The Trustee for ZML Family Trust v Georges River Council

[2024] NSWLEC 1503

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Trustee for ZML Family Trust v Georges River Council [2024] NSWLEC 1503

Hearing dates:

Conciliation Conference 6 August 2024

Date of orders:

21 August 2024

Decision date:

21 August 2024

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The applicant is to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

(2) The appeal is upheld.

(3) Development Application No. 2023/0089 for the demolition of existing structures, land remediation and the construction of a light industrial complex at 55-57 Halstead Street, South Hurstville is granted development consent subject to the conditions in Annexure A.

Catchwords:

APPEAL – Development application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.46, 8.7, 8.10, 8.11

Land and Environment Court Act 1979, ss 17, 34

Water Management Act 2000, s 91, Pt 3, Ch 3

Biodiversity Conservation Regulation 2017, cl 6.1

Environmental Planning and Assessment Regulation 2021, s 38

Georges River Local Environmental Plan 2021, cll 4.3, 4.4, 5.21, 6.1, 6.2, 6.3, 6.10, 6.11, 6.14, Sch 1

State Environmental Planning Policy (Biodiversity and Conservation) 2021 Ch 2, 6, cll 6.6, 6.7, 6.21

State Environmental Planning Policy (Industry and Employment) 2021

State Environmental Planning Policy (Resilience and Hazards) 2021

State Environmental Planning Policy (Transport and Infrastructure) 2021, cl 2.48

Category:

Principal judgment

Parties:

The Trustee for ZML Family Trust & The Trustee for JVM Family Trust (ABN 47 455 198 878) (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
L Mulligan (Solicitor) (Respondent)

Solicitors:
Apex Planning and Environment Law (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2023/220567

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicants against the respondent’s deemed refusal of the applicant’s development application (DA-2023/0089) (Development Application) for the demolition of existing structures, land remediation and the construction of a new light industrial complex comprising 29 industrial units and a food and drink premises located on land identified as Strata Plan 45503, known as 55-57 Halstead Street, South Hurstville (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent on 30 March 2023.

4. On 12 April 2023, the Development Application was referred externally to Ausgrid pursuant to cl 2.48 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (TISEPP). Ausgrid provided a response stating that the Development Application was suitable, subject to suitable conditions regarding minimum clearances from Ausgrid infrastructure.

5. On 11 July 2023, the proceedings were commenced by the applicant, being within the appeal period prescribed by ss 8.10 and 8.11 of the EPA Act.

6. On 7 August 2023, the Development Application was referred externally to the Department of Planning and Environment (DPE) for the concurrence of the National Resources Access Regulator (NRAR) pursuant to s 91 of the Water Management Act 2000 (WM Act).

7. On 22 August 2023, the respondent filed its Statement of Facts and Contentions (SOFAC).

8. On 4 September 2023, the DPE provided General Terms of Approval (GTA) for part of the proposed development requiring a Controlled Activity approval under the WM Act.

9. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 8 February 2024 and subsequently terminated. The matter was listed for hearing on 6-8 August 2024.

10. On 18 June 2024, the Court granted leave for the applicants to amend the Development Application to rely on further and amended documents. On 26 June 2024, as directed by the Court, the applicants filed the appendices to the amended Statement of Environmental Effects prepared by Patch Planning & Development dated June 2024 (SEE).

11. On 27 June 2024, the respondent filed its Amended Statement of Facts and Contentions (ASOFAC) which removed some, but not all, of the contentions.

12. On 16 July 2024, the parties filed a Joint Landscape Report prepared by Rob Loughman and Craig Kenworthy (Joint Landscape Report) and a Joint Waste Report prepared by Jordan Parker and Garry Dickens (Joint Waste Report).

13. On 16 July 2024, amended landscape plans prepared by Ground Ink, Issue I, dated 16 July 2024, were filed with the Court, annexed to the Joint Landscape Report (Amended Landscape Plans).

14. On 17 July 2024, the parties filed a Joint Traffic Report prepared by Daniel Walker and Paul Corbett (Joint Traffic Report).

