Land and Environment Court New South Wales Medium Neutral Citation: Sentumar Pty Ltd v Bayside Council [2024] NSWLEC 1751 Hearing dates: Conciliation conference 2 August, 7 November 2024 Date of orders: 22 November 2024 Decision date: 22 November 2024 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The Applicant is to pay the Respondent's costs 'thrown away' as a result of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $25,000, and payable within 28 days. (2) The appeal is upheld. (3) Development consent is granted to DA-2022/204 for the demolition of 2 existing buildings fronting Denison Street and associated structures (being Block 'D', the western portion of Block 'G', the 1 and 2 storey brick building to the south of 100 Denison Street, as well as the landscape and driveway elements) and construction of one four-storey building and one five-storey building comprising of offices and self-storage units with basement and at-grade parking, business identification signage and removal of existing trees at 96 – 98 Denison Street, Hillsdale subject to Annexure A. Catchwords: DEVELOPMENT APPLICATION – Existing self storage units seeking expansion of use – existing use rights – amended plans and further information – conciliation conference – agreement reached between the parties – orders made. Legislation Cited: Environmental Planning and Assessment Act 1979, Div 4.11, Pt 4, ss 4.15, 4.16, 4.65, 4.67, 8.15 Land and Environment Court Act 1979, s 34 Roads Act 1993, s 138 Environmental Planning and Assessment Regulation 2021, ss 23, 38, 162, 163, 164, 165, 166, 167 State Environmental Planning Policy (Biodiversity and Conservation) State Environmental Planning Policy (Industry and Employment) 2021, Sch 5, s 3.1 State Environmental Planning Policy (Resilience and Hazards) 2021, ss 3.12, 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 5, ss 2.48, 2.119, 5.15, 5.19, 5.20, 5.29, 5.30 Cases Cited: Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194 Iris Diversified Property Pty Ltd v Randwick City Council (2010) 173 LGERA 240; [2010] NSWLEC 58 oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 47 Saffioti v Kiama Municipal Council [2019] NSWLEC 57 Category: Principal judgment Parties: Sentumar Pty Ltd (Applicant) Bayside Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) P Brown (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth (Respondent) File Number(s): 2024/161241 Publication restriction: No JUDGMENT 1. COMMISSIONER: These proceedings are an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of DA/2022/204. The development application seeks consent for the demolition of two existing buildings and construction of 1 x 4 storey and 1 x 5 storey building comprising of offices and self-storage units, a new crossover and driveway and basement parking and tree removal at 96-98 Denison Street, Hillsdale. 2. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on the August 2 and 7 November 2024. I presided over the conciliation conference. At the conciliation conference, agreement was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. This agreed decision involved the Court upholding the appeal and granting conditional development consent to the development application. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on November 8 2024. 3. 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 below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 4. As the presiding Commissioner, I am satisfied that the decision 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). I have formed this state of satisfaction for the following reasons: 1. The development application was made with the consent of the owners of the land which is the subject of the development application: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg). 2. The development application was notified by the Respondent for a period of 14 days between 3 and 14 August 2022. Two submissions were received which raised concerns about the over development, reduction in natural tree canopy and concerns in relation to noise and pollutants. I am satisfied that the submissions have been considered in the determination of the development application: s 4.15(1)(d) of the EPA Act. Existing Use 1. Chapter 5 'Three ports – Port Botany, Port Kembla and Port of Newcastle' of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI) applies. Clause 5.11 of SEPP TI and the land zoning map zone the land IN1 General Industrial. The proposed development seeks consent for a storage facility which is a prohibited use in the zone. 2. The development application relies on 'existing use' rights under Div 4.11 of Part 4 of the EPA Act and ss 162-167 of the EPA Regulation to enliven the power of the Court to approve the development application. The parties agree, and I accept, that the existing self-storage is an existing use of the kind referred to in s 4.65(a) of the EPA Act. 3. The development application, and the jurisdictional note filed in the proceedings, detail the history of development consents and planning instruments which applied to the site. Section 164 of the EPA Reg permits an enlargement, expansion or intensification of an existing use, so long as this occurs only on the site (and not on any additional land) and for the existing use (and no additional uses). The parties agree that part of the site upon which the development is proposed under the development application has the benefit of existing use rights for the purposes of self-storage uses and associated offices sufficient to allow development consent to be granted to the proposed development, notwithstanding