Holcim (Australia) Pty Ltd v Liverpool City Council

[2023] NSWLEC 1587

Land and Environment Court

New South Wales

Medium Neutral Citation:

Holcim (Australia) Pty Ltd v Liverpool City Council [2023] NSWLEC 1587

Hearing dates:

Conciliation conference on 22 September 2023

Date of orders:

10 October 2023

Decision date:

10 October 2023

Jurisdiction:

Class 1

Before:

O’Neill C

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development Application No. 789/2020 for the construction and operation of a concrete batching plant on part of the land at 320 Badgerys Creek Road, Badgerys Creek (Part of Lot 1 DP 1188956), is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, Sch 6, Pt 1, s 3

Environmental Planning and Assessment Regulation 2000, Sch 3, cl 14

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Chs 2,3

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 3.10, 3.11, Ch 4, s 4.6

State Environmental Planning Policy (Resources and Energy) 2021, Ch 2, Pt 2.3

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.122

Texts Cited:

Western Sydney Aerotropolis Development Control Plan 2022

Category:

Principal judgment

Parties:

Holcim (Australia) Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
M Baker (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Minter Ellison (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2023/51664

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 789/2020 for the construction and operation of a concrete batching plant (the proposal), on part of the land at 320 Badgerys Creek Road, Badgerys Creek (the site), by Liverpool City Council (the Council).

2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 22 September 2023. I presided over the conciliation conference. 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.

3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

4. There are preconditions to the exercise of power to grant development consent for the proposal.

The proposal

5. The proposal is for the construction of a concrete batching plant with a peak production capacity of approximately 100m³ per hour, with an anticipated production of 750m³ per day and a peak of up to 2,000m³. The proposal will operate 24 hours, 7 days per week, with 18 staff.

6. The Council, as the consent authority, consented to the amendment of the application. The plans and documents comprising the amended application are listed under condition 1 of the conditions of consent at Annexure A.

Jurisdictional pre-requisites to the grant of consent

7. The proposal is classified as designated development pursuant to cl 14 of Sch 3 to the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) (now repealed). Despite the repeal of the EPA Regulation on 1 March 2022, it continues to apply to the application pursuant to s 3 of Pt 1 of Sch 6 to the Environmental Planning and Assessment Regulation 2021.

State Environmental Planning Policy (Resources and Energy) 2021 (SEPP (Resources and Energy))

8. I accept the Council’s submission that the proposal satisfies the requirements of the SEPP (Resources and Energy) and, in particular, is not inconsistent with achievement of the performance aims of Ch 2 or the matters for consideration contained under Pt 2.3.

State Environmental Planning (Resilience and Hazard) 2021 (SEPP (Resilience and Hazards))

9. Sections 3.10 and 3.11 of the SEPP (Resilience and Hazards) requires the preparation of a preliminary hazard analysis to be submitted with a development application in certain circumstances. I accept the Council’s submission that preliminary risk screening took place which indicated that the hazardous materials to be stored were below the screening threshold, and accordingly, a preliminary hazard analysis is not required.

10. Section 4.6(1) of the SEPP (Resilience and Hazards) provides that a consent authority must not grant consent to the carrying out of any development on land unless the matters in (a) to (c) are met. For the purposes of Ch 4, I accept the Council’s submission, based on the Preliminary Site Investigation for Contamination Report, that the land subject of the proposal is suitable for its intended use.

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

11. While Ch 2 (Vegetation in non-rural areas) and Ch 3 (Koala habitat protection 2020) of SEPP (Biodiversity and Conservation) apply, I accept the Council’s submission that the proposal does not require any clearing of native vegetation, and therefore the requirements of Chs 2 and 3 of SEPP (Biodiversity and Conservation) do not apply to the proposal.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP (Transport and Infrastructure))

12. Section 2.122(4) of SEPP (Transport and Infrastructure) provides that, before determining a development application for traffic-generating development, the consent authority must give notice of the application to Transport for NSW (TfNSW) and take into consideration any submissions made by TfNSW and the accessibility of the site concerned. I accept the Council’s submission that the application was referred to TfNSW, however TfNSW did not make a submission. I accept the Council’s submission that accessibility of the land has been addressed and has been deemed suitable on the basis of the Traffic and Parking Assessment. I accept the Council’s submission that the proposal is for a traffic-generating development and the requirements of s 2.122 of SEPP (Transport and Infrastructure) have been met.

Liverpool Local Environmental Plan 2008 (LEP 2008)

13. The site is zoned RU1 Primary Production under the LEP 2008. Concrete batching plants are prohibited on land in the RU1 zone. The proposal is permitted with consent under SEPP (Resources and Energy).

Western Sydney Aerotropolis Development Control Plan 2022

14. I accept the Council’s submission that an assessment against the Western Sydney Aerotropolis Development Control Plan 2022, specifically Pt 2 (Precincts vision and objectives), Pt 3 (Infrastructure), Pt 4 (Urban Structure) and Pt 5 (Land Use and Built Form) has been provided which shows that the proposal is consistent with the desired future character of the area.

Conclusion

15. I have considered the submissions made by the Council in the Statement of Jurisdictional Issues filed with the Court on 22 September 2023 and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

Orders

16. The orders of the Court are:

1. The appeal is upheld.

2. Development Application No. 789/2020 for the construction and operation of a concrete batching plant on part of the land at 320 Badgerys Creek Road, Badgerys Creek (Part of Lot 1 DP 1188956), is determined by the grant of consent, subject to the conditions of consent at Annexure A.

Susan O’Neill

Commissioner of the Court

Annexure A

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Decision last updated: 10 October 2023