Streamline Container Services Pty Ltd v City of Parramatta Council

[2023] NSWLEC 1239

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Streamline Container Services Pty Ltd v City of Parramatta Council [2023] NSWLEC 1239

Hearing dates:

Conciliation conference on 30 November 2022; 21 December 2022; 16 February 2023; 2 May 2023

Date of orders:

18 May 2023

Decision date:

18 May 2023

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) The applicant is granted leave to amend the development application to rely on the plans and documents listed at Condition 1 of Annexure A.

(2) The applicant is to pay the respondent’s costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

(3) The appeal is upheld.

(4) Development consent is granted to development application DA/1055/2021 for a freight transport facility, installation of concrete works and stormwater infrastructure at Lease Area 2, 37A Grand Avenue, Camellia, subject to the conditions of consent in Annexure A.

Catchwords:

APPEAL – development application – a change in use from a truck depot to freight transport facility – conciliation conference – agreement between the orders – orders

Legislation Cited:

Biodiversity Conservation Act 2016

Contaminated Lands Management Act 1997, s 21

Environmental Planning and Assessment Act 1979, ss 3.17, 4.12(8), 4.16; Sch 1, Pt 1, Div 2, cl 8

Environmental Planning and Assessment Regulation 2000, cl 55; Sch 2, Pt 2, cl 3

Environmental Planning and Assessment Regulation 2021, Sch 6, s 3

Interpretation Act 1987, s 30A(2)

Land and Environment Court Act 1979, s 34

Paramatta Local Environmental Plan 2011, cll 2.7, 4.1, 4.3, 4.4, 5.7, 5.10, 5.21, 6.1, 6.2, 6.5, 6.7

Paramatta Local Environmental Plan 2023, cll 1.1AA, 1.8A

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6-12, ss 10.9, 10.10, 10.11, 10.18, 10.19, 10.20, 10.21, 10.22, 10.23, 10.24, 10.25, 10.26, 10.27 (repealed); s 6.65 (current)

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Infrastructure) 2007 (repealed)

State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 2, ss 2.7, 2.8; Ch 4, s 4.6

State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 2, Div 12A, ss 2.77, 2.122; Sch 3

State Environmental Planning Policy Amendment (Water Catchments) 2022

State Environmental Planning Policy No 55 – Remediation of Land (repealed)

Sydney Regional Environmental Planning Policy (Sydney Harbour Catchment) 2005

Category:

Principal judgment

Parties:

Streamline Container Services Pty Ltd (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
K Marginson (Solicitor) (Applicant)
C Campbell (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2022/122548

Publication restriction:

Nil

Judgment

1. These proceedings arise following the applicant’s appeal against the Parramatta Local Planning Panel’s refusal of its development application DA/1055/2021. The application as lodged with the Council sought consent for a change in use from a truck depot to freight transport facility at Lease Area 2, 37A-39 Grand Avenue, Camellia, legally described as Lot 2 on DP 539890 (site).

2. On 27 October 2022, the Court granted the applicant leave to rely on an amended application seeking consent for:

Changes to the operation of the proposed use being:

1. A reduction in the proposed hours of operation from 24/7 to:

1. Monday to Saturday — 7am - 10pm; and

2. Sundays and Public Holidays — 8am - 10pm.

2. implementation of operational acoustic mitigation measures including complaints handling procedures and procedures for noise monitoring;

3. additional operational management measures including staff duties, vehicle and acoustic management;

4. implementation of an Interim Site Management Plan;

Changes to the proposed works including:

5. installation of a 200mm thick concrete driveway on the site; and

6. installation of onsite stormwater management measures.

3. On 30 November 2022, the matter was referred to a s34 conference. I was the presiding Commissioner. In response to the matters raised in the Council’s SOFC, as discussed during the s34 conference, the applicant elected to supplement the application with additional documentation and plans (s 34 agreement bundle). The main changes to the proposed development following the submission of further information include:

1. a limitation on the truck movements to 4 trucks (8 movements in total) in and out of the site between the hours of 9pm and 10pm; and

2. the reconfiguration of proposed stormwater management system to provide infrastructure along the boundaries of the site and the removal of the onsite detention system.

