Wincrow Pty. Limited v Liverpool City Council

[2023] NSWLEC 1000

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wincrow Pty. Limited v Liverpool City Council [2023] NSWLEC 1000

Hearing dates:

Conciliation conference on 21 November 2022

Date of orders:

5 January 2023

Decision date:

05 January 2023

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1)      the Applicant is granted leave to rely on the amended documentation listed at Annexure “A” to this judgment;

(2) within 28 days of making these orders, the Applicant is to pay the Respondent’s costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1000;

(3)   the appeal is upheld;

(4)   Development Application No. DA-690/2022, as amended, for the construction of two warehouse buildings containing seven individually tenanted industrial units with ancillary office space, the construction of a dual level carpark and associated works, is approved subject to the conditions of consent in Annexure “B” to this judgment.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7, 8.15
Environment Planning and Assessment Regulation 2000, cl 55

Environment Planning and Assessment Regulation 2021, Sch 6 s 3
Land and Environment Court Act 1979, s 34

Liverpool Local Environmental Plan 2008, cll 2.3, 4.3, 4.4, 5.21

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 2.3, 6.65, 11.5, 11.6, 11.7

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

State Environmental Planning (Transport and Infrastructure) 2021, cl 2.118

State Environmental Planning Policy No 55 – Remediation of Land

Water Management Act 2000

Texts Cited:

Liverpool Development Control Plan 2008

Category:

Principal judgment

Parties:

Wincrow Pty. Limited (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
B Salon (Solicitor)(Applicant)
L Sims (Respondent)

Solicitors:
Mills Oakley (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2022/241133

Publication restriction:

No

Judgment

1. COMMISSIONER: Wincrow Pty. Limited (the Applicant) has appealed the refusal by Liverpool, City Council (the Respondent) of its Development Application No. DA-690/2022, as amended, for the construction of two warehouse buildings containing seven individually tenanted industrial units with ancillary office space, the construction of a dual level carpark and associated works (the Proposed Development) at 238 Hoxton Park Road, Prestons (Lot 5 DP1036490) (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The appeal is determined pursuant to the provisions of s 4.16 of the EP&A Act.

3. The Applicant’s Development Application was notified by the Respondent between 17 August and 14 September 2022 and no submissions were received in response.

4. On 21 November 2022, the Parties participated in a s 34 conciliation conference under the Land and Environment Court Act 1979 (LEC Act) and reached an in-principle agreement regarding the granting of consent to the Applicant’s amended development application, subject to conditions.

5. A site inspection had been undertaken prior to the conciliation conference as part of the proceedings.

6. At the conciliation conference the Parties reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s amended development application, subject to conditions.

7. 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.

8. There are jurisdictional matters that must be satisfied before the Court can exercise its power to grant consent to the Proposed Development, and those requirements have been satisfied as follows:

1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H):

1. on 1 March 2022, SEPP R&H came into force, replacing the State Environmental Planning Policy No 55–Remediation of Land;

2. section 4.6 of SEPP R&H provides that a consent authority must not consent to the carrying out of development unless it has considered whether the land is contaminated;

3. the Applicant has provided (in addition to the detailed site investigation lodged with its development application) a Site Audit Report prepared by GHD Consultants, which has confirmed the suitability of the Applicant’s proposed remediation action plan, which is also the subject of agreed conditions of consent by the Parties (agreed condition 93), and I am satisfied that, as required under the provisions of s 4.6 of SEPP R&H, the Subject Site will be suitable for its intended use;

2. in relation to the relevant provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C):

1. the Subject Site is located within the Georges River Catchment;

2. pursuant to the savings and transitional provisions of s 6.65 of SEPP B&C, the Proposed Development remains subject to the provisions of the former Ch 11 of SEPP B&C prior to their repeal on 21 November 2022, and in relation to this:

3. pursuant to ss 11.5 and 11.6, a consent authority must consider whether the proposed development has the potential to adversely affect the water quality, river flows, flood regime or ecosystems within the Georges River Catchment, and whether appropriate stormwater management and water quality measures are proposed; and

