Scapefall Pty Limited v Queanbeyan-Palerang Regional Council

[2023] NSWLEC 1434

Land and Environment Court

New South Wales

Medium Neutral Citation:

Scapefall Pty Limited v Queanbeyan-Palerang Regional Council [2023] NSWLEC 1434

Hearing dates:

Conciliation conference on 18 July 2023

Date of orders:

14 August 2023

Decision date:

14 August 2023

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Development consent is granted to Development Application DA.2022.1182 for alterations and additions to the existing commercial/retail business on the land described as Lot 1 DP 995410, Lots 1 and 2 DP 596527 and Lot 2 DP 1208847, known as 121 Wallace Street, Braidwood subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – alterations and additions to existing commercial/retail development – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10, 8.15
Environmental Planning and Assessment Regulation 2021, s 23
Land and Environment Court Act 1979, s 34
Palerang Local Environmental Plan 2014, cll 2.3, 6.4, 6.11
Queanbeyan-Palerang Local Environmental Plan 2022, cl 1.8A
State Environmental Planning Policy (Industry and Employment) 2021, s 3.8

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

Category:

Principal judgment

Parties:

Scapefall Pty Limited (Applicant)
Queanbeyan-Palerang Regional Council (Respondent)

Representation:

Counsel:
S Berveling (Applicant)
M Harker (Respondent)

Solicitors:
Chamberlains Law Firm (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2022/156924

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (Council reference DA.2022.1182) (DA) for alterations and additions to an existing commercial/retail development situated on the land described as Lot 1 DP 995410, Lots 1 and 2 DP 596527 and Lot 2 DP 1208847, known as 121 Wallace Street, Braidwood (Site). Wallace Street is the main street in Braidwood and the Site is located on the corner of Wallace and Duncan Streets.

2. The existing commercial/retail development on the Site consists of the sale of rural supplies. That use is proposed to continue.

3. The DA proposes development (Proposed Development) which includes:

1. Demolition of some existing structures;

2. Construction of a storage shed;

3. The erection of an awning to the rear of an existing shed to be used as an area for storage of chemicals and hazardous materials;

4. Installation of 9 storage racks;

5. Construction of a new concrete driveway, and associated pedestrian ramps; and

6. The removal of signs, and installation of new signs, on the Duncan Street frontage.

4. The DA was made to the Council on 11 April 2022 and was publicly notified between 16 May and 22 June 2022. Fifteen submissions were received by the Council.

5. The DA was refused by the Council on 10 August 2022. The Applicant appeals from that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court’s jurisdiction.

6. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.

7. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 September 2022. The parties were unable to reach agreement as to the terms of a decision in the proceedings that would be acceptable to them and the conciliation conference was terminated on that day.

8. The DA has been amended on several occasions since the appeal was filed.

9. On 12 December 2022, the Court granted the Applicant leave to rely on amended plans and documents and the amended DA was publicly notified by the Council between 12 and 30 January 2023. The Council received 19 submissions on the amended DA.

10. On 27 March 2023, the Court granted further leave to the Applicant to rely on further amended plans and documents.

11. The appeal was listed for hearing on 17 and 18 July 2023. The hearing commenced on site on 17 July 2023 and oral evidence was given by three of the local residents, Mr Clinton Yensch, Mr Steve Kidd and Mr Jacob Mazurkiewicz. At the commencement of the hearing on 17 July 2023, the Council agreed to the Applicant further amending the DA and the Court granted leave to the Applicant to rely on a further set of amended plans and documents. At that time the Court also made an order in accordance with s 8.15 of the EPA Act that the Applicant pay the Council’s costs thrown away by that amendment to be agreed or assessed.

12. After the hearing had commenced, the parties informed the Court that the matters in dispute between them had been resolved and, at the request of the parties, the appeal was listed for a further conciliation conference under s 34 of the LEC Act. That conciliation conference took place on 18 July 2023. At that conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to them. This decision involves the Court upholding the appeal and granting development consent to the development application subject to conditions.

13. The final signed agreement was lodged with the Court on 18 July 2023 and is supported by a Jurisdictional Statement prepared by the parties. 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 am satisfied of this for the reasons that follow.

15. The appeal was brought pursuant to s 8.7, and was made within the time required by s 8.10, of the EPA Act.

16. The Applicant made the DA with the consent of the owners of the Site in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021.

17. Although it has now been repealed by the Queanbeyan-Palerang Regional Local Environmental Plan 2022 (New LEP), the Palerang Local Environmental Plan 2014 (PLEP) continues to apply to the DA. A savings provision contained in cl 1.8A of the New LEP provides that, if a development application had been made before the commencement of the New LEP and the application had not been finally determined before that commencement, the application must be determined as if the New LEP had not commenced. The DA was lodged on 11 April 2022, before the New LEP commenced on 14 November 2022.

