The Trustee for TN Mortdale Unit Trust v Georges River Council

[2024] NSWLEC 1332

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Trustee for TN Mortdale Unit Trust v Georges River Council [2024] NSWLEC 1332

Hearing dates:

Conciliation Conference 29 May 2024, 6 and 7 June 2024

Date of orders:

18 June 2024

Decision date:

18 June 2024

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application to rely on the documents at [34] of this judgment in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $8,000 within 28 days.

(2) The appeal is upheld.

(3) DA-2023/0345 lodged on 31 August 2023 for construction and operation of a warehouse and storage building and associated works at Lot 6 DP505378, located at 62 Blackshaw Avenue, Mortdale NSW 2223 is determined by the grant of consent subject to conditions contained in Annexure A.

Catchwords:

DEVELOPMENT APPEAL – construction of warehouse and storage – conciliation conference – agreement between the parties - orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7

Land and Environment Court Act 1979, ss 34

Georges River Local Environmental Plan 2021, cll 4.3, 4.4, 5.21, 6.1, 6.2, 6.3,6.7, 6.8, 6.9, 6.10, 6.11

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

State Environmental Planning Policy (Industry and Employment) 2021, Ch3, ss 3.1, 3.6, Sch 5

Category:

Principal judgment

Parties:

The Trustee for TN Mortdale Unit Trust (ABN 79642060871) (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
R Lancaster SC (Applicant)
J Fan (Solicitor)(Respondent)

Solicitors:
Minter Ellison (Applicant)
Georges River Council (Respondent)

File Number(s):

2023/327295

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA-2023/0345 for construction and operation of a warehouse and storage building and associated works (the Proposed Development) at 62 Blackshaw Avenue, Mortdale NSW 2223 legally described as Lot 6 DP505378 (the Site).

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 has been held on 29 May 2024, 6 and 7 June 2024. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions.

4. The Applicant has amended the Proposed Development as agreed between the parties. The Amendment makes the following changes to the Proposed Development:

1. Demolition: removed from proposal;

2. Built form: office balconies removed and office areas increased;

3. Driveways: western ramp redesigned to suit flood levels. Eastern ramp rotated to protect tree number three;

4. Signage: pylon signs designed and shown on plans;

5. Stormwater: amendments to on site stormwater detention system; and

6. Landscaping: increased landscaping at site frontage and at grade carparking areas.

5. 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. 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.

6. The parties’ decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be a number of provisions in the Georges River Local Environmental Plan 2021 (GLEP), the terms of s 3.6 of the State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP) and the terms of s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience and Hazards SEPP). The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional statement from which I have summarised how each jurisdictional prerequisite has been satisfied.

8. The owner of the Land is the Georges River Property Investment Pty Ltd. The DA was made with the consent of the owner of the land (Tab 1 and Tab 2M Class 1 Application).

9. The DA as lodged was notified in accordance with Council’s notification policy between 21 September 2023 to 13 October 2023 and no submissions were received objecting to the DA. The Amendment does not require re-notification as the relevant officer of the Respondent has formed the opinion that the environmental impact of the amendments will be the same or lesser than the original proposal and that the impact on the owners and occupiers of adjoining land will not be detrimentally affected in any manner.

10. The Land is zoned E4 – General Industrial under the GLEP and the Proposed Development is permissible with the consent in the zone.

11. Clause 4.3 of the GLEP related to Building Height and prescribes a maximum building height of 12m. The Proposed Development complies as evidenced in Plan A1403.

12. Clause 4.4(2) of the GLEP relates to Floor Space Ratio (FSR) and prescribes a maximum FSR development standard of 1:1. The site area is 5284m². There is a total floor area of 4989.93m² which is a compliant FSR of 1:0.944.

13. Clause 5.21 of the GLEP relates to Flood Planning . The Civil Engineering Report prepared by Costin Roe Consulting dated 18 December 2023 is a comprehensive report addressing stormwater and flood affectation issues (Engineering Report Rev C)

14. Addressing the matters at cl 5.21(2) of the GLEP, the parties explain in the Jurisdictional Statement that Court can be satisfied pursuant to cl 5.21(2) that the development relating to the civil engineering response:

“(a)  is compatible with the flood function and behaviour on the land, and

See flooding and overland flow assessment at Section 7 of the Engineering Report Rev C. The proposed buildings finished floor level is set above the flood planning level specified by the council and is noted to be above the 1% AAP flood level. Safe refuge is available on the site for users during an extreme flood event.

