Leda Holdings Pty Ltd v Northern Beaches Council

[2022] NSWLEC 1179

Land and Environment Court

New South Wales

Medium Neutral Citation:

Leda Holdings Pty Ltd v Northern Beaches Council [2022] NSWLEC 1179

Hearing dates:

Conciliation conference on 15, 21 and 28 March 2022

Date of orders:

5 April 2022

Decision date:

05 April 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of Development Application DA2021/0139, in the amount of $5,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The Applicant’s written request prepared by Gyde Consulting Pty Ltd, dated 2 February 2022 pursuant to cl 4.6 of the Warringah Local Environmental Plan 2011, seeking to vary the height of buildings development standard in clause 4.3 of that plan, is upheld.

(3) The Appeal is upheld.

(4) Development consent is granted to Development Application DA2021/0139 for demolition works and the construction of a mixed-use building accommodating 9 self-storage units and 27 industrial units, including carparking and landscaping works at 2 Cross Street, Brookvale subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – mixed use building containing self-storage and industrial units – proposed development exceeds height development standard – clause 4.6 request – conciliation conference – agreement reached – orders made

Legislation Cited:

Biodiversity Conservation Act 2016, s 7.3

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10

Environmental Planning and Assessment Regulation 2000, cll 49, 55, 102

Land and Environment Court Act 1979, s 34

Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021

Standard Instrument (Local Environmental Plans) Order 2006, cl 8(1)

State Environmental Planning Policy Amendment (Flood Planning) 2021

State Environmental Planning Policy (Biodiversity and Conservation) 2021, cl 2.6

State Environmental Planning Policy (Industry and Employment) 2021, cl 3.11

State Environmental Planning Policy (Resilience and Hazards) 2021, cl 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.121, 2.48(2)

Warringah Local Environmental Plan 2011, cll 2.3, 4.3, 4.6, 5.21, 6.1, 6.2, 6.3, 6.4

Cases Cited:

Gardiner v Central Coast Council [2022] NSWLEC 1007

IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434

Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649

Texts Cited:

Warringah Development Control Plan 2011

Category:

Principal judgment

Parties:

Leda Holdings Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
J Simpson (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Northern Beaches Council (Respondent)

File Number(s):

2021/317705

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) by Leda Holdings Pty Ltd (Applicant) for the demolition of existing structures and construction of a mixed use building containing 9 self-storage units and 27 industrial units (including carparking and landscaping works) (Proposed Development).

2. The Proposed Development will be carried out on the land described as Lot 100 DP 817162 known as 2 Cross St Brookvale (Site). The Site is located on the north-western corner of Green St and Cross St. It is generally flat and in a low-lying area affected by flooding. Adjoining and adjacent development to the east, west and north of the Site comprises a range of industrial and warehouse facilities (including storage units of the type proposed by the DA). The Warringah Mall is located to the south west of the Site.

3. The DA was made to the Council on 10 March 2021 and was refused by the Northern Beaches Local Planning Panel on 6 October 2021. The Applicant appeals from that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court’s jurisdiction.

4. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

5. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 15 March 2022.  I presided over the conciliation conference.

6. Prior to the conciliation conference, the parties held without prejudice discussions as the result of which they reached an “in principle” agreement which resolved all of the Council’s contentions. This led to the parties entering into an agreement at the conciliation conference pursuant to s 34(3) of the LEC Act as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 28 March 2022 and is supported by a Jurisdictional Statement provided by the parties on the same date. The agreement involves the Court approving the DA, as amended with the agreement of the Council as consent authority pursuant to cl 55 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), subject to conditions of consent.

7. The amended application increases the setback of the Proposed Development from Cross St and Green St to 4.5 m. This setback now complies with the requirements of clause B7 of the Warringah Development Control Plan 2011 (DCP). The failure of the Proposed Development to comply with this setback control had been the Council’s main concern with the Proposed Development.

8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

9. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons:

General

1. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

2. The Applicant made the DA with the consent of the owners of the Site in accordance with cl 23(1)(b) of the EPA Regulation.

