Lippmann Partnership Pty Ltd v Canterbury - Bankstown Council

[2017] NSWLEC 1601

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Lippmann Partnership Pty Ltd v Canterbury – Bankstown Council [2017] NSWLEC 1601
Hearing dates:	16 October 2017
Date of orders:	09 February 2018
Decision date:	27 October 2017
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	Orders at [52]
Catchwords:	DEVELOPMENT APPEAL: against refusal of mixed use development – amended plans – agreement of the experts – site contamination – certainty of remediation
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy 55 - Remediation of Land
Cases Cited:	Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 Weal v Bathurst City Council & Anor [2000] NSWCA 88 Young and Anor v Gosford City Council [2001] NSWLEC 191 Marinkovic v Rockdale City Council [2007] NSWLEC 71
Texts Cited:	“Managing land contamination planning guidelines: SEPP 55 – remediation of land”, NSW, 1998
Category:	Principal judgment
Parties:	Lippmann Partnership Pty Ltd (Applicant) Canterbury – Bankstown Council (Respondent)
Representation:	Counsel: Mr. S Nash (Applicant) Ms S Puckeridge (Respondent)   Solicitors: Project Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/377470
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal has been lodged in response to the deemed refusal by Canterbury Bankstown Council of consent for a proposed mixed use development. The applicant seeks consent for three retail spaces on the ground floor, sixty-seven residential apartments, and two levels of basement parking. The development is proposed at 386, 396 and 398 Beamish Street, Campsie.

2. Following the termination of the conciliation the applicant made amendments to the proposed development. The applicant was granted leave by the Court to rely on amended plans and documentation in September 2017. These plans entail the following main changes:

1. Deletion of Level six of the proposal,

2. Deletion of the Small Office Home Office (SOHO) apartments,

3. reduction in the number and configuration of the retail, commercial and residential units from 87 to 71 to be as follows:

1. 3 retail units

2. 1 commercial unit

3. 4 three bedroom residential units

4. 34 two bedroom residential units

5. 17 one bedroom + study residential units

6. 12 one bedroom residential units

4. reduction in floor to floor heights proposed, and

5. introduction of sliding roof lights.3

3. On the basis of the plans, documentation before the Court and amendments proposed by the applicant during the course of the hearing, the Council no longer presses that the application should be refused.

The remaining issues:

4. Whether the agreement of the experts in relation to the merit of the amended proposal is well founded; and

5. Whether the applicant has provided sufficient information to enable the Court to reach the state of satisfaction required by clause 7(1)(c) of State Environmental Planning Policy 55 - Remediation of Land (SEPP 55)

6. The Council contends that further contamination assessment is required in order to assess whether the site is suitable for the proposed use, or can be rendered suitable through remediation. Council seeks for the additional information to be provided prior to the determination of the application.

The site and its context

7. The site contains the following five allotments:

1. Lot 57,58,59 in Deposited Plan (DP) 4178 with a street address of 386 Beamish Street, Campsie

2. Lot 1 in DP 221056 known as 396 Beamish Street

3. Lot 2 in DP 221056 known as 398 Beamish Street

8. The site is occupied by a single storey brick building which is currently utilised for a veterinary hospital, an auto service workshop, a restaurant and a single dwelling.

9. The site is bounded by Fletcher Street to the south and Claremont Street to the north. Beamish Street is the main shopping street in Campsie, and the site is close to the intersection of Beamish Street with Canterbury Road.

10. The preliminary site investigation contains the following information in relation the historic uses of the site:

On the basis of the historic titles, it appears as though the northern portion of the site, current Midas Motorshop, has previously been used as a service station. The southern portion appears to have been used as a dwelling and/or a commercial retail premise.

(Exhibit A)

11. The location of the site is nominated in the following aerial photograph. The “southern portion of the site” is approximated by the red outline.

Public submissions

12. At the commencement of the onsite hearing the Court heard from a number of objectors. They raised the following issues in relation to the application:

1. The potential for overshadowing to adjoining properties and in particular the loss of early morning sun;

2. Impact of noise from the boarding house use;

3. Loss of visual privacy to the adjoining properties;

4. A reduction in the visual amenity of the private open space to the rear of their properties;

5. Impact of the development on availability of on street parking in surrounding streets;

6. Devaluation of property;

7. Impact of the development on the neighbourhood character.

Planning Controls:

13. State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) applies to the site. This policy provides for the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment from existing land contaminants. The compliance of the development with the requirements of this policy is a matter in dispute between the parties.