that development for the purposes of self-storage units is prohibited under Ch 5 of SEPP TI. 4. Prior to the commencement of the prohibition on the approved use by the terms of SEPP TI, the approved buildings were approved, constructed and operated as a self-storage facility. The existing use was, and continues to be, operated in accordance with the applicable development consents which apply to the land. 5. The parties agree, and I accept, that the existing use for the purpose of a self-storage facility, associated office and associated 'box shop' may lawfully be expanded and intensified in accordance with ss 163 and 164 of the EPA Regulation. Condition 2 of the annexed consent makes clear that the associated office and associated 'box shop' must at all times be associated with, and ancillary to, the approved self-storage use/ existing use. 6. Pursuant to s 4.67(3) of the EPA Act and the legal principles arising from decisions of the Court such as Saffioti v Kiama Municipal Council [2019] NSWLEC 57; Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194, Iris Diversified Property Pty Ltd v Randwick City Council (2010) 173 LGERA 240; [2010] NSWLEC 58 and oOh! Media Assets Pty Ltd v The Council of the City of Sydney [2016] NSWLEC 47, it is necessary to consider the provisions of the relevant planning instruments to the extent those provisions do not detract from or deleteriously impinge upon any entitlement to make and have the consent authority consider and determine, a development application seeking consent to enlarge, expand or intensify the existing use. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) 1. Pursuant to section 3.12 of SEPP RH, a consent authority must consider: … (a) current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development, and (b) whether any public authority should be consulted concerning any environmental and land use safety requirements with which the development should comply, and (c) in the case of development for the purpose of a potentially hazardous industry-a preliminary hazard analysis is prepared, and (d) any feasible alternatives to the carrying out of the development and the reasons for choosing the development the subject of the application (including any feasible alternatives for the location of the development and the reasons for choosing the location the subject of the application), and (e) any likely future use of the land surrounding the development. 1. In relation to the satisfaction of these requirements, the Applicant has prepared an Impact on Societal Risk Report. The report concludes that the proposed development will have a maximum of 4 staff members and on demand customers on the site at any one time and the temporary population will have no significant effect on societal risk consideration. 2. In addition to the above, the proposed development was referred to the Department of Planning (Risk) for review and assessment on 19 September 2022, who raised no objection to the proposed development and recommended the imposition of a condition for the development to develop appropriate emergency procedures in relation to emergency incidents arising from Botany Industrial Park. 3. Accordingly, I am satisfied that the proposed development complies with s 3.12 of SEPP RH. 4. Pursuant to s 4.6 of the SEPP RH, a consent authority must not grant consent to a development unless it has considered whether the site is contaminated, and if the land is contaminated, is satisfied that the site is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out. 5. The development application includes a Preliminary Site Investigation (PSI) report prepared by Prensa Pty Ltd dated February 2021. The report concluded that due to the historical activities on the Site, there is a potential contamination may exist on the Site. The report recommends that a Remediation Action Plan (RAP) is prepared to manage the asbestos during construction and that an Asbestos Management Plan (AMP) be developed to manage residual asbestos impacted soils. 6. The Applicant undertook further investigation with the preparation of Detailed Site Investigation prepared by Geotechnical Consultants Australia that identified some contamination. The report recommends that this be managed in line with the recommendations listed in the report, preparation of a RAP and a Hazardous Materials Survey. 7. The development application was amended to incorporate a RAP prepared by Geotechnical Consultants Australia which concludes that the Site can be made suitable for the proposed development following completion of the adequate remediation and validation work outlined in the RAP. 8. Accordingly, I am satisfied that the proposed development complies with s 4.6 of SEPP RH. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) 1. The proposed development seeks to remove 16 existing trees in the front part of the Site to accommodate a second driveway. Nineteen trees are proposed to be retained. The development application was amended to allow the retention of Tree 1 and 3, supported by a further arboricultural report. Further, the development application includes landscaping works detailed in the landscape plans accompanying the application. Having had regard to the tree species, integrity, level of significance and replacement planting as proposed in the landscape plans, I find that the removal of the trees is consistent with the SEPP BC. State Environmental Planning Policy (Industry and Employment) 2021 (SEPP IE) 1. The proposed development seeks consent for business identification signs as provided in the amended architectural