15. At the commencement of the hearing, the parties informed the Court that they had reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Development Application in a further amended form (Amended Development Application) cited at [61], subject to conditions of consent.

16. The Amended Development Application comprises:

1. 22 industrial tenancies, each with supporting ancillary office areas;

2. 7 self storage tenancies;

3. 1 food and drink premises including outdoor dining space fronting Halstead Street;

4. Lobby areas and outdoor breakfast recreation areas for staff and visitors;

5. Vehicular access through two driveways off Halstead Street;

6. Vehicular parking and circulation areas across the lower ground, upper ground and level 1 floors, providing for a total of 64 car parking spaces;

7. 30 loading areas appropriate for Small Rigid Vehicles (SRV) access and servicing;

8. 25 bicycle parking spaces and circulation areas;

9. Roof mounted photo-voltaic array to provide green energy for communal spaces; and

10. Permitter deep soil landscaping and on-site planting, including 48 new trees.

17. The parties provided a signed s 34 agreement supported by a jurisdictional statement and requested that the matter be listed for a further conciliation conference.

18. The matter was then listed for a conciliation conference on 6 August 2024. I presided over the conciliation conference and the hearing was vacated.

19. 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.

Submissions and notification

20. The Development Application was notified by the respondent between 20 April and 5 May 2023.

21. 38 submissions were received in response to the notification.

22. Amended material was re-notified to residents on 19 June 2024. The Court was provided with five further written objections addressing the amended material.

23. Three objectors addressed the Court at the on-site view associated with the hearing on 6 August 2024. The Court also inspected 53 Halstead Street, South Hurstville, at the request of the resident.

Jurisdictional considerations

24. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s34(3) of the LEC Act). I form this state of satisfaction for the reasons that follow.

Owner’s consent

25. The registered proprietors of the Subject Land are JVM Holdings Pty Ltd and ZML Holdings Pty Ltd as tenants in common in equal shares.

26. Signed owners’ consent has been provided from the director of JVM Holdings Pty Ltd and the director of ZML Holdings Pty Ltd to the Trustee for ZML Family Trust and the Trustee for JVM Family Trust to submit and manage development related applications in relation to the Subject Land (see letters dated 22 July 2024 in the s 34 Bundle).

Water Management Act 2000

27. The Amended Development Application is integrated development pursuant to s 4.46 of the EPA Act, as it seeks consent for the carrying out of a “controlled activity” on “waterfront land” pursuant to Pt 3 of Ch 3 of the WM Act.

28. As set out above at [8], NRAR provided GTAs to the Development Application which have been incorporated at condition 8 of the Agreed Conditions.

Biodiversity Conservation Regulation 2017

29. The respondent initially raised in its SOFAC that the proximity of the Subject Land to Poulton Park and Poulton Creek raised additional biodiversity impacts for the purposes of cl 6.1 of the Biodiversity Conservation Regulation 2017 (BC Regulation).

30. The parties submit, and I accept, that the Amended Development Application will not negatively impact the biodiversity values prescribed by cl 6.1 of the BC Regulation and that this contention is resolved for the reasons set out in the Ecology Report prepared by Ms Elizabeth Ashby of Keystone Ecological, dated 8 December 2023 (Ecology Report).

31. State Environmental Planning Policy (Biodiversity and Conservation) 2021

32. Chapter 2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP) relates to the preservation and management of vegetation in non-rural areas which includes the Georges River Local Government Area and land in the E4 General Industrial zone.

33. The parties submit, and I accept, that Ch 2 is not applicable to the Amended Development Application as the proposed removal of trees is ancillary to development requiring development consent (see pp 24 of the SEE).

34. Chapter 6 of the BC SEPP applies to the Amended Development application as the Subject Land is located within the Georges River Catchment.

