Whitara Pty Limited v Canterbury-Bankstown Council

Case •

[2021] NSWLEC 1445

•

04 August 2021

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: Whitara Pty Limited v Canterbury-Bankstown Council [2021] NSWLEC 1445
Hearing dates: 23 and 26 July 2021 following a Conciliation Conference on 23 February 2021, 22 March 2021, 23 April 2021, 21 May 2021, 10, 18 and 23 June 2021.
Date of orders: 4 August 2021
Decision date: 04 August 2021
Jurisdiction:Class 1
Before: Peatman AC
Decision:

The Court orders:

See orders at [43] below

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions for self-storage warehouse – new self-storage units – contamination on discrete parts of the site – traffic sight lines – traffic flow – orders

Legislation Cited:

Canterbury Local Environmental Plan 2012, cll 2.3, 4.4, 5.10, 6.1, 6.2, 6.6

Civil Procedure Act 2005, ss 64, 65

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15

Environmental Planning and Assessment Regulation 2000, cll 49, 77, 113

Land and Environment Court Act 1979, ss 17, 34(b), 39

State Environmental Planning Policy No 55 – Remediation of Land, cl 7

State Environmental Planning Policy No 64 – Advertising and Signage

Category:Principal judgment
Parties: Whitara Pty Limited (Applicant)
Canterbury-Bankstown Council (Respondent)
Representation:

Counsel:
A Perkins (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)

Solicitor:
Project Lawyers Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)
File Number(s): 2020/340877
Publication restriction: No

Judgment

  1. COMMISSIONER: Pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) on 1 December 2020 the Applicant appealed the deemed refusal of Development Application No. 568/2020 (DA) which it lodged with Canterbury-Bankstown Council (Council) on 21 July 2020.

Background

  1. The DA is for alterations and additions to an existing warehouse complex, including a series of self-storage units. The self-storage units will occupy the northern portion of the existing warehouse building, the ancillary office building fronting Belmore Road and three new buildings to be constructed in an open area between the existing warehouse and office building.

  2. A pylon sign is to be installed at the front of the site and building signage installed to the existing showroom and warehouse.

  3. The site is the whole of the land in Lot 6 in Deposited Plan 1030800 and is known as 62 Belmore Road North, Riverwood. The site has an irregular shape of 5.58ha or 55,800m2, with 49m frontage to Belmore Road North, and a secondary frontage of 4m to Bonds Road.

  4. The site is currently occupied by a factory/warehouse complex with a total floor area of approximately 22,399m2, comprising 14,000m2 of factory floor space (not part of this DA), 7,630m2 warehouse floor space (part of this DA), and 769m2 of ancillary office/showroom floor space (not part of this DA):

  1. The factory building generally occupies the northern portion of the site.

  2. The warehouse building generally occupies the central portion of the site.

  3. The ancillary office/showroom building generally occupies the western portion of the site, fronting Belmore Road North.

  4. The outdoor storage of shipping containers occupies the southern portion on Lot 4 of the site.

  1. The surrounding development is characterised by industrial/warehouse related land uses, accommodated within a mix of older style and contemporary warehouse/industrial style buildings.

Figure 1: the whole of the land owned by the Applicant is set out above. The development occurs on part of the site: part of Lots 4 and 6 in DP 1030800. The main entrance to the site is on Belmore Road North, and the secondary entrance is on Bonds Road. The proposed development is marked in light blue – being the new buildings partway into the site from the Belmore Road North access, and the internal fitout of the large warehouse building, with ancillary access, parking, signage pole and landscaping.

  1. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 23 February 2021, 22 March 2021, 23 April 2021, 21 May 2021, 10, 18 and 23 June 2021. I presided over the conciliation conference.

  2. On 13 July 2021 the parties advised that the Contentions had been resolved, but that condition 59(c) of the Draft Conditions of Consent remained in contention. The parties requested that the s 34 be converted to a hearing in accordance with s 34(4)(b) of the LEC Act on the basis of what has occurred at the s 34(1) conciliation conference.

  3. On 23 July 2021 I terminated the s 34(1) conciliation conference, and converted the matter to a hearing in accordance with s 34(4)(b) of the LEC Act. At the commencement of the hearing I made the following Orders:

“Order 1: The s 34(1) conciliation conference is terminated and a hearing commence in accordance with s 34(4)(b) of the EPA Act.