4. I am informed by the parties that the latest amendments resolved the contentions raised in the SOFC and they now invite the Court to exercise the function under s 4.16 of the Environmental Planning and Assessment Act 1979 (EPA Act) to grant consent to the development application subject to conditions as set out in parties’ executed s34 agreement.

5. Under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), I must dispose of the proceedings in accordance with the parties’ decision if the Court could have made that decision in the proper exercise of its functions. In this case there are jurisdictional preconditions that must be satisfied before this function can be exercised and the parties have identified these matters in a jurisdictional submission filed with the s34 agreement.

6. Having considered the parties’ joint submissions and the evidence before me, I am satisfied about the following matters:

Jurisdictional Matters

7. Owner’s consent was provided for the lodgement of the development application on the site, see the owners’ consent letter filed with the Class 1 Application (Tab 1 of the Class 1 Application).

EPA Act

8. Section 3.17 of the EPA Act nominates that environmental planning instruments can declare development as ‘designated development’ (Tab 1 of the Class 1 Application).

9. The proposed development is nominated as ‘designated development’ pursuant to s 2.7 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP).

10. An Environmental Impact Assessment has been prepared by Willowtree Planned dated 22 October 2021 pursuant to s 4.12(8) of the EPA Act. The EIS is in accordance with the requirements in Sch 2 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000).

11. The Secretary’s Environmental Assessment Requirements have been issued pursuant to Sch 2, Pt 2 cl 3 of the EPA Regulation 2000 (Tab 9 of the Class 1 Application).

12. Pursuant to Sch 1, Pt 1, Div 2 cl 8 of the EPA Act, the minimum public exhibition period for designated development is 28 days. The development application was notified by the Council for a period of 34 days from 8 December 2021 to 11 January 2022 (refer to par 51 of the SOFC).

EPA Regulation 2000

13. The development application was lodged on 18 November 2021. Pursuant to Sch 6, s 3 of the EPA Regulation 2021, the EPA Regulation 2000 continues to apply to the development application.

Transfer of provisions

14. A number of State Environmental Planning Policies that applied to the proposed development have since been repealed during the appeal process. The provisions were transferred into new State Environmental Planning policies and the majority did not contain a savings provision.

15. Pursuant to s 30A(2) of the Interpretation Act 1987, where provisions are transferred, 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.”

16. Section 30A(2) of the Interpretation Act 1987 confirms that where a provision has been transferred, it is to be interpreted in the same way as it was under the old instrument. The new / old SEPPs where applicable have been dealt with below, noting the relevant provisions that apply in the assessment of the amended application.

Resilience and Hazards SEPP

17. The development application was lodged under the provisions of State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP). On 1 March 2022, the Coastal Management SEPP was repealed, and its provisions were transferred to Ch 2 of the Resilience and Hazards SEPP.

Coastal Management

18. Chapter 2 of the Resilience and Hazards SEPP aims to promote an integrated and co-ordinated approach to land use planning in the coastal zone:

1. Section 2.7 relates to development on certain land within coastal wetlands area. Part of the site contains an area of land which is mapped as ‘coastal wetlands’. Pursuant to s 2.7(2) of the Resilience and Hazards SEPP, the development is declared to be ‘designated development’.

