Newman v Hawkesbury City Council

[2023] NSWLEC 1544

Land and Environment Court

New South Wales

Medium Neutral Citation:

Newman v Hawkesbury City Council [2023] NSWLEC 1544

Hearing dates:

Conciliation Conference on 8 September 2023

Date of orders:

21 September 2023

Decision date:

21 September 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendments to the Development Application as agreed or assessed.

(2) The appeal is upheld.

(3) Development Application No. 03484/22 for Light Industry – Use of the premises for the purposes of vehicle servicing and repairs, including:

(a) Vehicle inspections for registration or insurance assessment;

(b) Servicing (including oil changes and general vehicle servicing and mechanical repair);

(c) Auto electrical works;

(d) Fittings of accessories and parts; and

(e) Fitting and sale of tyres,

but not including use of the site for vehicle storage, rebuilding, body building, panel beating, panel building, spray painting or chassis restoration, at 331 Windsor Street, Richmond (Lot 3 DP 37868) is determined by the grant of consent subject to the conditions in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – light industry vehicle repair station – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.67, 8.15, 8.7, Div 4.11

Environmental Planning and Assessment Regulation 2021, ss 23, 38, 163, 167

Hawkesbury Local Environmental Plan 2012, cl 6.7

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7

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

Category:

Principal judgment

Parties:

Bruce Andrew Newman (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
A Sattler (Solicitor)(Applicant)
J Palmer (Solicitor) (Respondent)

Solicitors:
Sattler and Associates Pty Ltd (Applicant)
Pikes and Verekers Lawyers (Respondent)

File Number(s):

2023/36617

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) being an appeal against the refusal of development application DA0384/22 for the continued use of the site as a vehicle repair station (the Proposed Development) at 331 Windsor Street, Richmond legally described as Lot 3 in DP 37868 (the Site).

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 had been held in April 2023 and was terminated. The parties continued discussions and investigations.

3. The Court arranged a further conciliation conference which was held on 8 September 2023. I presided over the further conciliation conference.

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 and granting development consent to the development application subject to conditions.

5. The parties agree that all contentions raised in the Statement of Facts and Contentions filed on 27 March 2023 have been resolved by the preparation of the following documents:

1. Town planning and Waste Joint Expert Report;

2. Drainage layout certification;

3. Amended plans of the existing building and floor levels;

4. Amended Statement of Environmental Effects Rev E and Plan of Management Rev E; and

5. Agreed conditions of development consent.

6. 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. 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.

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

8. 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 to be the terms of Div 4.11 of the EPA Act regarding existing use rights. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed submission on jurisdictional matters and they also addressed the Court orally during the conciliation conference.

9. The development application is made by the owner of the Site in accordance with s 23, Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

10. The Site is zoned R2 – Low Density Residential (R2 Zone) and pursuant to the land use table of the Hawkesbury Local Environmental Plan 2012 (HLEP) a vehicle repair station is a land use that is not specified in item 2 or 3 of R2 Zone and is therefore a prohibited land use in the R2 zone. The Dictionary of the HLEP defines vehicle repair station as follows:

vehicle repair station means a building or place used for the purpose of carrying out repairs to, or the selling and fitting of accessories to, vehicles or agricultural machinery, but does not include a vehicle body repair workshop or vehicle sales or hire premises.

11. The Applicant relies on existing use rights pursuant to Div 4.11 of the EPA Act. The land use on the Site has been in place for many years and the parties agreed that the Site benefits from existing use rights for the following reasons:

1. The Site is presently R2 Zone;

2. Use of the Site for the purposes of wheel and tyre repair and replacement has occurred since prior to the introduction of zoning controls of the HLEP;

3. The use of the Site for the purposes of wheel and tyre repair and fitting was formalised by development consents granted in 1964 and 1968 and recognised in a development consent granted in 1985; and

4. The use of the Site for wheel and tyre repair and fitting is prohibited in the R2 Zone.

12. The regulations may make provision for or with respect to an existing use and, in particular, for or with respect to the change of an existing use to another use. (s 4.67(1)(b), EPA Act)

13. In accordance with s 4.67(1)(b) of the EPA Act, s 163 of the EPA Regulation relevantly provides as follows:

(1)  An existing use may, subject to this Part—

…

(f)  if it is a light industrial use—be changed to another light industrial use or a commercial use, including a light industrial use or commercial use that would otherwise be prohibited under the Act.

(2)  However, an existing use must not be changed under subsection (1)(e) or (f) unless the change—

(a)  involves only minor alterations, and

(b)  does not involve an increase of more than 10% in the gross floor area of the premises associated with the existing use, and

(c)  does not involve the rebuilding of the premises associated with the existing use, and

(d)  does not involve a significant intensification of the existing use.

14. The parties agree that the Proposed Development is permissible with consent pursuant to ss 163 and 167 of the EPA Regulation because:

1. the existing use is a species of light industry;

2. the proposed use is also a species of light industry;

3. the alterations to the premises are minor, do not change the gross floor area of the premises and do not involve the rebuilding of the premises; and

4. the intensification of the use is not significant.

