Marshall v Bayside Council

[2020] NSWLEC 1248

Land and Environment Court

New South Wales

Medium Neutral Citation:	Marshall v Bayside Council [2020] NSWLEC 1248
Hearing dates:	4, 5 and 13 May 2020
Date of orders:	10 June 2020
Decision date:	10 June 2020
Jurisdiction:	Class 1
Before:	Bish C
Decision:	The Court orders: (1) The Court grants leave to amend the DA to delete reference to strata subdivision. (2) The appeal is upheld. (3) Development Application 2018/1112 seeks demolition of existing structures, removal of vegetation and construction of a mixed use development comprising a 4 storey (17) offices, cafe and three storey (17) warehouses with parking for 62 spaces on Lot 2 DP 813900, also known as 96A Denison Street, Hillsdale is approved subject to conditions of consent in Annexure A. (4) The exhibits are returned, except exhibits 1, 4, 5, A and B.
Catchwords:	DEVELOPMENT APPEAL – office and warehouse development – societal risk assessment – reliance on a plan of management to limit population of occupants – emergency management plan to manage risk
Legislation Cited:	Botany Bay Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Texts Cited:	Botany Bay Development Control Plan 2013 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy, (March 2020)
Category:	Principal judgment
Parties:	Shane Marshall (Applicant) Bayside Council (Respondent)
Representation:	Counsel: N Eastman (Applicant) M Staunton (Respondent)   Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent)
File Number(s):	2018/367753
Publication restriction:	No

Judgment

1. COMMISIONER: This is an appeal against the deemed refusal of Development Application (DA) 2018/1112 by Bayside Council (hereafter the Council) which, as amended, seeks demolition of existing structures, removal of vegetation and construction of a mixed use development comprising four storey (17) offices, a cafe and three storey (17) warehouses with parking for 62 spaces on Lot 2 DP 813900, also known as 96A Denison Street, Hillsdale (hereafter the site).

Background

2. The DA was submitted to Council on 22 June 2018, and after notification, consistent with relevant planning controls, three submissions in objection were received.

3. The DA was referred to the Roads and Maritime Services (RMS) for concurrence (as Denison Street is a classified road) and the Department of Planning (DoP) for advice on risk associated with the site’s location close to the Botany/Randwick Industrial Park (BIP). RMS provided concurrence for the DA and the conditions of consent reflect its requirements. DoP provided advice to Council and are not satisfied that the proposed development ‘avoids the unavoidable’ with respect to societal risk.

4. The applicant appealed against the deemed refusal of the DA, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The parties agreed prior to the hearing to proceed without a site view. The respondent advised the Land and Environment Court (the Court) that no residents sought to speak at the hearing and have relied on written submissions previously submitted to Council during the notification period. The Court agreed to commence the hearing in Court with reliance on written and oral evidence, and photographs of the site, as tendered. The approach taken by the Court by agreement of the parties is consistent with the Land and Environment Court’s COVID-19 Pandemic Arrangements Policy (commenced March 2020). The parties consented to the hearing proceeding by telephone.

6. Prior to the hearing, the applicant sought amendments to the DA, plans and supporting documents, that were granted leave to rely on by the Court on 23 April 2020, and which the respondent did not oppose.

7. Based on these amendments, together with the draft conditions and clarification provided by the traffic and planning experts in their joint expert reports, the Council agree that all contentions except the following, as described in the Amended Statement of Facts and Contentions (SoFC tendered as Exhibit 1) are resolved:

1. appropriateness and adequacy of the (societal) risk assessment,

2. sufficiency of the Plan of Management (PoM) to manage risks, and

3. consequently, the proposed development is not in the public interest.

8. The parties agree that the fundamental issue in contention relates to the societal risk, which as assessed, limits the number of occupants (population) during the operation of the site to a maximum of 224 persons (in the daytime).

