Land and Environment Court New South Wales Medium Neutral Citation: Aussie Hoist No.2 Pty Ltd v Camden Council [2019] NSWLEC 1493 Hearing dates: 28 June 2019; 4 July 2019; 30 September 2019 Date of orders: 30 October 2019 Decision date: 16 October 2019 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders that: (1) The appeal is upheld; (2) Development application DA 2018/1502/1 for development of land and construction of an industrial shed at 244 Ingleburn Road, Leppington, also identified as Lot 16A in DP 8979, is determined by the grant of consent, subject to the conditions provided at Annexure 'A' to this judgment; (3) The exhibits are returned, with the exception of Exhibits A and 2. Catchwords: DEVELOPMENT APPLICATION – construction of an industrial shed – whether the proposed development generally accords with the provisions of an indicative layout plan (ILP) in Camden Growth Centres DCP – suitability of the subject site for the proposed development – mitigation of potential contamination risks on the subject site – contributions payable under the provisions of s 7.11 of the EP&A Act – application of Camden Growth Centres Contributions Plan Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy (Exempt and Complying Codes) 2008 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy (Sydney Region Growth Centres) Cases Cited: Attorney General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 Blacktown City Council v Satmell Holdings Pty Ltd [2019] NSWLEC 93 The Lawson Clinic Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 36 Welsh Property Consulting Pty Ltd v The Hills Shire Council [2015] NSWLEC 1288 Texts Cited: Camden Growth Centres Contributions Plan Main Document Camden Growth Centres Contributions Plan Technical Document Camden Growth Precincts Development Control Plan 2012 NSW Department of Planning and Environment, Development Contributions Practice Notes NSW Environment Protection Authority, Reclaimed Asphalt Pavement Material Order (2014) Category: Principal judgment Parties: Aussie Hoist No.2 Pty Ltd (Applicant) Camden Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) M Astill (Respondent) Solicitors: Hartley Solicitors (Applicant) Swaab Attorneys (Respondent) File Number(s): 2019/153470 Publication restriction: No Judgment 1. COMMISSIONER: Aussie Hoist No.2 Pty Ltd (the Applicant) has appealed the deemed refusal by Camden Council (the Respondent) of its development application DA 2018/1502/1 seeking consent for development of land and construction of an industrial shed (the Proposed Development) at 244 Ingleburn Road, Leppington, also identified as Lot 16A in DP 8979 (the Subject Site). 2. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act). 3. The Subject Site is located towards the north-western end of Ingleburn Road, and is within the South West Growth Centre. It contains an existing dwelling, fill, retaining walls and three concrete slabs. 4. A bus depot, including parking and washing facilities, is located on the allotment to the south-east of the Subject Site at 234 Ingleburn Road. An allotment located adjacent and to the north-west of the Subject Site is currently vacant of any construction. 5. The Applicant was granted leave by the Court to rely on amended plans on 20 June 2019, and its Proposed Development, as it comes forward in this appeal, includes: 1. the erection and use of an industrial building of approximately 1350m2, for the purposes of storage and maintenance of hoists and scaffolding equipment; 2. the erection and use of a demountable office building (described as a temporary office); 3. the use of the whole site for industrial purposes, except for an area of the Subject Site covered by asphalt paving. 1. Certain other development, for which consent was originally sought under DA 2018/1502/1, is now being undertaken on the Subject Site pursuant to Complying Development Certificate NW19/4365, issued by Newland Wood Building Certification on 18 April 2019 (the CDC), initially identified as being issued pursuant to Part 5 of State Environmental Planning Policy (Exempt and Complying Codes) 2008 (SEPP Codes) concerning the Commercial and Industrial Alterations Code. 2. The Scope of Building Works Covered by the CDC was described in that document as "Early Works – Site works including slabs, in-ground services, driveways etc (excludes buildings)" and identified as Exclusions "Buildings". 3. The CDC was modified, and a modified CDC identified as MOD/NW19/4365 (the modified CDC), was issued on 21 May 2019, and which was noted in the modified CDC documentation as being issued pursuant to "Part 5a" of SEPP Codes. While there is no "Part 5a" that forms part of SEPP Codes, there is a Part 5A which provides the Commercial and Industrial (New Buildings and Additions) Code. 4. The Scope of Building Works Covered by the modified CDC was described in that document as "Stage 1 Early Works – Site works which include slabs, in-slab services and driveway", and "Exclusions" were identified as "Buildings, retaining walls and all other works and buildings not listed in the scope above". 5. The CDC and modified CDC provided consent to certain civil works that the Applicant identified in submissions as including: 1. an on-site detention system; 2. evaporation and absorption beds; 3. a culvert drain along the north-western boundary of the Subject Site; 4. fencing works; 5. concrete slab installation; and 6. bitumen paving. 1. The Applicant also submitted that the works approved under the modified CDC were shown in a plan accompanying the CDC. That plan included a proposed shed and office, but as identified above at [8], the modified CDC had excluded approval of buildings and retaining walls, which were also not included in the certificate's specified scope of works. 2. However, the Applicant did submit that, notwithstanding the exclusions identified in the modified CDC, the certificate had approved certain storage racks and outdoor storage in the hard stand bitumen area that were also identified in the plan accompanying the modified CDC. 3. The Subject Site is zoned IN2 Light Industry under the provisions of Part 2 of Appendix 9 (Camden Growth Centres Precinct Plan), within State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP). The Proposed Development is permissible, with consent, under the Subject Site's IN2 zoning. 4. The Respondent submitted that the zoning of the Subject Site under the Growth Centres SEPP had been confirmed within the context of a coordinated land use release following a planning process undertaken across a period of more than ten years. 5. The Respondent also noted that the rezoning and land release program under the Growth Centres SEPP was subject to development objectives and standards, as well as development controls, set out in: 1. the Camden Growth Centres Precinct Plan; 2. an accompanying development control plan; and 3. a contributions plan. 1. The Respondent further submitted that, while the Court was not being asked to approve works for which consent had been granted under the CDC, those works were integral to the Proposed Development and the Court needed to be satisfied that the Subject Site, as configured as a consequence of the CDC approval, would be suitable for the Proposed Development. 2. At the commencement of the hearing, a view was undertaken of the Subject Site. No objectors sought to make submissions to the Court in relation to this appeal. Statutory Considerations Environmental Planning and Assessment Act 1979 1. The objects of the EP&A Act are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment. 1. Section 1.4 of the EP&A Act provides definitions for use in applying the provisions of the Act, and includes as definition for a building as follows: building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure within the meaning of the Local Government Act 1993 1. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. Section 4.15(3A) of the EP&A Act further provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. 1. Section 4.26(1) of the EP&A Act provides for the carrying out of development defined as 'complying development', as follows: (1) A person may carry out complying development on land if: (a) the person has been issued with a complying development certificate for the development, and (b) the development is carried out in accordance with: (i) the complying development certificate, and (ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued. 1. Section 7.11 of the EP&A Act, concerning contributions plans, provides as follows: (1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring: (a) the dedication of land free of cost, or (b) the payment of a monetary contribution, or both. (2) A condition referred to in subsection (1) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned. (3) If: (a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and (b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services, the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations). (4) A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned. (5) The consent authority may accept: (a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or (b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3). (6) If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than: (a) a benefit provided as a condition of the grant of development consent under this Act, or (b) a benefit excluded from consideration under section 7.4 (6). (7) If: (a) a condition imposed under subsection (1) or (3) in relation to development has been complied with, and (b) a public authority would, but for this subsection, be entitled under any other Act to require, in relation to or in connection with that development, a dedication of land or payment of money in respect of the provision of public amenities or public services or both, then, despite that other Act, compliance with the condition referred to in paragraph (a) is taken to have satisfied the requirement referred to in paragraph (b) to the extent of the value (determined, if the regulations so provide, in accordance with the regulations) of the land dedicated or the amount of money paid in compliance with the condition. 1. Section 7.13(3) of the EP&A Act provides that: (3) A condition under section 7.11 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction. State Environmental Planning Policy No 55—Remediation of Land 1. State Environmental Planning Policy No 55—Remediation of Land (SEPP55) provides a state-wide planning approach to the remediation of contaminated land. The policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment by: 1. specifying when consent is required, and when it is not required, for a remediation work, and 2. specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and 3. requiring that a remediation work meet certain standards and notification requirements. 1. Clause 7 of SEPP55 requires that contamination and remediation are to be considered in determining a development application, and provides as follows: (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land 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, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. 3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is: (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land: (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge). State Environmental Planning Policy (Exempt and Complying Codes) 2008 1. SEPP Codes aims to provide streamlined assessment processes for development that complies with specified development standards by: (a) providing exempt and complying development codes that have State-wide application, and (b) identifying, in the exempt development codes, types of development that are of minimal environmental impact that may be carried out without the need for development consent, and (c) identifying, in the complying development codes, types of complying development that may be carried out in accordance with a complying development certificate as defined in the Act, and (d) enabling the progressive extension of the types of development in this Policy, and (e) providing transitional arrangements for the introduction of the State-wide codes, including the amendment of other environmental planning instruments. State Environmental Planning Policy (Sydney Region Growth Centres) 2006 1. The Growth Centres SEPP has the following aims: (a) to co-ordinate the release of land for residential, employment and other urban development in the North West Growth Centre, the South West Growth Centre and the Wilton Growth Area, (b) to enable the Minister from time to time to designate land in growth centres as ready for release for development, (c) to provide for comprehensive planning for growth centres, (d) to enable the establishment of vibrant, sustainable and liveable neighbourhoods that provide for community well-being and high quality local amenity, (e) to provide controls for the sustainability of land in growth centres that has conservation value, (f) to provide for the orderly and economic provision of infrastructure in and to growth centres, (g) to provide development controls in order to protect the health of the waterways in growth centres, (h) to protect and enhance land with natural and cultural heritage value, (i) to provide land use and development controls that will contribute to the conservation of biodiversity. 