JS Adventure Pty Ltd ATF The Adventure Trust v Sutherland Shire Council

Cases Cited: Big Property Group Pty Ltd v Randwick Council [2021] NSWLEC 1161
Gunnamatta Bay Holdings Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1230
Lahoud v Willoughby City Council (2024) 259 LGERA 419; [2024] NSWCA 163
Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117
TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 160
Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827
Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115

Texts Cited: Sutherland Shire Development Control Plan 2015
Department of Planning, Land Use Safety Study – Kurnell Peninsula, February 2007

Category: Principal judgment

Parties: JS Adventure Pty Ltd (ACN 670238463) ATF The Adventure Trust (Applicant)
Sutherland Shire Council (Respondent)

Representation: Counsel:
M Staunton, A Hannam (Applicant)
J Cole (Solicitor) (Respondent)
Solicitors:
Bick and Steele (Applicant)
Messenger Cole Solicitors (Respondent)

File Number(s): 2025/203951

Publication restriction: Nil

JUDGMENT

1. COMMISSIONERS: Across the road from Silver Beach in Kurnell, a vacant parcel of land is zoned for heavy industrial use notwithstanding its location within a predominantly residential area. On that vacant land, known as 108 Prince Charles Parade, Kurnell, JS Adventure Pty Ltd (JS Adventure) seeks development consent for the construction of a warehouse building, office space, parking, landscaping and use of a building as a depot. JS Adventure lodged a development application with Sutherland Shire Council (the Council) on 16 January 2025. Following the expiry of the period after which a development application is deemed to be refused, JS Adventure lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

2. During the course of the hearing, the Council approved an application for an amendment to the development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation 2021). The amended development application increases the setback for part of both the western and eastern walls, including at the western side to increase the distance of the built form from an established tree on the adjacent property. These amendments follow other adjustments that had been made by JS Adventure, which the Court has previously granted leave to rely on. When compared to the original development application, other changes include a reduction in height through the removal of an upper office floor, a reduction in driveway width, and an increase in building articulation/indents on the eastern and western facades.

3. The proposed development is the construction of a warehouse building to be used for the purpose of a depot, with specific operational conditions as follows:

4. Hours of operation, Monday to Friday 6am to 6pm, Saturday 7am to 3pm, and closed on Sundays.

5. With a maximum of 15 staff.

6. With a maximum restriction on vehicle/truck size accessing the site being 12.5m long x 2.5m wide x 4.3m high.

7. With a maximum of 12 truck movements per day, being 6 entry and 6 exit movements. Further, between 6am and 7am a maximum of three truck movements exiting the site is permitted.

8. With a restriction that no trucks of any size are permitted to approach the site during school zone periods of 8:00am-9:30am and 2:30pm-4:00pm.

9. In accordance with a Plan of Management, which is to be updated prior to Construction Certificate, to reflect the operational conditions of consent.

10. The Council remains opposed to the grant of development consent on the basis that the proposed development is incompatible with the character of the local area and provides an unacceptable bulk and scale with consequential unacceptable visual, streetscape and amenity impacts.

11. For the reasons set out below, we have determined that the development application is not incompatible with the character of the area by reference to its permissible use, its compliance with its principal development standards and through a design that has provided specific design responses to address the context of the site and locality. We find that none of the contentions raised by the Council warrant refusal of the development application. The development application is an appropriate use of the site given its zoning and is of a bulk and scale that is significantly less than what is anticipated on the site by the applicable planning controls. Given the zoning of the site, the residential character that the Council seeks for the site is not attainable. The proposed development presents acceptably to the street in its context, and we find that there are no unacceptable impacts on the neighbouring residents. We reach these conclusions for the reasons that are set out below.

The site and locality

6. The site is known as 108 Prince Charles Parade, Kurnell, and comprises Lots 11 and 12 of DP 7632. It has a combined width of 18.36m along its frontage to Prince Charles Parade, a depth of 127m, and a total area of 3,965m2. It is currently vacant, having been previously part of the Caltex Oil Refinery operation, with pipelines used for cooling formerly occupying the site. The refinery ceased operation in October 2014 and became a terminal for imported fuel storage, and the cooling pipelines were removed from the site in 2017.

7. The surrounding locality is predominantly residential, characterised by large, elongated lots. Prince Charles Parade is lined with single detached homes, generally one to two storeys, set back from the street with medium to large front yards featuring driveways, garages, and landscaped setbacks. To the west, 112 Prince Charles Parade contains a two-storey dwelling facing the street, with an additional single storey secondary dwelling at the rear. To the east, 106 Prince Charles Parade contains a two-storey dwelling with an in-ground pool and a detached games room located behind the main residence.

