Hy-Tec Industries v Parramatta City Council

[2022] NSWLEC 1041

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hy-Tec Industries v Parramatta City Council [2022] NSWLEC 1041

Hearing dates:

19-20 January 2022

Date of orders:

28 January 2022

Decision date:

28 January 2022

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The Orders of the Court are:

(1) The Applicant’s written request under clause 4.6 of the Parramatta Local Environmental Plan 2011 for contravention of the maximum height development standard imposed by clause 4.3 of the Parramatta Local Environmental Plan 2011 is upheld.

(2) The appeal is upheld.

(3) DA/749/2021 for the installation and operation of a temporary concrete works for production of pre-mixed concrete at 37A Grand Avenue, Camellia (being Lease Area 5) Lot 2 DP 539890 is approved subject to the conditions in Annexure A.

(4) The exhibits, other than exhibits A, F and 1, are returned.

Catchwords:

DEVELOPMENT APPLICATION – temporary concrete batching plant – noise and vibration – impact on water quality and coastal wetland – impact on heritage item – adequacy of Environmental Impact Statement – contamination – flooding – consistency with zone objectives

Legislation Cited:

Contaminated Land Management Act 1997, s 21

Environmental Planning and Assessment Act 1979 ss 8.7 8.15

Environmental Planning and Assessment Regulation 2000 cl 4

Parramatta Local Environmental Plan 2011 cll 2.3(2), 4.5, 4.6, 5.10, 5.21

State Environmental Planning Policy (Coastal Management) 2018 cl 11

State Environmental Planning Policy (Infrastructure) 2007 cl 66C

State Environmental Planning Policy No 33 – Hazardous and Offensive Development cl 13

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited:

NSW Environment Protection Authority, Noise Policy for Industry, (October 2017)

Parramatta Development Control Plan 2011

Category:

Principal judgment

Parties:

Hy-Tec Industries Pty Limited (Applicant)
Parramatta City Council (Respondent)

Representation:

Counsel:
J Steele SC (Applicant)
M Hall SC (Respondent)

Solicitors:
Beatty Hughes & Associates (Applicant)
Sparke Helmore (Respondent)

File Number(s):

2021/302536

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal against the deemed refusal of Development Application No DA/749/2021 by Parramatta City Council. The application proposes the construction of a temporary concrete batching plant at 37A Grand Avenue, Camellia.

2. The Council had not determined the application within the prescribed period and the applicant is appealing its deemed refusal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979.

3. It is intended the facility operate for a period of approximately 12-18 months while the applicant’s company establishes a permanent facility on a nearby site. The company’s existing property at No 6 Shirley Street, Rosehill has been resumed by Transport for NSW to facilitate the construction of the Light Rail service to Parramatta. That site must be vacated by 30 June 2022 with demolition required prior to that date.

The proposal

4. The development application as lodged with the Council proposed

• Construction of four (4) aggregate above ground delivery storage bays;

• Installation of mobile batching plant with the capacity to produce and dispatch up to 100,000m³ of pre-mix concrete annually;

• Installation of weigh hoppers;

• Construction of an Agitator truck loading station with dust vacuum and hood;

• Construction of a conveyor system for the transfer of raw material to the mobile batching plant;

• Construction of two (2) slump stands and two (2) wash out bays;

• Provision of six (6) parking spaces for agitators, nine (9) parking spaces for light vehicles (six (6) for agitator drivers and three (3) for staff and visitors);

• Installation of a relocatable office and amenities buildings;

• Construction of ancillary equipment such as water tanks, diesel tank, generator, liquid and solid additives storage to support concrete production and dispatch.

5. Up to 220,000 tonnes of raw materials would be delivered to the facility to produce 100,000m³ of pre-mix concrete annually.

6. The application proposed the following hours of operation:

“a. The core operating hours for concrete production, dispatch and the

importation of raw materials would be 5:00am – 6pm Monday – Friday,

and 5:00am – 3pm Saturday, however;

b. The importation of raw materials would be permitted on a 24 hour basis;

and

c. During the Morning Shoulder period (5:00am – 7:00am) activities would

be limited to either limited concrete production (being the concurrent use

of two agitators and a front end loader) or raw material delivery.”

