The Crest at Oxford Falls Pty Ltd v Northern Beaches Council

[2021] NSWLEC 1152

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Crest at Oxford Falls Pty Ltd v Northern Beaches Council [2021] NSWLEC 1152

Hearing dates:

25-26 February 2021

Date of orders:

26 March 2021

Decision date:

26 March 2021

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted for the expansion of an approved industrial complex at Lot 100 Meatworks Avenue, Oxford Falls, by the construction of a building containing 10 industrial units with ancillary floor space, a roof top terrace, and associated car parking, subject to the conditions in Annexure A.

(3) Exhibits 1-7 and D are returned.

Catchwords:

APPEAL – development application – extension of an existing industrial complex by the construction of an industrial building – Oxford Falls Valley locality – consistency with character statement – contentions resolved

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.7, 4.15

State Environmental Planning Policy No 55—Remediation of Land cl 7

Warringah Local Environmental Plan 2000 cll 12, 18, 43, 56, 57, 58, 60, 66, 72

Warringah Local Environmental Plan 2011 cl 1.3

Texts Cited:

Northern Beaches Council, Water Management for Development Policy (February 2021)

Department of Environment, Climate Change and Water NSW, NSW Road Noise Policy (March 2011)

Category:

Principal judgment

Parties:

The Crest at Oxford Falls Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Sattler and Associates (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2020/71257

Publication restriction:

No

Judgment

1. COMMISSIONER: At the end of Meatworks Avenue in Oxford Falls is an approved light industrial/warehouse complex. The applicant, the Crest at Oxford Falls Pty Ltd (“the Crest”), seeks development consent for an expansion of the development by the construction of an additional building comprising 10 additional industrial/warehouse units with ancillary office space and parking. The Crest lodged a development application with Northern Beaches Council (“the Council”) on 26 November 2019. Following the expiry of the period after which a decision is deemed to be refused, the Crest lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“EPA Act”).

2. At the hearing of the appeal, leave was granted to the Crest to amend the development application the subject of the appeal. As a result of those amendments, the proposed development involves the construction of around 2991m² of gross floor area across three storeys, in a building that is to be located in an already cleared area of the site. The units within the building are referred to as Units 30-39, and have a total floor area of 2284.42m², and there is ancillary floor space of 664m² spread over three levels, located at the western end of the building. The development application indicates this floor space is to be used as a café, subject to future planning approval, and communal lounge/meeting room areas. A large roof top communal open space of 44m² is also proposed.

3. The design of the building is in keeping with the buildings already approved on the site, with driveway access on the north and excavation of up to 6m for the building such that the driveway has level access with the ground floor. On the southern side of the proposed building, no excavation is proposed, and the area is proposed to be levelled for the provision of open car-parking. The level of the open car-parking, which roughly reflects the natural ground level, will be the same as the finished floor level of the third storey of the building, so that there is level access from the open car parking to the third storey. The proposed site layout is shown at Figure 1, with the proposed development highlighted in yellow.

4. The proposed development also includes the removal of two trees, and the removal of an existing fibro cottage and landscaping of the area where the cottage is removed. The proposed development therefore increases the landscaping in the industrial complex.

5. The proposed hours of operation of the new building are 7am to 6pm Monday to Friday, and 8am to 2pm on Saturday.

6. As a result of the amendments to the development application that were made in the course of the hearing, the Council agrees that each of the contentions that were raised in the Amended Statement of Facts and Contentions have now been resolved. The Council agrees that there are no contentions that could form the basis for the refusal of the development application. I am nonetheless required to carry out an assessment under s 4.15 of the EPA Act to determine if it is lawful and appropriate to grant consent. I am also required to consider the evidence and submissions of the objectors.

7. For the reasons set out below, I accept the evidence of the experts and consider that each of the contentions raised on the appeal have been resolved. The concerns of the resident objectors have been adequately addressed through the amended plans and the proposed conditions of development consent, and the proposed development is an appropriate response to the relevant planning controls and the context of the site. I have therefore determined to grant development consent subject to agreed conditions of consent.

