Georges River Council v S A F Group Pty Ltd - [2021] NSWLEC 151

Land and Environment Court

New South Wales

Medium Neutral Citation: Georges River Council v S A F Group Pty Ltd [2021] NSWLEC 151
Hearing dates: 27 October 2021
Date of orders: 17 December 2021
Decision date: 17 December 2021
Jurisdiction: Class 1
Before: Pain J
Decision:
The Court orders:
(1) The appeal is dismissed.
(2) The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed.
(3) The exhibits are returned.

Catchwords:
APPEAL – appeal on questions of law from decision of commissioner approving a change of use of a factory building to warehouse, depot and associated offices – no failure to engage with important part of council’s case – no failure to give adequate reasons – appeal dismissed

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16
Land and Environment Court Act 1979 (NSW), s 56A
Kogarah Local Environmental Plan 2012

Cases Cited:
Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329
Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164
Comcare v Forbutt [2000] FCA 837
Day v SAS Trustee Corporation [2021] NSWCA 71
DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
El Boustani v Minister administering Environmental Planning and Assessment Act 1979 (2014) 199 LGERA 198; [2014] NSWCA 33
Gautam v Health Care Complaints Commission [2021] NSWCA 85
Hoy v Coffs Harbour City Council [2015] NSWLEC 128
Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118
Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Keith v Gal [2013] NSWCA 339
NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Renaldo 3 Plus Pty Ltd v Hurstville City Council [2005] NSWLEC 315
S A F Group Pty Ltd v Georges River Council; 3R Investments Pty Ltd v Georges River Council [2021] NSWLEC 1237
Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48
Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115
Zeait v Insurance Australia Limited t/as NRMA Insurance [2016] NSWSC 587
Zhang v Canterbury Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:
Kogarah Development Control Plan 2013

Category: Principal judgment
Parties: Georges River Council (Appellant)
S A F Group Pty Ltd (Respondent)
Representation:
Counsel:
M Seymour (Appellant)
J Reid (Respondent)
Solicitors:
HWL Ebsworth Lawyers (Appellant)
OneGroup Legal Pty Ltd (Respondent)

File Number(s): 2021/158259
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 1

Citation:

[2021] NSWLEC 1237

Date of Decision:

11 May 2021

Before:

Espinosa C

File Number(s):

2020/101209

Judgment

Georges River Council (the Council) has commenced an appeal under s 56A of the Land and Environment Court Act 1979 (NSW) against the Commissioner’s decision in S A F Group Pty Ltd v Georges River Council; 3R Investments Pty Ltd v Georges River Council [2021] NSWLEC 1237. Such an appeal may be brought in relation to a question of law. The Commissioner granted development consent DA 2019/0417 for the change of use of an existing factory building at Waterview Street, Carlton (the site) to office premises with an associated depot and construction of an acoustic barrier one metre from the rear boundary of the site. In the same proceedings the Commissioner also decided an appeal against a development control order. No appeal is brought in respect of her findings on that issue and it need not be referred to again.
The site is zoned IN2 Light Industrial under the (repealed) Kogarah Local Environmental Plan 2012 (KLEP) and abuts land at the rear zoned R2 Low Density Residential.
The two grounds of appeal set out in the summons state:

1. In the determination of development application DA 2019/0417 (the Decision) the Commissioner failed to engage with a substantive integer of the Respondent (Council's) case concerning likely impacts to amenity of surrounding residences arising from:
(a) inadequacies in the survey information concerning traffic likely to arise from the development;
(b) inadequate information on vehicle allocation within the development site; and
(c) past performance in terms of the failure to manage such impacts.

2. In the alternative to (1) above, the Commissioner failed to give adequate reasons for the decision, specifically with respect to principal contested issues of:
(a) traffic/parking and associated amenity impacts (Contention 2 and 3);
(b) the placement of the proposed acoustic wall/barrier (Contention 2 and 4); and
(c) overreliance on a plan of management that was an insufficient response to the likely impacts arising from the development (Contention 6).

If successful on appeal the Council seeks to set aside orders 3 and 4 made by the Commissioner. It seeks an exclusionary order for remitter if successful on ground 1 of the appeal, relying on Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164 at [85] (Tobias JA, Bell J agreeing), and an unqualified order for remitter if successful on ground 2. The Council as the appellant bears the onus of proof.
The Court was informed that the Commissioner undertook a site inspection and heard from resident objectors. The neighbouring residences at the rear of the site are at a higher elevation.

Evidence in appeal

The Council filed a three-volume appeal book (Ex A). It contained the Commissioner’s judgment and associated annexures, a transcript of proceedings before the Commissioner, the documents before the Commissioner including the statement of facts and contentions (SOFAC), submissions of both parties, the joint reports, and the Plan of Management (POM). Volume 3 contained the summons and final consent orders made in related Class 4 proceedings 2020/230645.

Statement of facts and contentions before Commissioner

The SOFAC filed by the Council before the Commissioner included Contention 2, that insufficient and inconsistent detail was provided to give proper consideration to the mandatory matters for consideration. Particular (b) was that the provided floor plans did not illustrate where on the site the material and any plant and equipment including vehicles would be stored and whether their storage would interfere with vehicular movement paths or accessways within the site or on the adjacent road. Particular (c) related to the 3-4 utility vehicles that were proposed to attend the site, contending that there was no detail as to the length of time trucks would be parked on the site. Particular (d) was that no detail was provided as to how many trucks would park on the site and whether they would be able to manoeuvre into, from and within the site. Particular (e) contended that no detail was provided as to the size of the trucks and utility vehicles involved. Particular (g) was that no detail was provided as to what manner of work the 13 full time staff would be engaged in and whether this included truck drivers. Particular (h) contended that no information was provided with respect to accurately identifying travel modes or patterns of staff, such as the number of staff that would need to park on the site and the number that would use their own cars or work trucks. Particular (k) was a catch-all contention that having regard to the above, information, the nature and intensity of the use and therefore its suitability could not be established.
Contention 3 particularly related to traffic and parking impacts and contended that the proposal should be refused because it provided insufficient detail to allow for an assessment of the likely traffic and parking impacts. Particular (b) related to Part B4 of the Kogarah Development Control Plan 2013 (KDCP) which, in the Council’s view, required a traffic and parking study of comparable similar land use. Particular (c) related to the lack of clarity with respect to how many service vehicles would be associated with the site, how many would be parked there overnight, and manoeuvrability from, to and within the site. Particular (d) was that it had not been demonstrated that there was appropriate vehicle manoeuvrability given the structural columns and other obstructions on the site. Particular (j) stated that there were no detailed parking layout designs, that the lodged traffic report was inadequate and that no parking allocation plan was provided.
In Contention 4 the Council also contended that there was insufficient detail of the operations to be carried out on the site demonstrating that the proposal would not unreasonably impact the acoustic amenity of the adjacent residential properties and surrounding environment. Particular (d)(iv) was that the proposal had the potential to cause unacceptable acoustic impacts on neighbouring properties through noise emission from vehicles associated with the use and entering and exiting from the site.
Contention 6 related to the POM and stated that there was insufficient detail provided as to the manner in which the use could appropriately operate within the constraints of the site noting its spatial limitations and proximity to residential dwellings. In particular (a) there was a reference to insufficient detail as to how the site could operate in the proposed manner without affecting vehicular access to adjacent properties inter alia.
A further contention also labelled 6 related to the public interest and reiterated concerns about truck movements, vehicle manoeuvring, parking and traffic.

Evidence of traffic experts, town planners before Commissioner

Extracts from the evidence of experts before the Commissioner referred to by the Council follow.

Joint traffic and parking report of Mr Robert Varga and Mr Craig McLaren dated 25 November 2020

The following extracts from the joint traffic and parking report of Mr Robert Varga called by the Respondent and Mr Craig McLaren called by the Council dated 25 November 2020 are relevant:

…
7.0 CONTENTIONS
Insufficient and inconsistent detail provided
2. Insufficient information has been provided to give proper consideration to the mandatory matters for consideration.
…
8.0 RV notes that the proposed use of the site is described in the “use description” provided at Annexure 3 and will be undertaken in accordance with the “Plan of Management” (POM) provided at Annexure 4, with the zones referred to in the POM show on the plans provided at Annexure 5.
9.0 CM notes that further details have now been provided as contained in Annexures 3, 4 and 5.
10.0 CM notes that no information is provided with respect to “volume of material”.
11.0 CM notes that the information provided does not fully address Particulars (a) and (b) of Contention 2.
12.0 CM has requested a detailed allocation plan (fully dimensioned in accordance with AS2890.1-2004 and AS2890.2-2018 dimensional requirements) of where all business vehicles, trucks, staff vehicles, plant and equipment are stored / parked on-site, but has not received adequate response from RV to date in order to confirm adequacy of required vehicular movement paths.
…
15.0 RV considers that the “Use Description”, the “Plan of Management” and the zone plans provided at Annexures 3, 4 & 5 respond to particulars (a) and (b) of Contention 2, and RV reiterates his advice at paragraph 65.0 that drivers of trucks and traffic control utilities proceed from home directly to the construction site each day, and drive their vehicles home again after work each day, thus these vehicles do not need to visit the Waterview Street site except as detailed in the Plan of Management.
16.0 CM notes that RV has yet to provide adequate details of the quantum of truck and traffic control utilities drivers that use these vehicles to and from work each day.]
17.0 RV has addressed vehicular movement paths under the relevant Contention 3(c) at paragraph 0.
18.0 CM notes that the additional swept tests provided by RV at 4:12pm on 24 November 2020 are only for a small truck (6.4m long SRV) plus trailer combinations, whilst CM notes that the videos reviewed by both CM and RV included larger trucks towing trailers when either reversing within Waterview Street.]
19.0 RV has viewed the “truck & trailer” video and notes that it shows a small SRV truck.
…
23.0 CM notes from his recent site inspection on Wednesday 18 November 2020, when some 15 persons were on-site, that RV confirmed that it appeared that the vast majority of staff parked on-street as only traffic control and some trucks / plant were parked onsite. Therefore, the recorded traffic generation shown in RV’s table above is likely to have underestimated the actual traffic generation by excluding those vehicles parked on-street. This is evident from the summary of daily traffic generation of the Lower Level Basement, where light vehicles / staff and traffic controller vehicles are to park, being in the range of only 2 (i.e. 1 in; 1 out) to 6 (i.e. 3 in; 3 out) vehicles per day.
…
32.0 CM notes that the parking surveys conducted by RV do not include independent observations of any use of on-street parking within the vicinity of the site. The surveyor ought to have been required to identify use of on-street parking by staff and / or truck drivers by observing how many persons walked to / from the premises from on-street parking locations. The surveys of parking surveys also ought to have included hourly records of on-site patronage in each of the three zones. Without this information, no weight can be given to the survey results.
…
35.0 RV has addressed the size of vehicles and where they are parked under the relevant Contention 2(e) at paragraph 43.0 and 44.0.
36.0 CM notes that inadequate swept path testing has been undertaken by RV with a detailed plan of where all plant / equipment / vehicles are stored I parked or allocated for storage I parking prior to then undertaking swept path testing of truck plus trailer combinations. The tests for the rear yard as shown in RV’s Annexure 8 are limited and it appears that the inside gradient for the turns between the rear yard and warehouse may not comply as well as conflicting with an area for either stockpiling or parking.
37.0 RV notes that the storage of plant and equipment was clearly evident at the joint site inspection conducted with CM on 18 November 2020. The two photographs below show plant and equipment, including multiple trailers on both 29 October 2020 and also on 18 November 2020.
…
45.0 CM notes that RV has provided descriptions and photographs of the types / sizes of the trucks involved with the conduct of the business. However, CM further notes that a EXCEL spreadsheet of the following quantity and range of vehicle types associated with the conduct of the business was also provided by RV on 23 November 2020, with no details of where these vehicles, plant and equipment are parked / stored:
(a) 22 Traffic Control Vehicles (CM expects 100% to be stored on-site).
(b) 6 Excavators (all stated to be stored on-site).
(c) 4 Vacuum Trucks (CM expects 100% to be stored on-site).
(d) 1 Forklift (stated to be stored on-site).
(e) 14 Tipper Trucks (unknown where parked).
(f) 6 Tools Trucks (unknown where parked).
(g) 9 Utility Vans / office crew I flush utes (unknown where parked).
(h) 2 Table Top Trucks (unknown where parked).
(i) 15 trailers (box/ air compressors/ cable (all expected to be parked on-site).
(k) Generators / Wackers I Machinery (all stated to be stored on-site).
(l) A 2007 Yanmar (stated to be stored at 34 Waterview St, Carlton).

