Anderson NSW Pty Ltd v Georges River Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Texts Cited: Georges River Development Control Plan 2021

Category: Principal judgment

Parties: Anderson NSW Pty Ltd (Applicant)
Georges River Council (Respondent)

Representation: Counsel:
A Boskovitz (Solicitor) (Applicant)
L Melvin (Solicitor) (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Georges River Council (Respondent)

File Number(s): 2024/400752

Publication restriction: No

JUDGMENT

1. COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application DA2022/0358. That development application seeks consent for the demolition of existing structures and the construction of 25 industrial units and 37 self-storage units over basement and ancillary works. The development is proposed at 51a Anderson Road, Mortdale NSW 2223 (Lot 142 DP 843446).

2. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 which was held 19 March 2025. No agreement was reached at the conciliation, and it was ultimately terminated on 27 May 2025 and the proceedings were listed for hearing. Notwithstanding the termination of the conciliation the parties continued negotiations and ultimately reached agreement on the terms of the resolution of the proceedings. That agreement is for the grant of the application, as amended, subject to conditions. The parties requested a further conciliation conference which was listed before me on 4 July 2025.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution. (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

4. The development application was lodged by the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

5. The development application was notified and advertised in accordance with the requirements of the Georges River Council Community Participation Plan from 27 September 2022 to 13 October 2022. No submissions were received.

6. Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The Applicant prepared a Detailed Site Investigation prepared by Australian Geoenviro dated 16 April 2025 (the 'DSI') and a Remedial Action Plan prepared by Australian Geoenviro dated 14 May 2025 (the 'RAP'). The DSI concludes that the Site can be made suitable for the proposed industrial and self-storage use subject to works as proposed in the RAP. The Council has imposed conditions of consent which require compliance with these documents. Section 4.6 of SEPP RH is satisfied.

7. Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) addresses vegetation in non-rural areas. The parties agree, and I accept, that the amended development application proposes the retention of a mature tree on the existing site and the development application proposes landscaping works. The parties agree, and I accept, that I can be satisfied that the amended development application has given due consideration to the provision of vegetation.

8. The Site is located within the Georges River Catchment in accordance with the maps associated with the SEPP BC and is subject to the provisions in Chapter 6 of the SEPP BC, but it is located outside the Foreshores and Waterways Area identified in the relevant map (see s 6.28 of the SEPP BC).

9. In deciding whether to grant development consent, the consent authority must consider ss 6.6(1), 6.7(1), 6.8(1) and 6.9(1) in Ch 6 which require consideration of the impacts of development on land located within the Georges River Catchment, which is a "regulated catchment" as defined in Schedule 6 - Dictionary to Chapter 6 of the SEPP BC.

10. Sections 6.6(2), 6.7(2), 6.8(2) and 6.9(2) in Div 2 of Part 6.2 of the SEPP BC precludes the grant of consent to development on land in a regulated catchment unless the consent authority is satisfied as to various matters relating to:

(a) water quality and quantity; (b) aquatic ecology; (c) flooding; (d) recreation and public access; and (e) total catchment management.

8. The Applicant’s development application includes stormwater engineering plans and modelling. On the basis of these stormwater plans and the development application as a whole I accept the agreement of the parties that:

(a) the stormwater plans for the Proposed Development ensure that:

(i) the effect on the quality of water entering a natural waterbody will be beneficial, noting the existing lack of filtration and other treatment mechanisms on the site; and (ii) the impact on water flow in a natural waterbody will be minimised (s. 6.6(2) of the SEPP BC).

(b) the Proposed Development:

(i) keeps to a minimum any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation; (ii) will not have a direct, indirect or cumulative adverse impact on aquatic reserves; (iii) minimises the erosion of land abutting a natural waterbody or the sedimentation of a natural waterbody; and (iv) minimises any adverse impact on wetlands (s. 6.7 of the SEPP BC).

(c) the Proposed Development is very unlikely to have any impact on periodic flooding that benefits wetlands and other riverine ecosystems (s. 6.8(1) of the SEPP BC). The site is not located within the flood planning area and so is not considered to be flood liable land for purposes of s 6.8(2) of the SEPP BC; (d) the Proposed Development does not affect recreational land use or public access to and from foreshores or natural waterbodies given the Site’s location (s. 6.9 of the SEPP BC); (e) the Proposed Development is not likely to have an adverse environmental impact on any adjacent local government area (s. 6.10 of the SEPP BC); and (f) the Proposed Development is not located within a natural waterbody (s 6.11)

9. The requirements of SEPP BC are met by the amended development application.
10. Section 2.48 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP) provides that prior to determining a development application, the consent authority must give written notice to the electricity supply authority for the area. The development application was referred to Ausgrid who raised no objections, subject to conditions. Those conditions are included in the conditions of consent. I am satisfied that the provisions of s 2.48 of the T&I SEPP has been met
11. The site is zoned E4 General Industrial pursuant to the Georges River Local Environmental Plan 2021 (LEP 2021). The proposed uses as light industrial warehouse and self-storage facility are permissible with consent in the E4 General Industrial zone. As required by cl 2.3 of LEP 2021 in granting consent to the development application I have given consideration to the objectives of the zone which are:

• To provide a range of industrial, warehouse, logistics and related land uses.

