Land and Environment Court New South Wales Medium Neutral Citation: N Moit & Sons (NSW) Pty Ltd v Hawkesbury City Council [2024] NSWLEC 1474 Hearing dates: Conciliation conference on 2 August 2024 Date of orders: 07 August 2024 Decision date: 07 August 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The applicant shall pay the respondent's costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $8,000 within 14 days. (2) The appeal is upheld. (3) Development consent is granted to development application No. DA0476/22, as amended in accordance with the plans and documentation at Annexure 'A', for the formalisation of the current use of the site and buildings as a truck depot and complete ancillary earthworks, landscaping and stormwater works subject to the conditions in Annexure 'B'. Catchwords: APPEAL – development application – truck depot and earthworks – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.14, 4.15, 4.16, 8.7 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021 ss 27, 37, 38 Hawkesbury Local Environmental Plan 2012, cll 5.21, 6.1, 6.2, 6.4, 6.5, 6.7 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 6.2, ss 6.6, 6.7, 6.9 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.7, 2.8, 2.10, 2.11, 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48 Category: Principal judgment Parties: N Moit & Sons (NSW) Pty Ltd (ABN 76074571510) (Applicant) Hawkesbury City Council (Respondent) Representation: Counsel: R Pellizon (Solicitor) (Applicant) J Palmer (Solicitor) (Respondent) Solicitors: Colin Biggers & Paisley (Applicant) Pikes & Verekers (Respondent) File Number(s): 2023/00263466 Publication restriction: Nil Judgment 1. COMMISSIONER: At 6 Speedwell Place, South Windsor, the applicant seeks development consent for use of the site as a truck depot and for the carrying out of earthworks, landscaping and stormwater works. It lodged a development application on 21 December 2022. Following the expiry of the period after which a development application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. The final orders in this appeal, outlined in [9] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 August 2024. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The agreement reflects the signed agreement that was filed on 29 July 2024, and follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021. The amendments to the development application include the reduction in fill proposed on the site, changes to the onsite detention system, changes to the regrading of the site and the provision of supporting reports and management plans concerning contamination, flooding and stormwater. 4. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act. The signed agreement is supported by an Agreed Statement on Jurisdictional Prerequisites that sets out the prerequisites to the exercise of the power to grant development consent. I have considered the contents of the Agreed Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision 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). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: 1. The site is zoned RU1 Primary Production with an access handle that is zoned E4 General Industrial, pursuant to the Hawkesbury Local Environmental Plan 2012 (HLEP), and development for the purpose of a truck depot is permissible with development consent in both zones. 2. Clause 5.21 of the HLEP concerns flood planning and applies to the proposed development. Based on the reports prepared by Martens and Associates dated 5 April 2024 and 9 April 2024, I am satisfied of the matters in cl 5.21(2) of the HLEP and I have considered the matters in cl 5.21(3). 3. The land is classified as Class 5 Acid Sulfate Soils under cl 6.1(2) of the HLEP. The Acid Sulfate Assessment dated 14 February 2022 confirms that there is no known occurrence of acid sulfate soils on the site. 4. The development application includes earthworks. Based on the Construction Environmental Management Plan dated 29 April 2024 (CEMP), the civil plans prepared by Martens and Associates 14 June 2024, and the Asbestos Management Plan dated 8 April 2024 (AMP), I have considered the matters set out in cl 6.2(3) of the HLEP. 5. The site contains areas of land mapped as "Significant vegetation" and "Connectivity between significant vegetation" on the Terrestrial Biodiversity Map, such that cl 6.4 of the HLEP applies. Based on the Flora and Fauna Assessment dated 17 June 2022 and the fact that all proposed works will be carried out on land that is already cleared, I have considered the matters in cl 6.4(3) of the HLEP and I have reached the satisfaction required by cl 6.4(4). 6. The site contains an area of land mapped as 'wetlands' on the Wetlands Map, such that cl 6.5 of the HLEP applies. The proposed works maintain a buffer of 40m to the areas on the land mapped as 'wetlands' and, based on the civil plans and the Flora and Fauna Assessment dated 17 June 2022, I have considered the matters in cl 6.5(3) of the HLEP and I have reached the satisfaction required by cl 6.5(4). 