Land and Environment Court New South Wales Medium Neutral Citation: TN Revesby Pty Ltd ATF Revesby Unit Trust v Canterbury-Bankstown Council [2022] NSWLEC 1013 Hearing dates: Conciliation conference on 5 and 22 November, and 15 December 2021 Date of orders: 14 January 2022 Decision date: 14 January 2022 Jurisdiction: Class 1 Before: Adam AC Decision: The Court orders that: 1) The Applicant is to pay the costs of the Council that have been thrown away pursuant to section 8.15 (3) of the Environmental Planning and Assessment Act (1979) NSW as agreed or assessed. 2) The Appeal is upheld. 3) Development application DA-226/2021 for the construction of a new industrial development constituting industrial units, self storage units, hardware and building supply units and associated car parking at Lot 91 DP 714957 and Lot 10 DP 209901 also known as 128 Milperra Rd Revesby 2212 is approved subject to the conditions set out in Annexure 'A'. Catchwords: APPEAL – refusal of development content - industrial development- conciliation conference-agreement between parties- orders Legislation Cited: Bankstown Local Environmental Plan 2015, cll 2.3, 2.7, 4.4, 5.21, 6.1, 6.2, 6.6 Biodiversity Conservation Act 2016, ss 7.2, 7.3, 7.7 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.15 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Roads Act 1983, s138 State Environmental Planning Policy No 19—Bushland in Urban Areas, cl 4 State Environmental Planning Policy No 55—Remediation of Land, cl 7 State Environmental Planning Policy No 64—Advertising and Signage State Environmental Planning Policy (Infrastructure) 2007, cll 102,104, Sch 3 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017, cl 9 Texts Cited: Bankstown Development Control Plan 2015 Draft Canterbury Bankstown Consolidated Local Environmental Plan 2020 Land and Environment Court of New South Wales, COVID-19 Pandemic Arrangements Policy April 2021 Category: Principal judgment Parties: TN Revesby Pty Ltd ATF Revesby Unit Trust (Applicant) Canterbury-Bankstown Council (Respondent) Representation: Counsel: M Staunton (Applicant) M Bonanno (Solicitor) (Respondent) Solicitors: Minter Ellison (Applicant) Canterbury-Bankstown Council (Respondent) File Number(s): 2021/201531 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant has appealed against the refusal of Development Application DA-226/2021 by Canterbury- Bankstown Council on 5 July 2021. Background 1. The DA sought authorisation for construction of a new industrial development including self- contained industrial units, a self-storage facility, a hardware and building supply unit and associated carparking. 2. The site abuts Milperra Road to the north and Violet Street to the west. The DA provides for vehicular access to the site via two vehicle footway crossings (VFC) from Violet Street. There would be no vehicular access from Milperra Road. 3. The site is Lot 91 DP 714957 and Lot 10 DP 209901, known as 128 Milperra Road Revesby, and includes an area formerly known as 7 Violet Street, that had recently been consolidated into 128 Milperra Road. Currently the site contains a brick and metal warehouse structure, surface parking and landscape areas. The site is zoned IN1 General Industrial pursuant to the Bankstown Local Environmental Plan 2015 (BLEP 2015), and the proposed development is permissible with consent. 4. The DA as lodged was notified in accordance with Council's notification policy. The application was advertised as required, and submissions sought. No submissions were received in response to this notification. 5. On 21 April 2021, the Council referred the DA to Transport for NSW (TfNSW) in accordance with State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) cl 104, as a traffic generating development in accordance with Sch 3 of the SEPP Infrastructure, as well as the proposed removal of the VFC along Milperra Rd, a classified roadway. On 31 May 2021, TfNSW provided concurrence, under the Roads Act 1993 s 138 for the removal of the redundant VFC, subject to conditions of consent. 6. Subsequent to the refusal of the DA by Council on 5 July 2021, the Applicant commenced an appeal pursuant to the Environmental Planning and Assessment Act 1979 (EP&A Act) s 8.7. Conciliation Conference 1. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties. The conference was held on 5 November 2021. I presided over the conciliation conference. 2. The conciliation conference was held by MS Teams, and there was no on site inspection, in accordance with the Court's Covid- 19 Pandemic Arrangements Policy. As there had been no submissions from members of the public following the display of the proposal, there were no objectors to be heard, and there was no disadvantage incurred as a result of there being no site inspection. The information included in this judgment is largely derived from the Class 1 Application and associated documents, the Respondent's State of Facts and Contentions, the Applicant's Statement of Facts and Contentions in Reply, and the Agreed Statement- Jurisdictional Prerequisites. 