Oriled Holding Pty Ltd v Bayside Council

[2023] NSWLEC 1199

Land and Environment Court

New South Wales

Medium Neutral Citation:

Oriled Holding Pty Ltd v Bayside Council [2023] NSWLEC 1199

Hearing dates:

Conciliation conference on 8 December 2022

Date of orders:

02 May 2023

Decision date:

02 May 2023

Jurisdiction:

Class 1

Before:

Sheridan AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA 2020/202 for the alterations and additions to existing warehouse and distribution facility at 3 Jullian Close, Banksmeadow, subject to the conditions set out in Annexure A.

(3) Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the Amended Application in the agreed sum of $20,000, which must be paid within 28 days of the date of these orders.

Catchwords:

DEVELOPMENT APPLICATION ––alterations and additions to existing warehouse and distribution facility – conciliation conference – agreement between parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.7, 8.15
Environmental Planning and Assessment Regulation 2021, cl 55
Land and Environment Court Act 1979, s 34
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2
State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6
State Environmental Planning Policy (Three Ports) cll 3, 14
State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 5.1, 5.3, 5.12, 5.13, 5.14, 5.17, 5.18, 5.19, 5.20, 5.22, 5.31, Sch 12 Ch 5
Bayside Local Environmental Plan 2021, cl 1.3

Texts Cited:

Botany Bay Development Control Plan 2013

Category:

Principal judgment

Parties:

Oriled Holding Pty Ltd (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
I Zimerman (Solicitor) (Applicant)
J Hewitt (Solicitor) (Respondent)

Solicitors:
Reid & Vesely Solicitors (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2021/329688

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Bayside Council (Council) of Development Application No 2020/202 (the DA).

2. Development Application No 2020/202 was received by the Respondent on 24 June 2020. The Development Application sought consent for alterations and additions to an existing warehouse and distribution facility, including food premises at 3 Jullian Close, Banksmeadow (Site).

3. The Site is located on the western side of Jullian Close. The legal description of the Site is Lot 12 DP 1227534 and has a total area of 1,981m² (as identified in the survey plan) and is rectangular in shape. The Site has a street boundary (eastern) width along Jullian Close of 32.4 metres, a northern side boundary length of 62.49 metres, a southern side boundary length of 60.795 metres and a rear (eastern) boundary width of 32.23 metres.

4. The Jullian Close cul-de-sac is a recently developed street consisting of new warehouses and other industrial tenancies. The area was formerly part of the Botany Industrial Park (BIP), however an approval for subdivision into nine lots was approved on 16 December 1998 (DA-30/98). A further approval for subdivision into 20 lots was approved 31 August 2012 (DA-10/486) and modified on 12 December 2016 (DA10/486/02 (S16/123 – Court Modification to DA-10/486)) and reflects the current lot pattern. The BIP is located immediately to the west of the site. A private access road to the BIP is located along the northern boundary.

5. The development application was notified in accordance with the requirements of the Botany Bay Development Control Plan 2013 (Botany DCP), Part 2 Notification and Advertising. The application was notified for a period of 14 days from 3 to 17 July 2020. No submissions were received.

6. On 9 July 2020, Council’s Development Engineer advised of a number of concerns in relation to the amount of car parking provided. On 15 July 2020, the Respondent carried out a site inspection of the property. On 24 August 2020, the Department of Planning, Industry and Environment (Hazards Branch) provided comments on the proposal not supporting the application on grounds of societal risk.

7. On 21 September 2020, a Request to Withdraw Application Letter was sent to the applicant. On 19 October 2020, the applicant submitted a letter responding to the issues identified in the Request to Withdraw Letter noting that they did not wish to withdraw the application. On 20 November 2020, the Council refused the application under delegated authority.

The Proceedings

8. A Class 1 refusal appeal to the NSW Land and Environment Court was filed on 19 November 2021. A Statement of Facts and Contentions was subsequently filed on 24 February 2022.

9. On 4 October 2022 the Applicant was granted leave to rely on amended plans and documents. Subsequently, joint expert reports in landscaping, planning and traffic were filed with the Court. Arising from the joint expert reports, the Applicant now relies on further amended plans and documents which have resolved all contentions of the Respondent.

10. The key amendments to the plans include:

1. Deletion of the originally proposed fish shop;    

2. Reduction in the length of the building (addition) on the northern boundary by 6m;

3. Increased landscaped area in the north-east corner of the site with a 3 m landscape setback to the northern boundary, together with agreed amended landscape plan;    

4. Reduction in the area of the awning to cover the access to the loading area and car parking spaces 1 – 6; and

5. Agreed conditions in relation to parking/ traffic.

11. In accordance with its usual practice, the Court arranged a mandatory conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act), at which I presided, on 8 December 2022, which commenced in Court.