7. At the commencement of the hearing, the applicant sought and was granted leave to amend the application. The Court made the following Orders:

1. The applicant is granted leave to amend its development application by inclusion of the material listed in Annexure A to the Motion.

2. The applicant be permitted to rely upon an expert report prepared by their town planner, Ms Marian Higgins, which was filed on 17 January 2022.

3. The applicant is to pay the respondent’s costs thrown away as agreed or assessed pursuant to the provisions of s8.15 of the Environmental Planning and Assessment Act 1979.

8. The amended application was lodged on the NSW Planning Portal on 21 January 2022.

9. The majority of amendments made were in response to the Council’s initial Statement of Facts and Contentions filed with the Court on 24 November 2021 and subsequent conference before the Registrar on 16 and 17 December 2021.

10. The amended application includes new site plans and site arrangement drawings, amended hours of operation, a Biodiversity Values Map and Threshold Report, Site Validation Report, Site Audit Statement, Site Audit Report, Pavement Thickness Design, Supplementary Noise Impact Assessment, Stormwater Management Position Paper, Water Sensitive Urban Design Report, Concept Stormwater Management Plan, Additional flooding information, Dial Before You Dig response from Jemena in respect of the high-pressure gas pipeline in the vicinity of the site and email from Ampol regarding the high pressure fuel pipeline in the vicinity of the site (exhibit A).

11. The proposed hours of operation are now:

Concrete Production and Despatch	5am to 6pm Monday to Friday and 5am to 3pm Saturdays
Raw Material Delivery	7am to 10pm

12. During the morning shoulder period, activities would include only limited concrete production including two concrete agitators and one front-end loader in use concurrently.

13. Because the facility has an intended production capacity of more than 150 tonnes per day or 30,000 tonnes per year of concrete or concrete products, and is located within 100 metres of a natural waterbody or wetland and within 250 metres of a residential zone or dwelling not associated with the development, the application is Designated Development pursuant to the provisions of cl 4 and Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (Regulation).

14. The applicant prepared an Environmental Impact Statement (EIS) to support the development application in accordance with the provisions of Schedule 1 Part 1 cl 2(1)(e) to the Regulation.

The site and locality

15. The land on which the plant is proposed forms part of an irregular shaped allotment of land with a total area of approximately 32,800m². That land is owned by Camellia Grande Pty Ltd (Owner). The Owner consented to the DA. It is proposed that the Development is to be carried out on a portion of the land being an area of approximately 5,140m² that is located toward the middle of the land and which is adjacent to the western boundary (Site). The Site is currently vacant and has been leased from the Owner by the Applicant. It is described as Lease Area 5, being one of the 6 lease areas on the Land.

16. Lease areas 1, 2 and 4 enjoy access and frontage to Grand Avenue with Lease areas 3, 5 and 6 serviced by a gravel driveway off Grand Avenue which is approximately 10m in width.

17. The site is set back approximately 40 metres from the north-eastern boundary of the Land which abuts the Parramatta River.

18. Uses surrounding the site include a concrete recycling facility, storage yards, truck depots and a freight transport facility. According to the Council, some of those uses operate without the benefit of a development consent.

19. In its original condition, the Land consisted of low-lying tidal flats. In or around the 1930s, the Land (including the Site) was filled with a chromium-containing waste from a former chromium chemical manufacturing company in the Camellia area. On or around 14 December 2005 the NSW Environment Protection Agency (EPA) declared that the Land was significantly contaminated. On or around 8 May 2009, the Land was declared as a remediation site under s 21 of the Contaminated Land Management Act 1997 (CLM Act) (Declaration Number 21116) and that declaration remains in force.

20. Development consent was sought by DA/433/2013 (the Remediation DA) for the remediation of land including the installation of a pavement across the western part of the Land to reduce surface water infiltration to the sub-surface and recharge to a shallow groundwater, construction of a low permeability containment wall and associated groundwater collection drain on top of the embankment along the north-western length of the boundary of the Land with the Parramatta River, groundwater treatment system and demolition works (collectively the Approved Remediation Works). The Respondent approved the Remediation DA on 6 January 2014, and further approved modification applications on 20 January 2014 and 14 August 2015. At some time between 6 January 2014 and 19 August 2015 the works the subject of the Remediation DA were carried out on the Land, including on the site.