• To ensure the efficient and viable use of land for industrial uses.

• To minimise any adverse effect of industry on other land uses.

• To encourage employment opportunities.

• To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

• To encourage a range of uses that support the repair, reuse, recycling, remanufacturing and reprocessing of waste.

12. The development application is compliant with the height and floor space ratio development standards at cll 4.3 and 4.4 of LEP 2021.
13. Pursuant to cl 6.1 Acid Sulfate Soils in LEP 2021, the southern portion of the site is mapped within Class 2 and Class 5 Acid Sulfate soil. The Applicant prepared an acid sulfate soil assessment dated 17 March 2025. That report concludes that no further assessment is required. Clause 6.1 of LEP 2021 is satisfied.
14. Pursuant to cl 6.2 of LEP 2021, development consent is required for the proposed earthworks. In relation to required considerations at cl 6.2(3), With the assistance of the Geotechnical Report prepared by Australian Geoenviro dated 30 May 2022 I accept the agreed position of the parties that:

(a) the proposed earthworks are unlikely to have any detrimental impact on groundwater, (b) that the Site is unlikely to contain any items of historic significance, (c) that the Site is highly unlikely to be contaminated; and (d) that the earthworks are unlikely to have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items.

15. Further, in relation to required considerations at cl 6.3(2) Stormwater in LEP 2021, I accept the agreed position of the parties that:

(a) the development, as amended, is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water; (b) includes (as required by the Georges River Stormwater Management Policy) on-site stormwater detention or retention to minimise stormwater runoff volumes and reduce the development’s reliance on mains water; (c) avoids significant adverse impacts of stormwater runoff on adjoining properties, native bushland, receiving waters and the downstream stormwater system or, if the impact cannot be reasonably avoided, minimises and mitigates the impact; and (d) is designed to minimise the impact on public drainage systems.

16. Clause 6.9 'Essential services' of LEP 2021 provides that development consent must not be granted to a development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water,

(b) the supply of electricity,

(c) the supply of telecommunications facilities,

(d) the disposal and management of sewage,

(e) stormwater drainage or on-site conservation,

(f) suitable vehicular access.

17. The parties agree, and I accept, adequate arrangements have been made to make available the services that are essential to the development, noting the site is in a long-established industrial area and previously contained various industrial buildings.
18. Clause 6.10 ‘Design Excellence’ applies to the development application as it zoned E4 General Industrial. Pursuant to cl 6.10(4), development consent cannot be granted for development to which the clause applies unless the consent authority, after considering the matters at cl 6.10(5)(d)(i) to (xv), considers that the development exhibits design excellence. Having reviewed the amended development application against the matters for consideration at subcl (5) of cl 6.10, I am satisfied that the development application exhibits design excellence. My reasoning follows:

(a) Having reviewed the architectural plans, landscape plans and statement of environmental effects, I am satisfied that form, materials and detailing of the amended proposal achieve a high standard of architectural design; (b) The locality in which the Site is located in is industrial. The replacement of the existing built form with an industrial and self storage development that is consistent with desired future character will improve the quality and amenity of the public domain. (c) There are no nominated view corridors that will be impacted by the proposed development. (d) The matters listed at cl 6.10(5)(d)(i) to (xv) have been considered in the documents in support of the development application. I accept the agreement of the parties that the development appropriately addresses those matters.

19. Georges River Development Control Plan 2021 (DCP 2021) applies to the Site. The documents filed with the application detail the compliance of the proposed development with the relevant provisions of the DCP 2021. In determining the development application, I have considered the provisions of the development control plan: s 4.15(1) of the EPA Act.

20. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to, “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

21. In making the orders to give effect to the agreement between the parties, the parties have not raised, and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.

