Land and Environment Court New South Wales Medium Neutral Citation: ATG Carlton Pty Ltd v Georges River Council [2025] NSWLEC 1107 Hearing dates: Conciliation conference on 4 February 2025 Date of orders: 26 February 2025 Decision date: 26 February 2025 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders: (1) The Applicant's written request pursuant to cl 4.6 of Georges River Local Environmental Plan 2021 prepared by Planning Ingenuity dated 8 January 2024, requesting a variation to cl 4.4 to permit the grant of development consent in contravention of the floor space ratio development standard is upheld. (2) The appeal is upheld. (3) Development application DA 2024/0007 for change of use of Complying Development Certificate No 213104/02 approval from a multi-level mixed-use development with retail hardware premises, wholesale suppliers and a care to a self-storage development and construction of signage and alterations and additions to the approved building form at 165-169 Bellevue Parade, Carlton being Lots 14, 15 and 16 in DP 25093 is determined by the grant of development consent subject to the conditions in Annexure A. Catchwords: DEVELOPMENT APPLICATION – change of use – design excellence – conciliation – agreement – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.12, 4.15, 4.16, 4.17, 8.7, 8.10, 8.11 Land and Environment Court Act 1979, ss 17, 34, 39 Environmental Planning and Assessment Regulation 2021, ss 23, 38, 91 Georges River Council Local Environmental Plan 2021, cll 2.3, 4.3, 4.4, 4.6, 5.10, 5.21, 6.1, 6.2, 6.3, 6.9, 6.10, 6.11 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6, 6.7 State Environmental Planning Policy (Industry and Employment) 2021, Sch 5, s 3.1 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Cases Cited: Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 Waverley Council v C M Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 Category: Principal judgment Parties: ATG Carlton Pty Ltd (Applicant) Georges River Council (Respondent) Representation: Counsel: M Staunton (Applicant) J King (Solicitor) (Respondent) Solicitors: Pikes & Verekers Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2024/254881 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) filed by the Applicant on 11 July 2024 against Georges River Council (Council) for its deemed refusal of DA2024/0007 (DA) relating to Lots 14, 15 and 16 in Deposited Plan 25093 (Site) known as 165-169 Bellevue Parade, Carlton. 2. The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 3. The statutory power or function to be exercised in determining the proceedings is s 4.16 of the EPA Act. 4. The DA seeks consent for a change of use of the as-yet unbuilt building (approved by Complying Development Certificate CDC 213104/02 issued on 11 October 2023) (Approved Building) to a self-storage facility, together with alterations and additions. 5. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 4 February 2025. I presided over the conciliation conference. 6. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding a cl 4.6 variation of the floor space ratio (FSR) control, granting consent to the DA under s 4.16(1) of the EPA Act subject to conditions in Annexure A. 7. 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(1) of the EPA Act to grant consent to the DA subject to conditions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied as set out below. 8. Georges River Local Environmental Plan 2021 (GRLEP 21): 1. The Site is situated within Zone E4 – General Industrial. Storage premises are permitted with consent in the E4 Zone as an innominate land use in the Land Use Table. 2. The objectives of the E4 General Industrial zone are: • To provide a range of industrial, warehouse, logistics and related land uses. • To ensure the efficient and viable use of land for industrial uses. • To minimise any adverse effect of industry on other land uses. • To encourage employment opportunities. • To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers. • To encourage a range of uses that support the repair, reuse, recycling, remanufacturing and reprocessing of waste. 1. Pursuant to cl 2.3(2) of GRLEP 21, the DA is satisfactory having regard to the objectives of the E4 General Industrial zone. 2. The maximum building height permitted for the Site pursuant to cl 4.3 of GRLEP21 is 12m. The Approved Building exceeds the development standard height as it is approved at 18m. The DA does not introduce any new variation on the development standard in cl 4.3 of GRLEP21 and therefore no variation request is required to be filed. (Landcorp Australia Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 174 at [52] – [59]. 