4. the Parties have considered the matters set out in ss 11.6 and 11.7 and, on the basis of the Applicant’s provision of flood assessment and stormwater management reports, are satisfied that the proposal will have no impact on the Georges River or downstream local government areas;

5. accordingly, the Proposed Development, as amended, is consistent with the aims and objectives of the SEPP B&C; and

3. in relation to the relevant provisions of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I):

1. the provisions of cl 2.118 of the SEPP T&I apply to the Proposed Development as it shares a frontage to a classified road, being Hoxton Park Road; and

2. in response to the requirements of cl 2.118(2)

1. the Applicant has written notice of the application to TfNSW; and

2. it has taken into consideration the response to the notice provided by TfNSW; and

3. the parties advise, and I am satisfied that the provisions of cl 2.118 of SEPP T&I have been satisfied;

4. in relation to the provisions of Liverpool Local Environmental Plan 2008 (LLEP):

1. the Subject Site is zoned B6 – Enterprise Corridor under the provisions of cl 2.3 of LLEP and the Proposed Development is characterised as being for the purposes of ‘warehouse or distribution centre’ which is a permissible use within the B6 zone;

2. under the provisions of cl 4.3 of LLEP, a maximum building height of 15m applies to development on the Subject Site and there is no contravention of this standard within the Proposed Development;

3. under the provisions of cl 4.4 of LLEP, the permitted floor space ratio (FSR) applicable to development on the Subject Site is 0.75:1 and the Proposed Development complies with this standard;

4. the Subject Site is subject to flooding and pursuant to cl 5.21(2) of LLEP, the consent authority must be satisfied that the Proposed Development:

1. is compatible with the flood function and behaviour on the land; and

2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties; and

3. the Applicant has provided a revised flood study and the Parties agree, and I am satisfied that, this demonstrates that the requirements of clause 5.21(2) are satisfied as the floor level of the buildings will be at the flood planning level and there is a flood storage level below the car park

5. in relation to the provisions of Liverpool Development Control Plan 2008 (LDCP):

1. clause 3.4 to Part 1 of LDCP contains landscaping specifications, and the Parties agree that the relevant provisions are satisfied by the provision of the Applicant’s landscaping plans;

2. clause 6.1 to Part 1 of LDCP requires that stormwater runoff shall be connected to Council’s drainage system, which the Parties agree has been addressed by the provision of the Applicant’s Stormwater Operation and Management Plan and associated stormwater plans;

3. the Parties agree that the Applicant’s provision of stormwater-related documents satisfy the requirements of clause 6.3 to Part 1 of LDCP, which relates to requirements concerning gross pollutant traps;

4. clause 6.5 to Part 1 of LDCP applies to the Proposed Development and the Parties agree that the Applicant’s Stormwater Operation and Management Plan, and associated stormwater plans, satisfy the requirements of this clause;

5. the DRAINS model provided by the Applicant demonstrates the requirements of clause 6.7 to Part 1 of LDCP which relates to the regulation of environmental flows;

6. the Applicant’s Stormwater Operation and Management Plan and associated stormwater plans address provisions of clause 6.8 to Part 1 of LDCP which relate to requirements for water conservation;

7. clause 7 to Part 1 of LDCP applies to the Proposed Development and the Parties agree, and I am satisfied, that approval under the Water Management Act 2000 is not required as the Proposed Development is for local development not integrated development;

8. clause 8 to Part 1 of LDCP relates to erosion and sediment control, which the Parties agree has been adequately addressed by the Applicant’s erosion and sediment control plans prepared by Wehbe Consulting Pty Ltd Stormwater and Structural Engineers;

9. clause 9 to Part 1 of LDCP relates to flooding risk, which the Parties agree has been addressed by the Applicant’s revised flood study prepared by GRC Hydro Pty Ltd;

10. clause 10 to Part 1 of LDCP relates to contaminated land risk, in relation to which the Parties agree that the applicable provisions have been addressed by way of the revised Applicant’s Site Audit Report (which includes a Remedial Action Plan), prepared by GHD Pty Ltd;

