Hy-Tec Industries PTY LTD v City of Parramatta Council

Land and Environment Court (NSW)|2023-07-25

Judgment

COMMISSIONER: On 28 January 2022 the Court granted consent to DA/749/2021 for the installation and operation of a temporary concrete works for production of premixed concrete at 37A Grand Avenue, Camellia (being Lease Area 5) on the land legally described as Lot 2 in Deposited Plan 539890, subject to condition in Annexure A to the judgment Hy-Tec Industries v Parramatta City Council [2022] NSWLEC 1041 (DA) (2022 judgment).
Condition 2 of the DA provided that the consent was granted for a period of 18 months, being due to expire on 28 July 2023.
On 3 July 2023 the Applicant, Hy-Tec Industries Pty Ltd (Hy-Tec),(Hy-Tec) filed an application pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to extend the period of the DA for a further six months, thus expiring on 28 January 2024. The proposed modification of Condition 2 is as follows: "Consent is granted for a period of twenty-four (24) months. The consent shall expire after twenty-four (24) months from the date of this determination."
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 24 and 25 July 2023. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the appeal being upheld, and the Court approving the modification application to the DA, subject to conditions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under subss 4.55(8) and (1A), to approve the modification application to the DA. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings as set out below and parties explained how the jurisdictional prerequisites have been satisfied.

Background

Since commencing its business in the late 1990's Hy-Tec has always owned and operated a concrete plant in the City of Parramatta Local Government Area (Affidavit, Darryl William Thiedeke, 2 July 2022 at par 6).
Hy-Tec's plant was originally located at 155-159 Adderley Street, Auburn, until this site was compulsorily acquired by Transport for NSW (TfNSW) for the construction of Westconnex in 2015. As a consequence of the compulsory acquisition by TfNSW, Hy-Tec acquired land at 6 Shirley Street, Rosehill and established a replacement plant on that site (Affidavit, Darryl William Thiedeke, 2 July 2022 at par 9).
Hy-Tec's plant at 6 Shirley Street, Rosehill was compulsorily acquired by Sydney Metro West in 2022 for its Metro West project. As a consequence of this compulsory acquisition, Hy-Tec acquired land at 10A Grand Avenue, Rosehill and has been constructing a permanent replacement plant on that site (Affidavit, Darryl William Thiedeke, 2 July 2022 at par 9).
Due to Sydney Metro West's acquisition timetable, it was clear that the permanent plant at 10A Grant Avenue would not be commissioner before Hy‑Tec surrendered its land at 6 Shirley Street Rosehill, so Hy-Tec leased land at 37A Grand Avenue Camellia for a temporary plant to ensure that it would not suffer any gap in production, being the current DA (Affidavit, Darryl William Thiedeke, 2 July 2022 at par 11).
Due to delays associated with the construction of the permanent plant at 10A Grand Avenue, Rosehill, it will not be possible to commission this plant before the DA for the temporary plant expires. There are various reasons for the delay, one being that before Hy-Tec could commence construction it was required to obtain approval from TfNSW for a Construction and Pedestrian and Traffic Management Plan. The process for obtaining the consent to the Plans from TfNSW took longer than anticipated, and a construction certificate was not obtained until 20 October 2022 (Affidavit, Darryl William Thiedeke, 2 July 2022 at par 22).
On 25 July 2023 Hy-Tec filed a Notice of Motion to amend the Class 1 Application by: 1. Inserting at the end of proposed Order (1): "At the time this consent expires the operation of a concrete batching facility shall cease operation and any infrastructure associated with the concrete batching facility (with the exception of the 165mm concrete capping on the site) is to be removed". 2. Attaching a "Modification Application" schedule.
The Council consented to short service of the Motion, and consented to the terms of the motion.
On 25 July 2023, the Senior Deputy Registrar made the following Orders in relation to the Applicant's Notice of Motion dated 25 July 2023. "(1) The Notice of Motion filed 25 July 2023 is granted. (2) The Applicant is granted leave to rely on the amended Class 1 Application form annexed to the Notice of Motion filed 25 July 2023."

Jurisdictional Prerequisites

The application to the Court falls under Class 1 of the Court's jurisdiction pursuant to s 17(d) of the LEC Act.
Hy-Tec filed the modification with the owner's consent from Camellia Grande Pty Limited dated 14 July 2023.
Camellia Grande Pty Limited granted a lease to Hy-Tec for Lease Area 5 at 37A Grande Avenue, Camillia (Lease Area 5) for a term of two years expiring on 28 February 2023 with an option to renew for one year. Hy-Tec exercised its option to renew its lease for a further term of one year on 11 October 2021. Hy-Tec's lease now has an expiration date of 28 February 2024.
The Lease Area 5 provided in the Schedule to Annexure A, Item 10, that Hy‑Tec may use the premises for: "Any activity associated with the operation of a concrete batching plant and production, distribution and sale of concrete, sand, soil, aggregate, bagged cement, concrete products, and any similar or related products, storage and maintenance of trucks and other vehicles and operation of a sales and administration office."
In order for the Court to be satisfied that it has the power to make the order under s 4.55(8) of the EPA Act, it must be satisfied that the other relevant requirements of that section have been met. Section 4.55 (8) provides - (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.
Hy-Tec has made its application for modification pursuant to s 4.55(1A) as it contends the modification is of minimal impact. Section 4.55(1A) provides: (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification.
The parties have identified the following issues, and explained how they have been satisfied.