12. At 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 would be acceptable to the parties, which included the Applicant submitting Amended Plans. The parties’ experts have considered the Amended Plans and are satisfied that they address all of the Respondent’s concerns. The signed agreement was filed on 8 December 2023 and is supported by a Joint Jurisdictional Note provided by the parties on the same date. The agreement involves the Court approving the application.

13. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

14. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure)

1. The Site is located on land identified on the Land Application Map referred to at s 5.3(1) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure). Accordingly, Chapter 5 of the SEPP Transport and Infrastructure applies.

2. Pursuant to the savings and transitional provision in Schedule 12 to the SEPP Transport and Infrastructure, Chapter 5, as in force immediately before the commencement of the State Environmental Planning Policy (Transport and Infrastructure) Amendment (Three Ports) 2022 continues to apply to the DA. Schedule 12 provides as follows:

Schedule 12 Savings and transitional provisions—Chapter 5

1 State Environmental Planning Policy (Transport and Infrastructure) Amendment (Three Ports) 2022

(1) An amendment to Chapter 5 made by the amending Policy does not apply to a relevant application.

(2) Chapter 5, as in force immediately before the commencement of the amending Policy, continues to apply to a relevant application.

(3) In this section—

amending Policy means State Environmental Planning Policy (Transport and Infrastructure) Amendment (Three Ports) 2022.

relevant application means the following applications made, but not finally determined, before the commencement of the amending Policy—

(a) a development application,

(b) an application for a complying development certificate,

(c) an application made by a proponent to a determining authority for approval of an activity under the Act, Part 5.

3. Further references to the SEPP Transport and Infrastructure accordingly relate to the version as in force from 3 June 2022 to 7 July 2022.

4. The Site is located within the IN1 General Industrial zone under Chapter 5 of the SEPP Transport and Infrastructure. Warehouse and distribution centres are permissible with development consent in the zone and I am satisfied that the DA is permissible with development consent.

5. Section 5.12 of SEPP Transport and Infrastructure provides:

5.12 Zone objectives and Land Use Table

(1) The Land Use Table at the end of this Part specifies for each zone—

(a) the objectives for development, and

(b) development that may be carried out without development consent, and

(c) development that may be carried out only with development consent, and

(d) development that is prohibited.

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

(3) In the Land Use Table at the end of this Part—

(a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and

(b) a reference to a type of building or other thing does not include (despite any definition in this Chapter) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

(4) This section is subject to the other provisions of this Chapter.

6. The development control table for the IN1 General Industrial zone provides as follows:

Zone IN1 General Industrial

1 Objectives of zone

• To provide a wide range of industrial and warehouse land uses.

• To encourage employment opportunities.

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

• To facilitate and encourage port related industries that will contribute to the growth and diversification of trade through the port.

• To enable development for the purposes of business premises or office premises associated with, and ancillary to, port facilities or industries.

• To encourage ecologically sustainable development.

2 Permitted without consent

Environmental protection works

3 Permitted with consent

Boat building and repair facilities; Business premises; Depots; Food and drink premises; Freight transport facilities; General industries; Jetties; Light industries (other than artisan food and drink industries); Neighbourhood shops; Office premises; Roads; Signage; Truck depots; Vehicle body repair workshops; Vehicle repair stations; Warehouse or distribution centres; Waste or resource management facilities

4 Prohibited

Any development not specified in item 2 or 3

7. As required by s 5.12(2) of Chapter 5 of the SEPP Transport and Infrastructure, the parties, and the Court, as the consent authority, have had regard to the objectives for development in the IN1 General Industrial zone set out in Part 5.2 of Chapter 5. The proposal is satisfactory having regard to those objectives.

8. To the extent ancillary earthworks are proposed the matters set out in s 5.20(3) of SEPP Transport and Infrastructure have been considered and I am satisfied the proposal is satisfactory.

9. The requirements in ss 5.13, 5.14, 5.17, 5.18, 5.19, 5.22 and 5.31 of Chapter 5 of the SEPP Transport and Infrastructure are not applicable to the subject DA though in any event they have been considered by the parties and the Court in considering Chapter 5 of the SEPP Transport and Infrastructure generally. There are no other relevant prohibitions or restrictions upon the grant of consent contained within Chapter 5 of the SEPP Transport and Infrastructure.

10. Having received and considered the further amendments to the DA, the Respondent and the Court is satisfied that the DA is generally consistent with the aims set out in s 5.1 of Chapter 5 of the SEPP Transport and Infrastructure.

State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards)

11. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) provides as follows:

(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 subsection (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 subsection (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).

