Spectrum Retail Group Pty Ltd v Albury City Council

[2022] NSWLEC 1484

Land and Environment Court

New South Wales

Medium Neutral Citation:

Spectrum Retail Group Pty Ltd v Albury City Council [2022] NSWLEC 1484

Hearing dates:

Conciliation conference on 20 June and 1 and 2 September 2022

Date of orders:

13 September 2022

Decision date:

13 September 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away in the amount of $1.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. 10.2021.38379.1 for the removal of five (5) trees and the construction and operation of a service station on the land described as Lot 1 DP 504812 and known as 342 Urana Rd Lavington, subject to the conditions in Annexure A.

Catchwords:

APPEAL – development application – service station – conciliation conference – agreement reached – orders made

Legislation Cited:

Albury Local Environmental Plan 2012, cll 2.3, 4.3, 4.4, 7.1, 7.6

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.10

Environmental Planning and Assessment Regulation 2000, cl 49

Environmental Planning and Assessment Regulation 2021, Sch 6 Pt 1 cl 3

Interpretation Act 1987, s30A

Land and Environment Court Act 1979, s 34

Roads Act 1993, s138

State Environmental Planning Policy (Industry and Employment) 2021, cll 3.1, 3.6 and Sch 5

State Environmental Planning Policy (Resilience and Hazards) 2021, cll 1.4, 3.10, 3.12, 4.6 and Sch 3, cl 2

State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.119, 2.122

State Environmental Planning Policy No. 33 – Hazardous and Offensive Development, cl 11

Cases Cited:

Low Cost Housing No 1 Pty Ltd v Liverpool City Council [2022] NSWLEC 1433

Category:

Principal judgment

Parties:

Spectrum Retail Group Pty Ltd (Applicant)
Albury City Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
M Seymour (Respondent)

Solicitors:
Thomson Geer (Applicant)
Kell Moore (Respondent)

File Number(s):

2022/55908

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns a development application (DA) by Spectrum Retail Group Pty Ltd (Applicant) for the construction and operation of a service station (Proposed Development) on land in Lavington, approximately 5 km north of the Albury central business district.

2. The Proposed Development will be carried out on the land described as Lot 1 DP 504812 known as 342 Urana Rd Lavington (Site). The Site is located on the corner of Urana Rd and Sanders Rd. It has an area of 1,662 m² and is generally rectangular in shape. The Site has previously been used for residential purposes but is currently vacant and contains grassland, trees and other vegetation. The DA also seeks consent for the removal of five (5) trees currently on the Site.

3. The DA was made to the Council on 3 May 2021 and was refused by the Council on 14 March 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.

4. 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.

5. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on 20 June 2022 and concluded on 2 September 2022.  I presided over the conciliation conference.

6. At 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 would be acceptable to the parties. The final signed agreement was filed on 1 September 2022 and is supported by an Amended Agreed Statement of Jurisdictional Pre-conditions provided by the parties on 2 September 2022. The agreement involves the Court approving the DA subject to amendments agreed during the conciliation conference, subject to conditions of consent. The amendments include:

1. The internal site layout has been slightly modified to facilitate a smaller gross floor area (GFA) for the service station convenience store. This has allowed for a wider apron between the parking spaces that front the convenience store and the fill points, ensuring that all swept paths are functional, including the 8.8m medium rigid trucks and 20m tanker with the latter shown to be able to enter and exit the site via either the Urana Road or Sanders Road driveways.

2. A condition of consent will require the applicant to install a median strip along Sanders Road to prevent vehicles from turning right onto Sanders Road.

3. To address Council's concerns regarding the acoustic barrier, the proposed acoustic barrier will now be 2.9 m high and will be 'broken up', set back and screened with landscaping ensuring that matters such as outlook, natural ventilation, natural light, and other amenity considerations are not unreasonably hindered by the proposal.

4. The applicant will install a new dividing boundary fence, further improving the current outdated fence dividing the Site from adjoining properties.

7. 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.

8. 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 following reasons:

General

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

2. The Applicant made the DA with the consent of the owners of the Site in accordance with cl 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The EPA Regulation was repealed by the Environmental Planning and Assessment Regulation 2021 (2021 Regulation) on 1 March 2022. However, the EPA Regulation continues to apply instead of the 2021 Regulation to a development application made but not finally determined before that date: 2021 Regulation, Sch 6 Pt 1 cl 3. The DA was made before but had not been finally determined by 1 March 2022, so the EPA Regulation continues to apply to the DA.

