Khouri Petroleum Pty Ltd v Georges River Council

[2024] NSWLEC 1759

Land and Environment Court

New South Wales

Medium Neutral Citation:

Khouri Petroleum Pty Ltd v Georges River Council [2024] NSWLEC 1759

Hearing dates:

Conciliation conference on 23 September 2024

Date of orders:

26 November 2024

Decision date:

26 November 2024

Jurisdiction:

Class 1

Before:

Washington C

Decision:

The Court orders:

(1) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act the Applicant is ordered to pay the Respondent's costs thrown away in the amount of $10,000 within 28 days of these orders.

(2) The appeal is upheld.

(3) Development Application No. DA2023/0177 as amended, for alterations and additions to a service station at 294 Princes Highway, Carss Park is determined by the grant of development consent subject to the conditions of consent in Annexure ‘A’.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – service station – classified road – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979 s34

Environmental Planning and Assessment Act 1979 s 8.7, 8.15

Environmental Planning and Assessment Regulation 2021 s 38

Georges River Local Environmental Plan 2021 cll 2.7, 4.3, 4.4, 6.1, 6.2, 6.9, 6.13

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 6 ss 6.6, 6.7, 6.8, 6.9, 6.10

State Environmental Planning Policy (Industry and Employment) 2021 Ch 3 s 3.1(1)(a), Sch 5

State Environmental Planning Policy (Resilience and Hazards) 2021 Ch 3 ss 3.2, 3.11, 3.12, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021 s 2.119

Category:

Principal judgment

Parties:

Khouri Petroleum Pty Ltd (First Applicant)
VE & AM Khouri Pty Ltd (First Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
C Koikas (Applicants)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Jason Francis Commercial and Construction Lawyer (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2024/154732

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise as a result of the actual refusal, by Georges River Council, of Development Application DA2023/0177 which seeks consent for alterations and additions to an existing service station and consolidation of the existing allotment into one lot, on Lot 1 in DP 188897 and Lots 2 and 3 in DP 12759, known as 294 Princes Highway, Carss Park.

2. In detail, the proposed alterations and additions to the existing service station include:

1. Demolition of part of the existing service station containing the shop.

2. Construction of a new service station building which will include a service counter, office, shop, hot food bar, disabled bathroom and storage room.

3. Retention of the existing awning which will adjoin the new service station building.

4. Addition of four petrol pumps and two service channels, allowing for up to eight vehicles to utilise the petrol pumps at once.

5. Minor trench works to connect fuel lines to new petrol pumps.

6. New colours, finishes and branding.

7. Modification of the existing vehicle entrance off the Princes Highway.

8. Installation of two Speedway letter signs to two building elevations.

3. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

4. 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 23 September 2024. I presided over the conciliation conference.

5. After the conciliation conference, the parties reached agreement as to acceptable terms of a decision in the proceedings. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

6. As part of this agreement, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation), the Council agreed to the applicant amending the development application to adequately address their contentions.

7. 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 EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised, which the parties identified and explained in a jurisdictional note. From this I note the following points.

Jurisdictional matters

8. The development application was made with the written consent of the owner of the land.

9. The application was adequately notified in from 6 July to 27 July 2023. No submissions were received during this period.

10. The subject site is zoned E1 Local Centre under the Georges River Local Environmental Plan 2021 (GRLEP), within which development for the purposes of a service station is permissible with consent. The proposed development is consistent with the relevant objectives of this zone.

11. Demolition is further permitted with consent pursuant to cl 2.7 of the GRLEP.

12. Pursuant to GRLEP cl 4.3, a maximum building height of 12m applies to the subject site. The proposed development complies with this development standard with a maximum height of 6.18m.

13. GRLEP cl 4.4 establishes a maximum floor space ratio (FSR) for the site of 1.8:1. The proposed development again complies with this development standard with a maximum FSR of 0.18:1.

14. Pursuant to GRLEP cl 6.1, the site is identified as Class 5 on the Acid Sulfate Soils Map, however does not propose excavation that is likely to lower the watertable below 1m Australian Height Datum. Development consent is therefore not required under this provision.

15. Minor earthworks are proposed in this development in the form of trenches. From the parties’ submission and the amended architectural plans by ES Design dated 14 October 2024 (the architectural plans), I accept that the matters set out at GRLEP cl 6.2(3) have been considered and the proposed development is acceptable pursuant to these considerations.

16. From the parties’ submission, and the stormwater plan by M. M. Farah Civil dated 5 January 2023 dated 16 October 2023, I accept that the stormwater management matters listed in GRLEP cl 6.3(3) have been considered and the proposed development is again acceptable pursuant to these considerations.

17. Pursuant to the essential services requirements of GRLEP cl 6.9, the parties submit and I accept that all listed essential services are currently present on the site.

18. The proposed development complies with the requirements for development in Zones E1 and MU1 at cl 6.13 because it does not propose any residential, tourist or visitor accommodation.

