R E S Pty Ltd v Newcastle City Council

[2023] NSWLEC 1503

Land and Environment Court

New South Wales

Medium Neutral Citation:

R E S Pty Ltd v Newcastle City Council [2023] NSWLEC 1503

Hearing dates:

Conciliation Conference 21 April, 22 and 31 May, 15 June, 13 and 28 July and 10 August 2023

Date of orders:

06 September 2023

Decision date:

06 September 2023

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   Development Application No DA2022/00401 for the site remediation and warehouse development, is determined by the grant of consent, subject to the conditions of consent annexed hereto and marked A.

(3) The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed.

Catchwords:

DEVELOPMENT APPEAL – remediation works – construction of industrial building - conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, s 34

Newcastle Local Environmental Plan 2012, cll 5.7, 5.21, 6.1, 6.2

Environmental Planning and Assessment Regulation 2021, ss 23, 38, Sch 3 s 20

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.10, 2.11, 4.6

Category:

Principal judgment

Parties:

R E S Pty Ltd ABN 52 622 726 390 (Applicant)
Newcastle City Council (Respondent)

Representation:

Counsel:
R Fox (Solicitor)(Applicant)
A Pearman (Respondent)

Solicitors:
Fishburn Watson O’Brien (Applicant)
Matthews Folbigg Pty Ltd (Respondent)

File Number(s):

2022/338771

Publication restriction:

No

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 DA2022/00401 seeking consent for a general industry, works include site remediation work, earthworks, and a construction of an industrial building with associated hardstand area for general industrial purposes including truck parking and equipment storage, offices, hardstand area, on-site sewerage management system, stormwater system, landscaping and revegetation works (the Proposed Development) at 31 Sparke Street, Hexham legally described as Lot 2 DP 874409 (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 has been held on 21 April, 22 and 31 May, 15 June, 13 July and 10 August 2023. I presided over the conciliation conference.

3. 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.

4. 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.

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

6. 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 a number of relevant provisions in Chapter 2 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP) relating to Coastal Management and at s 4.6 requiring the consideration of contamination and remediation in determining an application for development consent. There are also a number of jurisdictional prerequisites provided in the Newcastle Local Environmental Plan 2012 (NLEP) including flood planning. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note to which I have had regard and set out my reasons below.

7. The Applicant provided amended plans and additional information to the Respondent during the conciliation conference period. A summary of the principal amendments and/or further information provided by the Applicant in respect of the Proposed Development is provided by the parties and I include the summary in this judgment as these documents address the jurisdictional prerequisites. The summary of amended plans and additional information is as follows:

“a. Architectural Plan Set - The RES Pty Ltd Hexham Warehouse Development Plan Set was updated to reflect changes made to civil design including the modifications to the location and the extent of the floodway, the addition of retaining walls and pedestrian access into the warehouse and notation regarding construction requirements as per a revised bush fire report.

b. Stormwater Plan Set - Modifications were made to the stormwater plans to update the bioretention basin and the level spreader detail to reflect the changes to the civil plans. Considerable amendments have been made to the overall stormwater design. The modified plans now consider the impact on the wetland area, waterway, and the adjoining properties. The proposal was redesigned to ensure that stormwater can be wholly contained within the Site. Further assessment was undertaken to assess proposed cut and fill and water sensitive design in association with remediation including the installation of a bio retention system.

c. Civil Engineering Plan Set – The civil engineering drawings were revised to include retaining walls around the perimeter of the hardstand development, amendment of the FFL to accommodate on-site earthworks and remediation capping design (referred to in 5(d)(vii) below), and revised layout/design of on-site detention and stormwater discharge. This included details and sections of the bulk earthworks and the slab design and height. The driveway design has also been amended to accommodate truck access to the street.

d. Remedial Action Plan - The Remedial Action Plan was updated to include:

i. A discussion of the design of on-site stormwater detention and discharge infrastructure, noting its suitability in terms of the proposed remediation strategy.

