Land and Environment Court New South Wales Medium Neutral Citation: BT Development Group Pty Ltd v Georges River Council [2023] NSWLEC 1490 Hearing dates: Conciliation conference 29 June 2023 Date of orders: 30 August 2023 Decision date: 30 August 2023 Jurisdiction: Class 1 Before: Walsh C Decision: The Court orders that: (1) Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the application to amend development application DA2022/0098 to rely on the following material is approved: (a) Further amended architectural plans (issue R) prepared by Bongiorno Hawkins and Associates Architects dated 10 July 2023; (b) Further amended landscape plans (revision E) prepared by Vision Dynamics dated 7 July 2023; (c) Section "J" Assessment Report prepared by Building and Energy Consultants Australia dated 6 July 2023; (d) Revised waste management plan dated June 2023; (e) Revised stormwater and soil management plans (issue F) prepared by Wehbe Engineers dated 10 July 2023; (f) Revised Noise Impact Assessment prepared by Rodney Stevens Acoustics dated 11 July 2023; and (g) Updated Traffic and Parking Impact Assessment prepared by Hemanote Consultants dated 11 July 2023. (2) The appeal is upheld. (3) DA2022/0098 for demolition works and construction of an industrial building and associated development at Lot B DP 366571 and Lots 8 and 9 DP 20592, known as 169B-173 Penshurst Street, Beverly Hills is determined by the grant of consent subject to the conditions at Annexure A. (4) The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $1,000. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15 Environment Planning and Assessment Regulation 2021, s 38 Georges River Local Environmental Plan 2021, cll 5.21, 6.1, 6.3, 6.9, 6.10, 6.11 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Industry and Employment) 2021, s 3.6 State Environmental Planning Policy (Resilience and Hazards) 2021 s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Category: Principal judgment Parties: BT Development Group Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: G Shapiro (Solicitor) (Applicant) J Fan (Solicitor) (Respondent) Solicitors: Hones Lawyers Pty Ltd (Applicant) Georges River Council (Respondent) File Number(s): 2023/144818 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings, brought under Class 1 of the Court's jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA2022/0098 (the DA) by Georges River Council (Council). 2. The DA seeks consent for demolition of all existing structures and the construction of two new buildings containing 17 industrial/warehouse units at 169B, 171 and 173 Penshurst Street, Beverly Hills, legally described as Lot B in DP366571 and Lots 8 and 9 in DP20592 (the site). Conciliation and agreement between the parties 1. The Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. The conference was held on 29 June 2023. After more time was given, the parties filed an 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 DA, as amended, in accordance with agreed conditions. Jurisdiction 1. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision, provided it is a decision that the Court could have made in the proper exercise of its functions. 2. There are certain jurisdictional pre-requisites which require attention before this function can be exercised. Regarding jurisdiction, and noting the advice in the parties' agreed jurisdictional statement dated 3 August 2023, I am satisfied in regard to the matters listed below. Georges River Local Environmental Plan 2021 1. The Development is permissible with consent on land zoned E4 – General Industrial under Georges River Local Environmental Plan 2021 (GRLEP). I have had regard to the zone objectives. 2. Clause 5.21(2) requires a consent authority to be satisfied in regard to a number of particular issues relating to flood planning. In this instance, the parties had prepared further specialist advice which addresses the relevant issues individually (advice from Stellen civil and water engineers dated 23 August 2023 and forwarded to the Court on 24 August 2023). Based on the specific analysis and conclusions in this advice and my consideration of the matters at cl 5.21(3), I am satisfied that the development: 1. is compatible with the flood function and behaviour on the land, and 2. will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and 3. will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and 4. incorporates appropriate measures to manage risk to life in the event of a flood, and 5. will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses. 1. Clause 6.1 does not apply to the DA as the site is not shown on the Acid Sulphate Soils Map associated with cl 6.1 of the GRLEP. 2. In respect to earthworks, I have considered the matters at cl 6.2(3), and note the advice of the parties that existing levels on the site are largely retained. 3. In respect of stormwater management, I accept and adopt the advice of the parties that, with the amending plans, each of the requirements of cl 6.3(2) are met. I am satisfied that the development: 1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and 2. includes, as practicable, on-site stormwater detention or retention to minimise stormwater runoff volumes and reduce the development's reliance on mains water, groundwater or river water, and 3. avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact, and 4. is designed to minimise the impact on public drainage systems. 1. In respect of cl 6.9 and essential services, I accept the advice of the parties that essential services are available or that adequate arrangements have been made to make them available when required. 2. I accept the advice of the parties that cl 6.10 does not apply to the DA as no part of the building comprising the development is proposed to exceed 12m in height. 3. I accept the advice of the parties that adequate consideration has been given to the matters at cl 6.11(3), as evidenced by the Sustainability Report prepared by Building and Energy Consultants Australia dated 6 July 2023. The parties advise that the matters set out in the Sustainability Report will be set out in construction-level detail during the construction certificate stage of the development. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) 1. The parties advise that a Preliminary Site Investigation and Detailed Site Investigation accompanying the DA conclude that the site is suitable for the purpose for which the development will be carried out. I accept this advice and the requirements of s 4.6(1) are met. State Environmental Planning Policy (Transport and Infrastructure) 2021 1. The parties advise that in accordance with requirements of s 2.48(2)(a), the proposal was notified to Ausgrid which found the proposal to be satisfactory subject to imposition of relevant conditions, which would occur under the agreement. State Environmental Planning Policy (Industry and Employment) 2021 1. The amended plans depict the pylon sign in a reduced size and without any proposed illumination. I accept the advice of the parties that the requirements of s 3.6 have been satisfied. Other provisions of s 4.15(1) of the Environmental Planning and Assessment Act 1. The parties have advised me that no submissions were made following notification of the proposal. 2. I have also given attention to the relevant development control plan, likely impacts of the proposal, site suitability and the public interest, mindful of the requirements of subss 4.15(1)(a)(iii), (b), (c) and (e) of the EPA Act. Conclusion 1. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties' decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 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 merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to "set out in writing the terms of the decision" (s 34(3)(b)). The final orders have this effect. Orders 1. The Court orders that: 1. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021, the application to amend development application DA2022/0098 to rely on the following material is approved: 1. Further amended architectural plans (issue R) prepared by Bongiorno Hawkins and Associates Architects dated 10 July 2023; 2. Further amended landscape plans (revision E) prepared by Vision Dynamics dated 7 July 2023; 3. Section "J" Assessment Report prepared by Building and Energy Consultants Australia dated 6 July 2023; 4. Revised waste management plan dated June 2023; 5. Revised stormwater and soil management plans (issue F) prepared by Wehbe Engineers dated 10 July 2023; 6. Revised Noise Impact Assessment prepared by Rodney Stevens Acoustics dated 11 July 2023; and 7. Updated Traffic and Parking Impact Assessment prepared by Hemanote Consultants dated 11 July 2023. 1. The appeal is upheld. 2. DA2022/0098 for demolition works and construction of an industrial building and associated development at Lot B DP 366571 and Lots 8 and 9 DP 20592, known as 169B-173 Penshurst Street, Beverly Hills is determined by the grant of consent subject to the conditions at Annexure A. 3. The applicant is to pay the respondent's costs thrown away pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed amount of $1,000. .………………………… P Walsh Commissioner of the Court Annexure A (557994, 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: 30 August 2023