Land and Environment Court New South Wales Medium Neutral Citation: Built Developments Pty Limited v Bayside Council [2024] NSWLEC 1555 Hearing dates: Conciliation conference on 22 July and 14 August 2024 Date of orders: 10 September 2024 Decision date: 10 September 2024 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The Applicant is granted leave to amend the Class 1 Application to include and substitute the documents in Annexure A. (2) As a result of the amendment, the Applicant is to pay the Respondent's costs thrown away as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. (3) The appeal is upheld. (4) Development consent is granted to Development Application No DA-2022/112, as amended, for construction of a 3-storey light industrial warehouse building, comprising 25 individual units with associated mezzanine office spaces and off-street car parking, a coffee shop, building identification signage and landscaping at 83 Corish Circle, Banksmeadow, subject to the conditions in Annexure B. Catchwords: DEVELOPMENT APPLICATION: warehouse or distribution centre in IN1 General Industrial under State Environmental Planning Policy (Transport and Infrastructure) 2021 – conciliation conference – agreement between parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.15 Land and Environment Court Act 1979, s 34 Protection of the Environment Operations Act 1997, Sch 1 Bayside Local Environmental Plan 2021, cl 1.3 Environmental Planning and Assessment Regulation 2021, ss 37, 38 State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.6, Sch 5 State Environmental Planning Policy (Resilience and Hazards) 2021, Ch 3, ss 3.2, 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 5, Pt 5.5, ss 5.6, 5.20, 5.29, 5.30 Category: Principal judgment Parties: Built Developments Pty Limited (Applicant) Bayside Council (Respondent) Representation: Counsel: J Koprivnjak (Solicitor) (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Dentons (Applicant) HWL Ebsworth (Respondent) File Number(s): 2023/461653 Publication restriction: Nil Judgment 1. COMMISSIONER: This Class 1 appeal is brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the refusal by Bayside Council of Development Application No DA-2022/112 seeking consent for the construction of a three-storey industrial warehouse complex with mezzanine offices, off street car parking and business identification signage at 83 Corish Circle, Banksmeadow. 2. On 22 July 2024, the Court arranged a conciliation conference between the parties in accordance with s 34(1) of the Land and Environment Court Act 1979 (LEC Act), at which I presided. 3. At the conciliation conference, the parties reached in-principle agreement on the matters in contention, subject to adjournment being granted to prepare amended plans and other documents. On 14 August 2024 I granted a further adjournment to finalise the terms of the agreement, and a signed agreement was submitted to the Court on 30 August 2024, in accordance with s 34(10) of the LEC Act. 4. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. This decision involved the Court upholding the appeal and granting conditional development consent to the development application. 5. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant, and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement. 6. 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. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. 7. For the reasons set out below, I am satisfied that the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 8. The Development Application was lodged on 29 April 2022, and notified for a period of 14 days, with no submissions resulting. 9. The site is located in the IN1 General Industrial zone, under Ch 5 Three Ports – Port Botany, Port Kembla and Port of Newcastle, State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP), in which the uses proposed are permitted with consent. 10. The objectives of the IN1 zone are as follows: • To provide a wide range of industrial and warehouse land uses. • To encourage employment opportunities. • To minimise any adverse effect of industry on other land uses. • To facilitate and encourage port related industries that will contribute to the growth and diversification of trade through the port. • To enable development for the purposes of business premises or office premises associated with, and ancillary to, port facilities or industries. • To encourage ecologically sustainable development. 1. The relevant Land Application Map at cl 1.3 of the Bayside Local Environmental Plan 2021 (BLEP) identifies the subject site to be excluded from application of the BLEP. As such, the Court exercises the functions and discretions of the consent authority nominated at s 5.6 of the Infrastructure SEPP. 2. I have considered the following plans and other documents in respect of earthworks, pursuant to s 5.20 of the Infrastructure SEPP, and conclude those matters at subcl (3) are adequately addressed: 1. Geotechnical Investigation prepared by assetgeoenviro dated 6 April 2022, 2. Stormwater Plans prepared by Portes Project & Services dated 29 July 2024, 3. Stormwater Conceptual Design Certificate prepared by the same author dated 30 July 2024, 4. Flood Levels assessment prepared by Portes Project & Services dated 30 July 2024, 5. Landscape Plans prepared by Vogue & Vine dated July and August 2024. 