(b)  will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and

See flooding and overland flow assessment at Section 7 of the Engineering Report Rev C, section 7.6. The portion of the site affected by flooding is located under a suspended slab. No changes in existing ground levels are proposed under the suspended slab. As such, the requirements for flood effects have been met.

(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, and

See flooding and overland flow assessment at Section 7 of the Engineering Report Rev C, section 7.6 and 7.7. The proposed buildings finished floor level is set above the flood planning level specified by the council and is noted to be above the 1% AEP flood level. Safe refuge is available on the site for users during an extreme flood event.

(d)  incorporates appropriate measures to manage risk to life in the event of a flood, and

As set out in the Engineering Report Rev C, the 1% AEP flood level is noted to be RL 14.5m AHD. The proposed development floor level is noted to be RL 19.0m AHD as shown on the architectural drawings. As such, the floor level requirements have been met.

The minimum surface level of open car parking spaces or carports shall be as high as practical, but no lower than 300mm below the 1% AEP flood level. In the case of garages, the minimum surface level shall be as high as practical, but no lower than the 1% AEP flood level.

(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.

The Proposed Development is located in an urbanised area in an industrial zone. The proposed stormwater drainage system is to connect to the Council’s drainage system. It contains best management practises including and settlement and erosion control plan and on site stormwater detention tanks to ensure that the quality of stormwater runoff is not detrimental to the receiving environment (Engineering Report Rev C p 25)”

15. Addressing the matters at cl 5.21(3) of the GLEP, parties explain in the Jurisdictional Statement that the Court can approve the development considering that the following matters have been addressed:

“(a) the impact of the development on projected changes to flood behaviour as a result of climate change,

The review and assessment in Engineering Report Rev C is based on a review of the detail survey, the proposed development, and assessment of the site in relation to the flood modelling and documented flood behaviour included in the ‘Overland Flow Risk Management Study and Plan for Hurstville, Mortdale and Peakhurst Wards’ (2016) (2016 Study). The 2016 Study implements flood planning levels with freeboard to account for climate change.

(b) the intended design and scale of buildings resulting from the development,

the Proposed Development complies with the FSR controls and has a number of design features to mitigate against flood impacts including on site flood storage and FFLs above the flood planning level.

(c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood,

See flooding and overland flow assessment at Section 7 of the Engineering Report Rev C, section 7.6 and 7.7. The proposed buildings finished floor level is set above the flood planning level specified by the council and is noted to be above the 1% AAP flood level. Safe refuge is available on the site for users during an extreme flood event.

(d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.

Not applicable.”

16. Clause 6.1 of the GLEP relates to Acid Sulfate Soils and applies to the Land because the land is mapped Class 5 under that clause. A letter has been prepared from an environmental consultant indicating that the geology of the site is sandstone, the water table will be not be penetrated and an acid sulphate soils management plan is not required.

17. Clause 6.2 of the GLEP relates to Earthworks applies as minor earthworks are proposed including for stormwater drainage infrastructure. A Civil Engineering Report prepared by Costin Roe Consulting dated 1 April 2021 has been prepared (Statement of Environmental Effects (SEE), Appendix 5). The matters in cl 6.2(3) have been considered in this report and by conditions of consent.

18. Clause 6.3 of the GLEP applies to stormwater management. In deciding whether to grant development consent for development, the consent authority can be satisfied that the development:

1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water:

1. The Site has historically been developed for industrial purposes. Additional permeable surfaces are provided for landscaping. A stormwater assessment has been conducted by reference to infiltration capacity (Engineering Report Rev C p 14)

2. includes, if practicable, on-site stormwater detention or retention to minimise stormwater runoff volumes and reduce the development’s reliance on mains water, groundwater or river water:

1. An OSD tank and system is proposed as part of the development storing 155.8m³.

3. avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact:

1. The Proposed Development is located in an urbanised area in an industrial zone. The proposed stormwater drainage system is to connect to the Council’s drainage system. It contains best management practises including and settlement and erosion control plan and on site stormwater detention tanks and gross pollutant traps to ensure that the quality of stormwater runoff is not detrimental to the receiving environment (Engineering Report Rev C p 25)

4. is designed to minimise the impact on public drainage systems.

