Evoke Corporation Pty Ltd v Wingecarribee Shire Council

[2018] NSWLEC 1155

Land and Environment Court

New South Wales

Medium Neutral Citation:	Evoke Corporation Pty Ltd v Wingecarribee Shire Council [2018] NSWLEC 1155
Hearing dates:	19 March 2018
Date of orders:	28 March 2018
Decision date:	28 March 2018
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Orders of the Court are:  (1) The Applicant is granted leave to rely on the amended plans listed at Condition 1 of Annexure ‘A’ to this judgment; (2) The Court upholds the Applicant’s cl.4.6 written request to vary the height control development standard set out in cl.4.3 of Wingecarribee Local Environment Plan 2010 (3) The appeal is upheld; (4) The Applicant’s development application (DA 2017/0068), as amended, for the demolition of existing buildings and the erection of a supermarket building with signage at 166 Argyle Street and 6-8 Robertson Road, Moss Vale, is approved, subject to the conditions of consent annexed hereto as Annexure ‘A’; (5) The Respondent is to provide to RMS a copy of this judgment within seven (7) days after the date of orders; (6) The exhibits are returned with the exception of exhibits A and 1.
Catchwords:	DEVELOPMENT APPLICATION: construction of a supermarket; cl.4.6 request to vary development standard for height; adequacy of proposed traffic and parking arrangements; public interest.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Moss Vale Town Plan Development Control Plan 2015 State Environmental Planning Policy (Infrastructure) State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 64 – Advertising and Signage State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 Wingecarribee Local Environment Plan 2010
Cases Cited:	Nil
Texts Cited:	Wingecarribee Development Control Plan 2015
Category:	Principal judgment
Parties:	Evoke Corporation Pty Ltd Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent)
Representation:	Counsel: G. Farland (Applicant) C. Shaw (Respondent)   Solicitors: Simpson Partners Lawyers (Applicant) Shaw Reynolds Lawyers (Respondent)
File Number(s):	17/376651
Publication restriction:	No

Judgment

Background

1. COMMISSIONER: Evoke Corporation Pty Ltd (the Applicant) has appealed a decision by the Wingecarribee Shire Council (the Respondent) to refuse its development application DA2017/0068, for demolition of existing buildings and the construction of a supermarket at 166 Argyle Street and 6-8 Robertson Road, Moss Vale (the Subject Site).

2. The appeal comes to the Court pursuant to s97(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

3. The Subject Site is formally comprised of three separate titles, those being Lot A in DP 377731, Lots X and Y in DP 378400.

4. The proposed development includes:

1. demolition of existing structures;

2. site works for construction of buildings, car parking areas and infrastructure works, including drainage works;

3. construction of a loading dock, loading bay and a compactor located on the northern side of the building at ground floor level;

4. construction of a supermarket and fit out (1660m2 gross floor area (GFA)) containing one accessible toilet, a staff room, an office room, a switch room, and loading and storage areas;

5. erection of signage for building identification and ancillary directional signage;

6. removal of some trees and their replacement with suitable landscaping trees within the grounds of the Subject Site;

7. one vehicle ingress and one vehicle egress in each of Argyle Street and Robertson Road; and

8. provision of 84 car parking spaces.

5. As part of the hearing in this appeal, an inspection of the Subject Site was undertaken, during which submissions were received from:

1. Mr Brian Davis, a resident of Argyle Street Moss Vale, who expressed concern in relation to parking and traffic issues arising from the proposed development. More specifically, Mr Davis identified the following issues in his submission :

1. potential impacts arsing from increased traffic on Argyle Street, outside his residence;

2. the design of access arrangements for delivery trucks and their manoeuvring on-site into, and out of, the proposed loading bay;

3. the entry, and exit, of vehicles to and from the proposed car parking area on Robertson Road;

4. whether a need had been demonstrated for an additional supermarket within Moss Vale given the existing availability of supermarkets in Moss Vale and Bowral.

2. Ms Penelope Newlove, on behalf of Mr Mark Ritchie, also residents of Argyle Street, Moss Vale, who reiterated Mr Davis’ concerns in relation to parking and traffic issues. In addition, Ms Newhouse identified the following issues in her submission:

1. the potential for elevated safety risks and noise impacts to arise in relation to traffic associated with the proposed development;

2. the potential for light pollution impacts to be generated by lighting in the proposed car park and from the illuminated sign within the proposed development.

6. At the commencement of the hearing the Applicant sought leave to reply on amended plans, and leave was granted without objection.