21. The site is currently vacant and covered with crushed rock surface graded to drainage lines. Concrete blocks are erected around the perimeter of the site with a concrete pad constructed along the western side of the site.

22. The site is predominantly surrounded by industrial land uses with the nearest residential area located approximately 200 metres away, north of the Parramatta River.

Planning controls

23. The site is zoned IN3 Heavy Industrial pursuant to the provisions of Parramatta Local Environmental Plan 2011 (LEP). The proposed development is permissible with consent in that zone.

24. Clause 2.3 of the LEP requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The Objectives of the IN3 zone are:

• To provide suitable areas for those industries that need to be separated from other land uses.

• To encourage employment opportunities.

• To minimise any adverse effect of heavy industry on other land uses.

• To support and protect industrial land for industrial uses.

• To allow a wide range of industrial and heavy industrial uses serving the Greater Metropolitan Area of Sydney and beyond.

• To ensure that opportunities are not lost for realising potential foreshore access on land that is contaminated and currently not suitable for public access.

25. LEP cl 4.3 Height of Buildings is relevant to the application. Pursuant to the Map associated with the clause, the site has a maximum building height of 12m. The height of the proposed silos is 18.6m and accordingly, in breach of the development standard. The applicant relies on a written request which seeks to vary this standard pursuant to the provisions of cl 4.6(4) of the LEP.

26. A maximum floor space ratio (FSR) of 1.0:1 applies to the site pursuant to the provisions of cl 4.5 of the LEP. The FSR of the proposal is significantly less than provided for by this clause.

27. Clause 5.10 of the LEP applies to Heritage Conservation. The wetlands in the Parramatta River, including those adjoining the Land, are included as an item of local heritage significance (Item I1) under Schedule 5. Subclause (4) requires consideration of the effect of the proposed development on the heritage significance of the item or area concerned.

28. The site is flood prone and accordingly the provisions of cl 5.21 Flood Planning apply to the application. That clause requires that the consent authority is to be satisfied the development—

(a) is compatible with the flood function and behaviour on the land, and

(b) 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

(c) 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

(d) incorporates appropriate measures to manage risk to life in the event of a flood, and

(e) 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.

29. Pursuant to the provisions of cl 5.21(3), consideration of the following matters is required:

(a) the impact of the development on projected changes to flood behaviour as a result of climate change,

(b) the intended design and scale of buildings resulting from the development,

(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

30. LEP cl 6.1 Acid Sulphate soils and the associated map identify the site as containing Class 3 Acid Sulphate soil however, as there will be no works more than 1 metre below the natural ground surface or likely to lower the watertable by more than 1 metre, the terms of this clause do not apply to the application.

31. The provisions of LEP cl 6.5 Water protection require the consent authority to consider any adverse impact the proposed development may have on the following –

(a) the water quality of receiving waters,

(b) the natural flow regime,

(c) the natural flow paths of waterways,

(d) the stability of the bed, shore and banks of waterways,

(e) the flows, capacity and quality of groundwater systems.

32. For consent to be granted the consent authority must be satisfied that –

(a) the development is designed, sited and will be managed to avoid any adverse environmental impact, or

(b) if that impact cannot be avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

33. The provisions of State Environmental Planning Policy No 33 – Hazardous and Offensive Development also apply to the application because of the capacity of an above ground diesel storage tank. The Council does not raise specific contentions in relation to that policy however, consideration of its provisions must be made and the issues relevant have been addressed in the EIS and supplementary documentation lodged with the application. Clause 13 of the policy lists the matters to be considered in determining an application. The Council submits that because the fuel will not be stored adjacent to any other hazardous materials of the same class, further assessment of the application under this policy is not required.

34. State Environmental Planning Policy No 55 – Remediation of Land (SEPP55) also applies to the application, in particular because of its listing as a remediation site. Consent cannot be granted in accordance with the provisions of cl 7(1) unless the consent authority is satisfied, if the land is contaminated, that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purposes for which the development is proposed to be carried out.