9. During the hearing, the applicant sought to delete ‘strata subdivision’ by amendment of the DA. The respondent does not object to this request, however, seeks the supporting PoM and Emergency Management Plan (EMP) be amended accordingly. By agreement of the parties, the Court directed that the PoM and EMP be amended to: remove any reference to ‘strata’; provide a cross reference to each document; reference the correct statistics relied on by the proposal; remove any statements that contradict expert evidence; and correct any grammatical errors. The Court also directed the parties to seek advice from the relevant experts on any changes made to the PoM and EMP to ensure the fundamental context of the evidence given remained relevant. On this basis the Court grants leave to delete ‘strata subdivision’ from the DA.

10. The contention that relates to setback and landscaping, as advised to the Court, was resolved prior to the hearing, by the applicant’s proposed landscaping on the adjoining (southern site boundary) public space, owned by Sydney Water, although operated by Council. The parties were recalled by the Court to address a potential jurisdictional issue inferred in the draft conditions filed with the Court. The parties agree that the DA does not seek to undertake work on adjoining land. The parties agree that the relevant (deferred commencement) condition should be amended accordingly and have advised the Court that there are no jurisdictional issues that relate to the owner’s consent.

11. The Court relies in its assessment, on the amended draft conditions of consent filed with the Court on 14 May 2020. The decision to grant consent to the DA is made based on the evidence before the Court and assumptions that relate to the amended DA.

The Site

12. The site is an irregular shape, fronting Denison Street for 21.06m, which forms the western boundary. The rear and eastern boundaries of the site are 77.23m in length, and the length of the northern and southern boundaries are 136.13m and 144.1m, respectively. The total area of the site is 4,166m².

13. To the west of the site is an industrial area, known as the BIP. A high density residential is located to the east and parkland to the south of the site. Currently, the site is vacant.

14. The site has a slight fall towards the east.

Relevant Planning Controls

15. The DA is assessed against the requirements of s 4.15(1) of the EPA Act to grant consent, which is made pursuant to s 4.16(1)(a).

16. The site is located within the B5 Business Development zone, as described in the Botany Bay Local Environmental Plan 2013 (BBLEP). Pursuant to cl 2.3 of the BBLEP, the proposed development is permissible and is assessed against the objective of the zone as follows:

Zone B5 Business Development

1 Objectives of zone

• To enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres.

17. The proposed development complies with the relevant provisions of the BBLEP, including cl 6.2, which resolves the stormwater contention.

18. According to the Botany Bay Development Control Plan 2013 (BBDCP), the site is located within the Banksmeadow Industrial Precinct. The Court is referred to the following requirements of the BBDCP in its consideration of the DA, specifically, Part 2, Schedule 3 (external notification), and Part 6, Sections: 6.2.8, Banksmeadow Industrial Precinct; 6.3, general provisions; 6.3.11, industrial development adjoining a residential land use; and 6.3.15, risk.

Evidence

19. Evidence was provided from the following planning experts: Mr Anthony Betros for the applicant; and Mr Paul Grech for the respondent. The Court relies on their joint expert reports, tendered as Exhibits 4 and 5.

20. The Court also relies on evidence from the following risk experts: Mr Simon Meirs for the applicant; and Dr Raghu Raman for the respondent. Their joint expert report is tendered as Exhibit 6.

21. The traffic experts, Mr Chris Palmer for the applicant and Mr Craig McLaren for the respondent, were not called to give oral evidence, as the parties agree the traffic related contention was resolved prior to the hearing. The parties rely on their joint expert report, tendered as Exhibit 3.

Is the risk assessment of the proposed development appropriate and sufficiently accurate to determinate societal risk for the site?

22. The Council agrees that the assessment of risk associated with the Dangerous Goods Route (along Denison Street) is acceptable and that this component of the risk contention is resolved. The Council also agrees that the assessment of individual risk is acceptable and resolved, however the issue of societal risk is still in contention.