14. Relevantly Clause 7(1) of SEPP 55 provides a precondition to consent as follows:

A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

…

15. Canterbury Local Environmental Plan 2012 (LEP 2012) applies to the site. Pursuant to LEP 2012 the site is zoned B2 Local Centre. The proposal is defined as shop top housing and is permissible, with consent, in the zone.

16. Part 4 of LEP 2012 contains principal development standards, with clause 4.5 designating a maximum building height of 18 m. The experts agree that the development complies with this development standard.

17. The development is subject to the requirements of Canterbury Development Control Plan 2012 (DCP 2012). There are no contentions remaining that raise issue with the developments satisfaction of the provisions of DCP 2012.

Expert Evidence

18. In line with the issues originally in dispute in the proceedings the parties engaged experts in town planning, structural engineering and waste management. The expert evidence in the proceedings concludes that, on the basis of the plans and documentation before the Court, the application warrants approval.

19. As a result of the joint conferencing of the experts the applicant has agreed to make the following amendments to the application:

1. addition of vertical louvre screens to the Eastern elevation of the development to ensure visual privacy is maintained to adjoining properties;

2. the addition of vertical louvre blinds to the Beamish Street façade;

3. the widening of the awning proposed over Beamish Street to 3m;

4. the terraces of Units 301 and 307 being reduced in size such that no part of those terraces extend within 9.0 metres, measured horizontally, of the existing balconies, at 400-402 Beamish Street (the adjoining property to the south);

5. addition of sand blasted privacy screen to Unit 301 and 307;

6. amendment to north façade including the replacement of fenestration with high level windows;

7. addition of recycling bin locations within the corridors of the residential floors;

8. relocation of the boom gate location in the basement level 01 to ensure manoeuvrability in the basement car park;

20. Following the hearing the applicant filed updated architectural plans incorporating the changes identified at paragraph [19].

21. The respondent has filed amended conditions of consent to reflect these plans and raises no objection to the applicant seeking leave to amend their application to reflect these plans. I am satisfied it is appropriate to grant leave to these plans as they are responsive to the evidence and to address concerns contended by the Council (Marinkovic v Rockdale City Council [2007] NSWLEC 71 at [22]).

22. I have reviewed the evidence provided by experts to support the resolution of the contentions now agreed. I note that the recommendations of the planners have been incorporated in amended plans. I am satisfied that the experts have appropriately considered the issues raised by the contentions, the public, and the appropriate planning controls, and I accept their conclusions.

Site Contamination

23. The applicant’s report, ‘Preliminary Site Investigation Contamination, 384-398 Beamish Street Campsie’ by Douglas Partners Pty Ltd (Preliminary Contamination report), dated September 2016 makes the following findings:

The site history information indicates that the northern portion of the site was used as a service station from about 1960. The exact date of decommissioning is not known. It is unclear from the information available whether the former underground storage tanks have been removed from the site, remain on site but have been decommissioned, or remain on the site and have yet to be decommissioned.

…

Potentially contaminated activities that may have occurred on the site include:

• The storage and use of hydrocarbon products eg. petrol, diesel, oil, kerosene, solvents etc. and other potential contaminants during the site’s former use as a service station and current use as a Midas Motorshop.

• The placement of filling on the site.

• Hazardous building materials within the structures on the site eg. lead based paint, asbestos, synthetic fibre, PCBs.

• Contaminants associated with demolition activities, eg. lead an asbestos

• Naturally occurring elements in the soils and rock underlying the site.

…

(Exhibit A)

24. The conclusion of the Preliminary Contamination report is:

…

It will be necessary to assess in detail the locations of the former/current tanks and other related items, their decommissioned status and any residual impacts that the tanks may have had on the site. This should form part of a Detailed Site Investigation which is recommended for this site based on its previous and current land use. The results of the further assessment will be able to be used to confirm that the site is either suitable for the proposed development or can be made suitable following the adoption of an appropriate remediation strategy, where required.