35. Pursuant to cl 6.6 of the BC SEPP regarding water quality and quantity, the consent authority must consider the matters listed in cl 6.6(1) and be satisfied of the matters in cl 6.6(2) prior to granting consent. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 6.6(1) and am satisfied of the matters listed in cl 6.6(2) having regard to the Ecology Report, including that:

1. the proposed development will upgrade site sewage infrastructure, install rainwater detention tanks with Ocean Protect filters, install a stacked rock headwall with geofabric and plants to dissipate flow velocity and install porous ground with locally native species planted in landscaped gardens that will act inter alia as a waterway buffer; and

2. the implementation of these controls will improve water quality and have minimal, if any, impacts on water flow.

36. Pursuant to cl 6.7 of the BC SEPP regarding aquatic ecology, the consent authority must consider the matters listed in cl 6.7(1) and be satisfied of the matters in cl 6.7(2) prior to granting consent. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 6.7(1) and am satisfied of the matters listed in cl 6.7(2) having regard to the Ecology Report, including that:

1. the proposed development will replace an old industrial complex with a new industrial complex in the same footprint;

2. none of the nearby riparian habitats will be directly impacted;

3. wetland habitats are distant, the closest being over 400m downstream and there are no aquatic reserves nearby;

4. no riparian vegetation is to be removed and the potential for us of the riparian areas as a movement corridor for fauna or flora is unlikely to be adversely impacted; and

5. all required erosion and sedimentation controls are to be implemented and the erosion of creek banks or sedimentation of the waterbody are unlikely to occur.

37. Clause 6.21 of the BC SEPP relating to stormwater management applies to the Amended Development Application and provides that development is prohibited if untreated stormwater is disposed of in a natural waterbody. Pursuant to the Ecology Report, the Amended Development Application proposes stormwater management measures that comprise standard modern controls during construction and operation (including sediment traps, grates, engineered headwall, rainwater tanks and Ocean Protect filter cartridges). The parties submit, and I accept, that the Amended Development Application complies with cl 6.21 of the BC SEPP.

State Environmental Planning Policy (Resilience and Hazards) 2021

38. Section 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) provides that a consent authority must not consent to the carrying out of any development on land unless:

1. it has considered whether the land is contaminated; and

2. if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

3. if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

39. A Detailed Site Investigation was prepared by JBS&G dated 23 November 2023 (DSI) which recommended, amongst other things, the preparation of a Remediation Action Plan to address existing contamination on the Subject Land. A Remedial Action Plan prepared by JBS&G dated 17 November 2023 (RAP) has confirmed that the Subject Land will be satisfactorily remediated before it is used for the purposes for which consent is sought. Measures required include:

1. removing the existing underground storage tank and associated infrastructure;

2. tank backfill material and any further petroleum impacted soils; and

3. appropriate management of surface asbestos containing materials.

40. Pursuant to cl 4.6(1) of the RH SEPP, in determining the Amended Development Application and having regard to the DSI, RAP and conditions 37, 38 and 39 of the Agreed Conditions, I am satisfied that the Subject Land will be remediated and made suitable for the purpose for which the development is proposed to be carried out before the land is used for that purpose.

State Environmental Planning Policy (Transport and Infrastructure) 2021

41. The parties agree that cl 2.48 of the TISEPP applies to the Amened Development Application due to the proximity of the Subject Land to the provision of electrical infrastructure.

42. As set out at [4], the Development Application was referred externally to Ausgrid pursuant to cl 2.48 of the TISEPP on 12 April 2023. Ausgrid provided a response stating that the Development Application was suitable, subject to certain requirements. Ausgrid’s requirements have been incorporated at conditions 16, 135 and 136 of the Agreed Conditions.

Georges River Local Environmental Plan 2021

43. The Site is zoned E4 General Industrial under the Georges River Local Environmental Plan (GRLEP). Accordingly, light industries, self-storage and food and drink premises are permitted with consent in the E4 zone. I have had regard to the zone objectives which are extracted below:

• To provide a range of industrial, warehouse, logistics and related land uses.

• To ensure the efficient and viable use of land for industrial uses.

• To minimise any adverse effect of industry on other land uses.

• To encourage employment opportunities.

• To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

• To encourage a range of uses that support the repair, reuse, recycling, remanufacturing and reprocessing of waste.