The site and the locality

8. The subject site is legally described as Lot 100, DP 1023183, and is an irregularly shaped allotment with a total site area of 3.412ha located at the northern end of Meatworks Avenue.

9. The site is a sloping allotment, having a fall from south to north and from west to east, with a large rock escarpment traversing the southern portion of the site. The area to the south of the escarpment comprises dense remnant bushland. To the north and north-west of the site is a scenic outlook that comprises the bushland buffer around the Wakehurst Parkway.

10. A number of recently constructed buildings are located on the site, and were approved as part of development consent DA2011/0985. Some of the buildings approved in the consent have not yet been constructed, or are under construction.

11. There is a brick dwelling house located on the site, adjacent to the southern boundary. A fibro cottage is situated to its north, and is sought to be demolished by the proposed development.

12. The area where the development is proposed has already been the subject of excavation on its southern side, where it is currently being used as a waste transfer area. It has been formed on a cut area that is boarded to the south by a 4m vertical cut into the natural slope.

13. Vehicular access to the site is currently via Meatworks Avenue, which commences at a turn in Oxford Falls Road, and terminates at the front boundary of the site. A central driveway traverses the centre of the site then provides access throughout the newly constructed development, with secondary access roads accessing the upper and lower portions of the site. The area where the development is proposed is accessed by an unsealed secondary access road.

14. The site is surrounded by large vacant allotments that are covered in dense bushland. Immediately to the northwest of the site is public open space, which is an identified conservation area.

15. The urban locality is generally rural/residential in character in the immediate vicinity of the site and contains a range of other land uses including undeveloped native bushland to the north and east, detached dwelling houses on large allotments to the south and west of the site, and Oxford Falls Grammar School, which is a primary and secondary school located on the western side of Oxford Falls Road before the road turns into Meatworks Avenue.

The planning framework

16. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

17. Pursuant to cl 1.3(1A) of the Warringah Local Environmental Plan 2011 (“WLEP 2011”), the site is located in an area identified as “Deferred Lands”. Consequently, the relevant local environmental plan that applies to the site is the Warringah Local Environmental Plan 2000 (“WLEP 2000”).

18. The site is located in the B2 Oxford Falls Valley Locality under the WLEP 2000. Parts 2 and 3 of the WLEP 2000 sets out the controls on development and the matters that must be considered in determining a development application.

19. Clause 12(1) of the WLEP 2000 sets out the matters that the consent authority must be satisfied that the development is consistent with before the grant of consent. This includes any relevant general principles of development control in Part 4. Further, cl 12(3) requires that, for development classified as category two or three, the consent authority be satisfied that the proposed development is consistent with the desired future character in the relevant locality statement. Clause 12 provides:

12 What matters are considered before consent is granted?

(1) Before granting consent for development the consent authority must be satisfied that the development is consistent with—

(a) any relevant general principles of development control in Part 4, and

(b) any relevant State environmental planning policy described in Schedule 5 (State policies).

(2) Before granting consent for development, the consent authority must be satisfied that the development will comply with—

(a) the relevant requirements made by Parts 2 and 3, and

(b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out.

(3) In addition, before granting consent for development classified as—

(a) Category One, the consent authority must consider the desired future character described in the relevant Locality Statement, or

(b) Category Two or Three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement,

but nothing in a description of desired future character creates a prohibition on the carrying out of development.

20. Pursuant to the land use table for the Oxford Falls Valley locality in Appendix B to the WLEP 2000, the proposed development is permissible and is development classified as Category Three. The locality statement for the Oxford Falls Valley is set out in Appendix B as follows:

The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows.

Future development will be limited to new detached style housing conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway.

The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings which are designed to blend with the colours and textures of the natural landscape will be strongly encouraged.

A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Fencing is not to detract from the landscaped vista of the streetscape.

Development in the locality will not create siltation or pollution of Narrabeen Lagoon and its catchment and will ensure that ecological values of natural watercourses are maintained.