3. In the course of the conciliation conference, including direct communications between the parties, the parties reached agreement as to the terms of their decision in the proceedings that would be acceptable to the parties, subject to amended documents. The decision involved agreement by the Council, as the consent authority, to amendments to the development application pursuant to cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). 4. A signed agreement between the parties, prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 20 December 2021. 5. The parties asked me to approve their decision as set out in the s 34 agreement. In general terms, the agreement approves the development subject to the amended plans prepared by the Applicant: the final details of the works and plans are specified in the agreed conditions of the consent which are Annexure 'A' to the judgment. 6. 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. In making the orders to give effect to the agreement reached by the parties, I was not required, and have not, made any merit assessment of the issues originally identified in the Council's Statement of Facts and Contentions that had been in dispute between the parties. In reaching agreement to the amended proposal, the parties have agreed that the modifications and the proposed conditions of consent have resolved all the contentions. 7. In order to be satisfied that the decision was one which the Court could have made, I must be satisfied that there are no jurisdictional prerequisites that are not met. Jurisdictional prerequisites 1. The parties prepared a comprehensive Agreed Statement- Jurisdictional Prerequisites to assist the Court by explaining how all jurisdictional prerequisites to the exercise of power to grant development consent have been met. 2. The relevant officer of Council has formed the opinion that the environmental impacts of the proposal as amended will be the same or less than that of the original proposal, and the owners and occupiers of adjoining land will not be detrimentally affected in any manner (Agreed Statement- Jurisdictional Prerequisites at (7)). There was therefore no requirement to renotify the amended proposal. I am satisfied that this is the case. 3. There are a number of statutory controls and environmental planning instruments potentially applicable to the proposed development. The consent authority must be satisfied that consideration has been given to all of these, even if the particular circumstances of a site are such that some are not applicable. 4. Given the current condition of the site and its development history, I concur with the parties that the following are not triggered or are not applicable: * Biodiversity Conservation Act 2016 (BCA). The proposed development does not enliven ss 7.2, 7.3 or 7.7 of the BCA. * State Environmental Planning Policy No 19—Bushland in Urban Areas (SEPP 19). The proposed development does not impact upon bushland as defined in SEPP 19 cl 4. * State Environmental Planning Policy No 64—Advertising and Signage (SEPP 64). The amended proposed development does not propose signage so the SEPP 64 does not apply. * State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (SEPP 2017). Clause 9 of the SEPP requires that the Bankstown Development Control Plan 2015 (BDCP 2015) declare vegetation types to which the SEPP 2017 applies. BDCP 2015 does not make such a declaration so that a permit under the SEPP 2017 is not required for the proposed development. State Environmental Planning Policy (Infrastructure) 2007 1. Paragraphs (10)– (11) of the Agreed Statement- Jurisdictional Prerequisites are as follows: 1. "Clause 102 of the Infrastructure SEPP applies because the Land has a frontage to classified road (Milperra Road). The Court would be satisfied that: 1. for the purposes of clause 102(2)(a), vehicular access to the land is provided by a road other than the classified road, and 2. for the purposes of clause 102(2(b), the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of— 1. the design of the vehicular access to the land, or 2. the emission of smoke or dust from the development, or 3. the nature, volume or frequency of vehicles using the classified road to gain access to the land (Traffic and Parking Assessment prepared by TTPA dated March 2021) 1. for the purposes of clause 102(2(c), the development is of a type that is not sensitive to traffic noise or vehicle emissions, being industrial development. 1. Clause 104 of the Infrastructure SEPP requires the Proposed Development to be referred to TfNSW (pp 22 and 23 of the Statement of Environmental Effects prepared by Willowtree Planning dated April 2021). As noted in the Respondent's SOFAC, on 31 May 2021 TfNSW provided concurrence for the Proposed Development." 