19. Pursuant to s 3.2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards), the existing (and proposed to continue) use of the site is defined as both potentially hazardous industry and potentially offensive industry, and therefore the provisions of Ch 3 of the SEPP Resilience and Hazards apply to this development. As required by s 3.11 of this SEPP, a Preliminary Hazard Analysis by NEO Consulting dated 6 August 2024 forms part of this application. On the basis of this analysis and the parties’ submission, I accept that the matters listed in cl 3.12 have been considered and adequately addressed in this application.

20. Section 4.6 of the SEPP Resilience and Hazards requires the consent authority to consider whether the site is contaminated, and if so, whether it is or will be made suitable for the intended use. I accept that the site has a long history of use as a service station and is identified as a source of potential contamination. Accordingly, a Preliminary Site Investigation by NEO Consulting dated 6 August 2024 accompanies the application, and recommends that operations of the site continue in accordance with the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019. From this, the agreed conditions of consent, and the parties’ submissions, I accept that the site may require remediation but, subject to the agreed conditions of consent, the site can be made suitable for the intended, continued use as a petrol station.

21. The site has frontage to the Princes Highway, which is a classified road, and subsequently s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the development. From the Traffic Analysis Report dated 21 August 2024 and Further Traffic Analysis Report dated 8 October 2024, both prepared by PDC Consultants, and the parties’ submissions, I accept that continued access from the Princes Highway is acceptable, and that the safety, efficiency and ongoing operation of the highway will not be adversely affected by the development as a result of any of the matters listed in s 2.119(2)(b). I further accept that the development is of a type that is not sensitive to traffic noise or vehicle emissions, and that subsequently the requirements of s 2.119 of the Transport and Infrastructure SEPP are met with the proposed development.

22. The site is located within the Georges River Catchment, and accordingly the provisions of Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) apply. From the parties’ submission, and the stormwater plan by M.M. Farah Civil/Structural Pty Ltd dated 05 January 2023, I accept that the requirements of Ch 6 of the Biodiversity and Conservation SEPP relating to water quality and quantity (s 6.6), aquatic ecology (s 6.7), and flooding (s 6.8) are met with the proposed development. I further accept that the proposed development does not affect public access to and from natural waterbodies (s 6.9), and is not likely to have any adverse environmental impact on any adjacent local government areas (s 6.10).

23. Signage is proposed in this application in the form of replacement awning signage, and the retention of an existing pylon sign. Ch 3 of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP) subsequently applies to the application. The parties submit, and from this and the information in the Statement of Environmental Effects, I accept, that the signage is consistent with the objectives as set out in s 3.1(1)(a), and with the assessment criteria specified in Sch 5 of the Industry and Employment SEPP.

Conclusion

24. For these reasons, 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. Subsequently, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

25. The Court notes:

1. Pursuant to section 38 of the Environmental Planning and Assessment Regulation 2021, Georges River Council, as the relevant consent authority, has approved the amendment of development application no. DA2023/0177 to rely on the following plans and documents:

Reference	Description	Author	Date
001 Rev M	Site Analysis Plan	ES Design	14.10.2024
002 Rev M	Demolition Plan		14.10.2024
003 Rev M	Consolidation Plan		14.10.2024
100 Rev M	Proposed Site Plan		14.10.2024
200 Rev M	Proposed Ground Floor Plan		14.10.2024
201 Rev M	Proposed Roof Pan		14.10.2024
202 Rev M	Site Management and Sediment Control Plan		14.10.2024
300 Rev M	SW & SE Elevations		14.10.2024
301 Rev M	NE& NW Elevations		14.10.2024
302 Rev M	Section View		14.10.2024
303 Rev M	Signage Elevation		14.10.2024
310 Rev M	Streetscape Analysis Plan		14.10.2024
900 Rev M	Schedule of External Materials, Colours and Finishes		14.10.2024
910 Rev M	Proposed Driveway Details		14.10.2024
920 Rev M	Shadow Diagrams 9AM - 21st June		14.10.2024
921 Rev M	Shadow Diagrams 12PM - 21st June		14.10.2024
922 Rev M	Shadow Diagrams 3PM - 21st June		14.10.2024
N09499	Preliminary Hazard Analysis	NEO Consulting	6.08.2024
N09498	Preliminary Site Investigation	NEO Consulting	6.08.2024
0454r03v01	Updated Traffic Impact Assessment	PDC Consultants	21.08.2024
0454r04v02	Supplementary Traffic Surveys and Analysis	PDC Consultants	08.10.2024
0454r01v02	Freight and Services Management Plan	PDC Consultants	16.10.2024
REF-24188	Waste Management Plan	Dickens Solutions	September 2024

26. The Court orders:

1. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act the Applicant is ordered to pay the Respondent's costs thrown away in the amount of $10,000 within 28 days of these orders.

2. The appeal is upheld.

3. Development Application No. DA2023/0177 as amended, for alterations and additions to a service station at 294 Princes Highway, Carss Park is determined by the grant of development consent subject to the conditions of consent in Annexure ‘A’.

……………………….

E Washington

Commissioner of the Court

Annexure A

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Decision last updated: 26 November 2024