21. Clause 18 requires that the built form will be controlled in accordance with the general principles of development control, the desired future character, and the applicable development standards. It provides as follows:

18 How will the built form of development be controlled?

(1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement.

(2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality.

(3) Nothing in this plan requires development to comply strictly with a quantitative requirement made in any general principle of development control.

22. The general principles of development that are relevant to the proposed development are set out in full below. The Council agrees that there are no longer any general principles of development that are offended by the proposal.

23. The proposed development complies with all of the relevant development standards that apply to the site pursuant to the WLEP 2000.

24. The State Environmental Planning Policy No 55—Remediation of Land also applies to the site, and cl 7 requires the Court, in exercising the functions of the consent authority, to consider whether the land is contaminated. An assessment of the site was carried out and is reported in The Site Contamination Assessment by Geo-Environmental Engineering dated 5 February 2020 (Ex H). It carried out investigations of the entire site, as well as the area of the proposed development, and found that any identified contaminants, if present, were at levels below the assessment criteria. It therefore concluded that there is no contamination issue at the site.

Issues raised on the appeal

25. In an Amended Statement of Facts and Contentions filed on 8 February 2021, the Council raised a number of contentions that it now agrees are resolved.

26. The contentions are set out more fully in my consideration below, and concern the consistency of the proposed development with the desired future character (contention 1), its visual bulk and massing (contention 2), whether it retains the environmental features of the site (contention 4), and whether it has been sited and designed to minimise the impact on flora (contention 5). The Council also raised contentions that there was insufficient information to assess the acoustic impact (contention 6), the impact on traffic and road safety (contention 7), the impact on water quality (contention 8), and the geotechnical stability of the land (contention 9).

27. For the reasons that are set out below and based on the evidence of the experts, I accept the parties’ agreed position that these contentions have been resolved.

The objector evidence

28. The development application the subject of the appeal was notified to surrounding properties on two occasions in late 2019 and early 2020, and by public advertisement on 18 January 2020. In response to the notification process, 121 residents provided submissions concerning the development application. Four objectors also gave evidence at the commencement of the hearing, including on behalf of Oxford Falls Grammar. The issues raised in the submissions and at the hearing can be summarised as follows:

• Traffic congestion and compromised safety on the local road network, especially for parents and children associated with the school and using the local road for drop off and pick up,

• Inconsistency with the desired future character for the Oxford Falls Valley Locality,

• Environmental impacts, including impacts on the quality of water in the local water catchment, and on native bushland,

• Visual impacts and non-compliance with built form controls,

• Bushfire hazard,

• Inadequate information concerning geotechnical impacts,

• Acoustic impacts,

• Impacts from lighting, and

• Overdevelopment of the site.

29. I note that the proposed development that is before the Court is the construction of another building within an existing industrial complex, within an area of the site that is already cleared, and will result in increased landscaping on the site. It does not breach any built form controls, and there are no discernible environmental impacts occasioned by it. The size of the vehicles that will access the proposed development will be limited to small rigid vehicles, which are smaller than the vehicles that are currently used for the waste transfer station which is currently located on the land where the building is to be constructed. The waste management vehicle, which is a medium rigid vehicle, will not be able to access the proposed development during peak school drop off and pick up times. On the basis of the evidence of the experts, which is summarised below, I consider that none of the matters raised by the objectors warrant refusal of the proposed development.

The expert evidence

30. A number of experts provided expert opinion evidence concerning the contentions raised by the Council on the appeal.

31. Evidence on the town planning issues was given by Mr Greg Boston, a town planner engaged by the Crest, and Ms Lashta Haidari, a town planner employed by the Council. Mr Boston and Ms Haidari gave evidence in two joint reports (Ex 3 and Ex 8), and also gave oral evidence. Their agreed opinion evidence is that, as a result of the amendment to the plans, the proposed development responds to the desired future character of the Oxford Falls Valley Locality and is of acceptable bulk and scale.

32. Evidence on the traffic and safety issues was given by Meg Kong Siew Hwee, a traffic engineer engaged by the Crest, and Ms Rezvan Saket, a traffic engineer employed by the Council. Their evidence is contained in two joint reports (Ex 4 and Ex 9). They agree that the traffic generation of the proposed development is acceptable and is considered a “low density low impact” development.