46.0 CM considers that the above list of vehicles, plant and equipment is significant and is unlikely to be able to be fully accommodated on-site together with staff parking and providing sufficient room for swept path testing of the maximum length design vehicles, including truck and trailer combinations.
47.0 CM has viewed video footage that shows single rigid trucks and truck-trailer combinations either reversing into or out of the eastern / upper driveway that provides access to the rear yard and main "warehouse" floor.
…
Matters of Disagreement
50.0 RV has provided the company's vehicle, plant and equipment register to CM at Annexure 9. It is unclear to RV why CM expects 100% of these vehicles to be stored on-site, given that these vehicles remain at the relevant construction site or are taken home by their drivers each night and then driven directly back to the construction site the next morning, without any need to visit the 33 Waterview Street site.
51.0 RV notes that the daily traffic generation of the 52 vehicles quoted by CM is similar to the daily traffic movements identified by RV's surveys summarised in the table at paragraph 20.0.
52.0 CM notes that the conducted traffic generation surveys are likely to have been underestimated by RV given that site behaviour may have been altered by management as a consequence of knowing that the surveys were being conducted and also given the fact that any use of on-street parking was not recorded despite local resident views to that vehicles associated with the subject premises regularly park on-street.
…
58.0 CM notes that the typical employee density for light industrial use is 50sqm per employee, although that figure is based upon 1978 data with ranges of 26 to 127 sqm of GFA. (refer to Section 3.10.1 Factories of the RMS Guide). Whilst the employee density for the entire GFA is in the RMS Guide range for factory uses, the actual employee density of the upstairs office, being some 10.61sqm per employee, this office rate is almost twice (1.98 times greater) that of 21sqm of “office” space stated in Section 3.5 of the RMS Guide.
59.0 With reference to a factory use for comparison to a warehouse use, CM states Section 3.10.1 of the RMS Guide states a rate of 1 PM peak hour vehicle trips per lO0sqm GFA and daily rate of 5 vehicle trips per 100sqm GFA. These rates equate to 12.8 PM peak hourly and 64 daily traffic generation levels, based upon a GFA of 1,282.92sqm.
60.0 CM considers that the upstairs office, coupled with the traffic control business / works depot operation is excessive for the site such that it cannot contain all of its operations, with respect to parking and traffic generation, fully on the site. This is symptomatic of over development. The scale of the operation should be reduced such that all of its parking (and storage of plant / equipment) needs can be fully accommodated on-site with no reliance upon on-street parking.
…
66.0 CM notes that RV confirmed that the travel mode of staff was provided to him by the Applicant. CM states that parking demand is a critical matter in these proceedings and that RV has a duty to the court to provide independent verification of staff travel mode. The applicants position that 33.3% (i.e. 5 / 15) of staff drive to work is not credible for the location. A statutory declaration to this end ought to be requested.
67.0 CM notes that RV has not adequately addressed this particular as it is clearly stated that the “number of staff” that drive to work and then use work vehicles as well as the number of staff that use work vehicles to / from work from / to their homes are needed to be quantified. A profile of typical staff usage behaviour related to the use of their own vehicles or work vehicles should be provided based upon independent interview type surveys and observations in order for the response to this particular to be robust.
…
Agreed Conditions:
133.0 Both RV and CM agree that if consent is granted, then the following conditions shall apply:
(a) That all business vehicles, trucks, staff vehicles, plant and equipment are to be stored / parked on-site. At no time shall any business vehicles, trucks, staff vehicles, plant and equipment be stored I parked on-street, including nature strips, across driveways or double park.
(b) That all traffic controller staff who use private vehicles are not to park on-street within Waterview Street at the interface with the premises or elsewhere along Waterview Street or neighbouring streets, including nature strips, across driveways or double park.

(c) That all vehicles are to enter and leave the site in a forward direction of travel. At no time shall vehicles, including truck and trailer or utility / car and trailer combinations reverse within Waterview Street when entering or leaving the premises.
(d) That no traffic controller briefings be held within the public road reserve of Waterview Street at the interface with the premises or elsewhere along Waterview Street or neighbouring streets.

Joint planning report of Mr Scott Barwick and Ms Clare Brown dated 23 November 2020

The following extracts of the joint planning report of Mr Scott Barwick called by the Respondent and Ms Clare Brown called by the Council dated 23 November 2020 were referred to by the Council:

…
2.0 Discussion of Contentions
…
Insufficient and Inconsistent Detail Provided
…
Matters Disagreed – SB [Scott Barwick]
12. Contention 2a) – The use is the undertaking of an enterprise relating to Civil Contracting and Traffic Management services. The Civil Contracting works are undertaken on project sites include footpath upgrades and replacement, laying cables (telecommunication), road repair and reconstruction, stormwater infrastructure repairs and replacement, utility services infrastructure upgrade, replacement, repair and installation. The Traffic Management services involve the provision of traffic controllers and safety equipment to project sites to provide traffic management around those project sites. The Traffic Management services can be for projects for which Civil Contracting is being undertaken or for separate work sites such as construction sites where traffic management is required. The administrative element of the enterprise is undertaken in the office space of the site of the proposed development. The balance of the site is utilised for the storage of goods and equipment associated with the enterprise. The area of disagreement relating to the use of the rear work yard relates to the occasions when material is brought to the yard and sorted pending its collection for disposal.
…
16. Contention 2c) – The length of time the trucks are parked on site relative to acoustic impacts is irrelevant. The PoM requires that when trucks are parked on the site, they not be left idling in any circumstance. The acoustic impacts will be addressed in the acoustic expert’s report.
17. Contention 2d) and 2e) – The manoeuvring of vehicles in to and out of the site in a forward direction and the size of vehicles will be addressed by the Traffic engineering experts.
…
19. Contention 2g) – The use description at Appendix C confirms that staff levels proposed on the site comprise 13 office staff and 2 yard staff. This total does not include drivers or members of work gangs who are predominantly managed remotely and only access the site when collection of goods to undertake works on site is required. The accessing of the site by the off-site work gangs during the hours nominated in the proposed PoM is acceptable. The number and frequency will depend on the volume of projects being attended. This fluctuation is absolutely consistent with any enterprise where work flow is variable. The important elements are to include within the PoM management measures and restrictions on the hours during which the site can be accessed.
20. Contention 2h) – Journey to work is being addressed by the traffic Engineering experts.
…
22. Contention 2j) – Traffic issues are being addressed by the Traffic Engineering experts.
…
Matters Disagreed – CB
24. Contention 2(a) CB agrees with paragraph 12 with the exclusion of the last sentence.
25. The Applicant’s draft PoM provided at Appendix B describes how the enterprise is proposed to operate. CB notes that the enterprise prior to the adoption of and at times during the operation of the Interim PoM did not comply with the terms of the Interim PoM in terms of hours of operation, waste processing or parking and storage of vehicles on the site. Neither the DA, description of development or the draft PoM clearly identify the size of the operation fleet used in the enterprise in terms of vehicles and vehicle type nor where these vehicles are stored. These are matters that go to the core elements of the operation of the enterprise and the potential impact arising.
26. The volume or quantity of material being stored as well as the location of the material being stored are relevant considerations in terms of amenity impact arising from the conduct of the enterprise. It is noted that the Basement Plan DA02 identifies the area to be used for basement parking and storage. During a site visit it was observed that this area was primarily used for storage with limited opportunity for the stack parking of small utility vehicles in the driveway. It is unclear from the DA the number and type of vehicles to be stored/parked on site during the day or evening periods. Further it is unclear where parking for the office-based employees is proposed to be located. The accessibility to and manoeuvrability of vehicles including trucks within the basement level, ground floor and external storage areas is a relevant consideration as to the nature of the operations and potential for impact.
27. Contention 2b) – It is agreed that the plans filed with the appeal (Drawings DA01 to DA07) Revision A dated 2 September 2019 denote material storage areas and goods storage areas. However, the availability of staff parking on site, the number of vehicles accessing the site, the volume of material and equipment stored on and distributed from the site and the manner of the storage of material and equipment on site are core elements of the operation of the enterprise. These are matters that go beyond consideration by the traffic engineers.
28. Contention 2c) – The number and type of vehicles attending the site, the time of day, the frequency of visits and associated activity go to the nature of the enterprise and the potential for acoustic impacts to arise. These matters go to the suitability of the site to accommodate the enterprise.
29. Contention 2d) and 2e)– As stated above it is considered that the number and type of vehicles attending the site, the time of day, the frequency of visits and associated activity go to the nature of the enterprise and the potential for acoustic impacts to arise and the suitability of the site to accommodate the enterprise.
…
31. Contention 2g) – It is agreed that the use description at Appendix C states that staff levels proposed on the site comprise 13 office staff and two yard staff. This total does not include drivers or members of work gangs that attend the site to collect equipment and machinery and presumably the larger vehicles used in the civil contracting projects. It is unclear in the DA and Appendix C how many people are in the work gangs who will attend the site to collect routine or emergency supplies, to pick up or drop off work vehicles.
32. Contention 2h) – It is noted that journey to work is being addressed by the traffic Engineering experts. However, depending on the number of employees and contractors and members of work gangs will attend the site, time of arrival and departure and where they will park. All of which are factors that have the potential to introduce acoustic and traffic impacts in the locality
…
34. Contention 2j) – The adequacy of the TIA is being addressed by the Traffic Engineering experts.
…
Traffic and Parking
…
Matters Agreed
36. The experts agree that the adequacy of the traffic report raised in this contention will be addressed by the Traffic Engineering experts.
Matters Disagreed – SB
37. The enterprise as understood by SB has few if any customers visiting the site. The proposed PoM has been prepared to require vehicle to enter into the site when they are being restocked or reloaded. Therefore, the time that vehicles are attending the site to be replenished, this is occurring within the confines of the site. On that basis the concerns of parking by the visiting work gangs does not arise.
…
Matters Disagreed – CB
39. CB considers that matters relating to adequacy of on-site parking, traffic generation from the site, time of traffic movements within the site and the local road network associated with the enterprise have the potential to cause adverse acoustic and traffic impacts in the locality and these matters go to the suitability of the site to accommodate the enterprise.
40. CB considers that if the enterprise is to generate customers visiting the site then the number of visits per day needs to be considered as well as the nature or purpose of the visit. It is unclear if this relates to collection of machinery, equipment or material or attendance at a meeting in the onsite offices.
41. Even if as stated by SB that a substantial component of the direction of the workflow from the business to the work gangs is conducted electronically this does not negate the need for work crews to attend the site to collect material, equipment and work vehicles and the associated traffic and acoustic impacts.
…