2. An Ecological Impact Statement prepared by Cumberland Ecology dated 21 September 2021 (Tab 6 of the Class 1 Application) in support of the proposed development identified that the development is not anticipated to impact on any threatened species, ecological communities or threated populations listed under the Biodiversity Conservation Act 2016. This is further confirmed by the following:

1. Pursuant to s 2.7(4) - the further amended application includes a Site Validation Report and Site Audit Statement (Tabs 6 and 8 of the s34 agreement bundle) as well as a Stormwater Management Plan (Tab 14 of the s34 agreement bundle) and Biodiversity Response (Tab 11 of the s34 agreement bundle). The development of the site includes minimal physical works and includes sufficient measures to protect and where possible enhance the biophysical, hydrological and ecological integrity of the coastal wetland including through stormwater management, contamination assessment and remediation works as well as an assessment of the ecological impacts of the development. I am informed that the parties are satisfied that sufficient measures have been and will be, taken to protect, and where possible enhance, the biophysical, hydrological and ecological integrity of the coastal wetland. I accept that to be the fact.

2. Pursuant to s 2.8(1) – the site is also mapped as land in ‘proximity to coastal wetlands’. A Site Validation Report and Site Audit Statement (Tabs 6 and 8 of the s34 agreement bundle) and Stormwater Management Plan (Tab 14 of the s34 agreement bundle) have been prepared to manage and assess the impact of the development. The development of the site includes minimal physical works and includes sufficient measures to protect and where possible enhance the biophysical, hydrological and ecological integrity of the adjoining coastal wetland including through stormwater management, contamination assessment and remediation works as well as an assessment of the ecological impacts of the development. I am informed that the parties are, satisfied that the development will not result in a significant impact on the:

1. biophysical, hydrological or ecological integrity of the adjacent coastal wetland (s 2.8(1)(a)); or

2. the quantity and quality of surface and ground water flows to and from the adjacent coastal wetland or littoral rainforest (s2.8(1)(b));

3. and I accept that to be the fact.

Contaminated land

19. The development application was lodged under the provisions of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55). On 1 March 2022, SEPP 55 was repealed, and its provisions were transferred to Ch 4 of the Resilience and Hazards SEPP.

20. Chapter 4 of the Resilience and Hazards SEPP aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment:

1. The site has been used historically for contaminating activities and is declared a ‘remediation site’ under s 21 of the Contaminated Lands Management Act 1997.

2. The broader site at 37A-39 Grand Avenue Camellia (including the subject site) is the subject to historical remediation works comprising the installation of a capping layer on the site, completed under a Remediation Action Plan prepared in 2014.

3. A Site Validation Report has been prepared by Sullivan Environmental Sciences dated 20 December 2022 (Tab 6 of the s34 agreement bundle) which confirms:

1. the site was remediated through the installation of an impermeable capping layer and improved stormwater system in 2015;

2. the proposed installation of an additional concrete capping layer will improve the strength of the capping layer, particularly with regard to the proposed use for truck movements;

3. there are a number of areas of localised damage to the existing capping layer that are to be fixed;

4. an Environmental Management Plan (EMP) is to be prepared for the future use of the site.

21. A Site Audit Statement and a Site Audit Response Statement has been prepared (Tabs 8 and 9 of the s34 agreement bundle) which confirms that, the site can be made suitable for use as a freight transport facility (including container storage facility) subject to the repairs to the capping layer and the implementation of the EMP recommended in the Site Validation Report.

22. The parties are satisfied that they have adequately considered the contamination status of the site and the recommendation that the site can be made suitable for the proposed development in accordance with s 4.6 of the Resilience and Hazards SEPP. And, I accept that to be the fact.

State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP)

23. The development application was lodged under the provisions of the Sydney Regional Environmental Planning Policy (Sydney Harbour Catchment) 2005 (Harbour SREPP). On 1 March 2022, the Harbour SREPP was repealed, and its provisions were transferred to the BC SEPP.

24. On 21 November 2022 the State Environmental Planning Policy Amendment (Water Catchments) 2022 (Water Catchments SEPP) came into force and transferred the provisions in Ch 6-12 of the BC SEPP to other areas within that SEPP. Section 6.65 of the BC SEPP however provides that, where a development application was lodged but not finally determined before the commencement of the Water Catchments SEPP, the former provisions of the BC SEPP apply. Accordingly, the former provisions (i.e. prior to 21 November 2022) of the BC SEPP apply.