8. Kurnell is to the south of Botany Bay and is an isolated peninsula suburb with vehicular access by Captain Cook Drive. The former oil refinery is within the peninsula to the south, Kamay National Park is on the east and views of Port Botany across Botany Bay are available from the site and other properties along Prince Charles Parade.

Consideration of the statutory planning framework

Sutherland Shire Local Environmental Plan 2015

9. The site is zoned E5 Heavy Industrial Zone under the Sutherland Shire Local Environmental Plan 2015 (SSLEP) and development for the purpose of a ‘depot’ is permitted with consent. Residential development is prohibited in the zone. The zone objectives are:

Zone E5 Heavy Industrial

1 Objectives of zone

• To provide areas for industries that need to be separated from other 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.

10. Clause 2.3(2) of the SSLEP requires a consideration of the zone objectives in the assessment of the development application.

11. The site is directly adjacent to the C4 Environmental Living Zone, with the zoning map from the Amended Statement of Facts and Contentions (ASOFC) reproduced below at Figure 1.

12. The objectives of the C4 Environmental Living zone are:

Zone C4 Environmental Living

1 Objectives of zone

• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.

• To ensure that residential development does not have an adverse effect on those values.

• To allow for development that preserves and enhances the natural landscape setting of the locality.

• To protect and restore trees, bushland and scenic values particularly along ridgelines and in other areas of high visual significance.

• To ensure the character of the locality is not diminished by the cumulative impacts of development.

• To minimise the risk to life, property and the environment by restricting the type or level and intensity of development on land that is subject to natural or man-made hazards.

• To allow the subdivision of land only if the size of the resulting lots makes them capable of development that retains or restores natural features while allowing a sufficient area for development.

• To share views between new and existing development and also from public space.

13. The development standards for building height (cl 4.3) and floor space ratio (FSR) (cl. 4.4) in SSLEP are not exceeded by the proposed development. The proposed development has a maximum building height of 11.01m at the ridge line, which is located below the maximum mapped SSLEP height of 16m. The development application has a FSR of 0.44:1 (1,747m2), which is below the maximum mapped SSLEP FSR of FSR 1:1. The development application has a minimum landscaped area of 22.6%, exceeding the SSLEP development standard for the site (10%) that applies pursuant to cl 6.14.

14. The site is within a flood planning area. Clause 5.21(3) of the SSLEP sets out matters for consideration, prior to granting of development consent, on land to which this clause applies. Based on the evidence of the stormwater engineers, summarised below at [36]-[38], we are satisfied of the matters in cl 5.21(2).

15. The site is identified as containing Class 3 Acid Sulfate Soils. Clause 6.1 of the SSLEP requires an Acid Sulphate Soils Management Plan (ASS Management Plan) where works are more than 1 metre below the natural ground surface and where works cause the water table to be lowered more than 1 metre below the natural ground surface. As the proposed excavation is less than 1m in depth, an ASS Management Plan is not required.

16. Clause 6.2 of the SSLEP relates to earthworks. Some cut and fill works are required for footings and to facilitate the proposed building platform. Based on the Statement of Environmental Effects, prepared by Avenue Town Planning dated 5 February 2026 (SEE), we have considered the matters in cl 6.2(3).

17. Clause 6.4(3) of the SSLEP relates to Stormwater Management and sets out the matters that a consent authority must consider prior to granting consent, which are thematically directed towards the minimisation of impacts on urban stormwater. Based on the evidence of the civil engineers, summarised below at [36]-[37], we are satisfied of the matters in cl 6.4(3).

18. The site is identified as Environmentally Sensitive Land on the Groundwater Vulnerability Map, such that cl 6.6 of the SSLEP applies. Clause 6.6(3) sets out the matters for consideration prior to granting consent, which relate to the impacts of development on groundwater. The SEE indicates there will be no solid or liquid waste on site that would give rise to groundwater impacts. Based on the proposed operation, the limited cut proposed and the stormwater management system, we have considered the matters in cl 6.6(3) and we are satisfied that the development has been designed, sited and managed to avoid any significant adverse environmental impact.

19. Clause 6.16 relates to Urban Design in general and cl 6.16(1) sets out the urban design matters that a consent authority must consider prior to granting consent. These relevant matters are:

6.16 Urban design—general

(1) In deciding whether to grant development consent for any development, the consent authority must consider the following—

(a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development,

(b) the extent to which any buildings are designed and will be constructed to—

(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii) contribute to the desired future character of the locality concerned,

(c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain,

(d) the extent to which the natural environment will be retained or enhanced by the development,

(e) the extent to which the development will respond to the natural landform of the site of the development,

(f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas,

(g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles.