Order 2: The hearing in accordance with s 34(4)(b) of the EPA Act to dispose of the matter is taking into account of what has occurred during the conciliation conference.”

Legislation

Canterbury Local Environmental Plan 2012

Zone IN1   General Industrial

1   Objectives of zone

•  To provide a wide range of industrial and warehouse land uses.

•  To encourage employment opportunities.

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

•  To support and protect industrial land for industrial uses.

2.3   Zone objectives and Land Use Table

(1)  The Land Use Table at the end of this Part specifies for each zone—

(a)  the objectives for development, and

(b)  development that may be carried out without development consent, and

(c)  development that may be carried out only with development consent, and

(d)  development that is prohibited.

(2)  The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.

4.4 Floor space ratio

(1)  The objectives of this clause are as follows—

(a)  to provide effective control over the bulk of future development,

(b)  to protect the environmental amenity and desired future character of an area,

(c)  to minimise adverse environmental impacts on adjoining properties and the public domain,

(d)  to optimise development density within easy walk of the railway stations and commercial centres.

(2)  The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

(2A)  Despite subclause (2), the maximum floor space ratio for a building that is a dwelling house or a semi-detached dwelling is as follows—

(a)  0.65:1—if the site area is less than 200 square metres,

(b)  0.55:1—if the site area is at least 200 square metres, but less than 600 square metres,

(c)  0.5:1—in any other case.

5.10   Heritage conservation

Note—

Heritage items (if any) are listed and described in Schedule 5. Heritage conservation areas (if any) are shown on the Heritage Map as well as being described in Schedule 5.

6.1   Acid sulfate soils

(1)  The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.

(2)  Development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works.

6.6   Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a)  the supply of water,

(b)  the supply of electricity,

(c)  the disposal and management of sewage,

(d)  stormwater drainage or on-site conservation,

(e)  suitable vehicular access.

Civil Procedure Act 2005

64   Amendment of documents generally

(cf SCR Part 20, rules 1 and 4; DCR Part 17, rules 1 and 4)

(1)  At any stage of proceedings, the court may order—

(a)  that any document in the proceedings be amended, or

(b)  that leave be granted to a party to amend any document in the proceedings.

65   Amendment of originating process after expiry of limitation period

(cf SCR Part 20, rule 4; DCR Part 17, rule 4)

(1)  This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.

(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as—

(a)  to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or

(b)  to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or

…

(3)  Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.

(4) This section does not limit the powers of the court under section 64.

(5)  This section has effect despite anything to the contrary in the Limitation Act 1969.

(6)  In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.

Environmental Planning and Assessment Act 1979

4.15   Evaluation

(cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)  the provisions of—

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)    (Repealed)

that apply to the land to which the development application relates,

(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)  the suitability of the site for the development,

(d)  any submissions made in accordance with this Act or the regulations,

(e)  the public interest.

(2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority—

(a)  is not entitled to take those standards into further consideration in determining the development application, and

(b)  must not refuse the application on the ground that the development does not comply with those standards, and

(c)  must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,

and the discretion of the consent authority under this section and section 4.16 is limited accordingly.

(3)  If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards—

(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and

(b)  a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

Note—

The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4).

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a)  if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b)  if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c)  may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

(4) Consent where an accreditation is in force A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.

(5)  A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4).

(6) Definitions In this section—

(a)  reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and

(b)  non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards.

4.16   Determination

(cf previous s 80)

(1) General A consent authority is to determine a development application by—

(a)  granting consent to the application, either unconditionally or subject to conditions, or

(b)  refusing consent to the application.

(2)  Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

…

8.7   Appeal by applicant—applications for development consent

(cf previous s 97)

(1)  An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

(2)  For the purposes of this section, the determination of an application by a consent authority includes—

(a)  any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or

(b)  any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.

(3)  An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court.

8.15 Miscellaneous provisions relating to appeals under this Division

(cf previous s 97B; s 39A Land and Environment Court Act)

(1)  Separate appeals under this Division with respect to the determination of an application for development consent are, as far as practicable, to be heard together.

