Stormac Pty Limited v The Council of the City of Sydney

[2024] NSWLEC 1039

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Stormac Pty Limited v The Council of the City of Sydney [2024] NSWLEC 1039

Hearing dates:

Conciliation conference on 17 November, 12 December and 21 December 2023, and 17 January 2024

Date of orders:

08 February 2024

Decision date:

08 February 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1)   The Applicant’s written request pursuant to cl 4.6 of the Sydney Local Environmental Plan 2012 to vary cl 4.4 of the Sydney Local Environmental Plan 2012, prepared by Mecone dated December 2023, is upheld.

(2)   The appeal is upheld.

(3)   Development consent is granted to Development Application No D/2023/267 for demolition of existing structures and construction of a 4-storey mixed use building comprising commercial premises and storage premises with parking and loading facilities, signage and landscaping, at 132-138 McEvoy Street, Alexandria, being Lot 2 DP 243107, subject to the conditions of consent at Annexure A.

Catchwords:

DEVELOPMENT APPLICATION: storage facility and commercial premises in E3 Productivity Support zone – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 4.46, 7.4, 8.7

Land and Environment Court Act 1979 s 34

Water Management Act 2000

Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 4.6, 5.21, 6.13, 6.14, 6.21C, 7.3, 7.6, 7.14, 7.25

State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.48, 2.119, 2.122

State Environmental Planning Policy (Resilience and Hazards) 2021, ss 4.6, 4.7

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

Environmental Planning and Assessment Regulation 2021, s 38

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

Stormac Pty Limited (Applicant)
Council of the City of Sydney (Respondent)

Representation:

Counsel:
A Stafford (Applicant)
P Canning (Solicitor) (Respondent)

Solicitors:
Sekel Grinberg Judd (Applicant)
Council of the City of Sydney (Respondent)

File Number(s):

2023/301034

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by the Council of the City of Sydney (the Respondent) of development application No D/2023/267 seeking consent for the demolition of existing structures and construction of a 4-storey mixed use building comprising commercial premises and storage premises with parking and loading facilities, signage and landscaping at 132-138 McEvoy Street, Alexandria.

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 17 November 2023, at which I presided.

3. At the conciliation conference, the parties reached in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the development application.

4. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I granted further adjournments on 12 December and 21 December 2023 so that conditions of consent, consistent with those amended plans and other documents could be settled between the parties.

5. On the basis of those amended plans, and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to the parties on 17 January 2024.

6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was submitted to the Court on 25 January 2024.

7. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.

8. 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 power under s 4.16 of the EPA Act. In this case, there are jurisdictional prerequisites that must be satisfied before this function can be exercised.

9. The parties explained to me during the conference as to how the jurisdictional prerequisites have been satisfied in order to allow the Court to make the agreed orders at [47], and I am satisfied for the reasons that follow.

10. Owner’s consent, dated 28 March 2023, was lodged with the development application that was subsequently notified and advertised from 18 April 2023 to 10 May 2023.

11. The site is located within the E3 – Productivity Support zone according to the Sydney Local Environmental Plan 2012 (SLEP), in which storage premises and office premises are permitted with consent where consistent with the objectives of development in the E3 zone.

12. The objectives of the E3 zone are:

•  To provide a range of facilities and services, light industries, warehouses and offices.

•  To provide for land uses that are compatible with, but do not compete with, land uses in surrounding local and commercial centres.

•  To maintain the economic viability of local and commercial centres by limiting certain retail and commercial activity.

•  To provide for land uses that meet the needs of the community, businesses and industries but that are not suited to locations in other employment zones.

•  To provide opportunities for new and emerging light industries.

•  To enable other land uses that provide facilities and services to meet the day to day needs of workers, to sell goods of a large size, weight or quantity or to sell goods manufactured on-site.

•  To encourage employment opportunities.

•  To promote land uses with active street frontages.

•  To provide for land uses that support the viability of adjoining industrial land uses.

13. The proposed development complies with the height of building standard of 18m at cl 4.3(2) of the SLEP, however it exceeds the floor space ratio (FSR) of 1.5:1 permitted on the site by virtue of cl 4.4(2) of the SLEP.

14. Clause 6.14 of the SLEP provides an additional bonus FSR of 0.5:1 to development that includes community infrastructure, where the consent authority is satisfied, and has taken into account those matters at cl 6.14(3). The Respondent accepts the proposal includes community infrastructure in the form of land dedicated along the McEvoy Street frontage.