1. The Proposed Development is located in an urbanised area in an industrial zone. The proposed stormwater drainage system is to connect to the Council’s drainage system. It contains best management practises including an erosion control plan and on site stormwater detention tanks to ensure that the quality of stormwater runoff is not detrimental to the receiving environment (Engineering Report Rev C p 25)”

19. The Site is approximately nine kilometres from the closest airport boundary, and on this basis has no potential to impact upon or in any way affect airspace operations at Sydney Airport. Accordingly, cl 6.7 (Airspace Operations) of the GLEP does not apply to the Proposed Development.

20. Clause 6.8 (Development in areas subject to aircraft noise) of the GLEP does not apply to the Proposed Development as the site is not on land near the Kingsford Smith Airport and in an ANEF contour of 20 or greater (cl 6.8(2)(a)). The Proposed Development is approximately nine kilometres from the closest airport boundary and is estimated to be approximately seven kilometres outside the closest point of the lowest (or 20) ANEF contour.

21. The parties agree that the Proposed Development complies with cl 6.9 (Essential services) as follows:

“a. the supply of water - Sydney Water has issued a notice of requirements to the Landowner pending council approval to supply water

b. the supply of electricity - Ausgrid have issued a connection offer to the Landowner for the proposed development.

c. the supply of telecommunications facilities - NBN have entered into an agreement with the Landowner to provide telecommunications facilities

d. the disposal and management of sewage - Sydney Water has issued a notice of requirements to the landowner pending council approval for disposal and management of sewage

e. stormwater drainage or on-site conservation - Stormwater drainage and on-site conservation has been designed by Costin Roe and forms part of the Development application for approval by council

f. suitable vehicular access - Vehicular access has been designed by BJB architects and assessed by Transport & Traffic Planning Associates and forms part of the Development application for approval by council.”

22. Clause 6.10 (Design excellence) of the GLEP does not apply because the building is below 12m high in the E4 General Industrial zone for the purposes of cl 6.10(3).

23. The parties agree that the Proposed Development complies with cl 6.11(3) (Environmental sustainability) and the proposed design has regard to:

1. Water demand reduction (cl 6.11(3)(a));

2. Energy demand reduction (cl 6.11(3)(b));

3. Indoor environmental quality through the provision of additional windows and shading (cl 6.11(3)(c));

4. Minimisation of surfaces that absorb and retain heat through light coloured reflecting roofing (cl 6.11(3)(d));

5. Reduction in new materials consumption and use of sustainable materials, including recycled content in concrete, sustainable timber and PVC minimisation (cl 6.11(3)(e)); and

6. Bike storage facilities have been provided to reduce car dependence cl 6.11(3)(f)).

24. Pursuant to s 4.6 of the Resilience and Hazards SEPP, a consent authority must be satisfied that appropriate consideration has been given to whether the Site is contaminated, the suitability of the Site to the proposed development and whether satisfactory measures are put into place to remediate the land should it be required to do so.

25. In relation to the satisfaction of requirements, the Environmental Preliminary Site Investigation Report (Appendix 16 to the SEE) confirms the contamination level at the Site is low to negligible despite a long history of industrial use.

26. Section 4.6(2) of the Resilience and Hazards SEPP requires the consideration of a report specifying the findings of a preliminary investigation of the land concerned, if:

1. The Proposal would involve a change of use; and

2. The land concerned is of a type set out in s 4.6(4).

27. The use of the Site is proposed to remain as industrial use and the land concerned is not of a type captured by s 4.6(4). As such, s 4.6(2) of the Resilience and Hazards SEPP is not engaged and consideration of a report specifying the findings of a preliminary investigation of the Site is not required.

28. The parties have agreed though on conditions 48 and 49 which address the handling of asbestos on the site, any unexpected finds of contamination and the lawful removal of waste material from the site.

29. Consent for business signage is sought and pursuant to s 3.6 of the Industry and Employment SEPP:

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

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

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

30. The proposed business signage for the Proposed Development is by way of a single pylon sign designed and shown on the following drawings:

1. Ground Floor Mezzanine Plan A1102 Issue P dated 31 May 2024;

2. First Floor Plan A1103 Issue P dated 31 May 2024;

3. Elevations 1 A1301 Issue O dated 16 May 2024;

4. Elevations 3 A1303 Issue O dated 16 May 2024;

5. Pylon Details A1505 Issue O dated 16 May 2024; and

6. 3D View A2000 and A2001 Issue O dated 16 May 2024.

31. In relation to the business signage, the parties agree that the Proposed Development proposes appropriate business signage that is consistent with the objectives of Ch 3 set out in s 3.1(1)(a) of the Industry and Employment SEPP and satisfies the assessment criteria specified in Sch 5.