35. Two pipelines cross the Land, one a high pressure gas pipeline and the other a fuel pipeline. Accordingly, the terms of Division 12A Pipeline and pipeline corridors Subdivision 2 Development adjacent to pipeline corridors of State Environmental Planning Policy (Infrastructure) 2007 (SEPP infrastructure) are engaged. Clause 66C requires that a consent authority, before determining a development application, must –

(a) be satisfied that the potential safety risks or risks to the integrity of the pipeline that are associated with the development to which the application relates have been identified, and

(b) take those risks into consideration, and

(c) give written notice of the application to the pipeline operator concerned within 7 days after the application is made, and

(d) take into consideration any response to the notice that is received from the pipeline operator within 21 days after the notice is given.

36. State Environmental Planning Policy (Coastal Management) 2018 (SEPP 2018) also applies to the application as the site is identified as ”proximity area for coastal wetlands” under the provisions of cl 11. Consent cannot be granted unless the Court is satisfied that the proposed development will not significantly impact on –

(a) the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or littoral rainforest, or

(b) the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest.

37. Because the site is included in the land to which Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 apply, the provisions of cl 14 of SEPP 2018 do not apply.

38. Parramatta Development Control Plan 2011 (DCP) applies to the site with Parts 1 and 2 relevant to general considerations and specific controls contained in Part 3 Development Principles. The site is located within the Camelia and Rydalmere Strategic Precinct and those controls are contained in part 4.3.1.

The contentions

39. Prior to the amended application, the Council contended that the application should be refused because the EIS was inadequate; the site was not suitable for the intended use due to its contaminated state; it had not been demonstrated the development would not significantly impact the adjoining coastal wetlands of the Parramatta River or that it minimises any adverse environmental impact on riparian land or waterways; there had not been any consideration of the potential risks to the integrity of the pipelines that cross the site; the development was inconsistent with the zone objectives; the proposal failed to provide adequate evacuation measures in the case of a flood event; noise and vibration impacts would adversely impact nearby residential receivers and the application was therefore not in the public interest.

40. All of the expert reports in the proceedings had been prepared on the basis of the amended application.

41. Based on its assessment of the amended application and, subject to imposition of the agreed conditions of consent, the Council submits the application satisfactorily addresses all of the contentions in the case.

The evidence

42. A site view was conducted prior to the hearing. That view included observation of the site from a public reserve on the northern banks of the Parramatta River opposite the Land. At that location, the Court heard evidence from an objector to the application. The issues raised are summarised as follows:

• No objection to industry per se but concerned about industry that would increase the noise and dust impacts to residents.

• Considers the noise report is deficient and says the proposed colourbond fence will not be effective in eliminating noise.

• The dust survey was also inappropriate as it did not consider local conditions.

• Concerned about 24 hour deliveries and particularly noise at night.

• Existing activities are already causing amenity issues.

43. The view included a tour of the applicant’s existing plant in Shirley Street, observation of a similar modular plant in Grand Avenue, Rosehill, inspection of the site where the company plans to construct the permanent facility in Grand Avenue and finally, an inspection of the site subject of this application.

44. Expert evidence was provided by:

Applicant	Council
Geotechnical	L Tsang	D Martens
Flooding	B C Phillips	D Martens
Stormwater	B Barrett	D Martens
Noise & Vibration	R Linnett	C Gordon
Contamination	M Stuckey	D Martens
Planning	M Higgins

Geotechnical

45. The experts considered the amended application and in particular a pavement design which proposes the construction of a 165mm topping concrete slab across the site, loading data and calculations for the batching plan, including specifications for footing pads to be placed over the proposed topping slab; geotechnical investigations carried out on the site on 20 November 2021 and laboratory and material test reports issued 9 December 2021 and further geotechnical analyses and modelling.

46. These experts agree that groundwater flows within and from the site will not be impacted by the proposal because significant site settlement is not anticipated as loads imposed by the development structures and traffic will be distributed by a ‘topping slab’ and by batching plant footing pads, and will remain below the allowable bearing pressure of 150kPa, no excavation or landform modification is proposed and the stormwater will remain separated from the site groundwater system.