Supplementary planning report of Mr Barwick and Ms Brown dated 27 November 2020

The following extracts of the supplementary planning report of Mr Barwick and Ms Brown dated 27 November 2020 are relevant:

2.0 Matters arising from the joint traffic experts report
…
Matters Disagreed – SB
…
3. I agree with the considerations of Mr Varga in that the number of staff proposed to work from the premises has been clearly quantified as 13 office staff and 2 yard staff. The enterprise undertakes the management of civil and traffic management work gangs who operate remotely from the premises and travelling directly to job sites from their homes and from job sites to their homes. The need to come to the main premises arises from a need to resupply their work vehicles with necessary materials and equipment or the dispatch from the premises or materials and equipment to job sites. The analysis from Mr Varga confirms that re-supply from the ground level equipment store can be undertaken from within the building and vehicles are able to enter and exit the site in a forward direction.
4. I agree with Mr. Varga’s conclusions relating to traffic impacts and the operation of the enterprise and note that the proposed Plan of Management appended to the Joint Report of the Planning experts provides management regime for the ongoing operation of the site.
…
Matters Disagreed – CB
6. CB agrees with Mr. McLaren that inadequate information has been provided to enable a full understanding of how the business will operate and to enable a full assessment of the traffic and parking implication of the proposed use and the requirement for limitations on the use or mitigation measures to be applied.
7. CB notes the range of information Mr. McLaren identifies as being required to enable the assessment of the proposal as set out in paragraphs 10.0, 11.0, 12.0, 16.0, 18.0, 21.0, and 22.0. CB agrees that this information is required to enable a complete assessment of the proposal.
…
9. CB notes that the business conducted from the site utilises approximately 65 traffic control vehicles, excavators, vans, and forklifts, in addition to 15 trailers and an assortment of generators and machinery and a Yammer which is stored on an adjacent site 34 Waterview Street. The range and number of vehicles and associated equipment and machinery indicates the significant scale of the operation conducted from the site.
10. CB considers that given the scale of the operation it is necessary to document:
a) where the nominated vehicles, equipment and machinery are stored when not in use
b) the frequency of visits to the site to pick or return a vehicle or to pick up standard or emergency material and equipment and the time spent on site
c) the location of staff parking for the office and yard staff
d) the location of parking for visitors to the site including contractors or employees who are attending the site to take out one of the traffic control vehicles, trucks or vans

so that the impacts of the operation on site and off site can be understood from both a traffic and acoustic perspective.
11. CB notes that the turning path templates provided in Annexure 8 of the joint report indicates a stacked parking arrangement for the B99 Vehicle in the Basement. Drawing B99 Vehicle Turning Paths indicates the potential to park 19 vehicles in the basement in a stacked arrangement. However as noted on site on November 26 and at an earlier site visit these nominated spaces are being utilised for the storage of materials.
12. CB agrees with the general conclusions of Mr. McLaren.
13. CB notes the conditions proposed by the traffic experts at paragraph 133.0. However, CB is not satisfied based on the information available and the historic use of the site that condition (a) requiring
“That all business vehicles, trucks, staff vehicles, plant and equipment are to be stored/parked on-site. At no time shall any business vehicles, trucks, staff vehicles, plant and equipment be stored/parked on-street, including nature strips, across driveways or double park”

can be complied with.
14. CB notes that condition (b) requires that traffic controller staff that use private vehicles are not to park within Waterview Street. CB notes that Section 8 of Part D3 Industrial Development of the Kogarah development control plan (DCP) provides objectives and controls for vehicle access and parking. The DCP objectives include inter alia:
(a) Provide sufficient and convenient on-site parking for employees, visitors and associated vehicles.
(b) Minimise the adverse impact of vehicles on the amenity of the development, streetscape and surrounding neighborhood.

15. CB considers that the development as proposed does not meet the DCP objectives and that the proposal does not provide on-site carparking to comply with the requirements of Section B4 of the DCP as no private vehicle parking is proposed.
…
2.0 Matters arising from the joint acoustic experts report
…
Matters Disagreed – SB
…
25. If the barrier were to be approved it should be setback a distance of 1.0m inside the property boundary and the setback area planted with climbing vegetation that could create a visual green wall.
26. Kogarah DCP Part D3 control 7(6) states:
- Where sites abut a residential land use or a residential zone, landscaped buffers will be required along the boundaries to which the residential use abuts. This buffer is to be a minimum of 3 metres.

27. Figure 1 is an aerial view of the light industrial and residential zone interface. There is no indication of any site accommodating a 3.0m landscape buffer. The control has clearly not been maintained in the locality. That does not necessarily set it aside, and therefore the objectives of part D3 need to be considered.
28. Objective 1(i) addresses most closely the consideration of a residential interface to and requires development to:
- Ensure that industrial development in close proximity to residential areas does not have a detrimental effect on such areas

29. The objectives of section 7 Landscaping could be summarised to ensure that landscaping should screen development and provide landscaping to residential interfaces.
30. The provision of a 3.0m setback in my opinion is unwarranted in the circumstance as:
- The wall will visually screen the rear work yard and light industrial uses beyond;
- The acoustic wall provides an acoustic mitigation that would not be delivered by a 3.0m wide landscape buffer
- A 3.0m wide landscape buffer would block the rear vehicle exit door to the rear service yard.

31. The wall at a setback of 1.0m compared to a 3.0m setback is a matter of balance between the protection of acoustic amenity and compliance with a numerical control in the DCP.
32. The proposed acoustic wall does not propose any over hang to adjoining properties. The “crank” in the upper portion of the wall angles into the subject development site.
33. I agree with CB that should the wall be approved at the 1.0m setback and the setback landscaped there should be a maintenance point. Instead of disrupting the integrity of the acoustic wall the access could be installed via a new door adjacent to the rear roller door as shown on the plan extract below.
[Figure 1 omitted]
34. On balance the provision of the acoustic wall provides a greater protection to acoustic amenity as assessed by Mr Gauld and therefore in the circumstances should be supported despite the non-provision of a 3.0m wide landscape buffer.
35. In addition to an access point, a condition should be imposed requiring the installation of an automatic watering system to support the vitality of any vegetation provided to screen the acoustic wall such as Lilli Pilli or suitable climbing plants that could utilise the acoustic wall as a medium to support their growth.
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Matters Disagreed – CB
40. …CB cannot agree with SB that the proposed wall …represents a definitive solution to the interface between the light industrial zoned land and the residential zoned land.
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47. CB considers that if the Court was to approve the proposed acoustic wall that it should be setback three metres from the boundary to enable landscaping of greater substance than climbing vegetation as proposed by SB. The wall would need to have an acoustically sealed door included to enable the care and maintenance of the vegetation to be undertaken so that the planting screens the view of the 6.58m high wall from adjoining residential properties and achieves the objectives of the DCP.
48. CB agrees with the observations of SB at paragraph 2[7] [sic] that There is no indication of any site accommodating a 3.0m landscape buffer. However, CB does not agree with the statement that The control has clearly not been maintained in the locality. CB notes that the control is contained within a DCP that commenced on 8 February 2013. It is clear from a visit to the site and the locality that the industrial development on the site and generally within the industrial locality predated the adoption of the DCP.
49. CB considers that given that the intensity of the development proposed requires the erection of an acoustic fence (which may or may not be effective as noted above) it is appropriate that the development if approved be required to provide a 3 metre landscape setback to provide an appropriate landscaped interface with the adjoining residential premises.
50. Should the Court approve the proposed acoustic wall with a three metre landscape setback CB considers that it would be necessary for the turning templates and paths of travel to be remodeled by the traffic engineer.
…

Cross-examination of Mr Varga before Commissioner

The Council referred to the transcript of the cross-examination of Mr Varga (Respondent’s traffic expert) before the Commissioner. The cross-examination touched upon several issues including:

whether Mr Varga needed to conduct a traffic impact assessment in the abstract for this new use;

whether Mr Varga needed a representative work week to provide reliable survey data;

how Mr Varga satisfied himself that the work week which he examined was representative, especially when he had not included Saturday, where the Melbourne Cup and elections in the United States of America were taking place and where he told the operators of the site that he was coming;

whether the swept path drawings were accurate;

whether and why Mr Varga did not prepare an allocation plan for parking of vehicles on the site;

whether Mr Varga had an accurate understanding of the way in which on-street parking was being used; and

whether Mr Varga’s assessment of where vehicles would be stored (on and off the site) was accurate and the issue of employee parking more generally.

Submissions to Commissioner

The Council took the Court to its submissions in the proceedings before the Commissioner. In respect of contentions in relation to the acoustic barrier and traffic and parking, the Council submitted:

Contentions 2 and 4 – Noise Barrier
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18. The proposed barrier should be set back 3m, given the height of it, to enable substantive landscaping that marks an appropriate transition to the adjoining residences – taking account of the objector evidence that a barrier was not supported at all on visual impact grounds. That such a setback might have the effect of further demonstrating difficulties for the application in terms of traffic movements (see the observations of Ms Brown in Ex 5 [50]) reinforces the Council’s submission that the traffic/parking evidence is insufficient and/or a reason for refusal of the application.