Statutory context

Environmental Planning and Assessment Act 1979

7. Section 79C(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

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),

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 79C(3A) Development Control Plans 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.

State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011

9. The Subject Site is located within the Sydney drinking water catchment and, as a consequence, State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 [SEPP (SDWC)] applies to the proposed development.

10. Clause 10 of SEPP (SDWC) provides that a consent authority must not grant consent unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality.

11. Clause 11 of SEPP (SDWC) requires that the development receive the concurrence of the Chief Executive of Water NSW.

12. That concurrence was obtained on 23 May 2017, and satisfied me that the requirements of clauses 10 and 11 of SEPP (SDWC) have been fulfilled.

State Environmental Planning Policy No 55 – Remediation of Land

13. Clause 7 of State Environmental Planning Policy No 55 – Remediation of Land) (SEPP 55) requires that a consent authority must consider whether land the subject of a development application is contaminated prior to the carrying out of any development on that land, and is to be satisfied that the land is suitable for the for its intended purpose.

14. The requirements of this clause are addressed below at [86] to [91].

State Environmental Planning Policy No 64 – Advertising and Signage

15. The aims of State Environmental Planning Policy No 64 – Advertising and Signage (SEPP 64) are:

(a)    to ensure that signage (including advertising):

(i) is compatible with the desired amenity and visual character of an area, and

(ii) provides effective communication in suitable locations, and

(iii) is of high quality design and finish, and

(b)    to regulate signage (but not content) under Part 4 of the Act, and

(c)    to provide time-limited consents for the display of certain advertisements, and

(d)    to regulate the display of advertisements in transport corridors, and

(e)    to ensure that public benefits may be derived from advertising in and adjacent to transport corridors.

16. The Parties agreed that the signage proposed by the Applicant under the development application was consistent with the aims and requirements of SEPP 64.

State Environmental Planning Policy (Infrastructure) 2011

17. The aim of State Environmental Planning Policy (Infrastructure) 2011 (SEPP Infrastructure) is to facilitate the effective delivery of infrastructure across the State by:

(a) improving regulatory certainty and efficiency through a consistent planning regime for infrastructure and the provision of services, and

(b) providing greater flexibility in the location of infrastructure and service facilities, and

(c) allowing for the efficient development, redevelopment or disposal of surplus government owned land, and

(d) identifying the environmental assessment category into which different types of infrastructure and services development fall (including identifying certain development of minimal environmental impact as exempt development), and

(e) identifying matters to be considered in the assessment of development adjacent to particular types of infrastructure development, and

(f) providing for consultation with relevant public authorities about certain development during the assessment process or prior to development commencing.

18. Clause 101(2) of SEPP Infrastructure provides that consent must not be granted to land which fronts a classified road unless it is satisfied that:

(a) where practicable, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

19. Clause 104 of SEPP Infrastructure further requires that a referral be made to NSW Roads and Maritime Services (NSW RMS) for a development which meets criteria within schedule 3 of SEPP Infrastructure, which includes a shop which has greater size than 500m² and access to a classified road. The proposed development meets these requirements.

20. Clause 104(3) also requires that before determining a development application for development to which this clause applies, the consent authority must:

(a) give written notice of the application to RMS within 7 days after the application is made, and

(b) take into consideration:

(i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, RMS advises that it will not be making a submission), and

(ii) the accessibility of the site concerned, including:

(A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and

(B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and

(iii) any potential traffic safety, road congestion or parking implications of the development.

21. The requirements of the above clauses are addressed below at [76] to [85].

22. Finally, cl.104(4) of SEPP Infrastructure requires that the consent authority must give RMS a copy of the determination of the application within 7 days after the determination is made.

Wingecarribee Local Environment Plan 2010

23. Development on the Subject Site is subject to the provisions of Wingecarribee Local Environment Plan 2010 (WLEP), under which the Subject Site is zoned B4 Mixed Use. The proposed development is permissible with consent within the B4 zoning.

24. The objectives of the B4 zone are to:

provide a mixture of compatible land uses;

integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling;

ensure that new development has regard to the character and amenity of adjacent and nearby residential areas.

25. Also of relevance in this appeal are the following provisions of WLEP:

1. clause 2.7 under which consent is also required for demolition works;

2. clause 4.3, which provides development standards for the height of buildings within the Wingecarribee Shire. The objectives of this clause are:

(a) to identify maximum heights of buildings,

(b) to ensure that the heights of buildings are compatible with the character of the existing development within the surrounding area.