3. 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. The DA was publicly notified by the Council twice: once soon after the DA was made and again following the amendment of the application. Five submissions were received in relation to the DA as originally made and three submissions were received in relation to the amended plans and information. Oral evidence was given to the Court by two of the submitters on 20 June 2022. The submissions raised issues regarding traffic impacts and safety, noise impacts, amenity impacts, a loss of parking in Urana Road and inadequate setbacks to residential development for the fill point under the hazard analysis requirements of the State Environmental Planning Policy No. 33 – Hazardous and Offensive Development (SEPP 33). The parties’ agreed position, which I accept, is that these concerns have been addressed through the amended plans and proposed conditions of consent.

Albury Local Environmental Plan 2012 (LEP)

1. The Land is within Zone B4 Mixed Use under the LEP. The Proposed Development is permitted with development consent on land within that zone.

2. Clause 2.3(2) of the LEP 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. The objectives of Zone B4 Mixed Use zone are:

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To identify areas in close proximity to the commercial core where commercial and retail uses may be considered.

• To encourage development and investment in the Albury and Lavington central business districts.

• To increase the permanent population and encourage the provision of affordable housing within mixed use areas through shop top housing and residential flat building development.

• To protect residents in close proximity to the commercial core from encroachment by commercial and retail premises which, by reason of their demands for parking and public infrastructure, should be located within the Commercial Core.

• To encourage the provision of affordable housing.

3. In determining the DA, I have had regard to those objectives.

4. The proposed development complies with the applicable development standards in the LEP relating to building height (cl 4.3) and floor space ratio (FSR) (cl 4.4). The maximum height of the Proposed Development is approximately 8 m which is less than the applicable maximum building height of 16 m. The FSR of the proposed development is 0.11:1 which is less than the maximum permitted FSR of 2:1

5. Clause 7.1(3) of the LEP provides that, in deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in that clause. I accept the agreed submission of the parties that the matters set out in cl 7.1(3) of the LEP are satisfactorily addressed by the DA. Earthworks proposed for slab construction and installation of services will require limited excavation across most of the site. Earthworks proposed for the installation of underground fuel storage tanks will be centralised within the site, enabling efficient onsite management of sediment and erosion control.

6. Clause 7.6 of the LEP provides that development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available, or that adequate arrangements have been made to make them available when required:

1. the supply of water,

2. the supply of electricity,

3. the disposal and management of sewage,

4. stormwater drainage or on-site conservation,

5. suitable vehicular access.

7. I accept the joint position of the parties that all required services are available and will be constructed or supplied to a satisfactory level of compliance with the requirements of all relevant authorities.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP)

1. Clause cl 2.119 of the Transport SEPP applies to the DA because the Site has a frontage to a classified road, Urana Rd. Sub-clause 2.119(2) of the Transport SEPP provides that a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that-

1. where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

2. the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

1. the design of the vehicular access to the land, or

2. the emission of smoke or dust from the development, or

3. the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

3. the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

2. The parties’ agreed position, which I accept, is that the safety, efficiency and ongoing operation of Urana Road will not be adversely affected by the development as a result of any of the matters specified in cl 2.119(2) of the Transport SEPP. The parties have informed the Court that measures such as the proposed acoustic barrier have been included to ameliorate potential traffic noise within the site arising from Urana Road.

3. The Proposed Development is “traffic-generating development” within the meaning of cl 2.122 of the Transport SEPP, which requires the consent authority to refer the DA to Transport for NSW (TfNSW) and to take into consideration any submission made by TfNSW within the time specified in that clause. The parties have informed the Court that the DA was referred to TfNSW which raised no objection to the Proposed Development and advised that its concurrence under s 138 of the Roads Act 1993 would be granted subject to conditions of consent. The parties have also informed the Court that these conditions have now been incorporated in the proposed conditions of consent.

State Environmental Planning Policy (Resilience and Hazards 2021) (Hazards SEPP)

1. Clause 4.6 of the Hazards SEPP precludes the granting of development consent unless the consent authority has considered relevantly whether the Site is contaminated. Section 4.6(2) 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).

2. The Site is currently vacant and has been used previously for residential purposes. There is no evidence that the Site is contaminated from its past use and I am satisfied that the Site is suitable for its proposed use as a service station.

3. SEPP 33 was repealed and its provisions were transferred to Chapter 3 of the Hazards SEPP on 1 March 2022. Clause 3.10(2) of the Hazards SEPP provides that Pt 3 of the SEPP does not apply to development the subject of a development application made before the date on which Ch 3 of the Hazards SEPP took effect. Chapter 3 of the Hazards SEPP took effect on 1 March 2022. The DA was made on 3 May 2021.

4. On one view, therefore, neither SEPP 33 nor Pt 3 of the Hazards SEPP applies to the DA. SEPP 33 was repealed on 1 March 2022 and the Hazards SEPP provides in terms that Pt 3 does not apply to development the subject of a development application made before the date on which Ch 3 of that SEPP took effect.