Contentions 2 and 3 - Parking/Traffic
19. A specific objective of the KDCP is (at Ex 1 page 165 at (e)) to ensure that “adequate off-street parking is provided to satisfy the demands generated by the industrial activities”. It can be seen that the objective refers to demand for parking driven by the nature of the industrial activity and not as a function of the peculiar arrangements of an Applicant for consent. This is the true meaning of taking planning law as “objective” in the sense referred to in the authorities cited in the Applicant’s submissions at [24] and on a proper understanding of Preston CJ’s reasons in Jonah. The Applicant must meet the concerns of the controls as such and not seek to avoid their effect by claiming an esoteric manner of use.
20. The general objective for sufficient off-street parking is repeated as specific objective (a) under Part 8D of the KDCP (see Ex 1 at page 173). Other objectives include the minimization of adverse impacts of vehicles on the amenity of surrounding neighbourhoods (obj (b)) and the provision of safe pedestrian areas through car parking areas (obj (f)).
21. The controls in Part 8D require compliance with Part B4 (see (1) at Ex 1 on page 173). This takes the Court back to Ex 1 page 143. The “Parking Requirements” there depend upon a “car parking rate” being set in Table 1 or, failing that, the rates developed after a “merit assessment”: see at (2). The number of off-street spaces can be reduced by reference to the matters set out at (3) in Ex 1 at page 144 but none of those matters refer to the peculiarities of a proposed use with a vague number of vehicles associated with the use being asserted to be elsewhere.
22. A further control (at Ex 1 page 174) is (at (9)) ensuring that pedestrian access through car parks being kept “separate” from vehicle access ways.
23. The application before the Court fails to meet these controls. There has been no sufficient merit assessment of the parking requirements of the use (as compared to an assessment by reference to the particular or esoteric needs of the user) such that the Court would be satisfied that the Site accommodates vehicle demand and the failure to properly delineate space for parking as compared to pedestrian access (or storage of materials) means a further failure to demonstrate compliance with the controls.
24. The Court should have no confidence that it has the material required to properly justify the limited degree of allocated parking for the Site. The traffic assessment of Mr Varga was compromised by the short amount of time he was given to prepare a study. He was commissioned within two weeks of the direction to prepare a joint report leaving him – effectively – one week in which to carry out a study and even then he was limited to five days rather than having the ability to survey a full representative work week inclusive of Saturday: see Ex 5 at [29]. The Court should have no confidence that the study demonstrates the parking required for the Proposed Development in a representative week.
25. The study was compromised by the fact that Mr Varga was not able to independently assess that particular week as truly representative (other than in taking his client’s word for it) – something Mr McLaren criticized on the basis that it can be, and often is, independently verified by asking for confirmatory records showing the week as a standard or representative week.
26. The study was compromised by the fact that Mr Varga could not affirm that the behaviour of the Applicant was not influenced by the fact of the study (except by his assertion that he did not expect his client to “understand” the nature of the study – something the Court should reject).
27. The study was compromised by the fact that there were two significant events in the week surveyed (Melbourne Cup and the televised US election results) that could and likely did result in fewer car movements on those days (see the results for November 3 and 4 (Tuesday and Wednesday) at Ex 5 at [20] which are indeed less than for any other day).
28. The parking assessment was most compromised when Mr Varga simply accepted his client’s assertions that there were large numbers of vehicles associated with the use that were simply located “elsewhere” and did not need to be accounted for (see Ex 5 at [15]). This seems to have included an unassessed number of vehicles parking on the local street network which were not counted in Mr Varga’s study (see Ex 5 at [23]; and see Mr McLaren’s criticism of the study in not accounting for persons parking on-street and walking to the premises at [32]).
29. The assessment is compromised in not accounting for this “fleet” of vehicles as being capable of parking on-site in the manner contemplated by the controls. The list of vehicles set out at Ex 5 para [45] has a significant number unaccounted for in Mr Varga’s study and which cannot be accommodated on the Site according to any plan or drawing filed in the proceedings (a problem compounded by the fact that the plans do not properly designate pedestrian paths or formalise storage areas).
30. The study also failed to account for the higher than usual number of office premises employees proposed for this Site: see Ex 5 at [57]-[60]. No plan shows specific parking areas even for the regular employees of the Site. Mr Varga’s confidence that the employees can park at the Site – as they seem to do - by a process of management should not be shared by the Court. It is based upon the current use (including taking the Applicant’s word for it that a substantial number of employees do not drive to the Site) which, as was submitted above, is irrelevant to the proper assessment of the application. A proper assessment would account for the way in which the proposed use generates a need for parking that must be accommodated.
31. What the past use of the Site does demonstrate is that there is an excessive use of the local street network for parking. This was a common complaint amongst the objector evidence. This evidence can be used by the Court (in the sense outlined above under Jonah) to confirm that an unallocated and unassessed “fleet” of vehicles -not accounted for in Mr Varga’s study- will likely park on the street, causing adverse impacts on the environment that the controls under the KDCP seek to avoid.
32. Further, the Court should also have no confidence in the turning circle drawings at Ex 5 Annexure 8 since they do not show material storage areas that were observed on the Site view. The only way the Court could have confidence in those drawings would be to condition the use to ensure no storage of materials on the floorplates which is – effectively – a constructive refusal. Again, the failure of the Site to properly accommodate the vehicles it requires is consistent with the objector evidence in that vehicles are often heard to “beep” as they reverse.
33. The application is deeply flawed in assuming that the current use shows that the Site “works” such that a rushed and unrepresentative “study” of it would demonstrate compliance with the controls. The application should be refused on the basis that there has been insufficient information to satisfy the Court that the parking needs generated by the proposed use can be met by parking available on- Site. This is likely to lead to adverse environmental impacts from vehicles parking on the local street network as has been the subject of the objector evidence (ie in noise and anti-social behaviors).
Contention 6 – Plan of Management
34. The plan of management provided by the Applicant on 27 November 2020 has to do all of the heavy lifting in terms of managing adverse impacts arising from the Proposed Development but is not sufficient in terms of meeting the Court’s requirements as specified in the planning principle in Renaldo Plus 3 Pty Ltd vHurstville City Council [2005] NSWLEC 315 at [54]. It:
•   requires people to act in a manner unlikely or unreasonable in circumstances of the case, particularly with respect to parking, in assuming employees and contractors will travel to work and not require parking or that all vehicles can park on-site when this cannot be demonstrated on any plan prepared for the application;
•   it includes no detailed statement by which it demonstrates how people can be expected to know of its requirements beyond a vague assertion at [2]; and
•   it provides no system of change to respond to performance failures.

The Respondent submitted the following before the Commissioner:

…
7. The business operates a fleet of plant and vehicles which are identified at Annexure 9 to the Traffic joint report (EXH 5). Drivers of trucks and traffic control utilities drive directly from their homes to construction sites each day and drive their vehicles home again after work each day ([15], EXH 5). The only time those vehicles visit the site is to obtain any necessary supplies, which is not necessarily on a daily basis.
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Contention 2 – insufficient and inconsistent detail provided
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16. The applicant has provided a detailed explanation of the use which, depending on the job, some of the plant referred to above will be kept on job sites rather than on the Land. The operation of the business is such that there is never a time that all plant and equipment is stored on the Land.
17. Due to the nature of the business, being civil works conducted remotely, vehicles only return to the site if they need supplies. That ‘need’ is fluid and therefore the applicant has provided a survey of the vehicles in and out of the Land to provide a basis for assessment of the vehicles that use the Land on a daily basis (Annexures 6 and 7 and [65], EXH 5).
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[Particular (b)]
22. The applicant accepts a condition to comply with the terms of the POM which include:
a. A requirement that all vehicles entering and exiting the Land do so only in a left turn in and right turn out manoeuvre to avoid accessing the adjacent residential street network (at [23]);
b. A requirement that no vehicles are to be parked or accessed from the surrounding street network, with the exception of areas nominated by signage for heavy vehicle parking in Planthurst Road, Carlton (at [20]).

23. The proposal, together with the proposed conditions, will ensure that all vehicles associated with the use will be accommodated on the Land (save for those that are permitted to park in Planthurst Road). A rigid plan which requires every vehicle in the fleet to have a space allocated to it for parking on the Land would be an inefficient use of space and would not provide reasonable flexibility in the use of the Land, given that all vehicles are not stored on the Land at any one time. The parking areas are not open to the public and the applicant should be permitted the flexibility to manage parking within its Land, so long as it complies with the conditions above.
…
25. Mr Varga undertook a survey of how many vehicles entered and exited the Land over a 5 day period to assist in understanding the proportion of the fleet that needs to be accommodated on the Land. A summary of the traffic surveys is at [20] of EXH 5 confirms that there are typically 40 to 60 vehicle movements (in and out) to the site per day. The survey is to be read with the parking accumulation study at Annexure 7 to EXH 5 which confirms that the amount of vehicles parked on the site at any one time during the day (and overnight) is a fraction of the fleet.
…
30. Any consent granted by the Court would require compliance with the POM which will mean that the applicant must arrange its business so that it can be serviced from the stie and not the street network. It is that mechanism that protects the amenity of the public, without unduly restricting the business conducted on the site. Mr McLaren’s criticism that surveys should have been undertaken on a Saturday would not trouble the Court as the condition requiring that no vehicles be parked on the street extends to any operation on a Saturday.
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[Particular (e)]
41. Again, notwithstanding Mr McLaren’s observation of the use of the Land, he does not raise any specific issue, save for a video provided to him by a resident (at [47] (noting that the video appears to breach the Surveillance Devices Act 2007) where he observes a single rigid truck and truck trailer combination not leaving the Land in a forward direction (at [47]). Mr Varga has provided swept paths demonstrating that all vehicles are capable of entering and leaving the Land in a forward direction. The applicant accepts a condition that it must comply with that requirement.
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[Contention 3 – traffic and parking, Particular (e)]
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57. The applicant requires flexibility in the way in which it uses the floor space. The applicant accepts that it must accommodate all parking on the Land. Mr Varga is satisfied that can be achieved. The applicant will be bound by a condition to that effect. The turning paths demonstrate that the vehicles can be accommodated and the applicant must ensure that the floor space is arranged within the zones to accommodate all vehicles on the Land.
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[Contention 4 – acoustic impact]
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74. The Council’s DCP requires a 3m landscaped buffer (folio 171-172, volume 1, EXH 1). That control must be read with the objectives and applied flexibly. The Court would be satisfied that the buffer will provide a suitable landscaped element to the residential properties, together with a permanent visual barrier which will screen the wider industrial area from the dwellings. The barrier will be consistent with the existing treatment of the zone interface observed by the Court on the site inspection.
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[Contention 6 – POM]
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76. The proposal has a comprehensive plan of management. It is noted that the oral evidence of Mr Farhat is that whilst the business has been operating under a similar plan of management that the impacts have been reasonable.
77. Mr Farhat’s evidence demonstrates that the impacts of the proposal can be managed by the implementation of a POM and conditions of consent. The POM details the use and its management and the Court would be satisfied that it properly addresses the management of the use such that consent is warranted.

Commissioner’s judgment

A number of issues were addressed in the Commissioner’s judgment, including acoustic impact of operations on the site, acoustic impact of traffic, parking and conditions of consent.
Extracts of the judgment follow:

…
4. The contentions raised by the Respondent in the DA Appeal are set out in the Statement of Facts and Contentions filed 11 June 2020 (Exhibit 2) and relate to permissible use, traffic and acoustic impacts and how the operation of the enterprise will be managed. This case is about what use is permitted on the Site which is zoned Light Industrial and whether the Proposed Development will have unreasonable adverse impacts in relation to noise, traffic and dust.
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10. The Respondent’s case is that development consent should be refused because there remains insufficient information for a proper assessment of the Proposed Development and that the Development Control Order appeal should be dismissed. The substantial reason put by the Respondent is that “the development application lacks important, substantive, information such that the Court cannot be satisfied that the proposed use will not have material negative environmental impacts, primarily concerning traffic and parking.” (Respondent’s written submissions at par 2).
11. The parties relied on the expert evidence contained in the following:
(1) Joint Expert Report prepared by Consultant Planners Scott Barwick for the Applicant and Clare Brown for the Respondent filed 23 November 2020 (Exhibit 6) (Planning Joint Report).
(a) The Consultant Planners also considered the Acoustic and Traffic Joint Expert Reports and prepared and filed a supplementary Planning Report on 27 November 2020 (Exhibit 9) (Supplementary Planning Joint Report).

(2) Joint Expert Acoustic Report prepared by Stephen Gauld for the Applicant and Richard Haydon for the Respondent filed 25 November 2020 (Exhibit 4) (Acoustic Joint Report).
(a) The Acoustic experts also prepared and filed a Supplementary Acoustic Report on 27 November 2020 (Exhibit 8) (Supplementary Acoustic Joint Report).