23. Societal risk is understood to consider the risk to multiple people exposed to a hazard, as opposed to individual risk which considers a singular person’s exposure. Societal risk assesses the likelihood of fatalities among a population exposed to a hazard, which in this appeal is from the BIP, and also considers any mitigating factors that could reduce the risk. Mitigating factors include moving people away from the hazard if an incident occurred, thereby reducing exposure time and preventing populations from being within an area of risk, and therefore exposed.

24. The difference between the parties lies in the approach adopted/required to determine the societal risk, and whether the mitigating measures to reduce the assessed risk are adequate.

25. The Council contends that the proposed increase in the population on the site from a previously assessed 25 to a proposed maximum of 224 occupants is unacceptable due to the site’s proximity to the BIP. Council is concerned that the applicant’s reliance on the societal risk integral (SRI) approach to assess the societal risk is inappropriate and provides inaccurate results for the proposed development on this site. The potential for increased population within the area that may be affected by the operation of the BIP raises concern for the Council, and which DoP advises results in future populations potentially put at an ‘avoidable’ risk.

26. The Council considers that the most appropriate and accurate tool to assess societal risk for the site is the Quantitative Risk Assessment 2018 (QRA 2018) model. This model was prepared for the subdivision of the BIP, as a requirement of their consent conditions (condition 4), and which requires the BIP operators to assess the potential impact to affected populations from incidences associated with the BIP. The QRA 2018 model is an updated version of the QRA model prepared in 2012.

27. The QRA 2018 report describes societal risk as “a measure of the probability of incidents affecting an actual population”. (Emphasis added). The QRA model results are presented as probability lines on an ‘F-N curve’, which is a graph showing the cumulative frequency of a fatality per year (F) against the number of (N) people or more, from an event (in the BIP).

28. On the F-N curve, there are three bands of risk ‘tolerability’, being: intolerable; tolerable; and ALARP (as low as reasonably practical). Essentially, the graph demonstrates the frequency of a fatality (F on the y-axis) against the number of persons killed (N on the x-axis). It demonstrates that there is a decrease in a society’s tolerability for high (fatality) impact events. The events that are assessed occur as a point in time and are not ongoing events, and for the purpose of this assessment, are incidents which occur within the BIP.

29. The QRA 2018 results show a marked change in the probability line since the 2012 results, due to an increase in existing/approved development, bringing greater populations within proximity of the BIP and because of a change in the model risk curves adopted.

30. The applicant has adopted the SRI approach to determine societal risk (Exhibit E), which derives a maximum population of 224 occupants on the site. The SRI approach was adopted because the applicant has not been able and has no authority to access the QRA 2018 model or its data files. The applicant also contends that the SRI approach provides a sufficiently accurate result to assess the societal risk associated with the proposed development, which is calculated in accordance with the requirements of the BBDCP.

31. Dr Raman explains that there is a limit to society’s ‘tolerance’ of the number of (multiple) fatalities from an event, the N-limit. It is established at 1000, which is shown on the F-N curve in the QRA 2018 results, although this report also acknowledges that the Hazardous Industry Planning Advisory Papers (HIPAP) do not explain the rationale of the N-limit. According to Dr Raman, beyond 1000 fatalities (N), society considers the risk intolerable, irrespective of the likely incidence of an event (F). There is some dispute between the parties as to how this ‘N-limit’ was generated and how it is to be applied in planning decisions for this site. Therefore, the experts do not agree on the validity of relying on the N-limit to constrain the population on the site.

32. The experts agree that the site is in the vicinity of facilities with a major accident potential, due to its proximity to the BIP. Also agreed, is that the BBDCP provides planning controls for the assessment of risk and is to be relied on in the assessment of societal risk for individual development applications. The parties drew the Courts attention to the objectives and controls as specified in Part 6, Sections 6.2.8, 6.3.11 and 6.3.15, where risk is particularly relevant.