1. Appendix 9 of the Growth Centres SEPP at includes the Camden Growth Centres Precinct Plan (the Precinct Plan), which has the following aims: (a) to make development controls that will ensure the creation of quality environments and good design outcomes, (b) to protect and enhance environmentally sensitive natural areas and cultural heritage, (c) to provide for recreational opportunities, (d) to provide for multifunctional and innovative development that encourages employment and economic growth, (e) to promote housing choice and affordability, (f) to provide for sustainable development, (g) to promote pedestrian and vehicle connectivity. 1. The following sections of the Precinct Plan are of particular relevance in this appeal: 1. Clause 2.1, which provides for the zoning of land, and under the provisions of which the Subject Site is zoned IN2; 2. Clause 4.3, which provides development standards concerning the height of buildings, and which establishes a 13m height of buildings standard for the Subject Site; 3. Clause 4.4, which provides development standards concerning floor space ratios (FSR), and which establishes a FSR standard for the Subject Site of 1:1. Camden Growth Precincts Development Control Plan 2012 1. Development on the Subject Site is also subject to the provisions of the Camden Growth Precincts Development Control Plan 2012 (the DCP), the objectives of which are to: "a. communicate the planning, design and environmental objectives and controls against which the Consent Authority will assess Development Applications (DAs); b. consolidate and simplify the planning controls for the Precincts in the South West Growth Centre; c. provide guidance on the orderly, efficient and environmentally sensitive development of the Precincts as envisaged by the South West Growth Centre Structure Plan and State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP); d. promote high quality urban design outcomes within the context of environmental, social and economic sustainability." 1. The following parts of the DCP are of particular relevance in this appeal: 1. Part 2, which establishes the precinct planning outcomes for development within the Camden Growth Centres Precinct (the precinct), and in particular: 1. Clause 2.2, which concerns the Indicative Layout Plan (ILP) for the precinct, and which has the objective of ensuring that development in the Precinct occurs in a coordinated manner consistent with the Precinct's ILP. It includes the following controls: "1. All development applications are to be generally in accordance with the Indicative Layout Plan. 2. When assessing development applications, Council will consider the extent to which the proposed development is consistent with the Indicative Layout Plan. 3. Any proposed variations to the general arrangement of the Indicative Layout Plan must be demonstrated by the applicant, to Council's satisfaction, to be consistent with the Precinct Planning vision in the relevant Precinct Schedule." 1. Clause 2.5, which concerns crime prevention through environmental design, and which has the following objectives and controls: "Objectives a. To ensure that the siting and design of buildings and spaces, through casual surveillance, decreases opportunities for crime. b. To ensure that development encourages people to use streets, parks and other public places without fear of personal risk. c. To ensure the design of publicly accessible areas (eg parks, footpaths, etc) encourages a sense of community ownership of open and public spaces. Controls 1. Buildings should be designed to overlook streets, lanes and other public or communal areas to provide casual surveillance. In the case of corner lots habitable windows are also be oriented to overlook both streets. 2. The design of all development is to enhance public surveillance of public streets and open space/conservation areas. 3. For residential development, the use of roller shutters other than garages is not permitted on doors and windows facing the street. Any security railings must be designed to complement the architecture of the building. 4. Developments are to avoid creating areas for concealment and blank walls facing the street. 5. Pedestrian and communal areas are to have sufficient lighting to ensure a high level of safety. These areas must be designed to minimise opportunities for concealment. 6. All developments are to incorporate the principles of Crime Prevention Through Environmental Design (CPTED). Development Applications for subdivision, public open space, community facilities, commercial developments, mixed-use developments, and schools may require a formal crime risk (CPTED) assessment as part of the EP&A Act 1979, development assessment and Camden Council's Designing Safer Communities – Safer by Design Guidelines (October 2002)." 1. Part 3, which sets out the road design development controls for development within the Precinct, and in particular: 1. Clause 3.3.6, concerning access to arterial roads, sub-arterial roads and transit boulevards, which has the objective of restricting direct property access to higher order roads to provide for the safe and efficient movement of vehicles on these roads, and the following controls: "1. Vehicular access to arterial roads, sub-arterial roads and transit boulevards shown on the Precinct Road Hierarchy figure, in the relevant Precinct's Schedule, may only be via another public road. 2. To enable the development of land, such as in situations where access across adjoining properties is required but not yet able to be provided, Council may allow temporary access to arterial roads, subarterial roads or transit boulevards where: • subdivisional roads generally conform with the road pattern shown on the Indicative Layout Plan and the development is capable of being adapted to ensure alternative access when adjacent development occurs; • The arterial road, sub-arterial road or transit boulevard is not yet upgraded to its ultimate configuration and/or traffic volumes on the road network are not sufficient to justify restricting direct access; • Council is satisfied that the carrying out of the development will not compromise traffic safety. • Applicants can demonstrate how the development will enable transition to permanent access arrangements that comply with parking, loading and access and adopted road network requirements of this DCP. 3. Where Council grants such consent, the temporary access must be constructed to Council's standards and conditions will be imposed that access to the designated road by way of the temporary access shall cease when alternative access becomes available. Note: Approval from the RMS may also be required for any temporary access to a classified road." 1. Part 6, which sets out the employment land zone development controls for development within the Precinct, and in particular: 1. Clause 6.3.1, concerning streetscape and allotment frontages; 2. Clause 6.4.2, concerning building design and siting; 3. Clause 6.4.3, concerning external building materials and finishes; and 4. Clause 6.4.5, concerning ancillary buildings, storage and service areas. 1. The Subject Site is located within the Leppington North Precinct of the Camden Growth Centre. Schedule 1 of the DCP, concerns the Austral and Leppington North Precincts, and provides a planning precinct vision for these precincts, as follows: "The vision for the Austral and Leppington North Precincts is that a range of housing types will develop to meet the needs of a diverse community, supported by local services, infrastructure, facilities and employment, in an environmentally sustainable manner. The Austral local centre will be the main focus of activity and daily life for the Precinct, providing for community interaction and delivering services and facilities to meet the needs of all residents. Neighbourhood centres and major community facilities such as schools and sporting fields will provide shopping, jobs, recreation and social opportunities at a more local level for residents. Leppington Major Centre will create opportunities for residents of the Precincts to take advantage of excellent access to public transport, regional level shopping, entertainment and community facilities in a high quality urban environment. The Precincts will be an integral part of the Camden and Liverpool local government areas and the South West Growth Centre. They will be linked to surrounding suburbs and to major regional destinations such as the Western Sydney Parklands and the regional centres of Liverpool and Campbelltown." Environmental Planning and Assessment Regulation 2000 1. The Environmental Planning and Assessment Regulation 2000 (EP&A Regulation) is the EP&A Act's primary subordinate legislation. The EP&A Regulation contains key operational provisions for the NSW planning system, including those relating to, inter alia, development contributions, including the preparation of contributions plans. 2. Clause 32 of the EP&A Regulation provides as follows: (1) A council may amend a contributions plan by a subsequent contributions plan. (2) A council may repeal a contributions plan — (a) by a subsequent contributions plan, or (b) by public notice in a local newspaper of its decision to repeal the plan. (3) A council may make the following kinds of amendments to a contributions plan without the need to prepare a new contributions plan — (a) minor typographical corrections, (b) changes to the rates of section 7.11 monetary contributions set out in the plan to reflect quarterly or annual variations to — (i) readily accessible index figures adopted by the plan (such as a Consumer Price Index), or (ii) index figures prepared by or on behalf of the council from time to time that are specifically adopted by the plan, (c) the omission of details concerning works that have been completed. Contentions 1. Prior to the hearing, the Respondent had identified the contentions between the Parties as follows: 1. that the Applicant had provided inadequate information for the purposes of an assessment and determination of the application under s 4.15 of the EP&A Act, and specifically that the Applicant's Proposed Development provided inadequate information in relation to the quantum of fill placed on the Subject Site and in relation to stormwater management; 2. that the Proposed Development, if approved, would inhibit development of surrounding land in a coordinated manner, in particular in relation to whether it is consistent with provisions of the ILP applicable to the Subject Site and its surrounds; 3. that approval of the Proposed Development would inhibit the achievement of an attractive streetscape; 4. that fill brought onto the Subject Site by the Applicant had not been certified in accordance with the provisions of SEPP55; 5. that fill material had been brought onto the Subject Site that was contaminated, but that insufficient information had been provided by the Applicant to demonstrate that the Subject Site was suitable for its intended purpose; 6. that the Applicant's Salinity Management Plan did not take account of the introduction of fill material onto the Subject Site; and 7. that the Applicant's stormwater detention basin calculations were not acceptable as the Applicant had not taken account of the existence of split catchments on the Subject Site. 1. Prior to the hearing, the Applicant had provided further information to the Respondent in response to these contentions, and as a result, at the hearing the focus of these contentions narrowed to the following matters: 1. whether the Applicant's Proposed Development accorded with the ILP, particularly in relation to access, including road layout; 2. whether the Applicant's proposals for drainage and stormwater management were adequate, including in relation to the ILP; 3. whether contamination levels on the Subject Site, arising from the importation of fill onto the site, consistent with the land being suitable for the Applicant's Proposed Development; 1. In addition, and in response to the Respondent's preparation of its draft proposed conditions of consent, the following further matter required consideration by the Court: 1. whether the Respondent's proposed condition (22) concerning the financial contribution required to be paid by the Applicant under Council's contributions plan, and prepared under the provisions of s 7.11 of the EP&A Act, should be imposed if consent were granted to the Proposed Development. 