Land and Environment Court New South Wales Medium Neutral Citation: AGIT Investment Pty Ltd v Strathfield Municipal Council [2022] NSWLEC 1419 Hearing dates: Conciliation conference on 3 August 2022 Date of orders: 08 August 2022 Decision date: 08 August 2022 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The Applicant's written request prepared pursuant to cl 4.6 of Strathfield Local Environmental Plan 2012 (SLEP) to contravene the height of buildings development standard in cl 4.3 of SLEP is upheld; (2) The appeal is upheld; (3) Development Application No. DA2021/52 (as amended) for the demolition to part of existing structures, site preparation works, an extension of the existing warehouse construction of a new warehouse and ancillary offices and operational use of proposed warehouses at 2-34 Davidson Street, Greenacre, is determined by grant of consent, subject to conditions in Annexure 'A'. 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 Environmental Planning and Assessment Regulation 2000, cl 77 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Industry and Employment) 2021 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 55 – Remediation of Land State Environmental Planning Policy No 64—Advertising and Signage State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, ss 2.98(2), 2.100, 2.101 State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 Strathfield Local Environmental Plan 2012, cll 2.3, 2.7, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1 Texts Cited: Land and Environment Court of NSW, COVID-19 Pandemic Arrangements Policy, (April 2021) Strathfield Development Control Plan 13 Category: Principal judgment Parties: AGIT Investment Pty Ltd (Applicant) Strathfield Municipal Council (Respondent) Representation: Counsel: J Farrell (Applicant) D Robertson (Respondent) Solicitors: Mills Oakley (Applicant) Maddocks Lawyers (Respondent) File Number(s): 2022/24152 Publication restriction: No Judgment 1. COMMISSIONER: AGIT Investment Pty Ltd (the Applicant) has appealed the refusal by Strathfield Municipal Council (the Respondent) of its development application, DA2021/52, made with owner's consent, seeking consent for alterations and additions to a warehouse and distribution centre as well as associated stormwater management, hardstand and landscaping works (the Proposed Development) at 2-34 Davidson Street, Greenacre (the Subject Site). 2. The appeal is made under s 8.7 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. Pursuant to the provisions of cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), the Proposed Development was placed on public exhibition by the Respondent between 16 April and 7 May 2021, and one submission was received in response to that notification. 4. A site inspection was undertaken at the commencement of the proceedings, consistent with the Court's COVID-19 Pandemic Arrangements Policy. No objector oral submissions were received in relation to the appeal. 5. On 3 August 2022 the Parties participated in a conciliation conference undertaken via Microsoft Teams. At that conference, the Parties reached 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 modification application, subject to conditions. 6. Under s 34(3) of the Land and Environment Court Act 1979 (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. 7. 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 (Transport and Infrastructure) 2021 (SEPP T&I): 1. the Development Application was lodged under the provisions of State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) and on 1 March 2022 the Infrastructure SEPP was repealed and its provisions were transferred to SEPP (T&I); 2. pursuant to s 2.98(2) of the SEPP (T&I), the Respondent referred the Development Application to the Australian Rail Track Corporation (ARTC), the relevant rail authority. ARTC requested that the following matters be taken into consideration in the evaluation of the Applicant's development application: 1. visual issues arising from headlight glare on the rail corridor, and this matter has been addressed through the proposed headlight barrier illustrated on the Applicant's plans A100 and A401; 2. fencing and safety to prevent vehicles from accessing the rail corridor, and this matter has been addressed through the proposed headlight barrier illustrated on the Applicant's plans A100 and A401; 3. whether stormwater from the development will affect the rail corridor and a letter prepared by Sparks and Partners provided by the Applicant has confirmed that the development will not result in stormwater runoff onto rail corridor; 4. whether the development will include any noise sensitive uses adjacent to the rail corridor, and the Parties have confirmed that the development does not propose any noise sensitive uses adjacent to the rail corridor; 5. further review of the Proposed Development would be required by ARTC if any excavation proposed should exceed a depth of 2m within 25m of the rail corridor, and the Applicant's cut and fill plan prepared by Sparks and Partners and identified as plan DA3.01 illustrates a cut of approximately 1m to 1.75m in proximity to the track, and so further review is required; and 6. further review of the Proposed Development would be required if construction should involve cranes that will potentially affect the corridor, and the Parties have confirmed that this matter would be addressed, if required, during the construction phase of the Proposed Development; 1. the Parties agree that the provisions of ss 2.100 and 2.101 of the SEPP (T&I) do not apply to the Proposed Development; 1. in relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP R&H): 1. the Applicant's Development Application was lodged under the provisions of the former State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55), and on 1 March 2022, SEPP 55 was repealed and its provisions were transferred to SEPP R&H; 2. a Preliminary Site Investigation (PSI) has been prepared for the Applicant by EP Risk and this confirmed that the Subject Site has a low contamination risk in relation to its proposed use; 3. the Parties' have confirmed, and I am satisfied, that on the basis of the Applicant's PSI, the Subject Site is suitable for its proposed use by the Applicant for the purposes of the Proposed Development, and the provisions of s 4.6 of SEPP R&H are satisfied; 1. in relation to the provisions of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C): 1. the Applicant's Development Application was lodged under the provisions of State Environmental Planning Policy (Vegetation in Non-Rural Areas) 2017 (Urban Vegetation SEPP) and on 1 March 2022 the Urban