33. The experts accept that the BBDCP, in relation to risk assessment, refers to and must be guided by the HIPAP, and specifically for this appeal, HIPAP’s 4 (risk criteria) and 10 (land use safety planning) are relevant. The HIPAP’s were prepared by the DoP as advisory notes on land use safety planning, for adoption by a range of stakeholders, including policy makers, planning officers and for individual development assessment. The experts also accept that the assessment approach using the F-N curves, as described in the HIPAP’s “is provisional and does not represent a firm requirement (position) in NSW”. (Emphasis added).

34. The HIPAP 4 explains that there are two dimensions of risk that must be assessed, individual and societal. The assessment must be quantitative and qualitative. The experts agree that individual risk as assessed for this proposed development is not an issue for the Court’s concern, however the societal risk component remains to be resolved to grant consent to the DA.

35. The HIPAP 10 recognises that risks cannot be fully eliminated and that “systematic strategic planning and the assessment of individual development proposals against recognised risk criteria is designed to ensure that hazards are identified and risks are controlled to a tolerable level.” (Emphasis added). Whilst land use safety planning is often applied at a strategic (planning) level, it is also relevant at the individual development assessment level. The risk assessment for the DA must address, as described in Section 4 of the HIPAP 10:

“The depth of analysis and assessment and the way in which conditions of consent are framed should reflect the scale and nature of the hazards and risks associated with the proposed development.” (Emphasis added).

36. Consistent with the requirements as set out in the HIPAP 10, for a development where there is a significant intensification of population, and where the individual risk has been satisfied, there is still a requirement to assess societal risk. The question remains for the Court’s determination whether the assessment of societal risk is required to be ‘cumulative’, to satisfy the requirements of BBDCP.

37. Mr Meirs states that the SRI approach adopted for this DA provides a flexible, alternative approach that addresses the relevant provisions of the HIPAP’s and BBDCP.

38. The risk experts agree that the SRI approach provided by the applicant determines incremental risk rather than cumulative risk. They also agree that the risk assessment is undertaken consistent with the (SRI) approach, as described in HIPAP 4.

39. The experts disagree whether an incremental risk assessment is sufficient or the SRI approach is appropriate to accurately reflect the societal risk as it relates to the proposed development, particularly as it has been agreed that the N-limit (of 1000) has already been exceeded due to existing and approved developments around the BIP.

40. The experts agree that the F-N (curve) graph is a useful tool to assess societal risk and that cumulative risk assessment is reliable when used in the appropriate context, such as adopted in the QRA 2018 model. They also recognise that a cumulative risk assessment has some drawbacks for individual developments, due to the lack of availability of relevant data for input.

41. The experts agree that the QRA 2018 results demonstrate that based on all ‘known’ existing/approved developments at the time of the assessment, the (1000) N-limit has been exceeded for populations potentially impacted by the BIP. They also agree that the proposed population in this DA if mapped on the QRA 2018 F-N curve would show a marginal (N) increase (shift to the right) in the probability line, although the probability line would still remain within the ALARP region.

42. Mr Meirs explains that neither the HIPAP’s nor the BBDCP mandates the adoption of the QRA 2018 approach as the appropriate assessment tool or a requirement for cumulative assessment to assess an individual DA. He states that the confidential nature of the QRA 2018 modelling makes it unfeasible and unreasonable to rely on this model to assess societal risk for the site.

43. Appendix 2 of HIPAP 10 details the decision-making process for risk assessment within the vicinity of a hazardous activity. The experts agree that the proposed population on the site is a level one (sensitivity) and that the development is in the ‘outer zone’, therefore the proposed development falls within the ‘don’t advise against’ (DAA) category.

44. The HIPAP 4 on page 1 relevantly states:

“The advisory nature of the guidelines and their criteria is emphasised for a number of reasons. Firstly, hazards and risk are only one part of the overall decision-making process. Other considerations, such as the need for the development and social and economic factors should also be taken into account. Consent authorities are advised to weigh all these factors, including risk implications, when making their planning decisions. Secondly, it is more appropriate to focus on the proper use of hazard analysis and risk assessment techniques in assessing the relevancy of technical safeguards and locational safety constraints, rather than attempting to meet criteria in isolation. Thirdly, experience indicates variations in assessment factors from one locality or development to another, including variations in organisational safety management, vulnerability to risk exposure and in emergency provisions and infrastructure, which may not be amenable to uniform treatment. It is therefore appropriate that risk assessment criteria be considered as providing target guidance rather than absolute values in all cases.”

