Merlino Property Investments Pty Ltd v Strathfield Municipal Council [2020] NSWLEC 1336

Land and Environment Court New South Wales

Medium Neutral Citation: Merlino Property Investments Pty Ltd v Strathfield Municipal Council [2020] NSWLEC 1336 Hearing dates: Conciliation conference on 29 July 2020 Date of orders: 29 July 2020 Decision date: 29 July 2020 Jurisdiction: Class 1 Before: Gray C Decision: See orders at [7] below Catchwords: APPEAL – development application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 55 – Remediation of Land Strathfield Local Environmental Plan 2012 Category: Principal judgment Parties: Merlino Property Investments Pty Ltd (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: P Saab (Solicitor) (Applicant) S Griffiths (Solicitor) (Respondent)

Solicitors: Macquarie Lawyers (Applicant) Bartier Perry (Respondent) File Number(s): 2019/65709 Publication restriction: No

Judgment 1. COMMISSIONER: This appeal concerns a development application for the change of use of the premises 14 Dunlop Street, Strathfield South to a transport depot, which will be used for the storage of cars used for a business that provides limousine services, chauffeured hire cars and airport transfers. The development application does not seek approval to carry out any physical works, but rather utilises an existing fit out from the previous use of the premises as a printing business. The appeal is lodged pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [7] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. 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 17 October 2019. I presided over the conciliation conference, but then terminated it on 16 December 2019 as a final agreement had not been reached. Subsequently, the Court arranged a further conciliation conference between the parties, which was held today, 29 July 2020. With the consent of the parties, I presided over this conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for leave to be granted to amend the development application, and for the grant of a deferred commencement consent subject to conditions of consent pursuant to s 4.16(3) of the EPA Act. The amended development application includes a site plan and floor plans that show the existing configuration of the premises, which show the areas where cars can be parked for storage. It also includes operational details concerning the operation of the business and the use of the premises for vehicle storage, as well as a traffic report demonstrating that the traffic impact of the proposed use is acceptable. The decision agreed upon also includes a deferred commencement condition that requires the creation of an easement for vehicular access, burdening Lot 11 in Deposited Plan 29223 and benefitting the site (Lot 10 in Deposited Plan 29223), which will allow visitors and other vehicles using parking spaces within the front of Lot 10 to manoeuvre to both enter and exit the driveway in a forward direction. 4. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the application subject to conditions of consent is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The use for which consent is sought is a "transport depot", which is defined is a "building or place used for the parking or servicing of motor powered or motor drawn vehicles used in connection with a business…". A transport depot is permissible with consent in the IN1 General Industrial zone in which the site is located, pursuant to the Strathfield Local Environmental Plan 2012 ("SLEP 2012"). * The proposal does not include any building works that would increase the floor space or the height of the building, or any subdivision of land, and therefore there is no contravention of any of the development standards in the SLEP 2012. * Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) of State Environmental Planning Policy No 55 – Remediation of Land. On account of the land being capped with concrete, there being no proposed exposure of ground material or excavation by the proposal, and the proposal being for light industrial purposes, the Council considers, and I accept, that the site poses no risk of contamination, no further investigation of the site is warranted and the site is considered suitable for the proposed use. * Consistent with cl 93(3) of the Environmental Planning and Assessment Regulation 2000, I am satisfied that the conditions of consent that are agreed between the parties will result in a building that will comply with such of the Category 1 fire safety provisions as are applicable to the proposed use. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 2. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The Court orders that: 1. The applicant is granted leave to amend Development Application No. DA2018/091 and to rely upon the following amended plans and documents: Plans: Drawing No. Title/Description Prepared by Issue & Date DA-01 Site Plan DA Designworx Issue B 25/6/19 DA-02 Ground & First Floor Plan DA Designworx Issue B 25/6/19