3. The DA was notified in accordance with the Council’s Community Participation Plan for a period of 14 days between 15 March 2021 and 1 April 2021. The Council received no submissions in relation to the DA.

Warringah Local Environmental Plan 2011

1. The Land is within Zone IN1 – General Industrial under the Warringah Local Environmental Plan 2011 (LEP). The Proposed Development is permitted with development consent on land within that zone.

2. Clause 2.3(2) of the LEP provides 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 that zone. The objectives of Zone IN1 – General Industrial are:

To provide a wide range of industrial and warehouse land uses.

To encourage employment opportunities.

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

To support and protect industrial land for industrial uses.

To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

To enable a range of compatible community and leisure uses.

To maintain the industrial character of the land in landscaped settings.

3. In determining the DA, I have had regard to, and am satisfied that the Proposed Development is consistent with those objectives. It will provide a mix of warehouses and self-storage units within an existing industrial area and will encourage employment opportunities in an existing and established industrial area during the demolition, construction and operational phases.

Contravention of the height development standard

1. Under cl 4.3 of the LEP the height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. The Proposed Development has a maximum height of 14.1 m which exceeds the maximum permitted height of 11 m by 3.1 m.

2. The Applicant has made a written request in accordance with cl 4.6 of the LEP that seeks to justify the contravention of the height development standard and I am satisfied, for the reasons which follow, that development consent should be granted notwithstanding the contravention.

Consideration of cl 4.6 request

1. For the reasons outlined in the cl 4.6 request, I am satisfied that the Proposed Development is consistent with the relevant objectives of the development standard and that there are sufficient environmental planning grounds to support the variation proposed. The Site is subject to flooding and the Proposed Development has been designed with raised floor levels which will require fill of up to 1.57 m across the Site. This will result in the height of the Proposed Development exceeding the maximum height permitted by the LEP. Despite this, the height of the Proposed Development is compatible with the height and scale of surrounding and nearby development and the exceedance of the height development standard will not result in any adverse amenity impacts.

2. I find that the objectives of the development standard are achieved despite the breach, and the Applicant’s written request has adequately addressed the matters required to be demonstrated by subcl 4.6(3) of the LEP.  I am satisfied that those matters have in fact been demonstrated which is the outcome required by subcll 4.6(3) and (4)(a)(i). It follows that strict compliance with the development standard in cl 4.3 of the LEP is both unreasonable and unnecessary.

3. I also accept that the Proposed Development will be in the public interest because it is consistent with the objectives of the IN1 – General Industrial zone despite the breach of cl 4.3 of the LEP. 

4. For all those reasons, I find that the proposal promotes the economic use and development of the land consistent with its zone and purpose.

5. The concurrence of the Secretary required by cl 4.6(5) is assumed as the contravention of the height standard does not raise any matter of significance for State or regional environmental planning given the nature of the development, and there is no public benefit in maintaining the standards on the facts of this case.

Acid sulfate soils

1. The LEP identifies the Site as being Class 4 land on the Acid Sulfate Soils Map contained within the LEP. Under cl 6.1(2) of the LEP, works more than 2 metres below the natural ground surface on Class 4 land or works by which the water table is likely to be lowered by more than 2 metres below the natural ground surface, require development consent. Clause 6.1(3) of the LEP provides that consent must not be granted for the carrying out of such works unless an acid sulfate soils management plan has been prepared for the proposed works. Clause 6.1(6) provides that development consent is not required under that to carry out any works if—

1. the works involve the disturbance of less than 1 tonne of soil, and

2. the works are not likely to lower the water table.

2. The parties’ agreed position, which I accept, is that the Proposed Development:

1. does not involve the carrying out of any excavation;

2. will not involve the disturbance of more than 1 tonne of soil; and

3. is not likely to lower the natural water table.