Notes

6. The Court notes that:

7. The Respondent, Georges River Council, as the relevant consent authority, has agreed under s 38(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application DA2022/0358 in accordance with the documents listed below:

Approved Plans

| Description | Reference No. | Date | Revision | Prepared by | | Architectural Plans | | Coversheet | A1000 | 19.05.2025 | E | BJB Architects | | Site Context | A1001 | 11.03.2025 | A | BJB Architects | | Site Analysis and Planning | A1002 | 11.03.2025 | A | BJB Architects | | Design Intent | A1003 | 11.03.2025 | A | BJB Architects | | Site Plan | A1005 | 19.05.2025 | E | BJB Architects | | Basement Floor Plan | A1100 | 19.05.2025 | E | BJB Architects | | Ground Floor Plan | A1101 | 19.05.2025 | E | BJB Architects | | Ground Floor Mezzanine Plan | A1102 | 05.05.2025 | D | BJB Architects | | First Floor Plan | A1103 | 05.05.2025 | D | BJB Architects | | First Floor Mezzanine Plan | A1104 | 09.04.2025 | C | BJB Architects | | Roof Plan | A1105 | 28.03.2025 | B | BJB Architects | | Sections | A1201 | 05.05.2025 | D | BJB Architects | | Sections | A1202 | 05.05.2025 | D | BJB Architects | | Sections Ramps | A1203 | 19.05.2025 | E | BJB Architects | | North and South Elevations | A1301 | 19.05.2025 | E | BJB Architects | | East and West Elevations | A1302 | 05.05.2025 | D | BJB Architects | | Floor Space Calculations | A1401 | 19.05.2025 | E | BJB Architects | | Perspective View – Site Entry | A1601 | 05.05.2025 | D | BJB Architects | | Perspective View – South East | 1602 | 05.05.2025 | D | BJB Architects | | Landscaping Plans | | Site Plan | LP00 | 31.03.2025 | D | Conzept Landscape Architects | | Landscape Plan 1 | LP01 | 31.03.2025 | D | Conzept Landscape Architects | | Landscape Plan 2 | LP02 | 31.03.2025 | D | Conzept Landscape Architects | | Elevations | LP03 | 31.03.2025 | D | Conzept Landscape Architects | | Detail and Specifications | LP04 | 31.03.2025 | D | Conzept Landscape Architects | | Civil Plans | | General Notes | C00.01 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Proposed Carpark Design Plan | C01.01 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Proposed Driveway Design Plan | C01.02 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | 'CL1' & 'CL2' Driveway Longitudinal Section | C01.03 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | 'CL3' Carpark Channel Longitudinal Section 1 | C01.04 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | 'CL3' Carpark Channel Longitudinal Section 2 | C01.05 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | 'CL3' Carpark Channel Longitudinal Section 3 | C01.06 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | 'CL3' Carpark Channel Longitudinal Section 4 | C01.07 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | 'CL3' Carpark Channel Longitudinal Section 5 | C01.08 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | 'CL3' Carpark Channel Longitudinal Section 6 | C01.09 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Bulk Earthworks Basement Level | C01.10 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Bulk Earthworks Ground Level | C01.11 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Stormwater Plans | | General Notes | ST00.01 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Sediment & Erosion Control Plan | ST01.01 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Roof Stormwater Drainage Plan | ST02.01 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | First Floor Mezzanine Stormwater Drainage Plan | ST02.02 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | First Floor Stormwater Drainage Plan | ST02.03 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Ground Mezzanine Stormwater Drainage Plan | ST02.04 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Ground Stormwater Drainage Plan – Sheet 1 | ST02.05 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Ground Stormwater Drainage Plan – Sheet 2 | ST02.06 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Basement Stormwater Drainage Plan | ST02.07 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | WSUD Music Model Catchment Plan | ST02.08 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Stormwater Drainage Details Sheet 1 | ST02.09 | 01.04.2025 | 4 | AE Structural & Civil Engineers | | Stormwater Drainage Details Sheet 2 | ST02.10 | 01.04.2025 | 4 | AE Structural & Civil Engineers |

Documents Relied Upon

| Documents/ Reports | | Remedial Action Plan | AG-833_2rv3 | 14.05.2025 | RV3 | Australian GeoEnviro Pty Ltd | | Detailed Site Investigation | AG-833_2rv2 | 16.04.2025 | V2 | Australian GeoEnviro Pty Ltd | | Arborist Report | CD2691-25-V2 | 12.05.2025 | V2 | Arborist Network | | Flood Impact and Risk Assessment Report | CC220188_FS | 3 April 2025 | 2 | Hydracor Consulting Engineers | | Design Compliance Certificate | 24671-C02[B] | 1 April 2025 | - | AE Structural & Civil Engineers |

Orders

7. The Court orders that:

8. Application DA2022/0358 (DA) for the demolition of existing structures and the construction of 25 industrial units and 37 self-storage units over basement and ancillary works on Lot 142 in Deposited Plan 843446, also known as 51a Anderson Road, Mortdale NSW 2223 is determined by the grant of consent subject to conditions contained in Annexure A.

9. The appeal is upheld.

10. The Applicant is to pay the Respondent’s costs thrown away in accordance with s 8.15(3) of the Environmental Planning and Assessment Act 1979, in the sum of nine thousand dollars ($9,000.00), within 28 days of the date of these orders being made.

D Dickson

Commissioner of the Court

Annexure A (407 KB, pdf)

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