25. The site is mapped as being within the ‘Sydney Harbour Catchment’ and is located on land within the ‘Foreshores and Waterways Area’.

26. In addressing the matters for consideration in regard to this provision, the proposed development is supported by the following documentation which addresses these matters:

1. Stormwater Management Report and Plans (Tabs 13 and 14 of the s34 agreement bundle); and

2. Biodiversity Response (Tab 11 of the s34 agreement bundle).

27. The matters for consideration under the BC SEPP are:

1. Section 10.9 – the development is consistent with the Sydney Harbour Catchment objectives.

2. Section 10.10 – the development is consistent with the Sydney Harbour Catchment principles.

3. Section 10.11 – the development is consistent with the foreshores and waterways area principles.

4. Section 10.18 – the development is consistent with the general matters for consideration.

5. Section 10.19 Biodiversity, ecology and environment protection – the development includes stormwater management infrastructure that will capture, filter and discharge stormwater from the site via an existing discharge point. Accordingly, the development will, having regard to:

1. Section 10.19(a) - have a neutral or beneficial effect on the quality of water entering the waterways;

2. Section 10.19(b) - facilitate the protection and enhancement of terrestrial and aquatic species, populations and ecological communities;

3. Section 10.19(c) - not result in any impact on surrounding areas of aquatic vegetation;

4. Section 10.19(d) - avoid indirect impacts on aquatic vegetation through changes to stormwater flow and quality;

5. Section 10.19(e) - not result in any change to natural intertidal foreshore areas, natural landforms and native vegetation;

6. Section 10.19(f) - facilitate the retention, rehabilitation and restoration of riparian land;

7. Section 10.19(g) - maintain and enhance the ecological integrity of the wetlands;

8. Section 10.19(h) - not result in a cumulative environmental impact;

9. Section 10.19(i) - utilise an existing stormwater discharge point and as such will not result in a change to the potential disruption of contaminated sediment in the adjoining waterway.

6. Section 10.20 public access to, and use of, foreshores and waterways. The development, having regard to:

1. Section 10.20(1)(a)-(b) - is located on private property and will not prevent public access along the foreshore or to or from the waterway and will not impact on existing watercourses, wetlands, riparian lands or remnant vegetation. The site also does not have direct access to the foreshore;

2. Section 10.20(1)(c) - is the subject of a leasehold site and does not contain any existing mechanisms for public access that are to be retained;

3. Section 10.20(1)(d) - does not provide a boardwalk;

4. Section 10.20(1)(e) - implements stormwater infrastructure and discharges stormwater through an existing outlet point and as such will not result in additional opportunities for the disturbance of contaminated sediments.

7. Section 10.21 Maintenance of a working harbour – The development does not impact on the function or maintenance of the working harbour.

8. Section 10.22 Interrelationship of waterway and foreshore uses – The development does not result in an adverse impact on the relationship of the waterway and foreshore area.

9. Sections 10.23 and 10.24 Foreshore and waterways scenic quality and maintenance of views – The development is for a permissible use within the industrial zone and does not include any large buildings or structures projecting above ground level. As such, the development will not have an adverse impact on the scenic quality or views of the waterway.

10. Sections 10.25-27 – The development does not propose, nor will it have an impact on boat storage facilities, floating boat platforms or mooring pens.

State Environmental Planning Policy (Transport and Infrastructure) 2021

28. The development application was originally lodged under the provisions of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP). On 1 March 2022, the Infrastructure SEPP was repealed, and its provisions were transferred to Ch 2 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP).

Pipelines and pipeline corridors

29. Division 12A applies to development within a pipeline corridor. The site is located within the 14inch BMT to Plumpton Caltex Petroleum pipeline corridor.

30. Pursuant to s 2.77(1) of the Transport and Infrastructure SEPP, the parties submit that are they are satisfied, and I accept that:

1. any potential safety risks to the pipeline associated with the development have been identified;

2. the risks have been considered;

3. written notice to the pipeline operator, has been provided (refer to pars 41, 49 and 50 of the SOFC); and

4. the response from the pipeline operator has been considered.