44. I note that the parties agree that the Amended Development Application is consistent with these objectives.

45. Pursuant to cl 4.3 of the GRLEP, the maximum building height permissible for the Subject Land is 12m. The parties agree that the Amended Development Application complies with this standard.

46. Pursuant to s 4.4 of the GRLEP, a maximum floor space ratio (FSR) development standard of 1:1 applies to the Subject Land. The parties agree that the Amended Development Application complies with this standard.

47. Pursuant to cl 5.21 of the GRLEP regarding flood planning, the consent authority must be satisfied of the matters listed in cl 5.21(2) and consider the matters listed in cl 5.21(3) prior to granting consent. In determining the Amended Development Application, I confirm that I am satisfied of the matters listed in cl 5.21(2) and have considered the matters listed in cl 5.21(3) having regard to the Flood Impact and Risk Assessment Management Report prepared by IGS dated 15 December 2023 (Flood Report).

48. Pursuant to cl 6.1(2) of the GRLEP relating to Acid Sulfate Soils, the Subject Land is mapped as Class 5. The DSI provides that the proposed excavation is not anticipated to alter the groundwater levels or general acid sulfate soils in adjacent Class 1 - 4 areas (see also p 27 of the SEE). The parties submit and I accept that cl 6.1 of the BLEP is addressed by the Amended Development Application.

49. Pursuant to cl 6.2 of the GRLEP relating to earthworks, the consent authority must consider the matters listed in cl 6.2(3) in deciding whether to grant development consent. In determining the Amended Development Application, I confirm that I have considered the matters listed in cl 6.2(3) of the GRLEP having regard to pp 27-29 of the SEE.

50. Pursuant to cl 6.3 of the GRLEP relating to stormwater, a consent authority must be satisfied of the matters listed in cl 6.3(2) before granting development consent. The parties submit and I accept that cl 6.3 of the GRLEP is addressed by the Amended Development Application having regard to pp 29 – 30 of the SEE, the findings and recommendation of the Flood Report and the updated Stormwater Management Plans prepared by IGS and filed with the Court on 6 August 2024.

51. Pursuant to clause 6.10 of the GRLEP, consent must not be granted to a development unless the consent authority has considered and is satisfied that the development exhibits design excellence. The parties submit and I accept that the Amended Development Application exhibits design excellence for the reasons set out at pp 30 - 32 in the SEE and the Certificate of Design prepared by IGS dated 12 June 2024.

52. Pursuant to cl 6.11 of the GRLEP relating to environmental sustainability, development consent must not be granted to specified development unless adequate consideration has been given to the matters listed in cl 6.11(3). The parties submit and I accept that the matters listed in cl 6.11(3) have been considered in the design of the building, having regard to p 33 of the SEE, the results of the Environmental Sustainability Calculator and the Ecologically Sustainable Design Report prepared by IGS dated 9 December 2022.

53. Pursuant to cl 6.14 of the GRLEP relating to restaurants or cafes and take away food and drink premises in Zone E4, development consent must not be granted to development for the purposes of a restaurant or café or take away good and drink premises on land in Zone E4 General Industrial if the gross floor area (GFA) is more than 20% of the GFA of the industrial activity located on the same land or 200m². The parties submit, and I accept, that this provision is complied with having regard to p 33 of the SEE.

54. Item 13 of Schedule 1, entitled “use of certain land for office premises” applies to the Subject Land and provides that development for the purpose of office premises is permitted with development consent if the consent authority is satisfied that the premises will be used for a creative purpose. The parties submit, and I accept, that this provision is complied with having regard to pp 33 - 34 of the SEE.

Georges River Development Control Plan 2021

55. The parties submit, and I accept, that the provisions of the Georges River Development Control Plan 2021 that are of relevance have been taken into account in assessing the Amended Development Application.

Remaining matters under s 4.15 of the EPA Act

56. In relation to s 4.15(1)(b), the parties agree that the proposed development will not have a significant impact on the natural or built environment and will in fact have a positive impact on the broader streetscape (see p 58 of the SEE).

57. In relation to s 4.15(1)(c), the parties agree that the Subject Land is suitable for the development (see p 58 of the SEE).

