Reynolds Property NCLE Pty Ltd v Lake Macquarie City Council - [2022] NSWLEC 1254

Land and Environment Court

New South Wales

Medium Neutral Citation: Reynolds Property NCLE Pty Ltd v Lake Macquarie City Council [2022] NSWLEC 1254
Hearing dates: Conciliation conference on 26 April 2022
Date of orders: 16 May 2022
Decision date: 16 May 2022
Jurisdiction: Class 1
Before: McEwen AC
Decision:
The Court orders:
(1) The appeal is upheld.
2) Development application no. DA/1593/2020 for the demolition of existing buildings and structures and the construction and use of a service station and food and drink premises with associated landscaping and ancillary works at 10-14 Wilsons Road, Mount Hutton is determined by granting consent to the application subject to the conditions in Annexure A.

Catchwords:
DEVELOPMENT APPLICATION – demolition of existing buildings, and the construction and use of a service station and food and drink premises with associated landscaping and ancillary works - conciliation conference – agreement between the parties – orders

Legislation Cited:
Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7
Environmental Planning and Assessment Regulation 2000, cl 49
Lake Macquarie Environmental Plan 2014 cll 4.3, 4.4, 5.10, 7.1, 7.2, 7.9
Land and Environment Court Act 1979, s 34
Protection of the Environment Operations (Clean Air) Regulation 2010 Div 5, Subdiv 3
Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019, Pt 2, Pt 4
State Environmental Planning Policy (BASIX) 2004
State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 3, 4
State Environmental Planning Policy (Industry and Employment) 2021 Ch 3, cl 3.11
State Environmental Planning Policy (Resilience and Hazards) 2021 Ch 3, cl 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021 Sch 3, cl 2.121

Texts Cited:
Lake Macquarie Development Control Plan 2014

Category: Principal judgment
Parties: Reynolds Property NCLE Pty Ltd (Applicant)
Lake Macquarie City Council (Respondent)
Representation:
Counsel:
R. White (Applicant)
M. Smith (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Lake Macquarie City Council (Respondent)