(2)  On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion—

(a)  that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

(b)  that—

(i)  it is in the interests of justice, or

(ii)  it is in the public interest,

that the person be joined as a party to the appeal.

(3) If the Court on an appeal by an applicant under this Division allows the applicant to file an amended application for development consent (other than to make a minor amendment), the Court must make an order for the payment by the applicant of those costs of the consent authority that have been thrown away as a result of the amendment of the application for development consent. This subsection does not apply to proceedings to which section 34AA of the Land and Environment Court Act applies.

Environmental Planning and Assessment Regulation 2000

49   Persons who can make development applications

(cf clause 46 of EP&A Regulation 1994)

(1)  A development application may be made—

(a)  by the owner of the land to which the development application relates, or

77   Notice of development applications

(1)  As soon as practicable after a development application is lodged with the consent authority, the consent authority must—

(a)  publish notice of the application on the consent authority’s website, and

(b)  give notice of the application to—

(i)  the public authorities (other than relevant concurrence authorities or approval bodies) that, in the opinion of the consent authority, may have an interest in the determination of the application, and

(ii)  in the case of a development application other than designated development—the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development).

(2)  The notice must contain the following information—

(a)  a description (including the address) of the land on which the development is proposed to be carried out,

(b)  the name of the applicant and the consent authority,

(c)  a description of the proposed development,

(d)  whether or not the development is designated development, nominated integrated development, threatened species development, Class 1 aquaculture development or State significant development,

(e)  a statement that the development application and the documents accompanying the application, including any environmental impact statement, are publicly available on the consent authority’s website for the period specified in Schedule 1 to the Act for that kind of development,

…

113   Applications taken to be refused

(cf clause 70B of EP&A Regulation 1994)

(1)  For the purposes of section 8.11(1) of the Act, a development application is taken to be refused if a consent authority has not determined the application within the deemed refusal period, being—

(a)  40 days, except in the case of development referred to in paragraph (b) or (c), or

…

(2)  The deemed refusal period is measured from—

(a)  the date the development application is lodged on the NSW planning portal, or

(b) the date the Commission complies with clause 6 of Schedule 2 to the Act, if a public hearing has been conducted by the Independent Planning Commission into development other than development the subject of a development application to which section 8.7 of the Act does not apply, or part of any such development.

…

Note—

This clause does not apply in respect of a development application if section 8.7 of the Act does not apply to the application.

…

Land and Environment Court Act 1979

17   Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

…

(d)  appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning And Assessment Act 1979

34   Conciliation conferences

(1)  If proceedings are pending in Class 1, 2 or 3 of the Court’s jurisdiction, the Court—

(a)  may arrange a conciliation conference between the parties or their representatives, with or without their consent, and

(b)  if it does so, must notify the parties or their representatives of the time and place fixed for the conference.

(1A)  It is the duty of each party to proceedings where a conciliation conference has been arranged under subsection (1) to participate, in good faith, in the conciliation conference.

(2)  A conciliation conference is to be presided over by a single Commissioner.

(3)  If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—

(a)  must dispose of the proceedings in accordance with the decision, and

(b)  must set out in writing the terms of the decision.

(4)  If no such agreement is reached, the Commissioner must terminate the conciliation conference and—

(a)  unless the parties consent under paragraph (b), must make a written report to the Court—

(i)  stating that no such agreement has been reached and that the conciliation conference has been terminated, and

(ii)  setting out what in the Commissioner’s view are the issues in dispute between the parties, or

(b)  if the parties consent to the Commissioner disposing of the proceedings, must dispose of the proceedings—

(i)  following a hearing, whether held forthwith or later, or

(ii)  with the consent of the parties, on the basis of what has occurred at the conciliation conference.

39   Powers of Court on appeals

(1)  In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)  In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)  The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

(6)  Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body—

(a)  the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and

(b)  in a case where the concurrence or approval has been granted—the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body.

(6A)    (Repealed)

(7)  The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

(8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.

s 39: Am 1994 No 44, Sch 19; 1997 No 156, Sch 4.10 [6]; 2000 No 2, Sch 1 [4]; 2017 No 60, Sch 11.5 [1].