1. Consequently, the principal questions requiring resolution in this appeal are as follows: 1. does the Proposed Development adequately accord with the ILP contained within the DCP, particularly in relation to site access, including road layout; 2. are the Applicant's proposals for drainage and stormwater management within its Proposed Development adequate, including in relation to the requirements of the ILP; 3. are contamination levels on the Subject Site such that the land is suitable for the Proposed Development; 4. should the Respondent's proposed condition (22) concerning the financial contribution required to be paid by the Applicant under Council's contributions plan, and prepared under the provisions of s 7.11 of the EP&A Act, be imposed if consent were granted to the Proposed Development? 1. During the hearing, the Court was assisted in its consideration of these questions by evidence from the following expert witnesses: 1. Expert planners, Mr Antony Betros (for the Applicant) and Mr David Rowley (for the Respondent); 2. Stormwater engineering experts, Mr Andrew Norris (for the Applicant) and Mr Gregory Cattarin (for the Respondent); 3. Contamination experts, Mr Andrew Norris (for the Applicant) and Ms Kristie White (for the Respondent); 4. Planning contributions experts, Mr Peter Price (for the Applicant) and Mr Albert Jean (for the Respondent). Does the Proposed Development adequately accord with the ILP contained within the DCP, particularly in relation to site access, including road layout? 1. As noted above at [32(1)(a)], the controls within clause 2.2 of the DCP provide that: "1. All development applications are to be generally in accordance with the Indicative Layout Plan. 2. When assessing development applications, Council will consider the extent to which the proposed development is consistent with the Indicative Layout Plan. 3. Any proposed variations to the general arrangement of the Indicative Layout Plan must be demonstrated by the applicant, to Council's satisfaction, to be consistent with the Precinct Planning vision in the relevant Precinct Schedule." 1. The ILP includes an indicative road layout for the Subject Site that provides for: 1. the widening of Ingleburn Road, from its intersection with Eastwood Road and extending south-east as it passes the Subject Site and adjoining allotments, and further beyond its intersection with Dickson Road; 2. an access road off Ingleburn Road located on either side of the boundary shared by the Subject Site, and the allotment to its south-east, currently occupied by a bus depot; 3. a branch road, ending in a cul-de-sac, extending in a north-west direction off the access road from Ingleburn Road, and then through the Subject Site, terminating at its boundary with the allotment to its north-west. 1. The Applicant's Proposed Development: 1. includes a hard paved access road along the Subject Site's boundary with the bus depot to the south-east. This road is proposed to be at the current level of the Subject Site, which is approximately one metre below the level of the adjacent allotment and the paved area used by the bus depot; 2. does not include construction of the branch road with cul-de-sac end point off the access road as provided for in the ILP. 1. The Respondent submitted that the Applicant's Proposed Development was inconsistent, and so not in accordance, with the ILP because: 1. the current level of the Subject Site, established as a result of earthworks for which consent had been granted under the modified CDC, and at which level the Applicant's proposed road on its south-east boundary would be constructed, differs from that which would be required for the construction of the roads identified in the ILP; 2. the drainage channel constructed along the north-western boundary of the Subject Site, and for which consent was granted under the modified CDC, crosses the location of the proposed cul-de-sac end of the branch road. The Respondent further submitted that, as a consequence of this fact, construction of the branch road identified in the ILP would result in the severing of the drainage channel along the north-western boundary of the Subject Site, rendering the drainage channel inoperative. Further, the Respondent said that, as the branch road would in due course be dedicated to Council, it would deprive the Applicant of the legal right for a reconfigured drainage channel to traverse that road; 3. if the access road from Ingleburn Road, and the south-east to north-west running branch road with cul-de-sac, both envisaged by the ILP, were not constructed consistent with the ILP, it would have the effect that the allotment to the north-west of the Subject Site would be rendered "land locked". 1. In response to the submissions of the Respondent, the Applicant said that: 1. while the controls in the DCP, identified above at [32(1)(a)] and [41], required that development applications should be 'generally in accordance with' the ILP, the controls provided that variations to the ILP road layout were possible. The Applicant added that such variations were envisaged under the DCP in circumstances where the Applicant was able to demonstrate, to Council's satisfaction, or the satisfaction of the Court on appeal, that its proposals were consistent with the Precinct Planning vision in the relevant Precinct Schedule (see above at [33]; 2. its Proposed Development was not inconsistent with the ILP as the location of the Applicant's proposed driveway from the Subject Site's access point off Ingleburn Road was in the same location as the access road as proposed in the ILP, albeit at a lower level than the bus depot adjacent to the south-east; 3. none of the locations proposed for buildings and other structures within its Proposed Development were coincident with the locations of either the access road off Ingleburn Road, or the cul-de-sac ending branch road, proposed under the ILP; 4. there was no provision within the DCP that required the Applicant to construct any of the infrastructure works envisaged under the ILP as part of its Proposed Development; 5. the expert planners, Mr Betros and Mr Rowley, had agreed that the ILP was located within the investigation boundary for the Leppington Town Centre land use review being undertaken by the NSW Department of Planning and Environment. The Applicant submitted that any insistence on construction of infrastructure consistent with the provisions of the ILP would be premature until completion of that review. 1. At the hearing, Mr Rowley said that, in his opinion, the Applicant's Proposed Development was not in accordance with the ILP because it did not include the construction of that half of the access road from Ingleburn Road that was envisaged under the ILP to be provided on the Subject Site. He said that, in his experience, it was common practice for developments in release areas to include partial road construction. 2. Mr Rowley had stated, in his evidence within the joint report prepared with Mr Betros, that: "2.3.5 It is my opinion that the construction of roads is required with this application as the applicant is proposing a permanent use of land and it is not known when another application will be lodged for the development of the site. 2.3.6 It is my opinion that if the roads are not constructed with this application it is likely that they never will be, contrary to the precinct planning vision and the intent of the DCP. 2.3.7 It is my opinion that if the roads are not constructed with this application access to the surrounding sites and the operation of the road network will be limited. Removal of these roads will necessitate access to and from adjoining sites from higher-order roads, which is contrary to the intent of the DCP, as per clause 3.3.6 (1)." 1. Mr Rowley also said that the Applicant's proposed access road along the south-eastern boundary of the Subject Site was not designed such that it would be consistent with the design requirements for access roads contained within the DCP. 2. In his oral evidence during the hearing, Mr Betros said that, in his opinion, it was premature and unreasonable to require the Applicant to construct that part of the ILP's road network that fell on the Subject Site as a part of the Proposed Development being considered in this appeal. Mr Betros said that, should the Applicant be required to construct the roads in accordance with the ILP, it was unlikely that this construction would match with any roadway later constructed on the neighbouring site. 3. Mr Betros said that, in his opinion, the Applicant had, appropriately, proposed to site any buildings that formed part of its Proposed Development such that they would not interfere with the indicative road network within the ILP, and that this should be sufficient to ensure that the Proposed Development was, in his words, consistent with the DCP. 4. Having considered the submissions of the Parties, and the testimony of the expert planners, I prefer the evidence of Mr Betros, and agree with the submissions of the Applicant, which are supported by Mr Betros' evidence, that the Applicant's Proposed Development is consistent with the provisions of the ILP, for the following reasons: 1. the current levels on the Subject Site have been established as a result of earthworks carried out under a legally obtained CDC approval, and these levels differ, in my view substantially, from the levels of the land on the adjoining allotments to the north-west and south-east of the Subject Site; 2. if the Applicant were to be compelled as part of its Proposed Development, to construct the indicative road network envisaged under the ILP, this would require resolution of the levels between the Subject Site and the allotments adjoining it to its north-west and south-east. 3. given the facts that the allotment to the south-east is currently in use as a bus depot, the design of which is inconsistent with the road network in the ILP, and given that the level of the pavement surface of the bus depot is substantially above that of the Subject Site, I agree with Mr Betros, that: 1. it is premature and unreasonable to require that the Applicant construct, as part of the Proposed Development, that part of the ILP's envisaged road network that falls within the Subject Site; 2. it is unlikely that the construction now of either the access road from Ingleburn Road or the branch road with cul-de-sac ending, would match the eventual requirements for construction of either roadway envisaged under the ILP for either the neighbouring allotment currently used as a bus depot, or the allotment to the north-west that is currently vacant. 1. in its submissions, the Respondent had said that while the precise levels of the access road required under the ILP are not known, what is known is that the road will not have a 1m drop and then a 2m drop at the boundaries of the subject site in its long section from 'east to west'. While I accept the Respondent's observation that the road will not have a 1m drop and then a 2m drop at the boundaries of the Subject Site, the fact remains that these differences in levels do currently exist and will require resolution at some point. 2. additionally, as identified by the Respondent in its submissions, the levels at which the roads on the Subject Site would need to be constructed in order to achieve the outcomes identified in the ILP are not available to the Applicant, and cannot be provided by the Respondent Council at this time to the Applicant. 1. Based on the considerations at [51], I have concluded that, consistent with the submissions of the Applicant, it would be unreasonable to require that it construct, in their final form, the roads that are envisaged within the ILP as part of the Proposed Development. 2. Noting my conclusion at [52], the question remains as to whether the Applicant's Proposed Development is 'generally in accordance' with the ILP, as required under the controls in clause 2.2 of the DCP. 3. In its submissions at the hearing, the Respondent drew the Court's attention to a decision of the Commissioner in the matter of Welsh Property Consulting Pty Ltd v The Hills Shire Council [2015] NSWLEC 1288 (referred to hereafter as Welsh), in which (at [27]-[28]) the Commissioner had said: "27 The SEPP and DCP collectively co-ordinate the development of the Precincts. In circumstances where the DCP is consistent with and was developed in accordance with the SEPP I consider that it should be given significant weight in my evaluation of the proposal under s79C (1) (a)(iii). 28 The DCP, and in particular the ILP, are based upon the construction of the road in its approved location. The proposed change in location of the road 300m west of its current location is a significant change in my assessment." 