Woolworths Group Limited v Sutherland Shire Council

[2022] NSWLEC 1384

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Woolworths Group Limited v Sutherland Shire Council [2022] NSWLEC 1384

Hearing dates:

Conciliation conference on 14 July 2022

Date of orders:

19 July 2022

Decision date:

19 July 2022

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders:

(1) 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 in the amount of $15,000.00 within 28 days of the date of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to development application no. DA20/1105 for the construction of a small-scale neighbourhood retail development comprising a Metro Woolworths supermarket, BWS Liquor store, four retail tenancies and at grade car parking comprising of 74 car parking spaces, new roundabout on Old Illawarra Road, vehicular access, tree removal, landscaping and signage on land at 152 Old Illawarra Road, Barden Ridge, subject to the conditions in Annexure A.

Catchwords:

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

Legislation Cited:

Biodiversity Conservation Act 2016, s 6.12

Biodiversity Conservation Regulation 2017, cl 7.2

Environmental Planning and Assessment Act 1979, ss 4.14, 4.16, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55(1)

Environmental Planning and Assessment Regulation 2021, cll 24, 61, 62

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Industry and Employment) 2021, s 3.6, Sch 5

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

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.121

Sutherland Shire Local Environmental Plan 2015, cll 4.3, 4.4, 5.1, 5.4, 6.2, 6.4, 6.15, 6.16, 6.17

Texts Cited:

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Woolworths Group Limited (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
J Amy (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sutherland Shire Council (Respondent)

File Number(s):

2022/53401

Judgment

1. These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Sutherland Shire Council (the Council) of the development application numbered 20/1105 (DA) of the applicant, Woolworths Group Limited (Woolworths).

2. Woolworths seeks development consent for the construction of a neighbourhood retail development comprising a Woolworths Metro supermarket, BWS liquor store, two retail premises and at-grade car park comprising 74 car parking spaces at 152 Old Illawarra Road, Barden Ridge. The proposed works also involve the construction of a new roundabout on Old Illawarra Road, vehicular access, tree removal, landscaping and signage.

3. After a consideration of the oral evidence of several submitters at the site view held on the morning of the hearing, 14 July 2022, the parties filed a s34 agreement which they told me resolved the issues between them. They requested that the hearing be adjourned, and the matter allocated to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The Court accommodated the parties’ request and the matter was reallocated to me under s 34 of the LEC Act.

4. The resolution of the proceedings as agreed involved the Court exercising the functions under s 4.16 of the EPA Act to uphold the appeal and grant development consent to the amended application subject to agreed conditions. 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. There are jurisdictional prerequisites that must be satisfied before this function can be exercised and the parties identified how the relevant jurisdictional prerequisites had been satisfied in this case in a written submission filed with the executed s34 agreement.

5. Based on the documentation in the Woolworths’ s34 bundle filed on 14 July 2022, I am satisfied that the parties’ decision is one that the Court could have lawfully made in the proper exercise of its functions for the following reasons.

State Environmental Planning Policy (Resilience and Hazards) 2021

6. Based on the letter of advice from Geo-Logix dated 28 July 2020 (see Tab 8 of the Class 1 Application) and the Preliminary Site Investigation Report prepared by Geo-Logix dated April 2022 which confirms that the site is suitable for the proposed use, I am satisfied as required by s 4.6 that the site is suitable for the development.

State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP)

7. Because the development proposes a car park exceeding 50 spaces and directs traffic within 90m of a classified road (New Illawarra Road) s 2.121 of the TI SEPP applies. To address this, Woolworths relies on a traffic report prepared by Colston Budd Hunt & Kafes (see Tabs 10 and 11 of the Class 1 Application) that demonstrates that the site can suitably accommodate car parking and servicing therefore satisfying the relevant provisions under the TI SEPP including s 2.121. Furthermore, I note that TfNSW have been given notice of the DA and have issued GTAs dated 11 August 2021 which are incorporated into the conditions of consent.

State Environmental Planning Policy (Industry and Employment) 2021 (IE SEPP)

8. Section 3.6 of the IE SEPP requires that I am satisfied that the signage is consistent with the objectives of the IE SEPP and the assessment criteria specified in Sch 5. Accordingly, a SEPP 64 (now IE SEPP) compliance table is provided (see Annexure C of the SEE at Tab 5 of the Class 1 Application) which demonstrates that the DA satisfies the relevant provisions in the IE SEPP. Additionally, condition 3 of consent reduces the height of some of the signage to make it acceptable.