Traffic generating development

31. Schedule 3 of the Transport and Infrastructure SEPP lists the types of development that are defined as traffic generating development. The development comprises a ‘freight transport facility’ which is nominated in Sch 3 as a traffic generating development.

32. Pursuant to s 2.122(4) the parties are satisfied, and I accept that:

1. Written notice of the development was given to TfNSW (refer to pars 42 and 55 of the SOFC);

2. An Operational Plan of Management (Tab 3 of the s34 agreement bundle) has been prepared which provides vehicular and pedestrian safety measures and site operation management controls to ensure the safe movement of vehicles into, within and out of the site;

1. A Transport Statement has been prepared by Ason Group dated 15 October 2021 (Tab 4 of the Class 1 Application) which confirms that the road network surrounding the site has suitable infrastructure and capacity to accommodate the proposed use;

2. The correspondence received from TNSW has been considered;

3. The site is accessible with respect to the efficiency of movement of people and freight and for multi-purpose trips;

4. The development facilitates the potential to minimise car trips through the freight of large shipping containers; and

5. The development will appropriately manage any potential safety, congestion or parking implications.

Paramatta Local Environmental Plan 2011

33. On 2 March 2023, the Parramatta Local Environmental Plan 2023 (Parramatta LEP 2023) came into force and repealed the Parramatta Local Environmental Plan 2011 (Parramatta LEP 2011) (see cl 1.8(1) of the Parramatta LEP 2023).

34. Clause 1.8A of the Parramatta LEP 2023 states:

1.8A Savings provision relating to development applications

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

35. Clause 1.1AA of the Parramatta LEP 2023 provides that the plan commenced on 2 March 2023.

36. As the development application had been lodged but not finally determined before 2 March 2023, the Parramatta LEP 2023 does not apply to the application. Accordingly, the Parramatta LEP 2011 applies.

37. The site is zoned ‘IN3 Heavy Industrial’. The proposed development is defined as a ’freight transport facility’ and is permissible with consent within the IN3 zone.

38. Demolition works are proposed under cl 2.7 for the existing office building in order to construct flood resistant shelter.

39. There is no subdivision proposed under the development application and as such, cl 4.1 is not applicable.

40. No works are proposed which would increase the height under cl 4.3.

41. The proposed use does not seek to increase the gross floor area and as such, cl 4.4 is not applicable.

42. Pursuant to cl 5.7(2), a portion of the site is located below the mean high-water mark. Accordingly, development consent is sought to carry out development on land below the mean high-water mark. The development is supported by a Flood Impact Assessment and Flood Emergency Detailed Response Plan prepared by Stantec (Tabs 4 and 5 of the s34 agreement bundle).

43. Pursuant to cl 5.10, a portion of the site mapped as containing an item of local heritage significance:

1. Heritage item number I1 Wetlands is located along the edge of the Parramatta River.

2. Pursuant to cl 5.10(4) of the Parramatta LEP 2011, the applicant has demonstrated, through the Biodiversity Response (Tab 11 of the s34 agreement bundle) that the proposed development will not result in an adverse impact on the wetlands adjoining the Parramatta River. The site is suitable from a contamination perspective (Tabs 6 and 8 of the s34 agreement bundle) and includes appropriate stormwater management measures (Tabs 13 and 14 of the s34 agreement bundle) to ensure the wetlands will not be adversely impacted as a result of the development.

