Silvestro v Bayside Council

[2023] NSWLEC 1561

Land and Environment Court

New South Wales

Medium Neutral Citation:

Silvestro v Bayside Council [2023] NSWLEC 1561

Hearing dates:

Conciliation conference on 15 June 2023; 3 July 2023; agreement filed on 24 August 2023

Date of orders:

25 September 2023

Decision date:

25 September 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is to pay the respondent’s costs thrown away in the agreed amount of $8,000.00 pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 within 21 days of this order being made.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application DA2022/7 lodged on 11 January 2022, as amended, for the use of the site as a holding yard for the storage of damaged vehicles operating 7.00am - 10.00pm from Monday to Saturday and 8.00am - 10.00pm on Sunday and Public Holidays and associated works on the land at 2 Erith Street, Botany NSW (Lot C DP 341241), subject to the conditions of consent at Annexure A.

Catchwords:

APPEAL – development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Bayside Local Environmental Plan 2021, cll 2.3, 4.3, 4.4, 5.21, 6.1, 6.3, 6.8

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.15(3)

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act 1979, s 34

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

Texts Cited:

Botany Bay Development Control Plan 2013

Category:

Principal judgment

Parties:

James Silvestro (Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
S Kondilios (Solicitor) (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Hall & Wilcox Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2023/82986

Publication restriction:

Nil

Judgment

1. These proceedings arise following the refusal of development application DA2022/7 (DA) by Bayside Council (Council) for the use of land known as 2 Erith Street, Botany NSW (legally described as Lot C in DP 341241) as a holding yard for the storage of damaged vehicles and operating 7:00am-10:00pm from Monday to Saturday and 8:00am-10:00pm on Sunday and Public Holidays.

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 on 15 June 2023. I presided over the conciliation conference.

3. During 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 DA 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. The parties’ decision involves the Court exercising the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the DA.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised.

6. After a consideration of the evidence filed with the s34 agreement I accept the parties’ joint written submission that the proposed development satisfies all jurisdictional preconditions for the following reasons.

Landowner’s consent

7. The landowner of the site on which the development is proposed provided their consent to the DA when it was lodged.

Bayside Local Environmental Plan 2021 (LEP)

8. The site is zoned E3 Productivity Support pursuant to cl 2.3 of the LEP.

9. The proposed development is defined as a holding yard for the storage of damaged vehicles. The proposed development is an innominate permissible use according to Item 3 in the Land Use Table for the E3 zone.

10. Clause 4.3 of the LEP – Height of Buildings and the Height of Buildings Map provides a maximum height control for the subject site of 12m. The proposal does not exceed maximum height control.

11. Clause 4.4 of the LEP – Floor Space Ratio (FSR), contains the maximum floor space controls. The Floor Space Ratio Map identifies a maximum FSR of 1.5:1 for the site. The proposal does not exceed the maximum FSR control.

12. Clause 5.21 of the LEP – Flood Planning, applies to the proposal as the site is within a Flood Planning Area. The parties submit and I accept that:

1. the matters in cl 5.21(2) of the LEP have been satisfied on the basis of the Flood Risk Assessment, the amendments to the design of the front and rear fencing to provide for a “flow through” design facilitating the passage of overland flow across the site and the conditions of consent, including conditions 13, 14, 15, 16, 52 and 53 requiring, respectively:

1. the certification of the flood resistance of the proposal and other related requirements prior to the issue of a construction certificate;

2. the provision of the “flow through” fencing”;

3. the submission of a detailed flood risk management plan prior to the issue of a construction certificate;

4. the submission of evidence that the materials that materials that may be damaged by flood waters (excepting the vehicles) are to be stored or able to be stored at or above 500mm above the 1% AEP flood level prior to the issue of a construction certificate;

5. the erection of signage warning of the flood affectation of the site prior to the issue of an occupation certificate; and

6. the implementation of the detailed flood risk management plan.

2. the matters in cl 5.21(3) have been satisfied on the basis of the plans and documents submitted with the DA as originally lodged and as subsequently amended and the agreed conditions.