1. While noting the findings of the Commissioner, I also note that the Applicant in Welsh: 1. had proposed the relocation of a road that had been the subject of the Commissioner's considerations, and 2. had proposed that the road be relocated considerable distance, said to be some '300m west of its current location' as provided in the ILP. 1. In the current appeal, the Applicant has not proposed the relocation of a road envisaged under the ILP. 2. Further, in my assessment, nothing in the Applicant's Proposed Development would, per se, constrain the delivery of the roadwork envisaged under the ILP. As a consequence, I do not embrace the Respondent's submission that the circumstances of the Commissioner's findings in Welsh are similar to those being considered by me in the current appeal. 3. Having considered the submissions of the Parties and the evidence of the experts, I have concluded that the Applicant's Proposed Development is 'generally in accordance' with the ILP, as required under the controls in clause 2.2 of the DCP, because: 1. the location of the access driveway proposed by the Applicant, is on the alignment of that half of the access road off Ingleburn Road envisaged by the ILP to be located on the Subject Site; 2. the access driveway proposed by the Applicant does not present any impediment to the future delivery of the road network envisaged by the ILP, and in the absence of clarity as to the levels of the road network in the ILP, generally accords, in my estimation, with the requirements of the ILP; 3. the Applicant's proposed location of buildings in its Proposed Development is such that they do not compromise the locations required for the future construction of the branch road with cul-de-sac ending envisioned by the ILP; 4. the location and functionality of drainage line along the north-western boundary of the Subject Site will need to be addressed at some future time should the cul-de-sac envisioned under the ILP be constructed. This would be the case whether or not the Applicant's Proposed Development were to be approved. There is nothing in the Applicant's Proposed Development that would further complicate that potential future construction work beyond what is already present on the Subject Site. Are the Applicant's proposals for drainage and stormwater management within its Proposed Development adequate, including in relation to the requirements of the ILP? 1. The Respondent had contended that the Applicant's proposals for drainage and stormwater management on the Subject Site were inadequate, including in relation to the provisions of the ILP, because the Applicant's on-site detention (OSD) basin, which has already been constructed: 1. is located in the south-west corner of the Subject Site, and appears to be located, according to the Respondent, within an area identified within the ILP as being required for the future widening of Ingleburn Road; 2. has not been constructed to specification, and was designed on the assumption that the central and southern sections of the Subject Site were not to be paved. 1. In relation to the matter identified above [59(1)], concerning the location of the OSD basin in an area that may be required for the future widening of Ingleburn Road, I note that this basin has already been constructed, and the Applicant submits that this work was carried out under a validly issued CDC. The Applicant does not seek in this appeal, any consent for the construction of the existing OSD basin. 2. Should the future widening of Ingleburn Road require alterations to be made to the configuration of the existing OSD basin, this will need to be addressed at that future point in time, independent of the matters considered within this appeal. 3. I note that the design of any future upgrades to Ingleburn Road, consistent with the provisions of the ILP or otherwise, has yet to be prepared. As a consequence, it would be premature, in my assessment, to require, as a condition of consent in this appeal, that alternations be made to the existing OSD basin to accommodate a future upgrade to Ingleburn Road, the design and timing of which are, at this point, uncertain. 4. Of greater concern in this appeal is the matter identified by the Respondent at [59(2)], concerning the adequacy of the already constructed OSD basin to service the requirements of the Applicant's Proposed Development. 5. This matter was addressed by Mr Norris and Mr Cattarin, both within their joint expert report, and in their expert testimony at the hearing. 6. At the hearing, Mt Cattarin said that, in his opinion, the OSD basin constructed by the Applicant was of a shape and size that differed to that approved under the CDC, and which was included in the plans that accompanied the certification. Mr Cattarin said that, by his calculation, the OSD basin, as constructed, was some 50% undersized for its intended purpose. 7. Mr Norris agreed with Mr Cattarin that the volume of storage provided by OSD basin, as constructed, was less than that proposed within the plans that formed part of the CDC approval. 8. The experts further agreed that while the Applicant's Proposed Development would not increase the volume of stormwater generated on the Subject Site, the capacity of the OSD system constructed was insufficient to provide for management of that stormwater volume. 9. In response to the stormwater experts' agreement that the OSD basin, as constructed, was less than required to manage the site's estimated stormwater flows, the experts proposed the following draft conditions of consent which they agreed would redress this issue: 1. a condition requiring compliance prior to the issue of a Construction Certificate, as follows: "Civil engineering plans – Civil engineering plans indicating the maintenance of a grassed or turfed finish in areas shown on plan DO2b as 'asphalt paving', and details of line marking and traffic management, shall be prepared in accordance with the approved plans and Council's Engineering Design and Construction Specifications. Details demonstrating compliance shall be provided to the Certifying Authority with the Construction Certificate application." 1. a condition requiring compliance prior to the issue of an Occupation Certificate, as follows: "Prior to the issue of the occupation certificate, a suitably qualified engineer shall provide to the PCA certification of the site stormwater infrastructure as constructed meets all requirements of Council's Design and Construction Specifications." 1. Both Parties embraced these conditions and agreed that they should be imposed if the Applicant's Proposed Development were approved. 2. Based on the testimony of the experts, along with their recommendations concerning conditions of consent, agreed to by the Parties, I am satisfied that the Applicant's Proposed Development, if approved subject to the imposition of the conditions of consent identified above at [68], would be adequate to ensure the effective management of drainage and stormwater on the Subject Site under the Proposed Development, including in relation to relevant provisions of the ILP. Are the levels of contamination present on the Subject Site consistent with the Subject Site being suitable for the Proposed Development? 1. It was not contested that, as part of earthworks already completed by the Applicant on the Subject Site, a volume of asphalt had been imported onto the site as fill to assist in establishing a final level for the Applicant's Proposed Development. 2. During his testimony at the hearing, Mr Cattarin said that he had estimated that a volume of some 11,000m3 of asphalt had been imported onto the Subject Site. Mr Norris said that he disagreed with Mr Cattarin's estimate. He submitted that the volume of fill that had been imported onto the Subject Site was between 4,000m3 and 5,000m3 of material. However, he also confirmed that no one in his firm, nor he himself, had undertaken the calculations required to quantify precisely the volume asphalt imported onto the Subject Site. 3. Clause 7(1) of SEPP55 (see above at [26]) provides: (1) A consent authority must not consent to the carrying out of any development on land unless: (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land 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, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. 1. At the hearing, the Applicant tendered as evidence a letter from the firm SRC Contracting that, it submitted, adequately demonstrated that the asphalt fill imported onto the Subject Site was fit for purpose in relation to the Proposed Development, and that it fulfilled the requirements of cl 7(1) of SEPP55. 2. However, the Respondent submitted that it was not satisfied that the letter from SRC Contracting adequately fulfilled the provisions of cl 7(1), and noted it that the volume of fill imported onto the Subject Site was, in any case, in dispute between the experts, and so was unable to be confirmed. 3. During the hearing, the contamination experts, Ms White and Mr Norris, were unable to agree that that the letter from SRC Contracting adequately fulfilled the provisions of cl 7(1) of SEPP55. 4. The Applicant proposed that, as an alternative to relying on the letter from SRC Contracting for the purposes of cl 7(1) of SEPP55, the matter might be resolved by the imposition of the following condition of consent, to be inserted within the draft conditions under the heading '5.0 Prior to Issue of the Occupation Certificate', should the Court be minded to grant consent to the Applicant's Proposed Development: "(9A) Asphalt Certification (i) Prior to issue of Construction Certificate, certification is to be provided to the PCA that reclaimed asphalt pavement material on site meets all the requirements set out in the Reclaimed Asphalt Pavement Material Order (2014). (ii) If certification required by (i) is not provided, the following testing and further works are to be undertaken: (a) Samples of reclaimed asphalt pavement material are to be collected on a grid at the rate specified in Table A of NSW EPA (1995) Sampling Design Guidelines. A single sample from each testing location is to be collected from mid-depth through the placed material profile. Each sample is to be analysed by a NATA accredited laboratory to confirm the absence of asbestos and coal tar. (b) Should either asbestos or coal tar be identified a remediation action plan is to be prepared; remediation works undertaken and validated; and replacement suitably pavement material be imported to replace remediated material. (Note – in accordance with SREP 20, all remediation works within Camden Council Local Government Area require consent for remediation)" 1. In response to this proposition, the Respondent submitted that, because the volume of asphalt imported onto the Subject Site was unable to be confirmed by the experts, a question would arise in relation to the first limb of the Applicant's proposed condition in relation to what volume of the imported asphalt the condition would relate. Based on this submission, the Respondent proposed that, if the Court were minded to grant consent to the Applicant's Proposed Development, it would be preferable that only the second limb of the Applicant's proposed condition should be imposed. 2. Notwithstanding that the text of the Applicant's proposed condition should be subject to some minor editing for clarification, my consideration of the Parties' submissions is as follows: 1. I agree with the Respondent that the wording of the first limb of the Applicant's proposed condition of consent is of insufficient precision to ensure that, should it be fulfilled, the Parties would be satisfied that the requirements of cl 7(1) of SEPP55 had been met. I reach this conclusion both: 1. for the reason provided by the Respondent at [78]; and 2. for the reason that the level of information required in the certification to meet all the requirements set out in the Reclaimed Asphalt Pavement Material Order (2014) published by the NSW Environmental Protection Authority (EPA) was also not specified ion the condition. I note that this point was also a matter of dispute between the Parties in relation to the SRC Contracting letter referred to above at [74]; 1. I also agree with the Respondent that the second limb of the Applicant's proposed condition provides a more robust basis upon which the provisions of cl 7(1) of SEPP55 might be satisfied. 