Ior Pty Ltd v Hay Shire Council

Texts Cited: Hay Community Participation Plan 2024
NSW Rural Fire Service, Planning for Bush Fire Protection, November 2019

Category: Principal judgment

Parties: Ior Pty Ltd (Applicant)
Hay Shire Council (Respondent)

Representation: Counsel:
C Cleary (Solicitor) (Applicant)
J McKenzie (Solicitor) (Respondent)
Solicitors:
Mills Oakley (Applicant)
Kell Moore Lawyers (Respondent)

File Number(s): 2025/491858

Publication restriction: Nil

Judgment

COMMISSIONER:

Background

1. This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by the applicant against the respondent’s refusal of the applicant’s development application DA 2024-67 (Development Application) for the proposed erection of a new unmanned truck refuelling facility and with ancillary double ablutions block to operate 24 hours per day seven days per week on land identified as Lot 2 in Deposited Plan 1212081, known as 310 Moama Street, Hay South (Subject Land).

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

The Development Application

3. The Development Application was lodged with the respondent in January 2025.

4. The Development Application was publicly notified in accordance with the Hay Community Participation Plan 2024 and eleven objections were received in response to the notification.

5. On 19 June 2025, the Development Application was refused by the respondent.

6. On 18 December 2025, the proceedings were commenced by the applicant, being within the appeal period prescribed by s 8.10 of the EPA Act.

7. Following without prejudice discussions between the parties, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. The decision agreed upon is for the grant of consent to the Development Application, as amended, subject to conditions of consent (Amended Development Application). The signed agreement is supported by an agreed jurisdictional statement.

8. The agreed amendments include:

9. provision of a 2.4m high acoustic fence internal to the Subject Land screening the refuelling areas;

10. provision of a 2m high screening fence to the highway frontage; and

11. increased landscaping and quantity of mature trees screening the highway frontage.

12. The Court arranged a conciliation conference under s 34 of the LEC Act between the parties, which was held on 13 March 2026. I presided over the conciliation conference.

13. 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.

Jurisdictional considerations

11. 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). I form this state of satisfaction for the reasons that follow.

Owner’s consent

12. The registered proprietor of the Subject Land provided consent to the Development Application when it was lodged with the respondent (see Class 1 Application, tabs 2 and 11).

EPA Act

13. The Amended Development Application is integrated development under s 4.46 of the EPA Act as the Subject Land has a frontage to classified road such that authorisation from Transport for NSW (TfNSW) is required under s 138 of the Roads Act 1993 (NSW) (Roads Act). In accordance with s 4.47 of the EPA Act, on 3 March and 10 November 2025, TfNSW issued its General Terms of Approval in relation to the proposal which have been incorporated into the agreed conditions of consent (see Conditions 35-41).

14. The parties agree that s 4.14 of the EPA Act applies to the Amended Development Application as the Subject Land is identified as being bush fire prone land. Section 4.14(1)(a) of the EPA Act relevantly provides that development consent cannot be granted for development on bush fire prone land unless the consent authority is satisfied that the development conforms to the specifications and requirements of Planning for Bush Fire Protection 2019 (PFBP).

15. The Development Application was referred to the NSW Rural Fire Service (RFS) and on 14 May and 4 November 2025, RFS provided comments in support of the proposal, subject to conditions. The Amended Development Application is supported by a Bushfire Management Report prepared by Building Code & Bushfire Hazard Solutions Pty Ltd dated 3 April 2025 (Bushfire Report), which confirms that the Amended Development Application conforms to the specifications and requirements of PFBP. The agreed conditions of consent require compliance with the Bushfire Report and requirements of RFS (see conditions 31A-34).

16. The parties agree, and I accept that, the Amended Development Application conforms to the specifications and requirements of PFBP and there is no impediment to the grant of consent under s 4.14(1) of the EPA Act.

State Environmental Planning Policy (Resilience and Hazards) 2021

17. Chapter 3 of the State Environmental Planning Policy (Resilience and Hazards) 2021 (RH SEPP) applies to development which is “potentially hazardous or offensive”. As set out in the Amended Statement of Environmental Effects prepared by TFA Project Group dated 19 September 2025 (Amended SEE) (see p 20), consideration has been given as to whether the proposal meets the definition of “potentially hazardous or offensive industry”. The parties agree, and I accept that:

18. the proposal has been designed to ensure that combustible liquids are situated and stored in a separate bunded area where no flammable liquids are located; and

19. the proposal does not propose potentially hazardous or offensive industry and Ch 3 of the RH SEPP therefore does not apply to the Amended Development Application.

20. Section 4.6(1) of the RH SEPP provides that a consent authority must not consent to the carrying out of any development on land unless:

21. it has considered whether the land is contaminated; and

22. 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

23. 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.