20. Clause 6.19 applies to the Kurnell Peninsula and in particular cl 6.19(4) sets out the requirement to consider any reports relating to the Kurnell Peninsula and the following matters.

6.19 Kurnell Peninsula

…

(4) Development consent must not be granted for development on land to which this clause applies unless the consent authority has considered the contents of any reports relating to Kurnell Peninsula about the following matters that have been prepared by the Department and given to the Council—

(a) risk assessment,

(b) transportation,

(c) dangerous goods routes,

(d) guidelines on risk assessment criteria and methodology.

21. The relevant report that has been given to Council is the Land Use Safety Study – Kurnell Peninsula dated February 2007 (the Study).

The Sutherland Shire Development Control Plan 2015

22. The Sutherland Shire Development Control Plan 2015 (SSDDCP) contains a specific chapter, Chapter 30 which sets out the relevant planning controls for development in the IN3 Heavy Industrial zone, now known as the E5 Heavy Industrial Zone. Chapter 28 relating to General Industrial is also relevant in the consideration as to whether there is an error in the setback section of Chapter 30.

23. Chapter 30 Section 2, Streetscape and Built Form provides a series of objectives for the building layout, presentation and quality of design for development in the E5 Heavy Industrial Zone. The objectives are as follows:

“1. Ensure that all elements of development visible from the street, waterways and public domain make a positive contribution to the locality.

2. Achieve quality architecture in new development through the appropriate composition and articulation of building elements, textures, materials and colours that respond to the building’s use.

3. Create entrances and site layouts which provide a desirable and safe identity for the development and which assist in visitor orientation.

4. Ensure development incorporates passive solar design principles, energy efficiency, water conservation and opportunities for natural ventilation.

5. Improve the visual amenity of the public domain.”

24. While all relevant controls require consideration, Clause 1 of Section 2 was emphasised by the Council as particularly relevant in the assessment of the proposed development, with the discussion on the scale, rhythm and proportion of the development emphasised. We find Subclause 2 to also be particularly relevant. The relevant controls from Chapter 30, Section 2 of the SSDCP is:

“1. Facades are to be composed with an appropriate scale, rhythm and proportion responding to the building’s context and use.

2. Where visible from the street, the façade should be articulated. Where blank walls are unavoidable, landscape screen planting is to be utilised to reduce visual impact of the building when viewed from the public domain or residential development.”

25. Section 3, Building Setbacks provides a series of objectives for the setbacks of development in the E5 Heavy Industrial Zone. The objectives are as follows:

“1. Establish the desired spatial proportions of the street with uniformity in front building lines.

2. Create opportunities for the planting of canopy trees and landscaping and space to enable existing large trees to survive and thrive.

3. Ensure that industrial developments improve the streetscape.

4. Achieve an appropriate transition between development on the fringe of Industrial zones and development in surrounding areas.

5. Provide a landscaped buffer to any adjacent residential land.

6. In Kurnell, contribute to the protection and maintenance of the locality’s sensitive environmental and scenic qualities.”

26. These objectives are followed by a series of controls. The development application front setback is no longer a contention between the parties in the proceedings. The controls relevant to the side setbacks are as follows:

“…4. Nil setbacks to side and rear boundaries are permitted.

5. Despite the provisions of clause 5, development adjoining public reserves must have a minimum landscaped setback of 3m to the public reserve.

6. Despite the provisions of clause 5, development adjoining residential development must have a minimum landscaped setback from the residential development.”

27. There was an acknowledgment by both parties that the first error in the SSDCP in relation to side setbacks is that a reference to Clause 5, is meant to be a reference to Clause 4.

28. In order to explain the second error in Chapter 30 of SSDCP, the side setback controls in the Chapter 28 General Industry are reproduced below:

“4. Nil setbacks to side and rear boundaries are permitted.

5. Despite the provisions of clause 4, development adjoining public reserves must have a minimum landscaped setback of 3m to the public reserve or public walkway/cycleway.

6. Despite the provisions of clause 4, development adjoining residential development must have a minimum landscaped setback of 3m from the residential development.”

29. In Chapter 28, the setback exception clause correctly cross references Clause 4. The key difference between Chapter 28 and Chapter 30 discussed in these proceedings is that Chapter 28 specifies a minimum side setback of 3m and Chapter 30 has no numerical setback control stated. Mr Sheehan, in the course of his oral evidence, reported that the Council’s strategic planners had verbally confirmed to him that the absence of a numerical control at Clause 6, Chapter 30 is an error.