47. They also agree that sufficient design information has been supplied to demonstrate that the proposal can be undertaken without detrimentally impacting on the existing site contamination remediation works or the environment.

48. The experts recommend a number of conditions be attached to any consent granted. Those conditions have been incorporated into the agreed draft conditions of consent at conditions 30, 53, 54, 72 and 73.

Flooding

49. The experts have assessed the amended application and in particular, a report by Cardno dated 22 November 2021. They agree the site does not experience any direct inundation in a 1% AEP flood (except from a backup of water via the stormwater system if backflow prevention is not present) and the proposed development therefore has no impact on the 1% AEP flood levels and the 1% AEP flood storage. They expect the planned development would have a negligible impact on PMF levels and PMF storage. Peak flow velocities across the site in a PMF are generally low less than 0.5 metres per second and therefore they expect the planned development would have minor local impacts on PMF velocities only which would be confined to the site.

50. They agree the proposed development is compatible with flood function and behaviour. Given that the proposed operations are temporary and located on land that does not experience direct inundation in a 1% AEP flood, the cumulative impact of similar operations on other sites which are similarly not directly inundated in 1% AEP flood would be negligible. They recommend that a flood emergency response plan be prepared to address recommendations they make in their report and that the facility by operated in accordance with that plan. Conditions of consent reflecting this requirement have been incorporated in the agreed consent conditions at conditions 29, 70 and 71.

51. They also agree that the finished levels of the buildings provide the necessary freeboard in a flood event and that, in the event that evacuation has not occurred by the time the site is inundated, the option of stay in place until the flooding has subsided is appropriate in the circumstances of the case.

52. The experts agree they proposed development is able to satisfy cl 5.21(2) of the LEP as it will not cause erosion, siltation, destruction of riparian vegetation or a reduction in the stability of the Southern Bank of the Parramatta river.

Stormwater

53. Mr Barrett had prepared updated MUSIC modelling and the experts agree that this modelling and the proposed site water management measures demonstrate that the proposal will likely have a neutral or beneficial impact on water quality within the Coastal Wetland and the Parramatta River.

54. They also agree that hydrological impacts (such as flow depths, directions, velocities, durations, bed and bank conditions) on the coastal wetland or Parramatta River are not likely because: the proposal does not require any earthworks and will not materially alter catchments draining to these waterways; the proposal does not change the impervious area of the site or the location of any existing stormwater discharge points to the receiving environment and the existing flow regime from the site to the wetland and river is not likely to be materially altered.

55. They also agree that no material surface water quality impacts (such as increase in pollutant loads or changes in water chemistry) on the coastal wetland or Parramatta River are anticipated because: potentially contaminated wastewater streams are collected and recycled; stormwater treatment devices will be installed and maintained for the duration of operations which will result in stormwater discharging from the site having a neutral or beneficial impact on the quality of receiving waters and a site water quality monitoring and response plan will be in place for the duration of operations.

56. These experts also recommended a number of conditions be included in any consent granted and these have also been incorporated into the agreed conditions of consent at 31-33 and 74-81.

Noise and vibration

57. These experts prepared two reports, an initial report based on the amended application (exhibit 5) and a supplementary report in response to issues raised by the objector, in particular, the adequacy of proposed acoustic walls (exhibit 9).

58. The primary issue regarding noise is the change to the hours of operation and in particular so that no night time use of the site will occur.

59. Mr Linnett had prepared the initial Noise and Vibration Impact Assessment dated 12 July 2021. In response to the Council’s Statement of Facts and Contentions, in particular contention 9, he prepared a further report entitled Supplementary Noise Impact Assessment which is dated 13 January 2022 and forms Appendix C to the Joint Expert Report (Exhibit 5).

60. Having regard to the further reports, the experts agree that there is now sufficient information to resolve contentions 9a and 9b, being the sound power levels of the operational equipment. They also agreed that the noise model together with the additional noise mitigation measures such as barriers and shielding now proposed were appropriate and resolve all of the matters raised by the Council in contention 9.

