Salsands (NSW) Pty Ltd v Port Stephens Council

[2020] NSWLEC 1263

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Salsands (NSW) Pty Ltd v Port Stephens Council [2020] NSWLEC 1263
Hearing dates:	Conciliation conferences on 31 March, 9 April, 23 April, 1 May and 15 May 2020
Date of orders:	22 June 2020, and amended on 19 November 2020
Decision date:	22 June 2020
Jurisdiction:	Class 1
Before:	Gray C
Decision:	The Court orders that: (1) The applicant is granted leave to file and rely on an amended application for development consent to include an offer to enter into a voluntary planning agreement, as referred to in s 7.4 EPA Act, in the form/terms in Annexure A. (2) The appeal is upheld. (3) Development Application number 16-2018-660-1 for a staged development of a business park consisting of office premises, warehouse, cafe, signage, strata subdivision retaining wall and associated site works at Lot 16 DP 1010867 known as 15 Kara Crescent Taylors Beach, and subdivision of Lot 16 into 2 lots, is approved subject to the conditions in Annexure B. (4) Each party is to bear its own costs of these proceedings. The Court notes the respondent’s acknowledgement that there have been no costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent, being costs as referred to in s 8.15(3) of the EPA Act.
Catchwords:	APPEAL – grant of deferred commencement consent – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 Port Stephens Local Environmental Plan 2013 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy No 55 – Remediation of Land
Cases Cited:	Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355; [2006] NSWLEC 733 Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9
Texts Cited:	NSW Rural Fire Service, Planning for Bush Fire Protection
Category:	Principal judgment
Parties:	Salsands (NSW) Pty Ltd (Applicant) Port Stephens Council (Respondent)
Representation:	Counsel: M Fraser (Applicant) M Hall SC (Respondent)   Solicitors: Laycock Burke Castaldi Lawyers (Applicant) Local Government Legal (Respondent)
File Number(s):	2019/403404
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal by Salsands (NSW) Pty Ltd against the determination of Port Stephens Council (“the Council”) to grant a deferred commencement consent for the staged development for a business park at 15 Kara Crescent, Taylors Beach, including office premises, a warehouse, café, signage, community title and strata title subdivision, and associated site and structural works. The deferred commencement condition was imposed in Part A of the conditions of development consent, and required the provision of documentary evidence of the granting of a drainage easement over downstream properties to convey the 1% Annual Exceedance Probability (“AEP”) stormwater to Council's public drainage system in accordance with Council's Infrastructure Specification. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

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 was held by telephone on 31 March, 9 April, 23 April and 15 May 2020. I presided over the conciliation conference.

3. Following 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 was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The amendments to the development application include the subdivision of the site (“Lot 16”) into two lots, with proposed Lot 2 to be dedicated as a drainage reserve and Lot 1 remaining as the development lot. The amended development application also incorporates an offer to enter into a Voluntary Planning Agreement (“VPA”) for the dedication to the Council of:

• Part of Lot 16 in the north-east corner for a cul-de-sac turning head area at the end of Kara Crescent without compensation,

• A drainage reserve over the area of the rain garden (Lot 2) without compensation, with a covenant requiring maintenance by the owner of Lot 1,

• An easement in gross over the stormwater infrastructure to be constructed on Lot 16 to convey stormwater emanating from the pipe at the end of Kara Crescent currently discharging into the open drain on Lot 16 through Lot 16.

4. The grant of development consent, as agreed, would require the development to be carried out in accordance with the Staging Plan (Plan Ref. 18086C Revision 7, C07, dated 13/05/2020 prepared by GCA), which includes:

• Stage 1A, which comprises signage, twin 750mm pipes including infrastructure to drain from Kara Crescent to Lot 111 (excluding the rain garden within proposed Lot 2 (the drainage reserve) to be dedicated in Stage 1B).

• Stage 1B, which comprises subdivision and the construction of Warehouse A, Warehouse B, Office A, Office B, and the rain garden within proposed Lot 2 (the drainage reserve).

• Stage 2, which comprises the construction of the café and Office Space B: Units 1 to 23, meeting rooms and associated civil works.

• Stage 3, which comprises the construction of warehouse C and associated civil works and public road works including the Kara Crescent cul-de-sac.