3. There is therefore no need for the preparation of an acid sulfate soils management plan in this instance.

Earthworks

1. Clause 6.2(3) of the LEP provides that, in deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in that clause. I accept the agreed submission of the parties that the matters set out in cl 6.2(3) of the LEP are satisfactorily addressed by the DA. The Proposed Development will be generally located in the same location as the existing building it will replace and the only earthworks to be carried out are to ensure the Proposed Development will be above the flood planning level. The driveway and western boundary setback area will be graded to direct flows from the north of the Site to the south where they will discharge into Council’s existing stormwater drainage system within Cross Street. This will result in the existing draining patterns being maintained and minimising any potential detrimental effects on soil stability.

Flood planning

1. At the time the application was lodged (on 10 March 2021), cl 6.3 (flood planning) of the LEP applied to the Site as the Site was identified as being within the 'flood planning area' on the flood planning map referred to in that clause. On 14 July 2021, State Environmental Planning Policy Amendment (Flood Planning) 2021 (Flood SEPP) commenced and repealed cl 6.3 of the LEP. On the same date, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (Flood Order) commenced.

2. Clause 8(1) of the Standard Instrument (Local Environmental Plans) Order 2006 contains the following savings provision:

(1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order.

3. As a consequence, the new cl 5.21 of the LEP does not apply to the DA, which was lodged but not determined before 14 July 2021.

4. While the Flood SEPP repealed cl 6.3 of the LEP on 14 July 2021, it did not include a savings provision with respect to development applications lodged before 14 July 2021 and not determined by that date.

5. Having regard to the above, neither the provisions of the former, and now repealed, cl 6.3 of the LEP nor the provisions of the new cl 5.21, intended to replace cl 6.3, apply to the determination of the DA. In this regard I note that Commissioner Bish came to the same conclusion in IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 (at [28] – [32]) as did Commissioner Chilcott in Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649) (at [48]) and Acting Commissioner Morris in Gardiner v Central Coast Council [2022] NSWLEC 1007 (at [24]).

6. Notwithstanding this conclusion, as noted earlier in this judgment the Site is located in an area that is subject to flooding. Section 4.15(1)(c) of the EPA Act requires the consent authority to consider the suitability of the Site for the Proposed Development. A revised Flood Management Report (Flood Report) has been prepared by Tonkin Consulting to accompany the DA which considers the impacts of flooding on the Site and which makes recommendations to address those impacts. The parties have agreed, and I accept, that those recommendations have been incorporated into the stormwater management design for the Proposed Development, the amended engineering plans prepared by Tonkin dated 1 March 2022, as well as in condition 11 of the proposed conditions of consent. Having regard to those matters, I am satisfied that the flood impacts on the Site do not make the Site unsuitable for the Proposed Development.

Development on sloping land

1. The LEP identifies the Site as being within Area A on the landslide risk map referred to in cl 6.4 of the LEP. Clause 6.4(3) provides that development consent must not be granted in relation to land within that area, unless the consent authority is satisfied that:

(a)  the application for development has been assessed for the risk associated with landslides in relation to both property and life, and

(b)  the development will not cause significant detrimental impacts because of stormwater discharge from the development site, and

(c)  the development will not impact on or affect the existing subsurface flow conditions.

2. A letter from Mr Paul Stubbs, Principal Geotechnical Engineer of JK Geotechnics dated 23 March 2022 accompanies the DA. This is in addition to the Preliminary Geotechnical Investigation also prepared by JK Geotechnics dated 23 November 2012, and the Additional Environmental Site Assessment, prepared by Environmental Investigation Services (EIS) dated February 2013. Relevantly, Mr Stubbs discounts the need for a slope risk assessment for the Site, noting that the Site is located in an area characterised by very low ground slopes, and is classified as Class A land in the Council’s Land Slip Risk Zoning Map, which comprises land of less than 5 degrees slope angle. Similarly, the letter confirms no excavation is proposed as part of the Proposed Development and concludes that the Proposed Development will not impact on the existing subsurface flow conditions or cause detrimental impacts because of stormwater discharge from the site. I accept those conclusions.

State Environmental Planning Policy (Transport and Infrastructure) 2021

1. Clause 2.121 of the State Environmental Planning Instrument (Transport and Infrastructure) 2021 (Transport SEPP) requires a consideration of whether the proposed development may be classified as ‘traffic-generating development’, as per Schedule 3 of the Transport SEPP. I am satisfied, having considered the location, size and capacity of the Proposed Development, that the Proposed Development is not ‘traffic-generating development’ for the purposes of the Transport SEPP.