ii. The application of clause 4.10 of the State Environmental Planning Policy (Resilience and Hazards) 2021 which states that the consent authority must not refuse consent for a category 1 remediation work unless the work poses a more significant risk of harm to human health or the environment than would arise from use of the land in the absence of the remediation work. A qualitative risk assessment of the risk of harm to human and environmental health under commercial/industrial land use in a “no Remediation” scenario compared to the proposed strategy outlined in the RAP was performed. Importantly, the proposed remediation activities do NOT pose a more significant risk of harm compared with leaving the Site in its current un-remediated state.

iii. A summary of the Supplementary Groundwater Investigation performed by Geosyntec in October 2022 in response to Council concerns. The investigation confirmed that groundwater flow was consistent with previous investigations, tidal activity has a negligible effect on groundwater quality at the Site, groundwater conditions in the centre of the Site do not affect the outcome of the assessment or the proposed remedial strategy, and the conceptual model used in the RAP is valid and applicable to the Site in its current condition.

iv. An assessment of the likelihood of occurrence of aluminium smelter waste within the development footprint and the application of Chemical Control Orders (CCO) under the Environmentally Hazardous Chemicals Act 1985. No evidence for the presence of smelter waste within the development footprint

was identified, therefore the CCO is not considered relevant to the Stage 1 works.

v. An update of the Conceptual Site Model with details of hazardous ground gases. The risk from hazardous ground gases to future commercial/industrial workers and intrusive maintenance and construction workers is considered to be very low.

vi. An update to the Staged Remediation and Development Approach to include confirmation that the reuse of stockpiled soils within the Site is appropriate, and to note the requirement to confirm the applicability of the RAP prior to any subsequent stages of development on the property.

vii. An update to the Proposed Methodology for the Capping Layer Construction to reflect design changes and to include further details of capping requirements.

viii. An update of the Validation Plan to include:

1. Validation of marker layer installation;

2. Validation of underground services installation; and

3. Validation of capping installation, including capping thickness.

ix. A Hazardous Ground Gas Assessment and Acid Sulfate Soil Management Plan.

e. Landscaping - The landscaping was updated to reflect changes made to the civil and architectural plans.

f. Biodiversity Development Assessment Report - The Biodiversity Development Assessment Report was updated to include the following:

i. The updates as required to reflect changes made to the civil and architectural plans, including a slight increase in the development footprint area to account for inclusion of disturbance along Sparke Street for driveway construction (1.31 ha vs 1.27 ha).

ii. A revision of Section 2. ‘Landscape Context’ to include additional information from reports submitted with the original DA and application of the State Environmental Planning Policy (Resilience and Hazards) 2021 Chapter 2 Coastal Management – Proximity Area for Coastal Wetlands.

iii. Updates to address impacts from Asset Protection Zones.

iv. Updates to include discussion of contaminated land issues and the significance of indirect and prescribed impacts.

v. The inclusion of additional mitigation measures, including monitoring of biodiversity values along Ironbark Creek via an adaptive management plan, and an assessment of the impact of significance following mitigation.

vi. An assessment of impacts to groundwater dependent ecosystems which confirms the proposed capping strategy is unlikely to significantly impact groundwater dependent ecosystems present within and adjacent to the Site.

vii. The BAM Calculator has been updated to reflect the minor change in footprint.

g. Bushfire Assessment Report – The Bushfire Assessment Report was updated to remove the Asset Protection Zone originally proposed within Lot 3, DP874409 on the eastern side of the proposed development. The solution requires the installation of an AS1530.8.2 BAL-FZ tested wall system on the building where it is within 12m of the eastern boundary (northern, eastern and southern elevations), and the Firefly AS1530.8.2 BAL-FZ tested roof system where within 12m of the eastern boundary.

h. Floodway Modification – Flood modelling was carried out to determine the potential for floodway classification assigned to the development site under Newcastle LEP 2012 to be modified. This included an assessment of the cumulative impact of all potential development in the area including that associated with the Hexham Straight road upgrade project. The flood modelling established that the extent of the floodway along the northern floodplain of Ironbark Creek between the Great Northern Railway and the Pacific Highway (Maitland Road) can be reduced leading to a reduction in the area of the development site that is classified as floodway. The modified floodway extent is depicted in mapping that accompanies the Updated Flood Advice Report prepared by BMT and dated 20 July 2023 (ref. L.A11545.011.04.pdf).

i. Stormwater Modelling – Stormwater modelling including qualitative and quantitative analysis was carried out to assess the modifications referred to in this paragraph to ensure compliance with DCP controls.”