30. It was agreed between both parties that the SSDCP Chapter 30 has an error in that no numeric control is specified in Section 2, Clause 6. However, it was not agreed by the experts in the proceedings what that side setback numeric control should be, nor what the appropriate side setback for the proposed development should be.

State Environmental Planning Policy (Resilience and Hazards) 2021

31. The site is located within the Coastal Environment Area and Coastal Use Area pursuant the provisions of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH). Sections 2.10 and 2.11 therefore apply and set out matters for consideration prior to granting of development consent. The relevant jurisdictional prerequisites are reproduced below, and which we address later in this judgment.

2.10 Development on land within the coastal environment area

(1) Development consent must not be granted to development on land that is within the coastal environment area unless the consent authority has considered whether the proposed development is likely to cause an adverse impact on the following—

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

(2) Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or

(b) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

…

2.11 Development on land within the coastal use area

(1) Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a) has considered whether the proposed development is likely to cause an adverse impact on the following—

(i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii) overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii) the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv) Aboriginal cultural heritage, practices and places,

(v) cultural and built environment heritage, and

(b) is satisfied that—

(i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii) if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii) if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

32. Section 4.6 of the SEPP RH requires consideration of whether the site is contaminated. The previous pipelines on the site have been removed, and the land has been remediated to a level suitable for both commercial / industrial usage and residential usage. This has been the subject of a Validation Certificate (refer Ex 2, Tab 1 for Council’s Assessment Report to the Sutherland Shire Local Planning Panel) and a Validation Report that accompanies the development application (Ex B, Tab 11C).

The expert evidence

Town planning and urban design

33. Expert evidence on the town planning and urban design issues was given by Mr Michael Vine, a town planner engaged by JS Adventure, Mr David Sheehan, the Council’s employed town planner and Mr David Jarvis an architect and urban designer engaged by the Council. Their final joint report was filed on 17 February 2026, and they also gave oral evidence at the hearing.

34. Mr Vine, Mr Sheehan and Mr Jarvis agree that the amendments to the development application have resulted in improvements to what is proposed, particularly with regard to the front portion of the building comprising the covered parking area and removal of a level of office. These changes have provided an increased landscaped area and reduced the height of the building, which is agreed as positive.

35. Mr Vine, Mr Sheehan and Mr Jarvis remain in disagreement on a number of matters including the suitability of the site for the land use, the built form and operational impacts of the land use, the suitability of the scale and footprint of the building in regards to how it responds to the surrounding context, the desired future character of the area and the visual impacts of the development.

Stormwater and flooding

36. Expert evidence on the stormwater and flooding issues was given by Mr Terry Hams, a civil engineer engaged by JS Adventure and Mr Joel DiFonz Georgas, a civil engineer engaged by Council. Their final joint report was filed on 9 February 2025.

37. The experts agree that through the supply of additional stormwater information, including during the joint conferencing, an agreed and acceptable final set of stormwater plans have been developed. Based on the final amended plans, which now form part of the proposed development, Mr Hams and Mr DiFonz Georgas agree that all stormwater issues are resolved and that all stormwater from the proposed development will be directed into the subsoils on site with no significant run off from the site in most conditions, under the absorption system proposed.

38. Mr Hams and Mr DiFonz Georgas agree that as a result of amended plans, and additional information, the flooding concerns are resolved. In particular, Mr Hams and Mr DiFonz Georgas agree that the proposed development satisfies the requirements for compensatory cut/fill and demonstrates no loss of flood storage, and hence no flood impacts on adjacent private property.

Traffic

39. Expert evidence on the traffic issues was given by Mr Thomas Steal, a traffic engineer engaged by JS Adventure and Mr Chris Palmer, a traffic engineer engaged by the Council. Their final joint report was filed on 26 February 2026.

40. Mr Steel and Mr Palmer are agreed that all traffic and parking issues are resolved, particularly through a reduction in the driveway width, and through conditions of consent restricting truck vehicle size, number of truck movements per day, the truck route, and restricting truck vehicle times to be outside school pick up/drop off hours. Mr Steel and Mr Palmer agree that the car parking proposed for the depot and ancillary office uses complies with the car parking rates in the SSDCP for the proposed land use. Mr Steel and Mr Palmer agree that the proposal will generate a very low volume of traffic movements which will not affect the amenity of surrounding land uses and that the truck vehicle swept paths will not require the removal of on street parking spaces.