1. Consequently, I am satisfied that, should the Applicant's Proposed Development be granted consent, the matters relating to contamination that arise from the importation of asphalt onto the Subject Site would be resolved by the imposition of the second limb of the Applicant's proposed condition of consent, with some minor editing for clarity, as follows: "(9A) Asphalt Certification Prior to issue of an Occupation Certificate, the following testing and further works are to be undertaken by the Applicant: (i) Samples of reclaimed asphalt pavement material are to be collected on a grid at the rate specified in Table A of the NSW EPA (1995) Sampling Design Guidelines. A single sample from each testing location is to be collected from mid-depth through the placed material profile. Each sample collected is to be analysed by a NATA accredited laboratory to confirm the presence or absence of asbestos and coal tar. (ii) Should either asbestos or coal tar be identified in any sample, a remediation action plan (RAP) is to be prepared; remediation works are to be undertaken and validated; and replacement pavement material of suitable quality to fulfil the requirements of the RAP are to be imported to replace remediated material. (Note – in accordance with SREP 20, all remediation works within Camden Council Local Government Area require consent for remediation)." Should the Respondent's proposed condition concerning the financial contribution required to be paid by the Applicant under Council's contributions plan, and prepared under the provisions of s 7.11 of the EP&A Act, be imposed if the Proposed Development is granted consent? 1. The provisions of s 7.11 of the EP&A Act were identified above at [23]. 2. During the hearing, the Court was assisted in its consideration of this contention by the contributions planning experts, Mr Peter Price, for the Applicant, and Mr Albert Jean, for the Respondent. A joint report prepared by these experts was tendered as evidence at the hearing. 3. The Respondent had originally proposed that, should the Court be minded to grant consent to the Applicant's Proposed Development, the following condition of consent should be imposed, consistent, it said, with the provisions of s 7.11 of the EP&A Act, and as calculated by the Respondent based on the Camden Growth Area Contributions Plan (CGACP), adopted by Camden Council on 28 February 2017 (in force from 15 March 2017): (22) Section 7.11 Contributions - Monetary (Leppington North Precinct) - A contribution pursuant to the provisions of Section 7.11 of the EP&A Act 1979 for the services and amounts detailed below. Plan Name Contribution Type Amount Payable LN P Contributions Plan - Essential Roads- Land $124,108.00 Infrastructure LN P Contributions Plan - Essential Roads - Works $142,930.00 Infrastructure LN P Contributions Plan - Essential Drainage - Land $140,257.00 Infrastructure LN P Contributions Plan - Essential Drainage - Works $94,147.00 Infrastructure LN P Contributions Plan Administration Plan - Essential Allowance $4,942.00 Infrastructure Total $506,384.00 A copy of the Leppington North Precinct Section 7.11 Contributions Plan may be inspected at Council's Camden office at 70 Central Avenue Oran Park or can be accessed on Council's website at www.camden.nsw.gov.au. The amount of contribution payable under this condition has been calculated at the date of consent In accordance with the provisions of the Contributions Plan, this amount shall be indexed at the time of actual payment in accordance with the applicable Index. 1. During the hearing, and based on his evidence in the joint report of the contributions experts, Mr Jean confirmed that he had identified that, in his opinion, the Applicant had miscalculated, and so underestimated, the so-called Net Developable Area (NDA) associated with the Proposed Development, and which area the Respondent had used to calculate the contributions payable by the Applicant should its development application be approved. 2. Mr Jean said that the difference between the Applicant's calculated NDA, and that calculated by the Respondent, was associated with area of the proposed road network identified in the ILP that fell on the Subject Site. He said that the Applicant's development application had not included these areas, and that area had been excluded from the calculation of NDA. Mr Jean said that the correct NDA that should be applied when calculating the contributions payable by the Applicant as part of its current development application was 11,236m2. 3. Applying this revised NDA to the calculation of contributions payable by the Applicant, Mr Jean said that the correct content of the Respondent's proposed condition (22) was as follows: (22) Section 7.11 Contributions - Monetary (Leppingt.on North Precinct) - A contribution pursuant to the provisions of Section 7.11 of the EP&A Act 1979 for the services and amounts detailed below. Plan Name Contribution Type Amount Payable LNP Contributions Plan - Essential Roads- Land $154,155 Infrastructure LNP Contributions Plan - Essential Roads - Works $177,532 Infrastructure LNP Contributions Plan - Essential Drainage - Land $174,213 Infrastructure LNP Contributions Plan - Essential Drainage - Works $116,940 Infrastructure LNP Contributions Plan Administration Plan - Essential Allowance $6,138 Infrastructure Total $628,978 A copy of the Leppington North Precinct Section 7.11 Contributions Plan may be inspected at Council's Camden office at 70 Central Avenue Oran Park or can be accessed on Council's website at www.camden.nsw.gov.au. The amount of contribution payable under this condition has been calculated at the date of consent. In accordance with the provisions of the Contributions Plan, this amount shall be indexed at the time of actual payment in accordance with the applicable Index. 1. The Applicant has objected to the basis for the calculations undertaken by the Respondent Council, and the imposition of its proposed condition (22) should the Court be minded to grant consent to its Proposed Development. 2. The Applicant proposed that: 1. the Court consider that no contribution should be levied in relation to the Applicant's Proposed Development as, in its submission, this would be consistent with the approach adopted by Council in relation to the time-limited development consent granted to the bus depot on the lot adjoining the Subject Site to its south-east; or 2. if the Court was mind to grant consent, but agreed with the Respondent that a contribution should be levied on the Applicant's Proposed Development, then an alternative quanta of contributions should be payable under each of the categories identified within the Respondent's table of contributions within its proposed condition (22), as follows: (22) Section 7.11 Contributions- Monetary (Leppington North Precinct) - A contribution pursuant to the provisions of Section 7 .11 of the EP&A Act 1979 for the services and amounts detailed below. Plan Name Contribution Type Amount Payable LNP Contributions Plan - Essential Roads - Land $18,524.22 Infrastructure LNP Contributions Plan - Essential Roads - Works $21,348.83 Infrastructure LNP Contributions Plan - Essential Drainage - Land $Nil Infrastructure LNP Contributions Plan - Essential Drainage - Works $Nil Infrastructure LNP Contributions Plan Administration Plan - Essential Allowance $320.20 Infrastructure Total $40,193.29 A copy of the Leppington North Precinct Section 7.11 Contributions Plan may be inspected at Council's Camden office at 70 Central Avenue Oran Park or can be accessed on Council's website at www.camden.nsw.gov.au. The amount of contribution payable under this condition has been calculated at the date of consent. In accordance with the provisions of the Contributions Plan, this amount shall be indexed at the time of actual payment in accordance with the applicable Index. 1. In relation to the Applicant's submission that its Proposed Development should not be subject to a condition requiring payment of any contributions under the CGACP, I do not agree that this submission should be accepted. I have reached this conclusion because: 1. the CGACP provides that a contribution under the CGACP is payable by a proponent in respect of the first development application lodged in relation to the Subject Site following its rezoning under the Leppington North Precinct release process; 2. as submitted by the Respondent in closing, I agree that, consistent with the findings of Moore J in The Lawson Clinic Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 36 (Lawson) at [109], there is a presumption that a contribution calculated in accordance with a contributions plan will be imposed, unless the Applicant can discharge the 'persuasive burden' to satisfy the Court that it should not be imposed or should be discounted on some rational basis; 3. whether or not the circumstances relating to the consent of the bus depot development on the adjoining lot, and whether the reasons for the Respondent waiving of a requirement for a contributions payment under the CGACP in that development might apply in the current appeal, the Applicant has not established, to my satisfaction, any basis under the provisions of the CGACP that would provide for an exception or discounting of the payment of a contribution by the Applicant under the CGACP, other than in respect of the issues I address below at [94], and following. 1. Further, as both Parties have proposed a condition of consent requiring the payment of a contribution by the Applicant in respect of the Proposed Development, albeit of differing quanta based on differing interpretations of the CGACP, I conclude that the Parties are both satisfied that the Applicant's Proposed Development, for which development consent is sought, will or is likely to require the provision of, or increase the demand for, public amenities and public services within the area, as required under the provisions of s 7.11(1) of the EP&A Act. 2. On the basis of the conclusion above at [89] and [90], I am satisfied that the provisions of s 7.11(1) of the EP&A Act have been fulfilled in respect of the Applicant's Proposed Development. 3. The contention between the Parties concerning the payment of contributions by the Applicant, relates to the provisions of s 7.11(2) of the EP&A Act which provides that a condition referred to in subs (1) may be imposed only to require "a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned". 4. The Applicant submitted that the quanta of 'reasonable' contributions payable by the Applicant as a consequence of its Proposed Development should be significantly less than that calculated by the Respondent. The Applicant's submissions relied on the evidence of Mr Price in the joint report of the planning contributions experts, along with his testimony during the hearing. 5. Within his evidence, Mr Price had said that, in his opinion, the contributions payable by the Applicant should be re-calculated to reflect the following: 1. the application of what he considered to be the correct the Land Value Index (LVI) applicable to the Subject Site which, in his opinion, was a LVI of 109.09 being the LVI applicable to industrial land in Leppington North. This was in contradiction to the figure applied by Mr Jean, which he described as a weighted average LVI of 144.8; 2. the application of a NDA of 1350m2, equivalent to the area of the shed the Applicant proposes to erect on the Subject Site, rather than the area of the Subject Site calculated either by the Applicant in its development application, or the area calculated by Mr Jean of 11,236m2; 3. the application of no contribution for drainage (works and land) because the Applicant proposed to utilise the OSD basin already constructed on the Subject Site; 4. a consequential reduction in the administrative charge, set by the CGACP as a fixed rate of other contributions. 1. I will address each of these matters in turn. In doing so, and mindful of the findings of Pepper J in Blacktown City Council v Satmell Holdings Pty Ltd [2019] NSWLEC 93 at [37], in which her Honour commented that: "The examination and subsequent determination of the correctness or otherwise of the process by which the Contributions Plans were made and approved (or adopted) by the Council, and the finding by the Commissioner that the process was deficient, that the Contributions Plans were not the correct contributions plans for the purposes of the exercise of her functions under the EPAA, and that contrary to s 7.20 of the EPAA she was entitled to disregard those Plans in imposing the contributions condition, went much further than any orthodox exercise of merits review. Instead, the Commissioner traversed into the forbidden territory of "the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's powers" (Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 per Brennan J), viz, judicial review. In doing so, the Commissioner was therefore purporting to exercise judicial, and not merely administrative, power." 1. As a consequence: 1. any inquiry into the validity of the CGACP, is outside the scope of the Class 1 jurisdiction of the Court within which this appeal is conducted, and I do not question that the CGACP is a properly made contributions plan for the purposes of s 7.11 of the EP&A Act; and 2. my consideration of the matters in this appeal will be based on the application of the CGACP rather than putting at question the correctness, or otherwise, of the process by which the plan was made. What is the applicable LVI for use in the calculation of contributions payable by the Applicant? 