15. The terms of the land dedication are set out in the Applicant’s Public Benefit Offer dated 26 June 2023, by way of a planning agreement pursuant to s 7.4 of the EPA Act. The execution of the planning agreement is the subject of a deferred commencement condition, at Condition 1 of the agreed conditions of consent.

16. As such, the applicable FSR for the site is 2:1.

17. The proposed development exceeds the FSR permitted at cll 4.4, 6.13 and 6.14, and the Applicant relies upon a written request prepared in accordance with cl 4.6 of the SLEP by Mecone dated December 2023 (written request).

18. The objectives of cl 4.4 are:

(a)  to provide sufficient floor space to meet anticipated development needs for the foreseeable future,

(b)  to regulate the density of development, built form and land use intensity and to control the generation of vehicle and pedestrian traffic,

(c)  to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure,

(d)  to ensure that new development reflects the desired character of the locality in which it is located and minimises adverse impacts on the amenity of that locality.

19. The objectives of cl 6.14 are:

(a)  to allow greater densities where Green Square community infrastructure is also provided,

(b)  to ensure that such greater densities reflect the desired character of the localities in which they are allowed and minimise adverse impacts on the amenity of those localities,

(c)  to provide for an intensity of development that is commensurate with the capacity of existing and planned infrastructure.

20. The written request establishes that compliance with the development standard is unnecessary or unreasonable in circumstances where the objectives of the standard at cl 4.4 are achieved notwithstanding the contravention. This is because the proposal:

1. provides sufficient floor space for a self-storage facility.

2. Is a low-intensity development in terms of traffic generated and car parking requirements when compared against other permissible uses in the E3 zone. Likewise, the additional floor space is non-habitable and so does not contribute to density or intensity of land use.

3. Corresponds well to the capacity of existing and planned infrastructure in a location well served by existing public transport infrastructure.

4. Is consistent with the locality statement contained in Section 2.10.3 of the Sydney Development Control Plan 2012, and so reflects the desired character of the locality and minimises adverse amenity impacts.

21. The written request also advances environmental planning grounds it asserts are sufficient to justify the contravening of the FSR standard for reasons that may be summarised as follows:

1. The floor space is entirely contained within the envelope of a prior consent that complied with the FSR standard.

2. The exceedance does not increase the intensity of land use or give rise to environmental impacts such as traffic generation, traffic movements or additional car parking.

3. The bulk, scale and height of the proposed development is not increased by the exceedance and so amenity impacts such as overshadowing, loss of solar access and visual impact do not result from the exceedance.

22. I accept and am satisfied that the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the SLEP, in accordance with cl 4.6(4)(a)(i) of the SLEP.

23. The written request also asserts consistency with the objectives of the E3 zone, at [12], because self-storage supports the needs of business, is compatible with land uses in the area, provides employment opportunities and activates the McEvoy Street frontage by the placement of offices and landscaping.

24. I note here that the Respondent is satisfied that the FSR written request adequately addresses the matters required to be demonstrated by cl 4.6(3) of the SLEP, and that the proposed development, as amended, will be in the public interest because it is consistent with the objectives of the FSR development standard and the objectives for development in the E3 zone.

25. Furthermore, the Respondent does not contend that the contravention of the development standard raises any matter of significance for State or regional environmental planning, or that there is any public benefit in maintaining the development standard, pursuant to cl 4.6(5) of the SLEP.

26. Accordingly, the Respondent raises no issue regarding cl 4.6 and accepts that a variation of the FSR development standard under cl 4.4 is justified.

27. I am satisfied under cl 4.6(4) that the written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the FSR development standard and the objectives for development within the E3 Zone, for the reasons given in the request.

28. I have also considered whether the contravention of the development standard raises any matter of significance for State or regional environmental planning, and the public benefit of maintaining the development standard, pursuant to cl 4.6(5) of the SLEP and I find no grounds on which the Court should not uphold the written request.

29. The site is located within the Alexandra Canal Catchment. As such, the provisions at cl 5.21 of the SLEP apply to the site. In considering those matters required to be considered by cl 5.21(3) of the SLEP, I am satisfied that the development is compatible with the flood function and behaviour on the land as described in the Flood Level Summary prepared by Cardno dated 14 July 2017 (Flood Study), and will not adversely affect flood behaviour on other properties, nor adversely affect the safe occupation or efficient evacuation of people, nor affect the environment in the manner described at subcl (2)(e). In forming this opinion of satisfaction, I note the proposed floor levels set out in Table 3 of the Flood Study are at, or above, the flood planning levels.

