Hanson Construction Materials Pty Ltd v Bayside Council
[2020] NSWLEC 1127
•17 March 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Hanson Construction Materials Pty Ltd v Bayside Council [2020] NSWLEC 1127 Hearing dates: Conciliation conference on 21 January 2020, 13 February 2020 and 2 March 2020 Date of orders: 17 March 2020 Decision date: 17 March 2020 Jurisdiction: Class 1 Before: Clay AC Decision: The Court orders that:
(1) The Applicant is granted leave to amend Development application no. DA-2018/1175 and rely upon the amended plans and documents listed in Annexure A.
(2) The Applicant is to pay the Council's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $39,000 in full and final settlement of all Council's costs thrown away in these proceedings.
(3) The appeal is upheld.
(4) Development application no. DA-2018/1175 for the construction and operation of a mobile concrete batching plat and aggregate storage Lot 101 Deposited Plan 1192400, Beauchamp Road, Banksmeadow is approved subject to the conditions of consent in Annexure B.Catchwords: DEVELOPMENT APPLICATION – concrete batching plant – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy No 33—Hazardous and Offensive Development
State Environmental Planning Policy No 55—Remediation of Land
State Environmental Planning Policy No 64—Advertising and Signage
State Environmental Planning Policy (Three Ports) 2013Category: Principal judgment Parties: Hanson Construction Materials Pty Ltd (Applicant)
Bayside Council (Respondent)Representation: Counsel:
Solicitors:
N Bergman (Solicitor) (Applicant)
J Cole (Solicitor) (Respondent)
Allens (Applicant)
HWL Ebsworth Lawyers (Respondent)
File Number(s): 2019/161691 Publication restriction: No
Judgment
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COMMISSIONER: This is an appeal pursuant to s 8.7 Environmental Planning and Assessment Act 1979 against the refusal by the Respondent of a development application (DA 2018/1175) for the construction and operation mobile concrete batching plant and aggregate storage at Lot 101 Deposited Plan 1192400, Beauchamp Road, Banksmeadow (the site).
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On 21 January 2020 I presided over a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). At that conference the parties agreed on a program of preparation of amended plans and the provision of additional information with the aim of resolving the Contentions of the Council. Since that date the parties have worked assiduously to resolve the matter.
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On 2 March 2020 the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The proposed decision was to grant leave to the Applicant to amend the development application, make a consequential costs order, uphold the appeal and grant development consent to the development application subject to conditions.
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Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ agreement if the proposed decision the subject of the agreement is a decision that the Court could have made in the proper exercise of its functions.
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The parties’ agreement involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. The parties have identified the jurisdictional prerequisites relevant in this case that must be satisfied before this function can be exercised and how they have been satisfied as follows:
State Environmental Planning Policy No 55—Remediation of Land
Clause 7 – The letters from Martens and Associates dated 26 March 2019 and 26 February 2020 confirm that the site is considered suitable for future commercial and industrial land use without the need for further investigation, remediation or management. The parties agree that the site is suitable for the proposed development from a contamination perspective subject to the implementation of an unexpected finds protocol and the installation of a vapour barrier where any occupiable part of any building will be in direct contact with an area of the ground that is to be excavated. These requirements are imposed by the conditions of consent.
State Environmental Planning Policy No 33—Hazardous and Offensive Development
The proposed development, assuming compliance with all of the conditions of consent, is not classified as potentially hazardous development or offensive development (Section 5.7, Environmental Impact Statement prepared by Ethos Urban dated 24 September 2018).
State Environmental Planning Policy (Infrastructure) 2007
Clause 104 – As the proposed development is traffic-generating development, the development application was referred to RMS on 19 November 2018. The proposed development takes into consideration the accessibility of the site including the matters referred to in clause 104(3)(b)(ii) and (iii).
State Environmental Planning Policy No 64—Advertising and Signage
Clause 8 – The proposed signage is consistent with the objectives of the SEPP and the assessment criteria under Schedule 1 of the SEPP (Section 5.1, Environmental Impact Statement prepared by Ethos Urban dated 24 September 2018).
State Environmental Planning Policy (Three Ports) 2013
The proposed development is permissible, assuming compliance with all of the conditions of consent, with development consent in the IN1 – General Industrial zone and regard has been had to the objectives of the zone.
There is no height of buildings standard that applies to the site.
There is no floor space ratio standard that applies to the site.
Clause 21 – the proposed site office is ancillary to an industrial use of land, in compliance with clause 21 of the SEPP.
Clause 22 – the proposed earthworks are appropriate taking into consideration the factors in clause 22 of the SEPP.
Landowners consent was provided by the owner of the land, Goodman, on 4 September 2018.
Submissions made in accordance with the Environmental Planning and Assessment Act 1979 have been taken into consideration.
The parties agree that the development application does not require approval of any clause 4.6 variations to development standards.
The parties are not aware of any other legal reasons preventing the Court from making the orders and approving the Development Application.
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I concur with the parties’ statement recorded above.
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I am therefore satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.
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As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
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The Court orders that:
The Applicant is granted leave to amend Development application no. DA-2018/1175 and rely upon the amended plans and documents listed in Annexure A.
The Applicant is to pay the Council's costs pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $39,000 in full and final settlement of all Council's costs thrown away in these proceedings.
The appeal is upheld.
Development application no. DA-2018/1175 for the construction and operation of a mobile concrete batching plat and aggregate storage Lot 101 Deposited Plan 1192400, Beauchamp Road, Banksmeadow is approved subject to the conditions of consent in Annexure B.
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The Court notes the agreement of the parties that agree that the figure payable by the Applicant in accordance with Order (2) above is also in full and final satisfaction of the order for costs made by the Court in favour of the Respondent on 20 December 2019.
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P Clay
Acting Commissioner of the Court
Annexure A (26.1 KB)
Annexure B (276 KB)
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Decision last updated: 20 March 2020
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