Kennards Self Storage Pty Limited v Cumberland Council

[2025] NSWLEC 1720

Land and Environment Court

New South Wales

Medium Neutral Citation:

Kennards Self Storage Pty Limited v Cumberland Council [2025] NSWLEC 1720

Hearing dates:

Conciliation conference on 4 September 2025

Date of orders:

02 October 2025

Decision date:

02 October 2025

Jurisdiction:

Class 1

Before:

Young AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Application No. DA2024/0053, as amended, for the demolition of various buildings and works, the construction of two buildings associated with a storage premises, signage, driveway and fencing works at Lot 1 in DP 739797 being No. 411 Great Western Highway, Greystanes, is determined by the grant of consent subject to the conditions at Annexure A.

(3) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application in the agreed amount of $1,200.00 within 28 days of these orders.

Catchwords:

DEVELOPMENT APPLICATION — s34 conciliation conference — agreement reached — orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7, 8.15

Land and Environment Court Act 1979 (NSW), s 34

Cumberland Local Environmental Plan 2021, cll 4.3, 4.4, 4.6, 6.4

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

State Environmental Planning Policy (Biodiversity and Conservation) 2021

State Environmental Planning Policy (Industry and Employment) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Transport and Infrastructure) 2021

Category:

Principal judgment

Parties:

Kennards Self Storage Pty Limited (Applicant)
Cumberland Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
C McFadzean (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Cumberland Council (Respondent)

File Number(s):

2025/122415

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the actual refusal of Development Application No. DA2024/0053 on 18 November 2024 by the Cumberland Local Planning Panel.

2. The Development Application, as amended, seeks consent for demolition of various buildings and works, the construction of two buildings associated with a storage premises, signage, driveway and fencing works at 411 Great Western Highway, Greystanes NSW (the site).

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act) between the parties on 4 September 2025. I presided over the conciliation conference.

4. At the conciliation conference, the parties provided amended architectural plans as well as a range of additional material including stormwater management, embodied emissions, an updated Clause 4.6 Variation Statement to address the height of buildings and floor space ratio compliance, and a swept path assessment to address Council’s concerns regarding traffic management and parking.

5. Pursuant to s 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation), Cumberland Council has approved amending the Development Application in accordance with the amended plans.

6. As the amended Development Application is the subject of Court proceedings, it is not required to be lodged on the NSW Planning Portal pursuant to s 38(4) of the EPA Regulation.

7. On 15 September 2025, the parties submitted an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the amended Development Application, and subject to conditions in Annexure A.

8. 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.

9. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional prerequisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

Jurisdictional Prerequisites

10. The parties agree and I am satisfied in regard to the following jurisdictional matters:

1. That the amended Development Application was lodged with the consent of the owners of the land to which the development relates.

2. The proposed development is permissible with consent in the E3 Productivity Support zone and consistent with the objectives of the zone under the Cumberland Local Environmental Plan 2021 (CLEP).

3. The amended Development Application and associated information satisfies the applicable provisions of State Environmental Planning Policy (Sustainable Buildings) 2022, State Environmental Planning Policy (Resilience and Hazards) 2021, State Environmental Planning Policy (Biodiversity and Conservation) 2021, State Environmental Planning Policy (Industry and Employment) 2021, and State Environmental Planning Policy (Transport and Infrastructure) 2021.

4. The relevant provisions of the CLEP, including in regard to the provision of ‘Essential Services’ under cl 6.4 of the CLEP which requires the consent authority to be satisfied that essential service are available or that adequate arrangements have been made to make them available when required.

5. The mandatory matters in s 4.15 of the EPA Act that are of relevance to the amended Development Application have been taken into consideration by the parties, including the environmental, social and economic impacts in the locality, the suitability of the site and the public interest.

Contravention of the Height of Buildings and Floor Space Ratio development standards

11. Clause 4.3 (‘Height of Buildings’) – in accordance with cl 4.3 of the CLEP, the site is subject to a maximum building height of 15 metres. Building 1 is compliant with the development standard for height, however Building 2 proposes a building height of 19.62 metres which is an exceedance of 4.62 metres or 30.8%.

12. Clause 4.4 (‘Floor Space Ratio’) – in accordance with cl 4.4 of the CLEP, the site is subject to a floor space ratio (FSR) of 1:1. The development proposes a floor space ratio of 1.36:1 or a gross floor area of 19,656 m². This is an exceedance of 5,226 m² or a variation of 36.2%.

13. Clause 4.6(3) of the CLEP establishes preconditions that must be satisfied before a consent authority or the Court exercising the functions of a consent authority can exercise the power to grant development consent.

14. In this regard, the Applicant has submitted a Clause 4.6 Variation Statement, prepared by Planning Ingenuity, dated 4 September 2025. The Applicant’s statement seeks to justify the contravention of the Height of Buildings and FSR development standards on the basis that compliance is unreasonable or unnecessary for the following reasons:

• The contravention of the development standards would not result in any material additional amenity impacts in terms of privacy, view loss or solar access on neighbouring properties and the surrounding streetscape.

• The bulk and scale of the proposed development is compatible and consistent with the surrounding land uses which are dominated by industrial and commercial buildings, and the Great Western Highway (to the north of the site) and the M4 Western Motorway (to the south of the site).

• The contravention of the development standards provides an opportunity to increase the capacity for self-storage on the site while still maintaining adequate building setbacks, parking and vehicle manoeuvring on the site.

15. I am satisfied that strict adherence to these development standards would be unreasonable and unnecessary in the circumstances and there are sufficient environmental planning grounds to justify the contravention of the development standard for the reasons set out in the Clause 4.6 Variation Statement.

16. In particular, I am satisfied that the exceedance of the Height of Buildings and FSR development standards is a justifiable response to the opportunities and constraints of the site and that the overall objectives of the development standard would be achieved, notwithstanding non-compliance with the standards.

Conclusion

17. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I am 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.

18. 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.

19. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues against the discretionary matters that arise pursuant to an assessment under s 4.15(1) of the EPA Act.

Orders

20. The Court orders:

1. The appeal is upheld.

2. Development Application No. DA2024/0053, as amended, for the demolition of various buildings and works, the construction of two buildings associated with a storage premises, signage, driveway and fencing works at Lot 1 in DP 739797 being No. 411 Great Western Highway, Greystanes, is determined by the grant of consent subject to the conditions at Annexure A.

3. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent’s costs thrown away as a result of the amendments to the development application in the agreed amount of $1,200.00 within 28 days of these orders.

……………………………

M Young

Acting Commissioner of the Court

Annexure A (355 KB, pdf)

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Decision last updated: 02 October 2025