24. The Amended Development Application is accompanied by a Preliminary Site Investigation prepared by DM McMahon dated 13 July 2023 (PSI) which concludes that the Subject Land:

25. is not currently contaminated, nor is there a history of contamination on the Subject Land;

26. is well maintained with no indicators of gross contamination;

27. has historically been used for agricultural purposes and as such, low levels of pesticides have been identified, however, have been assessed to be of low significance in terms of risk to current and future site users; and

28. is suitable for the proposed development.

29. The Environment Protection Authority (EPA) confirmed on 11 March 2025 that it had no comments in relation to the proposal. The parties agree, and I accept that, having regard to the PSI, the matters in s 4.6(1) of the RH SEPP have been considered and the Subject Land is suitable for the proposed development.

State Environmental Planning Policy (Transport and Infrastructure) 2021

21. Section 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (TI SEPP) applies to the Amended Development Application as the Subject Land has a frontage to a classified road (Moama Street/Stuart Highway). The parties agree, and I accept that, the proposed access will be via University Road and having regard to the Traffic Impact Assessment prepared by TTPP Transport Planning dated 19 September 2025 (Traffic Assessment) and agreed conditions of consent (see Conditions 35-41), the matters listed in s 2.119(2) of the TI SEPP are satisfied.

22. Section 2.122 of the TI SEPP also applies to the Amended Development Application as the development is classified as traffic-generating development. TfNSW has provided its support to the proposal subject to conditions which have been incorporated in the agreed conditions of consent (see Conditions 35-41). The parties agree, and I accept that, the matters listed in s 2.122(3) and (4) of the TI SEPP are satisfied.

State Environmental Planning Policy (Industry and Employment) 2021

23. The parties agree that Ch 3 of the State Environmental Planning Policy (Industry and Employment) 2021 (Employment SEPP) applies to the Amended Development Application as signage is proposed which will be within 250m of a classified road. Pursuant to s 3.6 of the Employment SEPP (and see also relevantly s 3.11(1)), a consent authority must not grant consent to an application to display signage unless the consent authority is satisfied that:

24. the signage is consistent with the objectives of Ch 3 set out in s 3.1(1)(a); and

25. the signage the subject of the application satisfies the assessment criteria specified in Sch 5.

26. Having regard to the analysis in the Amended SEE (see pp 21-23) and Signage Plans prepared by emSigns dated 22 July 2019, the parties agree and I accept that the proposed signage is consistent with the objectives of Ch 3 and assessment criteria in Sch 5.

27. In determining the Amended Development Application, I confirm that I am satisfied of the matters set out in ss 3.6 and 3.11 of the Employment SEPP.

Hay Local Environmental Plan 2011

26. The Subject Land is zoned RU1 Primary Production under the Hay Local Environmental Plan 2011 (HLEP). The proposed service station is permitted with consent on the Subject Land by operation of cl 2.5 and Sch 1 of the HLEP (additional permitted uses). I have had regard to the zone objectives which are extracted below:

1 Objectives of zone

• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.

• To encourage diversity in primary industry enterprises and systems appropriate for the area.

• To minimise the fragmentation and alienation of resource lands.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

27. The Subject Land is not subject to a maximum building height or floor space ratio control under the HLEP.

28. Pursuant to cl 5.21 of the HLEP relating to flood planning, the consent authority must be satisfied of the matters set out in cl 5.21(2) and consider the matters in cl 5.21(3) before granting consent. The Subject Land is affected by the 1% Annual Exceedance Probability (AEP) food event. Accordingly, the Amended Development Application proposes to locate the fuel tank above ground, outside of the area in proximity to the flood line and above the 1% AEP flood level, and to secure the tank to a concrete apron slab which has an internal bund. Further, the Department of Climate Change, Energy, the Environment and Water (DCCEEW) has considered the design and noted that “the Department considered that the flood risks are low, and the site is suitable for this type of development” (see Business Paper – Ordinary Meeting 16 December 2025, p 300).

29. The parties therefore agree, and I accept, that the matters listed in cl 5.21(2) and (3) of the HLEP are satisfied and have been considered, respectively.

30. Pursuant to cl 6.1 of the HLEP relating to earthworks, the consent authority must consider the matters listed in cl 6.1(3) before granting consent. The parties agree, and I accept, that the Amended Development Application proposes minor earthworks and are not considered likely to adversely impact or cause risk to the Subject Land or surrounds. Further, the earthworks will be managed in accordance with the Amended Engineering Plans prepared by TFA dated 19 September 2025 (Amended Engineering Plans) and Stormwater & Oily Water Management Statement prepared by TFA dated 20 December 2024 (Stormwater Management Statement). Therefore, there is no impediment to the grant of development consent having regard to the matters listed in cl 6.1(3) of the HLEP.

31. Pursuant to cl 6.2 of the HLEP relating to essential services, development consent must not be granted to development unless the consent authority is satisfied that services essential for the development are available or that adequate arrangements have been made to make them available. The parties agree, and I accept, that all essential services will be provided having regard to the Building Plans prepared by ATCO dated 31 August 2020, Amended Engineering Plans, Sewerage Specifications prepared by Aqua Nova (undated), Stormwater Management Statement and agreed conditions (see Conditions 33 and 35-37).

