Land and Environment Court New South Wales Medium Neutral Citation: Mecone Group Pty Ltd v Wingecarribee Shire Council [2023] NSWLEC 1608 Hearing dates: Conciliation conference on 11 September 2023 Date of orders: 17 October 2023 Decision date: 17 October 2023 Jurisdiction: Class 1 Before: Harding AC Decision: The Court orders that: (1) The appeal is upheld. (2) Development Application No. DA22/1193 for earthworks, demolition, tree removal, construction of a self-storage facility, new business identification signs and landscaping at 100 Bowral Road, Mittagong NSW 2575 (Lot 12 DP 817002, Lot 18 DP 1108714 and Lot 33 DP 1138429), is determined by way of granting development consent, subject to the conditions set out in Annexure "A". Catchwords: DEVELOPMENT APPLICATION – self-storage facility – conciliation conference – agreement between the parties – orders Legislation Cited: Biodiversity Conservation Act 2016, Pt 7, s 7.7 Environmental Planning and Assessment Act 1979, ss 1.7, 4.15, 8.7 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy Amendment (Land Use Zones) 2023 State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 8.5, 8.9 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Div 15, s 2.98, Div 17, s 2.119 State Environmental Planning Policy (Industry and Employment) 2021, ss 3.1, 3.11, Sch 5 Wingecarribee Local Environmental Plan 2010, cll 2.7, 4.3, 4.4, 4.6, 7.3 Texts Cited: State of NSW Environmental Protection Authority, Waste Collection Classification Guidelines Part 1: Classifying Waste, 2014 Category: Principal judgment Parties: Mecone Group Pty Ltd (Applicant) Wingecarribee Shire Council (Respondent) Representation: Counsel: P Murray (Solicitor) (Applicant) S Kondilios (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Hall and Willcox (Respondent) File Number(s): 2023/133006 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) by Mecone Group Pty Ltd (the Applicant) against the refusal by Wingecarribee Shire Council (the Respondent) of Development Application No. DA 22/1193. 2. The Development Application seeks consent for earthworks, demolition, tree removal, construction of a self-storage facility, new business identification signs, and landscaping at 100 Bowral Road, Mittagong. The site is legally identified as Lot 12 DP 817002, Lot 18 DP 1108714 and Lot 33 DP 1138429. 3. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (the LEC Act). This was initially held on 11 September 2023. 4. At the conciliation conference, the parties reached an in principle agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The conciliation process was adjourned to allow the parties to finalise the agreement. The agreement involves the Court upholding the appeal and granting development consent to the development application, subject to agreed outcomes and conditions. 5. Pursuant to s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreement if the proposed decision, the subject of the agreement, is a decision that the Court could have made in the proper exercise of its functions. 6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and how they are satisfied. The parties agree that there are no jurisdictional prerequisites in these proceedings which would prevent the Court from exercising its function under s 34(3) of the LEC Act. 7. As the presiding Commissioner, I am satisfied that the decision to grant Development Consent is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). In reaching that state of satisfaction, I note the following: 1. The Site is zoned E3 Productivity Support under the Wingecarribee Local Environmental Plan 2010 (WLEP 2010) in accordance with the State Environmental Planning Policy Amendment (Land Use Zones) 2023 (SEPP Land Uses) which altered the previous zoning of B7 – Business Park under the WLEP 2010. Development for the purposes of storage premises is permissible, with development consent, in the Zone. As required by the WLEP 2010, regard has been given to the objectives of the zone in determining the Development Application. 2. Clause 2.7 of WLEP 2010 provides that demolition is permissible with consent. Demolition is proposed as part of the Development Application and has been considered. Appropriate conditions have been included in the agreed conditions in Annexure A. 3. Clause 4.3 of the WLEP 2010 applies to the site. The maximum building height for the Site is 10m as shown on the Height of Buildings Map under WLEP 2010. The proposal provides a height of 10.91m, which is a 9.1% exceedance of the height control. A supporting Clause 4.6 Variation Request, prepared by Mecone (dated 15 December 2021), has been submitted. After consideration of the prerequisite matters raised in cl 4.6, the written request concludes, and the parties agree, that strict compliance with the Height of Buildings control is unreasonable and unnecessary and will not result in adverse impacts. 