Hi-Quality Quarry (NSW) Pty Ltd v Liverpool City Council

[2023] NSWLEC 1583

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hi-Quality Quarry (NSW) Pty Ltd v Liverpool City Council [2023] NSWLEC 1583

Hearing dates:

Conciliation conference on 3 October 2023

Date of orders:

05 October 2023

Decision date:

05 October 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development application no. DA-585/2022 for a landscaping materials supplies facility including associated landscaping and earthworks at 70 Range Road, Cecil Park NSW 2178 (Lot 12 DP 1065416) is determined by the grant of consent subject to the conditions set out in Annexure “A”.

Catchwords:

APPEAL – development application – landscaping materials supplies facility – conciliation conference – agreement between the parties

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16

Environmental Planning and Assessment Regulation 2021, ss 23(1)(b), 271

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.3, 5.21, 7.6, 7.31

Rural Fires Act 1997, s 63

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.6, 2.10; Chs 2, 11

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6; Chs 3, 4

Water Management Act 2000

Texts Cited:

Liverpool Development Control Plan 2012

Planning for Bush Fire Protection 2019

Category:

Principal judgment

Parties:

Hi-Quality Quarry (NSW) Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
P Holland (Solicitor) (Applicant)
D Loether (Solicitor) (Respondent)

Solicitors:
McCullough Robertson Lawyers (Applicant)
Bartier Perry Lawyers (Respondent)

File Number(s):

2022/384963

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following Liverpool City Council’s deemed refusal of the applicant’s development application DA-585/2022 (DA) for a landscaping material supplies facility at 70 Range Road, Cecil Park NSW 2178, being Lot 12 in DP 1065416 (site).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 3 October 2023. I presided over the conciliation conference.

3. At the conciliation conference the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant development consent to the DA subject to the conditions in Annexure A.

5. The jurisdictional preconditions that must be satisfied before this function can be exercised are identified in a joint jurisdictional submission accompanying the s34 agreement. After a consideration of the parties’ written and oral submissions I am satisfied on the evidence before me that there is no jurisdictional impediment to the grant of development consent as proposed. In that regard, I note the following matters.

Owners’ consent

6. The DA has been made by Hi-Quality Quarry (NSW) Pty Ltd, with the consent of the owners of the in accordance with s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). A copy of the landowners’ consent is provided at Tab 1 of the Class 1 Application filed 21 December 2022.

Notification

7. The DA was notified to nearby properties of the site from 21 July 2022 to 24 August 2022. No submissions were received in relation to the proposed development during the notification period or otherwise.

8. The DA was referred to NSW Rural Fire Service on 22 July 2022. The referral response provided recommended conditions of consent which have been incorporated into Annexure A (see Folio 487 Tab 9 Council Bundle of Documents).

9. The DA was referred to NSW Department of Planning and Environment – Water. The referral response stated the proposed development was not a Controlled Activity for the purposes of the Water Management Act 2000 (see Folio 490 Tab 9 Council Bundle of Documents).

State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP)

Chapter 3 – Hazardous and Offensive Development

10. Chapter 3 of the RH SEPP provides a list of threshold levels for the storage of dangerous goods, to assess whether the controls contained in this Chapter apply to a development. The applicant’s SEPP 33 Risk Screening Assessment at Appendix 15 of the Statement of Environmental Effects prepared by Willowtree Planning Pty Ltd dated 11 May 2022 (see Tab 2 of Application Class 1) has concluded that the dangerous goods quantities stored onsite will not exceed the thresholds for hazardous materials. Furthermore, that the load quantity and weekly movements for materials are substantially below the thresholds for dangerous goods vehicle movements.

11. On that basis that expert assessment the Council and the Court are satisfied that the proposed development does not exceed the thresholds contained in Ch 3 of the RH SEPP.

Chapter 4 – Remediation of Land

12. Section 4.6(1) of the RH SEPP provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out; and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

13. The DA includes a Preliminary Site Investigation Report and Detailed Site Investigation Report prepared by Epic Environmental Pty Ltd dated 8 September 2021 and 8 November 2021 respectively (see Tab 9 and Tab 11 Application Class 1). The Council is satisfied that the Detailed Report is prepared by a suitably qualified and experienced land consultant. The Detailed Report confirms that the site is not significantly contaminated, and the site is suitable for ongoing commercial/industrial land use. The Council is satisfied, based on the findings within the Detailed Report, that the site is suitable for the proposed development use and is compliant with the relevant controls set out in s 4.6(1) of the RH SEPP.

14. The parties agree and the Court accepts on that evidence that the requirements of s 4.6(1) of the RH SEPP are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

Chapter 2 – Vegetation in Non-Rural Areas

15. Section 2.6 of the BC SEPP requires that a person must not clear vegetation in a non-rural area without the authority conferred by a permit granted by Council.