plans. The Statement of Environmental Effects accompanying the development application provides an assessment of the proposed signage against the Sch 5 – Assessment Criteria and concludes that the proposed signs are compatible with the desired amenity and visual character of an area and provides effective communication in suitable locations and is of high quality design and finish. The parties agree, and I accept, that I can be satisfied the proposed development complies with s 3.1(1)(a) and Sch 5 of SEPP IE. SEPP TI 1. As the development is proposed to be carried out within 5m of an exposed overhead powerline, s 2.48 of SEPP TI applies. The Development Application was referred to Ausgrid who did not raise any objections and provided general comments regarding safety recommendations during construction of the proposed development. The parties agree, and I accept, that that the proposed development complies with s 2.48 of SEPP TI. 2. Subdivision 1 of Division 5 of SEPP TI applies as the proposed development is located approximately 350 metres northeast of the Moomba to Sydney Ethane Pipeline. The Development Application was referred to APA who did not raise an objection in their response dated 25 August 2022 confirming they had no concerns regarding any direct impact on the pipeline, as a result of the development and construction activity. The parties agree, and I accept, that that the proposed development complies with Subdivision 1 of SEPP TI. 3. The proposed development seeks consent for two driveways, one driveway is an existing driveway from Denison Street for Building S2 and a proposed new second driveway for Building S1. Section 2.119 applies as the Site is located with a frontage to a classified road. The Applicant has provided a Traffic Report prepared by Colston Budd Rodgers & Kafes Pty Ltd dated March 2022. 4. The Development Application was referred to Transport for NSW (TfNSW). On 10 November 2023, TfNSW provided concurrence to the proposed civil works on the Denison Street frontage under s 138 of the Roads Act 1993, subject to the requirements in Condition 17 of the agreed conditions of consent. On the preceding basis I accept the consent authority can be satisfied that the proposed development will not have an adverse impact on the operation of classified roads. 5. As noted at (5), Ch 5 of SEPP TI applies. In determining the development application, I have given consideration to the objectives of the General Industrial zone. 6. Pursuant to s 5.15 'Demolition requires development consent', the development application seeks consent for demolition as detailed in the architectural plans. 7. Pursuant to s 5.19 'Business and office premises in Zone IN1', I am satisfied that the proposed office is ancillary to, and associated with, the existing use of the site as a storage facility and is therefore permissible. 8. Section 5.20 'Earthworks' applies as the development includes the construction of new basement carparking. With the assistance of the civil plans, geotechnical report and the statement of environmental effects accompanying the development application I have considered the matters at s 5.20(3) of SEPP TI. 9. On the same basis noted at (18),I find that I can be satisfied that the provisions of ss 5.29 and 5.30 in relation to the preservation of trees and vegetation in SEPP TI are met and that no trees proposed for removal fall within cl 5.29(7). 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, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, 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 that the Respondent, as the relevant consent authority, has agreed, under section 38 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending DA/2022/204 in accordance with the documents listed below: Amended Architectural Plans Plan name Drawing ref Revision Date Prepared by Cover page - Z 13.08.2024 BJB Architects Pty Ltd Building S1 & S2 - Site Plan 2019-038 A.1001 Z 13.08.2024 BJB Architects Pty Ltd Building S1 & S2 - Site Analysis Plan 2019-038 A.1002 Z 13.08.2024 BJB Architects Pty Ltd Building S1 & S2 - Demolition Plan 2019-038 A.1003 Z 13.08.2024 BJB Architects Pty Ltd Landscape Calculations 2019-038 A.1004 Z 13.08.2024 BJB Architects Pty Ltd Landscape Calculations - Deep Soil 2019-038 A.1004A Z 13.08.2024 BJB Architects Pty Ltd FSR 2019-038 A.1005 Z 13.08.2024 BJB Architects Pty Ltd FSR 2019-038 A.1006 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Ground Floor Plan 2019-038 A.1101 Z 13.08.2024 BJB Architects Pty Ltd Building S1 Mezzanine 2019-038 A.1102 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Level 1 Plan 2019-038 A.1103 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Level 2 Plan 2019-038 A.1104 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Level 3 Plan 2019-038 A.1105 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Level 4 Plan 2019-038 A.1106 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Roof Plan 2019-038 A.1107 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - S2 Ground Floor Plan 2019-038 A.1109 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - Basement Floor Plan 2019-038 B.1101 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - Ground Floor Plan 2019-038 B.1102 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - Mezzanine 2019-038 B.1103 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - Level 1 Plan 2019-038 B.1104 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - Level 2 Plan 2019-038 B.1105 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - Level 3 Plan 2019-038 B.1106 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - Roof