4. The written request includes the following key points: 1. The proposed development achieves the objectives of the height standard and is consistent with the objectives of the zone notwithstanding non-compliance with the standard. 2. The variation exceeds the maximum height limit by 910mm or 9.1% at its greatest and is limited to parapets, a lift overrun and roof space at the location of the building step, with significant areas of the built form sitting below the maximum permitted height. 3. The building has been designed to respond to the steep slope of the site, which falls by 12m from the rear to Bowral Road. The building has been stepped to reduce cut and apparent bulk to Bowral Road, with the variation limited to the location of the step. 4. The development is purposefully designed to accommodate the unique form and function of storage facilities, which, by nature, require greater floor-to-floor heights than normal commercial or industrial developments. 5. The possible impacts on adjoining properties have been carefully considered and found to be acceptable. 6. The proposed development is compliant with the maximum FSR control established by cl 4.4 of the LEP. 7. There is no usable floor space located above the 10m height control. 8. The development presents as a compliant two-storey building form to Bowral Road, reducing potential bulk and scale impacts on the adjoining residential area. 1. The parties agree that the Clause 4.6 Variation Request demonstrates that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out. It is for the reasons above that I agree that the decision of the parties, to support the upholding of the cl 4.6 written request, is a decision that the Court could have made in the proper exercise of its functions. 2. Clause 7.3 of the WLEP 2010 is applicable as earthworks are proposed under the Development Application. The Development Application is accompanied by a Geotechnical Investigation Report prepared by JK Geotechnics dated 1 November 2021, which demonstrates that the proposed development is consistent with cl 7.3 of WLEP 2010. In addition, an Aboriginal Heritage Information Management System search was undertaken, which confirmed that there are listed Aboriginal sites or places located within 200m of the Site. According to the Preliminary Site Investigation, the proposal is unlikely to disturb any relics. The agreed conditions of consent include conditions that appropriately regulate the proposed excavation, and these have been included in the Development Consent (Annexure A). The matters listed under cl 7.3(3) of the WLEP, with respect to earthworks, have been considered. 3. The Development Application was placed on exhibition for a period of 14 days until 9 March 2022 in accordance with Council policy. No submissions were received. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) 1. The Site is situated within the Sydney Drinking Water Catchment pursuant to the Drinking Water Catchment Map referred to in the, now repealed, s 8.5 of the Biodiversity SEPP (the land is in the Nattai River Sub Catchment). As a result, a Civil Stormwater Management Report and Stormwater Concept Plan have been prepared by AT&L. In addition, various Water Sensitive Urban Design strategies including soft landscaped areas, a swale along the southern and eastern boundaries and Ocean Protect systems have been employed within the treatment train to improve water quality. 2. As a result, and as concluded in the civil report, the development will meet the Neutral or Beneficial Effect (NorBE) objective for development in the Sydney Water Drinking Catchment, as a 10% improvement in total suspended solids, total phosphorus and total nitrogen and an equal or less gross pollutant load compared to the pre-development scenario will be achieved. Accordingly, the parties agree that the proposal will have no identifiable potential impact on water quality, and pursuant to s 8.9(4) of the Biodiversity SEPP, s 8.9 does not apply to the development. As a result, I am satisfied that the requirements of the Biodiversity SEPP have been met. Biodiversity Conservation Act 2016 (BC Act) 1. Section 1.7 of the EPA Act provides that development is subject to the provisions of Pt 7 of the BC Act. Part 7 of the BC Act contains additional requirements with respect to assessments, consents and approvals. 2. In accordance with s 7.7 of the BC Act, the application is accompanied by a Biodiversity Development Assessment Report (BDAR) dated 19 December 2022 prepared by Cumberland Ecology. The BDAR documents the findings of an assessment undertaken in accordance with the Biodiversity Assessment Method and examines the impacts of the proposal on the biodiversity values on the Site. There is also a condition of development consent that requires the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of at least the number and class specified in the BDAR. I am therefore satisfied that the requirements of the BC Act have been met. State Environmental Planning Policy (Resilience and Hazards) 2021(Resilience and Hazards SEPP) 1. Consideration has been given to whether the Site is contaminated as required by s 4.6 of the Resilience and Hazards SEPP. The parties considered material from the Applicant as to whether the land is contaminated. 