SHA Operations Pty Ltd v Sutherland Shire Council

[2024] NSWLEC 1082

Land and Environment Court

New South Wales

Medium Neutral Citation:

SHA Operations Pty Ltd v Sutherland Shire Council [2024] NSWLEC 1082

Hearing dates:

Conciliation conference on 24 January, 12 February and 16 February 2024

Date of orders:

28 February 2024

Decision date:

28 February 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The Applicant is to pay the Respondents costs thrown away as a result of the amendments to the development application in the agreed amount of $7,000, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The cl 4.6 Request relating to Floor Space Ratio forming Annexure C to the Statement of Environmental Effects prepared by Planning Ingenuity and dated 30 May 2023 is upheld.

(3) The appeal is upheld.

(4) Development consent is granted to Development Application DA23/0382 for alteration of the existing office building at the front of the site, demolition of the existing warehouse building and construction of 2 new buildings comprising a self-storage unit development at 130-140 Parraweena Road, Miranda.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – storage facility – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, 4.16, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 38

State Environmental Planning Policy (Industry and Employment) 2021 Ch 3, ss 3.6, 3.11

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Ch 4

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 4.6, 5.21, 6.1, 6.2, 6.14, 6.15, 6.16

Category:

Principal judgment

Parties:

SHA Operations Pty Ltd (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
J Palmer (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Pikes and Verekers Lawyers (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2023/273866

Publication restriction:

No

Judgment

1. COMMISSIONER: These Class 1 proceedings arise from the deemed refusal, by Sutherland Shire Council, of Development Application DA 23/0382 for alterations and additions to an existing office building, demolition of a warehouse building, and the construction of 2 new buildings comprising a 24-hour self-storage facility at Lot 2 DP 715461 known as 130-140 Parraweena Road, Miranda.

2. These proceedings have been brought to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act1979 (EPA Act).

3. 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 on 24 January 2024, and subsequently on the 12 and 16 February 2024. I presided over the conciliation conference.

4. After 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.

5. In the course of this conciliation, the parties have agreed to amendments to the application in order to resolve the issues in dispute. These amendments include:

1. Landscape revisions to ensure compliance with the landscaped area control,

2. Amended glazing design,

3. Additional detail regarding plant and ventilation,

4. Amended building height,

5. Revised details of fire services,

6. Detail of slab construction in relation to flooding and water flow/storage,

7. Revised stormwater detail.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one 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. 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 and explained how they have been satisfied. From this I note the following points.

7. The development application has been made with the written consent of the owner of the land, Trust Company (Australia) Limited as Trustee for the StorHub New South Wales Trust 1.

8. The development application was notified for 14 days, in accordance with Sutherland Shire Community Engagement Strategy. No submissions were received.

9. The proposed development is characterised as storage premises. Pursuant to the Sutherland Shire Local Environmental Plan 2015 (SSLEP), the site is zoned E4 General Industrial. In relation to this zone, the zoning table identifies that any development not expressly prohibited or permitted without consent is permissible with consent. Subsequently, development for the purposes of storage premises is permitted with consent in the E4 General Industrial zone.

10. The proposed development has a maximum height of 15.75m, which complies with the 16m height control pursuant to SSLEP cl 4.3.

11. SSLEP cl 4.4 establishes a maximum floor space ratio (FSR) of 1.5:1, which is exceeded by the proposed development which has a FSR of 1.57:1. Pursuant to SSLEP cl 4.6, the applicant must submit a written request to justify the contravention of this development standard. This written request must demonstrate that compliance with the FSR development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. To that end, the Applicants have submitted a written request prepared by Planning Ingenuity as Annexure C to the Statement of Environmental Effects, dated 30 May 2023 (the written request). Pursuant to SSLEP cl 4.6, I am satisfied that:

1. The written request demonstrates that compliance with the FSR development standard is unreasonable and unnecessary because the proposal complies with the relevant objectives of both the zone and the development standard, notwithstanding the non-compliance with the standard. Further, the non-compliance does not result in any adverse impacts on the amenity of adjoining properties.