45. Because the societal risk N-limit (of 1000), as shown in the HIPAP and reflected in the QRA 2018 results has already been exceeded, the following statement in the HIPAP 4 is relevant in consideration of the DA:

“…where risk levels exceed established criteria, the acceptability of the risk at or from a facility will need to be carefully considered in the light of the economic or social benefits provided by the facility.”

46. The HIPAP (4) cautions against a rigid application of the F-N curves, without consideration of the socio-economic benefits of a development, and also notes that the HIPAP should be applied as ‘target guidance’. I find it unreasonable in assessment of this DA to rigidly apply the 1000 N-limit or that the risk assessment approach must be based on the QRA model. The N-limit has already been exceeded by previous planning decisions, as shown in the QRA 2018 results. Any future development that increases a population in areas affected by BIP activities, however marginal the increase in societal risk, would consequently not be approved, thereby sterilising future development. I do not agree that this is the intent of the HIPAP’s or BBDCP as they are currently applied.

47. The Council’s approach to assessing the societal risk associated with this DA by insisting on amending the QRA 2018 model and providing a cumulative societal risk assessment, is inconsistent with the BBDCP. I appreciate the Council is concerned that future developments could result in an increase in populations put at potential risk from an incident in the BIP, however there is no obligation on the applicant, as established in either the BBDCP or the HIPAP’s to undertake a cumulative assessment approach. I also recognise that there are other strategic planning tools available to Council if a limit to the population affected by the BIP is required to address cumulative societal risk. Future population growth in areas affected by the activities of the BIP should appropriately be dealt with at a strategic level through zoning decisions or other appropriate planning provisions, such as development standards. The approach preferred by Council is inconsistent with the intent of the BBDCP and the HIPAP’s, which seek to apply a flexible approach to assess societal risk for individual developments.

48. The HIPAP 10 states that “development should only be approved on the basis of a systematic assessment of the risks, taking into consideration the nature of those risks and the degree of confidence in the results of the assessment.” (Emphasis added). I am satisfied that the applicant has demonstrated that the SRI approach is an acceptable, alternative approach that provides sufficient certainty to assess the societal risks to the population on the site, with an appropriate degree of confidence in the results. I also accept the advice of the risk experts that there would be only a ‘marginal’ incremental change to the probability line on the F-N curves in the QRA model, which will remain in the ALARP region. The assessed societal risk due to the proposed increase in population on the site is acceptable, particularly when managed by the PoM and EMP, as discussed below. The proposed development does not result in an intolerable or unacceptable societal risk.

49. The (SRI) approach adopted by the applicant to assess the societal, albeit incremental, risk to the site’s population, is appropriate, consistent with guidance provided in the HIPAP and provides sufficient accuracy of results to manage the risk to life as it relates to the proposed development and the BIP. I find there is no requirement for the applicant to undertake a cumulative (societal) risk assessment or adopt the QRA model, based on the guidance provided in the HIPAP’s or the BBDCP.

50. Further to this, in the HIPAP’s 4 and 10, Section 2.5.4 and Appendix 2, respectively, which relate to assessing development in the vicinity of hazardous industry, ‘incremental’ societal risk assessment is an option available for individual development assessment and there is no requirement that a DA must adopt cumulative societal risk approach. The HIPAP’s are guidance papers that explain the societal risk criteria and that a new development must only be approved when the benefits clearly outweigh the risks.