3. Pursuant to the Floor Space Ratio Map referred to in cl 4.4 of GRLEP21 the maximum permissible FSR on the Site is 1:1. The DA has a proposed FSR of 3:1. Pursuant to cl 4.6 of GRLEP21, a written request dated 8 January 2024 has been filed, and the Court can be satisfied as to the following matters about which it is required to be satisfied pursuant to cl 4.6(3) of GRLEP21: 1. The written request (Class 1 Application tab 3, Annexure B) to vary the maximum FSR is supported as the subject development application does not change the built form or building mass and seeks only to add new floor area within the approved building envelope. The proposed use as self-storage is agreed to be a less intense use than the approved multi-level development with retail hardware premises, wholesale suppliers and a café. 2. That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, as the objectives of the standard are achieved, notwithstanding the non-compliance. 3. That there is sufficient environmental planning ground to justify the contravention of the development standard. 1. The Site does not comprise, or contain, a local heritage item or aboriginal object, and is not located within a heritage conservation area, and therefore cl 5.10 of GRLEP21 does not apply. 2. Similarly, the Site is not flood affected and cl 5.21 of GRLEP does not apply. 3. Under cl 6.1 of GRLEP21, the Site is classified as containing Class 5 acid sulfate soils and is within 500m of Class 2 acid sulfate soils. The Targeted Site Investigation prepared by Ramboll dated 21 December 2023 demonstrates that the bulk of the excavation approved under the Approved Building was not considered to lower the water table, and the additional 800mm excavation proposed will not have any adverse impacts. 4. Similarly, the Court would be satisfied in relation to the earthworks under cl 6.2(3) of GRLEP21 having regard to the Targeted Site Investigation by Ramboll dated 21 December 2023, and Condition 21 in Annexure A which provides for a geotechnical report which addresses cl 6.2(3) criteria, prior to the issue of the construction certificate. 5. The stormwater plans prepared by GCA Engineering Solution meet the requirements of cl 6.2(3) of GRLEP21 together with Condition 14 in Annexure A which requires detailed plans of the drainage system before a construction certificate can be issued. 6. In relation to essential services under cl 6.9 of GRLEP21, the Site is currently fully serviced, and Condition 22 of Annexure A requires that arrangements be made with utility authorities. 7. Clause 6.10(5) of GRLEP21 requires that the DA exhibits design excellence. The requirement for design excellence has been addressed through further amended architectural plans dated 25 November 2024 by: 1. Removal of the northern driveway; 2. Illumination for the non-street frontage signs; 3. Provision of additional windows; 4. Reduced signage 1. Clause 6.11(3) of GRLEP21 satisfies energy demand reduction and indoor environmental quality through amended architectural plans which provide for photovoltaic panels (10 September 2024 Rev D); and additional windows. 1. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (BC SEPP): the site is located within the Georges River Catchment and is subject to the provision in Ch 6 of BC SEPP. The general and specific principles in Ch 6 have been taken into account by the Council. The parties agree that the appropriate stormwater and drainage mechanisms forming part of the DA mitigate any impacts on Georges River, and the DA is compliant with the provisions of ss 6.6 and 6.7 of BC SEPP. 2. State Environmental Planning Policy (Industry and Employment) 2021: the number of signs has been reduced from seven to three, and the signage now meets the objectives in s 3.1(1)(a) and the assessment criteria in Sch 5. 3. State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience & Hazards SEPP): a Targeted Site Investigation Report by Ramboll dated 21 December 2023 concluded that the Site will be suitable for the proposed land use with risks to land users being low and acceptable. Therefore, the requirements of s 4.6(1) of the Resilience & Hazards SEPP have been met. 4. State Environmental Planning Policy (Transport and Infrastructure) 2021 applies to the DA as Ausgrid's Overhead Powerlines are in the vicinity of the DA. The DA was referred to Ausgrid which did not object to the DA and provided the information which is included in Condition 4 of Annexure A. 5. In determining the DA, consideration has been given to s 4.15(1)(d) and the public interest under s 4.15(1)(e) of the EPA Act. The DA was notified between 30 January 2024 to 22 February 2024. No submissions were received by Council arising from the notification. Further, the parties have had regard to the public interest as required by s 4.15(1)(e) of the EPA Act, and s 39(4) of the LEC Act. 6. The parties agree the conditions of consent in Annexure A can be lawfully imposed pursuant to ss 4.16(1) and 4.17(1) of the EPA Act, and relevant legal principles. 