11. clause 20 to Part 1 of LDCP relates to car parking and access, in relation to which the Applicant had provided a Traffic & Parking Statement (including the Addendum Statement) and Updated Swept Paths, prepared by Hemanote Consultants Pty Ltd that the Parties agree satisfies the applicable provisions of this clause;

12. clause 22 to Part 1 of LDCP relates to requirements energy conservation, which the Parties agree has been adequately addressed by the Proposed Development including those specified within the Applicant’s statement of environmental effects prepared by Urbis Pty Ltd and dated 6 June 2022;

13. Clause 23 to Part 1 of LDCP relates to reflectivity, which the Parties agree has been adequately addressed by the design of the Proposed Development and as specified within the Applicant’s statement of environmental effects prepared by Urbis Pty Ltd and dated 6 June 2022;

14. clause 25 to Part 1 of LDCP relates to waste disposal and re-use facilities, which the Parties agree has been adequately addressed by the Applicant’s Waste Management Plan which formed Appendix K within the Applicant’s statement of environmental effects prepared by Urbis Pty Ltd and dated 6 June 2022;

15. Part 7 of LDCP relates to site planning, setbacks, landscaped areas and pedestrian areas, building form, streetscape and layout, car parking and access, amenity and environmental impact, and non-business uses, and in relation to this, the Parties agree that the applicable provisions have been adequately addressed by the design of the proposed Development and which is detailed within the Applicant’s statement of environmental effects prepared by Urbis Pty Ltd and dated 6 June 2022;

16. the Parties have advised, and I am satisfied, that the Applicant’s amended development application is satisfactory having regard to the provisions of the LDCP and the provisions of s 4.15(1)(a)(iii) of the EP&A Act;

6. the Proposed Development is acceptable having regard to the provisions of s 4.15(1) of the EP&A Act, including in relation to the submissions of the objectors (see above at [5]) which is a relevant consideration under s 4.15(1)(d) of the EP&A Act, and which the Parties agree have been considered in the Applicant’s amended application.

9. Having considered the advice of the Parties, provided above at [8], I agree that:

1. regard has been had to the objectives of the Subject Site’s B6 Enterprise Corridor zoning in determining the Applicant’s development application;

2. the Applicant’s Development Application can be approved having regard to the matters in s 4.15(1)(b) – (e) of the EP&A Act; and

3. the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EP&A Act have been so satisfied;

4. approval of the Proposed Development is in the public interest.

10. Further, I am satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

11. As the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required to dispose of the proceedings in accordance with the Parties’ decision.

12. In making the orders to give effect to the agreement between the Parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the Parties.

13. The Court notes that:

1. pursuant to cl 55 of the former Environmental Planning and Assessment Regulation 2000, the provisions of which are saved with respect to the determination of the Applicant’s application in this appeal, the Respondent agreed to the Applicant amending its application;

2. pursuant to s 3(2) of Sch 6 of the Environmental Planning and Assessment Regulation 2021, the Revised Drawings do not need to be uploaded to the NSW Planning Portal;

3. notwithstanding the point above (at [(2)]), the Applicant confirms the Revised Drawings were uploaded to the NSW Planning Portal on 5 December 2022;

4. the Applicant was granted leave to rely on revised plans in the proceedings.

Orders

14. The Court orders that:

1. the Applicant is granted leave to rely on the amended documentation listed at Annexure “A” to this judgment;

2. within 28 days of making these orders, the applicant is to pay the respondent’s costs thrown away under section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the amount of $1000;

3. the appeal is upheld;

4. Development Application No. DA-690/2022, as amended, for the construction of two warehouse buildings containing seven individually tenanted industrial units with ancillary office space, the construction of a dual level carpark and associated works, is approved subject to the conditions of consent in Annexure “B” to this judgment.

M Chilcott

Commissioner of the Court

​​​​​​​Annexure A

Annexure B

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Decision last updated: 05 January 2023