44. The site is mapped as being on land within the flood planning area. Pursuant to cl 5.21(2), the parties are satisfied and I accept that, the Flood Impact Assessment and Flood Emergency Detailed Response Plan prepared by Stantec (Tabs 4 and 5 of the s34 agreement bundle) demonstrate that the development, having regard to:

1. clause 5.21(2)(a) - is compatible with the flood function and behaviour on the land;

2. clause 5.21(2)(b) - does not result in any buildings or structure that will adversely affect flood behaviour or results in detrimental increases in the potential flood affectation of other development or properties;

3. clause 5.21(2)(c) - will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood (refer Flood Emergency Detailed Response Plan prepared by Stantec - Tab 4 of the s34 agreement bundle);

4. clause 5.21(2)(d) - incorporates appropriate measures to manage risk to life in the event of a flood (refer Flood Emergency Detailed Response Plan prepared by Stantec - Tab 4 of the s34 agreement bundle); and

5. clause 5.21(2)(e) - will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses due to the implementation of the Stormwater Management Plan (Tabs 13 and 14 of the s34 agreement bundle).

45. Pursuant to cl 5.21(3) of the Parramatta LEP 2011, the parties are satisfied and I accept that:

1. the impact of the development on projected changes to flood behaviour as a result of climate change has been considered (cl 5.21(3)(a)) (See Section 3.5 of the Flood Assessment at Tab 5 of the s34 agreement bundle);

2. the intended design and scale of buildings resulting from the development are minor and will not result in adverse downstream impacts on flood behaviour (cl 5.21(3)(b));

3. the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood (cl 5.21(3)(c)) (refer Flood Emergency Detailed Response Plan prepared by Stantec - Tab 4 of the s34 agreement bundle); and

4. the development does not prevent the potential to modify, relocate or remove buildings if the surrounding area is impacted by flooding or coastal erosion (cl 5.21(3)(d)).

46. The site is identified as containing Class 3 Acid Sulfate Soils (ASS). Pursuant to cl 6.1(2) of the Parramatta LEP 2011, the development does not involve works 1 metre below ground level or works that will likely lower the water table. Pursuant to cl 6.1(6), development consent is not required as the works will not result in the disturbance of more than 1 tonne of soil and are not likely to lower the water table.

47. Any earthworks associated with the installation of stormwater infrastructure are ancillary works to the development for which consent is sought. Accordingly, development consent is not required for earthworks pursuant to cl 6.2(2)(b).

48. Pursuant to cl 6.5, the site includes a portion of land (north-eastern corner) mapped as ‘Riparian Land and Waterways’. The parties are satisfied, and I accept that having regard to:

1. clause 6.5(3)(a) - the impact of the development on the water quality of receiving will be minimal as a result of the remediation of the site and the stormwater management infrastructure;

2. clause 6.5(3)(b)-(c) - the development will not result in an adverse impact on the natural flow regime or flow paths of waterways, as outlined in the Flood Assessment (Tab 5 of the s34 agreement bundle);

3. clause 6.5(3)(d) - the development will not result in an adverse impact on the stability of the bed, shore and banks of the adjoining waterway, as result of the stormwater infrastructure and the location of the development away from the bank (Tabs 13 and 14 of the s34 agreement bundle); and

4. clause 6.5(e) the development will not impact on the flows, capacity and quality of the groundwater, as outlined in the Site Audit Statement and Site Validation Report (Tabs 6 and 8 of the s34 agreement bundle).

49. In addressing the matters for consideration in regard to cl 6.5(4), the proposed development is supported by the following documentation which addresses these matters:

1. Stormwater Management Report and Plans (Tabs 13 and 14 of the s34 agreement bundle);

2. Operational Plan of Management which includes a Site Management Plan and cleanup and maintenance requirements (Tab 3 of the s34 agreement bundle);

3. Flood Impact Assessment and Flood Emergency Detailed Response Plan prepared by Stantec (Tabs 4 and 5 of the s34 agreement bundle); and

4. Biodiversity Response (Tab 11 of the s34 agreement bundle).

50. Pursuant to cl 6.5(4) of the Parramatta LEP 2011, the parties are satisfied and I accept that the development, in accordance with:

1. clause 6.5(4)(a) - is designed, sited and will be managed to avoid impacts on the adjoining natural waterway and riparian land; and

2. clause 6.5(4)(b)-(c) - as outlined above, the development is sited and designed to avoid impacts on the adjoining natural waterway and riparian land.