State Environmental Planning Policy No. 55 – Remediation of Land

7   Contamination and remediation to be considered in determining development application

(1)  A consent authority must not consent to the carrying out of any development on land unless—

(a)  it has considered whether the land is contaminated, and

(b)  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

(c)  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.

(2)  Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3)  The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4)  The land concerned is—

(a)  land that is within an investigation area,

(b)  land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c)  to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land—

(i)  in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii)  on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

Council’s contentions:

  1. (1) “The Application is not supported by sufficient information to allow the consent authority to properly undertake the assessment required by s 4.15 of the EPA Act”. Particulars:

  1. Detailed Site Investigation:

“The following information is required: As recommended in the Preliminary Site Investigation prepared by Douglas Partners Pty Ltd, reference Project 86231.01 dated February 2018 a Detailed Site Investigation is to be completed involving an assessment of soils, groundwater, surface water/leachate and landfill gas to assess the sites localised and broader impacts.”

  1. Sight Line Triangles:

“Information provided for the ‘sight line triangles to pedestrians’ show the sight line triangle in accordance with Figure 3.3 of AS2890.1.2004 extends onto the adjacent property at 7- Belmore Road. The sight line triangle must remain wholly within the site at 62 Belmore Road, Riverwood otherwise the neighbouring property may do something that restricts pedestrian sight lines.”

  1. Belmore Road Parking:

“Further analysis is required to determine whether parking on Belmore Road opposite the site entrances should be restricted to allow through traffic to pass cars and trucks turning into the site, if delays and queues are excessive.

Belmore Road is one lane in each direction with unrestricted parking on both sides of the road. Existing peak hour traffic movements were counted by the consultant to be around 500-600 vehicles per hour in each direction.

These counts need to be verified by a 7-day count to record hourly vehicle movements, vehicle classification and speeds. Based on this information traffic delays and queues to through traffic movement on Belmore can be determined.”

The Evidence

  1. In response to Contention 19(a): Detailed Site Investigation the Applicant has tendered 2 reports:

  1. Exhibit B: Remediation Action Plan dated 26 May 2021 by the Trinitas Group.

  2. Exhibit E: Detailed Site Investigation Report dated 18 March 2021 by the Trinitas Group.

  3. Exhibit D: Plans, with particular reference to:

  1. Plan 1242:A3 DA 02 Rev DA – Site Plan Existing by Michael Standley & Associates Pty Ltd,

  2. Plan 1242:A3 DA 03 Rev DA – Site Plan Proposed by Michael Standley & Associates Pty Ltd.

  1. I note that in relation to Contention 1(a) the Council tendered Ex 2: Draft Conditions of Consent, with particular reference to condition 59.

  2. In response to Contention 1(b): Sight Line Triangles, the Application tendered the following documents:

  1. Exhibit F: Site Access Assessment Report dated 23 March 2021 by Stanbury Traffic Planning, and with particular reference to Appendix 1 – Plan 1242:A3 DA 14 Plan of Western Part of the Site, showing proposed widening of the driveway by Michael Standley & Associates Pty Ltd.

  2. Exhibit D: Plans with particular reference to Plan 1242:A3 DA12 Rev A, Truck Swept Path Plan and Location of Sight Lines for Pedestrian Safety by Michael Standley & Associates Pty Ltd.

  1. In response to Contention 1(c): Belmore Road Parking, the Applicant relies upon Ex F: Site Access Assessment Report as referred to in [13] above.

Findings

  1. The DA was lodged with the consent of the owner of the land in accordance with cl 49 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).

  2. The DA was lodged with Council on 21 July 2020. On 12 August 2020 to 1 September 2020 the Council notified, and placed the DA on public exhibition in accordance with cl 77 of the EPA Regulation. Council received one submission which raised issues relating to traffic flow on Belmore Road North and access over an internal bridge on the property. Both of these issues were resolved to Council’s satisfaction after further investigation by the Applicant. [1]

    1. Ex F: Site Access Assessment Report dated 23 March 2021 by Stanbury Traffic Planning.

  3. On 1 December 2020 the Applicant commenced proceedings in this Court against the deemed refusal of the DA. The lodgement of the appeal by the Applicant complies with the time provision of 40 days or more after lodgement of the DA with Council in accordance with cl 113 of the EPA Regulation.