1. In his evidence within the joint report of the contributions planning experts, Mr Jean had said that: 1. the LVI used by Council in the calculation of contributions payable by the Applicant for its Proposed Development was 144.8; 2. the LVI of 144.8 represented a 'weighted average of the LVIs published by Council on its website'; 3. this weighted average LVI reflected the change in land values for all of the different types of land to be acquired to support development in the Leppington North Precinct; 4. Council had arrived at this LVI on the basis of a land valuation report prepared by specialist land valuer; 5. this weighted average LVI was a representative measure of the change in the land acquisition costs that allowed for different types of infrastructure works within the contribution plan; 6. the LVI identified within the Council's website for industrial land in the Leppington North Precinct tracks changes in the value of industrial land identified as to be acquired by Council for the delivery of infrastructure identified within the CGACP; 7. the LVI for industrial land in Leppington North was not used for the purpose of indexing the contribution rates identified in Appendix A of the CGACP. 1. In response to this evidence, the Applicant submitted that: 1. Clause 5.3.1 of the CGACP provided a variety of LVI figures that should be applied in calculating contributions payable for different categories of land, and that the LVI adopted by Council for industrial land in Leppington North, as published, was 109.09; 2. the Council's published LVI for industrial land of 109.09 was the correct LVI to apply in the calculation of the contributions payable by the Applicant in relation to its Proposed Development and this was supported by the testimony of Mr Price; 3. under the provisions of clause 5.3.1 of the CGACP, the LVI is determined for different classes of land and these are published on Council's website, but that the LVI of 144.8 applied by Mr Jean, on behalf of Council, had not been published on the Council's website; 4. the LVI applied by Mr Jean had not been adopted by the plan, and so should be given no weight in the calculation of the contributions payable by the Applicant in relation to its Proposed Development; 5. under the provisions of cl 32 of the EP&A Regulation (see above at [35]), Council may amend, inter alia, index figures prepared by or on behalf of the Council from time to time that are specifically adopted within a contributions plan, such as the CGACP; 6. because the weighted average LVI used by Council in its calculation of the contributions payable by the Applicant in relation to its Proposed Development had not been adopted within the CGACP, it could not be amended, and could not be applied to the Applicant's Proposed Development. 1. In response to a question from the Applicant, Mr Jean confirmed that: 1. the LVIs to be used in the calculations under the contributions plan should be published on the Council's website; and 2. the weighted LVI of 144.8 that he had applied had not been published on the Council's website; 1. The Respondent Council did not challenge this evidence. 2. I have considered the submissions of the Parties and the evidence of the contributions planning experts, and make the following observations that I find are relevant in this appeal: 1. Clause 5.3.1 of the CGACP provides the basis for the calculations used to establish LVIs to be applied in the implementation of the CGACP; 2. Clause 5.3.1 also states the following in relation to the process for publishing the LVI for use in the implementation of the plan: "The Base LVI relates to the estimated values of the classes of land to be acquired at the date of adoption of this plan that were prepared by registered land valuers on Council's behalf; The estimated values for these land classes for each Precinct are shown in the Technical Document; The Base LVI for all land classes is set at 100.00 at the time this plan is adopted. Council will, through the life of the plan, engage a registered valuer on at least an annual basis to review and (if necessary) update the LVI for each of the land classes. The updated LVI will be obtained by dividing the value of the land class at the time of the review by the value of the land class at the date of adoption of this plan, and multiplying this figure by 100. Council will publish updates to LVI on either its web site or in its Management Plan or both." 1. Council's website includes a section that provides updated information on LVIs applicable to various land classes which states that: 1. in accordance with Clause 5.3.1 of the CGACP, Council has updated the LVI relating to the plan. 2. the most recent updates of LVIs applicable to the Camden Growth Area Leppington and Leppington North Precincts are dates November 2018; 3. for the Leppington North Precinct, LVIs are provided for the following land types: 1. riparian land; 2. land below 100 Year ARI; 3. residential land 4. commercial land 5. industrial land; 1. the LVI applicable to industrial land is 109.09; 1. Council's website does not contain a reference to a weighted average of all the LVIs as one of the rates that it might use as a basis for calculating contributions payable in respect of development within the Leppington North Precinct; 2. neither the CGACP Main Document, including its Appendix A concerning Leppington North contribution rates, nor the Technical Document that accompanies it, make reference to a weighted average of all the LVIs as one of the rates that it might use as a basis for calculating contributions payable in respect of development within the Leppington North Precinct; 1. Based on my considerations above at [101], I conclude that: 1. the so-called 'weighted average LVI' used by Council in its calculation of contributions payable by the Applicant is: 1. not an index that appears within the CGACP, and is not an index published by Council on its website; 2. is not an index included within the CGACP; 3. is not an index that can be amended in accordance with the provisions of cl 32 of the EP&A Regulation; 4. is not an index that can be used by the Respondent Council in its calculation of contributions payable by the Applicant in relation to its Proposed Development; 1. given my findings above at [(1)], the Applicant's proposal, supported by the evidence of Mr Price, for use of the Leppington North Precinct industrial land LVI of 109.09 should be adopted in the calculation of contributions payable by the Applicant in relation to its Proposed Development; 2. as a consequence, the contributions identified within the table in Parties' proposed condition (22) should be re-calculated applying a LVI of 109.09. What NDA should be adopted for of the calculation of contributions payable by the Applicant? 1. As noted above at [94(2)], the Applicant has submitted, supported by the evidence of Mr Price, that a NDA of 1350m2, equivalent to the area of the site that would be occupied by shed the Applicant proposes to erect on the Subject Site, should be applied in the calculation of contributions payable by the Applicant in respect of its Proposed Development. This area differed from both the NDA calculated and applied by the Applicant in its development application, or the NDA calculated and applied by Mr Jean of 11,236m2. 2. In the joint report of the contributions planning experts, Mr Price has said that, in his opinion, the Applicant's Proposed Development was for the erection of a single shed that would accommodate ten workers, and which would cover 1350m2. Based on this statement, Mr Price asserted that: "Any contribution for this plan based on land area can only seek justification from that fact and no other. The proposal footprint (NDA?) is only about 15% of the NDA Council has claimed without justification." 1. Within his evidence in the joint report of the planning contributions experts, Mr Jean had provided a comprehensive narrative as to the rationale and methodology applied by the Respondent Council in relation to the use of the NDA as a basis for calculating contributions payable by applicants should their development applications be approved. In particular, his evidence was that: 1. Council has determined through its adoption of the CGACP that it is satisfied that development in the Leppington North Precinct requires provision of public amenities and public services; 2. the CGACP adopted by Council adopts the NDA methodology in providing economic infrastructure (roads, transport and drainage facilities) in the precinct, and this approach is consistent with guidance provided by the NSW Department of Planning and Environment, in its publication entitles 'Development Contributions Practice Notes'; 3. the CGACP Technical Document establishes the nexus and apportionment of costs for infrastructure works in relation to the Leppington North Precinct; 4. the CGACP defined the NDA as the area of land to which a development application or a complying development certificate relates and includes the area of any land that the development consent authorizes, or requires, to be used as a road, or which is reserved or dedicated as a public road; 5. the Applicant's Proposed Development relates to the use of a large section of the Subject Site for industrial purposes and that area is beyond the area of the proposed shed; 6. the NDA calculated by Mr Jean in relation to the Applicant's Proposed Development, which is 11,236m2, represents the full extent of the Subject Site proposed to be used by the Applicant under its development application, but excludes a section of the Subject Site to its south. That southern portion of the site, whilst proposed within the Applicant's plans to be covered by asphalt, is now proposed, should consent be granted, to be subject to a condition of consent that would require it to revert to a grass or turf surface that would not be used by the Proposed Development. 1. Having considered the submissions of the Parties and the evidence of the experts, I prefer the evidence of Mr Jean in relation to the calculation of the NDA applicable to calculating the contribution payable by the Applicant in relation to its Proposed Development. I make this finding because: 1. the evidence of Mr Jean is consistent with methodology presented within the CGACP concerning the use of the NDA methodology in relation to calculating contributions, including in relation to the establishment of a nexus between development in the Leppington North Precinct and the contributions required to support the provision of economic infrastructure to support that development; 2. the calculation of NDA provided by Mr Jean is consistent with the definition of NDA within the CGACP; 3. the calculation of NDA proposed by Mr Price is not consistent with the definition of NDA within the CGACP. 1. Consequently, I conclude that the contributions identified within the table in Parties' proposed condition (22) should be re-calculated and confirmed based on the use of a NDA of 11,236m2, as proposed by Mr Jean. Should the Applicant's proposal to make no contribution for drainage (works and land), because its Proposed Development would utilise the OSD system already constructed on the Subject Site, be accepted? 1. The Applicant has proposed, supported by the evidence of Mr Price, that it should not be required to make any financial contribution for drainage (works and land) under the CGACP because: 1. it proposes that the Proposed Development would utilise the OSD system already constructed on the Subject Site; 2. the Proposed Development would not generate any demand for the construction of stormwater works as the Applicant's OSD basin, already constructed, would ensure that the amount of water discharged from the site would be no greater than would be the case in its 'natural state'; 3. there is no nexus between the Proposed Development and the services and facilities proposed under the contributions plan for stormwater drainage; 4. no part of the Proposed Development would involve an increase in the amount of stormwater leaving the land, and any contribution could only be imposed on the basis of development that is the subject of the Applicant's development application, and not any development already approved under a CDC. 1. In response to the Applicant's submission, the Respondent, supported by the evidence of Mr Jean, submitted that: 1. drainage flows from the Subject Site onto Ingleburn Road would still need to be managed even though the Applicant's OSD basin would reduce the volume and velocity of those flows; 2. the Applicant's proposal did not give regard to the likely future development of the Subject Site under the ILP and its impact on the relative capacity of the Applicant's OSD basin to limit stormwater flows from the Subject Site onto Ingleburn Road; 3. upon the construction of the road network envisaged under the ILP, the drainage of stormwater from the Proposed Development, and, in particular, from the proposed shed structure, may not be able to flow towards the already constructed OSD basin and would then require drainage via the public road system and that this would generate demand for drainage infrastructure outside of the Subject Site; 4. there would be no further opportunity for the Respondent Council to levy a contribution towards drainage infrastructure (or any other infrastructure) in connection with any subsequent development application concerning that portion of the Subject Site covered by the Proposed Development, owing to the operation of clause 1.8 of the CGACP, which provides as follows (noting that the Proposed Development is not a development that is exempt from the operations of the plan under clause 1.9): "Except as provided for by section 1.9, this plan applies to the following types of development: …. Retail, commercial and any other non residential development (including subdivision of land), where that development is the first development of the land after it has been rezoned for urban purposes." 