1. The proposed development is in breach of the height development standard provided under cl.4.3 of WLEP.

3. clause 4.4, which provides development standards for floor space ratio (FSR) within Wingecarribee Shire. The objectives of this clause are:

(a) to identify maximum floor space ratios in major centres,

(b) to ensure that floor space ratios provide development opportunities that are compatible with building heights,

(c) to encourage development in locations readily accessible to public transport and services that will provide increased employment opportunities

1. The proposed development is compliant with the FSR controls applicable under cl.4.4 of WLEP.

26. Notwithstanding the non-compliance of the proposed development with the height development standards of WLEP, cl.4.6 of WLEP provides for circumstances in which exceptions may be sought to development standards.

27. The objectives of cl.4.6 are:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development;

(b) to achieve better outcomes for and from development by allowing flexibility

28. Cl4.6(2) of WLEP provides that:

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

29. Clause 4.6(3) of WLEP provides that:

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or

unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify

contravening the development standard.

30. The Applicant has submitted a written request under cl.4.6 of WLEP to vary the height development standard applicable to the Subject Site.

31. In considering a written request made under cl.4.6, the provisions of cl.4.6(4) and cl.4.6(5) are relevant. These are:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Director-General has been obtained.

(5) In deciding whether to grant concurrence, the Director-General must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.

32. Clause 4.6 of WLEP operates as a precondition to the exercise of power to grant consent and unless a consent authority must be satisfied that the precondition has been met or consent cannot be granted to the Applicant’s proposed development.

Moss Vale Town Plan Development Control Plan 2015

33. Development on the Subject Site is subject to the provisions of Moss Vale Town Plan Development Control Plan 2015 (MVDCP).

34. The Respondent’s Statement of Facts and Contentions, tendered as evidence during the hearing, provides the following general comments on the consistency of the application to the MVDCP and its objectives:

…The proposal is generally consistent with the primary objectives of the Moss Vale Development Control Plan in that the proposal provides economic benefits for employment and enhancement of the economic structure of Moss Vale, it recognises and supports the important retail function of the town and further adds to the mix of retail opportunities within the centre. The proposal should provide for improved traffic and parking management within the town and respects the local streetscape through built form, setbacks and architectural treatments. Environmental Sustainability will be promoted through section J commitments an also water quality standards. “

35. The Respondent informed the Court during the hearing that it had assessed the proposed development against the requirements of MVDCP, and had concluded that any non-compliances had been addressed through amendments to the plans for the proposed development, for which leave had been granted, and the preparation of draft conditions of consent agreed by the Parties.

Should the Applicant’s cl.4.6 request to vary the height development standard under cl.4.3 of WLEP be upheld?

36. As noted at [32], cl4.6 of WLEP operates as a precondition to the exercise of power to grant consent.

37. The Applicant has submitted a cl.4.6 written request to vary the height development standards under cl.4.3 of WLEP. This request was prepared by Michael Brown Planning Strategies and was tendered as evidence at the hearing as part of the Applicant’s Class 1 application documentation.

38. Notwithstanding that the Applicant had been granted leave to rely on amended plans, the proposed breach of the height control of the proposed development as represented in the original plans, and for which the cl.4.6 request had been prepared, were retained in the amended plans

36. There was no contention raised by the Respondent in relation to height. Nevertheless, as cl.4.6 of WLEP operates as a precondition to the exercise of power to grant consent, I must be satisfied that the precondition has been met in order for consent to be granted to the Applicant’s proposed development.

37. In assessing the Applicant’s cl.4.6 request, I will first summarise the requirements for the consent authority’s consideration of these requests, which also apply to the Court on appeal.

Requirements for consideration of cl4.6 requests

41. Under cl.4.6(3) of WLEP, a consent authority must not grant consent unless the consent authority has considered a written request from the Applicant seeking to justify the contravention of the development standard by demonstrating:

1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

2. that there are sufficient environmental planning grounds to justify contravening the standard.

42. In addition, under cl.4.6(4) of WLEP, the consent authority must also be satisfied that:

1. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for the development within the zone in which the development is proposed to be carried out.

43. In assessing whether compliance with the standard is unreasonable or unnecessary, it is appropriate to apply the approach adopted by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827; (2007) 156 LGERA 446 (Wehbe) in which His Honour identified five pathways that could be applied to establish whether compliance is unreasonable or unnecessary.

44. These are to establish that:

1. compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable;

4. the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable;

5. “the zoning of particular land” was “unreasonable or inappropriate” so that “a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land” and that “compliance with the standard in that case would also be unreasonable or unnecessary.