  4. The Applicant, with the consent of Council, requested the Court to correct the name of the proceedings. On 26 July 2021 (in chambers) in accordance with the Civil Procedure Act 2005 ss 64(1)(a) and 65(2)(b), I granted leave to the Applicant to substitute the owner of the land, Whitara Pty Limited, as the Applicant noting that the applicant on the DA to Council was Creative Solutions (Aust) Pty Ltd:

“Order that Whitara Pty Ltd, as the owner of the land, is substituted as the Applicant in these proceedings.”

  1. The Applicant has standing to commence the proceedings pursuant to s 8.7(1) of the EPA Act.

  2. The proceedings fall within Class 1 of the Court jurisdiction pursuant to s 17(d) of the LEC Act. The Court can exercise its functions and power to dispose of the proceedings pursuant to s 4.16 of the EPA Act, and ss 34(4)(b) and 39 of the LEC Act. In exercising its functions and power the Court shall have regard to s 4.15 of the EPA Act.

  3. The site is zoned IN1 General Industrial under the Canterbury Local Environmental Plan 2012 (CLEP2012).

  4. The proposed development is for the purpose of alterations and additions to an existing factory/warehouse complex, and construction of 3 buildings on a vacant part of the site, for use as self-storage units and associated signage, which is permitted with consent in the IN1 General Industrial zone under CLEP2012.

  5. The DA meets the objectives of the IN1 General Industrial zone under cl 2.3 of CLEP2012 and the Zone IN1 General Industrial Land Use Table of CLEP2012.   

  6. Pursuant to cl 4.4 of CLEP2012, the maximum floor space ratio (FSR) permitted for the site is 1:1. The FSR of the proposed development in the DA is 0.46:1, and it therefore complies with the FSR development standard.

  7. Clause 5.10 of CLEP2012 – Heritage Conservation, does not apply to the site as the subject site is not identified as a heritage item, nor is it located within a heritage conservation area, or within the vicinity of a heritage item or a heritage conservation area.

  8. Clause 6.1 of CLEP2012 Acid Sulfate Soils, applies to the proposal. The site is identified as a ‘no known risk’ with regard to acid sulfate soils.

  9. Clause 6.2 of CLEP2012 Earthworks requires the consent authority to consider any detrimental impacts on existing drainage patterns or soil stability, the likely future use of the land, the quality of any fill or excavated material, the amenity of neighbouring properties, and the course of any fill material. The proposed development does not involve excessive earthworks, and the construction phase will be carefully managed to ensure there are no adverse impacts on the environment, the amenity of neighbouring properties, or water quality.

  10. Clause 6.6 of CLEP2012 requires the consent authority to be satisfied that services that are essential for the development are available when required. The proposed development does not generate a demand for any services or infrastructure that are not currently available to the site.

  11. State Environmental Planning Policy No. 64 – Advertising and Signage (SEPP64) applies to the DA. SEPP64 generally aims to ensure that advertising is compatible with the desired future amenity and visual character of an area, provides an effective means of communication in suitable locations, and is of a high quality design and finish. The signage as proposed will provide an effective means of visually identifying the operator of the proposed facility, is of a high quality finish, and responds appropriately to the architectural features of the existing buildings.

  12. Contention 1(a) relates to State Environmental Planning Policy No 55 – Remediation of Land (SEPP55). Clause 7(1) of SEPP55 requires consideration of any contamination and associated remediation. A Detailed Site Investigation Report (DSI) dated 18 March 2021 (Ex E), and a Remedial Action Plan (RAP) dated 27 May 2021 (Ex B) both by Trinitas Group addressed this contention. The DSI concluded that the land is suitable in its contaminated state, subject to the remediation actions set out in the RAP, for the purpose for which the development is proposed in the DA.

  13. After considering the DSI and the RAP, Council produced its Draft Conditions of Consent. [2] The parties agreed to all the conditions except for Draft Condition 59(c), and they referred Condition 59(c) to the Court for determination. Draft Condition 59 relates to the RAP and clean up of the contamination on the site. Sub-section 59(c) is in the following terms:

“(c) Prior to the Execution of Works associated with the built form of the development (excluding building work directly related to remediation) issue of an Occupation Certificate a Site Audit Statement is to be obtained from a NSW EPA Accredited Site Auditor. The Site Audit Statement must confirm that the site has been remediated in accordance with the approved Remediation Action Plan and that the site is suitable for the proposed use. Conditions on the Site Audit Statement must form part of the consent.