16. The DA seeks approval for the removal of 38 Cumberland Species trees to facilitate the proposed development.

17. The DA includes an Arboricultural Impact Assessment prepared by Arbor Vision Consulting dated 29 November 2022 (see Tab H of Exhibit EAR-1 filed with the applicant’s Notice of Motion on 4 September 2023). The report concludes that 38 trees are unretainable under the proposed development and tree protection fencing and restricted activities within tree protection zones are required to protect 31 retained trees under the proposed development.

18. Section 2.10(3) of the BC SEPP provides that a permit under this part cannot be granted unless the council is satisfied of certain matters. Having regard to those matters specified in s 2.10, the Council is satisfied that the proposed development, as amended, seeks to remove trees that do not form part of a heritage item or Aboriginal object, does not exceed the biodiversity offsets scheme threshold, will not adversely impact the protection of biodiversity values of trees and will preserve the amenity of the area through the preservation of trees. The Council is satisfied that the biodiversity values of trees will be adequately protected through the tree protection fencing and restricted activities measures contained in the Arboricultural Impact Assessment.

Chapter 11 – Georges River Catchment

19. The site is located in the Liverpool LGA and is subject to Ch 11 of the BC SEPP. The Council is satisfied that the proposed development, as amended, and subject to the imposition of the conditions in Annexure A - integrates water quality and management strategies which ensures the development will not adversely affect the water quality and river flows of the Georges River and its tributaries.

Liverpool Local Environmental Plan 2008 (LLEP 2008)

Permissibility

20. The site is zoned RU4 – Primary Production Small Lots under the LLEP 2008.

21. The proposed development is identified as landscaping material supplies facilities, pursuant to the LLEP 2008 definition:

“Landscaping material supplies means a building or place used for the storage and sale of landscaping supplies such as soil, gravel, potting mix, mulch, sand, railway sleepers, screenings, rock and the like.”

22. The proposed development use of the site as a landscaping material supplies facility is permissible with consent pursuant to Land Use Table Zone RU4 Primary Production Small Lots of the LLEP 2008.

23. The objectives of the zone are:

• To enable sustainable primary industry and other compatible land uses.

• To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature.

• To minimize conflict between land uses within this zone and land uses within adjoining zones.

• To the extent that the objectives are relevant, the Respondent considers that the proposed development is consistent with them.

24. Clause 2.3 of the LLEP 2008 requires the consent authority to have regard to the objectives of the Zone and the Council has undertaken that consideration in its assessment of the merits of the application.

Flood planning

25. Pursuant to cl 5.21 the site is identified on flood prone land. Clause 5.21(2) of the LLEP 2008 provides that development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development:

1. is compatible with the flood function and behaviour on the land, and

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and

4. incorporates appropriate measures to manage risk to life in the event of a flood, and

5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.

26. A Flood Impact and Risk Assessment prepared by Stantec dated 17 July 2023 is provided by the applicant (see Tab E of Exhibit EAR-1 filed on 4 September 2023 with the applicant’s Notice of Motion filed 4 September 2023). The Council is satisfied that the proposed development, as amended, satisfies the requirements of cl 5.21(2) of the LLEP 2008, noting that it will have negligible impacts on flood levels upstream and downstream of the site, will not adversely affect the safe occupation and evacuation of people in the event of a flood, and will minimize any adverse impacts on erosion, siltation and riparian vegetation.

Environmentally significant land

27. Pursuant to cl 7.6 the southwestern corner of the site is identified as environmentally sensitive land. Clause 7.6(2) of the LLEP 2008 provides that before determining an application to carry out development on environmentally significant land, the consent authority must consider such of the following as are relevant:

1. the condition and significance of the vegetation on the land and whether it should be substantially retained in that location,

2. the importance of the vegetation in that particular location to native fauna,

3. the sensitivity of the land and the effect of clearing vegetation,

4. the relative stability of the bed and banks of any waterbody that may be affected by the development, whether on the site, upstream or downstream,

5. the effect of the development on water quality, stream flow and the functions of aquatic ecosystems (such as habitat and connectivity),

6. the effect of the development on public access to, and use of, any waterbody and its foreshores.

28. A Biodiversity Assessment prepared by Biosis dated 14 September 2021 accompanies the DA (see Tab 5 of the Application Class 1) and found that the proposed development retains vegetation proportionally in the locality, maintaining connectivity of the native environment in the LGA. The Council is satisfied that the proposed development will have minimal adverse impacts on the condition and significance of the vegetation in the southwestern corner of the site which is classified as environmentally significant land.

Earthworks

29. Pursuant to cl 7.31 the Council is satisfied that the proposed earthworks are ancillary to the proposed development that is the subject of the DA and will not adversely affect or disrupt drainage patterns or soil stability.