30. Clause 6.21C of the SLEP precludes the grant of consent to development unless the proposal exhibits design excellence when regard is had to those matters at subcl (2). The parties have prepared an agreed assessment of the proposed development against the provisions of cl 6.21C(2) by which the Respondent has formed the opinion the development exhibits design excellence.

31. Car parking rates applicable to the site are dealt with under cll 7.3 and 7.6 of the SLEP. The parties agree the building is on land in category F and that a FSR of greater than 1.5:1 applies, as provided in cl 7.6(c). When the formula at subcl 7.6(d) is applied to the proposal, the number of car parking spaces provided on the site for business premises does not exceed a maximum, consistent with cl 7.3 of the SLEP.

32. While the land is identified within Class 3 Acid Sulfate Soils, excavation is limited to footings that are not greater than 1m in depth below the natural ground surface. As such, consent is not required pursuant to cl 7.14(2) of the SLEP. That said, an area of 1.4m in width is to be dedicated to the Respondent, and is proposed to be excavated to a depth of 1.5m from natural ground surface for the purpose of remediation, pursuant to s 4.7 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP).

33. Clause 7.25 of the SLEP precludes the grant of consent unless the consent authority is satisfied that the development will promote sustainable transport modes and minimise traffic congestion. The proposed development provides bicycle parking for staff and visitors to the site, and proposes the dedication of land for the purpose of encouraging sustainable transport along the McEvoy Street frontage.

State Environmental Planning Policy (Resilience and Hazards) 2021

34. A Detailed Site Investigation, prepared by STS GeoEnvironmental Pty Ltd dated July 2017 (DSI) concludes the site is contaminated. On the basis of the recommendations contained in the DSI, the Remediation Action Plan (RAP) prepared by Aargus dated 20 June 2023, the addendum to the RAP by the same author dated 1 December 2023, and the letter titled ‘Interim Advice (IA) No.1 for Addendum to Remediation Action Plan for Dedicated Landscaping Setback at 132-138 McEvoy Street Alexandria NSW’, prepared by Geosyntec dated 8 December 2023, I am satisfied, pursuant to s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP, the land is suitable in its contaminated state for the purpose for which the development is proposed to be carried out. The contaminated land is to be sealed by hardstand surfaces, and will be made suitable for the purpose for which the development is proposed to be carried out, where remediation is proposed.

35. I note the agreed conditions of consent require, among other actions, a covenant to be registered on the title of the land binding the owners and future owners with the responsibility for the ongoing maintenance and rehabilitation works required in terms of the encapsulated/remaining contaminated materials, including the discharge or prevention of discharge from any contaminants or for any works subsequently required by the NSW Environment Protection Authority.

State Environmental Planning Policy (Transport and Infrastructure) 2021

36. Written notice of the development application was provided to the electricity supply authority for the area, Ausgrid, in accordance with s 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP). General terms of approval are contained in the agreed conditions of consent.

37. Likewise, written notice was provided to Transport for NSW (TfNSW) in accordance with s 2.122 of the Infrastructure SEPP, and the relevant terms of approval are also contained in the agree conditions of consent.

38. McEvoy Street is a classified road. As such, the provisions of s 2.119 of the Infrastructure SEPP apply. An assessment of traffic generated by the development, and vehicular access requirements of the development are detailed in the Traffic Impact Assessment prepared by Transport Planning Partnership dated 28 February 2023 (TIA). The assessment of traffic generated by the proposal at Section 4.1 of the TIA, the description of the left-only exit onto McEvoy Street in Section 3.2 of the TIA and swept path diagrams provided in support at Appendix B satisfies me that the safety, efficiency and ongoing operation of McEvoy Street will not be adversely affected by the development.

State Environmental Planning Policy (Industry and Employment) 2021

39. The proposed development seeks consent for business identification signage that is subject to the provisions of Chapter 3 of State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP).

40. Section 3.6 of the Industry SEPP requires the consent authority to be satisfied that the signage is, firstly, consistent with the objectives at s 3.1(1)(a) of the Industry SEPP and secondly, that the signage proposed satisfies the assessment criteria at Sch 5 of the Industry SEPP.