32. 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. I adopt the reasons given by the parties as set out in this judgment.

33. 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.

Notations:

34. The Court notes that:

1. The Respondent, Georges River Council, as the relevant consent authority, has approved, under s 38 of the Environmental Planning and Assessment Regulation 2021, the Applicant amending Development Application DA2023/0345 to rely on the documents listed below:

Amended Architectural Plans
Plan description	Plan No and rev	Prepared by	Dated
Updated set of architectural plans, including sections, elevations and driveway details	2023-024-A1000 – 2023-024-A2010 Rev P	BJB Architects	31 May 2024
Amended landscape plans
Landscape Plans	1485-L-01 - 1485-L-07 Rev K	SiteDesign & Studios	31 May 2024
Amended Civil Engineering Plans
Drawing List and General Notes	CO15043.00DA10 – E	Costin Roe Consulting	8 May 2024
Erosion & Sediment Control Plan	CO15043.00DA20 – A	Costin Roe Consulting	4 August 2023
Erosion & Sediment Control Details	CO15043.00DA25 – A	Costin Roe Consulting	4 August 2023
Bulk Earthworks Plan	CO15043.00DA30 – C	Costin Roe Consulting	27 October 2023
Bulk Earthworks Sections	CO15043.00DA35 – B	Costin Roe Consulting	4 August 2023
Stormwater Drainage Plan	CO15043.00DA40 – I	Costin Roe Consulting	8 May 2024
Stormwater Catchment Plan	CO15043.00DA41 – C	Costin Roe Consulting	18 December 2023
Music Catchment Plan	CO15043.00DA42 – B	Costin Roe Consulting	4 August 2023
Stormwater Drainage Details	CO15043.00DA45 – D	Costin Roe Consulting	15 March 2024
Stormwater Drainage Details Sheet 2	CO15043.00DA46 – B	Costin Roe Consulting	8 May 2024
Stormwater Drainage Details Sheet 3	CO15043.00DA46 – A	Costin Roe Consulting	8 May 2024
Supporting Documentation
Letter regarding safety and security	NEAL Consulting Solutions	2 February 2024
Letter regarding Acid Sulfate Soils	Environmental Consulting Services	27 February 2024
Arborist Report	Jacksons Nature Works	Dated 31 January 2024
Section J Report	Version 2	Prepared by Integreco Consulting	1 February 2024
Traffic Assessment letter	N/A	Transport and Traffic Planning Associates	2 February 2024
Operational Waste Management Plan	Version 6	Foresight Environmental	14 March 2024
Performance Based Design Brief	Rev 1A	Architecture & Access	31 May 2024
Vertical Clearance Assessment of 6.4m Rigid Vehicle Accessing Driveway 1	29093 – Revision B	Transport and Traffic Planning Associates	9 April 2024
Addendum Statement of Environmental Effect	N/A	Willowtree Planning	8 April 2024
Survey Plan	N/A	Rygate & Company Pty Limited	15 May 2024
Letter regarding easement for drainage and updated plans	Rygate & Company Pty Limited	16 May 2024
Statement on Accessibility	N/A	Access & Architecture	17 May 2024
Letter to Richard Colussi regarding drainage easement	N/A	TN Mortdale Pty Ltd AFT TN Mortdale Unit Trust	21 May 2024
Letter to Council re driveway	N/A	Willowtree Planning	31 May 2024
Statement on accessibility	N/A	Access & Architecture	30 May 2024
Traffic Assessment letter	N/A	Transport and Traffic Planning Associates	31 May 2024
Planning response regarding LEP Clauses	N/A	Willowtree Planning	30 May 2024
Civil engineering response regarding LEP Clauses	N/A	Costin Roe Consulting	31 May 2024
Civil engineering report	Co15043.00	Costin Roe Consulting	12 December 2023

2. The Applicant filed the plans and documents referred at [34](1) on 7 June 2024.

Orders:

35. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application to rely on the documents at [34] of this judgment in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the amount of $8,000 within 28 days.

2. The appeal is upheld.

3. DA-2023/0345 lodged on 31 August 2023 for construction and operation of a warehouse and storage building and associated works at Lot 6 DP505378, located at 62 Blackshaw Avenue, Mortdale NSW 2223 is determined by the grant of consent subject to conditions contained in Annexure A.

……………………….

E Espinosa

Commissioner of the Court

Annexure A

**********

Decision last updated: 18 June 2024