51. Pursuant to cl 6.7, a portion of the site (north-eastern corner) is within the foreshore building line. Pursuant to cl 6.7(2)(b), the development includes a concrete slab in a small portion of the foreshore building line which requires development consent.

52. Pursuant to cl 6.7(3), the parties are satisfied and I accept that in accordance with:

1. clause 6.7(3)(a) - the development is for a permitted use within the IN3 Heavy Industrial zone and therefore will contribute to achieving the objectives for the zone;

2. clause 6.7(3)(b) - the appearance of the concrete slab will be minimal from both the waterway and adjacent foreshore areas and will be compatible with the character of the surrounding industrial area;

3. clause 6.7(3)(c)(i-iii) - as a result of the flooding assessment, contamination assessment and stormwater infrastructure, the development will not cause environmental harm such as pollution or siltation of the waterway, result in an adverse impact on the surrounding ecology (refer to Biodiversity Response at Tab 11 of the s34 agreement bundle) or an adverse impact on drainage patterns;

4. clause 6.7(3)(d) - the development is located on private land and will not result in congestion or conflicts between people using open space areas or the waterway;

5. clause 6.7(3)(e) - the development will not prevent future opportunities to provide continuous public access along the foreshore and to the waterway;

6. clause 6.7(3)(f) - the development will not result in the loss of any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land; and

7. clause 6.7(3)(g) - the development will not result in a significant impact on amenity or aesthetic appearance of the foreshore.

53. The parties have also agreed on conditions of consent which I accept.

54. Having regard to all of the above 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. As such, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

55. The Court notes:

1. City of Parramatta 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 DA/1055/2021 in accordance with the documents below:

Plan Name	Drawing number	Revision	Date	Prepared by
Amended Stormwater Plans
Cover Sheet, Notes & Legend	000	C	27 January 2023	Telford Civil Design & Construction Excellence
Stormwater Concept Plan Ground Level	101	C	27 January 2023	Telford Civil Design & Construction Excellence
Stormwater Concept Plan Catchment Plan	102	C	27 January 2023	Telford Civil Design & Construction Excellence
Music Model & Results	103	C	27 January 2023	Telford Civil Design & Construction Excellence
Miscellaneous Details Sheet	104	C	27 January 2023	Telford Civil Design & Construction Excellence
Reports
Amended Operational Plan of Management dated 13 February 2023
Flood Emergency Detailed Response Plan prepared by Cardno dated 21 December 2022
Flood Impact Assessment prepared by Cardno dated 16 December 2022
Site Validation Report prepared by Sullivan Environmental Sciences dated 20 December 2022
Site Auditor Review prepared by Mark Stuckey reviewing Site Validation Report dated 31 January 2023
Site Audit Statement prepared by Mark Stuckey dated 10 February 2023
Site Audit Response for Useable Lease Area 2 prepared by Environmental Earth Sciences dated 10 February 2023
Geotechnical Report prepared by Geofirst Pty Ltd dated 14 February 2023
Response to Council’s SOFC regarding biodiversity prepared by Cumberland Ecology dated 26 January 2023
Stormwater & OSD Checklist prepared by Telford Civil dated 27 January 2023
Stormwater Management Report prepared by Telford Civil dated 27January 2023

56. The Court orders:

1. The applicant is granted leave to amend the development application to rely on the plans and documents listed at Condition 1 of Annexure A.

2. The applicant is to pay the respondent’s costs thrown away in accordance with section 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

3. The appeal is upheld.

4. Development consent is granted to development application DA/1055/2021 for a freight transport facility, installation of concrete works and stormwater infrastructure at Lease Area 2, 37A Grand Avenue, Camellia, subject to the conditions of consent in Annexure A.

…………………

S Dixon

Senior Commissioner of the Court

Annexure A (253089, pdf)

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Amendments

27 June 2023 - Correction to typographical error at [56].

Decision last updated: 27 June 2023