2. A Preliminary Site Investigation, dated 9 February 2023, was prepared by ZOIC and accompanied the Class 1 Application. The Applicant has now provided the Council with a DSI prepared by Geosyntec dated 16 June 2023. An investigation into potential areas of environmental concern found that the site contamination status has been suitably characterised, rendering the site suitable for commercial and industrial use. Based on the investigation findings, it was also determined that no soil remediation is required for the proposal. Notwithstanding, the DSI recommends that testing be undertaken for the purpose of waste characterisation in accordance with the NSW EPA, Waste Classification Guidelines Part 1: Classifying Waste, 2014 as the proposal requires the excavation and disposal of material. These recommendations and requirements are incorporated as conditions of consent in Annexure A. As a result of this documentation, I am satisfied that the requirements of the Resilience and Hazards SEPP are met. State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP) 1. As the Development Application proposes earthworks within 25m of a railway corridor and fronts a classified road, Div 15, s 2.98 and Div 17, s 2.119 of the Transport SEPP must be satisfied before consent can be granted. 2. On 20 January 2022, the Council referred the application separately to the Australian Rail Track Corporation (ARTC) for comment. On 10 May 2022, ARTC wrote to Council confirming the rail corridor at Mittagong is leased to ARTC and requesting Council request the Applicant to provide a geotechnical report, and for Council to take into consideration ARTC's fencing and safety, excavation and construction requirements when assessing the application. Council has taken these matters into consideration and considers the application satisfies the requirements. 3. On 12 May 2022, the Council provided ARTC with the Applicant's geotechnical report, to which the Council has received no further correspondence from ARTC. Council has undertaken the required assessments based on material provided by the applicant and the parameters set out by ARTC. The parties agree that no adverse impacts to the operation or structural integrity of the rail corridor are anticipated as a result of the proposed earthworks. 4. The development is also development with frontage to a classified road. A detailed traffic impact letter dated 15 December 2021 has been prepared by GTA (now Stantec), assessing the proposal in terms of traffic generation, parking requirements and proposed access layout. TfNSW has considered the development application and has informed Council that it has no objection to the development, subject to certain conditions being imposed. As a result of changes to the Bowral Road access, and proposed conditions of development consent, the parties agree that the proposal would not adversely impact the operation or safety of Bowral Road. The parties agree that the requirements of the Transport SEPP have been met. State Environmental Planning Policy (Industry and Employment) 2021(Industry and Employment SEPP) 1. The required assessments in ss 3.1 and 3.11 of the Industry and Employment SEPP relating to signage on the site, have been considered by the parties. The parties agree that the proposed signage is consistent with the relevant aims and objectives as the signage is compatible with the proposed self-storage use and the general visual character of the area. The proposed signage will not result in any adverse visual impacts but rather contribute positively to the setting of surrounding land uses by providing business identification along heavily trafficked road corridors while remaining consistent with and appropriate to the existing streetscape. The parties have also agreed that the proposal is consistent with the assessment criteria in Sch 5. As a result of the above, I am satisfied that the provisions of the Industry and Employment SEPP are met. 1. I was not required to make, and have not made, any assessment of the merits of the Development Application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA 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' agreement. The final orders to give effect to the parties' agreement under s 34(3) of the LEC Act are as follows: Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development Application No. DA22/1193 for earthworks, demolition, tree removal, construction of a self-storage facility, new business identification signs and landscaping at 100 Bowral Road, Mittagong NSW 2575 (Lot 12 DP 817002, Lot 18 DP 1108714 and Lot 33 DP 1138429), is determined by way of granting development consent, subject to the conditions set out in Annexure "A". Stuart Harding 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 October 2023