(3) Joint Export Traffic Report prepared by Robert Varga for the Applicant and Craig McLaren for the Respondent filed 25 November 2020 (Exhibit 5) (Traffic Joint Report).

…
13. The hearing commenced with a site view and an inspection from the adjoining neighbours at 137 and 145 Woids Avenue Carlton. In addition to written submissions tendered by the Respondent there were four objectors who gave evidence in the proceedings.
14. Objector evidence focused primarily on acoustic impacts from the operations on the Site and from the traffic as well as, to a lesser extent, the impact of dust arising from the use of the Site. I accept that the impact of the past use of the Site has been adverse and detrimental to the adjoining neighbours and that since the implementation of the Interim Plan of Management in approximately mid August 2020, there has been improvement to the noise and dust impacts.
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19. Part of the factual context of these proceedings refers to an Interim Plan of Management (IPOM) which was implemented some time in mid August 2020 via proceedings 2020/101221 DCO Appeal (JER Planning Ex 6 at par 13). It is common ground and agreed by the parties that since the introduction of the IPOM in mid August 2020 the ‘unacceptable’ past impacts on the adjoining neighbours have markedly improved. I accept that this is a relevant consideration in my assessment of the contentions raised by the Respondent in the SOFAC which predominantly deal with impacts of the Proposed Development. I also accept the Applicant’s submission that when Jonah is read together with s 4.15(1)(b) of the EPA Act it is appropriate to consider past use of this Site when assessing the likely impacts of the Proposed Development.
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Acoustic Impact – operations on site
34. The next issue I will deal with is one of the main acoustic impact concerns, being whether there is sufficient detail of the operations on the Site which demonstrate that the Proposed Development will not unreasonably impact on the acoustic amenity of the adjacent residential properties and the surrounding environment (Statement of Facts and Contentions, Exhibit 2). I will then deal with the acoustic concern regarding the traffic generated noise.
35. At page 13, Planning Joint Report:
“The identified adverse impacts broadly relate to, hours of operation, the activities undertaken within the rear work yard, vehicle storage, traffic movements and traffic volumes and parking.”

36. At page 5, Planning Joint Report:
“CB has identified that in terms of the operation of the premises the element of the use which causes a substantial amenity impact relates to the occasions where material from project sites is brought to the premises and not disposed of directly to an approved and licensed waste disposal facility. It is identified by CB that the sorting of the material brought to the site necessitating the use of the shaker bucket which contributes to noise, vibration and dust is the source of much of the adverse amenity impacts relating to the use.”

37. At the outset, the parties anticipated the acoustic issues summarised in the Planning Joint Report quoted above, to be either entirely or largely resolved following the proposal by the Applicant to agree to a condition that would remove the processing of all material from zone 3. The Acoustic Experts were directed to confer and prepare a supplementary report and the Planners similarly considered the Acoustic supplementary report and prepared a Planning supplementary report (Exhibits 8 and 9 respectively).
38. The Supplementary Acoustic Joint Report states the parameters of the further joint conference as follows at par 1.3:
“Further to the site view on the morning on 26 November 2020, and the commencement of the hearing proceedings, the experts were asked to consider the noise impact from an amended proposal proffered by the applicant, as follows:

The rear service yard is not to be used for the storage, sorting or separating of material from work sites being serviced by the business operating from the premises.
No spoil, broken concrete or similar material is to be brought to the yard and sorted for storage in the stockpile bays within the rear service yard.”

39. The agreement reached between the acoustic experts is set out at par 2.24 in Exhibit 8 and they agree that “the 8.1m high acoustic barrier proposed in the joint acoustic report dated 24 November 2020 in Paragraphs 3.42 to 3.49 will be required to be constructed to achieve the calculated noise levels” and they make a number of other recommendations which have been adopted by the Applicant and incorporated either in the conditions of consent or the Plan of Management. The acoustic experts agree that the acoustic impacts (with the proposed acoustic barrier and the POM) are acceptable.
40. The acoustic experts and the planning experts were not cross examined by the parties.
41. I accept that the provision of the acoustic barrier will have the benefit of providing a barrier to the industrial zone from the residential dwellings with visual and acoustic attenuation of the industrial zone (Par 22, Planning supplementary report Exhibit 9).
42. I note that the Planning experts agreed in their Planning supplementary report (Exhibit 9) that arising from the Acoustic supplementary report is consideration of the KDCP in particular Part D3 control 7(6) relating to the provision of a landscape buffer. Mr Barwick recommends that if the barrier were to be approved it should be setback a distance of 1.0m inside of the property boundary and the setback area planted with climbing vegetation that could create a visual green wall. In relation to the KDCP Mr Barwick refers to the control in 7(6) which states “This buffer is to be a minimum of 3 metres.” I accept Mr Barwick’s evidence that the objectives of section 7 Landscaping could be summarised to ensure that landscaping should screen development and provide landscaping to residential interfaces and he concludes that the provision of a 3.0m setback is unwarranted in the circumstances for a number of reasons including, relevantly, that the acoustic wall provides an acoustic mitigation that would not be delivered by a 3.0m wide landscape buffer. I also note relevantly that the existing building on the Site has a rear vehicle exit roller door which would be blocked should the acoustic wall be made to comply with the 3.0m wide landscape buffer.
43. The Applicant rightly submits in reply that s 4.15(3A) of the EPA requires the KDCP controls to be applied flexibly. I am satisfied that the objective of the 3.0m landscape buffer control is achieved and that the recommendations of Mr Barwick to setback the acoustic barrier a distance of 1.0m inside of the property boundary and the setback are planted with climbing vegetation is appropriate in the circumstances of acoustic mitigation and the constraints of the existing building. I note that in the Supplementary Planning Joint Report at par 33 Mr Barwick states:
“I agree with CB that should the wall be approved at the 1.0m setback and the setback landscaped there should be a maintenance point. Instead of disrupting the integrity of the acoustic wall the access could be installed via a new door adjacent to the rear roller door…”

44. In relation to the landscaping Mr Barwick provides his opinion at par 35 in the Supplementary Planning Joint Report as follows:
“In addition to an access point, a condition should be imposed requiring the installation of an automatic watering system to support the vitality of any vegetation provided to screen the acoustic wall such as Lilli Pilli or suitable climbing plants that could utilise the acoustic wall as a medium to support their growth.”

45. Having considered the evidence of the acoustic experts and the planning experts together with the proposed conditions of consent and the POM, I find that the Applicant has demonstrated that the Proposed Development will not unreasonably impact on the acoustic amenity of the adjacent residential properties and the surrounding environment. In the context of the removal from the Proposed Development of any processing, grinding, sorting etc of concrete or other waste materials, I am satisfied that the air pollution and dust concerns raised by the Respondent and by the objectors will also be significantly mitigated if not entirely resolved. In that regard, I note that the POM prohibits breaking, crushing or grinding of waste material (pars 13 and 31) and at par 33 there is the requirement that the storage bunkers be covered and secured by a purpose-built cover of fine mesh shade cloth or geofabric which covers the entire material in the storage bunker and further, if conditions are windy, the stockpiled fine-grained materials are to be wet down with a mist or spray hose to minimise dust.
Acoustic Impact - traffic
46. This contention essentially concerns detail provided by the Applicant in order to assess the likely traffic impacts. The Court heard evidence from resident objectors regarding the past impacts of truck and vehicle movements at various hours and along the residential streets thereby having an adverse impact on the amenity of the residential neighbours. Parking is relevant to traffic and I deal with parking below.
47. As I have already noted above, I accept that the objectors generally agreed that in the period between the introduction of the Interim Plan of Management in mid August 2020 and the date of the hearing, the traffic impacts have improved.
48. The Applicant submits further that since the contention was raised, the following has been submitted by the Applicant:
(1) A detailed description of use (Annexure C, Planning Joint Report);
(2) POM;
(3) A survey of traffic and parking (Annexures 6 and 7, Traffic Joint Report);
(4) Swept path diagrams (Annexure 8, Traffic Joint Report); and
(5) A vehicle and plant register of the fleet (Annexure 9, Traffic Joint Report).

49. On the basis of the POM relied on by the Applicant, I am satisfied that the acoustic impact of traffic concern has been resolved and addressed by imposing the following management obligations on the Applicant in the POM:
“23 All vehicles entering and exiting the Premises will do so only in a left turn in and right turn out manoeuvre to avoid accessing the adjacent residential street network.
24 No vehicles external to the building are to be left idling on the Premises or surrounding streets […] Vehicles owned and operated by the enterprise are to be fitted with ‘squawker’ reversing alarms.”

Parking
50. The concern as submitted by the Respondent relates to the provision for parking of vehicles on the Site and whether there ought to be provisions for 100% of storage of trucks and vehicles within the fleet owned and managed by the Applicant. The Applicant submits that the fleet identified by Mr McLaren in par 45 on page 7 of the Traffic Joint Report (Exhibit 5) is not accurate and does not reflect a list of vehicles that the Applicant stores on site. In opening the Applicant submits that
“vehicles typically go home with the employees and they only come to the Site when they need additional supplies. It’s not correct to say that the vehicles never come to the Site, but they don’t have a permanent place there. The proposal is that they come in, pick up what they need to and then go away. There are some vehicles that are stored on the Site and they have been identified by Mr Varga and it’s on that basis that the applicant says that there is sufficient accommodation on the Site for the vehicles proposed as part of the business as it operates at 33 Waterview Road.” (Transcript page 38 at pars 22-29)

51. The Applicant, in written submissions states that the operation of the business is such that there is never a time that all plant and equipment is stored on the Site. Council’s case is that there should be a detailed vehicle allocation parking plan whereas the Applicant seeks reasonable flexibility and asks the Court to accept the POM and the conditions of consent as providing sufficient enforceable certainty in the operation of the enterprise from the Site.
52. The Applicant relies on s 4.15(3A) of the EPA Act which requires the Court to apply the KDCP controls flexibly if there are reasonable alternative solutions that achieve the objects of those standards in relation to parking in industrial zones. The relevant general objective (e) identified in Part D3 of the KCDP states as follows:
“(e) Ensure that adequate off-street parking is provided to satisfy the demands generated by the industrial activities and that the location and design of driveways, parking spaces and loading/ unloading areas are efficient, safe, sufficient and suitably landscaped.”

53. Then at Part D3-8 “Vehicle access and Parking” the objectives provide as follows:
“Objectives
(a) Provide sufficient and convenient on-site parking for employees, visitors and associated vehicles.
(b) Minimise the adverse impact of vehicles on the amenity of the development, streetscape and surrounding neighbourhoods.
(c) Ensure that appropriate on-site parking is provided for people with a disability and is consistent with the design requirements of the Building Code of Australia and the relevant Australian Standards.
(d) Ensure that there is adequate space on-site for easy, convenient and safe circulation of vehicles.
(e) Car parking areas and loading areas should be designed to ensure ease of ingress and egress to and from the site.
(f) Provide safe pedestrian access through car parking areas without interference of vehicular movement.
(g) Vehicular movements to and from the site should be designed to reduce potential conflict with street traffic and pedestrians.”

