FTD Holdings (Concord West) Pty Ltd v City of Canada Bay Council

[2025] NSWLEC 1054

Land and Environment Court

New South Wales

Medium Neutral Citation:

FTD Holdings (Concord West) Pty Ltd v City of Canada Bay Council [2025] NSWLEC 1054

Hearing dates:

Conciliation conference on 4 and 19 December 2024

Date of orders:

31 January 2025

Decision date:

31 January 2025

Jurisdiction:

Class 1

Before:

Young AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application DA2024/0059 for the demolition of existing buildings and construction of 105 industrial units, tree removal, installation of infrastructure and landscaping at 7 Concord Ave Concord West NSW (legally known as Lot 1 in DP 219742), is determined by the grant of consent subject to the conditions contained in Annexure A.

(3) Pursuant to s 8.15(3) of the EPA Act, the Applicant is to pay the City of Canada Bay Council’s costs thrown away as a result of amending the Development Application, as agreed or assessed, within 28 days of these orders.

Catchwords:

DEVELOPMENT APPLICATION – construction of industrial units – conciliation conference – agreement reached – orders made

Legislation Cited:

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

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, ss 23, 38

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

City of Canada Bay Local Environment Plan 2013, cll 4.3, 4.4, 5.21, 6.1, 6.2, 6.10

Category:

Principal judgment

Parties:

FTD Holdings (Concord West) Pty Ltd (Applicant)
Canada Bay Council (Respondent)

Representation:

Counsel:
S Patterson (Solicitor) (Applicant)
B Salon (Solicitor) (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
ZBA Lawyers (Respondent)

File Number(s):

2024/246188

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Canada Bay Council of Development Application DA2024/0059.

2. The Development Application, as amended, seeks consent for the demolition of existing structures and construction of 105 industrial units, tree removal, instillation of infrastructure, and landscaping at 7 Concord Ave Concord West NSW (Lot 1 in DP 219742) (the site).

3. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the City of Canada Bay Council has approved amending the Development Application in accordance with the amended plans and supporting material listed in the agreed conditions of consent (Condition 1 in Annexure A of this judgment). As the amended Development Application is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.

4. The amendments to the Development Application agreed by the parties include the provision of amended and additional architectural drawings, amended landscape drawings, amended and addendum traffic reports, an updated survey, a waste management plan, reports on the proposed remediation of the Site, amended stormwater drawings, a supplementary flooding assessment, and an operational management plan.

5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties on 4 and 19 December 2024.  I presided over the conciliation conference.

6. At the conference, the Court heard from a local resident who objected to the Development Application. The objector primarily raised concerns about traffic volumes and safety on the local road network.

7. On 19 December 2024, the parties submitted an 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 appeal and granting development consent to the DA, subject to conditions in Annexure A.

8. 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.

9. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

Jurisdictional Prerequisites

10. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, 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) of the LEC Act, as set out below.

Landowner’s Consent

11. In accordance with s 23(1) of the EPA Regulation, I am satisfied that the DA was lodged with the consent of the owners of the land to which the development relates.

Public Notification

12. The Development Application was publicly notified from 9 April 2024 to 7 May 2024 and 12 submissions were received; from 3 July 2024 to 17 July 2024 and three further submissions were received; and from 2 October 2024 to 23 October 2024 and a further submission was received.

13. I accept that the recent further amendments to the Development Application do not intensify or change the environmental impact of the amended form of the Development Application that was publicly notified, and accordingly public notification of the amended Development Application is not required.

Section 4.15 of the EPA Act

14. The parties agree, and I accept, that all of the mandatory matters in s 4.15 of the EPA Act that are of relevance to the Development Application have been taken into consideration, and the Development Application (as amended) is acceptable, subject to the proposed conditions of consent in Annexure A. This includes:

1. The relevant provisions of State Environmental Planning Policy (Resilience and Hazards) 2021;

2. The provisions of the City of Canada Bay Local Environmental Planning 2013 (LEP);

3. The provisions of the City of Canada Bay Development Control Plan 2023 (DCP);

4. The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality;

5. The suitability of the site for the development; and

6. The issues raised in public submissions.

15. State Environmental Planning Policy (Resilience and Hazards) 2021 Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) requires that a consent authority must not grant consent to any development on land unless it has considered whether a site is contaminated land or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use.