It is noted that the proposed development will involve excavation to depths in the order of 6m over the majority of the site. As such, the development will effectively remediate much of the site by removing any existing tanks and infrastructure as well as much of the adjacent soil/rock that could potentially be impacted by hydrocarbons. This will be beneficial to the development site as well as the adjacent sites.

…

It is recommended that a Detailed Site Investigation be undertaken following DA approval when the scheme has received in principle approval. If the investigation concludes that remediation is required then a Remediation Action Plan should be prepared. These requirements should be included as a condition of consent that needs to be actioned prior to releasing the Construction Certificate.

(Exhibit A)

25. The Council’s Draft conditions of consent incorporate the following deferred commencement condition:

This is a “Deferred Commencement” consent that is granted subject to a condition under section 80(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) that the consent is not to operate until the applicant satisfies Canterbury Bankstown Council (“Council”) as to the matters set out in Schedule A below. The period within which the applicant must produce evidence to the Council sufficient enough to enable it to be satisfied as to those matters is 6 months. If the applicant produces evidence to the Council within the period specified sufficient to enable the Council to be satisfied as to the matters set out in Schedule A below and the Council notifies the applicant in writing that it is satisfied as to the relevant matters, the development consent shall become operative from the date specified in the notice subject to compliance with the conditions set out in Part B below.

SCHEDULE A

1.   As recommended on pages 5-6 of the Preliminary Site Investigation (Contamination) Report (Ref: 85643.00, Document No. R.002, Revision 0, Dated: 22 September 2016) prepared by Douglas Partners Pty Limited, a Stage 2 Detailed Site Investigation must be carried out with the results and submitted to Council for review and approval within 90 days from the date of this consent in accordance with Council’s Contaminated Land Policy and SEPP 55.

2.   If the Detailed Site Investigation concludes that the land is not suitable for the proposed use in its present state, a Remedial Action Plan (RAP) must be submitted to Council for review and approval within 180 days of the date of this consent.

26. The applicant accepts that further investigation and remediation of the site is required. However the applicant seeks the imposition condition 1 and condition 2 as operational conditions to be satisfied prior to the release of a Construction Certificate.

27. It is the primary submission of Mr Nash that the Court’s obligation under cl 7(1)(a) of SEPP 55, namely to consider whether the land is contaminated, is satisfied by the Preliminary Contamination report. He submits that the remaining sub clauses of cl 7 can be satisfied by the imposition of an operational condition that is required to be satisfied prior to Construction Certificate. He argues that this approach will ensure that a residential land use is not commenced on the site until the principal certifying authority is satisfied that the land is suitable for the use.

28. Mr Nash’s secondary position is that the condition detailed in paragraph [25] is imposed as a deferred commencement condition. He argues that this would require the Detailed Site Investigation to the completed prior to the consent being operable.

29. In the alternative Council argues that the applicant has provided insufficient information to conclusively be satisfied that the site is suitable for the use proposed by the development application. Ms Puckeridge submits that the Preliminary Contamination report leaves the extent of contamination uncertain, and recommends additional work be undertaken to determine the scope of remediation required. It is Ms Puckeridge’s submission that without certainty as to the extent of contamination, or the scope and approach to remediation the Court should not grant consent to the development application.

30. Further Ms Puckeridge submits that it would be inappropriate to defer the consideration of contamination to a later time in the development process. She argues that the consideration of the suitability of the site for the development is an essential element of the assessment required under s 79C of the Environmental Planning and Assessment Act 1979 (the Act).

Findings

31. Of relevance to this case, cl 7 of SEPP 55 requires contamination and remediation to be considered in determining development applications. Clause 7 provides:

(1)   A consent authority must not consent to the carrying out of any development on land unless:

(a)   it has considered whether the land is contaminated, and

(b)   if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)   if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2)   Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3)   The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4)   The land concerned is:

(a)   land that is within an investigation area,

(b)   land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c)   to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land:

(i)   in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii)   on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

32. The development application proposes a change of use from the current use of a motor vehicle repair station and veterinary hospital (refer Statement of Environmental Effect, Exhibit A), to residential and commercial uses. Clause 7(2) of SEPP 55 therefore applies.

