Whitara Pty Ltd v Canterbury-Bankstown Council (No 2)
[2021] NSWLEC 1477
•23 August 2021
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Whitara Pty Ltd v Canterbury-Bankstown Council (No 2) [2021] NSWLEC 1477 Hearing dates: 16 August 2021 Date of orders: 23 August 2021 Decision date: 23 August 2021 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders:
1. The appeal is upheld.
2. Consent is granted to Development Application No. 568/2020 for alterations and additions to an existing warehouse complex, including a series of self storage units on Lot 6 in Deposited Plan 1030800 known as 62 Belmore Road North, Riverwood NSW 2210.
3. The exhibits are retained.
The Court notes that the parties have agreed that 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.
Catchwords: DEVELOPMENT APPLICATION – alteration and additions for self-storage warehouse – new self-storage units – contamination on discrete parts of the site – traffic sight lines – traffic flow – final orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.15
Environmental Planning and Assessment Regulations 2000, cl 121B
Land and Environment Court Act 1979, s 39
Category: Consequential orders Parties: Whitara Pty Limited (Applicant)
Canterbury-Bankstown Council (Respondent)Representation: Counsel:
Solicitors:
A Perkins (Solicitor) (Applicant)
M Bonanno (Solicitor) (Respondent)
Project Lawyers Pty Ltd (Applicant)
Canterbury-Bankstown Council (Respondent)
File Number(s): 2020/340877 Publication restriction: No
Judgment
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COMMISSIONER: On 4 August 2021 I delivered the principal judgment in this matter, Whitara Pty Limited v Canterbury Bankstown Council [2021] NSWLEC 1445 (principal judgment).
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In accordance with Direction (2) given in the principal judgment, and in compliance of cl 121B(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) Canterbury Bankstown Council (Council) uploaded a copy of the Amended Development Application No. 568/2020 (DA) onto the NSW Planning Portal on 6 August 2021. The DA Online reference number is PAN-19510 for Council Id: DA-568/2020 dated 6 August 2021. A copy of the acknowledgment of PAN-19510 from the NSW Planning Portal is Ex 3.
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In accordance with Direction (3) given in the principal judgment and cl 121B(2) of the EPA Regulation, the Applicant filed a copy of the amended DA in Court on 11 August 2021. The amended DA of 2 volumes is Ex G.
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The amendments to the plans as filed in Court on 11 August 2021 have arisen as a result of the Applicant addressing Contentions 1 (a) and (b) raised by the Council. The amendments to the plans have not changed the substantive proposal for alterations and additions to an existing warehouse complex, and including additional new storage units. The amendments to the plans have:
Improved the traffic sight lines (particularly the sight line triangle at the exit) for large vehicles entering and exiting the site on Belmore Road North;
Identified the waste disposal areas for the temporary storage and collection of waste;
Defined the areas requiring remediation of potential contaminants on the site.
I am satisfied that the development is substantially the same as that originally applied for by the Applicant, both in a qualitative and quantitative perspective.
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The draft conditions of consent have been amended in accordance with [38] of the principal judgment, subject to the correction of a typographical error in condition 59D (first line: amend condition 50C to 59C). The final Conditions of Consent, as corrected, are Ex 4, and comply with the requirements of s 4.17 of the Environmental Planning and Assessment Act 1979 (EPA Act).
Legislation
Environmental Planning and Assessment Regulation 2000
121B Amendment of modification application—the Act, s 4.64(1)(q)
(1) An application for modification of a development consent may, with the agreement of the consent authority, be amended by the applicant at any time before the application is determined by lodging an amendment on the NSW planning portal.
(2) If the amendment results in a change to the development, the applicant must provide the consent authority with details of the nature of the change to the application.
Environmental Planning and Assessment Act 1979 No 203
Current version for 4 June 2021 to date (accessed 15 August 2021 at 14:43)
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.
s 4.15 (previously s 79C): Renumbered 2017 No 60, Sch 4.2 [1]. Am 2016 No 20, Sch 4.1 [1] [2]. Am 2018 No 25, Sch 4 [5] [17].
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.
…..
(11) Other restrictions on determination of development applications The regulations may specify other matters of a procedural nature that are to be complied with before a development application may be determined.
4.17 Imposition of conditions
(cf previous s 80A)
(1) Conditions—generally A condition of development consent may be imposed if—
(a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or
(b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or
(c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or
(d) it limits the period during which development may be carried out in accordance with the consent so granted, or
(e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or
(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or
(g) it modifies details of the development the subject of the development application, or
(h) it is authorised to be imposed under section 4.16(3) or (5), subsections (5)–(9) of this section or section 7.11, 7.12, 7.24 or 7.32.
(2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.
(3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect.
(4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following—
(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,
(b) clear criteria against which achievement of the outcome or objective must be assessed.
8.15 Miscellaneous provisions relating to appeals under this Division
(cf previous s 97B; s 39A Land and Environment Court Act)
(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 1979 applies
Land and Environment Court Act 1979
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.
…….(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.
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The provisions of s 4.15 of the EPA Act have been satisfied. In accordance with subss 4.16(1) and (11) of the EPA Act, and s 39(2) of the Land and Environment Court Act1979 I shall uphold the appeal and grant consent to the DA in accordance with the conditions of consent in Annexure A.
Orders
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The Court orders:
The appeal is upheld;
Consent is granted to Development Application No. 568/2020 for alterations and additions to an existing warehouse complex, including a series of self-storage units in accordance with the conditions of consent in Annexure A, on Lot 6 in Deposited Plan 1030800 known as 62 Belmore Road North, Riverwood NSW 2210.
The Exhibits are retained.
The Court notes that the parties have agreed that 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
Annexure A (264791, pdf)
Plans (1245816, pdf)
Landscape Plans (1608914, pdf)
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Amendments
09 September 2021 - Corrected clerical error by substituting an incorrect plan uploaded with the judgment.
Decision last updated: 09 September 2021
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