5. The conditions of consent that are agreed upon require that, prior to the issue of an Occupation Certificate, the plan of subdivision be registered, which includes the dedication of land consistent with the offer to enter into the VPA, the creation of the public positive covenant for the maintenance of the rain garden, the creation of a right of access for Lot 1 over Lot 2 for the purpose of maintenance, the granting of an easement to drain water 3m wide over the pipes to be constructed from Kara Crescent to the adjacent property at Lot 111, and a notation that existing easements (A) and (B) on the plan of subdivision are easements pre-existing the making of the development application which must be recorded on the new deposited plan. The conditions of consent that are agreed upon also require Salsands to enter into the VPA in the terms of the offer.

6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction for the following reasons:

• The development is for the purposes of office premises, food and drink premises, and warehouses, which are all uses that are permissible with consent in the B5 Business Development zone in which the site is located, pursuant to the Port Stephens Local Environmental Plan 2013 (“PSLEP 2013”).

• The development does not breach any development standards in the PSLEP 2013 or any other applicable environmental planning instrument.

• The subject site is in a bushfire prone area. On the basis of the Bushfire Hazard Assessment Report prepared by Perception Planning, the parties agree, and I am satisfied, that the proposed development has appropriately mitigated the fire risk to the property and is satisfactory in accordance with the specifications and requirements of the document entitled Planning for Bush Fire Protection prepared by the NSW Rural Fire Service, consistent with the requirement of s 4.14(1)(a) of the EPA Act.

• Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. Given that the site has been prepared for industrial use, with a previous consent issued for subdivision of the site for the purposes of industrial development, and there have been no prior uses of the site, the site is considered suitable for the proposed development and no further investigation is warranted.

• There is a wetland listed under State Environmental Planning Policy (Coastal Management) 2018 (“SEPP CM”) within 100m of the site. Consistent with the matters that the consent authority must consider in cl 13 of the SEPP CM, and based on the stormwater report and plan, the surface water drainage is directed to the north and the proposed development is not expected to impact on sensitive coastal wetland. It is therefore considered that the proposal will not impact on the coastline or any foreshore or the interface with the waterways and related activities.

• A VPA provides a lawful manner in which interests in land can be dedicated to Council (see Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council (2006) 153 LGERA 355; [2006] NSWLEC 733 at [42]-[46]) and I am satisfied that the proposed VPA meets the requirements of s 7.4 of the EPA Act, including that it provides for the dedication of land and the provision of a material public benefit, to be used for a public purpose.

• In exercising the functions of the consent authority, the Court has the power to impose the conditions of consent, pursuant to ss 4.16(1) and 4.17 of the EPA Act. Pursuant to s 7.7(3), this power extends to the imposition of the condition of consent that requires the developer to enter into the VPA in the terms of the offer made by the developer.

• The requirement, pursuant to s 7.5 of the EPA Act and cl 25D of the Environmental Planning and Assessment Regulation 2000, to notify the proposed VPA can be met following the grant of consent and prior to entry into the VPA (see Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 at [270]-[272]).

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

9. The Court orders that:

1. The applicant is granted leave to file and rely on an amended application for development consent to include an offer to enter into a voluntary planning agreement, as referred to in s 7.4 EPA Act, in the form/terms in Annexure A.

2. The appeal is upheld.

3. Development Application number 16-2018-660-1 for a staged development of a business park consisting of office premises, warehouse, cafe, signage, strata subdivision retaining wall and associated site works at Lot 16 DP 1010867 known as 15 Kara Crescent Taylors Beach, and subdivision of Lot 16 into 2 lots, is approved subject to the conditions in Annexure B.

4. Each party is to bear its own costs of these proceedings.

The Court notes the respondent’s acknowledgement that there have been no costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent, being costs as referred to in s 8.15(3) of the EPA Act.

……………………….

J Gray

Commissioner of the Court

Annexure A (971800, pdf)

Annexure B (220740, pdf)

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Amendments

19 November 2020 - Annexure A substituted with the corrected attachment to the offer to enter into a voluntary planning agreement, in accordance with an order made on 19 November 2020 pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005.

Decision last updated: 19 November 2020