EVT Group Pty Ltd v Canterbury-Bankstown Council

[2024] NSWLEC 1537

Land and Environment Court

New South Wales

Medium Neutral Citation:

EVT Group Pty Ltd v Canterbury-Bankstown Council [2024] NSWLEC 1537

Hearing dates:

Conciliation conference on 26 June 2024, 30 July 2024 and 13 August 2024.

Date of orders:

30 August 2024

Decision date:

30 August 2024

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development Application DA-63/2024 is granted for use of the existing service station for a drop-off collection point for the collection and storage of recycling items (bottles and cans) and associated office on Lot 100 Deposited Plan 1006154 known as 948-950 Canterbury Road, Roselands NSW 2196 subject to conditions in Annexure A.

(3) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant will pay the Respondent the sum of $2,000.00 within 28 days.

Catchwords:

DEVELOPMENT CONSENT– use – drop-off and collection point – storage of recycling items - conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.11 4.12, 4.15, 4.16, 4.17, 8.7, 8.11, 8.15

Land and Environment Court Act 1979, ss 17, 34, 39

Environmental Planning and Assessment Regulation 1979, ss 23, 38

Canterbury-Bankstown Local Environmental Plan 2023 ss 4.3

State Environmental Planning Policy (Resilience and Hazards) 2021, s 3.2

State Environmental Planning Policy (Transport and Infrastructure) 2021 Sch 3, ss 2.153, 2.122

Texts Cited:

Community Participation Plan 2022

Category:

Principal judgment

Parties:

EVT Group Pty Ltd ACN 651 956 188 (Applicant)
Canterbury-Bankstown Council ABN 45 985 891 846 (Respondent)

Representation:

Counsel:
T Poisel (Applicant)
A Jucha (Respondent)

Solicitors:
Lionheart (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2023/346862

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant filed an appeal on 18 April 2024 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Respondent’s refusal of Development Application DA-63/2024 (DA) seeking consent for the use of part of an existing service station site for a drop-off collection point for the collection and storage of recycling items (bottles and cans) and associated office (ancillary to an existing service station) at 948-950 Canterbury Road, Roselands NSW 2196 being the whole of the land in Lot 100 Deposited Pla 1006154 (Site).

2. The appeal is in accordance with the time provisions in s 4.11 of the EPA Act.

3. The Site is located on the southern side of Canterbury Road between Belema Avenue to the west and Dreadnought Street to the east. The Site has a frontage of 38.23m to Canterbury Road, depths of 23.625m/28.06m and a Site area of 1056m². The Site is generally level. The Site contains an existing service station, which includes four pumps and a parking area along the eastern side of the Site. Structures consist of an awning over the pump areas as well as the service station building on the western side of the Site. Existing signage is located along the Site frontage. The structures associated the uses that are the subject of this application include a small office structure adjoining a caged storage area in the southeastern portion of the Site.

4. The Applicant is the occupier of the Premises, and the owner gave consent to the lodgement of the DA pursuant to s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg).

5. The Site is within Zone B5 Business Development under Canterbury-Bankstown Local Environmental Plan 2023 (BLEP 2023). The immediate vicinity of the Site is zoned B5 Business Development.

6. Under BLEP 2023 Canterbury Road itself is Zone SP2 – Road Infrastructure Facility, and beyond Canterbury Road opposite the Site is Zone R4 High Density Residential land.

7. The adjoining property to the south of the Site, known as 2 Belemba Aenue, Roselands, contains a single storey dwelling, and is Zone B5 Business Development, and beyond which is Zone R3 Medium Density Residential land.

8. The proceedings fall within Class 1 of the Court’s jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

9. Figure 1: Aerial image of the Site outlined in blue (Respondent’s Statement of Facts and Contention filed 9 May 2024 and source Nearmap). (SOFAC)

10. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 24 June 2024, 30 July 2024 and 13 August 2024. I presided over the conciliation conference.

11. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the Applicant’s appeal, and granting consent to the DA.

1. 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to uphold the appeal and grant consent to the DA.

