Mako Minerals Pty Ltd v Liverpool City Council

[2022] NSWLEC 1398

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mako Minerals Pty Ltd v Liverpool City Council [2022] NSWLEC 1398

Hearing dates:

Conciliation conference 18 May 2022, 6 July 2022

Date of orders:

27 July 2022

Decision date:

27 July 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Development consent is granted to development application DA1308/2021 at 135 Kurrajong Road, Prestons subject to the conditions of consent contained at Annexure A.

Catchwords:

APPEAL – development application – clearing of land and construction of warehouses and self-storage units – conciliation conference – agreement reached – orders made

Legislation Cited:

Biodiversity Conservation Act 2016, s 7.7

Biodiversity Conservation Regulation 2017, cl 7.2

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

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan, cll 7.6, 7.31

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

Category:

Principal judgment

Parties:

Mako Minerals Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
C Shaw (Solicitor) (Applicant)
A Pearman (Respondent)

Solicitors:
Shaw Reynolds Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2021/369502

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application for the construction of an industrial development at 135 Kurrajong Road, Prestons, which was lodged with Liverpool City Council on 8 November 2021. The proposed development includes thirty-seven (37) warehouse units with mezzanine offices, a basement with eighty-nine (89) self-storage units, signage, car parking, earthworks, and tree removal. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 18 May 2022 and continued on 6 July 2022. I presided over the conciliation conference.

3. Following the adjournment of the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement was amended, and a final agreement was subsequently filed on 15 July 2022. The agreement followed the lodging of amended plans on the NSW Planning Portal in May 2022 with the agreement of the Council, as required by cl 55(1) of the Environmental Planning and Assessment Regulation 2000. The amendments made to the development application are summarised in a schedule of amendments to the Class 1 Application and include increasing the setback along the southern and eastern boundaries to retain additional trees.

4. The decision agreed upon is for the grant of a deferred commencement consent subject to conditions of consent pursuant to s 4.16 of the EPA Act. The signed agreement is supported by a Jurisdictional Prerequisites document that tables the list of statutory and environmental planning provisions that the parties have identified as being pre-requisites to the grant of development consent. In addition, the parties have provided agreed written submissions which establish that the operational acoustic impacts can be dealt with by way of consent conditions. In reaching the conclusions set out below, I have considered those submissions, the Jurisdictional Prerequisites document and the documents referred to therein, which also address the mandatory considerations that arise pursuant to s 4.15 of the EPA Act.

5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

• The development works are for the purposes of warehouses and self-storage facilities, which are permissible with development consent in the IN1 General Industrial zone in which the site is located, pursuant to the Liverpool Local Environmental Plan 2008 (LLEP).

• The proposed development complies with the applicable development standards that arise pursuant to the LLEP.

• I have considered the matters in cl 7.6(2) of the LLEP based on the Biodiversity Development Assessment Report prepared by Cumberland Ecology dated 27 April 2022 (BDAR).

• I have considered the matters in cl 7.31(3) of the LLEP, concerning earthworks, based on the Preliminary Geotechnical Investigation Report dated October 2021 and the Remedial Action Plan dated May 2022.

• Consideration has been given as to whether the subject site is contaminated as required by cl 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP 2021). The report on the Detailed Site Investigation carried out by Douglas Partners dated May 2022 confirms that the site is able to be remediated in accordance with a Remedial Action Plan dated May 2022 and, therefore, will be made suitable for the proposed development.

• The proposed development includes the clearing of Cumberland Plain Woodland, which is a critically endangered ecological community. This clearing exceeds the biodiversity offsets scheme threshold pursuant to cl 7.2(4) of the Biodiversity Conservation Regulation 2017 (BC Regulation) and a biodiversity development assessment report is therefore required pursuant to the Biodiversity Conservation Act 2016 (the BC Act). Consistent with s 7.7 of the BC Act, the amended development application includes a BDAR prepared by Cumberland Ecology dated 27 April 2022. The BDAR relies on the retention of Cumberland Plain Woodland on an adjoining site that was created by a prior subdivision (Lot 101 of DP 1268824). The BDAR recommends weed management, tree management (including retention of an existing hollow) and landscaping with Cumberland Plain Woodland species. It concludes that, with the payment of biodiversity offset credits, the impacts of the proposed development on threatened fauna and ecological species will result in no net loss of biodiversity values. Further, in a letter dated 14 July 2022, Mr David Robertson of Cumberland Ecology reaches the conclusion that there are no serious and irreversible impacts on biodiversity values as a result of the clearing of the endangered ecological community. The parties agree, and I am satisfied, that the applicable provisions of the BC Act and the BC Regulation have therefore been satisfied.

• The development application was exhibited between 1 and 22 February 2022 and received four submissions. The issues raised in those submissions have been considered. In satisfaction of the requirement for the development application to be notified for a period of 28 days, the amended development application was exhibited between 23 May 2022 and 20 June 2022. No submissions were received during this period.

6. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act obligates me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

7. Due to my obligation to make orders to give effect to the agreement between the parties, I was unable to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. One such discretionary matter is the acceptability of the impact of the proposed development on the critically endangered ecological community. Whilst I have met the statutory requirement to consider the impact, I am unable to consider its acceptability in light of the parties’ agreement, the compliance of the proposed development with the BC Act, and the obligation under s 34(3)(a) of the LEC Act.

Orders

8. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to development application DA1308/2021 at 135 Kurrajong Road, Prestons subject to the conditions of consent contained at Annexure A.

……………………….

J Gray

Commissioner of the Court

Annexure A.pdf

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Decision last updated: 27 July 2022