33. Evidence on the ecological impacts of the proposed development was given by Mr Lucas McKinnon, an ecologist engaged by the Crest, and Mr Robert Blackall, an ecologist employed by the Council. They gave evidence in two joint reports (Ex 5 and Ex 10), and also gave oral evidence. They agree that the proposed development is located in previously disturbed areas of the site, and will not impact the native bushland area.

34. Evidence on the issues concerning stormwater quality and the impact on watercourses and aquatic habit was given by Mr Bruce Kenny, an engineer engaged by the Crest, and Ms Ruby Ardren, the project leader for water management at the Council. They gave evidence in a joint report (Ex 7) and gave oral evidence. They agree that the application is supported by a MUSIC water quality model, and that the application will meet the intent of the Water Sensitive Urban Design requirements and water conservation requirements outlined under Part 4.1 of Northern Beaches Council Water Management for Development Policy.

Each of the contentions raised by the Council have been resolved

35. As a result of the amendments that have been made to the plans, the proposed conditions of consent, and the evidence of the experts, each of the contentions raised by the Council on the appeal have been resolved.

Desired future character

36. The first contention raised by the Council on the appeal is that the development is inconsistent with the desired future character expressed in the locality statement for the Oxford Falls Valley Locality.

37. Mr Boston and Ms Haidari agree that the desired future character statement for the Oxford Falls Valley Locality anticipates a change in the present character only where the development is found to be consistent with the balance of the character statement. They agree that to be consistent with the locality statement, the proposed development must be a low intensity, low impact use. They agree that it meets that description for the following reasons:

• It is located within a previous disturbed and excavated portion of the site, and, consistent with the desired future character statement for the locality, will not be located “on ridgetops or in places that will disrupt the skyline when viewed from Narabeen Lagoon and the Wakehurst Parkway” (Ex 8 p 3).

• The traffic generation of the proposed development is of low intensity (Ex 8 p 3).

• The noise impacts can be appropriately dealt with by way of conditions, including a condition on delivery hours and a condition limiting the noise emission from the premises to a sound level of 5dB(A) above the background noise level along the site boundaries (Ex 8 p 3).

• The potential lighting impacts can be limited by the imposition of conditions requiring external lighting to be restricted to the approved hours of operation with the exception of security sensor lighting and low-level bollard style lighting (Ex 8 p 3).

• The additional on slab and perimeter landscaping results in a contextually appropriate building which is fully compliant with the applicable built form standards in terms of height, setbacks and landscaped area, which will not be perceived as inappropriate or jarring in its context (Ex 8 p 4).

• The building “displays a height, footprint and form consistent with the existing buildings on the site” (Ex 8 p 4).

• The proposed excavation will not impact the existing natural landscape, and the demolition of the fibro dwelling and the revegetation of this area results in an enhancement of vegetation on the site (Ex 8 p 4).

• The proposed colours and materials will “assist in the building blending into the vegetated escarpment which forms a backdrop to the site” (Ex 8 p 4).

• There will be no impact on the dense bushland buffer established along Wakehurst Parkway and no fencing is proposed (Ex 8 p 4).

38. I accept their agreed evidence, on the basis of which I am satisfied that the proposed development is consistent with the desired future character described in the locality statement for the B2 Oxford Falls Valley Locality.

Bulk and massing

39. The Council also contended, in its Amended Statement of Facts and Contentions, that the bulk and massing of the proposed development is highly visible and inconsistent with general principle 66, contained in cl 66 of WLEP 2000 as follows:

66 Building bulk

Buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces, unless the applicable Locality Statement provides otherwise.

In particular—

• side and rear setbacks are to be progressively increased as wall height increases,

• large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief, and

• appropriate landscape plantings are to be provided to reduce the visual bulk of new buildings and works.

