Land and Environment Court New South Wales Medium Neutral Citation: The Trustee for Sentinel Industrial Trust v Newcastle City Council [2023] NSWLEC 1459 Hearing dates: Conciliation conferences on 22 June and 13 July 2023 Date of orders: 17 August 2023 Decision date: 17 August 2023 Jurisdiction: Class 1 Before: Kullen AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to development application DA2021/01074 for development described as the Community Title Subdivision of land legally identified as Lot 6 in DP 1204575 and known as 71 Industrial Drive, Mayfield North into six lots and associated subdivision works and tree removal, subject to the conditions of consent at Annexure A. Catchwords: DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – orders Legislation Cited: Community Land Development Act 2021 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 8.7 Environmental Planning and Assessment Regulation 2000, cl 55 Land and Environment Court Act 1979, s 34 Local Land Services Act 2013, s 60O, Pt 5B Newcastle Local Environmental Plan 2012 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, s 2.7 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Chs 2, 5, ss 2.119, 5.3, 5.6, 5.12, 5.14, 5.20 Category: Principal judgment Parties: The Trustee for Sentinel Industrial Trust (Applicant) Newcastle City Council (Respondent) Representation: Counsel: D Gunter (Solicitor) (Applicant) A Rutherford (Solicitor) (Respondent) Solicitors: Sparke Helmore Lawyers (Applicant) Lindsay Taylor Lawyers Respondent) File Number(s): 2023/100872 Publication restriction: No JUDGMENT 1. COMMISSIONER: These proceedings arise following Newcastle City Council's (Council) refusal of the applicant's Development Application No DA2021/01074 (DA) for the subdivision of the site of one lot into a five lot community title, and associated works, including: * removal of 11 trees, including 5 trees within the Industrial Drive Road reserve, and 6 trees within the site; * the construction of a new road and cul-de-sac, including access to the existing intersection of Vine Street and Industrial Drive and a new deceleration lane on Industrial Drive; * the planting of 109 trees; * the construction of associated services, stormwater infrastructure and drainage lines. 1. The appeal is brought pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), and the background facts and contentions are set out in the Council's Statement of Facts and Contentions (SOFAC) dated 4 May 2023. 2. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 22 June 2023. I presided over the conciliation conference. The s 34 conciliation conference was adjourned to 13 and 21 July to allow for a signed s 34 agreement to be prepared and filed with the Court. 3. At the conciliation conference on 22 June 2023, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision involved the Court upholding the appeal and granting development consent to an amended development application on a conditional basis. 4. The amended plans are referenced in the s 34 agreement and were filed with the Court on 21 July 2023. 5. 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. 6. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. 7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified and explained how the jurisdictional prerequisites of relevance have been satisfied in a jurisdictional statement accompanying the s 34 agreement, and those requirements have been satisfied as follows: 1. The DA was lodged by Sentinel Industrial Pty Ltd ATF Sentinel Industrial Trust, the owner of the land; 2. The DA was notified between 1 and 15 September 2021. Four public submissions were made during the notification period of the DA; 3. In relation to the provisions of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP): 1. The site is within the "Three Ports" area and is zoned SP1 Special Activities under Ch 5 of the Transport and Infrastructure SEPP; and 1. the respondent is the consent authority for the DA under s 5.6(b) of the Transport and Infrastructure SEPP as the site is not within the Port of Newcastle Lease Area, is not unzoned or within the Intertrade Industrial Park; and 2. the proposed subdivision under the Community Land Development Act 2021 is permissible with consent under s 5.14(1) of the Transport and Infrastructure SEPP in the SP1 zone within which the site is located; and 3. I am satisfied that the proposed development is consistent with the objectives for development within the zone in which the development is proposed to be carried out; 1. The parties submit, and I agree, that: 1. the proposed subdivision is acceptable having regard to the matters to be considered under s 5.14(3) of the Transport and Infrastructure SEPP; and 2. the parties submit, and I agree, that the proposed ancillary earthworks are acceptable having regard to the matters to be considered under s 5.20(3) of the Transport and Infrastructure SEPP; 1. In relation to Ch 2 – Infrastructure, of the Transport and Infrastructure SEPP, s 2.119 applies as the site has a frontage to Industrial Drive, which is a classified road; and 1. The DA was referred