Leda Holdings Pty Ltd v Sutherland Shire Council

[2023] NSWLEC 1447

Land and Environment Court

New South Wales

Medium Neutral Citation:

Leda Holdings Pty Ltd v Sutherland Shire Council [2023] NSWLEC 1447

Hearing dates:

Conciliation conference on 20 July 2023

Date of orders:

11 August 2023

Decision date:

11 August 2023

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, in the amount of $10,000.

(2) The appeal is upheld.

(3) Development Application No. DA21/0054 as amended, for the demolition of existing structures, Torrens title subdivision of one lot into nine lots and associated civil/drainage works and remediation on land legally described at Lot 1 in DP1056470 and known as 1C Box Road Caringbah, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – subdivision – industrial – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 11; s 6.65

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 5, Subdiv 2, s 2.48

Sutherland Shire Local Environmental Plan 2015, cll 2.3, 4.1, 6.1, 6.2, 6.4, 6.16

Category:

Principal judgment

Parties:

Leda Holdings Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
M Seymour (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2022/303272

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 development appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of development application DA21/0054 for the demolition of existing structures, Torrens title subdivision of one lot into ten lots and associated civil/drainage works and remediation (the Proposed Development) at 1C Box Road Caringbah, legally described as Lot 1 in DP1056470 (the Site).

2. The matter was initially listed before me for hearing on 20-21 July 2023. However, on the application of the parties, the hearing was adjourned and the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) for a conciliation conference between the parties, which was held on 20 July 2023. I presided over the conciliation conference.

3. Further information and amended plans were filed with the Court on 20 July 2023. The Respondent, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending development application No DA21/0054 in accordance with the documents listed at [31] (amended development application). The key amendments to the application are:

• A reduction in the number of lots proposed from 10 to 9;

• A reduction in the number of proposed new driveways from 9 to 5;

• Retention of additional trees along Parraweena Road;

• Preparation of a Remediation Action Plan; and

• Further information on the appropriate management of acid sulfate soils.

4. At the conciliation conference, the parties reached 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 for the amended development application and granting development consent to the amended development application subject to conditions of consent. I note that as part of the filed s 34 agreement, the parties have submitted a jurisdictional submission setting out how the proposal has satisfied the jurisdictional requirements and other matters.

5. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

Jurisdictional prerequisites

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied. 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, as set out below.

8. I am satisfied that owners consent accompanied the development application.

9. The subject site is zoned E4 General Industrial zone pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP), where the proposed development is permissible with consent. Pursuant to cl 2.3, I have had regard to the objectives of the zone:

• To provide a range of industrial, warehouse, logistics and related land uses.

• To ensure the efficient and viable use of land for industrial uses.

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

• To encourage employment opportunities.

• To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

• To enhance the visual appearance of the area by ensuring new development achieves high architectural and landscape standards.

• To minimise the impact of development within the zone on areas of environmental significance.

10. Clause 4.1 Minimum subdivision lot size of the SSLEP applies to the site and requires a minimum lot of size of 1,000m². The parties agree and I am satisfied on the basis of the subdivision plans that the proposed lots exceed the minimum lot size.

11. Clause 6.1 Acid sulfate soils of the SSLEP applies to the site, which is mapped as Class 3 and Class 5. The amended development application is accompanied by an Additional Acid Sulfate Soil Assessment authored by JK Environments dated 17 December 2021, which concludes that an acid sulfate soils management plan is not required. Further, conditions of consent have been included in Annexure A in relation to acid sulfate soils. The parties agree and I am satisfied that in accordance with cl 6.1(2) and (4), cl 6.1 has been satisfied.

12. Clause 6.2 Earthworks of the SSLEP applies to the proposed development, which includes cut and fill of various amounts across the site. The parties agree, and I am satisfied, that the Civil Works plans (including, amongst others, the earthworks plans, earthworks sections and catchment plan) prepared by Craig & Rhodes Pty Ltd dated 20 April 2023 Revision G, Remediation Action Plan prepared by JK Environments dated 13 March 2023, Additional Detailed Stage 2 Site Investigation prepared by JK Environments dated 30 September 2021, Sampling, Analysis and Quality Plan – Soil Vapour Assessment prepared by JK Environments dated 28 March 2022, Active Soil Vapour Assessment and Targeted Ground Water Assessment prepared by JK Environments dated 15 November 2022 and conditions of consent in Annexure A address the requirements of the soil, drainage, excavation and environmental provisions of cl 6.2.

13. Clause 6.4 Stormwater management applies to the proposed development. The parties agree and I am satisfied that the development meets these provisions on the basis of the joint expert report of the engineers, the Civil Works Plans prepared by Craig & Rhodes Pty Ltd dated 20 April 2023 Revision G and the stormwater drainage plans cited in Annexure A.

14. Clause 6.16 Urban design – general applies to the proposed development. I have considered the relevant provisions of cl 6.16 and agree with the parties that the amended development application addresses the requirements of cl 6.16 through the reduction of vehicular crossings, increased landscaped areas visible to the public domain, managed impact on the natural environment and reduction of the proposed tree removal.

15. Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) applies to the proposed development and requires that consent must not be granted unless the consent authority is satisfied that the land is suitable for the proposed development. The Site is identified in the Respondent’s land register as being potentially contaminated.

16. The amended development application has been accompanied by a Stage 1 Environmental Site Assessment Report dated 21 June 2019, Preliminary Stage 2 Environmental Site Assessment Report dated 4 July 2019 and a Remediation Action Plan dated 13 March 2023, all prepared by JK Environments. These reports identified the contamination on site and that the Site can be made suitable for the proposed development subject to the strategies within the Remediation Action Plan. The strategies within the Remediation Action Plan include the capping and containment of asbestos contaminated fill within a containment cell and ongoing management through an Environmental Management Plan. Suitable conditions of consent have also been included to ensure that the Remediation Action Plan is implemented and that future owners are aware of the containment cell and Environmental Management Plan in Annexure A.

17. On this basis, the parties agree, and I am satisfied that s 4.6 of SEPP RH has been adequately addressed.

18. The Site is located within the Georges River Catchment as defined under State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC). As the development application was lodged on 12 February 2021, in accordance with s 6.65 on SEPP BC, the provisions of Ch 11 in force before 21 November 2022 apply.

19. Chapter 11 of SEPP BC contains aims, objectives, and planning principles as relevant to the proposed development in relation to water management, acid sulfate soils and impacts on groundwater.

20. I have considered the parties agreed jurisdictional statement and am satisfied that the provisions of Ch 11 have been taken into account. In relation to acid sulfate soils, the Site is identified as Class 3 and Class 5 on the SSLEP map. I rely on the Additional Acid Sulfate Soil Assessment prepared by JK Environments dated 17 December 2021 that the proposed development is unlikely to disturb the acid sulfate soils and groundwater table, and that an acid sulfate management plan is not required.

21. I am also satisfied that adequate stormwater and drainage measures have been provided to meet the requirements of SEPP BC through the proposed inter-allotment drainage lines and connections to the existing drainage easement. These have been supported through conditions of consent in Annexure A.

22. I have considered the provisions of Ch 11 and accept the evidence of the parties that the requirements have been satisfied.

23. Division 5, Subdiv 2, s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021, applies to the subject site due to the proximity of electricity infrastructure. The proposed development was referred to Ausgrid, who did not object to the proposal, subject to meeting the relevant Ausgrid Network Standards and SafeWork NSW Codes of Practice for construction works near existing electrical assets. The parties advise that appropriate conditions addressing these requirements have been included in Annexure A (conditions 14 and 30). I agree with the parties that the provisions have been met.

24. The Respondent notified the development application between 18 February 2021 and 12 March 2021. No submissions were received.

Conclusion

25. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

26. 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.

27. 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 that were originally in dispute between the parties.

28. The Court notes that the Respondent has agreed, as the relevant consent authority, under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the Applicant amending development application No DA21/0054 to rely upon the following amended plans and documents:

DOCUMENT

DATE

Revised Subdivision Plan (Rev 2) prepared by Craig & Rhodes

21 April 2023

Revised Civil Engineering Plans (Rev G) prepared by Craig & Rhodes

20 April 2023

Revised Swept Paths prepared by TTPA

• 21252_01 – Sheet 01

• 21252_01 – Sheet 02

19 June 2023

Hazardous Materials Pre-Demolition Survey Report prepared by ADE Consulting Group

24 June 2019

Human Health Risk Assessment prepared by EnRisks

14 March 2023

Remediation Action Plan prepared by JK Environments

13 March 2023

Sampling Analysis and Quality Plan - Additional Detailed (Stage 2) Site Investigation prepared by JK Environments - 27 Atkinson Road

30 July 2021

Additional Detailed (Stage 2) Site Investigation prepared by JK Environments – 1C Box Road  

30 September 2021

Additional Acid Sulfate Soil Assessment prepared by JK Environments

17 December 2021

Sampling, Analysis and Quality Plan - Soil Vapour Assessment prepared by JK Environments – 1C Box Road  

7 January 2022

Soil Vapour Assessment (Passive) prepared by JK Environments

22 February 2022

Sampling, Analysis and Quality Plan - Soil Vapour Assessment and Targeted Ground Water Assessment prepared by JK Environments – 1C Box Road  

28 March 2022

Active Soil Vapour Assessment and Targeted Ground Water Assessment prepared by JK Environments

15 November 2022

Interim Site Audit prepared by Senversa

20 February 2023

29. The Applicant filed the amended development application with the Court on 20 July 2023.

30. The Court notes that as part of filing the s 34 agreement, the parties have further agreed on an additional condition 16(ix) to be included as a condition of consent in Annexure A.

Orders:

31. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act1979, in the amount of $10,000.

2. The appeal is upheld.

3. Development Application No. DA21/0054 as amended, for the demolition of existing structures, Torrens title subdivision of one lot into nine lots and associated civil/drainage works and remediation on land legally described at Lot 1 in DP1056470 and known as 1C Box Road Caringbah, is determined by the grant of development consent subject to the conditions of consent in Annexure A.

S Porter

Commissioner of the Court

303272.22 Annexure A

**********

Decision last updated: 11 August 2023