1. Consistent with my findings above at [106(1)], the CGACP adopted by Council provides a nexus between development in the Leppington North Precinct and contributions required to provide economic infrastructure (roads, transport and drainage facilities) in the precinct, consistent with guidance provided by the NSW Department of Planning and Environment in its Development Contributions Practice Notes. 1. Consequently, I conclude that the contributions identified within the table in Parties' proposed condition (22) should include the Respondent's proposed contributions related to drainage (land and works), re-calculated to reflect my findings above at [102(3)] and [107] in relation to LVI and NDA. Should the contributions payable by Applicant be subject to a consequential reduction in the administrative charge, set by the CGACP as a fixed rate of other contributions? 1. As a consequence of my findings above at [102(3)], [107] and [110], the administrative charge payable by the Applicant in relation to its contributions under CGACP will differ from that included within the differing drafts of proposed condition (22) prepared by each Party. 2. Consequently, I conclude that the administrative charge identified within the table in the Parties' proposed condition (22) should be re-calculated to reflect my findings above at [102(3)], [107] and [110] in relation to LVI, NDA and drainage. Further considerations Further submissions in relation to proposed conditions of consent 1. The Respondent Council had helpfully drafted proposed conditions of consent prior to the hearing, and the drafting of these conditions took place, of necessity, prior to the completion of joint reports by the experts, and their provision of testimony at the hearing, including in relation to conditions of consent proposed by the experts in their evidence. 2. At the hearing, the Applicant tendered proposed amended conditions of consent for consideration by the Court should it be minded to grant consent to the Applicant's Proposed Development. 3. Further, towards the conclusion of the hearing, the Parties provided submissions in relation to a condition proposed by the Applicant (proposed condition 1A) that would provide for any consent to be time-limited to a period of six years from the date at which the consent would become operational. 4. At the conclusion of the hearing, the Court invited the Parties to provide further submissions in relation to the Parties' differing proposed conditions of consent. These submissions were received, and my consideration of the submissions concerning the conditions remaining in dispute between the Parties is as follows: 1. 1.0 General Conditions of Consent 1. Proposed condition 1(1) concerns 'Approved Plans and Documents', and the Applicant has submitted that a number of plans should be deleted from the list of plans on the basis that they are not the subject of the Proposed Development in this appeal. The plans proposed for deletion relate to drainage works, modelling and sediment control works carried out under consents covered by CDCs. I accept the Applicant's submission and agree that the plans marked for deletion in its amended conditions of consent tendered as Exhibit P at the hearing should be so deleted; 2. Proposed condition 1(1A) concerns the Applicant's proposal made at the hearing that any consent granted by the Court be time-limited to operate for a period of six years from the date on which it became operational. The proposed condition would read: "(1A) Time Limited Consent – Pursuant to Section 4.17 of the EP&A Act 1979, the approved use is limited to a period of 6 years from the date from which this development consent operates. A further development application or modification application shall be provided to, and determined by, the consent authority prior to the expiration of this time period if the applicant intends to continue the use. If a development application or modification application is not determined prior to the expiry of this consent, then the approved use shall cease and all approved works must be removed from the site. It is recommended that the further development application or modification application be lodged with the consent authority at least 3 months prior to the expiry of the consent." The Applicant said that, should its proposed condition 1(1A) be imposed, then the Court should delete proposed condition (22) concerning contributions payable by the Applicant in respect of its development application. The Respondent submitted that this proposed condition should not be accepted by the Court as it creates uncertainty as to the definition of the Proposed Development, and, if the Applicant now proposed that its development be time-limited, this had not been considered by the experts in either their joint reports or in their oral testimony at the hearing. Having considered the submissions of the Parties, I have concluded that the Applicant's proposed condition 1(1A) should not be imposed if consent were granted: 1. for the reasons provided by the Respondent, which I adopt; and 2. because, as evidenced by the submissions of the Applicant, the purpose of this condition would be to circumvent the imposition of a condition requiring the payment of contributions under the CGACP, and which for reasons provided above at [89], I have not found to be a satisfactory basis upon which a consent should be granted. 1. Proposed condition 1(2), concerns requirements for the modification of plans, which the Applicant opposes as being unreasonable and unnecessary and seeks to have deleted. The Respondent submits that the condition, including its various component elements, is required in order to ensure that the Applicant's Proposed Development has an acceptable street presentation, and so as to avoid any potential complications in relation to future road widening in relation to Ingleburn Road. My findings in relation to each of the elements of proposed condition 1(2) are as follows: 1. Proposed conditions 1(2(a)), 1(2(b)), 1(2(c)) and 1(2(d)) should not be imposed as I agree with the Applicant's submissions that the Proposed Development does not include works in the vicinity of the front setback to Ingleburn Road, and the imposition of these conditions may give rise to conflict in relation to the already constructed OSD system in circumstances where resolution of that conflict, while being inevitable at some point, need not be required in the context of the current appeal. I also agree that the current front fence to the Subject Site is acceptable in the current context of Ingleburn Road and configuration of existing constructions on the Subject Site; 2. Proposed condition 1(2(f)) should not be imposed as I agree with the submission of the Applicant that provision of plans for the construction of the indicative road layout in the ILP is challenging at this point as the final levels for those roads, which extend between the Subject Site and the adjoining lot containing the bus depot, remain unresolved; 3. Proposed condition 1(2(g)) should not be imposed, as I agree with the Applicant that its imposition would only be relevant in circumstances where the access road on the Subject Site were to form part of the indicative road layout envisaged within the ILP, and which does not form part of the Applicant's Proposed Development; 4. the remaining elements of proposed condition 1(2) in dispute between the Parties (proposed conditions 2(h) – 2(q)) should be imposed as I agree with the submissions of the Respondent that these are reasonable to require of the Applicant for the purpose of regulating the Proposed Development. 1. Proposed Condition 1(3), concerning retaining walls, should be imposed as I agree with the submission of the Respondent that this will provide clarity in respect of a consent and its relationship to the Applicant's plans for the Proposed Development; 2. Proposed condition 1(7), concerning vegetation should be imposed as I agree with the submission of the Respondent that this condition will provide assurance in relation to the protection of vegetation, including on adjacent allotments; 1. 2.0 Prior to the Issue of a Construction Certificate 1. Proposed condition 2(2) should not be imposed, as proposed by the Applicant, as the Applicant has indicated that no use of the dwelling on the Subject Site is proposed as part of the Proposed Development, and should be replaced by the following amended condition 2(2) as proposed by the Respondent: "(2) There is no use approved with respect to the dwelling on the property" 1. Proposed condition 2(7), should be imposed as amended in Exhibit P to reflect the maintenance of a 'grassed or turfed finish' on part of the Subject Site; 2. Proposed conditions 2(8) and 2(9) should not be imposed, as proposed by the Applicant, as they do not relate to works that form part of the Applicant's Proposed Development in this appeal; 3. Proposed condition 2(10) should not be imposed, as proposed by the Applicant, as the Validation Report to which it refers, and under which the report is required to be prepared, has been prepared and provided (Exhibit L tendered at the hearing) by the Applicant; 4. Proposed condition 2(11), concerning a requirement for a Validation Report in relation to fill materials should be imposed, for clarity. The Applicant had commented that the preparation and provision of a Validation Report in response to the previously proposed condition 2(10) satisfied this condition. However, the Respondent submitted that, based on the evidence of its contamination expert, there remained some uncertainty as to the volume of fill on site; 5. Proposed condition 2(12), concerning a requirement for an updated salinity investigation and management plan, should be imposed, for clarity, on the basis that, as submitted by the Respondent, there remained some uncertainty as to the volume of fill on Subject Site; 6. Proposed condition 2(16), concerning a requirement for the preparation of a Lighting Plan, should be imposed, as I accept the submission of the Respondent that, notwithstanding advice from the Applicant that use of the Subject Site at night does not occur, the Site may be occupied by employees during the evening and the plan is a reasonable requirement for the reasons provided by the Respondent in its submissions; 7. Proposed condition 2(17) should not be imposed, for consistency with my finding above at [(1)(c)(i)], concerning proposed conditions 1(2(a)-(d)); 1. 3.0 Prior to the Commencement of Works 1. Proposed condition 3(8), concerning soil erosion and sediment control, should not be imposed, as I accept the submission of the Applicant that this is not required in relation to the works proposed under the Proposed Development; 2. Proposed condition 3(9), concerning a requirement for a Dilapidation Report in relation to an adjoining property should not be imposed, as its proposed deletion was not opposed by the Respondent; 3. Proposed condition 3(11), concerning a requirement for a Dilapidation Report in relation to Council property, should be imposed, as I accept the submission of the Respondent that it is possible that the construction works to be undertaken in relation to the Proposed Development could impact on Council property; 4. Proposed condition 3(13), concerning the Construction Waste Management Plan, should be imposed and is not amended as is indicated within the draft conditions tendered as evidence in Exhibit P; 5. Proposed condition 3(14), concerning various management plans should be imposed, in the following, amended, form: "(14) site and environmental management plans - Should any remediation works be required in relation to fill on the site, and in accordance with an approved remediation action plan (RAP), an environmental management plan and an occupational health and safety plan, to address all relevant legislative requirements and environmental impacts, are required to be completed prior to the commencement of any remediation works that may be undertaken on the site. Should remediation works be required, and should these plans be prepared, the plans are to be prepared by the remediation contractor, and must address any requirements within the RAP." 1. 