32. Pursuant to cl 6.9 of the HLEP relating to groundwater vulnerability, the consent authority must consider the matters set out in cl 6.9(3) and be satisfied of the matters set out in cl 6.9(4). The parties agree, and I accept, that the matters set out in cl 6.9(3) and (4) of the HLEP have been satisfied and considered, having regard to the following:

33. The proposed works are located within a part of the Subject Land which is not identified on the Groundwater Vulnerability Map.

34. The implementation of the measures set out in the Amended Engineering Plans and Stormwater Management Statement will ensure the highest level of protection against fuel spills and incorporate water sensitive urban design measures to significantly improve the quality of the stormwater discharged from the Subject Land.

35. Pursuant to cl 6.10 of the HLEP relating to terrestrial biodiversity, the consent authority must consider the matters set out in cl 6.10(3) and be satisfied of the matters set out in cl 6.10(4) prior to granting consent. The parties agree, and I accept, that the relevant matters in cl 6.10(3) and (4) have been considered and satisfied, respectively, having regard to the following:

36. The proposed works are located within a part of the Subject Land which is not identified on the Terrestrial Biodiversity Map.

37. The proposal is not likely to have an adverse impact on the condition, ecological value and significance of the area of terrestrial biodiversity.

38. The EPA, DCCEEW and Department of Primary Industries – Agriculture, have considered the proposal and raised no concerns regarding biodiversity (see Business Paper – Ordinary Meeting 19 June 2025, p 303 and Business Paper – Ordinary Meeting 16 December 2025, pp 300-303).

Remaining matters in s 4.15(1) of the EPA Act

34. The matters set out in s 4.15(1)(a), (b) and (c) have been considered above to the extent they are relevant to the Amended Development Application (see also pp 24-25 of the Amended SEE).

35. In relation to s 4.15(1)(d) of the EPA Act, the Development Application, as lodged, was publicly notified in accordance with the Hay Community Participation Plan 2024 and eleven objections were received in response to the notification. The objections raised concerns including:

36. traffic;

37. noise;

38. visual amenity; and

39. light pollution.

40. I am satisfied that the concerns raised have been taken into consideration in the assessment and determination of the Amended Development Application.

41. The parties agree that the Amended Development Application, in conjunction with the Agreed Conditions, are in the public interest for the purposes of s 4.15(e) of the EPA Act (see also p 25 of the Amended SEE).

Conclusion

38. 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.

39. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

40. The Court notes that:

41. The respondent, as the relevant consent authority, has agreed under s 37 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the applicant amending development application no DA 2024-67 to include the following material:

| Tab | Document | Date | | 17. | Letter from TFA | 19 September 2025 | | 18. | Amended Statement of Environmental Effects (Rev D), prepared by TFA | 19 September 2025 | | 19. | Amended Engineering Plans [Rev J] prepared by TFA | 19 September 2025 | | | No. | Description | | • | 001 | DA Issue | | • | 002 | Proposed Site Layout | | • | 003 | Proposed Swept Paths | | • | 004 | Fuel Dispensing Area | | • | 005 | Elevation South to North | | • | 006 | Elevation West to East | | • | 007 | APZ – Inner Protection Zone | | 22. | Notification Plans [Rev A], prepared by TFA | 21 October 2025 | | | No. | Description | | • | 008 | Notification Plan Sheet 1: s8.2 Layout Changes | | • | 009: | Notification Plan Sheet 2: s8.2 Comparison Perspectives | | 26. | Concept Landscape Plan No. SK10 (Rev B), prepared by TFA | 19 September 2025 | | 27. | 3D Renders Package, prepared by TFA (10 Sheets) | - | | 28. | Amended Traffic Impact Assessment (v04), prepared by TTPP | 19 September 2025 | | 29. | Amended Cost Summary Report (Rev B) prepared by TFA | 1 October 2025 | | 30. | Bushfire Assessment Report, prepared by Building Code & Bushfire Hazard Solutions Pty Ltd | 3 April 2025 | | 31. | Light Spill Analysis prepared by Light Harmony | 19 September 2025 | | 32. | Land Use Critical Risk Assessment (Rev E), prepared by TFA | 19 September 2025 | | 33. | Letter of Owners Consent (s8.2 Review) | 12 September 2025 | | 34. | Onsite Sewerage Management System Brochure and Accreditation (Aqua Nova) | - |

2. The applicant filed the amended plans and documents outlined above with the Court on 18 December 2025.
3. The parties agree, and I accept, that the amendments are minor.

Orders

41. The Court orders that:

42. The appeal is upheld.

43. Development consent is granted to Development Application No DA 2024-67 for the erection of a new unmanned truck refuelling facility, with ancillary double ablutions block and operating 24 hours/day, seven days/week on the land described as Lot 2 in Deposited Plan 1212081 and known as 310 Moama Street, Hay South, subject to the conditions in Annexure A.

N Targett

Commissioner of the Court

Annexure A (334 KB, pdf)

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