54. I acknowledge the reservations expressed by Mr McLaren as to compliance with the flexible approach proposed by the Applicant. I have referred to the swept path drawings at Annexure 8 of the Traffic Joint Report and am satisfied that together with the evidence of Mr Varga and the detailed provisions of the POM, the nature and manner of operation of the business of the Applicant on the Site requires a reasonable degree of flexibility as to parking of vehicles on-site and that a rigid parking allocation regime is not strictly required in order to achieve the objects of the KDCP stated above.
55. I find that there is sufficient information provided by the Applicant in order to be satisfied that the alternate solutions as set out in the POM are adequate and will minimise the adverse impact of vehicles on the amenity of the development, streetscape and surrounding neighbourhoods.

Ground 1 failure to determine substantive integer (traffic and parking)

Ground 1 of the appeal alleges that the Commissioner failed to engage with a substantive integer of the Council’s case concerning likely impacts to the amenity of surrounding residences arising from:

(a) inadequacies in the survey information concerning traffic likely to arise from the development;
(b) inadequate information on vehicle allocation within the development site; and
(c) past performance in terms of the failure to manage such impacts.

Council’s submissions

The Council submitted that the Commissioner failed to respond to a “substantial, clearly articulated argument”. This was an error of law being a denial of procedural fairness to the Council, or a constructive failure to exercise jurisdiction: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [104] (Payne JA) (Gautam); Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (Dranichnikov). In Dranichnikov at [88] Kirby J described such an error as “essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant”. The Council accepted it must clear a high threshold to demonstrate this ground. In statutory terms, such an error can cause multiple failures of compliance with the statutory regime, such as a failure to assess the application for likely impacts contrary to s 4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and a failure to lawfully determine the application under the EPA Act s 4.16.
The Commissioner misdescribed the Council’s case in relation to traffic and parking at [50] first sentence. This flattened the far more sophisticated argument put by the Council through its expert planner and traffic consultant summarised above in [17]. The judgment failed to consider the impacts of vehicles coming and going as to number, where they would be located once on the site and that the Respondent had not demonstrated that this activity would fit on the site given other activities to be carried out, the storage of equipment and the existence of other vehicles. The issues identified included that the assessment of parking demand inappropriately focussed on the user not the use so that an assessment of demand in accordance with the applicable assessment controls was not carried out (written submissions before the Commissioner at pars 21-23). No specific parking delineation on any plan, or as a matter of active management, was proposed so that assessment of parking impacts was very difficult. An unaccounted for “fleet” of vehicles were not controlled resulting in likely detrimental impacts on neighbourhood amenity (written submissions before the Commissioner at par 33). Mr Varga’s evidence was challenged on at least five articulated grounds (written submissions before the Commissioner at pars 24-31). The Council also submitted that the plans and drawings could not be relied upon to establish safe turning circles since aspects of the use were not shown (written submissions before the Commissioner at par 32). The Council also submitted that there was too much reliance on a POM to mitigate impacts, contrary to Renaldo3 Plus Pty Ltd v Hurstville City Council [2005] NSWLEC 315 (Renaldo) (written submissions before the Commissioner at par 34).
The whole issue of parking and traffic was dealt with in six paragraphs. The reasons do not set out and summarise the position of the Council and frame the issue from the perspective of the Respondent. No mention is made of the Council’s concerns that there would be adverse amenity impacts for adjoining residential neighbours. The reasons do not engage with the Council’s submission that overreliance on management meant the application failed to comply with the planning principle in Renaldo. The Commissioner’s decision did not express itself as resulting from engagement with Mr Varga’s evidence.
In reply submissions, the Council argued that the scope of a relevant issue is not defined by the extent of cross-examination. In relation to the Respondent’s argument that the Commissioner determined the issue of parking by holding that 100% of vehicles would not ever be present on the site, the Council submitted that this misses the broader point that the Commissioner needed to engage with the Council’s submission that it was not possible to assess the development without taking into account the large unallocated fleet of vehicles. In accepting the Respondent’s case the Commissioner failed to engage with the Council’s case. The Commissioner failed to explain how a full assessment of the development was possible given that management of the unallocated fleet of vehicles which travelled to and from the site to restock was not considered.
In submitting that the error was material and that the Court should therefore grant relief and remitter in respect of the Commissioner’s decision, the Council relied on Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [132]. The Council submitted that the failure to determine a substantive integer of its case was a denial of procedural fairness, and inherently material.

Respondent’s submissions

When read fairly as a whole and not in a nit-picking manner there was no failure of the Commissioner in her judgment to consider a substantive integer of the Council’s case. The Commissioner’s judgment should be read as a whole. The Commissioner identified the two sets of proceedings and summarised the Council’s contentions at [4]. Reference was made to impacts arising from noise, traffic and dust. The parties’ respective positions were identified at [4]-[10]. At [10], the Commissioner accurately stated the Council’s case.
At [11], the Commissioner identified that she had the benefit of the joint planning and traffic and parking reports. At [12] she noted that she had the benefit of written submissions and further evidence. At [13] she noted that she had done a site inspection and benefitted from objector evidence.
At [14], the Commissioner acknowledged objector submissions which primarily focused upon acoustic impacts arising from past use of the site, noting that since the implantation of an Interim Plan of Management (IPOM), there had been an improvement on noise and dust impacts.
At [15]-[19], the Commissioner considered the parties’ interpretation of Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 in relation to the past use of the site with the Commissioner ultimately accepting the Respondent’s submissions that it is not only past use resulting in “unacceptable” impact that are relevant. It was, as noted by the Commissioner at [19], common ground and agreed by the parties that since the introduction of the IPOM, the “unacceptable” past impacts on the adjoining neighbours had markedly improved.
At [20], and by reference to the Council’s own explanation, the Commissioner accepted that by the provision of a further supplementary acoustic report, “there would be a large degree of agreement between them [the acoustic experts] any anything in dispute would probably relate to conditions, as opposed to anything pertaining to their discipline”.
At [22]-[27], the Commissioner outlined the planning controls applying to the site, concluding in accordance with the submissions by the parties that the proposed development is one that is permissible on the site.
At [28]-[33], the Commissioner dealt with the only jurisdictional pre-requisite identified by the parties, being a contravention of the height of buildings development standard pursuant to cl 4.3 of the KLEP. Though there was some dispute as to whether, in light of the existing building contravening the height standard whether cl 4.6 of the KLEP had been enlivened, the Respondent nevertheless tendered a written request. The Commissioner ultimately concluded at [33], that the cl 4.6 request was adequate and the contravention of the height standard justified. This was also a position conceded by the Council: at [28].
At [34]-[49], the Commissioner dealt with acoustic impacts both from an operational and traffic aspect. In doing so, the Commissioner referred to the expert acoustic evidence relied on by the parties, and the agreements reached between the parties based on the expert acoustic evidence by the imposition of a condition: at [37]. Thereafter the acoustic experts were directed to confer and prepare a supplementary report in which agreement was again reached as to the erection of an acoustic barrier which, in combination with a POM, would result in acceptable acoustic impacts. In light of the agreements reached by the experts, the acoustic experts and the planning experts were not cross-examined by the parties.
It was also in light of the agreements reached, that the Commissioner appropriately accepted at [41], that “the provision of the acoustic barrier will have the benefit of providing a barrier to the industrial zone from the residential dwellings with visual and acoustic attenuation of the industrial zone”.
The only remaining dispute was then the setback of the acoustic barrier against the control in the KDCP, with the Commissioner accepting the evidence of Mr Barwick that a setback of one metre was appropriate in the circumstances. In doing so, however, express reference was made to the agreement in the supplementary planning report at par 33 in which both experts agreed in relation to a maintenance point which, with the acoustic barrier, would provide adequate mitigation of acoustic impacts.

The Commissioner then summarised her conclusions as to operational acoustic impacts at [45], all of which were entirely appropriate in light of the agreements between the parties’ experts.
At [46]-[49], the Commissioner dealt with the acoustic impacts arising from traffic. The Commissioner commenced by recording the concerns raised by the objectors and accepted their evidence (at [47]) that since the introduction of the IPOM, the traffic impacts had improved, before concluding at [49], that the POM sufficiently resolved and addressed the acoustic impacts of traffic.
Paragraph [50] introduced the parking dispute between the parties, with the Commissioner noting the Council’s concern as relating to “the provision for parking of vehicles on the Site and whether there ought to be provisions for 100% of storage of trucks and vehicles within the fleet owned and managed by the Applicant”. As was apparent from the manner in which the Council framed its case, it was based on the incorrect premise that the Respondent would store all plant and equipment on the site at a given time. This was not the case as the Commissioner identified at [51]. Importantly, and whilst regard was had to the evidence of the Council’s expert, the Commissioner accepted the Respondent’s submissions that the KDCP controls were to be flexibly applied and the proposal submitted provided a reasonable alternative solution which would minimise the adverse impact of vehicles on amenity.
In relation to traffic and parking impacts, the Commissioner had before her evidence of Mr Varga’s survey and the IPOM. The latter document formed part of the context in which the Commissioner read Mr Varga’s survey and was noted as a relevant planning consideration under s 4.15(1)(b) of the EPA Act at [19] in the judgment. The Commissioner relied on the IPOM, proposed POM, traffic consultants and Mr Varga’s survey to reach her decision. The Council’s submissions at first instance at pars 31-33 did not engage with the Respondent’s submissions that there had been an improvement during the period the IPOM was in place.
At [53]-[63], the Commissioner dealt with the conditions of consent submitted by each party, accepting, after consideration of the volume of material to be stored on the site (at [59]) and the acoustic barrier (at [60]), and being satisfied that the proposed development minimised adverse effects and impacts, that the Respondent’s conditions were appropriate.
As identified in the summons for the appeal, at issue was the amenity impact of the proposed change of use on neighbouring residential properties.
The Commissioner’s acceptance that the POM would mitigate amenity impacts, as the IPOM had done according to residents, engaged with the issue of amenity to surrounding residents. The Commissioner specifically preferred Mr Varga’s evidence to that of Mr McLaren (at [54]), noting that a flexible approach was appropriate. The Commissioner accepted the Respondent’s position that there would never be a time that all plant and equipment was on site at the one time, meaning the Commissioner did not need to accept a more stringent approach proffered by the Council. The Commissioner reached that conclusion having regard to the objectives in the KDCP ([52]-[54]). The substantive integer was the impact on amenity from traffic and parking and the Commissioner gave a reasoned decision as to why she found those impacts to be reasonable in the circumstances and ultimately found at [55] of the judgment that the information provided by the Respondent was satisfactory for her to form that conclusion.
The fact that the process of reasoning took up only six paragraphs does not mean it gives rise to error in the Dranichnikov sense. As Kirby J stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) at 259, the obligation to give reasons does not oblige the decision-maker to engage in a “tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the decision-maker’s conclusion”. In NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) at [66] Bell P identified that the function of an appellate court is not to identify the optimal level of detail required in reasons for a decision but the minimum acceptable standard. The same must apply when considering matters in dispute. All that was required of the Commissioner was for her to state briefly the grounds which led her to the conclusions reached concerning disputed factual questions and to list the findings on principal contested issues. The Commissioner fulfilled that obligation by giving reasons at [54].