7. The DA was lodged with Council on 22 January 2024 by the existing owners of the Site pursuant to s 4.12 of the EPA Act, and s 23(1)(a) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 8. I note that the DA is a deemed refusal of consent pursuant to s 8.11 of the EPA Act and s 91(4) of the EPA Regulation, and that the Applicant filed its appeal within the time provisions of s 8.10(1) of the EPA Act. 9. Justice Talbot held in Waverley Council v C M Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 at par [28] "… There is no statutory constraint upon the category of development, as defined, that can be the subject of a development application. In the Court's view, the distinction between an application to alter a building and an application to alter a right arising from an earlier development consent is not sustainable in the present context. Although it may not be elegant, it is nevertheless, in the Court's opinion, correct to regard the development application as an application for consent to carry out specific building works in order to achieve a particular use…." It is, therefore, open to me to accept the parties' proposition that the DA is capable of being granted for a change of use, together with alterations and additions, to the Approved Building. 10. I agree that the written request to vary the FSR development standard in cl 4.3 of GRLEP21 satisfies the objectives of cl 4.6 (1) and the requirements of subcll (3) and (4) of GRLEP21. 11. For the reasons set out above, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. 12. 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' decision. 13. I am not required, and I have not, considered the merit issues of the DA. 14. The Court notes that Georges River Council as the relevant consent authority for the purposes of s 38(1) of the Environmental Planning and Assessment Regulation 2021 approves the amendments to Development application DA 2024/0007 to rely on the following documentation: 1. Architectural drawings prepared by MCHP Architects as follows: Description Reference No. Date Rev Prepared by Lower Ground Floor Demolition Plan 21-056 DA001 10.09.2024 D MCHP Architects Ground Floor Demolition Plan 21-056 DA002 10.09.2024 D MCHP Architects Proposed Site/Lower Ground Plan 21-056 DA006 10.09.2024 D MCHP Architects Proposed Site/Ground Plan 21-056 DA007 15.01.2025 F MCHP Architects Proposed Site/Roof Plan 21-056 DA008 10.09.2024 D MCHP Architects Site Analysis Plan 21-056 DA009 10.09.2024 D MCHP Architects Proposed Lower Ground Floor Plan 21-056 DA010 10.09.2024 F MCHP Architects Proposed Ground Floor Plan 21-056 DA011 15.01.2025 I MCHP Architects Proposed First Floor Plan 21-056 DA012 25.11.2024 F MCHP Architects Proposed Second Floor Plan 21-056 DA013 25.11.2024 F MCHP Architects Proposed Third Floor Plan 21-056 DA014 25.11.2024 G MCHP Architects East and West Elevation 21-056 DA015 25.11.2024 E MCHP Architects North and South Elevation 21-056 DA016 25.11.2024 E MCHP Architects Sections 21-056 DA017 25.11.2024 E MCHP Architects Gross Floor Area 21-056 DA018 25.11.2024 F MCHP Architects 1. Traffic letter on car parking design prepared by TTPP dated 24 January 2025; 2. Quantity Surveyor's report prepared by Denary dated 28 January 2025. 1. The Court orders: 1. The Applicant's written request pursuant to cl 4.6 of Georges River Local Environmental Plan 2021 prepared by Planning Ingenuity dated 8 January 2024, requesting a variation to cl 4.4 to permit the grant of development consent in contravention of the floor space ratio development standard is upheld. 2. The appeal is upheld. 3. Development application DA 2024/0007 for change of use of Complying Development Certificate No 213104/02 approval from a multi-level mixed-use development with retail hardware premises, wholesale suppliers and a cafe to a self-storage development and construction of signage and alterations and additions to the approved building form at 165-169 Bellevue Parade, Carlton being Lots 14, 15 and 16 in DP 25093 is determined by the grant of development consent subject to the conditions in Annexure A. M Peatman 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: 26 February 2025