12. The parties identified the jurisdictional prerequisites to exercising the functions as set out above, and explained how they were satisfied:

1. The Applicant lodged the DA pursuant to s 4.12(1) of the EPA Act with the Council on 2 February 202 in relation to part of the use of the Site, for a drop-off collection point for the collection and storage of recycling items (bottles and cans) and associated office.

2. On 14 February 2024 the Respondent notified the DA for a period of 21 days until 5 March 2024 in accordance with the Respondent’s Community Participation Plan 2022. One submission by way of objection was received by the Respondent. The s 34(1) conciliation conference began on Site on 26 June 2024 but no objector attended. I perused the objection to the Respondent dated 28 February 2024.

3. On 28 March 2024 the DA was refused by the Respondent.

4. On 18 April 2024 the Applicant filed the Class 1 appeal pursuant to s 8.7(1) of the EPA Act, and within the time provisions of s 8.11 of EPA Act.

5. Pursuant to s 38 of the EPA Reg the Respondent agreed to the Applicant relying on amended plans and documents:

Plan No.	Plan Name	Dated		Rev.	Prepared By
03	Proposed Site Plan	06.08.2024		E	ES Design
05	Proposed Ground Floor Plan	06.08.2024		E	ES Design
08	Elevations	06.08.2024		E	ES Design
10	Section View	06.08.2024		E	ES Design
Proposed Return and Earn Collection Facility: Noise Emission Assessment			Renzo Tonin	14 June 2024
Plan of Management			ABC Planning Pty Ltd	July 2024
Traffic Impact Assessment			PDC Consultants	11 July 2024

6. The parties agree that all the contentions raised by the Respondent in its SOFAC have been resolved by the amended plans and documents set out in sub-par [13(6)] above.

7. The development the subject of the DA is characterised as a ‘waste or resource transfer station’. Development for the purposes of a ‘waste or resource transfer station’ is permitted with consent on land Zone B5 Business Development under s 2.153(2)(b)(i) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP).

8. Section 2.122 Traffic Generating Development of the T&I SEPP required the DA to be referred to Transport for NSW (TfNSW) as this is a waste facility, and although the facility is relatively modest in size Column 3 of the Table to Sch 3 of the T&I SEPP states that waste or resource management facilities of any size or capacity need to be referred. The DA was referred to Transport for NSW in the week commencing 5 August 2024. On 23 August 124 The Senior Manager Land Use Assessment Eastern Planning and Programs of TfNSW wrote to the Chief Executive Officer of Council advising that TfNSW “has no requirements as the proposed development is not expected to have a significant impact on the classified road network.

9. The proposed usage for the DA being a ‘waste or resource transfer station’ has been assessed against the definition of ‘potentially hazardous industry’ under the State Environmental Planning Policy (Resilience and Hazards) 2021 (R & H SEPP), and found not to represent a threat to human health, life or property, or to the biophysical environment. The nature of the materials being stored (being glass, plastic and metals chiefly aluminium) not meet the definition within s 3.2 of the R & H SEPP.

10. In relation to BLEP 2023:

1. The Site is Zone B5 Business Development:

Zone B5   Business Development

1   Objectives of zone

•  To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres.

•  To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design.

•  To support urban renewal that encourages an increased use of public transport, walking and cycling.

•  To encourage employment opportunities on Canterbury Road and in accessible locations.

2   Permitted without consent

Home occupations

3   Permitted with consent

Centre-based child care facilities; Food and drink premises; Garden centres; Hardware and building supplies; Hotel or motel accommodation; Landscaping material supplies; Oyster aquaculture; Passenger transport facilities; Respite day care centres; Roads; Shop top housing; Specialised retail premises; Tank-based aquaculture; Vehicle sales or hire premises; Warehouse or distribution centres; Any other development not specified in item 2 or 4