40. The agreed expert opinion evidence of Mr Boston and Ms Haidari is that the proposed development displays “a contextually appropriate height, bulk and scale which will not give rise to unacceptable streetscape, residential amenity or environmental impacts” (Ex 8 p 5). They agree that the height, bulk, scale and footprint of the proposed development is compatible with the existing buildings on the site, with the same architect, same architectural style and materiality used for all buildings. They also agree that the proposed building is oriented towards and utilises the established internal driveway system, consistent with the balance of development on the site. As such, they both agree that the development (as amended) is consistent with the general principle 66, contained in cl 66 above. I accept their agreed evidence.

Environmental features of the site

41. The Council also contended that the proposal is inconsistent with general principle 56, as it is not sympathetic to environmental features and has impacts on remnant native vegetation caused by the asset protection zone (contention 4). General principle 56 is contained in cl 56 of WLEP 2000:

56 Retaining distinctive environmental features on sites

Development is to be designed to retain and complement any distinctive environmental features of its site and on adjoining and nearby land.

In particular, development is to be designed to incorporate or be sympathetic to environmental features such as rock outcrops, remnant bushland and watercourses.

42. However, the agreed evidence of Mr Blackall and Mr McKinnon is that the proposal will be consistent with general principle 56 on the basis that the proposed development is located within a previously disturbed area of the site and will not impact the native bushland area. As the building will be built to BAL 40, a 19m asset protection zone (“APZ”) is required. They agree that it is possible to retain all existing canopy trees within the 19m APZ, with the exception of one tree (Tree 50, which is a red bloodwood). They therefore consider, and I accept their evidence, that the amended design results in an acceptable outcome for the identified environmental features. I accept therefore, that this contention has been resolved and does not warrant refusal of the development application.

Impact on flora

43. The Council also raised a contention that the proposed development has not been sited and designed to minimise the impact on flora, contrary to general principle 58, contained in cl 58 of WLEP 2000 as follows:

58 Protection of existing flora

Development is to be sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species.

44. However, as set out above, the agreed evidence of Mr Blackall and Mr McKinnon is that the development is sited and designed to minimise the impact on the existing trees and vegetation. There are only two trees that require removal. The first is the red bloodwood in the APZ referred to above (Tree 50). The second is a lilly pilly acmena smithii that is within the footprint of the proposed driveway (Tree 20) and is within a landscaped area. As such, Mr Blackall and Mr McKinnon agree that the potential impacts to existing flora are limited, and all native canopy trees can be retained with the exception of Tree 50, and the modification of shrub and ground layers will focus on removal of exotic flora species. They therefore agree that the amended design reflected in the proposed development is sited and designed to minimise the impact on remnant indigenous flora, including canopy trees and understorey vegetation, and on remnant native ground cover species. They therefore agree, and I accept, that the proposed development is consistent with general principle 58.

45. Further, they agree that the positive covenant (AN242389) which was established pursuant to the consent for the site (DA 2011/0985) for the purpose of managing, conserving, rehabilitating and protecting the bushland on Lot 100 in DP 1023183, should be revised to refer to an updated and amended Biodiversity Management Plan, which includes the APZ management zone. A condition requiring the creation of a positive covenant for bushland protection is included in the agreed conditions of consent.

Noise impacts

46. The Council also contended that there was insufficient information to ensure that the proposed development will be consistent with general principle 43 concerning noise (contention 6), which requires as follows (cl 43 of WLEP 2000):

43 Noise

Development is not to result in noise emission which would unreasonably diminish the amenity of the area and is not to result in noise intrusion which would be unreasonable to the occupants.

In particular—

• noise from the combined operation of all mechanical plant and equipment must not generate noise levels that exceed the ambient background noise level by more than 5 dB (A) when measured in accordance with the Environment Protection Authority’s Industrial Noise Policy at the receiving boundary of residential and other noise-sensitive land uses, and

• development near existing noise generating activities, such as industry and roads, is to be designed to mitigate the effect of that noise, and

• waste collection and delivery vehicles are not to operate in the vicinity of residential uses between 10 pm and 6 am.