File Number(s): 2021/252568
Publication restriction: No

Judgment

COMMISSIONER: The nature of the proceedings: This is a class 1 Development Appeal pursuant to s 8.7(1) of the Environmental Planning & Assessment Act 1979 (EPA Act) commenced by the applicant on 3 September 2021 against the refusal by Lake Macquarie City Council (respondent) on 23 August 2021 of Development Application DA/1593/2020 (DA).
The DA, as amended, seeks consent for the demolition of existing dwellings and structures and the construction and use of land for the purpose of a service station and food and drink premises, and associated landscaping and ancillary works.
The land, the subject of the DA, is legally described as lots 1, 2 and 3 in DP 21206 and is otherwise known as 10-14 Wilsons Road, Mount Hutton (site).
The conciliation conference: The appeal was listed for hearing on 26 April 2022, but shortly prior to that date the parties informed the Court that all issues between them had been resolved following the grant of leave by the Court on 29 March 2022 to rely upon amended plans. The parties requested that the matter be listed for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 26 April 2022 and at which I presided.
The parties’ agreement: 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 involves the Court upholding the appeal and granting development consent to the amended development application subject to conditions.
Jurisdiction: 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. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.
In making orders to give effect to the agreement between the parties, I am not required to make, and have not made, any assessments of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
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 in a comprehensive jurisdictional submission. The submission explains how the jurisdictional prerequisites have been satisfied.
Satisfaction of jurisdiction: Based on the evidence before me, I accept and adopt the parties’ joint submission as to my jurisdiction in this case. In that regard, I set out the joint submission in summary form below and am satisfied in respect of the following matters.
Owners’ consent and permissibility: At the time of lodgement, the applicant had received owners’ consent from the registered proprietors of each lot.
The site has since been sold and is now owned by Mount Hutton LF Pty Ltd.
The applicant declares that it has consent from the now registered proprietor for the Development Application in accordance with cl 49 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).
The site is zoned B2 Local Centre under the Lake Macquarie Local Environmental Plan 2014 (LMLEP). The proposed development is permissible with development consent in the B2 zone.
Public notification: The DA was lodged with the respondent on 10 October 2020.
The DA was notified between 21 October 2020 and 12 November 2020. Thirty-nine (39) submissions were received in response to the notification.
Following amendments and provision of additional information, the DA was re-notified by the respondent from 17 June 2021 to 1 July 2021 and 2 submissions were received.
On 29 March 2022 the Court granted leave to rely upon amended plans and material (amended application).
The amended application was notified between 9 March 2022 and 1 April 2022. Ten (10) submissions were received in response to the notification.
On 4 April 2022, the applicant lodged a copy of the amended application on the NSW Planning Portal.
The parties are satisfied that the amended DA and the conditions of consent address the submissions made in respect of the proposal and it is considered to be in the public interest.
State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards): The proposed development has been assessed in accordance with the relevant hazardous and offensive development regulations and it has been determined that the proposal is deemed “not potentially hazardous”. Accordingly, Ch 3 of the SEPP Resilience and Hazards is not enlivened by the amended DA.
Clause 4.6 of the SEPP Resilience and Hazards requires that a consent authority must not grant consent to any development on land unless it has considered whether a site is contaminated land or potentially contaminated land, and if it is, that it is satisfied that the land is suitable (or will be after undergoing remediation) for the proposed use.
The stage 2 site contamination investigation prepared by Sullivan Environmental Services dated 8 March 2020 and filed with the subject class 1 application deals with the matters listed in cl 4.6 and confirms that the Site is suitable for the proposed development and use as commercial/industrial land. The stage 2 site contamination report recommends that certain measures be taken in relation to the removal of asbestos which have been incorporated into the conditions of consent (condition 24, 42 and 45).
State Environmental Planning Policy (Building Sustainability Index BASIX) 2004: The proposed development is not a BASIX affecting building.
State Environment Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation): A small portion of the site is mapped as a koala development application area and site Investigation area for koala plan of management.
The respondent has considered the matters set out in Ch 3 and 4 of the SEPP Biodiversity and Conservation.
As the site is located in an urbanised area with sparse and typically isolated trees located throughout the area, the respondent is satisfied that the proposal will have no impact on any nearby koala habitat.
State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure): The proposed development is defined as ‘Service stations without heavy vehicle refuelling or maintenance services’ and ‘Take away food and drink premises with drive-through facilities’ with access to a road (generally) under Sch 3 of the SEPP Industry and Infrastructure and as a result the applicable threshold is 200 vehicles per hour.
Pursuant to the traffic and parking assessment prepared by Varga Traffic Planning dated 22 September 2020, the traffic generation projected for the development is 160 vehicle trips per hour (vtph). As a result, the proposal does not exceed the 200vtph threshold and therefore referral to TfNSW is not required pursuant to cl 2.121 of the SEPP Industry and Infrastructure.
State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry and Employment): Pursuant to cl 3.11 of the SEPP Industry and Employment, a consent authority must not grant consent to an application to display an advertisement, unless the advertisement is consistent with the objectives of Ch 3 of the SEPP. Ithas been assessed in accordance with Ch 3, is acceptable in terms of its impacts and satisfies any other relevant requirements of Ch 3.
Assessment in accordance with Ch 3 relates to consideration such as character of the area, amenity of residential areas, views and vistas, streetscape, setting and landscape, site and building compatibility, illumination, and safety.
The respondent has considered the proposed signage and is satisfied that it is consistent with cl 3.11 of the SEPP Industry and Employment, as the proposed signage areas have been located and designed adopting a minimal approach to limit potential illumination impacts and will not adversely cause or create detrimental impact to the vehicles travelling along adjacent roads.
The EPA Act: All of the matters contained in s 4.15 of the EPA Act that are of relevance to the proposed development have been taken into consideration, and the amended DA is acceptable to the respondent subject to conditions.
Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019 (PEO Regulation 2019): As the proposed development will include an underground petroleum storage system, Pt 2 and Pt 4 of the PEO Regulation 2019 is relevant to the assessment of the DA.
Pursuant to Pt 2 and Pt 4 of the PEO Regulation 2019, the proposed development will comply with the relevant installation, use and report keeping. This is reflected in condition 11, 47 and 60 of the conditions of consent.
Protection of the Environment Operations (Clean Air) Regulation 2010 (PEO Regulation 2010): The proposed development will comply with the necessary requirements prescribed under Div 5 – petrol service stations, Subdiv 3 - stage 2 vapour recovery of the PEO Regulation 2010, as stage 2 vapour recovery is proposed to be installed at the site (see also Condition 79).
LMLEP: Development for the purpose of a service station and food and drink premises is permitted with consent in the B2 Local Centre zone pursuant to LMLEP and is consistent with the objectives of that zone.
The site is subject to a maximum height of buildings control of 10 m pursuant to cl.4.3 of the LMLEP. The amended DA complies with this control.
The site is not subject to a floor space ratio (FSR) development standard pursuant to cl.4.4 of the LMLEP.
The site is not identified as being located within a heritage conservation area and is not heritage listed. Accordingly, cl 5.10 of the LMLEP is not enlivened.
The site is not identified as being within an acid sulphate soil area. Accordingly, cl 7.1 of the LMLEP is not enlivened.
The proposed earthworks have been designed to minimise detrimental impacts on existing drainage or soil stability and will facilitate the proposed development on the Site. The respondent is satisfied of the matters listed in cl 7.2 of the LMLEP.
Pursuant to cl 7.9 of the LMLEP, consent must not be granted to development for the purpose of a service station unless:

