James Slashing Pty Ltd v Liverpool City Council

[2020] NSWLEC 1503

Land and Environment Court

New South Wales

Medium Neutral Citation:

James Slashing Pty Ltd v Liverpool City Council [2020] NSWLEC 1503

Hearing dates:

Conciliation conference on 28 July, 18 and 27 August and 29 September 2020

Date of orders:

26 October 2020

Decision date:

26 October 2020

Jurisdiction:

Class 1

Before:

Bindon AC

Decision:

The Court orders:

(1) The Applicant is granted leave to amend the application and to rely on the amended plans and documents listed in Part A of Annexure A to this agreement.

(2) The appeal is upheld.

(3) The Development Application DA-630/2019 for the retrospective approval to rectify unauthorised works on site including unauthorised earthworks and filling of land, and the addition of a new building to be used as a rural industry (fruit and vegetable storage and distribution), and associated hardstand areas, new driveway, landscaping and stormwater drainage works is approved subject to the conditions set out in Annexure A to this agreement.

Catchwords:

DEVELOPMENT APPLICATION – retrospective approval of earthworks – rural industry – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Liverpool Local Environmental Plan 2008

State Environmental Planning Policy No 55—Remediation of Land

Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997)

Water Management Act 2000

Texts Cited:

Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)

Category:

Principal judgment

Parties:

James Slashing Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
L Steer (Solicitor) (Respondent)

Solicitors:
CA Williams Legal (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2020/165404

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought to the Court under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Liverpool City Council (Council) of development application DA-630/2019 (the DA). In exercising the functions of consent authority on the appeal, the Court has the power to determine the DA pursuant to ss 4.15 and 4.16 of the EPA Act.

2. The DA relates to a 1.536ha (15,360m²) parcel of land at 145 Exeter Road, Kemps Creek identified as Lot 25 Sec B DP 2566 (the site). The site contains an existing rural residential dwelling, is largely cleared and has been filled and levelled without approval. The DA was identified as a Nominated Integrated Development requiring approval form the Natural Resources Access Regulator under the Water Management Act 2000.

3. The DA, as originally lodged with the Council on 3 October 2019, sought consent for:

1. a retrospective approval to rectify unauthorised works including earthworks and land filling;

2. retention of and modifications to the existing and unauthorised earthworks /landform;

3. construction of a new building (54m by 20m and 7m high) to be used for the purposes of rural industry (fruit and vegetable storage and distribution) and associated hardstand areas, new driveway connecting to Exeter Road, associated landscaping, stormwater drainage works and new wastewater management system; and

4. realignment of the existing watercourse within the rear of the site, and associated landscaping.

4. On 4 November 2019 the Applicant submitted a bushfire assessment report, updated site plans and elevations. The DA was then notified to surrounding properties in accordance with the Environmental Planning and Assessment Regulation 2000, from 25 November 2019 to 9 December 2019. The DA was also referred to the New South Wales Rural Fire Service (the RFS) for comments. Four submissions by way of objection were received and on 10 December 2019 the RFS responded, raising no concerns or issues in relation to bush fire.

5. On 18 March 2020 the Applicant amended the DA, with the submission of an acoustic assessment, amended Statement of Environmental Effects, flood storage plan, amended wastewater investigation plan, amended landscape plan, floor plans and sections.

6. On 12 May 2020 in response to requests from Council the Applicant again amended the DA with the submission of amended DRAINS modelling details, amended concept earthworks and drainage design plans, amended onsite wastewater management assessment and amended wastewater investigation plan.

7. On 3 June 2020 the Applicant filed the Class 1 Application with the Court, and on 3 July 2020 the Council filed its Statement of Facts and Contentions (SOFC), detailing six matters in contention. The SOFC also included a table providing a history of development applications for the site and events documented on the Council’s complaints register (CR).

8. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. Due to the Court’s COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, there was no site inspection as part of the conciliation conference. The conciliation conference, at which I presided, was held on 28 July, 18 and 27 August and 29 September 2020.

9. In response to the SOFC and as a result of the discussions at the conciliation conference, the majority of the plans that formed the basis of the s34 agreement were again amended, as listed in Condition 1 of Annexure A of the agreement. The final s34 agreement was filed with the Court on 16 October 2020.

10. The main changes between the original DA plans and the final amended plans the subject of the s34 agreement can be summarised as:

1. the height of the unauthorised landform has been lowered by approximately 1.5m, decreasing slightly the area of the site occupied by the batter;

2. the length of the new building has been reduced from 54m to 42m, reducing the floor plate area from 1,080m² to 840m² and increasing the setback from the eastern side boundary from 33.7m to 45.7m;

3. with the lowering of the landform on which the proposed building is located, the finished floor level of the building drops from RL 62.54 to RL 60.90; and

4. additional landscaping is provided as screening to reduce the visual impact of the building, batter, truck and car parking areas.