15. As the development application is for a land use and minor works, many of the usual provisions of the HLEP do not apply. The minor work is limited to the lining of the generator room to achieve acoustic compliance and repairs to bunding. The provision regarding essential services, cl 6.7 of the HLEP is satisfied because the Site has the provision of town water, electricity, sewer connection, public stormwater connection and has access from a bitumen sealed public road adjacent to 2 boundaries.

16. The State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) applies to all of NSW and, for the purposes of considering contamination as required by s 4.6 of the Resilience and Hazards SEPP, the parties agree, that the Site has a low risk for potential land contamination for the following reasons:

1. the current and proposed use of the Site is contained within the external walls of the building and above a steel reinforced concrete slab floor;

2. there is a floor sump that separates any spilt wastes and trade waste, and contractor’s agreements are in place to ensure that wastes are taken away for disposal off-site and do not enter the natural ground within and around the Site;

3. the amended plans, plan of management and conditions of consent all require liquid waste to be stored within the internal bunded area, and for the bund to be repaired which also limits the scope for stormwater contamination and relevant to s 6.6(2) of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) dealt with below at par [18] and [19].

17. Accordingly, the parties agree that all measurers are in place to prevent contamination of the natural ground and that the Site is therefore suitable, in consideration of its existing use status for approval of the proposed land use. The land is considered suitable for the proposed light industrial use without the need for further remediation.

18. The Site is located in a regulated catchment pursuant to Ch 6 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) and s 6.6(2) of the Biodiversity and Conservation SEPP provides that development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied the development ensures that:

(a)  the effect on the quality of water entering a natural waterbody will be as close as possible to neutral or beneficial, and

(b)  the impact on water flow in a natural waterbody will be minimised.

19. The Site is connected to town water and sewer infrastructure and, there is no proposal to increase impervious areas, accordingly there will be no adverse impact on water flow on any natural water body and there will be no increased stormwater run-off. The Applicant relies on certification of both stormwater and sewer draining prepared by Greyhound Plumbing Services dated 17 August 2023 and filed on 8 September 2023.

20. Section 6.7 of the Biodiversity and Conservation SEPP relates to aquatic ecology and subsection (2) provides as follows:

(2)  Development consent must not be granted to development on land in a regulated catchment unless the consent authority is satisfied of the following—

(a)  the direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development,

(b)  the development will not have a direct, indirect or cumulative adverse impact on aquatic reserves,

(c)  if a controlled activity approval under the Water Management Act 2000 or a permit under the Fisheries Management Act 1994 is required in relation to the clearing of riparian vegetation—the approval or permit has been obtained,

(d)  the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody will be minimised,

(e)  the adverse impact on wetlands that are not in the coastal wetlands and littoral rainforests area will be minimised.

21. The parties explain that as there are no exaction or construction works proposed on the Site:

1. There will be no adverse impact on terrestrial, aquatic or migratory animals or vegetation;

2. The Proposed Development does not proposed the clearing of riparian vegetation;

3. The Proposed Development will not erode land abutting a natural water body or cause sedimentation of a natural water body;

4. The use of the land incorporates the disposal of wastes off-site and has a certified proper connection to both sewer and public stormwater that it will have no impact on wetlands or aquatic ecology.

22. Accordingly, for the purpose of the controls on development generally in Ch 6 of the Biodiversity and Conservation SEPP, the Proposed Development is acceptable.

23. 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. I adopt the reasons given by the parties as set out above in this judgment.

24. 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.

Notations

25. The Court notes that:

1. Hawkesbury City Council, as the relevant consent authority, has agreed, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application 0384/22 to rely upon the plans and documents in the following table:

Drawing Number/Name	Prepared by	Issue No.	Date
ED 01.1 ‘Existing Site Plan’	Pereira Design and Drafting	D	6 July 2023
ED 01.2 ‘Existing Floor Plan’	Pereira Design and Drafting	D	6 July 2023
ED 01.3 ‘Existing Elevations’	Pereira Design and Drafting	D	6 July 2023
ED 01.4 ‘Existing Elevations’	Pereira Design and Drafting	D	6 July 2023
ED 01.5 ‘Stormwater / Drainage Plan’	Pereira Design and Drafting	D	6 July 2023
ED 01.6 ‘Fencing & Parking Plan’	Pereira Design and Drafting	D	6 July 2023
ED 01.7 ‘Waste Plan’	Pereira Design and Drafting	B	6 July 2023
Plan of Management’ (Revision E)	Civic Assessments	E	8 August 2023
Statement of Environmental Effects (Revision E)	Civic Assessments	E	11 August 2023

2. The Applicant filed the amended development application with the Court on 5 September 2023.

Orders:

26. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as a result of the amendments to the Development Application as agreed or assessed.

2. The appeal is upheld.

3. Development Application No. 0384/22 for Light Industry – Use of the premises for the purposes of vehicle servicing and repairs, including:

1. Vehicle inspections for registration or insurance assessment;

2. Servicing (including oil changes and general vehicle servicing and mechanical repair);

3. Auto electrical works;

4. Fittings of accessories and parts; and

5. Fitting and sale of tyres,

but not including use of the site for vehicle storage, rebuilding, body building, panel beating, panel building, spray painting or chassis restoration, at 331 Windsor Street, Richmond (Lot 3 DP 37868) is determined by the grant of consent subject to the conditions in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (155084, pdf)

**********

Decision last updated: 21 September 2023