Consideration of the Applicant’s cl4.6 request to vary the height development standard.

45. Under the provisions of cl.4.3 of WLEP developments on the Subject Site cannot exceed a height of 7.5m.

46. The proposed development includes a building element at its north eastern corner which exceeds this height control. That building element, amongst other things, is proposed to accommodate signage for the shopping centre’s proposed principal tenant.

47. The Applicant submitted that the 7.5m height control was breached across an area of some 88m², representing approximately 5.3% of the building area. The height breach varied between 0.985m and 2.875m above the 7.5m control.

48. The Applicant’s cl.4.6 request noted that the proposed building’s design:

1. minimised any adverse amenity impacts on adjoining properties. It was noted during the hearing that the location of the height breach at the north-eastern aspect of the proposed development meant that any overshadowing that would arise from be proposed breach of the height control would fall onto the development itself;

2. did not give rise to any view impacts from adjoining properties;

3. included vertical and horizontal building elements, with a variety of materials, finishes and colours, and so presents a varied and interesting profile in the streetscape that was superior to a design which did not include the element in breach of the height control.

49. The Applicant’s cl.6 request submitted that the proposed development was in keeping with the existing character and form of development in the immediate area, having regard to the fact that those developments occur within a B4 Mixed Use zone.

50. The request noted that the character of the area within which the proposed development would be located, has evolved to reflect varied forms of development within the area identified as the Northern Mixed Use Precinct. This area included new contemporary buildings, including a fast food development on the opposite side of Robertson Road.

51. For these reasons, the cl.4.6 request concluded that compliance with the development standard is unreasonable or unnecessary because the relevant objective of the development standard is achieved notwithstanding non-compliance with the standard. In this regard the relevant objective is:

(b) to ensure that the heights of buildings are compatible with the character of the existing development within the surrounding area

52. The Respondent agreed with the Applicant’s submission on this point and I concur with that common position of the Parties.

53. The Applicant’s cl.4.6 request also said that the proposed breach of the height control in WLEP should be supported as there were sufficient environmental planning grounds to justify the contravention of the development standard because the proposed breach of the control was consistent with the use of the land for a supermarket which was its highest and best economic purpose.

54. The Respondent agreed with this submission and I concur with the common position of the Parties on this point.

55. I am satisfied that the Applicant’s cl.4.6 request has demonstrated that:

1. compliance with the height development standard in WLEP is unnecessary for the proposed development as the development achieves the objectives of the height standard in WLEP, as discussed above at [51] and [52]; and

2. there are sufficient environmental planning grounds to justify the requested variation to the height control applicable to the Subject Site.

56. Consequently I find that the Applicant’s cl.4.6 request has adequately addressed the requirements of cl.4.6(3) of WLEP.

57. In addition, the Applicant’s cl.4.6 request had submitted that proposed development was consistent with the objectives of the B4 zone in which zone the development is proposed to be carried out. These objectives were identified above at [24].

Conclusion in relation to the Applicant’s cl.4.6 request

58. Having reviewed the Applicant’s amended plans and having given consideration to the Applicant’s cl.4.6 request, and my finding at [56], I am satisfied the breach of height control would be in the public interest because it is consistent with the objectives of the height standard and the objectives for development within the zone in which the development is proposed to be carried out.

59. I have also given consideration to the requirements of cl.4.6(5) of WLEP, and have concluded that:

1. contravention of the development standard will not raise any matter of significance for State or regional environmental planning; and

2. there is no public benefit of maintaining the height development standard; and

3. there are no other matters required to be taken into consideration in relation to the request to vary the height control under WLEP cl.4.3

60. As a consequence of the above, I conclude that the Applicant’s cl.4.6 request to vary the height development standard applicable to the Subject Site under the provisions of cl.4.3 of WLEP is well founded and should be upheld.

61. Having concluded that the Applicant’s cl.4.6 request should be upheld, I will now consider the remaining contentions between the Parties.

Contentions

62. Although the appeal was not the subject of a conciliation conference under s.34 of the Land and Environment Court Act 1979 (LEC Act), the Parties advised at commencement of the hearing that the contentions between them had been resolved, subject to the development application obtaining concurrence from NSW RMS.

63. The Parties confirmed that that concurrence had recently been received from NSW RMS (see below at [78]).

64. The Parties confirmed that the resolution of contentions between them was based upon the preparation of amended plans by the Applicant, and the preparation and agreement of draft conditions of consent between the Parties.