33. In Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40 Preston CJ at [45] confirms Clause 7 of SEPP 55 establishes two sets of preconditions to the exercise of the power under s 80(1) of the EPA Act by a consent authority to determine a development application for consent to carry out development on land. These requirements are outlined at [48] and [58] as follows:

[48] First, cl 7(2) of SEPP 55 establishes a precondition to the exercise of the power to determine a development application for consent to carry out development that would involve a change of use on any of the land specified in s 7(4) of SEPP 55. The precondition is consideration of “a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines”.

…

[58] Secondly, cl 7(1) of SEPP 55 establishes further preconditions to the exercise by the consent authority of the power to determine a development application by granting consent. The preconditions are sequential and inter-dependent: first, consideration by the consent authority of whether the land on which development is proposed to be carried out is contaminated; secondly, if the land is contaminated, satisfaction of the consent authority that the land either is suitable in its contaminated state, or will be suitable after the remediation, for the purpose for which the development is proposed to be carried out; and thirdly, if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, satisfaction of the consent authority that the land will be remediated before the land is used for that purpose.

34. The “contaminated land planning guidelines” are defined in cl 4(1) of SEPP 55 to mean guidelines under s 145C of the Act. The current planning guidelines under s 145C of the Act are “Managing land contamination planning guidelines: SEPP 55 – remediation of land”, NSW, 1998.

34. Table 1 to the contaminated land planning guidelines list different activities that may cause contamination of land. One of the listed activities is “service stations” which is identified by preliminary site investigation as a potential previous use of the land. Accordingly clause 7(4) of SEPP 55 applies.

35. The applicant has prepared a report that details the findings of a preliminary investigation of the land.

36. In these proceedings Council disputes that the level of investigation is satisfactory to allow the Court to determine whether the site is suitable for the proposed use or can be rendered suitable through remediation.

37. The contaminated land planning guidelines address the process of investigation at Section 3.4 as follows:

If contamination is, or may be, present the proponent must investigate the site and provide the planning authority with the information it needs to carry out its planning functions. The appropriate level of investigation will depend on the circumstances and may involve one or more of the stages described below in the site investigation process.

3.4.1 A Summary of the Site Investigation Process

Stage 1—Preliminary Investigation.

The main objectives of a preliminary investigation are to identify any past or present potentially contaminating activities, provide a preliminary assessment of any site contamination and, if required, provide a basis for a more detailed investigation. A preliminary investigation is not necessary where contamination is not an issue.

Stage 2—Detailed Investigation.

A detailed investigation is only necessary when a preliminary investigation indicates that the land is contaminated or that it is, or was, formally used for an activity listed in Table 1 and a land use change is proposed that has the potential to increase the risk of exposure to contamination. A detailed investigation will also need to be conducted as part of a remediation proposal. The objectives of a detailed investigation are to define the nature, extent and degree of contamination; to assess potential risk posed by contaminants to health and the environment; and to obtain sufficient information to develop a remedial action plan (RAP), if required

…

39. At 3.5.2 of the contaminated land planning guidelines it provides additional detail in relation to the extent of investigation required at the preliminary stage. Importantly it states in part :

Where contaminating activities are suspected to have had an impact on the land, sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal. Through the assessment of sampling results, an assessment of contamination can be established.

40. I find pursuant to cl 7(2) SEPP 55 that the Preliminary Contamination report prepared by the applicant does not provides sufficient certainty to confirm the extent of the historic use of the site as a service station; to locate the presence of contamination within the site; or to support a conclusion as to the extent of site contamination remaining. Due to this lack of specificity I find that the application would therefore fail the requirements of the second precondition to consent, namely satisfaction of the consent authority that the land either is suitable in its contaminated state, or will be suitable after the remediation, for the purpose for which the development is proposed to be carried out. (Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd at [58]).

41. As such I am satisfied that it is appropriate to require the applicant to carry out, and provide a report on, a detailed investigation of the site prior to the final determination of the application by the Court.

42. I am not persuaded by the submissions of Mr Nash that such investigations can occur as a deferred commencement condition, or post the issue of consent. My reasoning for this is as follows:

1. the suitability of the site for the development is a key consideration in the assessment of the application under s79C(1) of the Act. A fundamental planning matter to be determined should not be deferred post determination (Weal v Bathurst City Council & Anor [2000] NSWCA 88 at [93]).