47. An acoustic impact assessment has since been prepared by Mr Ken Scannell of Noise and Sound Services, dated February 2021 (Ex C). The assessment concludes that the acoustic impact arising from additional vehicles accessing the proposed development is in line with criteria given in the NSW Government’s Road Noise Policy (2011).

48. Further, as noted above, the expert town planners agree that the noise impacts would be appropriately managed through the imposition of a condition of consent limiting the delivery hours and a condition of consent limiting the noise emission from the premises to a sound level of 5dB(A) above the background noise level as measured along the site boundaries.

49. In addition, the parties have agreed to conditions of consent that restrict the hours for waste collection and delivery such that they are not to occur between the hours of 10pm and 6am.

50. For the above reasons, I consider that the proposed development is consistent with design principle 43 concerning noise.

Traffic access and road safety

51. The Council also contended that there was insufficient information to allow a proper assessment of the traffic access and road safety of the development in accordance with general principle 72 (contention 7), which is as follows (cl 72 of WLEP 2000):

72 Traffic access and safety

Vehicle access points for parking, servicing or deliveries, and pedestrian access, are to be located in such a way as to minimise—

• traffic hazards, and

• vehicles queuing on public roads, and

• the number of crossing places to a street, and

• traffic and pedestrian conflict, and

• interference with public transport facilities.

Where practical, vehicle access is to be obtained from minor streets and lanes.

52. The evidence of Ms Kong is that the traffic generation of the proposed development is 1.31 and 1.50 vehicle trips per hour per 100m² GFA for the AM and PM peak period. This results in traffic generation of 46 and 53 vehicle trips per hour in the peak AM and PM periods, which is reduced to 40 and 45 with the further amendments to the proposed development that were made at the hearing. Her evidence is also that:

• The peak hour truck movements of the proposed development will be less than that of the waste transfer station, with the total peak hour truck movements of both the stage 1 (existing approved industrial buildings) and stage 2 (proposed development) estimated to be similar to that of the waste transfer station (see Ex 9 p 5).

• The site will be serviced by small rigid vehicles only, which are smaller than the vehicles currently used for the waste transfer station. There will be a condition of consent preventing the waste management vehicle, which is a medium rigid vehicle, from accessing the site between 8am-9:30am and 2:30-4pm, Monday to Friday (Ex 9 p 8).

• The traffic impact assessment, which assesses the cumulative traffic impact of both the existing industrial complex and the proposed development, shows that acceptable operations of the intersections of Wakehurst Parkway/Dreadnought Road and Dreadnought Road/Oxford Falls Road will continue, with a minor increase of up to 4.4 seconds of average delay per vehicle when compared with existing conditions.

• The crash data provided by Transport for NSW indicated no crashes occur along Oxford Falls Road in the vicinity of the school, which demonstrates there are no safety issues along Oxford Falls Road (Ex 9 p 7).

• The existing vehicular access to the site measures 6m wide at the property boundary, and has operated safely to accommodate two-way traffic flow by service and delivery vehicles (Ex 9 p 5).

• There is no requirement for formed carriageways, kerb, gutter and footpath along Meatworks Avenue and the northern part of Oxford Falls Road, given that there will be insignificant foot traffic to/from the site (Ex 9 p 5).

• The morning peak hour associated with the proposed development will coincide partially with the school peak period between 8:30 to 9am, while the peak afternoon period of the proposed development will occur between 4:30 and 5:30pm, outside of the school’s pick up period. An area of street parking to the north of the school that is used by parents is separated from a walkable pathway by bollards, to allow for safe walking beside the road. Any illegal parking along the No Stopping zone along the school’s frontage by parents/carers and safety issues associated with this (including children walking along Oxford Falls Road) can be addressed as part of the traffic management plan for the school.

• Satisfactory swept path assessments have been carried out, and each of the industrial units have a dedicated loading area that can accommodate a small rigid vehicle or a B99.

• Shared zone signs with 10 kph posted speed limit will be installed within the site to ensure priorities are given to pedestrians within the site.