65. The Parties advised that the matters in contention in this appeal, and their mode of resolution, were as follows:

Ingress from, and egress to, Argyle Street

66. This contention had related to an originally proposed right-hand turn into the Subject Site from Argyle Street and a right-hand turn out of the Subject Site into Argyle Street.

67. The Respondent said that:

1. the amended plans had resolved this issue through the provision of road infrastructure to restrict turns into and out of the Subject Site such that only a left hand turn into the site and a left-hand side turn out of the site would be possible.

2. these restrictions would assure compliance by vehicle drivers, and that these proposals were acceptable to the Respondent.

68. The Respondent submitted that, as a consequence of these changes to the design of the proposed development, this contention had been resolved to its satisfaction.

The provision of network analysis by the Applicant

69. The Respondent submitted that this contention had arisen from the Respondent’s assessment of the original plans for the proposed development from which it had concluded that the Applicant should provide an analysis of the impacts of increased traffic on the road network of Moss Vale.

70. During the hearing the Respondent said that the amended plans had resolved the risk of potential traffic conflicts from the proposed development in relation to:

1. the roundabout at Robertson Road and Argyle Street; and

2. the proposed ingress to, and egress from, the Subject Site at Robertson Road, along with any potential impacts of vehicle movements at the intersection of Elizabeth Street and Robertson Road.

71. The Respondent said that, as a result of the amended plans and the consequential resolution of these potential conflicts, it no longer pressed that a network analysis was required from the Applicant, and so the contention had been resolved.

Service vehicle access to the Subject Site from Argyle Street

72. During the hearing the Respondent said that the Applicant had made further amendments to the proposed access point to the Subject Site from Argyle Street within the amended plans.

73. These amendments provided a rearrangement of the internal parking regime to address the potential for adverse interactions between service vehicles and other vehicles on the Subject Site.

74. The Respondent also noted that a site traffic management proposal had been prepared by the Applicant to guide the management of customer/staff vehicles and service vehicles manoeuvring across the access driveway from Argyle Street into the loading dock on the Subject Site.

75. Finally, the Respondent said that that it had been agreed between the Parties that the Applicant’s plan of management for the on-site traffic would be enforced by way of a condition of consent, and that as a consequence the contention had now been resolved to the Respondent’s satisfaction.

Compliance with SEPP Infrastructure

76. The proposed development fronts Argyle Street to its north and Robertson Road to its west. Both of these roads are classified roads.

77. As noted above at [19], cl.104 of SEPP Infrastructure requires that a referral be made to NSW Roads and Maritime Services (RMS). The proposed development was initially referred to the NSW RMS on 28 November 2016 and further referrals were made during 2017, complemented by a series of other communications in 2017 and 2018.

78. The NSW RMS had provided its concurrence to the proposed development in a letter dated 9 March 2018 that was tendered as evidence during the hearing.

79. In relation to other requirements of SEPP Infrastructure, the Applicant submitted that, because access to the Subject Site is only possible from Argyle Street and Robertson Road, both of which are classified roads, it was not possible to meet the requirements of cl.101(2) of SEPP Infrastructure (see [18] above) as it was not possible to provide access to the Subject Site other than via a classified road.

80. The Applicant said that, as a consequence, the requirements of cl.101(2) of SEPP Infrastructure could not apply to the proposed development.

81. The Respondent said that it accepted the position of the Applicant on this point and added that the amended plans limited ingress to, and egress from, the proposed development to a left-hand turn in, and a left-hand turn out, on both Robertson Road and Argyle Street. The Respondent added that this was achieved through the introduction of appropriate road infrastructure to enforce these restrictions.

82. The Respondent said that, as a consequence of the above, the contention in relation to SEPP Infrastructure had been resolved.

Inadequate exit design to Argyle Street

83. The Respondent said that the proposed arrangements for exit from the Subject Site to Argyle Street as provided within the amended plans, and which limited exit of vehicles to a left-hand turn, had resolved this contention to its satisfaction.

Inadequate exit design to Robertson Road

84. The Respondent said that the of arrangements for exit from the Subject Site to Robertson Road as proposed within the amended plans, limited the exit of vehicles to a left-hand turn, and had consequently resolved this contention to its satisfaction.

Inadequate entry design from Robertson Road

85. The Respondent said that the proposed arrangements for entry to the Subject Site from Robertson Road as provided within the amended plans, limited entry of vehicles to the Subject Site via a left-hand turn in, and consequently had resolved this contention to its satisfaction.