18. Under the PLEP, the Site is located partly within Zone B2 Local Centre, partly within Zone B4 Mixed Use and partly within Zone R2 Low Density Residential.

19. Development for the purposes of commercial premises is permitted with development consent on land within Zone B2 Local Centre and Zone B4 Mixed Use. For the reasons set out in paragraph 8 of the Jurisdictional Statement, I am also satisfied that the Site enjoys existing use rights in relation to the part of the Site that is located within Zone R2 Low Density Residential.

20. Clause 2.3(2) of the PLEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. In determining the DA, I have had regard to the objectives of the three zones in which the Site is situated.

21. I am also satisfied that the proposed signs on the Duncan Street frontage of the Site are “business identification signs” within the meaning of State Environmental Planning Policy (Industry and Employment) 2021 (SEPP) and are therefore not prohibited by s 3.8 of the SEPP despite the Site being located on land that is within a heritage area. In this regard I accept the parties’ reasoning set out in paragraphs 9 to 19 of the Jurisdictional Statement.

22. The Site is mapped under the PLEP as being within a “drinking water catchment” and cl 6.4 of the PLEP therefore applies to the DA. Clause 6.4(4) of the PLEP provides that development consent must not be granted unless the consent authority is satisfied that:

(1) The development is designed, sited, and will be managed to avoid any significant adverse impact on water quality and flows; or

(2) If that impact cannot reasonably be avoided, the development is designed, sited, and will be managed to minimise that impact; or

(3) If that impact cannot be minimised, the development will be managed to mitigate that impact.

23. The DA is supported by a Concept Stormwater Management Report prepared by Martens Consulting Engineers (Stormwater Report) which indicates that MUSIC modelling carried out by the Applicant demonstrates that the introduction of the proposed water quality controls will reduce pollutant loads post-development to at least 10% below pre‑development loads.

24. Further, the parties agree, and I accept, that the development will be managed to avoid any unavoidable impact on water quality and flows from chemicals and hazardous materials. Chemicals and hazardous materials are proposed to be stored within a bunded area. That bunded area extends from the existing storage shed in the south-east of the Site, to the area of the restrictive covenant. All deliveries and collections of chemicals and hazardous materials are to occur within the bunded area.

25. In those circumstances, I am satisfied that the Proposed Development avoids any adverse impact on water quality, by preventing the entry of chemicals from spills into the stormwater system (which then feeds into the catchment).

26. Clause 6.11 of the PLEP provides that development consent must not be granted to development unless the consent authority is satisfied that any of the services referred to in that clause that are essential for the development are available or that adequate arrangements have been made to make them available when required.

27. The Site is located within the existing Braidwood town centre and I am satisfied that water, electricity, and sewage management services are all available to the Site.

28. Stormwater drainage and on-site conservation is addressed in the Stormwater Report, which concludes that not only will there be a reduction in pollutant loads as the result of the Proposed Development, but also that the provision of on-site detention will slightly reduce post-development peak discharge.

29. Suitable vehicular access to the Site has been addressed with the provision of swept paths that demonstrate that larger vehicles using the Site can manoeuvre effectively.

30. The State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) precludes the granting of development consent unless the consent authority has considered whether the Site is contaminated. Section 4.6(2) of the Hazards SEPP requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned if (a) the proposed development would involve a change of use and (b) the land concerned is included in the land set out in s 4.6(4). The Proposed Development does not involve a change of use and the Site has been used for commercial purposes for many years. I am satisfied that a preliminary site investigation is therefore not required and that the Site is suitable for its proposed continued use for commercial purposes.

31. Section 4.15(1)(d) of the EPA Act requires the consent authority to take into consideration any submissions made in accordance with the Act or the regulations. In addition to the written submissions referred to in paragraphs [4] and [9] above, and as noted in paragraph [11] above, oral evidence was given to the Court by some of the submitters on 17 July 2023 which elaborated on their written submissions. I have had regard to the matters raised in these submissions, where relevant, but remain satisfied that the terms of the decision the subject of the parties’ agreement is a decision that the Court could have made in the proper exercise of its functions, that being the test imposed by s 34(3) of the LEC Act.

Conclusion

32. Given my conclusion that the terms of the decision agreed between the parties 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.

33. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. 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 s 4.15 of the EPA Act.

34. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to Development Application DA.2022.1182 for alterations and additions to the existing commercial/retail business on the land described as Lot 1 DP 995410, Lots 1 and 2 DP 596527 and Lot 2 DP 1208847, known as 121 Wallace Street, Braidwood subject to the conditions in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure A (335197, pdf)

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Decision last updated: 14 August 2023