Bushfire prone land

30. The site is identified as bushfire prone land, being categorized as either vegetation category 2, vegetation category 3 or vegetation buffer. A Bushfire Risk Assessment Report prepared by Blackash Bushfire Consulting dated 21 March 2022 (see Tab 6 Application Class 1) and Supplementary Bushfire Report prepared by Blackash Bushfire Consulting dated 2 May 2023 (see Tab P Notice of Exhibit EAR-1 filed with the applicant’s Notice of Motion filed 4 September 2023) concludes the proposed development implements appropriate bushfire protection measures including the location of buildings in Asset Protection Zones well removed from bushfire vegetation. The NSW Rural Fire Service referral response provided recommended bushfire protection conditions of consent (see Folio 487 Tab 9 Council Bundle of Documents). The Council is satisfied that the proposed development implements appropriate bushfire protection measures during the construction of the development.

Liverpool Development Control Plan 2012 (LDCP)

31. The parties agree that the proposed development, as amended, generally complies with the requirements of the LDCP.

32. In relation to the specific parts of the LDCP raised in the Council’s Statement of Facts and Contentions it is noted that:

1. Pursuant to Sections 4 and 5 the Council is satisfied that the proposed development, as amended, protects existing native vegetation, minimises the visual impact of vegetation removal and provides landscaping which responds to the existing streetscape and rural character of the area.

2. A Soil Salinity Assessment prepared by Ron Bush dated June 2023 is provided by the applicant (see Tab I Notice of Exhibit EAR-1 filed with the applicant’s Notice of Motion filed 4 September 2023). Pursuant to Section 11 the Council is satisfied that the proposed development, as amended, minimises disturbance to natural hydrological systems and ensures the development is conducted in a manner that does not significantly increase water infiltration and salt loads in waterways.

3. The southern portion of the site is dedicated as flood detention and water storage area. A Water Cycle Management Report prepared by Sparks + Partners dated 30 November 2022 (see Tab C of Exhibit EAR-1 filed with the applicant’s Notice of Notice of Motion filed 4 September 2023) provides how the stormwater drainage infrastructure incorporates water conservation and stormwater management into its design. Pursuant to Section 6 the Council is satisfied that the proposed development stormwater drainage infrastructure will capture all gross pollutants and liquid contaminants before stormwater discharge into the creek, and the works are designed using Council’s MUSIC modelling.

4. Pursuant to Section 9 the Council is satisfied that the proposed development, as amended, will have negligible impacts on flood levels upstream and downstream of the site and will not have any adverse impacts on the natural watercourse and riparian corridor on the site. The Council is satisfied that the applicant has provided TUFLOW files to allow model simulations to be undertaken as required.

5. An Operational Noise Management Plan prepared by VMS Australia dated 9 November 2022 (see Tab O of Exhibit EAR-1 filed with the applicant’s Notice of Motion filed 4 September 2023) provides project operations to mitigate the generation of any excessive noise. Pursuant to Section 7 Part 5, the Council is satisfied that the proposed development use will not create excessive noise and the proposed development will not require additional noise mitigation.

6. Pursuant to Section 10 Part 1, Preliminary and Detailed Site Investigation Reports have been prepared. The Council is satisfied pursuant to par 12.

Rural Fires Act 1997 and Planning for Bush Fire Protection 2019

33. The Council is satisfied that the buildings of the proposed development are maintained as Asset Protection Zones, and the NSW Rural Fire Service has provided recommended conditions of consent (see Folio 487 Tab 9 Council Bundle of Documents) in accordance with s 63 of the Rural Fires Act 1997 which have been incorporated into the agreed conditions of consent.

34. The Council is satisfied that the proposed landscaping will consist of hardstand parking areas and maintained garden areas which will not be capable of carrying a substantial fire likely to impact the site.

35. The Council is satisfied that a minimum of 40,000L water supply for fire management will be available at the site.

36. Pursuant to s 4.14(1) of the EPA Act and s 271 of the EPA Regulation the Council is satisfied that the proposed development, as amended, conforms to the requirements of the Planning for Bushfire Protection 2019.

Public interest

37. The Council is satisfied that the proposed development, as amended, provides a permissible land use supporting future employment generating development that responds to the characteristics of the land, is compatible with surrounding land uses, minimises any adverse environmental impacts, and as such is considered to be in the public interest.

38. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with the parties’ decision.

39. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

40. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA-585/2022 for a landscaping materials supplies facility including associated landscaping and earthworks at 70 Range Road, Cecil Park NSW 2178 (Lot 12 DP 1065416) is determined by the grant of consent subject to the conditions set out in Annexure “A”.

……………….

S Dixon

Senior Commissioner of the Court

Annexure A (429117, pdf)

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Decision last updated: 05 October 2023