Consideration

Principles applying in s 56A appeals

I outlined the principles to be applied in determining a s 56A appeal in Hoy v Coffs Harbour City Council [2015] NSWLEC 128 (Hoy) at [7]-[11] and it is useful to set these out as they are applicable to this appeal:

7... An appeal must identify a question of law explicitly or implicitly decided at first instance: Warkworth Mining Ltd v Bulga Mulbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527 at [4]. That question must also be sufficiently material that a wrong answer vitiates the decision: Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [29], [133]-[136] and [191]. The question must also arise from a contest or dispute between the parties: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [147], [160] per Basten JA. The merits of a commissioner’s decision cannot be the subject of a s 56A appeal.
8 An appeal under s 56A is “on a question of law” not limited, however, to “an error of law”: ISPT Pty Ltd v Valuer General [2009] NSWCA 31 (2009) 165 LGERA 25 at [3] per Allsop P. In the absence of any statutory indication of the weight to be given to various considerations, an allegation that insufficient weight was given to particular evidence is generally insufficient as a ground of appeal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41, Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [57], Hoskins v Waverley Council [1999] NSWLEC 236 at [11]-[12].
9 A commissioner or judge of the Court is required to address relevant material issues by exposing his or her reasoning: Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [43] per Tobias JA, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P, at 279 per McHugh JA. The Court at first instance is not required to “deal with every argument raised and every possibility that could be adverted to”: Comcare v Forbutt [2000] FCA 837 at [58] per Heerey J cited by Tobias JA in Segal at [71].
10 The judgment should be read on the basis that the Commissioner and the parties were present and understood the issues presented by them: see by analogy Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292; (2010) 181 LGERA 352 at [79].
11 An approach to finding error that is nitpicking with an eye to identifying error is not permissible, as identified in numerous authorities commencing from Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368. Very importantly, a judgment must be considered as a whole, not selecting parts of the judgment and reading them out of context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291, O’ Donnell v Sutherland Shire Council [2011] NSWLEC 184 at [23].

Turning to the first ground of appeal, it is appropriate to begin with Dranichnikov, in which Gummow and Callinan JJ held at [24]: “To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.” At [88] in Dranichnikov Kirby J stated:

Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.”

In El Boustani v Minister administering Environmental Planning and Assessment Act 1979 (2014) 199 LGERA 198; [2014] NSWCA 33 at [156]-[157], Preston CJ summarised the concept of a constructive failure to exercise jurisdiction in the Dranichnikov sense:

In Resource Pacific Pty Ltd v Wilkinson, Basten JA (with whom Beazley JA agreed) noted at [9] that:
The term ‘constructive failure to exercise jurisdiction’ is used to describe a situation where the court has purported to resolve the parties’ dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked.

In State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 at [11], Basten JA (with whom McColl JA and I agreed) also observed that:
a mistake in understanding the facts, applying the law and reasoning to a conclusion could amount to a constructive failure to exercise jurisdiction if it revealed ‘a basic misunderstanding of the case brought by an applicant, [so that] the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way’: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [88] (Kirby J), referred to in Goodwin v Commissioner of Police [2012] NSWCA 379 at [20].

In Day v SAS Trustee Corporation [2021] NSWCA 71 at [37], Meagher JA commented on what a constructive failure to exercise jurisdiction involved:

As those decisions illustrate, a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his “three key issues” were not stated and determined discretely. What he must show is that they raised “substantial” (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address…

In DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [54], the Full Court of the Federal Court (Kerr, Davies and O’Bryan JJ) held:

the failure to consider an argument will only constitute a constructive failure to exercise jurisdiction, and thereby jurisdictional error, if the argument is substantial in the sense that it is capable of altering the decision. In that sense, the requirement of substantiality is equivalent to considering whether the failure is material to the outcome…The degree of consideration which is necessary for jurisdiction to have been exercised is affected by the significance of the submission made to the decision-maker. In that regard, it is necessary to have regard to the whole of the decision-maker’s reasons and the issues considered.

The judgment of the Commissioner is correctly summarised by the Respondent above in [27]-[43]. The parts of the judgment considering traffic and parking are extracted above in [20]. The Council referred extensively to its submissions, expert reports and the transcript of the hearing, as summarised or extracted above in [12]-[17], to submit that the Commissioner failed to “engage with a substantive integer” of its case. The obvious observation to make is that the Respondent also presented its case through its experts and made submissions which responded to the Council’s contentions before the Commissioner. The Commissioner had the benefit of a view of the site and heard evidence from resident objectors, including in relation to the operation of the IPOM implemented with successful effect in ameliorating traffic and parking impacts.
The grounds of appeal particularise three matters, with which it is alleged the Commissioner failed to engage. Firstly, inadequacies in the traffic survey information is identified, being the five-day traffic survey conducted by Mr Varga. The evidence on traffic and parking impacts evolved in the course of the hearing, including Mr Varga undertaking a five-day survey of traffic at the site, about which he was cross-examined on its limitations as the Council considered these. The cross-examination of Mr Varga, as identified above, included criticisms put by counsel for the Council that the survey was conducted in the week of the US election and the Melbourne Cup and not conducted on a Saturday. Mr Varga did not accept these criticisms. That the Council was critical of the Respondent’s expert evidence in relation to the traffic survey does not mean that the Commissioner was bound to accept that criticism. Ultimately the Commissioner accepted the Respondent’s traffic expert’s evidence. That is what can occur in the usual course of merits appeals.
The second issue particularised was inadequate information on vehicle allocation within the site. Once again different views were expressed by the traffic experts Mr McLaren and Mr Varga on the necessity for the allocation of specific parking spaces on the site for staff and “fleet” vehicles collecting equipment being necessary. The experts disagreed on whether this was necessary. The Commissioner was aware of the issue and preferred certain evidence, in the usual course of a merits appeal.
The third matter particularised as not being engaged with is “past performance in failing to manage such impacts” of traffic and parking. As I understand the Council’s case the Commissioner erred in relying on an IPOM which had ameliorated the impacts on surrounding residences according to resident objectors in a way that was said to be impermissible under Renaldo because that was not addressing the proposed development only a former unacceptable use. The application of Renaldo is ultimately a merits matter in any event and is not the substance of this ground of appeal. The judgment shows that the Commissioner was aware of the issues of the unallocated “fleet” and staff parking, referred to the positive effects of the IPOM as relied on by the Respondent given its clear relevance to the issues before the Court and accepted the traffic expert Mr Varga’s evidence concerning the management of these impacts. Accordingly, I consider the Respondent’s submissions in [43] above should be accepted.
Having reviewed the extensive material relied on by the Council and the judgment of the Commissioner I consider that the submissions of the Respondent above in [44] should be accepted. Namely, the six paragraphs of the judgment which consider parking matters and four paragraphs which consider acoustic impacts from traffic do not give rise to a finding of a failure to engage with the Council’s identified issues by the Commissioner.
No failure to appreciate the Council’s case on traffic and parking in the three ways articulated and no failure to exercise jurisdiction in the Dranichnikov sense arises from the judgment. The issues on traffic and parking evolved in the course of the hearing, in an orthodox way, including the preparation of additional expert evidence by the traffic experts and the town planners. The Commissioner considered the merits issues as they were ultimately presented by the parties, and the judgment should be read on the basis that the Commissioner and the parties were present and understood the issues presented.
The Respondent replied to this ground by referring to cases concerning the adequacy of reasons, which is a separate albeit often related issue (see appeal ground 2). In Soulemezis, Kirby P at 259-260 identified the obligation to give reasons as summarised below in [71] within Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329 (Raffoul). I agree that the Commissioner gave adequate reasons in light of the issues and evidence presented to her, at [54] (see below in [74]-[79]). The provision of reasons, which I consider do address the key issues identified in this appeal ground, also answers ground 1 being the failure to engage with a substantive integer of the Council’s case.
Further, when the Commissioner’s judgment is read as a whole in light of the SOFAC, the parties’ expert evidence and submissions at the hearing, I consider this ground of appeal is an attempt to review the merits of the Commissioner’s determination on traffic and parking issues. Such an approach is impermissible in a s 56A appeal.
The Council has not established a failure to engage with a substantive integer of its case in the first ground of appeal.

Ground 2 failure to provide reasons

The Council argues that the Commissioner failed to give adequate reasons for the decision, specifically with respect to principal contested issues of:

(a) traffic/parking and associated amenity impacts (Contention 2 and 3);
(b) the placement of the proposed acoustic wall/barrier (Contention 2 and 4); and
(c) overreliance on a POM that was an insufficient response to the likely impacts arising from the development (Contention 6).

Particular (c) concerning the POM relates to particular (a), traffic/parking. The matters identified in the second ground of appeal can be dealt with in two components, traffic and parking issues in (a) and (c) and, separately, the treatment of the acoustic barrier (b). The Council referred to the expert evidence of the traffic engineers, extracted above in [13] and the planners’ opinions on these issues in [14]-[15]. Once again there was a difference of expert opinion on these matters.

Council’s submissions

The Council submitted that the Commissioner failed to give sufficient reasons. The general content of the obligation was identified in Gautam at [16]-[18] (Leeming JA):

16. … The content of the judicial duty to give adequate reasons depends on the circumstances of the matter being considered: Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [61]. The position with tribunals is a fortiori, bearing in mind the range of matters determined by tribunals and the absence of any free-standing common law duty to give reasons: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43].
…
18. Most commonly, the issues in contested proceedings in the Occupational Division will involve questions of fact. Not uncommonly, they will include questions of the credibility and reliability of the evidence of complainants as well as of practitioners. It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side’s case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn. It is difficult to speak in terms of inflexible rules. Very much will turn upon the nature of the case and, in particular, the nature of the parties’ submissions in support of the findings each seeks to be made.

Although his Honour was speaking of the Occupation Division of the NSW Civil and Administrative Tribunal (NCAT), his observations are generally applicable. The content of the duty is contingent on the nature of the issues, which may require an examination of the matters at stake for the parties and the way issues are framed in evidence and submissions. The identity of the decision-maker is important for setting the expectations for adequacy of reasoning.

Traffic/parking, POM

The Commissioner failed to address substantive contested issues raised in the written submissions of traffic and parking impacts arising from unallocated vehicles coming and going from the site during the day, and overreliance on a POM to control impacts. There was no record of engagement with contested issues, in a manner that is not suggestive of “various competing factors” having been “identified and addressed”: Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 (SJD) at [95] (Preston CJ).
In reply, the Council submitted that [54] of the Commissioner’s judgment was not a general finding taking into account the Council’s case on traffic and parking. Rather, it only dealt with the narrow issue of rigid parking allocation onsite. Further the Commissioner failed to assess the POM according to the Court’s planning principles on the use of these.
The Council also submitted in reply that the Respondent’s submissions about the Council’s case on the POM before the Commissioner are wrong (see below in [69]) as this was a clear feature of the Council’s case (written submissions before the Commissioner at par 34, above in [17]).