61. Based on the additional information and mitigation measures proposed in the Supplementary Report, the experts agree that the development is predicted to achieve the requirements of the Noise Policy for Industry and satisfy Objective O.2 and Design Principle P.3 of section 3.3.4 of the DCP. To ensure that these noise requirements are met, the experts have agreed on conditions of consent that require compliance noise monitoring to be undertaken upon commencement of operations and include further recommendations should the outcomes not be achieved.

62. They agree that subject to incorporation of the additional mitigation measures and proposed conditions of consent, all contentions related to noise and vibration have been resolved.

63. In response to a question of the Court in relation to the matter raised by the objector regarding the use of colourbond fencing as a noise mitigation measure, the experts agree that it is appropriate to provide a specification of the wall type. In this regard they specify the eastern wall is to be constructed of 2 x 600mm concrete blocks (1200mm high) with a metal sheet wall on top (1800mm high) to create a total height of 3m the northern wall is to be 4 x 600mm concrete blocks (2400mm high) with a metal sheet wall on top (1800mm high) to create a total height of 4.2m.

64. The sheeting material used must be a minimum surface density of 12kg/m² and the walls must have a closed surface without large gaps, including at the bottom of the barrier. The cladding is to be applied to the side of the temporary concrete batching plant as described and shall also meet the same surface density of 12kg/m². Other materials may be used provided they achieve a minimum surface density of 12kg/m².

65. The conditions recommended by these experts have been incorporated in the agreed consent conditions at 66-69.

Contamination

66. These experts also had access to the amended application when joint conferencing and in particular a Site Validation Report for the site prepared by Sullivan Environmental Services (SES) dated 13 December 2021, an Environmental Management Plan for the site also prepared by SES and dated 14 December 2021, Site Audit Statement Number 2021/3 dated 14 December 2021 prepared by Mr Mark Stuckey and a Site Audit Report for Useable Lease Area 5 dated 14 December and prepared by SES.

67. The experts did not refute the content of these documents and conclude, based on their content, that they demonstrate the site has been appropriately remediated and is suitable for the proposed development. Their opinion is, however, predicated upon the implementation of any geotechnical engineering requirements to protect the site capping layer (including the proposed concrete ‘topping slab) and the preparation and implementation of an Environmental Management Plan (EMP) over the site for the duration of time the temporary concrete batching plant remains in operation.

68. They too recommend consent conditions and these have been incorporated as conditions 33A, 33B, 81A and 81B in the agreed conditions of consent.

Planning

69. The applicant relies on an expert town planning report by Ms M Higgins (Exhibit B). The Council did not contest this evidence.

70. Ms Higgins concludes that the additional information now included as part of the amended application addresses the identified deficiencies in the EIS and all of the matters listed in the Secretary’s Environmental Assessment Requirements and Matters identified for Consideration (SEARs). Having reviewed that document (SEAR Number 1572), I accept that submission.

71. She also concludes that after consideration of the joint reports by other experts in these proceedings that all of the contentions have been resolved.

72. In particular, Ms Higgins says the development will not adversely impact on the local significance of heritage item I11 “wetlands” under the LEP. She relies on the EIS assessment of air quality which concluded that the proposed development could operate without causing any significant air quality impact at any receptor locations in the surrounding environment. Once again, the Council has included consent conditions to address the issue of air quality (see conditions 1, 41, 81E and 81H).

73. The Council’s contention in regard to inconsistency with Zone objectives focussed on the final objective, that is “to ensure that opportunities are not lost for realising potential foreshore access on land that is contaminated and currently not suitable for public access”. Ms Higgins says no changes are proposed to the existing access arrangements of the site in relation to the foreshore along the Parramatta River, the location of the development is within Lease Area 5, and based on the amended application and supporting information along with the agreed outcomes between the experts inclusive of recommended conditions, the development is consistent with the objective of the IN3 Heavy Industrial zone of the LEP. The development will not alter access to the foreshore of the Parramatta River, which is available today and the location of the development will not alter access of the land to the foreshore.

74. In relation to public interest, Ms Higgins says the amended application has reduced hours of operation and will, in association with all of the agreed conditions, therefore address amenity concerns.