Vegetation SEPP was repealed and its provisions were transferred to SEPP B&C; 2. the Parties agree that the Applicant's proposed removal of 88 trees from the Subject Site for the purposes of the Proposed Development is reasonable, noting that: 1. the trees proposed for removal do not comprise Koala Habitat and their removal will not trigger any requirement for biodiversity offsets under SEPP B&C; and 2. the Applicant's proposed landscape plans for the proposed Development includes the planting of 132 new tall canopy trees with a minimum mature height of 10m, providing replacement trees on the Subject Site at a minimum ratio of 1.5 replacement trees for each tree proposed for removal; 1. in relation to the provisions of State Environmental Planning Policy (Industry and Employment) 2021 (Industry and Employment SEPP): 1. the Applicant's Development Application was lodged under the provisions of State Environmental Planning Policy No 64—Advertising and Signage (SEPP 64) and on 1 March 2022 SEPP 64 was repealed and its provisions were transferred to the Industry and Employment SEPP; 2. the Applicant's proposed signage within the Proposed Development is consistent with the provisions of schedule 5 of the Industry and Employment SEPP; 1. in relation to the provisions of Strathfield Local Environmental Plan 2012 (SLEP): 1. the Subject Site is zoned IN1 General Industrial pursuant to the provisions of cl 2.3 of SLEP and a development for the purposes of a warehouse and distribution centre is permissible with consent in the zone; 2. I am satisfied that in assessing the Proposed Development, regard has been had to the objectives of the IN1 zoning of the Subject Site; 3. the Proposed Development seeks consent for demolition, pursuant to the provisions of cl 2.7 of SLEP; 4. the Proposed Development has a proposed height that exceeds the 12m height of building (HoB) development standard applicable to development on the Subject Site under the provisions of cl 4.3(2) of SLEP, but the Applicant has provided a written request pursuant to the provisions of cl 4.6 of SLEP to contravene that HoB standard. That written request, prepared by Willowtree Planning Pty Ltd dated 10 June 2022, states that: 1. compliance with the development standard is unreasonable or unnecessary in the circumstances of the case because the Proposed Development achieves the objectives of the standard notwithstanding the non-compliance for the reasons provided within the written request as required under the provisions of cl 4.6(3)(a); 2. there are sufficient environmental planning grounds to justify contravening the development standard for the reasons set out in the written request in satisfaction of the provisions of cl 4.6(3)(b); 3. approval of the Proposed Development would be in the public interest because it is consistent with the objectives of the HoB development standard in cl 4.3 of SLEP and with the objectives of the IN1 zoning of the Subject Site, for the reasons set out in the written request in satisfaction of the provisions of cl 4.6(4)(a); 4. on the basis of the above, the Applicant's written request to contravene the HoB development standard in cl 4.3 of SLEP applicable to the Subject Site should be upheld; 1. development on the Subject Site is subject to a Floor Space Ratio (FSR) development standard of 1:1 under the provisions of cl 4.4 of SLEP, and the proposed Development complies with this standard; 2. the Subject Site is not listed as a heritage item, nor is it located within a Heritage Conservation Area, pursuant to the provisions of cl 5.10 of SLEP; 3. the location of the Proposed Development on the Subject Site is not flood affected, pursuant to the provisions of cl 5.21 of SLEP; 4. while the Subject Site is mapped as containing class 5 Acid Sulfate Soils (ASS), the Subject Site is not located within 500m of any adjacent class 1, 2 or 3 ASS, pursuant to the provisions of cl 6.1 of SLEP. 5. the Proposed Development includes earthworks and is consistent with the matters that are required to be addressed pursuant to cl 6.2(3) of SLEP, as follows: 1. the earthworks are designed to drain water into an on-site detention (OSD) basin as confirmed in the Applicant's Amended Civil Drawings prepared by Sparks and Partners; 2. the earthworks will create a level site to facilitate the Applicant's proposed use on the Subject Site; 3. fill that may be excavated on the site is not expected to contain contaminated material as confirmed in the Applicant's Preliminary Site investigation prepared by EP Risk; 4. the Proposed Development is not assessed to give rise to any adverse impact on the amenity of adjoining properties, as confirmed within the Applicant's Amended Statement of Environmental Effects; 5. all excavated material will be used on site, as confirmed within the Applicant's Amended Civil Drawings prepared by Sparks and Partners; 6. the Subject Site is not identified as a heritage item and therefore the likelihood of relics being found on the site during proposed excavation works is assessed to be low; and 7. the Applicant's proposed earthworks are designed to drain water into an OSD basin as outlined in its Amended Civil Drawings prepared by Sparks and Partners and the Proposed Development includes landscaping to mitigate any potential impacts, as confirmed within the Applicant's amended landscape plans prepared by Site Design Image. 1. Having considered the advice of the Parties, provided above at [7], I agree that: 1. the Applicant's Development Application can be approved having regard to the matters in s 4.15(1) of the EP&A Act including in relation to the submission of the objector which is a relevant consideration under s 4.15(1)(d) of that Act; and 2. 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. 1. 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. 2. 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. 3. 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. Orders 1. The Court orders that: 1. The Applicant's written request prepared pursuant to cl 4.6 of SLEP to contravene the height of buildings development standard in cl 4.3 of SLEP is upheld; 2. The appeal is upheld; 3. Development Application No. DA2021/52 (as amended) for the demolition to part of existing structures, site preparation works, an extension of the existing warehouse construction of a new warehouse and ancillary offices and operational use of proposed warehouses at 2-34 Davidson Street, Greenacre, is determined by grant of consent, subject to conditions in Annexure 'A'. ………………………….. M Chilcott Commissioner of the Court Annexure A (867979, 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: 08 August 2022