7. Consistent with the requirements of cl 6.7 of the HLEP, essential services for the development are available or will be available when required. 8. The site contains overhead electricity transmission lines and is burdened by an easement for those transmission lines, as a result of which s 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 requires notification to the electricity supply authority and consideration of their response. Consistent with those requirements, Endeavour Energy was notified of the development application and I have considered the content of their response dated 22 November 2023. 9. The site falls within the Hawkesbury Nepean Catchment, such that Part 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) applies to the development application. The civil plans dated 14 June 2024 demonstrates that water quality will be improved by the proposed development and stormwater flows will be controlled by an on-site stormwater detention system. Based on those civil plans, as well as on the Flora and Fauna Assessment dated 17 June 2022 and the Vegetation Management Plan dated 14 June 2022, I am satisfied of the matters in ss 6.6(2) and 6.7(2). Further, the development will not change any public access to recreational areas or waterbodies, and I am therefore satisfied of the matters in s 6.9(2). 10. Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). Based on the Site Investigation report of EI Australia dated 8 November 2022, the Site Audit Report dated 19 March 2024, the Site Audit Statement dated 19 March 2024 and the Long Term Environmental Management Plan dated 23 January 2023, the site is suitable in its contaminated state for the purpose of which the development is proposed to be carried out, subject to compliance with appropriate recommendations, which are incorporated in the agreed conditions of consent and the management plans listed in condition (1)(b) of Annexure B. 11. The site contains land identified as 'coastal wetlands' on the Coastal Wetlands and Littoral Rainforests Area Map pursuant to s 2.7 of the SEPP RH, but there is no work proposed to be carried out on any of the land so identified. 12. The site contains land identified as 'proximity area for coastal wetlands' on the Coastal Wetlands and Littoral Rainforests Area Map, such that s 2.8 of the SEPP RH applies. Based on the Martens reports of 5 April 2024 and 9 April 2024, the fact that there is no work proposed on any of the land identified as 'coastal wetlands' and the fact that there is a buffer of 40m between the works and the wetlands area, I am satisfied that the development will not significantly impact on the matters identified in s 2.8(1)(a) and subs (b). 13. The site is within the coastal environment area and the coastal use area, pursuant to the SEPP RH. Based on the location of the site, the location of the works to be carried out on the site, the civil plans dated 14 June 2024, and the Martens reports of 5 April 2024 and 9 April 2024, I have considered the matters in ss 2.10(1) and 2.11(1)(a). Consistent with ss 2.10(2)(a) and 2.11(1)(b), I am satisfied that the development will not have any adverse impacts on the matters set out in ss 2.10(1) and 2.11(1)(a) of the SEPP R&H, and will not cause an increased risk of coastal hazards, consistent with s 2.12. 14. Section 4.14 of the EPA Act applies to the land, as part of the land has been identified as bush fire prone land. Based on the Bushfire Hazard Assessment Report dated 18 April 2022, I am satisfied that the development conforms to the specifications and requirements of the Planning for Bush Fire Protection 2019, as required by s 4.14(1)(a). 15. The development application was notified between 15 February and 17 March 2023, and no submissions were received. 1. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 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 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. 3. The Court notes: 1. That Hawkesbury City Council, as the relevant consent authority, has agreed, under s 38(1) Environmental Planning and Assessment Regulation 2021, to the applicant's amended development application DA0476/22 in accordance with the amended material identified at Annexure A. 2. The applicant filed the amended material identified at Annexure A with the Court on 2 August 2024. 1. The Court orders that: 1. The applicant shall pay the respondent's costs thrown away by reason of the amendment of the development application pursuant to s 8.15(3) Environmental Planning and Assessment Act 1979 in the agreed sum of $8,000 within 14 days. 2. The appeal is upheld. 3. Development consent is granted to development application No. DA0476/22, as amended in accordance with the plans and documentation at Annexure 'A', for the formalisation of the current use of the site and buildings as a truck depot and complete ancillary earthworks, landscaping and stormwater works subject to the conditions in Annexure 'B'. ………………………. J Gray Commissioner of the Court Annexure A Annexure B ********** 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: 07 August 2024