Acoustic barrier

In relation to the placement of the acoustic barrier or wall, the Council conceded that the Commissioner did “identify” and to some degree “address” the contention about location of the wall at [43]. However, the Council submitted that the reasons were insufficient for demonstrating why a local control was not applied. Rather, the only explanation given was that the acoustic barrier would provide a treatment “not delivered” by a three metre wide landscape buffer (which implies a misunderstanding of the issue) and that placement of the wall at one metre provided greater operational opportunities for the Respondent (which was irrelevant). The reasons do not demonstrate how the KDCP control was appropriately made a focal point in the assessment of the acoustic barrier and for the application and so do not appropriately explain the basis of the decision. There was no specific explanation why the control in the KDCP should be varied. Reliance on s 4.15(3A) by the Commissioner was misplaced given s 4.15(1)(a)(iii) which requires that specific controls must be a focal point of consideration per Zhang v Canterbury Council (2001) 51 NSWLR 589; [2001] NSWCA 167. The assertion that objectives of a control are met does not provide sufficient reasons. Whether there was cross-examination of the acoustic and planning experts is irrelevant.
On the issue of materiality, the Council made the same submission on ground 2 as it did on ground 1 above in [26].

Respondent’s submissions

Traffic/parking, POM

Ground 2 appears to be an attempt to have a merits review of the Commissioner’s decision. The Commissioner provided adequate reasons. At [46]-[55], the Commissioner dealt with traffic and parking and associated amenity impacts by identifying both the contentions relating to amenity impacts on residential neighbours and Council’s concern about whether there ought to be 100% storage of vehicles owned and managed by the Respondent on the site. The Commissioner had regard to the material provided by the Respondent, the POM and concluded that the objectives of the controls had been achieved: at [54]. The Council’s reliance on SJD does not assist it and a similar conclusion ought to be reached in this case.
The Commissioner did not need to and did not have a proper basis to deal with the Council’s submission on overreliance on the POM given the extent of its written submissions on the matter was one paragraph.

Acoustic barrier

In relation to the acoustic barrier, the Commissioner summarised the evidence of the acoustic and planning experts and noted that agreement had been reached as to the erection of the barrier (at [34]-[39]). She accepted Mr Barwick’s evidence that the KDCP controls were achieved with only a one metre setback together with landscaping and maintenance. The Commissioner identified that the Council’s witness agreed on that point at [43], and that a setback of more than one metre would block a rear vehicle exit door (at [42]). The Commissioner had regard to s 4.15(3A) of the EPA Act in concluding that the objectives of the KDCP could be met without strict application (at [43]). The Commissioner had regard to the acoustic and planning experts’ evidence, the proposed conditions and the POM. Furthermore, in the absence of cross-examination of the acoustic and planning experts, and where there was no contested expert evidence on the acoustic barrier issue, the Commissioner was not required to analyse and make findings on the expert evidence on that issue: cf Keith v Gal [2013] NSWCA 339 at [127] (Gleeson JA, Emmett JA and Simpson J agreeing).

Consideration

I have identified above in [45] the relevant principles which apply in s 56A appeals. The parties agreed on the principles applicable in considering the adequacy of giving reasons citing well-known authorities in this regard. In Raffoul at [52] Sackville AJA (Campbell JA and Bergin CJ in Eq agreeing) summarised the position:

52 The principles relating to the obligation of a trial judge to give adequate reasons for making findings of fact, including findings said to be demeanour based, were summarised by McColl JA (with whom Ipp JA and Bryson AJA agreed) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110. Her Honour’s statement of the principles was accompanied by detailed citation of authority. The following is a summary, with reference only to some of the leading authorities:
(i) The giving of adequate reasons lies at the heart of the judicial process, since a failure to provide sufficient reasons can lead to a real sense of grievance because the losing party cannot understand why he or she lost (at [57]): see Beale vGovernment Insurance Office of NSW (1997) 48 NSWLR 430, at 442, per Meagher JA.
(ii) While lengthy and elaborate reasons are not required, at a minimum the trial judge’s reasons should be adequate for the exercise of a facility of appeal, where that facility is available (at [56]): see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 260, per Kirby P; at 269, per Mahoney JA.
(iii) The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties (at [58]): see Soulemezis v Dudley, at 259, per Kirby P; at 280, per McHugh JA. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute (at [62]): Beale v GIO , at 443, per Meagher JA.
…

In Zeait v Insurance Australia Limited t/as NRMA Insurance [2016] NSWSC 587 at [28]-[30], Harrison AsJ stated:

28. It is trite law that if a court fails to give sufficient reasons for its decision it constitutes an error of law: see Wang v Yamamoto [2015] NSWSC 942; and Jung v Son [1998] NSWCA 120.
29. In Wang v Yamamoto at [35]-[38], I stated:
“[35] It is not in dispute that a Magistrate is obliged to provide adequate reasons and not to do so constitutes an error of law: see Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41] per Santow JA.
[36] In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 340 Meagher JA at 422 stated:
A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made: Re Poyser and Mills Arbitration [1964] 2 QB 467 at 478. This court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why it lost.

[37] In Stoker, Santow JA at [41] said that “It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.” However, “the extent and the content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties”: see Pollard v RRR Corporation Pty Limited [2009] NSWCA 110, McColl JA at [58] (with whom Ipp JA and Bryson AJA agreed).
[38] In Soulemezis v Dudley (Holdings) Pty Ltd (1987) NSWLR 247, McHugh J at 281 stated:
In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only B constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough.

30. In Jung v Son, Stein JA stated (at 6):
“While a judge does not have to state reasons for every aspect of the case, his reasons must be sufficient to satisfy the requirements of Pettit v Dunkley [1971] 1 NSWLR 376. The reasons must be sufficient to enable an appellate tribunal to gain a proper understanding of the basis of the verdict. Not to do so is an error of law (Asprey JA at 382 and Moffitt JA at 388). Failure to give reasons also makes it impossible for an appellate tribunal to give effect to a plaintiffs right of appeal. Issues critical to the case, as these were, must be dealt with by reasons (Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728).”

In Gautam at [16]-[18] Leeming JA made similar observations in relation to proceedings in the Occupational Division of the NCAT. The paragraphs relied on by the Council emphasise that whether reasons are adequate is a matter of fact and degree considered in the context of the particular matter before a court. The authorities referred to in ground 1 by the Respondent of Soulemezis and Orr also identify that perfection is not required when considering the adequacy of reasons.

Traffic/parking, POM

The Council’s case is couched on the basis that insufficient reasons were provided in relation to traffic and parking and overreliance on the proposed POM, a high hurdle for the Council to leap given that it bears the onus of establishing its case. This ground is to be contrasted with an absence of reasons. The Council accepted that the Commissioner was not required to address every matter referred to and every submission made: see Hoy at [9] extracted above in [45], citing Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [71] (Tobias JA, Beazley P and Basten JA agreeing) in turn citing Comcare v Forbutt [2000] FCA 837 at [58] (Heerey J); also see SJD at [116]; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 at [62] (Gleeson CJ, McHugh and Gummow JJ).
A fair reading of the judgment in light of what evidence and submissions were before the Court suggests the reasons provided in relation to traffic and parking and reliance on the POM were adequate. As the Council’s reference to the contentions, evidence and submissions before the Commissioner was reasonably extensive much of this has been extracted or summarised above in [7]-[17]. The Commissioner in her judgment at [46]-[49] dealt with the acoustic impact of traffic, before dealing with parking at [50]-[55]. No failure to address substantial contested issues in the reasons arise and I consider that the reasons at least reach the minimum standard required in this context.
I essentially agree with the Respondent’s submissions summarised above in [68]-[69] on this aspect of this appeal ground as these accurately reflect the proceedings before the Commissioner.

Acoustic barrier

The complaint in relation to the acoustic barrier and inadequate reasons is difficult to discern given what is identified in the Commissioner’s judgment at [34]-[45].
The Commissioner summarises the planning issue of the development not unreasonably impacting on the acoustic amenity of surrounding residential development (at [34]), extracts the planners’ summaries of the acoustic issue (at [35]-[36]), and identifies changes in the operation at the site which will improve this (at [37]-[38]). The recommendation of the experts for an acoustic barrier noted at [39] is accepted by the Commissioner at [41]. The planning issue in relation to the setback of the acoustic barrier is considered at [42]. The Commissioner identifies the relevant control of a three metre landscape buffer in the KDCP and the planners’ competing evidence about this, choosing to prefer one planner’s recommendation for an acoustic barrier one metre from the boundary with appropriate landscaping for the reasons given at [42]-[44]. The final conclusion of satisfaction about this measure is reached at [45]. The judgment appears to be entirely orthodox given the Commissioner’s attendance at the site and understanding of the differing levels of the site and neighbouring residential land and the expert reports. The Commissioner was clearly aware of the KDCP control and gave reasons for why she did not adopt it, preferring a wall one metre from the boundary. No error of law arises in respect of the Commissioner’s reasons in relation to the acoustic barrier.
The Council is also unsuccessful on the second ground of appeal. The appeal should be dismissed.
Costs in s 56A appeals generally follow the event in the absence of disentitling conduct by the successful party. As there is no disentitling conduct the Council, the unsuccessful party, should pay the costs of the Respondent.

Orders

The Court orders:

The appeal is dismissed.

The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed.

The exhibits are returned.

**********

Decision last updated: 21 December 2021

Medium Neutral Citation:	Georges River Council v S A F Group Pty Ltd [2021] NSWLEC 151
Hearing dates:	27 October 2021
Date of orders:	17 December 2021
Decision date:	17 December 2021
Jurisdiction:	Class 1
Before:	Pain J
Decision:	The Court orders: (1) The appeal is dismissed. (2) The Appellant is to pay the Respondent’s costs of the appeal as agreed or assessed. (3) The exhibits are returned.
Catchwords:	APPEAL – appeal on questions of law from decision of commissioner approving a change of use of a factory building to warehouse, depot and associated offices – no failure to engage with important part of council’s case – no failure to give adequate reasons – appeal dismissed
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16 Land and Environment Court Act 1979 (NSW), s 56A Kogarah Local Environmental Plan 2012
Cases Cited:	Abdel Naser Qushair v Naji Raffoul [2009] NSWCA 329 Castle Constructions Pty Ltd v North Sydney Council (2007) 155 LGERA 52; [2007] NSWCA 164 Comcare v Forbutt [2000] FCA 837 Day v SAS Trustee Corporation [2021] NSWCA 71 DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 El Boustani v Minister administering Environmental Planning and Assessment Act 1979 (2014) 199 LGERA 198; [2014] NSWCA 33 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Hoy v Coffs Harbour City Council [2015] NSWLEC 128 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Keith v Gal [2013] NSWCA 339 NSW Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Renaldo 3 Plus Pty Ltd v Hurstville City Council [2005] NSWLEC 315 S A F Group Pty Ltd v Georges River Council; 3R Investments Pty Ltd v Georges River Council [2021] NSWLEC 1237 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 Zeait v Insurance Australia Limited t/as NRMA Insurance [2016] NSWSC 587 Zhang v Canterbury Council (2001) 51 NSWLR 589; [2001] NSWCA 167
Texts Cited:	Kogarah Development Control Plan 2013
Category:	Principal judgment
Parties:	Georges River Council (Appellant) S A F Group Pty Ltd (Respondent)
Representation:	Counsel: M Seymour (Appellant) J Reid (Respondent) Solicitors: HWL Ebsworth Lawyers (Appellant) OneGroup Legal Pty Ltd (Respondent)
File Number(s):	2021/158259
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 1 Citation: [2021] NSWLEC 1237 Date of Decision: 11 May 2021 Before: Espinosa C File Number(s): 2020/101209