12. The Site has previously been subject of contamination investigations and to remedial activities. The parties have considered the matters set out above. I am satisfied from the evidence that the proposed development is satisfactory particularly having regard to proposed condition 21 in Annexure A, which provides as follows:

“[21] Contamination – LTSEMP

As the site is subject to the Site Audit Statement (SAS) no. GN 537-2 dated 16 September 2016, which states that its suitability for commercial/industrial use is dependent on the ‘Long Term Site Environmental Management Plan, Part Lots 105 and 111 in DP1204999, Denison Street, Banksmeadow, NSW’ (LTSEMP), by JBS&G Australia Pty Ltd, dated 13 September 2016, all applicable environmental management strategies specified in Section 4 of the LTSEMP must be followed.

A Construction Environment Management Plan (CEMP) that is consistent with the LTSEMP must be prepared to provide detailed procedures for management of contamination during development for any disturbance of the barrier layer (shallow intrusive works) or for any breach of the marker layer, including piling (deep intrusive works).

The LTSEMP must be updated to reflect any changes caused by the works subject of this application.

REASON

To protect the environment in accordance with legislative requirements”

13. The proposal does not involve a change of use.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation)

14. The requirements of Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) are applicable and have been considered. The proposal is satisfactory. It is noted that whilst there has been unauthorised tree removal along the northern boundary there is no tree removal proposed as part of the current application. Satisfactory landscaping and planting are proposed along the northern boundary.

Bayside Local Environmental Plan 2021 (Bayside LEP)

15. The Bayside Local Environmental Plan 2021 (Bayside LEP) was gazetted on 27 August 2021. The SEPP Transport and Infrastructure is the Environmental Planning Instrument applicable to the Site, as the subject Site is not included in the Land Application Map referred to at cl 1.3 of the Bayside LEP.

Botany Bay Development Control Plan 2013 (Botany DCP)

16. The Botany DCP excludes land located within the SEPP Transport and Infrastructure however, the Botany DCP is used as a guide for assessing matters not raised in the provisions of the SEPP Transport and Infrastructure.

17. While none of the matters set out in the Botany DCP are jurisdictional prerequisites to the grant of development consent, the parties note for the benefit of the Court that:

1. The requirements of Part 3A of the Botany DCP regarding parking and access are satisfied; and

2. the requirements of Part 7J of the Botany DCP regarding uses involving the preparation and storage of food are satisfied.

Other Matters

18. Notification requirements under cl 7 of Division 2 of Schedule 1 of the EPA Act, have been satisfied. The DA was notified in accordance with the relevant community participation plan, being Part 2 - Notification and Advertising of the Botany DCP, for a period of 14 days from 3 to 17 July 2020. No submissions were received.

15. As I have concluded that the parties’ agreement is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.

16. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

17. The Court notes that:

1. That Bayside Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the Applicant amending development application DA 2020/202 to rely upon the documents specified in Schedule 1 (Amended Application);

2. The Amended Application identified in Schedule 1 is to be uploaded by the Applicant to the NSW Planning Portal by 9 December 2022;

3. The agreement of the parties that the costs order pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 referred to in [36 (3)] below, comprises the full and final satisfaction of all costs and disbursements of the Respondent in this matter (including court orders made on 24 May 2022, 4 October 2022 and 8 December 2022), and that the Respondent is to provide a tax invoice in relation to the said costs.

Schedule 1

Plan Name	Drawing Number	Revision	Date	Prepared by
Architectural Plans
Plan + Elevations	1741/DA.02	D	1 December 2022	Ken Powell Architect
Sections	1741/DA.03	D	1 December 2022	Ken Powell Architect
Photomontage	1741/DA.05	A	July 2022	Ken Powell Architect
Landscape Plans
Hardscape Plan	LPS34 23 – 01/1	D	5 December 2022	Conzept Landscape Architects
Landscape Plan	LPS34 23 – 01/2	D	5 December 2022	Conzept Landscape Architects
Details	LPS34 23 – 01/3	D	5 December 2022	Conzept Landscape Architects
Eastern Elevation	LPS34 23 – 01/4	D	5 December 2022	Conzept Landscape Architects
Northern Elevation	LPS34 23 – 01/5	D	5 December 2022	Conzept Landscape Architects
Specification	LPS34 23 – 01/6	D	5 December 2022	Conzept Landscape Architects
Other Documents
Amended Statement of Environment Effects	N/A	N/A	6 December 2022	Chapman Planning Pty Ltd
Letter to Reid & Vesely Solicitors in response to Traffic & Parking Assessment and Response to Contentions	N/A	N/A	5 December 2022	PDC Consultants

18. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA 2020/202 for the alterations and additions to existing warehouse and distribution facility at 3 Jullian Close, Banksmeadow, subject to the conditions set out in Annexure A.

3. Pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, the Applicant is to pay the Respondent’s costs thrown away as a result of the Amended Application in the agreed sum of $20,000, which must be paid within 28 days of the date of these orders.

L Sheridan

Acting Commissioner of the Court

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Decision last updated: 02 May 2023