Land and Environment Court New South Wales Medium Neutral Citation: Upper Hunter Developments (Scone) Pty Ltd v Upper Hunter Shire Council [2021] NSWLEC 1250 Hearing dates: Conciliation conference on 24 March 2021 Date of orders: 14 May 2021 Decision date: 14 May 2021 Jurisdiction: Class 1 Before: Bish C Decision: See judgment at [18] Catchwords: DEVELOPMENT APPLICATION – service station – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 33 — Hazardous and Offensive Development State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 64 — Advertising and Signage, cl 8 State Environmental Planning Policy (Infrastructure) 2007, cl 101 Upper Hunter Local Environmental Plan 2013, cl 2.3 Texts Cited: Upper Hunter Development Control Plan 2015, Part 12a Category: Principal judgment Parties: Upper Hunter Developments (Scone) Pty Ltd (Applicant) Upper Hunter Shire Council (Respondent) Representation: Counsel: A Whealy (Solicitor) (Applicant) A Pickup (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) Local Government Legal (Respondent) File Number(s): 2020/363025 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal of Development Application (DA) 19/2020 by Upper Hunter Shire Council (hereafter the Council) which seeks construction of a service station with a convenience store, overhead fuel canopy, underground fuel tanks, with associated infrastructure, landscaping and signage on Lot 1 DP 1145990, also known as 18 Kelly Street, Scone (hereafter the site). 2. The amended Class 1 appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Court agreed to the parties' request for a conciliation conference pursuant to s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 24 March 2021, without an onsite view and remotely by Microsoft Teams. 4. Based on the amended plans, together with the DA's supporting documents and agreed conditions of consent, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agree that the contentions raised by Council have been considered and resolved. The decision of the parties is to uphold the appeal and grant consent to DA 19/2020 with conditions. 5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, if it is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising its function under s 4.16 of the EPA Act and being satisfied, pursuant to be satisfied of the requirements in s 4.15(1) to grant consent to DA 19/2020, with conditions, as described in Annexure A. 6. The parties identified the jurisdictional prerequisites of particular relevance in these proceedings for the Court's consideration as consistency with the: State Environmental Planning Policy No 55 — Remediation of Land (SEPP 55); State Environmental Planning Policy No 33 — Hazardous and Offensive Development (SEPP 33); State Environmental Planning Policy No 64 — Advertising and Signage (SEPP 64); State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure); Upper Hunter Local Environmental Plan 2013 (UHLEP); as well as the Upper Hunter Development Control Plan 2015 (UHDCP). 7. The parties agree that the Court could be satisfied the proposed development complies with the provisions of SEPP 55. The Council has assessed that the site is historically used as agricultural lands, and is considered suitable for the proposed development, based on the detailed site investigation report, and any unexpected finds provided for in the conditions of consent. Thereby the Court is satisfied the relevant requirements of cl 7 of the SEPP 55 are achieved. 8. The proposed development, as a service station, is required to comply with the provisions of the SEPP 33. The amended DA is supported by a Risk Screening and Preliminary Hazard Report, which is described in the conditions of consent. The parties agree that the relevant requirements of SEPP 33, are addressed by the documents that support the application. 9. The proposed development is required to comply with the relevant provisions of the SEPP Infrastructure because it has frontage to a classified road, pursuant to cl 101. Transport for NSW have provided conditions in concurrence, which are included in the conditions of consent. The parties agree that the proposed development is not sensitive to noise and the function of the classified road will not be adversely affected. The proposed development thereby satisfies the relevant requirements of SEPP Infrastructure. 10. Pursuant to cl 8 of the SEPP 64, the signage associated with the proposed development must be considered. The parties and the Court agree that the proposed signage is consistent with the requirements of SEPP 64. 11. The proposed development on the site is located within the B2 Local Centre Residential zone, as identified in cl 2.3 of the UHLEP. The proposed development is permissible with consent and satisfies the objectives of this zone. The parties and the Court agree that the relevant provisions of the UHLEP are addressed to their satisfaction. 12. The parties agree that the proposed development requires an internal road, subject to the provisions of Part12a of the UHDCP. The parties explain that the amended plans show traffic and pedestrian safety is assured by the proposed development. Therefore, the Court is satisfied that the relevant requirements of the UHDCP are achieved. 13. The parties agree that the DA was publicly notified in accordance with the UHDCP. During the notification period for this DA under appeal, three submissions in objection were received by Council. 14. The parties advise the Court that the amended plans that support the amended DA have been considered in the context of the site and surrounding area. Based on the amended plans and supporting documents to the DA, the contentions raised by Council, issues by residents, and all jurisdictional requirements are resolved. 15. The parties advise the Court that they have undertaken the appropriate merit assessment of the amended DA, and which they are satisfied resolves the contentions, as raised. 16. I am satisfied that there are no jurisdictional impediments to this agreement and that DA 19/2020 should be granted, as it satisfies the requirements of s 4.15(1) of the EPA Act. 17. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 18. The Court orders that: 1. The Applicant is granted leave to rely on the following amended plans and documents: Site Plan 100 I Modus September 2019 D19-1193 Signage Plan 102 I Modus September 2019 D19-1193 Floor Plan 200 I Modus September 2019 D19-1193 Canopy and Convenience Store Roof Plan 201 I Modus September 2019 D19-1193 Reflected Ceiling Plan 220 I Modus September 2019 D19-1193 Elevation Plan 300 I Modus September 2019 D19-1193 Section Plan 400 I Modus September 2019 D19-1193 Swept Path Assessment 20m AV SK01 - SLR 8.4.2021 Swept Path Assessment 8.8 MRV SK02 - SLR 6.4.2021 Swept Path Assessment Front-lift RCU SK03 - SLR 8.4.2021 Proposed Driveway Crossover Details SK04 - SLR 8.4.21 1. The Applicant is to pay the Respondent's costs that have been thrown away as a result of the amendment of the application for development consent under section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed. 2. The appeal is upheld. 3. Development consent is granted to development application No. DA19/2020 for construction of a service station with convenience store, overhead fuel canopy, underground fuel tanks and infrastructure, loading bay, garbage yard, plant area, landscaping and signage at 18 Kelly Street, Scone, subject to the conditions of consent in Annexure A. 4. The Respondent is to register the development consent granted in relation to Development Application No. DA19/2020 on the NSW planning portal within 14 days of the date of these orders. ………………………… Sarah Bish Commissioner of the Court (Annexure A) (291135, pdf) Plans_1 (2084285, pdf) Plans_2 (3961287, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2021