5. However, it appears that SEPP 33 continues to apply to the DA, despite its repeal on 1 March 2022. This is because cl 3.10(2) of the Hazards SEPP is a “transferred provision” within the meaning of s 30A of the Interpretation Act 1987 (Interpretation Act): see Hazards SEPP, cl 1.4 and Sch 3, cl 2. I note that cl 3.10(2) of the Hazards SEPP is in the same terms as cl 11(2) of SEPP 33 but for the fact that the former refers to development the subject of a development application made before the date on which “this Chapter” takes effect, while the latter referred to the date on which “this Policy” takes effect.

6. Section 30A of the Interpretation Act is as follows:

30A   Transferred provisions

(1)  This section applies where a provision is transferred from an Act or statutory rule to another Act or statutory rule and an Act or statutory rule states that the provision is a transferred provision to which this section applies.

(2)  The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred.

(3)  This section applies whether or not the provision is modified, but has effect subject to any such modification.

7. The parties’ joint position is that the effect of s 30A is that the savings provision in cl 3.10(2) applies to development applications made prior to the commencement of Pt 3 of SEPP 33 rather than prior to the commencement of the Hazards SEPP. Such a conclusion, it was submitted, would be consistent with the decision of Acting Commissioner McEwen in Low Cost Housing No 1 Pty Ltd v Liverpool City Council [2022] NSWLEC 1433. In that case the Court found that a savings provision contained within the State Environmental Planning Policy (Precincts – Western Parkland City) 2021 was in fact a transferred provision for the purposes of s 30A of the Interpretation Act (at [12]).

8. The parties’ submission would be easier to accept had cl 3.10(2) continued to provide (as cl 11(2) of SEPP 33 did) that it did not apply to development the subject of a development application made before the date on which “this Policy” (rather than “this Chapter”) takes effect. Section 30A(3) provides that the transferred provision has effect subject to any modification made on the transfer of the provision. This provision, in my view, makes it somewhat difficult to read cl 3.10(2) as still referring to “this Policy” despite the modification of the transferred provision to refer instead to “this Chapter”.

9. Despite these reservations, I am prepared to proceed on the assumption that cl 3.12 of the Hazards SEPP does apply to the DA. This is for three reasons. One is that this is the parties’ joint position. The second is that reading the provisions such that neither SEPP applies to the DA produces a result which I find it hard to accept would have been intended. The third is that the DA satisfies the requirements of the clause in any event.

10. Clause 3.12 of the Hazards SEPP requires the consent authority to consider:

(a)     current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development, and

(b)     whether any public authority should be consulted concerning any environmental and land use safety requirements with which the development should comply, and

(c)     in the case of development for the purpose of a potentially hazardous industry—a preliminary hazard analysis prepared by or on behalf of the applicant, and

(d)     any feasible alternatives to the carrying out of the development and the reasons for choosing the development the subject of the application (including any feasible alternatives for the location of the development and the reasons for choosing the location the subject of the application), and

(e)     any likely future use of the land surrounding the development.

11. The SEPP 33 Assessment Report (Assessment Report) submitted with the DA addresses the requirements of cl 3.12(a) (c) and (e). In relation to cl 3.12(b) the parties’ agreed position, which I accept, is that no public authority should be consulted. In relation to cl 3.12(d), I am satisfied that the parties’ agreement has taken into account the availability of feasible alternatives and the reasons for choosing the Site for the Proposed Development. Finally, in relation to cl 3.12(e), I accept the parties’ joint submission that the Assessment Report submitted with the DA concluded that the societal risk associated with the Proposed Development is negligible.

State Environmental Planning Policy (Industry and Employment) 2021 (Employment SEPP)

1. Clause 3.6 of the Employment SEPP provides that:

3.6 Granting of consent to signage

A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied—

(a) that the signage is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and

(b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 5.

2. The objectives of the Chapter as set out in s 3.1(1)(a) are:

(a) to ensure that signage (including advertising)—

(i) is compatible with the desired amenity and visual character of an area, and

(ii) provides effective communication in suitable locations, and

(iii) is of high quality design and finish, and

3. I accept the parties’ joint submission that the proposed signage is consistent with these objectives and that the proposed signage satisfies the assessment criteria specified in Sch 5.

Conclusion

9. As the parties’ decision 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’ decision.

9. 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.

10. The Court orders that:

1. The Applicant is to pay the Respondent’s costs thrown away in the amount of $1.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979.

2. The appeal is upheld.

3. Development consent is granted to Development Application No. 10.2021.38379.1 for the removal of five (5) trees and the construction and operation of a service station on the land described as Lot 1 DP 504812 and known as 342 Urana Rd Lavington, subject to the conditions in Annexure A.

…………………………

A Bradbury

Acting Commissioner of the Court

55908.22 Annexure A (316456, pdf)

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Decision last updated: 13 September 2022