Sutherland Shire Local Environmental Plan 2015 (LEP)

9. I am satisfied that the development within the B1 Neighbourhood Centre Zone is permissible with development consent as:

1. the supermarket has a floor area of 1000m² only, satisfying the definition of a neighbourhood supermarket within cl 5.4(7AA) of the LEP;

2. the individual tenancies likewise satisfy the definition of a neighbourhood shop and do not exceed 80m², also satisfying cl 5.4(7A) of the LEP; and

3. the BWS is not considered a neighbourhood shop as it does not provide for the day-to-day needs of people who live or work in the local area but is otherwise permissible as a shop.

10. I also note that the parties are satisfied that the DA, as amended, achieves the objectives of the B1 zone.

11. The site is subject to a maximum building height of 9m pursuant to cl 4.3 of the LEP. The DA, as amended, complies with the 9m height of building control (see amended architectural drawing no. DA90.60- B at Tab 1 of Annexure A).

12. The site is subject to an FSR control of 1:1 pursuant to cl 4.4 of the LEP. The DA, as amended, complies with this control.

13. I understand that the site is not identified as land intended to be acquired for public purposes pursuant to cl 5.1 of the LEP. Nor is the site identified as having acid sulfate soil on the Acid Sulfate Soils Map (Sheet ASS_003) under the LEP.

14. While the DA proposes earthworks to accommodate the car parking levels, I understand that the Geotechnical Report prepared by JK Geotechnics (see Tab 19 of the Class 1 Application) demonstrates that the proposed works are not expected to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. Accordingly, the parties are satisfied that the earthworks clause (cl 6.2) is complied with.

15. With respect to stormwater management, the parties inform me that they are satisfied that the DA, as amended, complies with cl 6.4 of the LEP (see the amended civil plans prepared by Henry & Hymas dated 30 June 2022 referred to in Annexure A).

16. The site is not identified on the LEP Biodiversity Map as containing “Areas of biodiversity significance”, “Areas of high biodiversity significance” or “Riparian Land” and therefore cll 6.7 & 6.8 of the LEP are not enlivened.

17. The Landscaped Area development standard in cl 6.14 – does not apply to the B1 zoned land and therefore these provisions of the LEP are not enlivened.

18. The evidence is that the DA, as amended, will be constructed using sustainable building techniques in accordance with cl 6.15 of the LEP (see page 21 of the SEE at Tab 5 of the Class 1 Application and the Waste Management Plan at Tab 14 of the Class 1 Application). Accordingly, I appreciate that the parties are satisfied that the amended proposal complies with cl 6.15 of the LEP.

19. The DA, as amended, is said to achieve high quality design and development outcomes for the urban environment (see amended landscape plans prepared by Ground Ink referred to in Annexure A and the Crime Risk Assessment Report at Tab 18) and accordingly, I understand that the parties are satisfied that the amended proposal complies with cll 6.16 and 6.17 of the LEP.

Sutherland Shire Development Control Plan 2015 (DCP)

20. Lastly, I note the DA, as amended, satisfies the following relevant controls in the DCP:

1. Chapter 12 – B1 Neighbourhood Centre

2. Chapter 39 – Natural Resource Management

3. Chapter 40 – Environmental Risk

Biodiversity Conservation Act 2016 (BC Act)

21. Clause 7.2 of the Biodiversity Conservation Regulation 2017 (BC Regulation) applies as the DA, as amended, proposes the clearing of some native vegetation. Accordingly, pursuant to s 6.12 of the BC Act, a Biodiversity Development Assessment Report has been provided at Tab 13 of the Class 1 Application, which I accept, and the parties agree satisfies cl 7.2 of the BC Regulation.

Notification of the proposed development

22. I understand that the DA as amended has been notified on 15 January 2021 and again on 5 July 2021 and also at the site view.

EPA Act

23. The DA, as amended is integrated development. It was referred to the following authorities:

Rural Fire Service (RFS)

24. In accordance with s 4.14 of the EPA Act the application was referred to the RFS who raised no objection to the proposal subject to conditions of consent. These have been incorporated into the conditions.

Ausgrid

25. As the development proposes the penetration of ground within 2m of an underground electricity power line the application was referred to Ausgrid.

26. I am told that Ausgrid did not raise any objection to the proposed development and requested that the developer note its comments.

NSW Police Force

27. In accordance with the Crime Risk Assessment – Police & SSC Protocol 2010 the application was referred to the NSW Police Force who raised no objection and provided matters for consideration in relation to Crime Prevention through Environmental Design (CPTED). No specific condition of consent was recommended. The NSW Police Force comments have been incorporated in the revised plans and documentation and are considered satisfactory.

Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021)

28. The requirements of cll 24, 61 and 62 of the EPA Regulation 2021 to the extent they are relevant have been taken into account and addressed in the DA, as amended.