58. In relation to s 4.15(1)(d) of the EPA Act, details of the notification of the Development Application and further amended plans, and submissions received, is set out above at [20] – [23]. I am satisfied that the written and oral submissions received have been taken into consideration in the assessment and determination of the Amended Development Application.

59. In relation to s 4.15(1)(e), the parties agree that the proposed development is in the public interest (see also p 58 of the SEE).

Conclusion

60. 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.

61. 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.

62. The Court notes that:

1. The respondent, as the relevant consent authority, has approved, pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the further amendment of Development Application No. DA2023/0089 in accordance with the following plans and documents:

1. Architectural plans prepared by Nettletontribe Architects
Drawing Number	Drawing Name	Issue	Date
DA000	Cover Sheet	E	N/A
DA100	Site Analysis Plan	C	5 June 2024
DA101	Site Plan	F	25 July 2024
DA102	Demolition Plan	B	5 June 2024
DA111	Lower Ground Floor Plan	F	25 July 2024
DA112	Upper Ground Floor Plan	F	25 July 2024
DA113	Level 1 Floor Plan	F	25 July 2024
DA114	Level 2 Floor Plan	F	25 July 2024
DA115	Roof Plan	F	24 July 2024
DA201	Building Elevation – Sheet 1	F	24 July 2024
DA202	Building Elevation – Sheet 2	F	24 July 2024
DA203	Internal Elevations	C	24 July 2024
DA204	Building Elevation – 53 Halstead	B	24 July 2024
DA251	Perspective Imagery	D	24 July 2024
DA301	Building Sections	D	24 July 2024
DA901	Shadow & Solar Analysis	B	24 July 2024
DA902	Height Plane Diagram 3D	B	24 July 2024
DA903	View Analysis – 53 Halsted	A	5 June 2024
2. Landscape Plans prepared by Ground Ink and Schedule of Amendments
Drawing Number	Drawing Name	Rev	Date
LDA-001	Landscape Cover Sheet	I	16 July 2024
LDA-101	Landscape Plan – Lower Ground Floor	I	16 July 2024
LDA-102	Landscape Plan – Upper Ground Floor	I	16 July 2024
LDA-103	Landscape Plan – Level 1	I	16 July 2024
LDA-104	Landscape Areas Circulation	I	16 July 2024
LDA-105	Projected Site Canopy Coverage	I	16 July 2024
LDA-201	Landscape Section	I	16 July 2024
LDA-301	Landscape Details	I	16 July 2024
3. Stormwater Plans and Driveway Section prepared by IGS
Drawing Number	Drawing Name	Rev	Date
SW00	Cover Sheet and Legend	03	6 June 2024
SW01	Lower Ground Stormwater Layout	07	26 July 2024
SW02	Upper Ground Stormwater Layout	05	10 July 2024
SW03	Level 1 Stormwater Layout	05	10 July 2024
SW04	Level 2 Stormwater Layout	03	6 June 2024
SW05	Roof Stormwater Layout	03	6 June 2024
SW06	Catchment Plan	03	6 June 2024
SW07	Sediment and erosion control Plan	02	May 2024
SW08	RWT Detail Sheet	02	October 2023
SW09	Basement Pump Out Pit Detail Sheet	01	17 June 2024
-	Ocean Protect 11 Cartridge Stormfilter System Specification Drawing	-	-
C100	Driveway Sections	01	31 May 2024
4. Owner’s consent dated 22 July 2024.

2. The documents referred to above were filed with the Court on 6 August 2024.

63. Orders

64. The Court orders that:

1. The applicants are to pay the respondent’s costs thrown away as a result of the amendment of the application for development consent as agreed or assessed in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).

2. The appeal is upheld.

3. Development Application No. 2023/0089 for the demolition of existing structures, land remediation and the construction of a light industrial complex at 55-57 Halstead Street, South Hurstville is granted development consent subject to the conditions in Annexure A.

……………………….

N Targett

Commissioner of the Court

Annexure A

**********

Amendments

26 August 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, a correction is made to the name of the Applicant.

Decision last updated: 26 August 2024