Minimal Environmental Impact

The Court must be satisfied that the modification is of minimal environmental impact (s 4.55(1A)(a)). Jagot J explains in Bechara v Plan Urban Services Pty Ltd (2006) 149 LGERA 41; [2006] NSWLEC 594 at [57]: "[57] In King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505 at [84], I said that "minimal", in the context of s 96 construed as a whole, must take its ordinary meaning of "very small" or "negligible". The "minimal" requirement qualifies the "environmental impact" of the proposed modification, rather than the proposed modification itself - which is subject to the "substantially the same" requirement in s 96(1A)(b). Hence, the focus must be on the impact or effect of the modification on the environment. Given the very broad and inclusive definition of "environment" in s 4(1) of the EPA Act, it is necessarily a matter for the consent authority to identify for itself the relevant categories of potential impacts."
As the modification relates only to an extension of the already approved development, then the parties submit that the environmental impacts will be minimal.

Substantially the same development:

The Court must be satisfied that the development to which the consent as modified relates is substantially the same development as the development in the original DA. The principles applicable to this statutory test were set out by Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85 at [18] to [21], [24], [25], [27] and [28].
When compared to the DA, the parties agree that the proposed modification, both qualitatively and quantitatively, the subject of the DA is essentially or materially the same because the substance of the development remains unchanged other than the fact that it will continue to an additional six-month period.

Notification:

The Court is required to be satisfied that the City of Parramatta Council (Council) has fulfilled the function imposed on it under s 4.55(1A)(c), as required by s 4.55(8) of the EPA Act. Section 4.55(1A)(c) of the EPA Act requires that the Council must notify the application in accordance with the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) and any applicable development control plan.
Both the EPA Regulation and Parramatta Development Control Plan 2011 (PDCP 2011) set out instances where Council will notify modification applications.
Section 105(2) of the EPA Regulation provides that "if a modification application is required by a community participation plan to be notified or advertised and the development consent was granted by the Court on appeal, the modification application must be notified or advertised by the consent authority to which the original development application was made."
The City of Parramatta Community Engagement Strategy 2022-2024 (CES) is a 'community participation plan' for the purposes of the EPA Act. The modification is not required to be notified under the CES per table at 10.4 which states: "10.4 Applications for modification of development Consent … Section Type of Modification Notification s 4.55(1A) Modification involving minimal environmental impact (Where no physical changes to an original consent/no visible external change to an approved development is proposed No notification s 4.55(1A) Modification involving minimal environmental impact. (Where physical changes proposed or modifications generate appreciable impacts to surrounding development Notification as per the original

The proposed modification requires no physical or external changes to the DA. The parties agree there is no requirement to notify the modification.
This position accords with the similar requirements in PDCP 2011 at Section A5.5.1(a). The parties note the decision supporting this proposition in TL & TL Tradings Pty Ltd v Parramatta City Council [2019] NSWLEC 1372 at [7].

Matters for consideration under ss 4.55(3) and 4.15(1) of the Environmental Planning and Assessment Act.

Section 4.55(3) requires the Court to take into consideration matters of relevance in s 4.15(1) of the EPA Act. There are no physical changes to the DA. I have perused the judgment of Morris AC in the 2022 judgment Hy-Tec Industries v Parramatta City Council and note that the Court dealt comprehensively with s 4.15(1) issues before granting the DA.
I further note the advice from Council that the issues raised by the objectors in the original proceedings were comprehensively address, as set out in the 2022 judgment. This is further confirmed by the fact that Council advises it has not received any complaints in relation to the DA since it became operational, from either the original objectors or any other person or entity.
I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I accept the submissions made by the parties as set out above.
As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
In accordance with subss 4.55(1A) and (8), I shall approve the modification application to amend condition 2 to grant an extension of time for the DA for a further six month period, now to expire on 28 January 2024, subject to the modified condition 2 as set out in tracking in Annexure A, and the consolidated DA conditions in Annexure B.
The Court orders: 1. The appeal is upheld. 2. The modification to DA/749/2021 for the installation and operation of a temporary concrete works for production of pre-mixed concrete on Lot 2, DP 539890 (being Lease Area 5) on the land known as 37A Grand Avenue, Camellia is approved as set out in Annexure A, and as set out in the consolidated conditions of consent in Annexure B. 3. No order as to costs.

Annexure A Annexure B DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2023

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