage of diesel on the Site means that the development seeks consent for a potentially hazardous industry per s 3.6 of SEPP RH.

5. Section 3.11 of SEPP RH requires the Applicant to prepare preliminary hazard analysis and submit it with the development application. Accordingly, the Applicant has submitted a preliminary hazard analysis prepared by Riskcon Engineering dated 26 February 2024 (Hazard Assessment). The Hazard Assessment concludes that the threshold quantities for the Dangerous Goods proposed to be stored and transported on Site do not exceed the threshold levels as set out in the ‘Hazardous and Offensive Development Application Guidelines: Applying SEPP 33’ published by the Department of Planning dated January 2011. Further, the Hazard Assessment concluded that the site operations would be unlikely to result in noise or odour to occur at levels which would cause offense. In determining the development application, I have given consideration to the matters listed at s 3.12 of SEPP RH.

6. Section 4.6 of the SEPP RH requires that a consent authority must not grant consent to any development on the land unless it has considered whether a site is contaminated or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use. Further, if the land requires remediation to be made suitable, the consent authority is to be satisfied that the land will be remediated before the land is used for that purpose. The Statement of Environmental Effects (SEE) confirms that the site has been used as an industrial manufacturing facility with the majority of the manufacturing being paint and paint products. Groundwater monitoring event reports submitted with the development application confirms that there was no indication of any discernible deterioration of the overall contamination levels identified at the Site in 2013. The Groundwater Monitoring Event Reports prepared by Canopy Enterprises dated 12 April 2023 also recommends:

1. Groundwater at key wells at the Site should be monitored on a six to nine monthly basis; and

2. An Environmental Management Plan (EMP), in alignment with previous intentions, should be developed for the Subject Site outlining the procedures required to adequately manage and monitor the on-site contamination.

7. Accordingly, the development application is accompanied by an updated Environmental Management Plan prepared by Canopy Enterprises dated 20 May 2024. The annexed conditions require compliance with the Environmental Management Plan and review of the site by an accredited site auditor prior to the issue of a Construction Certificate. The parties agree, and I accept, that the site is consistent with the requirements of SEPP RH and is suitable for continued use for storage premises, warehouse and distribution, fuel storage and vehicle repair station. I note no change of use is proposed. The parties agree and I accept that s 4.6 of SEPP RH is satisfied.

8. Pursuant to the Blacktown Local Environmental Plan 2015 (LEP 2015) the site is located in the E3 Productivity Support Zone. Development for the purposes of “storage premises, warehouse and distribution centre and vehicle repair station” is permitted with consent. In determining the development application, I have considered the objectives of the E3 Productivity Support Zone.

9. Clause 4.3 ‘Height of Buildings’ of LEP 2015 applies to the land and provides a maximum height for buildings on the land of 32m. The development application seeks consent for the use of structures with a maximum height of 13m, compliant with the control.

10. Clause 7.7 ‘Design Excellence’ of LEP 2015 applies to the land as it is shown on the Design Excellence Map. Pursuant to cl 7.7(3), development consent cannot be granted to development to which the clause applies unless the consent authority is satisfied that the development exhibits design excellence. I note that the development application seeks consent for use, and no works to existing structures are proposed. With the benefit of the letter prepared by Shobha Designs addressing the requirements of cl 7.7 of LEP 2015, and following a review of the amended development application I am satisfied the development exhibits design excellence for the following reasons:

1. I note the explanation and assessment in the letter by Shobha Designs that accompanies the development application;

2. The form, materials and detailing of the amended proposal achieve a standard of architectural design that is consistent with and reinforce the industrial character of the site and locality. Further, the form and external appearance of the amended proposal are responsive to the site's opportunities and constraints;

3. The site is a battle axe, land locked property. There is no impact arising from the proposed development on maintaining view corridors from adjoining development;

4. The development will not detrimentally impact on any land protected by solar access controls established in the Blacktown Development Control Plan 2015 (DCP 2015).

5. The use of the proposed structures sought in the development application is consistent with the requirements of DCP 2015. Further, the amended development application has considered and addressed the following relevant provisions of DCP 2015:

1. Part A - Introduction and General Guidelines

2. Part A, Section 6 - Car parking

3. Part J - Water Sensitive Urban Design and Integrated Water Cycle Management

6. The land is suitable for the development because the existing use is maintained, and the design is responsive to the built environment including the identified values of nearby heritage items and heritage conservation area;

7. The height is compliant with the height of building development standard for the site; and

8. There are no unreasonable amenity impacts on adjoining development, considering the density and industrial character of the locality.

11. DCP 2015 applies to the site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of DCP 2015. In determining the development application, I have considered the provisions of the development control plan: subs 4.15(1) of the EPA Act.

8. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

9. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

10. The Court notes that:

1. The Respondent, Blacktown City Council, as the relevant consent authority, approves, pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) the amendment of development application no. DA-23-00932 in accordance with the following amended plans and documents:

TAB	DOCUMENT	DATE
1	Updated Statement of Environmental Effects prepared by Willowtree Planning	18 April 2024
2	Updated Plan of Management prepared by RAM Build group (Rev 5)	5 June 2024
3	Traffic Contentions Response prepared by Transport and Traffic planning Associates, including: • Appendix A: Turnpath Analysis • Appendix B: Traffic Survey Results • Appendix C: SIDRA results	20 June 2024
4	Updated BCA Fire Safety Audit Report	22 May 2024
5	Updated Environmental Management Plan prepared by Canopy Enterprises	20 May 2024
6	Updated SEPP (Resilience and Hazards) Assessment prepared by Riskcon Engineering	26 February 2024
7	Updated Waste Management Plan prepared by Land and Groundwater Consulting	6 March 2024
8	Blacktown LEP 2015 cl 7.7 Design Excellence statement prepared by Shobha Designs	8 March 2024
9	BCA Access Report prepared by iAccess Consultants	4 April 2024
10	Section J – Complying Evidence Report prepared by Outsource Ideas
11	On-Site Detention Calculation Sheet for Upper Parramatta River Catchment HED Secondary Outlet prepared by Align Engineering Services	20 May 2024
12	Rainwater Tanks and Water Reuse Calculations prepared by Align Engineering Services	20 May 2024
13	Structural Certificate (Awning C) prepared by Geoff Hopkins and Associates	7 May 2022
14	Structural Certificate (Office D footings and slabs on ground) prepared by ABVD Design	4 June 2021
15	Structural Certificate (Office D First Floor and roof framing) prepared by ABVD Design	9 July 2021
16	Termite Treatment Certificate prepared by AAK Pest Services Pty Ltd	26 July 2021
17	Updated Survey Plans prepared by C.M.S Surveyors, updated by Ballenden Surveyors	5 April 2024
18	Updated Architectural Plans prepared by Shobha Designs: • A000 Cover page (Rev D) • A101 Site Plan (Rev D) • A102 Carparking Layout as per DCP Car Space Requirements (Rev D) • A103 Allocation Of Use & Provided Car Parking (Rev D) • A104 Fire Rescue NSW 6m Travel Path (Rev D) • A105 Application Location Plan (Rev D) • A201 Building A - Mechanical Workshop Layout (Rev C) • A202 Building A - Red Truck Layout (Rev C) • A203 Building A - Lander Toyota Layout (Rev C) • A204 Building A - North Elevation (Rev C) • A205 Building A - South Elevation (Rev C) • A206 Building A - East & West Elevations (Rev C) • A301 Building B & C Layout (Rev C) • A302 Building B & C Elevations (Rev C) • A401 Building A – East and West Elevations (Rev C) • A402 Office – Floor Plans and Section (Rev C) • A403 Office – Elevations (Rev C) • A501 Lunchroom & Amenities (Rev C) • A601 Meeting Room (Rev C) • A701 Awning C - Floor Plan (Rev B) • A702 Awning C - Roof Plan (Rev B) • A703 Awning C - Elevations (Rev B) • A801 Fuel Tank - Lennons (Rev B) • A802 Fuel Tank - Red Truck (Rev B) • A901 Open Container Storage (Rev C)	4 June 2024
19	Updated civil engineering plans prepared by Align Engineering Services (Rev A): • C001 Hydraulic Services Existing In-Ground Site Stormwater Services Overall • C100 Hydraulic Services Existing Proposed Rainwater & OSD Tank Location C300 Hydraulic Services Existing RW & OSD DETAIL Sheet 1	21 May 2024
20	Updated Landscaping Plans prepared by Michael Sui Landscape Architects (Rev B) • Landscape Planting Plan 1 of 2 Landscape Planting Plan 2 of 2	3 June 2024

2. The amended development application is not required to be lodged on the NSW Planning Portals pursuant to section 38(4) of the EPA Regulation.

3. The Applicant has filed the amended development application with the Court.

Orders

In matter 2023/317256:

11. The Court orders that:

1. The Applicant is granted leave to rely on the amended development application.

2. The appeal is upheld.

3. Development Application No. DA-23-00932, as amended, seeking consent for use of existing structures at 4 Steel Street, Blacktown NSW as storage premises, warehouse and distribution centre, and vehicle repair station including two existing fuel containers is determined by the grant of development consent subject to the conditions in Annexure A.

4. The Applicant is to pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendment as agreed or assessed.

In matter 2023/236164:

12. The Court orders that:

1. The appeal is upheld.

2. The Development Control Order issued by the Respondent to the Applicant on 30 June 2023 under Div 9.3 and Sch 5 Pt 1 of the Environmental Planning and Assessment 1979 (EPA Act) is, pursuant to s 8.18(4)(a) of the EPA Act, revoked.

1. Each party shall pay its own costs of these proceedings.

D Dickson

Commissioner of the Court

2023.317256 Annexure A

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Decision last updated: 16 August 2024