51. I find that the proposed development provides sufficient (socio-economic) benefits that outweigh the assessed societal risks. Based on the explanation of the planning experts, the proposed development will provide employment to the area, potential business that supports existing industry in the BIP, and provides a range of uses (commercial and light industrial). The proposed development does not cause any adverse impact to adjoining residential development and is consistent with the zone. I am satisfied that there are both social and economic benefits from the proposed development that largely outweigh the marginal increase in societal risk, as assessed.

52. According to the Preliminary Hazard Analysis in the HIPAP 10, the site lies within a ‘consultation region’, whereby the DoP should be consulted regarding proposed future development. To this effect, DoP have provided comment on the proposed development expressing their concerns to Council on the population (occupant) increase on the site and that an assessment of incremental societal risk is not sufficient. DoP considers that all avoidable risks on the site are not avoided (although does not specify what these are) and therefore that another site may be more appropriate for the proposed development. After consideration of the advice from DoP, I find that the applicant has satisfied the HIPAP requirements to assess societal risk, which I note were prepared by DoP, and there is nothing in their advice that causes me to not grant consent to the DA under appeal.

53. I find that the DA under appeal provides sufficient information consistent with the guidance provided in the HIPAP’s to inform the Court on the societal risk as it relates to the proposed development. Therefore, I am satisfied that the relevant requirements of the BBDCP are achieved.

54. The planning experts agree, and I concur that the provisions of the BBLEP are satisfied.

55. Mr Grech explained that there is no intention of Council in the future amendment to the BBLEP to change the (B5) zoning of the site or that there are any specific provisions/controls that would further limit the number of occupants on the site. Mr Grech also accepts that the proposed amendments to the BBLEP are considered neither imminent nor certain. It is apparent to the Court that the proposed changes to the BBLEP appropriately relate to raising the risk assessment planning level (to a planning instrument) and to provide better clarity on what is required to undertake a risk assessment.

56. Therefore, I find no inconsistency with the BBLEP under consideration by the Court.

57. I find that the relevant objectives and controls of the BBDCP, specifically those within Sections 6.2.8, 6.3.11 and 6.3.15 that relate to assessment of (societal) risk are achieved by the proposed development. The risk assessment, with a focus on the societal risk (in contention), has been addressed to my satisfaction by the SRI approach adopted by the applicant.

58. The proposed development is suitable for the site, and therefore I am satisfied that the DA, as it relates to this resolution of this contention, achieves subss 4.15(1)(a)(i), (iii) and (c) of the EPA Act.

59. The contention which relates to reliance on the PoM to achieve objective 3 in s 6.2.8 of the BBDCP, and therefore s 4.15(1)(iii) of the EPA Act, is considered below.

Is the PoM (and EMP) that support the DA sufficient to address the societal risk as assessed for the proposed development?

60. The central issue raised in the planning evidence relates to the DA’s reliance on the PoM to manage the population limit identified in the societal risk assessment, as required in the BBDCP, and specifically inconsistency with objective 3 and control C 13 in Section 6.2.8.

61. Council contends that the proposed procedures as described in the PoM to limit the occupants of the site to a daytime population of 224 (and 22 persons at night) cannot be realistically achieved by the operation of the PoM, particularly in the future when the offices/warehouses become fully staffed or change use. The contention is that the DA’s reliance on the PoM and EMP will fail to minimise the risk to human life in the event of an incident associated with the BIP.

62. Council are concerned that the PoM is incapable to restrict potential occupant population growth on the site should the use of the site change, as permitted under cl 2.20A of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP complying).

63. The planning experts agree that the relevant objectives and controls of the BBDCP are addressed, except objective 3 and control C12 in s 6.2.8. Mr Grech contends that the PoM is not sufficiently detailed or capable to manage the population limit on the site, particularly in the future when the operation of the individual office/warehouses may cause the total (occupant) population limit of 224 persons to be exceeded.

64. The experts agree that the 224 (occupant) population limit, established in the societal risk assessment relied on for the DA, does not include visitors or short-term contractors to the site. The Court accepts that the ‘occupant population limit’ relates to persons who are permanently employed in operations on the site and are present on site for more than one day. These persons are described in the PoM as being registered for the issuance of access cards.