2. The deferring of a matter which a consent authority is required to consider under s79C to a deferred commencement condition is not something that s80 (3) of the Act authorises.

3. the extent of contamination of the site, and whether the contaminants are still present on site, is unclear. Imposing the requirement for a detailed site investigation as an operational condition leaves open the possibility that the development may need to be changed in response to the plan for remediation, altering the consent (Young andAnorv Gosford City Council [2001] NSWLEC 191 at [46]).

43. I find that it is appropriate to require the provision of further information to allow an assessment of the suitability of the site for the development, prior to the determination of the application (s79C1(c) of the Act).

Directions

44. The Court directs that:

1. The applicant is to complete a Stage 2 Detailed Site Investigation as recommended on pages 5-6 of the Preliminary Contamination report (Ref: 85643.00, Document No. R.002, Revision 0, Dated: 22 September 2016) prepared by Douglas Partners Pty Limited.

2. If the Detailed Site Investigation identified in (1) concludes that the land is not suitable for the proposed use in its present state, the report is to incorporate recommendations for the remediation of the land.

3. The report identified in (1) is to be filed with the Court, and a copy provided to the Respondent, no later than 29 January 2018.

4. The respondent is to file updated conditions of consent with the Court within 14 days of receipt of the Detailed Site Investigation and the amended architectural plans.

5. Liberty to restore on two days’ notice.

6. Orders will be made in Chambers

Addendum made on 9 February 2018

45. Consistent with the Directions on 27 October 2017 the Applicant completed and filed with the Court a Stage 2 Detailed Site Investigation Report on 22 December 2017.

46. The conclusion of that report was that the site was suitable for the proposed development upon the successful removal of the suspected underground storage tanks (from the site’s previous use as a service station), the workshop facility and the impacted soils on site.

47. The report recommended further analysis in the form of a Remediation Action Plan (RAP) is completed prior to the commencement of work on site. Such a report was prepared by the applicant and filed with the Court on 24 January 2018.

48. The RAP concludes as follows:

Subject to proper implementation of the RAP and validation reporting, DP [Douglas Partners] considers that the site can be made suitable for the proposed redevelopment.

….

(Douglas Partners, 2018, Remediation Action Plan: Proposed Residential Development 384-398 Beamish Street Campsie, p. 22)

49. Following a review of the reports I find that the applicant has provided sufficient detailed information for me to be satisfied that the site can be rendered suitable for the proposed use through remediation.

50. Council filed an updated set of proposed conditions of consent on 8 February 2018, incorporating relevant conditions to reflect these preceding reports.

51. Accordingly I am satisfied it is appropriate to grant consent to the development.

Orders:

52. The orders of the Court are:

1. The applicant is granted leave to rely on amended plans at Annexure A;

2. The appeal is upheld;

3. Consent is granted to Development Application No. DA/452-2016 for demolition and construction of a mixed use development comprising three retail spaces, a commercial space on ground floor, sixty seven residential apartments and two levels of basement parking at 386-398 Beamish Street, Campsie subject to conditions in Annexure B;

4. The exhibits are returned with the exception of Exhibit 1,A and C.

…………….

D M Dickson

Commissioner of the Court

Annexure A_Part1 (4.64 MB, pdf)

Annexure A_Part2 (7.10 MB, pdf)

Annexure A_Part3 (6.90 MB, pdf)

Annexure A_Part4 (7.24 MB, pdf)

Annexure A_Part5 (156 KB, pdf)

Annexure B (147 KB, pdf)

Annexure One (929 KB, pdf)

Amendments

01 November 2017 - Pursuant to UPCR 36.17 the judgment published on 27 October 2017 is amended as follows:

i. the aerial photograph included at [11] of the judgment is amended to identify the site;

ii. the reference to louvre screens at [19](a) now states vertical, not horizontal;

iii. the reference to louvre screens at [19](b) now states vertical, not horizontal;

iv. Paragraph [3] is amended as follows: "On the basis of the plans, documentation before the Court and amendments proposed by the applicant during the course of the hearing, the Council no longer presses that the application should be refused."

09 February 2018 - 09 February 2018 - Addendum made on 09 February 2018

Decision last updated: 09 February 2018