Where the Site Audit Statement is subject to conditions that require ongoing review by the Auditor or Council, these must be reviewed and approved by Council prior to the issue of a Site Audit Statement.”

2. Ex 2: Council’s Draft Conditions of Consent.

  1. The Applicant requests that the words as underlined below be deleted:

“(c) Prior to the execution of works associated with the built form of the development (excluding building work directly related to remediation) issue of an Occupation Certificate a Site Audit Statement ……………..”

  1. The Applicant submits that the words underlined above should be deleted for the following reasons:

  1. In Ex B, Appendix 1, p 58 of the RAP: Site Layout Plan, Remediation Areas and Potential Contaminants of Environmental Concern in Figure 8 below, the areas of concern are:

  1. Parking and Road 450m2 on the north-western side of the Office and Showroom on Belmore Road North;

  2. The Carparking Area designated for new self-storage under the DA – 1,000m2 with the potential for an UST;

  3. The pond on the southern side of the Site where a new parking area will be constructed under the DA – 2,700m2 ;

  4. Investigation of an area labelled “leachate creek” which appears to be an underground pipe from Lot 4 which houses shipping containers and does not form part of this DA.

Ex B Remediation Action Plan, Figure 8 p 54: Areas of Environmental Concern.

  1. Whilst referring to the 4 Areas marked on Plan 1242:A3 DA 02 Rev DA ‘Site Plan Existing’ in Ex D [3] : and the RAP in Ex B the Applicant noted:

    3. Ex D: Plans.

  1. Area 1 depicts the ‘Existing Office and Showroom’ area adjacent to Belmore Road North. There is approximately 450m2 of land which needs to be remediated – roughly under the carparking area on the north-western boundary.

  2. Area 2 depicts the ‘Existing Bridge Open area’. The open area is the site for the proposed new storage facilities. The Trinitas Group has identified a possible UST (underground storage tank) and a possible area of remediation of 1,000m2.

  3. Area 3 depicts the 2 adjoining “Existing Warehouses’ and the ‘Existing Brick Manufacturing Building’. The warehouse on the northern side of the adjoining warehouses (northern warehouse) is part of the DA, and shall be internally fitted with a mezzanine level and storage facilities. The warehouse on the southern side of the adjoining warehouses (southern warehouse) is not part of the DA. The brick manufacturing facility is not part of this DA.

  4. The brick manufacturing facility and the southern warehouse are independent businesses and both gain access via the Belmore Road North Access. There is an alternate access to Bond Road but the brick manufacturing facility does not have access via Bond Road.

  1. The Applicant submits that it is unreasonable to “lock up” the whole site whilst only discrete areas of the site require remediation. All the access routes on the site are sealed and do not require remediation. The Applicant requests that in order to keep the DA being implemented and workers employed that internal fitout of the northern warehouse should be permitted, noting that the Occupation Certificate will not be granted until the site is remediated in accordance with the RAP in Ex B.

  2. The Council submits that Condition 59(c) should remain as drafted by the Council for the following reasons:

  1. It is a standard condition – Council is not proposing anything out of the ordinary.

  2. In view of the Remedial Plan, [4] the remediation will take place over an extended period of time, as it also requires an Accredited Site Assessor to produce a Validation report. [5]

  3. Allowance needs to be made for a contingency plan to extend the time for remediation if there are unexpected finds. [6]

  4. Condition 59(c) is a standard condition that links to the profile of what is there now, and what could potentially be found on site.

  1. Condition 59(c) has been drafted for health and safety reasons.

    4. Ex D: Plans; Ex B: RAP, par 8 p 29-31.

    5. Ibid, Ex B p 44.

    6. Ibid, Ex B p 45.

  1. The Applicant responded to the Council’s arguments in relation to the potential for unexpected finds on the site, for example asbestos containing material, that the Council has the power to issue a Stop Work Order.