the gross floor area of the building (excluding parking, refuelling areas, vehicle access areas and any ancillary car wash areas) comprises no more than 30% of the site area, and

any floor area used for the ancillary retail selling of general merchandise comprises no more than 50% of the gross floor area of the building.

The site has a total area of 2,529.2 m², and the service station component of the proposed development is limited to a maximum of 758.72 m². The proposed 212.5 m² is therefore compliant with cl 7.9 of the LMLEP. The retail floor area of the service station has been measured at 103.56 m², which is compliant with the 50% limitation.
Lake Macquarie Development Control Plan 2014 (LMDCP): The provisions of the LMDCP that are of relevance have been taken into account in assessing the amended DA.
The parties agree that the amended plans demonstrate a satisfactory built form outcome when measured against the applicable zoning objectives and LMDCP.
Conditions of consent: The parties have agreed on conditions of consent. The parties agree that the conditions of consent are appropriate.
Disposal of proceedings in accordance with the parties’ decision: 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.
The Court orders:

The appeal is upheld.

Development application no. DA/1593/2020 for the demolition of existing buildings and structures and the construction and use of a service station and food and drink premises with associated landscaping and ancillary works at 10-14 Wilsons Road, Mount Hutton is determined by granting consent to the application subject to the conditions in Annexure A.

……………………….

C McEwen

Acting Commissioner of the Court

Annexure A (303176, pdf)

**********

Decision last updated: 16 May 2022

Medium Neutral Citation:	Reynolds Property NCLE Pty Ltd v Lake Macquarie City Council [2022] NSWLEC 1254
Hearing dates:	Conciliation conference on 26 April 2022
Date of orders:	16 May 2022
Decision date:	16 May 2022
Jurisdiction:	Class 1
Before:	McEwen AC
Decision:	The Court orders: (1) The appeal is upheld. 2) Development application no. DA/1593/2020 for the demolition of existing buildings and structures and the construction and use of a service station and food and drink premises with associated landscaping and ancillary works at 10-14 Wilsons Road, Mount Hutton is determined by granting consent to the application subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – demolition of existing buildings, and the construction and use of a service station and food and drink premises with associated landscaping and ancillary works - conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 49 Lake Macquarie Environmental Plan 2014 cll 4.3, 4.4, 5.10, 7.1, 7.2, 7.9 Land and Environment Court Act 1979, s 34 Protection of the Environment Operations (Clean Air) Regulation 2010 Div 5, Subdiv 3 Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019, Pt 2, Pt 4 State Environmental Planning Policy (BASIX) 2004 State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 3, 4 State Environmental Planning Policy (Industry and Employment) 2021 Ch 3, cl 3.11 State Environmental Planning Policy (Resilience and Hazards) 2021 Ch 3, cl 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021 Sch 3, cl 2.121
Texts Cited:	Lake Macquarie Development Control Plan 2014
Category:	Principal judgment
Parties:	Reynolds Property NCLE Pty Ltd (Applicant) Lake Macquarie City Council (Respondent)
Representation:	Counsel: R. White (Applicant) M. Smith (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Lake Macquarie City Council (Respondent)
File Number(s):	2021/252568
Publication restriction:	No