CSR Building Products Ltd v Fairfield City Council [2015] NSWLEC 1284

Land and Environment Court New South Wales

Medium Neutral Citation: CSR Building Products Ltd v Fairfield City Council [2015] NSWLEC 1284 Hearing dates: 15-17 July 2015 Decision date: 30 July 2015 Jurisdiction: Class 1 Before: Morris C Decision: See para 77 and 78 Catchwords: DEVELOPMENT APPLICATION: subdivision, impacts on adjoining land Legislation Cited: State Environmental Planning Policy (Western Sydney Employment Area) 2009; Fairfield Local Environmental Plan 2013; Rural Fires Act 1997; State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Category: Principal judgment Parties: CSR Building Products Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: Ms S Duggan SC (Applicant)

Solicitors: Ms J Wauchope, Gadens Mr A Seton, Marsdens Law Group File Number(s): 10634 of 2014

Judgment 1. CSR Building Products Pty Ltd lodged Development Application 893.1/2013 with Fairfield City Council on 19 December 2013 seeking consent for an industrial subdivision in three stages to create a total of 14 lots for employment purposes, a conservation lot, new public roads and associated drainage. The council has not determined the application and CSR is appealing its deemed refusal. 2. The main issue in the case is the impact of the proposed subdivision on adjoining land.

The planning controls 1. That part of the site that is proposed to be subdivided for employment purposes is zoned IN1 General Industrial under State Environmental Planning Policy (Western Sydney Employment Area) 2009 SEPP(WSEA). That part of the site that contains a conservation area is zoned E2 Environmental Conservation under that plan. 2. SEPP(WSEA) prevails over any other environmental planning instrument in the event of any inconsistency (clause 8(2)). 3. Clause 11(2) requires the consent authority to have regard to the objectives of a zone when determining a development application. The objectives of each zone are: Zone IN1 General Industrial Objectives of zone • To facilitate a wide range of employment-generating development including industrial, manufacturing, warehousing, storage and research uses and ancillary office space. • To encourage employment opportunities along motorway corridors, including the M7 and M4. • To minimise any adverse effect of industry on other land uses. • To facilitate road network links to the M7 and M4 Motorways. • To encourage a high standard of development that does not prejudice the sustainability of other enterprises or the environment. • To provide for small-scale local services such as commercial, retail and community facilities (including child care facilities) that service or support the needs of employment-generating uses in the zone. Zone E2 Environmental Conservation Objectives of zone • To protect, manage and restore areas of high ecological, scientific, cultural or aesthetic values. • To prevent development that could destroy, damage or otherwise have an adverse effect on those values. 1. In accordance with the provisions of clause 14 of SEPP(WSEA) consent is required for subdivision. The provisions of clause 18(1) prohibits the granting of consent to development unless a development control plan has been prepared for the land to which the application applies. A draft development controls plan has been prepared and exhibited but not made. The parties agree that a plan has been prepared so the clause does not prevent consent being granted. 2. Clause 21 is in the following form: 21 Height of buildings The consent authority must not grant consent to development on land to which this Policy applies unless it is satisfied that: (a) building heights will not adversely impact on the amenity of adjacent residential areas, and (b) site topography has been taken into consideration. 1. Clause 23 applies to development adjoining residential land and is in the following form: (1) This clause applies to any land to which this Policy applies that is within 250 metres of land zoned primarily for residential purposes. (2) The consent authority must not grant consent to development on land to which this clause applies unless it is satisfied that: (a) wherever appropriate, proposed buildings are compatible with the height, scale, siting and character of existing residential buildings in the vicinity, and (b) goods, plant, equipment and other material resulting from the development are to be stored within a building or will be suitably screened from view from residential buildings and associated land, and (c) the elevation of any building facing, or significantly exposed to view from, land on which a dwelling house is situated has been designed to present an attractive appearance, and (d) noise generation from fixed sources or motor vehicles associated with the development will be effectively insulated or otherwise minimised, and (e) the development will not otherwise cause nuisance to residents, by way of hours of operation, traffic movement, parking, headlight glare, security lighting or the like, and (f) the development will provide adequate off-street parking, relative to the demand for parking likely to be generated, and (g) the site of the proposed development will be suitably landscaped, particularly between any building and the street alignment. 1. The parties agree that the site does not adjoin or is not within 250m of land that is zoned primarily for residential purposes however the town planning experts agree that the clause provides guidance in assessing the impacts of the development from land to the south in Greenway Place, Horsley Park. This issue is the main contention in the case and is discussed in detail below. 2. That land is zoned RU4 Primary Production Small Lots under Fairfield Local Environmental Plan 2013 (FLEP). The objectives of that zone are: • To enable sustainable primary industry and other compatible land uses. • To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To ensure that development is sympathetic to the rural environment and minimises risks from natural and man-made hazards. 1. Clause 25 requires satisfaction as to adequate arrangements having been made to make available public utility infrastructure. There is no contention that the necessary services will not be available. 2. Clause 26 requires the referral of a development application that applies to land that is situated on or in the vicinity of a proposed transport infrastructure route to the Director-General of the Department of Planning and Environment. The site is adjacent to such a route and the council has referred the application as required. The concerns of the department went to the location of the proposed western access point and its proximity to an approved intersection to the west on adjoining land. 3. Roads & Maritime Services has, in correspondence dated 29 January 2015, Tab 14 Exhibit B, provided general support to the staged access principles identified within the application. It requires an internal access road at stage 3 and this was agreed by the applicant during the hearing. Consent conditions reflecting that requirement are required. 4. Clause 28 of SEPP(WSEA) applies to the Industrial Release Area. The site is within that area. The object of the clause is to require assistance to authorities of the State towards the provision of regional transport infrastructure and services (including the Erskine Park Link Road Network) to satisfy needs that arise from development on land to which the clause applies. Pursuant to the provisions of subclause (3), consent must not be granted unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of that infrastructure and services. However, subclause (3) only applies if the land that is the subject of the application for development consent was not being used for industrial purposed immediately before the application was made. 5. It is the applicant's position that the land was being used for industrial purposes on the relevant date and continues to be so used. The council says that only part of the land was being used for industrial purposes with the remaining sections used for conservation and as a landfill. 6. The applicant advises that should the Court find consent could be granted on merits that it would await the finalisation of a Voluntary Planning Agreement that has been offered to the Department. Once that has been finalised, the necessary certificate will be issued by the Director-General. That would allow final Orders to be made. 7. Clause 31 of SEPP(WSEA) applies to design principles and requires a consent authority to take into consideration whether or not: (a) the development is of a high quality design, and (b) a variety of materials and external finishes for the external facades are incorporated, and (c) high quality landscaping is provided, and (d) the scale and character of the development is compatible with other employment-generating development in the precinct concerned. 1. The application is Integrated Development and was referred to NSW Rural Fire Services (RFS). A bush fire safety authority has been issued as required under section 100B of the Rural Fires Act 1997 subject to a number of conditions. Those conditions have not been incorporated into the draft consent conditions and would need to be should consent be granted.