1. I am also satisfied that the terms of Condition 76 requires that all fill material imported to the site must be Virgin Excavated Natural Material as defined in Sch 1 of the Protection of the Environment Operations Act 1997, in accordance with s 5.20(4) of the Infrastructure SEPP. 2. Part 5.5 of the Infrastructure SEPP deals with the preservation of trees or vegetation. The parties agree that there are no terms of a development control plan applicable to the site that prescribe species or kinds of trees or other vegetation, thereby excluding operation of s 5.29 of the Infrastructure SEPP from this application. Furthermore, that being the case, it is also permissible for vegetation on the site to be removed without development consent, pursuant to s 5.30 of the Infrastructure SEPP. State Environmental Planning Policy (Resilience and Hazards) 2021 1. Chapter 3 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Hazards SEPP) contains provisions in respect of hazardous and offensive development. On the basis of the Dangerous Goods Transport & BIP Proximity Risk Assessment prepared by Systra ScottLister dated April 2022 (Risk Assessment), the proposed development is assessed to comply with those risks identified at Section 6.2 of the Risk Assessment, and does not answer the description of "potentially offensive industry" set out in s 3.2 of the Hazards SEPP. 2. Section 4.6(2) of the Hazards SEPP requires the consent authority, or the Court on appeal, to consider whether the land on which development is proposed, is contaminated. 3. On the basis of the conclusions reached in the Detailed Site Investigation prepared by DRM dated March 2022 (DSI), and the Detailed Asbestos Assessment dated 2 March 2022, I accept the site is contaminated. However, I am also satisfied that the site will be made suitable for the purpose for which development is proposed before the land is used for that purpose by the imposition of a condition of consent requiring implementation of the recommendations contained within the Construction Environmental Management Plan – Lot 102, Corish Circle, Banksmeadow NSW (56068/120897) dated 1 March 2019 by JBS&G, cited in the DSI. State Environmental Planning Policy (Industry and Employment) 2021 1. As the proposal comprises signage, Ch 3 of State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP) applies to the site. 2. The proposed signage is depicted in architectural drawing No 25 – ADA – 25, and is agreed to be other than advertising, but signage to which s 3.6 of the Industry SEPP applies, requiring the Court to be satisfied that the signage is consistent with the objectives of this Chapter as set out in s 3.1(1)(a) (s 3.6(a)), and that the signage the subject of the application satisfies the assessment criteria specified in Sch 5 (s 3.6(b)). 3. On the basis of the signage proposed, the parties advise that the signage is non-reflective, is limited to the entrances to the development, in close proximity to communal foyer areas and is of high quality design and finish. As such, it is compatible with the desired amenity and visual character of the area, consistent with s 3.1(1)(a) of the Industry SEPP. 4. As for the assessment criteria in Sch 5 of the Industry SEPP, no advertising is proposed, and the extent of signage that is proposed is minimised, is not within special areas and has no impact on views or vistas, is appropriate in scale and proportion and does not protrude so as not to detract from the streetscape. Furthermore, the signage does not require ongoing vegetation management and, while not innovative or imaginative, has been positioned to avoid traffic sightlines, is not illuminate and does not affect safety or pedestrians, vehicles or aircraft. 5. As such, I am satisfied as to those matters about which the Court is required to be satisfied at s 3.6 of the Industry SEPP. Conclusion 1. The Court notes that: 1. The Applicant applied to Bayside Council, under section 37(1) of the Environmental Planning and Assessment Regulation 2021, to formally amend the development application the subject of the Class 1 Application to include and substitute the plans and documents listed in Annexure A (the Amended Application). 2. Bayside Council, as the relevant consent authority, has approved the amendment of the development application under section 38(1) of the Environmental Planning and Assessment Regulation 2021 for Development Application No DA-2022/112 to be amended by inclusion and substitution of the plans and documents listed in Annexure A. 1. The Applicant filed the Amended Application with the Court on 2 September 2024. Orders 1. The Court orders that: 1. The Applicant is granted leave to amend the Class 1 Application to include and substitute the documents in Annexure A. 2. As a result of the amendment, the Applicant is to pay the Respondent's costs thrown away as agreed or assessed, pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 3. The appeal is upheld. 4. Development consent is granted to Development Application No DA-2022/112, as amended, for construction of a 3-storey light industrial warehouse building, comprising 25 individual units with associated mezzanine office spaces and off-street car parking, a coffee shop, building identification signage and landscaping at 83 Corish Circle, Banksmeadow, subject to the conditions in Annexure B. T Horton Commissioner of the Court ********** 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: 10 September 2024