2. Additionally, cl 2.48(2) of the Transport SEPP requires a consent authority to:

(a) give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and

(b) take into consideration any response to the notice that is received within 21 days after the notice is given.

3. The DA was referred to Ausgrid which, on 18 March 2021, indicated that it had no objection to the Proposed Development subject to the design submission complying with the relevant Ausgrid Network Standards and Safe Work NSW Codes of Practice for construction works near electrical assets.

State Environmental Planning Policy (Resilience and Hazards) 2021

1. Clause 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) provides that a consent authority must not grant consent to any development on land unless it has considered whether the land is contaminated land or potentially contaminated land, and if it is, unless it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use.

2. A preliminary environmental assessment (Preliminary Assessment) has been prepared by Environmental Investigation Services which accompanied the DA. This report identified potential contamination of the Site associated with imported fill, asbestos material within existing structures, underground tanks, and the historical use of the Site.

3. The Preliminary Assessment concluded that the contamination encountered may pose a risk to human health and the environment and recommended that a Stage 2 assessment be undertaken.

4. A site environmental assessment (Stage 2 Report) was prepared by Environmental Investigation Services, in accordance with the conclusions and recommendations of the Preliminary Assessment. It concluded that the site can be made suitable for the Proposed Development if a number of recommendations are implemented to minimise potential risks identified in the abovementioned reports.

5. These reports and their recommendations were, however, made on the basis of a previous proposal for a two-storey Bunnings Warehouse on the Site, which was to involve excavation for two basement levels for car-parking and I accept the parties’ joint submission that the recommendations of the Stage 2 report are unnecessary for the Proposed Development as it does not propose any excavation of the Site.

State Environmental Planning Policy (Industry and Employment) 2021

1. The State Environmental Planning Policy (Industry and Employment) 2021 (Employment SEPP) applies to all signage that can be displayed with or without development consent and is visible from any public space or public reserve.

1. Under cl 3.11(1) of the Employment SEPP, a consent authority must not grant development consent to an application to display signage unless it is satisfied that the proposed signage satisfies the assessment criteria specified in Schedule 5 of that SEPP. The Proposed Development includes a mix of building and business identification signage across two levels. The Statement of Environmental Effects, prepared by City Plan dated February 2021, which accompanied the DA includes a detailed assessment of the proposed signage against the relevant criteria. Having regard to this assessment I am satisfied that the proposed signage is appropriate and consistent with the applicable assessment criteria in the Employment SEPP.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

1. The DA seeks consent for the removal of eight (8) trees, in accordance with the provisions of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP). The parties agree, and I accept, that this is below the threshold for biodiversity offsets in s 7.3 of the Biodiversity Conservation Act 2016, as per cl 2.6 of the Biodiversity SEPP. I also accept the parties’ joint position that the Site is not identified as land that is included in the Biodiversity Value Land Map found within the LEP.

10. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

11. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

12. The Court notes that:

1. The Council as the relevant consent authority has agreed, under clause 55 of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending the DA with the plans, drawings and documents listed in Condition 1 of the Conditions of Consent in Annexure A.

2. The Applicant uploaded the amended development application on the NSW planning portal on 11 March 2022.

3. The Applicant filed the amended development application with the Court on 15 March 2022.

13. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of Development Application DA2021/0139, in the amount of $5,000 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The Applicant’s written request prepared by Gyde Consulting Pty Ltd, dated 2 February 2022 pursuant to cl 4.6 of the Warringah Local Environmental Plan 2011, seeking to vary the height of buildings development standard in clause 4.3 of that plan, is upheld.

3. The Appeal is upheld.

4. Development consent is granted to Development Application DA2021/0139 for demolition works and the construction of a mixed-use building accommodating 9 self-storage units and 27 industrial units, including carparking and landscaping works at 2 Cross Street, Brookvale subject to the conditions in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (314034, pdf)

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Decision last updated: 05 April 2022