8. The Applicant is the registered proprietor of the Site and has provided consent to the lodgement of the development application in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) as evidenced in a letter dated 11 April 2022 to the Respondent and filed with the Court on 10 August 2023.

9. The Site is identified as being within the “coastal environment area” on the Coastal Environment Area Map referred to in s 2.10 of Resilience and Hazards SEPP, as well as the “coastal use area” on the Coastal Use Area Map referred to in s 2.11 of Resilience and Hazards SEPP. The Proposed Development is not likely to cause an adverse impact upon any of the matters listed in s 2.10(1) of Resilience and Hazards SEPP, and the Court can be satisfied for the purposes of s 2.10(2) that the Proposed Development has therefore been designed and sited and will be managed to avoid such an impact.

10. The Proposed Development is not likely to cause an adverse impact upon any of the matters listed in s 2.11(1)(a) of Resilience and Hazards SEPP, and the Court can be satisfied for the purposes of s 2.11(b)(i) that the Proposed Development has therefore been designed and sited and will be managed to avoid such an impact.

11. The Applicant relies on a Remedial Action Plan (RAP) which has been prepared by Geosyntec, dated 31 May 2023, for the Site for the development and considers the potential impact of legacy contamination. Remediation is proposed to be carried out to make the Site suitable and safe for the relevant purpose. The Court is satisfied that the preconditions of s 4.6 of Resilience and Hazards SEPP have been met and that compliance with the RAP is included in the conditions of consent.

12. The parties agree, and the Court, are satisfied that the development does not fall within s 20 of Schedule 3 of the EPA Regulation regarding contaminated soil treatment works, and therefore the Proposed Development is not for designated development. The RAP demonstrates that the Proposed Development does not involve the treatment and storage of more than 30,000 cubic meters of contaminated soil, or the disturbance of more than 3 hectares of contaminated soil and these calculations are set out on page 4 of a letter dated 6 June 2023, from Geosyntec, filed with the Court on 10 August 2023.

13. The Site is located within Zone IN3 Heavy Industry and part C2 Environmental Conservation pursuant to the NLEP. The Proposed Development is limited to the Zone IN3 Heavy Industry and is permissible with consent in Zone IN3 Heavy Industry.

14. The Site is identified as being affected by Class 3 acid sulfate soils on the Acid Sulfate Soils Map made under cl 6.1 of the NLEP. The development application has considered the management of acid sulfate soils and an Acid Sulfate Soil Management Plan is included at Appendix G of the RAP (see Appendix G of Tab 10 of the Bundle of Documents). Accordingly, the Applicant has met the precondition to the grant of consent in cl 6.1(3) of the NLEP, being the provision of an acid sulfate soils management plan to the Court. Similarly, the Respondent advises the Court that pursuant to cl 6.2 of the NLEP consideration has been given to the earthworks contemplated by the consent and is satisfied that the earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses and features of the surrounding land in light of the studies and proposed management of the land referred to in relation to acid sulfate soils above.

15. Clause 5.7 of the NLEP does not apply as the Proposed Development is not located below the Mean High Water Mark.

16. The Site is located within the flood planning area for the purposes of, and is therefore subject to the application of, cl 5.21 of NLEP. The Court can be satisfied as to the matters listed in cl 5.21(2) and the matters listed in cl 5.21(3) of NLEP based on the plans and documents submitted with the development application, including updated flood advice dated 20 July 2023 that models the cumulative impacts of the proposed development and the surrounding site prepared by BMT Global and the agreed conditions of consent.