16. Site investigations have revealed that the site is contaminated and needs to be remediated to make the land suitable for the proposed development.

17. Based on the documents included in the Development Application including the Detailed Site Investigation, Remediation Action Plans, Groundwater Monitoring Report and Environmental Investigation, the parties agree that the site can be made suitable for the proposed use by the proposed remediation.

18. Based on the above, the parties agree, and I accept that the requirements of s 4.6 of the Resilience and Hazards SEPP have been met.

City of Canada Bay LEP 2013

19. The parties agree, and I accept that the provisions of the City of Canada Bay LEP have been taken into consideration in assessing the Development Application such that there is no jurisdictional barrier to the granting of consent to the Development Application. In particular, I note that:

1. The proposed development is located in the E4 - General Industrial zone under the LEP and is permissible with development consent;

2. Pursuant to cl 4.3 of the LEP, the proposed development is compliant with the maximum height of buildings of 12 metres;

3. Pursuant to cl 4.4 of the LEP, the proposed development is compliant with the maximum floor space ratio for the site of 1:1;

4. Pursuant to cl 5.21 of the LEP, flood planning requirements have been met based on the findings in the Flood Impact and Risk Assessment, and Supplementary Flood Assessment for the proposed development;

5. Pursuant to cl 6.1 of the LEP, acid sulfate soil requirements have been met based on the Acid Sulphate Soil Management Plan for the proposed development;

6. Pursuant to cl 6.2 of the LEP, the requirements regarding earthworks has been considered, including with respect to impacts on flooding, installation of infrastructure and landscaping; and

7. Pursuant to cl 6.10 of the LEP, requirements regarding access to public utilities have been met as all services required will be provided as part of the works that need to be undertaken for the proposed development.

The City of Canada Bay DCP 2023

20. The parties agree, and I accept that the provisions of Parts B and H of the DCP have been taken into consideration in assessing the Development Application, including the requirements under Part B6.7 regarding replacement plantings, cl SW70 in Appendix 2 regarding plantings in easements, and Part H4 regarding building form and appearance.

Section 4.15 of the EPA Act

21. Based on the Statement of Environmental Effects, various expert reports accompanying the original and amended Development Application, and the recommended conditions of consent in Annexure A, the parties agree and I am satisfied that the DA can be approved taking into consideration the matters in s 4.15(1) of the EPA Act, including in regard to the likely impacts of the development, the suitability of the site and the public interest.

22. Under s 4.15(1)(d) of the EPA Act, I am required to consider submissions made on the DA. In this case, 16 submissions were made by way of objection during the public notification periods, raising a broad range of issues, including traffic, noise, hours of operation, biodiversity, setbacks, and the adequacy of the notification of the Development Application.

23. Based on consideration of the Statement of Environmental Effects, the additional information provided to support the amended Development Application referred to at [4] above, and the implementation of the conditions of consent in Annexure A, I am satisfied that the issues raised in submissions have been adequately addressed by the Applicant.

Conclusion

24. 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 against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

25. I have considered the jurisdictional prerequisites, and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

26. 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.

Orders

27. The Court orders:

1. The appeal is upheld.

2. Development Application DA2024/0059 for the demolition of existing buildings and construction of 105 industrial units, tree removal, installation of infrastructure and landscaping at 7 Concord Ave Concord West NSW (legally known as Lot 1 in DP 219742), is determined by the grant of consent subject to the conditions contained in Annexure A.

3. Pursuant to s 8.15(3) of the EPA Act, the Applicant is to pay the City of Canada Bay Council’s costs thrown away as a result of amending the Development Application, as agreed or assessed, within 28 days of these orders.

M Young

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 31 January 2025