1. Access to the proposed development is to be by two VFCs from Violet Street. I note TfNSW's concurrence kind of satisfied that the provisions of the SEPP Infrastructure raise no impediment to the granting of approval to the DA. State Environmental Planning Policy No 55—Remediation of Land 1. Given the history of usage of the site, the Applicant appropriately carried out the necessary investigations required by cl 7 of SEPP 55 and a Remediation Action Plan (RAP) has been prepared. I am satisfied that this demonstrates that after remediation, the site can be developed and consent can be granted. Bankstown Local Environmental Plan 2015 provisions 1. The currently applicable LEP is BLEP 2015. The parties advised me that a draft Canterbury Bankstown Consolidated Local Environmental Plan was publicly exhibited until 20 May 2020, and it is proposed to apply to the land. The Consolidated LEP is currently under review, and I was not advised as to when the review will be completed. However, I was advised that the Consolidated LEP does not materially affect the proposed development. 2. Under BLEP 2015, the land is zoned IN1 General Industrial and the proposed development is permissible with consent. The parties are agreed that the proposed development is consistent with the objectives of the IN1 General Industrial zone in the Land Use Table (cll 2.3, Pt 2). Demolition is permissible with consent (cl 2.7). Demolition of existing structures is required- the impacts have been considered and I am satisfied that they are dealt with appropriately in the agreed conditions of consent. 3. Clause 4.4(2) Floor Space Ratio (FSR) prescribes a maximum FSR development standard of 1.00:1. The original proposed development exceeded the standard, but the amended plans (Architecture Plan DA 219 Revision Q prepared by SBA Architects dated 29 November 2021) provide for a FSR of 1.00:1 and thus the development standard will not be exceeded. 4. Flood planning requirements applicable to the land are provided in cl 5.21(Flood Planning). Flooding issues were the subject of a report prepared by Costin Roe Consulting, dated 1 April 2021 (Class 1 Application Tab 9), which confirms that the proposed development met the flood planning requirements. The parties' Agreed Statement- Jurisdictional Prerequisites at (25) advised me that the Court could be satisfied that this is the case and having read the Costin Roe report and the parties' summary, I am satisfied that the proposed development is consistent with the requirements of cl 5.21. 5. The land is mapped as class 5 on the Acid Sulfate Soils map and cl 6.1(Acid Sulfate Soils) therefore applies. The proposed development is not likely to lower the water table below 1 metre AHD on adjacent Classes 1- 4 land. Appendix 5 of the Statement of Environmental Effects (Class 1 Application Tab 10) confirms that the volume of the impacted soil is estimated as 553 m so that development consent is not required pursuant to cl 6.1(2). 6. Earthworks are proposed as part of the development so that cl 6.2 (Earthworks) applies. A Civil Engineering Report was prepared by Costin Roe Consulting (Class 1 Application Tab 9), the matters in cl 6.2(3) have been considered and no constraints to granting approval arises 7. The land is proximate to Bankstown Airport, so that cl 6.6 (Development in areas subject to aircraft noise) applies. The Noise Impact Assessment (Class 1 Application Tab 13) shows the land falls between ANEF 20 and ANEF 25. The proposed industrial development will not be subject to any specific acoustic guidelines or codes applicable to airport or aircraft noise. 8. The Development Control Plan applicable to the land is BDCP 2015. The parties agree that the proposal can be approved having regards to the controls in BDCP 2015. Matters arising the assessment requirements in the EP&A Act 1. The parties agree that the amended development application can be approved after consideration of the matters the consent authority is required to take into account in assessment of a development application (s 4.15(1) (b)– (a)). I concur with the parties' conclusion. The parties have agreed on the conditions of consent, and that the conditions would be lawful having regard to ss 4.16 and 4.17, and I am satisfied that this is so. Grant of Consent 1. I am satisfied based on the evidence before me, that there are no jurisdictional impediments to the agreement reached between the parties, and that DA 226/2021 should be granted, as it satisfies the relevant requirements of s 4.15 of the EP&A Act. 2. The Court notes: 1. Canterbury Bankstown Council (Council) as the relevant consent authority for the purposes of cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) agrees to the Applicant amending the development application DA-226/2021 (amended DA); 2. The amended DA has been uploaded to the NSW Planning Portal on 20 December 2021; and 3. The Applicant has subsequently filed the amended DA with the Court on 20 December 2021. Orders 1. The Court orders that: 1. The Applicant is to pay the costs of the Council that have been thrown away pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), as agreed or assessed. 2. The Appeal is upheld. 3. Development application DA-226/2021 for the construction of a new industrial development constituting industrial units, self storage units, hardware and building supply units and associated car parking at Lot 91 DP 714957 and Lot 10 DP 209901 also known as 128 Milperra Road Revesby NSW 2212 is approved subject to the conditions set out in Annexure 'A'. ………………………. Paul Adam Acting Commissioner of the Court (Annexure A) (282443, pdf) (Final plans) (6149626, 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 January 2022