13. Clause 6.1 of the LEP - Acid sulfate soils, is relevant to the proposal as the land is mapped as being affected by Class 2 acid sulfate soils on the Acid Sulfate Soils Map. Development consent is not required pursuant to this clause as the proposal does not involve any works below natural ground level and/or works likely to lower the watertable.

14. Clause 6.3 of the LEP - Stormwater and water sensitive urban design applies to the proposal. The parties submit and I accept that the matters listed in cl 6.3(2), and particularly that the stormwater system includes all reasonable management actions to avoid impacts on the site, adjoining properties, native bushland, waterways, receiving waters and groundwater systems, on the basis of the amended plans, which provide for stormwater runoff to be directed through a filtration system prior to discharge from the site and “flow through” fencing to address the flood affectation of the land.

15. Clause 6.8 of the LEP - Development in areas subject to aircraft noise, applies as the site as it is situated within the vicinity of Sydney (Kingsford-Smith) Airport and its flight paths and within the 30-35 ANEF contour. In relation to the matters in cl 6.8(3), I accept that the proposal does not result in an increase in the number of dwellings or people affected by aircraft noise (cl 6.8(3)(a)) and cl 6.8(3)(b) and (c) are not relevant to the proposal.

Botany Bay Development Control Plan 2013 (DCP)

16. The provisions of the DCP are a mandatory consideration under s 4.15(1)(a)(iii) of the EPA Act and have been considered by the Council in its assessment of the DA. Furthermore, I note that the DA was notified by the Council pursuant to the EPA Act between 21 January 2022 to 7 February 2022. Four (4) individual submissions were made to the Council in response to the notification period and have been taken into account in the Council’s assessment of the application.

17. As the parties’ decision is within power as required by s 34(3) of the LEC Act, I now dispose of the proceedings in accordance with their decision.

18. 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 DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

19. The Court notes:

1. That Bayside Council, as the relevant consent authority, has agreed under cl 55 of the Environmental Planning and Assessment Regulation 2000 to the applicant amending Development Application No DA2022/7 in accordance with the documents listed below:

Approved Plans
Plan	Author	Dated
Site Analysis Plan, Project 2151, DA101, Issue D3	VOARC	16 August 2023
Site Plan, Project 2151, DA102, Issue D3	VOARC	16 August 2023
Landscape Plan, Project 2151, DA120, Issue D3	VORAC	21 June 2023
Landscape Details and Notes, Project 2151, DA121, Issue D3	VOARC	21 June 2023
Floor Plan, Project 2151, DA201, Issue D3	VOARC	21 June 2023
Street Fence Elevation Plan, Project 2151, DA300, Issue D3	VORAC	21 June 2023
Long Site Section Looking East, Project 2151, DA401, Issue D3	VORAC	21 June 2023
Cross Site Section Looking North, Project 2151, DA402, Issue D3	VORAC	21 June 2023
Long Site Section Looking West, Project 2151, DA403, Issue D3	VORAC	21 June 2023
Stormwater Plans, Job No. 211643, pages 1 – 5, Issue 3	C.K. Engineering Services	7 August 2023

Approved Documents
Document Title	Version No.	Prepared By	Date of Document
Plan of Management	-	Chapman Planning Pty Ltd	6 July 2023
Flood Risk Assessment	Ref 211643	C.K. Engineering Services	December 2021
Traffic and Parking Impact Assessment	Revision 3	3 July 2023

2. The amended application was filed with the Court on 24 August 2023.

20. The Court orders:

1. The applicant is to pay the respondent’s costs thrown away in the agreed amount of $8,000.00 pursuant to section 8.15(3) of the EnvironmentalPlanning and Assessment Act 1979 within 21 days of this order being made.

2. The appeal is upheld.

3. Development consent is granted to Development Application DA2022/7 lodged on 11 January 2022, as amended, for the use of the site as a holding yard for the storage of damaged vehicles operating 7.00am - 10.00pm from Monday to Saturday and 8.00am - 10.00pm on Sunday and Public Holidays and associated works on the land at 2 Erith Street, Botany NSW (Lot C DP 341241), subject to the conditions of consent at Annexure A.

……………………

S Dixon

Senior Commissioner of the Court

Annexure A (324010, pdf)

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Decision last updated: 25 September 2023