65. I disagree with Mr Grech that objective 3 and control C12 in Section 6.2.8, is not fully satisfied by the PoM and EMP, as amended. The issue of concern raised by Mr Grech appears to focus on the allocation of persons across the development and whether the population limit can be maintained over time. The fundamental issue I find to satisfy the relevant objective of the BBDCP is not how staff are distributed across the site, but whether the population of the site can be managed within the limit of 224 (permanent) occupants and whether those persons can be effectively protected in the event of an incident in the BIP.

66. The risk assessment report relied on for this DA is prepared by a qualified risk professional, although I recognise that the risk report itself is somewhat deficient, as it does not specifically recommend safety procedures to follow, only a broad overarching statement. The report alone is not sufficient to fully address the requirements of the BBDCP, specifically objective 3 and control C12 in Section 6.2.8.

67. Based on the evidence before me, I find that the risk assessment report, PoM and EMP, as amended, together with the proposed conditions of consent are sufficient to minimise the risk to life and property, specifically with regards to societal risk. This opinion is formed based on the amendments to these document which remove any reference to strata management, limit the population of occupants to 224 persons and provide procedures capable to respond to the day to day operation of the site, including any permitted change in use.

68. The PoM specifies a (224 daytime) limit to the number of (permanent) occupants on site (22 night-time occupant limit), consistent with the societal risk assessment. I am satisfied that the procedures in the PoM, including to limit the issuance of access cards and the identified interrelationship with the amended EMP, are capable to minimise the societal risk for the designated population on the site from an incident in the BIP. Compliance with the amended PoM and EMP is obviously fundamental to minimise risk to the site’s population. I consider the management of the site as proposed, without reliance on strata management is appropriate. I accept that the proposed positive covenant in the conditions of consent has the intent to limit to the site’s population. There is no evidence before me to cast sufficient doubt that the designated population limit on the site cannot be achieved. The conditions of consent are relied on to ensure the PoM and EMP remain as effective and relevant documents to minimise the risk to life on the site through the life of the development.

69. Mr Betros informed the Court that the proposed evacuation point in the adjoining park was of sufficient size to accommodate the proposed 224 persons on the site, and in fact had capacity for many more people in the event of an evacuation. There is no evidence before the Court that suggests that persons would not have capacity, where there is sufficient time, and informed knowledge (through the EMP) to evacuate to a safe location in the event that it is necessary to do so.

70. On this basis, I find that control C 12 in Section 6.2.8 of the BBDCP is achieved, because the proposed risk management procedures in the PoM and EMP are sufficient to minimise the risk to life.

71. I am satisfied that the amended PoM and EMP relates to the risk assessment report that was prepared by a qualified professional. The PoM is informed by the (societal) risk assessment that is based on guidance of the HIPAP’s, which seeks to limit the occupant population (excluding visitors) on the site to 224 persons. The amended PoM, together with the amended EMP that supports the DA provides appropriate risk reduction and safety management measures.

72. As a consequence, the proposed development satisfies the requirements of the BBDCP, specifically objective 3 for the Banksmeadow Industrial Precinct (Section 6.2.8) to “ensure that any risk to human health, property or the natural environment arising from the operation of the development is minimised and addressed”. (Emphasis added).

73. Therefore, based on the amended plans, conditions of consent, amended PoM and EMP, which are informed by a risk assessment, the DA satisfies the relevant objectives and controls of the BBDCP.

74. The experts agree that the site could potentially change its use, pursuant to cl 2.20A of the SEPP complying, and that Council is concerned this could result in an intensification of the population on the site, irrespective of the consent granted by the Court. The experts accept that development on the site could be approved through a Complying Development Certificate, pursuant to cll 5.3 and 5.5, that could result in an increase in population on the site. The applicant relies on the amended conditions of consent, PoM and EMP to address this issue.