  2. After considering the submissions of both the Applicant and Council, I find:

  1. The DA is for part of the site, as detailed above. There are 2 independent businesses on the site which gain access to the site via Belmore Road North – the brick manufacturing facility and the southern warehouse. Further, the adjoining neighbour to the south, adjacent to the pond, has a right of way from Belmore Road North, over the bridge, to its warehouse facility.

  2. Each of the following remediation areas can be isolated within the site by appropriate fencing during the remediation process:

  1. Parking and Road 450m2 on the north-western side of the Office and Showroom on Belmore Road North;

  2. The Carparking Area designated for new self-storage under the DA – 1,000m2 with the potential for an UST;

  3. The pond on the southern side of the Site where a new parking area will be constructed under the DA – 2,700m2 ;

By securely fencing these areas access will be maintained to the brick manufacturing facility, the northern warehouse and the adjoining owner to the south which has the benefit of a right of way.

  1. In relation to the investigation of an area labelled “leachate creek” which appears to be an underground pipe from Lot 4 which houses shipping containers, this area does not form part of the DA, but will be investigated in conjunction with the investigation of the pond area to ascertain if there is any leachate draining into the pond, or elsewhere. This investigation of contamination can be carried out in accordance with the RAP but as it is within the area on the southern side of the concrete apron next to the southern warehouse it is anticipated it will not impede access.

  2. During the hearing the parties agreed that condition 59(d) should be redrafted and moved to become condition 50(c), and condition 59(c) become condition 50(d). Further that the references to the subparagraphs in condition 59 should read A, B, C and D and not (a)-(d).

  3. Condition 59(c) and (d) should be redrafted to as follows:

“59 C   The contamination containment areas as identified in Appendix 1 – Site Layout Plan, ‘Remediation Areas and Potential Contaminants of Environmental Concern’, p 54 of the Remedial Action Plan by Trinitas Group, dated 26 May 2021, p54 must be delineated and surveyed by a Registered Surveyor, and identified on a survey drawing. After the survey drawing is approved by the supervising environmental consultant, sufficient fencing is to be constructed to isolate the contaminated containment areas prior to remediation commencing. The survey drawing must be included in the validation report, prior to construction of the contamination containment areas in accordance with the DA.”

“59 D   Subject to 50 (c) the internal fitout of the southern warehouse in accordance with the DA may commence upon the grant of a Construction Certificate. Prior to the execution of works associated with the built form in contamination containment areas, and the issue of an Occupation Certificate, a Site Audit Statement is to be obtained from an NSW EPA Accredited Site Auditor. The Site Audit Statement must confirm that the site has been remediated in accordance with the approved Remedial Action Plan and that the site is suitable for the proposed use. Conditions on the Site Audit Statement must form part of the consent.”

“Where the Site Audit Statement is subject to conditions that require ongoing review by the Auditor or Council, these must be reviewed and approved by Council prior to the issue of a Site Audit Statement.”

  1. Contention 1 (b) and (c) were resolved with the Council being satisfied as to the sight line triangles at the entrance/exit to the site on Belmore Road North, and with traffic calming lines being drawn to guide traffic over the internal bridge on the site. Further Contention 1 (c) Belmore Road Parking was similarly resolved after further investigation and the filing of the Stanbury Traffic Planning’s Site Access Assessment. [7] In relation to Contentions 1(b) and (c) Stanbury Traffic Planning concluded on p 11 of Ex F:

    7. Ex F: Site Access Assessment by Stanbury Traffic Planning dated 23 March 2021.

  • “Whilst the existing southern-most site access driveway connecting with Belmore Road North is readily capable of accommodating the largest vehicles expected to service the proposed self-storage use (being MRVs), largest AVs are currently understood to be required to also enter and exit the site associated with existing warehouse and factory uses;

  • Swept path analysis indicates that AVs are undesirably required to encroach upon the northbound Belmore Road North travel lane when entering and existing the site, thereby indicating that there is currently a warrant to widen the exiting driveway, regardless to the subject proposal;

  • It is accordingly recommended that the existing southern-most site access driveway be widened to provide a width of 15.6m, …

  • Swept path analysis ……illustrates that AVs will be capable of entering and exiting the site via left turn movements in combination with passenger vehicles without undesirable encroachment on the northbound Belmore Road North travel lane, incorporating the above recommended driveway widening work;

  • The subject application is not expected to measurably alter the existing traffic generating capacity of the subject site;

  • SIDRA modelling analysis indicates that:

- The Junction of Belmore Road North and the subject access driveway is projected to provide motorists with a level of service ‘A’, representing good operation; and

- Through movements within Belmore Road North are projected to be relatively unaffected by vehicles turning to and from the subject site.