75. Finally, a Waste Management Plan dated 16 January 2022 was prepared and annexed to Ms Higgins’ report. Ms Higgins says the plan responds appropriately to the requirements of Section 2.11 Waste Management in the DCP.

Conclusion and findings

The 4.6 objections

76. Clause 4.6 of the LEP imposes a precondition to a consent authority exercising the power to grant consent to development on land to which the clause applies and if I am not satisfied that the provisions of the clause are met, consent cannot be granted. The Applicant relies on these provisions as the proposed development does not meet the development standards for building height. A written request has been prepared on behalf of the applicant and is included in Exhibit C.

77. Clause 4.6 is in the following form:

The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

(5) In deciding whether to grant concurrence, the Secretary must consider:

(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b) the public benefit of maintaining the development standard, and

(c) any other matters required to be taken into consideration by the Secretary before granting concurrence…

78. This imposes a number of tests, the first that compliance with the development standard must be unreasonable or unnecessary in the circumstances of the case, the second that there are sufficient environmental planning grounds to justify contravening the development standard, the third that the applicant’s written request has adequately addressed the matters required to be demonstrated by subcl (3) and the fourth, that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. In addition, satisfaction of those matters that must be considered by the Secretary in determining whether concurrence should be granted is required.

79. Preston CJ has provided guidance on the application of cl 4.6, most recently in Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 (Initial Action). A number of preconditions are identified, the first, in cl 4.6(4)(a), is that the consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a)(i) and (ii).

80. These two matters are summarised at [15] and [23] of that decision as follows:

“15. The first opinion of satisfaction, in cl 4.6(4)(a)(i), is that the applicant’s written request seeking to justify the contravention of the development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3). These matters are twofold: first, that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)) and, secondly, that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). The written request needs to demonstrate both of these matters.

…

23. As to the second matter required by cl 4.6(3)(b), the grounds relied on by the applicant in the written request under cl 4.6 must be “environmental planning grounds” by their nature: see Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [26]. The adjectival phrase “environmental planning” is not defined, but would refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects in s 1.3 of the EPA Act.”

81. In Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) Preston CJ sets out five ways of demonstrating that compliance with a development standard is unreasonable or unnecessary. They are:

“(1)   the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

(2)   the underlying objective or purpose is not relevant to the development with the consequence that compliance in unnecessary;

(3)   the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable;

(4)   the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consent departing from the standard;

(5)   the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary is applied to the land.”

82. The written requests consider all of the provisions. Accordingly, I am satisfied that the provisions of c l4.6(4)(a)(i) are met.

83. I am also satisfied that approval of the application would be in the public interest as required under cl 4.6(4)(a)(ii).

84. The objectives of the development standard for building height are:

(a) to nominate heights that will provide a transition in built form and land use intensity within the area covered by this Plan,

(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,

(c) to require the height of future buildings to have regard to heritage sites and their settings,

(d) to ensure the preservation of historic views,

(e) to reinforce and respect the existing character and scale of low density residential areas,

(f) to maintain satisfactory sky exposure and daylight to existing buildings within commercial centres, to the sides and rear of tower forms and to key areas of the public domain, including parks, streets and lanes.

85. The extent of variation to the building height development standard is limited to the cement storage silos. The maximum height allowed under the LEP is 12m and the height of these two structures is 18.765m and the structures occupy less than 1% of the site. I consider that the location of the structures in the centre of the Land provides for a transition in built form and land use intensity in the area and the small scale of the structure will minimise its visual impact. It will not disrupt any views, affect privacy or solar access to existing development. The height of the building would not impact the heritage wetland and there are no identified view corridors to these wetlands that would be affected. I do not consider the final two objectives of the development standard are relevant to the application given the location of the site is not in a residential or commercial area. Accordingly, I find the proposal would be consistent with the objectives of the building height development standard.