to Transport for NSW (TfNSW) and no objection was raised in the response received on 9 December 2022, which supports the Transport Impact Assessment Report (TIA) submitted with the DA; and 2. The parties submit, and I agree, that there is no other practicable vehicular access to the site other than from Industrial Drive, and that the matters specified at s 2.119(2) of the Transport and Infrastructure SEPP are satisfied; 1. In relation to the provisions of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP), s 4.6 requires that a consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that it is satisfied that the site is suitable (or will be suitable after undergoing remediation) for the proposed use: 1. The DA is accompanied by a Phase 1 Assessment prepared by Qualtest dated 12 April 2021 which sets out the detailed remedial history of the site and the ongoing maintenance of the remedial works under the Site Maintenance Plan (Revision 5) dated August 2013 prepared by BHP Billiton Ltd which includes a Capping Maintenance Plan; and 2. The parties agree that the past remedial works and the management of the site under the Site Management Plan demonstrates the site is suitable for commercial and industrial purposes; and 3. The Construction Management Plan (CMP) submitted with the DA has been peer reviewed and approved by the Site Auditor; and 4. The parties submit, and I agree, that the Phase 1 Assessment, the CMP and Interim Audit Advice satisfactorily address the matters in s 4.6(1) of the Resilience SEPP; 1. In relation to the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP), Ch 2 of the Biodiversity SEPP seeks to protect the biodiversity values of trees and other vegetation in non-rural areas of the State, and to preserve the amenity of non-rural areas of the State through the preservation of trees and other vegetation. 1. The parties advise that Ch 2 of the Biodiversity SEPP does not apply in this instance as the DA does not seek an approval (but rather a development consent) to remove vegetation; 2. The parties advise that the DA seeks the ancillary removal of vegetation as part of the proposed development and therefore forms part of the character of the proposed development which is permissible with consent as set out in the Jurisdictional Note; 3. Section 2.7(1) of the Biodiversity & Conservation SEPP provides that a permit or approval is not required under Ch 2 if the clearing is of a kind that is authorised under s 60O or Pt 5B of the Local Land Services Act 2013 (LLS Act). The clearing of vegetation authorised by a development consent is of a kind of clearing authorised under s 60O(a)(i) of the LLS Act; 4. The approved documentation in the development consent now includes a tree protection plan, landscape plans, a remediation landscape plan and an arboricultural impact assessment; 1. The Newcastle Local Environmental Plan 2012 does not apply to the site. 1. Having considered the advice of the parties provided above at [8], I am satisfied that: 1. The applicant's Development Application can be approved having regard to the matters in s 4.15(1)(b)–(e) of the EPA Act; 2. The jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.16 of the EPA Act have been so satisfied; and 3. Approval of the proposed development is in the public interest. 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 under s 34(3) of the LEC Act 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. 4. The Court notes that: 1. Newcastle City Council, as the relevant consent authority, has agreed, under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, to the applicant amending development application DA2021/01074 in accordance with the documents below: Plan/Supporting Document Reference/Revision Prepared By Date Plan of Proposed Subdivision of Lot 6 DP 1204575 23/0205 Monteath & Powys 26 June 2023 CSK01.1 – Revision 2 Concept Intersection Plans CSK02.1 – Revision 4 Northrop 30 June 2023 CSK02.2 – Revision 4 CSK03.1 – Revision 4 Project NO:2208 LDA001 – Revision 11 LDA100 – Revision 10 LDA101 – Revision 10 LDA102 – Revision 10 Landscape Plans LDA103 – Revision 7 Studio 151 30 June 2023 LDA104 – Revision 2 LDA105 – Revision 2 LDA106 – Revision 2 LDA107 – Revision 2 LDA200 – Revision 4 Tree Protection Plan Ref:3193.01 AEP 30 June 2023 Revision 01 Remediation Landscape Plan Ref:3193.01 AEP 30 June 2023 Revision 00 Arboricultural Impact Assessment Ref:3193 AEP 30 June 2023 Revision 04 Civil Engineering Report Revision C Acor Consultants 28 June 2023 1. The applicant filed the Amended Development Application with the Court on 21 July 2023. 1. The Court orders: 1. The appeal is upheld. 2. Development consent is granted to development application DA2021/01074 for development described as the Community Title Subdivision of land legally identified as Lot 6 in DP 1204575 and known as 71 Industrial Drive, Mayfield North into six lots and associated subdivision works and tree removal, subject to the conditions of consent at Annexure A. G Kullen Acting Commissioner of the Court Annexure A ********** 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: 17 August 2023