Contamination and the requirements of SEPP 55

86. Clause 7 of SEPP 55 requires that a consent authority consider whether land is contaminated prior to grant consent for the carrying out of any development on the land, and be satisfied that the land is suitable for a proposed use.

87. The Applicant submitted that:

1. on 27 February 2017, Water NSW had written to the Respondent noting that the 6–8 Robertson Road portion of the Subject Site had historically been used for the purposes of a panel beaters;

2. the Respondent had forwarded the communication from Water NSW to the Applicant.

88. The Respondent noted that the Applicant, in response to the advice from Water NSW, had provided a report authored by STS GeoEnvironmental that addressed contamination issues on the Subject Site, including the results of a a Phase 2 assessment. That report had concluded that the land in its present state was suitable for the proposed development.

89. The report prepared by STS GeoEnvironmental was provided to Water NSW, which, as noted at [12], had subsequently provided its concurrence for the proposed development under the SEPP (SDWC) on 23 May 2017.

90. In addition, the Parties confirmed at the hearing that a specific condition of consent had been agreed between them that would require the Applicant to undertake further soil sampling following the demolition of existing structures on the Subject Site to confirm that all asbestos had been removed from the site.

91. This condition would also require that the further sampling would be conducted in accordance with the conclusions and recommendations provided by STS GeoEnvironmental in its report.

92. The Respondent confirmed at the hearing that as a consequence of the above actions and commitments from the Applicant, this contention had been resolved to its satisfaction.

Public interest

93. During the hearing the Respondent noted that, in addition to the two oral submissions identified above at [5], written submissions in response to the exhibition of the proposed development had been received from the following local residents

1. Brian and Tina Davis;

2. Rebecca Davis;

3. Mark Ritchie and Penelope Newlove.

94. The Respondent said that the matters raised in the written submissions were consistent with the matters raised during the on-site inspection that were summarised above at [5], and added that Ms Rebecca Davis had raised an issue in relation to pedestrian safety.

95. The Respondent said that an accessible pedestrian crossing would be maintained on Robertson Road, but that there was no proposal to provide a formalised pedestrian crossing on Argyle Street. The Respondent added that these arrangements were consistent with those currently in place in the area and were acceptable to Council.

96. The Parties also confirmed that they had reached agreement on conditions of consent for the proposed development. A draft of these conditions was tendered as evidence at the hearing. It was noted that, as a consequence of matters raised at the hearing, these draft conditions would require minor amendment in relation to several points, and the Parties were directed to file amended conditions with the Court. The Parties subsequently submitted agreed final conditions of consent for the proposed development for my consideration.

97. The Respondent noted that as the Parties were agreed that the amended plans and agreed final conditions of consent, had fully addressed the submissions of objectors, including those made during the on-site inspection at the commencement of this hearing.

98. The Respondent submitted that, as a consequence of the above, approval of the development application, with conditions, was in the public interest.

Conclusion

99. Based on the above, I am satisfied that the requirements of s79C(1) of the EP&A Act have been addressed including:

1. the provisions of the following instruments:

1. State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011;

2. State Environmental Planning Policy No 55 – Remediation of Land;

3. State Environmental Planning Policy No 64 – Advertising and Signage;

4. State Environmental Planning Policy (Infrastructure) 2001;

5. Wingecarribee Local Environment Plan 2010;

6. Moss Vale Town Plan Development Control Plan 2015;

2. the likely impacts of the development application;

3. the suitability of the site for the proposed development;

4. issues identified in submissions made in respect of the notification of the application, and at the hearing.

100. I conclude that approval of the development application DA2017/0068, as amended, and subject to agreed conditions of consent submitted by the Parties, is in the public interest.

Orders

101. The Orders of the Court are:

1. The Applicant is granted leave to rely on the amended plans and reports listed at Condition 1 of Annexure ‘A’ to this judgment;

2. The Court upholds the Applicant’s cl.4.6 written request to vary the height control development standard set out in cl.4.3 of Wingecarribee Local Environment Plan 2010;

3. The appeal is upheld;

4. The Applicant’s development application (DA 2017/0068), as amended, for the demolition of existing buildings and the erection of a supermarket building with signage at 166 Argyle Street and 6-8 Robertson Road, Moss Vale, is approved, subject to the conditions of consent annexed hereto as Annexure ‘A’;

5. The Respondent is to provide to NSW RMS a copy of this judgment within seven (7) days after the date of orders;

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

………………………….

Michael Chilcott

Commissioner of the Court

Annexure A (436 KB, pdf)

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Decision last updated: 28 March 2018