85. The zone objectives are detailed at [24]. Having regard to those objectives, I consider the proposed use is consistent with these objectives. That is because the location of a concrete batching plant on the site is appropriate as it would be sufficiently separated from other land uses that it may impact. The applicant, through the affidavit of Darryl William Theideke in Exhibit C has indicated that the inability of the company to relocate the plant would result in the direct loss of 21 jobs as well as impacting on those businesses that supply the facility. Approval of the application would therefore encourage employment opportunities. Having regard to the expert evidence, I am satisfied that the mitigation measures to be built and the conditions of consent proposed will minimise any adverse effect of the industry on other land uses, including the residential area on the northern side of the Parramatta River.

86. The concrete batching plant would ensure the land is used for industrial uses and is an industrial use that would serve the Greater Metropolitan Area of Sydney.

87. Because of the location of the site, I do not consider the proposal has any impact on the potential to obtain foreshore access on land that is contaminated and currently not suitable for public access.

88. On this basis, I am satisfied that the requirements of cl 4.6(4)(a)(ii) of the LEP are met.

89. The second test is that I must be satisfied that there are sufficient environmental planning grounds to vary the development standard. In this regard, I accept the submission made in the written request that the extent of variation is minor and will not impact any adjacent properties or views and is set against a backdrop of an industrial landscape. Of particular relevance is the temporary nature of the application and the fact it will be demolished on cessation of the landuse.

90. Pursuant to cl 4.6(5), I am satisfied the proposal is not considered to raise any matter of significance for State or regional development.

91. The states of satisfaction required by cl 4.6 of the LEP 2011 have been reached and there is therefore power to grant development consent to the proposed development notwithstanding the breach of the control.

92. Having regard to the evidence, I am satisfied that consent should be granted and that all of the relevant provisions of the LEP and State Policies are satisfied.

93. In regard to the heritage wetlands, I am satisfied that the design of the proposal, the equipment to be installed and mitigation measures to be implemented will ensure that there will be no adverse effects on the heritage significance of those Wetlands.

94. I accept the expert evidence that the design of the development is appropriate and therefore satisfied that the development will meet the requirements of cl 5.21 Flood Planning of the LEP.

95. I am also satisfied, based on the expert evidence that the development is designed, sited and will be managed to avoid any adverse environmental impact on nearby waterways including the Parramatta River.

96. In accordance with the requirements of cl 7(1) of SEPP 55, I accept the agreed evidence of the contamination experts that the land is suitable in its contaminated state for the purposes of constructing a temporary concrete batching plant.

97. In accordance with the requirements of cl 66C of SEPP Infrastructure, I note the response from Jemena and Ampol in relation to the gas and oil pipelines that run through the Land and note that neither company has objected to the application. Accordingly, I am satisfied that the provisions of that policy have been met.

98. Having regard to the agreed evidence of the stormwater experts, I am satisfied that the proposed development will not significantly impact on the biophysical, hydrological or ecological integrity of the adjacent coastal wetland or the quantity and quality of surface and ground water flows to and from those wetlands.

99. I also accept the uncontested evidence of Ms Higgins that the development will satisfy all relevant planning controls and the relevant contentions have been addressed through the amended application.

100. In relation to the submissions made by the objector to the proposal, I find the reduction in hours of operation as now proposed by the applicant and in particular, including no activities during the night, combined with the agreed consent conditions will ensure that the temporary use of the site will not have any adverse impacts on the enjoyment of those residential properties on the northern side of the Parramatta River and in particular those along John Street, Rydalmere. The conditions of consent will also ensure compliance with relevant standards.

101. For these reasons, I find that the application proposed should be approved subject to the agreed conditions of consent.

102. The Orders of the Court are:

1. The Applicant’s written request under clause 4.6 of the Parramatta Local Environmental Plan 2011 for contravention of the maximum height development standard imposed by clause 4.3 of the Parramatta Local Environmental Plan 2011 is upheld.

2. The appeal is upheld.

3. DA/749/2021 for the installation and operation of a temporary concrete works for production of pre-mixed concrete at 37A Grand Avenue, Camellia (being Lease Area 5) Lot 2 DP 539890 is approved subject to the conditions in Annexure A.

4. The exhibits, other than exhibits A, F and 1, are returned.

…………………………..

Sue Morris

Acting Commissioner of the Court

Annexure A (268012, pdf)

Amended Plans (4298472, pdf)

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Decision last updated: 28 January 2022