41. The signage is documented on Dwg No DA-502, prepared by Harding Architects. On the basis of the dimensions, notations and colours described on the drawing, I am satisfied the proposed signage is consistent with the objectives at s 3.1(1)(a) of the Industry SEPP.

42. By reference to the same drawing, I am also satisfied that the signage satisfies the assessment at Sch 5 of the Industry SEPP. To that end, the signage is consistent with the character of the area, does not obscure or compromise important views, is located well above the level of the footpath and roadway so as to be appropriate in its setting, is compatible with the building on which it is proposed to be displayed because 50% of the signage is to match the colour of the external cladding, and will not result in unacceptable glare or risk to pedestrians, vehicles or aircraft.

Water Management Act 2000

43. The proposed development is identified as integrated development, by reason of the Water Management Act 2000 and pursuant to s 4.46 of the EPA Act. Sydney Water has provided General Terms of Approval that are incorporated into the agreed conditions of consent at Condition 130.

Conclusion

44. 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.

45. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

46. The Court notes that:

1. The Council of the City of Sydney, as the relevant consent authority, has approved under s 38 of the Environmental Planning and Assessment Regulation 2021 the Applicant amending development application No D/2023/267 in accordance with the following amended plans and documents:

1. The following architecture plans prepared by Harding Architects Pty Ltd:

Drawing number and revision	Drawing description	Date
2113 DA-0200, Rev 15B	Ground Floor Plan	13/12/2023
2113 DA-0204, Rev 15B	Roof Plan	21/11/2023
2113 DA-0205, Rev 15B	Mezzanine Floor Plan	21/11/2023
2113 DA-501, Rev 15B	North Elevation West Elevation	21/11/2023
2113 DA-502, Rev 15B	South Elevation East Elevation	21/11/2023
2113 DA-503, Rev 15B	New Façade Section	13/12/2023
2113 DA-2901, Rev 15B	Areas	21/11/203
2113 DA-2902, Rev 15B	Areas – Total Floor Area	21/11/2023

2. The following landscape plans prepared by Site Image (NSW) Pty Ltd:

Drawing number and revision	Drawing description	Date
000, Issue H	Coversheet	13/12/2023
100, Issue J	Landscape Plan Ground Floor	15/12/2023
500, Issue C	Landscape Details Sheet 01	15/12/2023
501, Issue C	Landscape Details Sheet 02	15/12/2023
502, Issue B	Landscape Details Sheet 03	6/12/2023
601, Issue I	Landscape Sections	15/12/2023

3. The following civil engineering plans prepared by Tonkin Consulting:

Drawing number and revision	Drawing description	Date
401, Rev 2	Siteworks Plan – Ground Floor	18/12/2023
301, Rev 2	Stormwater Management Plan – Ground Floor Plan	18/12/2023
603, Rev 0	Typical Details Sheet 3 of 3	18/12/2023

4. Clause 4.6 Variation Request to Floor Space Ratio Development Standard, prepared by Mecone dated December 2023;

5. Addendum to Remediation Action Plan prepared by Aargus Pty Ltd dated 1 December 2023;

6. Letter from Rebekah Hall, Accredited Site Auditor, of Geosyntec Consultants Pty Ltd dated 8 December 2023 in respect of the Addendum to the Remediation Action Plan; and

7. Applicant’s public benefit offer in respect of the development application dated 20 December 2023;

2. The Court notes that the Applicant filed the amended plans and documents with the court on 24 January 2024.

Orders

47. The Court orders that:

1. The Applicant’s written request pursuant to cl 4.6 of the Sydney Local Environmental Plan 2012 to vary cl 4.4 of the Sydney Local Environmental Plan 2012, prepared by Mecone dated December 2023, is upheld.

2. The appeal is upheld.

3. Development consent is granted to Development Application No D/2023/267 for demolition of existing structures and construction of a 4-storey mixed use building comprising commercial premises and storage premises with parking and loading facilities, signage and landscaping, at 132-138 McEvoy Street, Alexandria, being Lot 2 DP 243107, subject to the conditions of consent at Annexure A.

T Horton

Commissioner of the Court

**********

Annexure A

Amendments

16 February 2024 - Pursuant to the UCPR 36.17 Order 1 of the Judgment and Orders dated 8 February 2024 be varied and replaced, at [46(2)], by the following notation:

“The Court notes that the Applicant filed the amended plans and documents with the court on 24 January 2024.”;

Decision last updated: 16 February 2024