2. The written request establishes sufficient environmental planning grounds to justify contravening the development standard by demonstrating that the breach of the FSR standard:

1. Does not adversely change the character of the development in terms of streetscape or external building dimensions and proportions: both the scale and form of the development when viewed form the street reflects that anticipated by the planning controls, and the building height and setbacks are consistent with surrounding development.

2. Will not be readily perceptible from the public domain or surrounding properties.

3. Will not result in a development that has an adverse impact on the future or current amenity of surrounding properties in qualitative terms.

3. The contravention is therefore justified by the lack of impact on the amenity of neighbouring sites, and the appropriate response to the envisaged character and constraints of the site, as well as the streetscape and surrounding context.

4. The written request further demonstrates that the proposal is in the public interest as it is consistent with the relevant objectives of both the zone and the development standard.

12. Based on the submission of the parties and the information contained in the flood report prepared by JN Engineering, I accept that the proposed development will not result in any net change to flood behaviour, and that conditions of consent have been agreed that regulate the construction of the building to ensure it is flood safe. Accordingly, I am satisfied that the requirements of SSLEP cl 5.21 have been met.

13. The site is mapped as Class 3 Acid Sulfate Soils and accordingly, an Acid Sulfate Soils Management Plan has been submitted with the development application (Annexure 4 to the Remediation Action Plan prepared by Edison Environmental & Engineering Pty Ltd dated 21 April 2023). From this and the parties’ submissions I accept that the requirements of SSLEP cl 6.1 have been met.

14. Pursuant to the requirements of SSLEP cl 6.2, based on the parties’ submissions and the relevant conditions of consent, I accept that the matters listed in cl 6.2(3) have been considered in the assessment of this development application.

15. Pursuant to SSLEP cl 6.14, the proposed development meets the minimum landscaped area control of 10%.

16. The parties submit, and I accept, that the matters pertaining to energy and resource efficiency that are identified in SSLEP cl 6.15 have been considered and adequately addressed in the preparation and amendment of this development application.

17. SSLEP cl 6.16 identifies a number of urban design matters that must be considered in the assessment of this development application. Based on the parties’ submission and the subject of the discussions in this conciliation I am satisfied that these matters have been adequately considered.

18. Section 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 requires the consent authority to consider whether the land is contaminated and if so, whether it will be suitable, after remediation, for the intended purpose. Based on the information contained within the detailed Preliminary Site Investigation Report, Additional Site Investigation Report and Remediation Action Plan, and the agreed conditions of consent, I am satisfied that, pursuant to the requirements of s 4.6, the site will be suitable for its intended purpose following remediation.

19. Chapter 3 of the State Environmental Planning Policy (Industry and Employment) 2021 applies to the proposed development in relation to advertising and signage. Based on the parties’ submission and the information contained in the Statement of Environmental Effects, I am satisfied that the proposed development is consistent with the objectives of Ch 3 and that cll 3.6 and 3.11 are satisfied.

20. For these reasons, 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.

21. 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.

22. The Court notes:

1. That Sutherland Shire Council, as the relevant consent authority, has approved the amendment of the Development Application under s 38(1) of the Environmental Planning and Assessment Regulation 2021 to amend Development Application No DA23/0382 to rely on the following amended plans and documents:

1. the amended plans and materials as listed in Condition 1 of Annexure A;

2. CPTED Response prepared by Planning Ingenuity and dated 16 November 2023;

3. Arboricultural Impact Assessment Report prepared by Footprint Green and dated 18 October 2023;

4. Draft Response to Contentions 2 and 3 prepared by Edison Environmental Engineering dated 6 November 2023;

5. Wet Fire Assessment Report prepared by JN Engineering and dated 13 November 2023.

23. The Court orders:

1. The Applicant is to pay the Respondents costs thrown away as a result of the amendments to the development application in the agreed amount of $7,000, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The cl 4.6 Request relating to Floor Space Ratio forming Annexure C to the Statement of Environmental Effects prepared by Planning Ingenuity and dated 30 May 2023 is upheld.

3. The appeal is upheld.

4. Development consent is granted to Development Application DA23/0382 for alteration of the existing office building at the front of the site, demolition of the existing warehouse building and construction of 2 new buildings comprising a self-storage unit development at 130-140 Parraweena Road, Miranda.

E Washington

Acting Commissioner of the Court

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Annexure A

Decision last updated: 28 February 2024