53. This evidence is not disputed by Ms Saket. The focus of cl 72 is on the vehicular access to the site, and I am satisfied that the vehicle access points for the proposed development are located in such a way as to minimise traffic hazards, vehicle queuing, conflicts and interference, such that the proposed development is consistent with general principle 72.

Watercourses and Water Sensitive Urban Design

54. The Council had also contended that there is insufficient information to ensure that the proposed development comprises Water Sensitive Urban Design and will not compromise water quality, consistent with general principle 60 (contention 8), which is contained in cl 60 of WLEP 2000 as follows:

60 Watercourses and aquatic habitat

Development is to be sited and designed to maintain and enhance natural watercourses and aquatic habitat.

55. However, Mr Kenny and Ms Ardren agree that the application is supported by a MUSIC water quality model, and that the application will meet the Water Sensitive Urban Design requirements. Ms Ardren is satisfied that the evidence demonstrates that the proposed development will not compromise water quality, and that there are solutions in place for water storage and reuse, consistent with the principles of Water Sensitive Urban Design. As such, I am satisfied that the proposed development is consistent with cl 60.

Geotechnical stability

56. The Council also contended that the proposed development is not accompanied by a geotechnical report that sufficiently addresses the matters in general principle 57 (contention 9), which concerns development on sloping land as follows (cl 57 of WLEP 2000):

57 Development on sloping land

On sloping land, the height and bulk of development, particularly on the downhill side, is to be minimised and the need for cut and fill reduced by designs which minimise the building footprint and allow the building mass to step down the slope.

In particular—

• the amount of fill is not to exceed more than 1 metre in depth, and

• fill is not to spread beyond the footprint of the building, and

• excavation of the landform is to be minimised.

The geotechnical stability of sloping land to support development is to be demonstrated.

Consent must not be granted for development involving the erection of a structure, including additions to an existing structure, on land identified as being potentially subject to landslip on the Landslip Hazard Map unless the consent authority has considered a report from a suitably qualified engineer as to the geotechnical stability of the land to support such development and an assessment of stormwater prepared by a suitably qualified hydraulic engineer.

57. An updated geotechnical report dated 26 February 2021 is now provided in support of the proposed development (Ex G), which fits the description of what is required to be considered by cl 57. The report specifically addresses cl 57 and concludes that the development can be undertaken with appropriate engineering design and construction controls, such that the risks of slope instability will be low, and that the existing rock formation can withstand the proposed loads and standard shoring works will ensure the stability of the excavation and protection of the proposed development.

58. Further, the design of the proposed development is such that it steps up with the slope of the land, with the ground floor at the same level as the driveway that forms part of the existing industrial complex, and the second floor (third storey) at the same level as the area already excavated for the waste transfer station.

59. Accordingly, I am satisfied that the proposed development is consistent with cl 57.

Development consent should be granted

60. As set out above, each of the contentions raised by the Council on the appeal has now been resolved through the amendments to the proposed development and by appropriate conditions of consent, and on the basis of the expert evidence. As such, the Council now agrees that there is no contention that warrants refusal of the proposed development.

61. The proposed development is a permissible use in the B2 Oxford Falls Valley Locality. It is of low impact and intensity, given that it is for the construction of an additional building within an existing industrial complex, within an already cleared area of the site, and designed in a manner that is consistent with the existing buildings within the complex. The design also allows the building to step up with the slope of the land and retain the features of the natural environment. The proposed development will not have an adverse acoustic impact, and the traffic impact is not unacceptable. As such, the proposed development is suitable for the site, is consistent with each of the general principles of development control in Part 4, and does not cause any discernible adverse impact. It is therefore appropriate for development consent to be granted subject to the conditions of consent that are agreed by the parties.

62. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted for the expansion of an approved industrial complex at Lot 100 Meatworks Avenue, Oxford Falls, by the construction of a building containing 10 industrial units with ancillary floor space, a roof top terrace, and associated car parking, subject to the conditions in Annexure A.

3. Exhibits 1-7 and D are returned.

……………………….

J Gray

Commissioner of the Court

Annexure A (368497, pdf)

**********

Decision last updated: 26 March 2021