11. The agreement reached between the parties involved the Court upholding the appeal and granting development consent, subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional matters of relevance in these proceedings. I have formed the opinion that the relevant jurisdictional matters identified have been satisfied for the reasons set out in [12] to [20] below.

12. The Liverpool Local Environmental 2008 (LLEP) is the relevant local planning instrument applying to the site. I am satisfied that the development is for the purposes of a “rural industry” which is a use permissible with consent in the RU4 Primary Production Small Lots Zone (RU4 Zone) applying to the site, and that the development meets the objectives of the RU4 Zone found at cl 2.3 and the Land Use Table at the end of Part 2 of the LLEP. No maximum height of buildings or floor space ratio (FSR) development standards apply to the site under the LLEP and therefore the DA does not require approval of any clause 4.6 variations to development standards.

13. Clause 7.8 of the LLEP relating to flood planning applies to the site and requires consideration of flooding impacts. The southern portion of the site is flood affected although the proposed new industrial building is located outside any flood affected area. A Flood Assessment Study by Martens and Associates Consulting Engineers, dated 16 April 2020, was submitted as part of the DA documentation. It includes modelling of the site-specific conditions and concludes that the proposed works will not materially impact the floodplain environment or existing drainage patterns in the locality.

14. Clause 7.8A of the LLEP relating to floodplain risk management has also been considered and found not to apply to the development as the proposed works are located above the Probable Maximum Flood (PMF) level.

15. Clause 7.31 of the LLEP relating to earthworks applies to the development. Clause 7.31(3) sets out matters the consent authority must consider before granting consent. The proposal involves the retention of and modifications (lowering) to the existing unauthorised landform, for the purposes of a rural industry use. The proposal does not involve the import of fill or soil. The other relevant matters in cl 7.31(3) have been considered as set out in the Statement of Environmental Effects prepared by Martens and Associates dated September 2019 (SEE).

16. State Environmental Planning Policy No 55—Remediation of Land (SEPP 55), and in particular cll 7(1) and (2), requires consideration of any contamination and associated remediation. A Preliminary Site Investigation report prepared by Martens and Associates and dated September 2019 (PSI Report) was submitted by the Applicant as part of the DA documentation. Section 3.3 of the PSI Report confirms that an assessment of the nature and origin of the fill material used in the creation of the unauthorised landform was undertaken by Martens and Associates to the satisfaction of Council. That assessment found all material imported to the site as fill in 2019 was Virgin Excavated Natural Material (VENM), being natural material that has been sourced from areas that are not contaminated with manufactured chemicals or process residues, as a result of industrial, commercial, mining or agricultural activities and does not contain sulphidic ores or soils.

17. The PSI Report concluded that earlier past contamination as a result of historic site agricultural use or past sheds has been buried at considerable depth under the imported uncontaminated VENM and that overall the site is considered to have a low risk of contamination. Based on the PSI Report the parties are satisfied that the land is not contaminated and is fit for its intended use, and cl 7(1) of SEPP 55 has therefore been satisfied.

18. Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) (SREP 20) applies to the site as it is located within the catchment of the Hawkesbury Nepean River. The proposed development is consistent with relevant environmental objectives and controls relating to stormwater, cultural heritage, flora and fauna and waste management.

19. The proposed development incorporates appropriate stormwater measures, including construction of vegetated swales and stormwater retention basin. A Concept Stormwater Management Report prepared by Martens and Associates dated July 2019 was submitted with the DA and the parties accept that the proposed development shall not have an adverse impact on water quality or quantity. The parties have also confirmed the development is consistent with the specific planning policies and recommended strategies in cl 6 of SREP 20.

20. Relevant provisions of the EPA Act have also been satisfied, in particular:

1. The owner’s consent has been provided.

2. Notification of the DA has occurred in accordance with the notification requirements and the public submissions have been taken into consideration.

3. The conditions of the development consent annexed to the s34 agreement are reasonable, relate to the development, are for a proper planning purpose and are otherwise permissible pursuant to s 4.17 of the EPA Act.

21. 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.

22. The Court orders:

1. The Applicant is granted leave to amend the application and to rely on the amended plans and documents listed in Part A of Annexure A to this agreement.

2. The appeal is upheld.

3. The Development Application DA-630/2019 for the retrospective approval to rectify unauthorised works on site including unauthorised earthworks and filling of land, and the addition of a new building to be used as a rural industry (fruit and vegetable storage and distribution), and associated hardstand areas, new driveway, landscaping and stormwater drainage works is approved subject to the conditions set out in Annexure A to this agreement.

………………………………..

J Bindon

Acting Commissioner of the Court

Annexure A (275397, pdf)

Plan (778080, pdf)

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Decision last updated: 26 October 2020