Amendments made addressing the contentions

29. The Council informs the contentions raised in its Statement of Facts and Contentions (SOFAC) dated 21 March 2022 have been satisfactorily addressed. The following table outlines how the amended plans have addressed these issues:

No	Contention Summary	Response by Woolworths
1.	Clause 5.4 LEP limit of 1,000m2 for a neighbourhood supermarket and 80m2 for neighbourhood shops	The proposed supermarket has been reduced in size from 1500m2 to 1000m2. Four neighbourhood shops are provided of 80m2 each and BWS although it is 120m2 is considered not to be a neighbourhood shop but shop which is permissible. (refer to proposed Site Plan DA02.01 Rev F)
2	Large floor area and scale of development	Resolved by 1 above.
3.	Height	The amended plans now comply with the 9m height of building control (refer to Height Blanket DA90.60- B).
4.	Unacceptable Design and Built Form	The amended plans provide retaining walls which are stepped, changes to materials and finishes are amended to break up the look of the retaining walls, proposed planting and screening is also provided (refer to Landscape Elevation – northern boundary LDA 401 Rev K).
5.	Signage	The signage has been reduced in numbers and scale (refer to Proposed External Elevations DA09.00 B) and condition 3 c. reduces the height of the signage structure adjacent to Tenancy 1.
6.	Contamination	A Preliminary Site Investigation Report prepared by Geo-Logix dated 11 April 2022 has been prepared and reviewed by Council’s environmental scientist.
7.	Public Interest	4 neighbours spoke against the proposed supermarket and 2 neighbours were in support of the proposal.
a. Traffic	As a result of Council’s and Transport for NSW request for additional information, Woolworths undertook additional modelling and analysis which satisfied both Council and Transport for NSW. The right-hand turn - The traffic light intersection is managed by Transport for NSW as it impacts a classified road and will be adjusted as per the modelling, if necessary, upon completion of the development.
b. Pedestrian safety	Various conditions are imposed to ensure the Road frontage works and internal access (Refer to conditions 9, 11, 13 and CPTED condition 49)
c. Scale, too large for the site	This is addressed by the reduced size of the proposed supermarket and shops.
d. The development of a petrol station/ rest of the site	The balance of the site is required to be retained as endemic vegetation and a VMP has been provided by Woolworths and condition 27 agreed to be imposed.
e. No need for a liquor outlet	NSW Police considered the DA and recommended various CPTED conditions be imposed, which are in condition 49.
f. Hours of operation	Condition 47 hours are 7am to 10pm 7 days a week and reduced hours for the sale of liquor.
g. Support of the DA
8.	Inadequate Information	All has now been provided.

Power of the Court make orders in accordance with the s34 agreement

30. As the terms of the decision set out in the parties' s34 agreement represent a decision the Court can make in the proper exercise of its functions as required by s 34(3), I now make the following orders.

31. The Court notes:

1. that the applicant has amended development application no DA20/1105 with the agreement of Sutherland Shire Council (pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000) as the relevant consent authority to incorporate the following amended plans and documents:

1. Amended Architectural Plans, prepared by BN Group dated 30 June 2022;

2. Amended Civil Plans prepared by Henry & Hymas dated 30 June 2022;

3. Amended Landscape Plans Rev K, prepared by Ground Ink dated 12 July 2022;

4. Preliminary Site Investigation Report prepared by Geo-Logix dated April 2022; and

5. Vegetation Management Plan, prepared by Cumberland Ecology dated 8 April 2022

(“Amended Development Application”).

2. that the Amended Development Application has been lodged on the NSW planning portal on 14 July 2022.

3. that the applicant has subsequently filed the Amended Development Application with the Court on 14 July 2022.

32. The Court orders:

1. 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 in the amount of $15,000.00 within 28 days of the date of these orders.

2. The appeal is upheld.

3. Development consent is granted to development application no. DA20/1105 for the construction of a small-scale neighbourhood retail development comprising a Metro Woolworths supermarket, BWS Liquor store, four retail tenancies and at grade car parking comprising of 74 car parking spaces, new roundabout on Old Illawarra Road, vehicular access, tree removal, landscaping and signage on land at 152 Old Illawarra Road, Barden Ridge, subject to the conditions in Annexure A.

…………………

S Dixon

Senior Commissioner of the Court

Annexure A (851420, pdf)

**********

Amendments

22 July 2022 - Correction to typographical error at [3].

05 August 2022 - Pursuant to UCPR r 36.17, the Court amends Annexure A to include Attachments A, B and C referred to in Condition 4 (which were previously not attached to the conditions) and correct a typographical error in the number of car spaces referred to in Condition 13 A. v) - replacing the number '83' with '74' to reflect the amended plans.

Decision last updated: 05 August 2022