4.0 During Works 1. Proposed condition 4(4) concerning stormwater collection and discharge, should be imposed, and should not be amended as proposed by the Applicant, as its provisions are reasonable in my assessment. The reference within the proposed condition to overflows from rainwater tanks may be deleted if the Applicant confirms that no rainwater tanks are proposed as part of the Proposed Development; 2. Proposed condition 4(6), concerning building height, should be imposed, as I accept the submission of the Respondent that confirmation as to compliance of the Proposed Development with the relevant height standard is appropriate; 3. Proposed condition 4(7), concerning a survey report, should not be imposed, as I accept the Applicant's annotated comment in Exhibit P, and the Respondent did not object to the Applicant's submission that it is unnecessary. 4. Proposed conditions 4(12), 4(14), 4(15) and 4(17), should be deleted, as proposed by the Applicant, and as not opposed by the Respondent, as they are not relevant to the Proposed Development; 5. Proposed condition 4(19), concerning Unexpected Finds Contingency (General) should be imposed as amended by the Applicant, and as provided within Exhibit P, as its provisions recognise that any remediation undertaken by the Applicant will require consent; 6. Proposed condition 4(20), concerning Unexpected Finds Contingency (Remediation), should be imposed, as I accept the submission of the Respondent that its provisions are reasonable; 1. 5.0 Prior to Issue of an Occupation Certificate 1. Proposed conditions 5(8) and 5(9), concerning the requirement for a positive covenant and a Stormwater Plan of Management, should be imposed as proposed by the Respondent, and the Applicant's proposed alternate condition 5(8) is not imposed at this position, as I accept the Respondent's submission that these are reasonable requirements to ensure the proper management of stormwater on the Subject Site; 2. Proposed condition 5(10), concerning a requirement for a validation report, should not be imposed, as proposed by the Applicant, and as not opposed by the Respondent, as a Validation Report has already been provided by the Applicant; 3. Proposed condition 5(14), concerning operation of on-site sewerage works, should be imposed as the Proposed Development, while not proposing construction of the system, will require its operation, and I accept the submission of the Respondent that approval to operate the system should be obtained and is of relevance to the Proposed Development; 4. Proposed condition 5(17A), concerning certification of the site stormwater infrastructure, should be imposed, as it substitutes the condition referred to above at [(a)] as 'the Applicant's proposed alternate condition 5(8)'. It should be re-numbered as condition 5(18). 1. 6.0 Ongoing Use 1. Proposed condition 6(5), concerning Industrial Uses, should be imposed, as proposed by the Respondent, noting that this is consistent with my findings below at [(c)] in relation to proposed condition 6(11); 2. Proposed condition 6(6), concerning Loading, should be imposed but with the deletion of the second sentence, as proposed by the Applicant, as there is no loading dock proposed as part of the Proposed Development; 3. Proposed condition 6(11) should be imposed, retaining the first sentence which the Applicant has proposed be deleted, because, as submitted by the Respondent: 1. the Applicant's amended plans have removed its previously proposed outdoor storage area; 2. as recognised by the planning experts in their joint report, the removal of the storage racks in the proposed outdoor storage area was the basis for resolution of certain particulars relating to a contention concerning the achievement of an attractive streetscape. 1. In relation to my finding above at [116(6)(c)] that proposed condition 6(11) should be imposed if the Applicant's Proposed Development were approved, I note the submission of the Applicant (see above at [11]) that the modified CDC issued by Newland Wood Building Certification includes approval of certain storage racks and outdoor storage on the hardstand bitumen area identified in the plan that accompanied the modified CDC. I do not embrace this submission for the following reasons: 1. the storage racks and outdoor storage referenced by the Applicant in its submissions are not explicitly included in either the CDC or the modified CDC as part of the "Scope of Building Works Covered by this Certificate"; 2. the Applicant's modified CDC specifically excludes the approval of "buildings", notwithstanding, as identified by the Applicant in its submissions, that certain buildings were represented on the plan accompanying modified CDC; 3. as identified above at [19], the EP&A Act definition of a "building", which also applies to the interpretation of SEPP Codes, includes "any structure or part of a structure (including any temporary structure or part of a temporary structure)"; 4. it is my assessment that the storage racks included on the plan accompanying the CDC are a structure or part of a structure (including any temporary structure or part of a temporary structure), and consequently are consistent with definition of a "building" under the EP&A Act, and so are excluded from approval under the modified CDC. 1. As the Applicant's storage racks do not form part of its amended plans in this appeal (see above at [116(6)(c)], and because, for reasons provided above at [117], the racks are excluded from the approval provided under the modified CDC, the imposition of proposed condition 6(11), requiring that the storage of goods and materials shall be confined within the building, is appropriate in my assessment. Respondent seeks to re-list appeal 1. Following the conclusion of the hearing and prior to judgment being issued in this matter, the Respondent filed for the matter to be re-listed before the Court on 9 August 2019, to address matters set out in an affidavit of Mark Skinner, an officer of the Respondent Council, in relation to building works on the Subject Site that had commenced. These works related to the construction of a site office on the Subject Site that constituted one part of the Applicant's Proposed Development (see above at [5]). 2. On 9 August 2019, and in response to the Respondent's application, the matter was listed for a further mention before me on 30 September 2019, at which time the Parties submitted that, should the Court be minded to grant consent to the Applicant's Proposed Development, this should not include retrospective approval for the works undertaken by the Applicant following the conclusion of the hearing. 3. The Parties confirmed that, should the Court be minded to grant consent to Applicant's Proposed Development, their agreed submission was that the matter of the construction of the site office should be addressed by the imposition of a condition of consent that would exclude that site office structure, referred to by the Applicant as a 'temporary office', from forming part of any approval that may be granted under the development application that is the subject in this appeal. 4. In order to give effect to this agreement, the Parties submitted the following agreed condition of consent for the consideration of the Court: "The proposed temporary office shown on Drawing Nos. D01b, D02b and D06b in the south-eastern corner of the site is not approved by this development consent." 1. The Parties noted that they had submitted differing versions of draft conditions of consent to the Court in support of its preparation of judgment in this matter. The Parties said that they agreed that the above proposed condition should be inserted at the conclusion of a table provided at draft Condition 1 within either of the Parties' versions of the draft conditions the Court should the Court conclude that consent should be granted to the Applicant's Proposed Development. 2. Further, the Parties submitted that the words "Provision of a temporary site office and" should also be deleted from the description of the development in the first dot point paragraph of their respective draft conditions of consent documents tendered as evidence at the hearing. 3. Following consideration of the agreed submissions of the Parties, I am satisfied that the recommendations of the Parties in relation to the matter of the so-called 'temporary office' should be adopted in relation to the grant of consent to the Applicant's Proposed Development. Conclusions 1. Having considered the submissions of the Parties, and the evidence of the experts, I am satisfied that: 1. the Applicant's Proposed Development is 'generally in accordance' with the ILP, as required under the controls in clause 2.2 of the DCP, for reasons provided at [58]; 2. the Applicant's Proposed Development, with the imposition of the conditions of consent identified above at [70], is adequate for the management of drainage and stormwater on the Subject Site, including in relation to the relevant provisions of the ILP; 3. the matters related to contamination arising from the importation of asphalt onto the Subject Site are resolved by the imposition of the condition of consent identified above at [80]; 4. the Applicant should be required to make a financial contribution as required under the Respondent Council's CGACP, and the amount of the contributions payable should reflect the findings in this judgment at [102(3)], [107], [110] and [112], and a revised draft condition (22) to reflect those findings should be imposed as part of the grant of consent for the Applicant's Proposed Development; 5. if granted consent, the findings in this judgment concerning other proposed conditions of consent addressed above at [116] should be incorporated into final conditions of consent to be prepared and filed by the Parties; 6. the recommendations of the Parties in relation to the matter of the so-called 'temporary office' (see above at [125]) should be adopted in relation to the grant of consent to the Applicant's Proposed Development. 1. Consequently, I conclude that the Applicant's Proposed Development should be approved, subject to conditions reflecting the findings of this judgment, including those identified above at [126]. 2. As previously identified, at the hearing, and following its conclusion, the Parties provided differing draft conditions of consent that reflected their differing submissions on this matter. 3. Based on the findings and conclusions in this judgment, these differing draft conditions of consent should now be reconciled by the Parties, and final agreed conditions of consent should be prepared and filed for use by the Court in finalising judgment in this matter. 4. As a consequence, the Court makes the directions provided at [131] in order to dispose of this appeal. Directions 1. The Court directs that: 1. the Parties are to file with the Court, by no later than 4pm on Wednesday, 23 October 2019, final agreed conditions of consent, reflecting the findings in this judgment, including the conclusions at [126]; 2. the matter is listed for mention at 4:00pm on Friday, 25 October 2019, at Court; 3. should the Parties comply with direction [(1)] above, the mention on Friday, 25 October 2019 will be vacated; 4. the Parties are granted liberty to restore on 3 days' notice. Addendum 1. On 16 October 2019, the Parties were directed to agree, and file with the Court, by no later than Wednesday 23 October 2019, settled conditions of consent, reflecting the conclusions in the Court's judgment in this matter. 2. The Parties have now agreed settled conditions of consent reflecting the conclusions in the Court's judgment, and a jointly agreed submission of the Parties, which I accept, that proposed condition 1(2)(j) concerning stormwater management, should not be imposed. As the Parties' agreed conditions of consent have now been filed, the Court is able to make final orders. Orders 1. The orders of the Court are: 1. The appeal is upheld; 2. Development application DA 2018/1502/1 for development of land and construction of an industrial shed at 244 Ingleburn Road, Leppington, also identified as Lot 16A in DP 8979, is determined by the grant of consent, subject to the conditions provided at Annexure 'A' to this judgment; 3. The exhibits are returned, with the exception of Exhibits A and 2. …………………………… Michael Chilcott, Commissioner of the Court Amendments 30 October 2019 - See Addendum for Final Orders made on 30 October 2019 at [132]-[134] 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: 30 October 2019