  • On the basis of the above analysis, it is not considered that alterations to the existing kerb-side parking provisions within Belmore Road North to facilitate the passing of decelerating or stopped vehicles waiting to turn into the site are warranted.”

  1. I accept the evidence of Stanbury Traffic Planning, and note that the Applicant and Council accept that advice as depicted in Plan 1242:AS DA 12 Rev A in Ex D which shows, inter alia, sufficient sight line triangle for pedestrian safety, and the widening of the entrance way by extending the entrance further to the north on the site.

  2. Prior to final orders being made in this matter, the parties are to comply with the requirements of cl 121B of the EPA Regulation as set out below, which includes uploading the amended plans to the NSW Planning Portal by the Council, and the Applicant filing the amended DA once Council has uploaded the amended DA on the NSW Planning Portal. On receipt of the amended DA final orders shall be issued.

  3. The Court Notes that:

  1. Canterbury-Bankstown Council as the relevant consent authority has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amendment the Development Application No. 568/2020 (development application) filed with the Court on 1 December 2020 by amending the Plans in Ex D:

  1. Plan 1242:A3 DA.05 Rev B: Plan showing reuse of former office building at Belmore Road – showing amended waste storage area;

  2. Plan 1242:A3 DA.13 Plan showing details of waste and recycling bin storage and associated areas. The purpose of this drawing is to clearly show, at a larger scale, the waste and recycling bin storage holding areas and carting route.

  3. Plan 1242A3 DA.14 Rev A: Plan of western part of the shite showing widening of the driveway and sight line triangle.

  1. The Court directs that:

  1. The respondent, Canterbury-Bankstown Council amend the draft Condition of Consent in Annexure A hereto by deleting Condition 59 (c) and (d) and inserting in place thereof the following Conditions 59 C and D:

”59 C   The contamination containment areas as identified in Appendix 1 – Site Layout Plan, ‘Remediation Areas and Potential Contaminants of Environmental Concern’, p 54 of the Remedial Action Plan by Trinitas Group, dated 26 May 2021, p54 must be delineated and surveyed by a Registered Surveyor, and identified on a survey drawing. After the survey drawing is approved by the supervising environmental consultant, sufficient fencing is to be constructed to isolate the contaminated containment areas prior to remediation commencing. The survey drawing must be included in the validation report, prior to construction of the contamination containment areas in accordance with the DA.”

“59 D   Subject to 50 (c) the internal fitout of the southern warehouse in accordance with the DA may commence upon the grant of a Construction Certificate. Prior to the execution of works associated with the built form in contamination containment areas, and the issue of an Occupation Certificate, a Site Audit Statement is to be obtained from an NSW EPA Accredited Site Auditor. The Site Audit Statement must confirm that the site has been remediated in accordance with the approved Remedial Action Plan and that the site is suitable for the proposed use. Conditions on the Site Audit Statement must form part of the consent.”

“Where the Site Audit Statement is subject to conditions that require ongoing review by the Auditor or Council, these must be reviewed and approved by Council prior to the issue of a Site Audit Statement.”

  1. The respondent, Canterbury-Bankstown Council, as the relevant consent authority, is to lodge the amendment of the development application on the NSW planning portal within 7 days of the date of this order and notify the applicant and the Court after it has been lodged.

  2. The applicant is to file a copy of the amended development application within 7 days after the respondent has notified the applicant that the amendment has been lodged on the NSW planning portal.

  3. In the event the respondent is unable to lodge the amended application on the NSW planning portal as directed in (2) above, the respondent is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the order and for the matter to be relisted for further directions.

  4. In the event that (2) and (3) above are complied with, the applicant is to pay the respondent’s costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed.

…………………………

M Peatman

Acting Commissioner of the Court

**********

Endnotes

Decision last updated: 04 August 2021

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Whitara Pty Ltd v Canterbury-Bankstown Council (No 2) [2021] NSWLEC 1477
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