17. The development application (as originally lodged) was notified by the Respondent between 21 April 2022 to 10 May 2022, and one late submission was received in response. The concerns raised by the objector in respect to the Proposed Development included not receiving a notification letter, the notification period, and noting that they were intending to formally lodge a comment on the applications documentation. The submitter did receive a notification letter addressed to the company’s head office, the notification period was in accordance with Newcastle City Council’s Adopted Community Participation Plan, and no further formal correspondence was received.

18. 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.

19. 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:

20. The Court notes that the Respondent as the relevant consent authority has agreed under s 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending the development application and rely on the following amended plans and documents:

Sheet No.	Title	Prepared By	Revision	Date
101	Site Plan	Jackson Environment and Planning Pty Ltd	-	29/05/2023
102	19m Truck Turning Path Drawing	Jackson Environment and Planning Pty Ltd	-	29/05/2023
103	Elevation and Section Drawings	Jackson Environment and Planning Pty Ltd	-	29/05/2023
104	Notification Plan	Jackson Environment and Planning Pty Ltd	-	29/05/2023
105	Warehouse Floor Plan	Jackson Environment and Planning Pty Ltd	-	29/05/2023
106	Office Floor Plan	Jackson Environment and Planning Pty Ltd	-	28/05/2023
107	Roof Plan	Jackson Environment and Planning Pty Ltd	-	29/05/2023
C1.00	Cover Sheet	Triaxial Consulting Pty Ltd	TX16284.00 Issue H	25/7/2023
C1.01	Existing Site Plan	Triaxial Consulting Pty Ltd	TX16284.00 Issue F	26/5/2023
C2.00	Soil and Water Management Plan	Triaxial Consulting Pty Ltd	TX16284.00 Issue I	26/5/2023
C2.01	Soil and Water Management Plan Details	Triaxial Consulting Pty Ltd	TX16284.00 Issue F	26/05/2023
C3.00	Concept Stormwater Management Plan	Triaxial Consulting Pty Ltd	TX16284.00 Issue J	25/7/2023
C3.01	Concept Stormwater Management Plan Details	Triaxial Consulting Pty Ltd	TX16284.00 Issue G	25/7/2023
C3.02	Concept Catchment Plan	Triaxial Consulting Pty Ltd	TX16284.00 Issue A	25/7/2023
C5.01 – C5.05	Bulk Earthworks Sections Sheets 01-05	Triaxial Consulting Pty Ltd	TX16284.00 Issue E	26/5/2023
L00-04	Landscape Development Application, Site Remediation and Warehouse Development	Terras Landscape Architects	13949.5 Rev E	5/4/2023
Document		Prepared By	Date
21 Sparke Street Hexham, Biodiversity Development Assessment Report, Final Report		Biosis Pty Ltd	26/06/2023
Bushfire Assessment Report, Performance Based Solution – BAL FZ, Proposed New Industrial Building		Newcastle Bushfire Consulting	06/04/2023
Amended figure I-9 map “1% AEP + Climate Change Flood Level Impacts – Cumulative Scenario with Hexham Straight Widening Upgrade”		Ben Caddis of BMT Commercial Australia Pty Ltd	25/07/2023
Updated Flood Advice for Development of 21 Sparke St (Ref L.A11545.011.04)		Ben Caddis of BMT Commercial Australia Pty Ltd	20/07/2023
Remedial Action Plan, 21 Sparke Street Hexham NSW 2322, RES Pty Ltd (21243 R01 Final Rev5)		Geosyntec Consultants	31/05/2023
Interim Audit Advice		GHD	31/5/2023
Stormwater Management Plan Report		Trixial Consulting Pty Ltd	25 July 2023

21. The court notes that the applicant filed amended plans and additional information with the court on 10 August 2023.

Orders:

22. The Court orders:

1. The appeal is upheld.

2. Development Application No DA2022/00401 for the site remediation and warehouse development, is determined by the grant of consent, subject to the conditions of consent annexed hereto and marked A.

3. The Applicant is to pay the Respondent’s costs thrown away by the amendment of the development application pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, in a sum to be agreed or assessed.

E Espinosa

Commissioner of the Court

**********

Annexure A

Annexure B Part 1

Annexure B Part 2

Decision last updated: 06 September 2023