75. The applicant has proposed a ‘positive covenant’ as a condition of consent to address the potential for a population increase on the site due to a change in use. The respondent is however concerned that this approach does not specify the population limit and that it relates only to complying development and not exempt development, pursuant to cl 1.20(2) of the SEPP complying.

76. I am satisfied that the proposed amendments the Court has accepted to the relevant conditions of consent that relate to a ‘positive covenant’ satisfies the concerns raised by Council to limit the occupant population on the site. The Court accepts to impose this condition of consent, together with reliance on an amended PoM and EMP to ensure the DA remains compliant with the requirements of the BBDCP and satisfies s 4.15(1)(iii) of the EPA Act. Any future change in use will still be required to be consistent with the relevant planning provisions, including the relevant BBLEP.

77. I am satisfied that the proposed development achieves subss 4.15(1)(a)(iii) and (b) of the EPA Act. The DA is consistent with the relevant provisions of the BBDCP (and the HIPAP guidance documents), and the risk assessment informs the amended PoM and EMP. These documents have made appropriate consideration of the potential impacts on the natural and built environments, and social and economic impacts in the locality.

Conclusion

78. The (SRI) risk assessment is sufficient and adequate to inform the conditions of consent, PoM and EMP relied on by the DA under appeal, which I find achieves the requirements of the relevant provisions of the BBDCP.

79. The parties agree that the submissions of residents made in objection to the proposed development have been addressed, thereby satisfying the requirement of s 4.15(1)(d) of the EPA Act.

80. I have carefully considered the evidence before me as relevant to the amended DA under appeal. Based on my understanding of the evidence, I am satisfied that the contentions raised by Council are resolved and the proposed development achieves the requirements of the EPA Act to grant consent to the DA, specifically subss 4.15(1)(a)(i), (ii), (iii), (b), (c) and (e) that were in contention.

81. I make no determination on the issue of strata subdivision, as the parties agree that this should be deleted from the DA under appeal. The DA is amended accordingly by leave granted by the Court.

82. Therefore, I grant consent to the DA under appeal pursuant to s 4.16(1)(a), subject to the conditions of consent as described and amended below.

83. The parties have provided draft conditions of consent. I accept, as amended the numbering, and make a determination below on the draft conditions in dispute (using draft numbering):

General Conditions

1. (1) accepted as amended, except for the PoM and EMP which are further amended to rely on the most recent version of May 2020.

Prior to issue of any construction certificate

1. (12) to (44) accepted as read, except for conditions below

2. (37) accept deletion of (b) as amended by parties

3. (43) as previously numbered deleted as amended by parties

Prior to the issue of an occupation certificate

1. (80) to (116) accepted as read, except for conditions below

2. (99) amended by the Court to reflect Council’s concerns regarding SEPP complying provisions

3. (113) accept insertion of (c) as amended by the Council and amended by the Court to include final EMP for Council approval

4. (115) accept as amended by the Council

5. (116) amended by Court to include EMP

6. Delete conditions reference to subdivision, and include conditions (116) and (117) as amended by Council into above section

Ongoing use of the development

        (g)       (121) accept as amended by parties, although reference to visitors clarified by Court as suggested by Council

84. The conditions of consent relied on for the granting of the DA are amended accordingly and provided in Annexure A.

Orders

85. Consequently, the orders of the Court are as follows:

1. The Court grants leave to amend the DA to delete reference to strata subdivision.

2. The appeal is upheld.

3. Development Application 2018/1112 seeks demolition of existing structures, removal of vegetation and construction of a mixed use development comprising a 4 storey (17) offices, cafe and three storey (17) warehouses with parking for 62 spaces on Lot 2 DP 813900, also known as 96A Denison Street, Hillsdale is approved subject to conditions of consent in Annexure A.

4. The exhibits are returned, except exhibits 1, 4, 5, A and B.

……………………………

Sarah Bish

Commissioner of the Court

Annexure A (334824, pdf)

Plans (10730881, pdf)

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Decision last updated: 10 June 2020