4   Prohibited

Agriculture; Air transport facilities; Airstrips; Amusement centres; Animal boarding or training establishments; Biosolids treatment facilities; Boat building and repair facilities; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cemeteries; Charter and tourism boating facilities; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Electricity generating works; Environmental facilities; Exhibition homes; Exhibition villages; Extractive industries; Forestry; Freight transport facilities; Heavy industrial storage establishments; Helipads; Highway service centres; Home occupations (sex services); Industrial retail outlets; Industrial training facilities; Industries; Jetties; Marinas; Mooring pens; Moorings; Mortuaries; Open cut mining; Places of public worship; Pond-based aquaculture; Recreation facilities (major); Recreation facilities (outdoor); Registered clubs; Residential accommodation; Resource recovery facilities; Restricted premises; Retail premises; Rural industries; Sewage treatment plants; Sex services premises; Storage premises; Tourist and visitor accommodation; Transport depots; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Waste disposal facilities; Water recreation structures; Water recycling facilities; Water supply systems; Wharf or boating facilities

2. The use is permissible with consent pursuant to the T&I SEPP (see sub-par [8] above).

3. The DA complies with the first and fourth objectives of the Zone B5 Business Development.

4. The DA complies with the height control in cl 4.3.

5. There is no Floor Space Ratio Control applicable to this Site.

11. The parties agree that the development the subject of the DA is in the public interest for the purpose of s 4.15(1)(e) of the EPA Act.

12. In order for this DA to be granted, the parking arrangements under a former development application need to be amended to prevent any inconsistency that may arise in relation to the use of the service station. Therefore draft condition 4 of Annexure A has been included requiring the Applicant to lodge a modification to effect the modification of the earlier consent. The substance of Draft Condition 4 as permitted by subs 4.17(1)(b) and (5) of the EPA Act are as follows:

“(a)   the development consent granted to development application number 9348/98 (Previous Consent) that applies to the site is modified so that the requirements for number of car parking spaces on the site are identical to those requirements in the subject development consent granted in relation to development application number DA-63/2024;

“(b) within one month of the grant of the subject development consent, a notice of modification must be submitted to Council in writing in accordance with requirements in s 67 of the Environmental Planning and Assessment Regulation 2021 (NSW);

“(c)   for the avoidance of doubt, in the event of any inconsistency between the Previous Consent and the subject development consent, the subject development consent prevails.”

13. I am not required, and I have not, considered the merits of the DA.

14. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3)(a) of the LEC Act.

15. 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)(b) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. I shall uphold the appeal and grant consent to the DA subject to Conditions in Annexure A in accordance with s 4.16(1) of the EPA Act.

16. The Court notes that Canterbury-Bankstown Council, as the relevant consent authority, has agreed:

1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 the Respondent agreed to the Applicant relying on amended plans and documents as set out below:

Plan No.	Plan Name	Dated		Rev.	Prepared By
03	Proposed Site Plan	06.08.2024		E	ES Design
05	Proposed Ground Floor Plan	06.08.2024		E	ES Design
08	Elevations	06.08.2024		E	ES Design
10	Section View	06.08.2024		E	ES Design
Proposed Return and Earn Collection Facility: Noise Emission Assessment			Renzo Tonin	14 June 2024
Updated Plan of Management			ABC Planning Pty Ltd	July 2024
Traffic Impact Assessment			PDC Consultants	11 July 2024

2. In relation to Proceedings No. 2023/346862 the parties have agreed that the works arising from a grant of consent to DA-63/2024 shall be completed within six months of the grant of development consent in order that the Development Control Order, the subject of appeal in proceedings No. 2023/346862, can be amended to permit the Applicant to begin operation of the drop-off collection for the collection and storage of recycling items (bottles and cans) and associated office in six months’ time.

17. The Court orders:

1. The Appeal is upheld.

2. Development Application is granted for use of the existing service station for a drop-off collection point for the collection and storage of recycling items (bottles and cans) and associated office on Lot 100 Deposited Plan 1006154 known as 948-950 Canterbury Road, Roselands NSW 2196 subject to Annexure A.

3. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant will pay the Respondent the sum of $2,000.00 within 28 days.

M Peatman

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 02 September 2024