Plan 2019-038 B.1107 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - North & South Elevations 2019-038 A.1201 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - East & West Elevations 2019-038 A.1202 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - North & South Elevations 2019-038 B.1201 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - East & West Elevations 2019-038 B.1202 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - North Elevation 2019-038 B.1203 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Section 01 2019-038 B.1301 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Section 02 2019-038 A.1302 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Section 03 2019-038 A.1303 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Section 04 2019-038 A.1304 Z 13.08.2024 BJB Architects Pty Ltd Building S1 - Driveway Detail 2019-038 A.1305 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - Section 01 2019-038 B.1300 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - Section 02 2019-038 B.1301 Z 13.08.2024 BJB Architects Pty Ltd Building S2 - Section 03 2019-038 B.1302 Z 13.08.2024 BJB Architects Pty Ltd Schedule of finishes Page 1 of 3 Y July 2024 BJB Architects Pty Ltd Schedule of finishes Page 2 of 3 Y July 2024 BJB Architects Pty Ltd Schedule of finishes Page 3 of 3 Y July 2024 BJB Architects Pty Ltd Indicative Plans for 100 and 102 Denison Street Plan name Drawing Ref Revision Date Prepared by Site Plan D1001 Z 13.08.2024 BJB Architects Pty Ltd Ground Floor Plan D1002 Z 13.08.2024 BJB Architects Pty Ltd First Floor Plan D1003 Y 05.07.2024 BJB Architects Pty Ltd Second Floor Plan D1004 Y 05.07.2024 BJB Architects Pty Ltd 100-102 Denison Street, Hillsdale D1000 Y 05.07.2024 BJB Architects Pty Ltd Amended Landscape Plans Plan name Drawing ref Revision Date Prepared by Hardscape Plan LPS34 23-51 C 19.08.24 Conzept Landscape Architects Landscape Plan-S1 LPS34 23-51 C 19.08.24 Conzept Landscape Architects Landscape Plan-S2 LPS34 23-51 C 19.08.24 Conzept Landscape Architects Landscape Plan – Level 3 & Level 4 LPS34 23-51 C 19.08.24 Conzept Landscape Architects Specification & Details LPS34 23-51 C 19.08.24 Conzept Landscape Architects Planting Palettes LPS34 23-51 C 19.08.24 Conzept Landscape Architects Amended Civil Plans Plan name Drawing Ref Revision Date Prepared by Civil Services, Cover Sheet, Legends and Drawing Index C01-0001 E 16.08.2024 ACOR Consultants Pty Ltd Civil Services Notes Sheet C01-0101 C 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Soil Erosion And Sediment Control Plan C03-0001 C 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Soil Erosion And Sediment Control C03-3101 C 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Driveway Plan and Profiles Sheet 1 C07-0001 C 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Driveway Plan and Profiles Sheet 2 C07-0002 C 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Driveway Plan and Profiles Sheet 3 C07-0003 B 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Stormwater Management Plan Basement Level C08-0001 C 16.08.2024 ACOR Consultants Pty Ltd Civil Services Stormwater Management Plan Ground Floor C08-0002 C 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Stormwater Management Plan Roof Level C08-0003 A 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Stormwater Details Sheet 1 C08-0301 C 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Stormwater Details Sheet 2 C08-0302 C 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Stormwater Details Sheet 3 C08-0303 C 16.08.2024 ACOR Consultants Pty Ltd Civil Services, Stormwater Details Sheet 4 C08-0304 C 16.08.2024 ACOR Consultants Pty Ltd Additional Survey Plan Plan name Drawing Ref Revision Date Prepared by 23792detail - Stormwater And 23792 1 24.09.2024 CMS Surveyors Pty Ltd Easement Investigation Survey Reports Report name Ref Revision Date Prepared by Traffic statement in response to contention 6 and swept path assessment 24126 N/A 28.08.2024 CJP Consulting Engineers Neighbourhood Character Assessment - Y July 2024 BJB Architects Pty Ltd Stormwater statement in response to contention 7 NA241667 N/A 24.07.2024 ACOR Consultants Pty Ltd Arborist Statement in response to Contention 5(g) CD2617-24A N/A 24.07.2024 Arborist Network Amended Arboricultural Impact Assessment 96-98DSHAIA1 N/A 22.08.2024 Hugh the Arborist Existing use rights advice/submissions MDSS/SOSS/3753303 - 28 October 2024 Mills Oakley Lawyers Detailed Site Investigation E2411-1 O 22 October 2024 Geotechnical Consultants Australia Remedial Action Plan E24129-1 0 31 October 2024 Geotechnical Consultants Australia 1. The Court orders that: 1. The Applicant is to pay the Respondent's costs 'thrown away' as a result of the amendment of the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979 in the agreed sum of $25,000, and payable within 28 days. 2. The appeal is upheld. 3. Development consent is granted to DA-2022/204 for the demolition of 2 existing buildings fronting Denison Street and associated structures (being Block 'D', the western portion of Block 'G', the 1 and 2 storey brick building to the south of 100 Denison Street, as well as the landscape and driveway elements) and construction of one four-storey building and one five-storey building comprising of offices and self-storage units with basement and at-grade parking, business identification signage and removal of existing trees at 96 – 98 Denison Street, Hillsdale subject to Annexure A. D Dickson Commissioner of the Court 2024.161241 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: 22 November 2024