Acoustic

41. Expert evidence on acoustic impacts was given by Mr Richard Haydon, a mechanical engineer practicing in acoustics engaged by JS Adventure, and Mr Steven Cooper, an electrical engineer practising in acoustics and engaged by the Council. Their final joint report was filed on 10 February 2026.

42. The experts agree that through the supply of an Amended Acoustic Report prepared by Mr Haydon (February 2026), the enclosure of the car park area in the design, and agreed recommendations for appropriate operational controls for noise mitigation and management, that the proposed development can be operated in a manner consistent with the identified noise criteria and that the acoustic impacts of the development on adjacent residents will be acceptable.

The resident objector evidence

43. The original development application and an amended development application were publicly notified. In relation to the original development application, 242 submissions were received in objection, one of which was a petition with 330 names. In relation to the amended development application, which was publicly exhibited from 28 January 2026 to 12 February 2026, 28 unique submissions were received. In addition, two local residents and a representative of the Kurnell Progress, Precinct and Residents Association gave evidence at the site inspection at the commencement of the hearing. The issues raised in the written submissions and at the hearing can be summarised as follows:

44. Inappropriate land use in the residential context.

45. Zoning is inappropriate and should be residential, open space, aged care home or returned to the community.

46. Visual impact, located on prominent waterfront land and inconsistent with the established character.

47. Impacts on road traffic and parking, including the inadequacy of the road network and the risk to the safety of pedestrians.

48. Privacy impacts.

49. Noise and engine emissions.

50. Overshadowing impacts.

51. The adequacy of the front setback, and visual and safety impacts.

52. The appropriateness of the height and scale of the development in its context.

53. Run off impacts to ecosystems and marine environments.

54. In relation to the overshadowing impacts to 112 Prince Charles Parade, Kurnell, the shadow diagrams demonstrate that whilst the development application will generate some additional overshadowing impact to adjoining dwellings, the orientation of the lots means that this impact is limited to early morning for the west and in the later afternoon for the east. Therefore, the solar access controls in the SSDCP for these dwelling houses are met.

55. The remaining concerns of the residents are dealt with in our consideration of the contentions below.

The contentions that are now resolved

46. As a result of amendments to the development application, agreements made between experts in the joint expert report, and agreement on conditions of consent, a number of the contentions raised by the Council in its Amended Statement of Facts and Contentions have been resolved.

Traffic and Parking (Contention 3)

47. The Council’s contention concerning traffic and parking relates to insufficient parking for the use or future uses, traffic safety issues and amenity impacts, the impact on street parking from heavy vehicle movements, the width of the vehicular crossing and the ability for the local road network to accommodate the proposed truck movements.

48. Based on the agreed evidence of Mr Steal and Mr Palmer, the Council now accepts that the car parking proposed for the depot and ancillary office uses complies with the car parking rates in Chapter 30, Section 9 of the SSDCP for the proposed land use.

49. Based on the agreed evidence of Mr Steal and Mr Palmer, Council now accepts that the proposal will not result in unacceptable safety risks or amenity impacts for the surrounding residential area nor the recreational users of the beach, that satisfactory road access is available for the number and type of trucks proposed, and that the proposal will not necessitate the removal of on street parking. Accordingly, we accept the parties’ agreed position that this contention is now resolved and no longer remains an issue.

Amenity, Noise (Contention 4)

50. The Council’s contention as it relates to noise, focusses on noise from the operation of the depot, the noise of vehicle movements and the impact of both on the amenity of surrounding residences.

51. Based on the supply of an Amended Acoustic Report prepared by Mr Haydon (February 2026), a number of the acoustic (noise) contentions relating to the adequacy of the acoustic assessment have now been agreed as resolved between the experts.

52. Based on the agreed evidence of Mr Haydon and Mr Cooper, the Council now accepts that Chapter 30 Section 5 of the SSDCP is suitably addressed. In particular, the enclosure of the car park area in the design and the agreed recommendations for appropriate operational controls for noise mitigation and management, will effectively minimise the impact of noise on surrounding users and sensitive noise receivers.

53. The experts have agreed on mitigation measures and operational management measures which have been incorporated into the conditions of consent at Annexure A. Mr Haydon and Mr Cooper agree that, as a result of these measures, the operation of the proposed development will not cause an unacceptable acoustic impact on adjoining neighbours. Accordingly, we accept the parties’ agreed position that this contention is now resolved and no longer remains an issue.

Stormwater drainage (Contention 5)

54. The Council’s contention on stormwater relates the extent of increased impervious area on site and insufficient information on the functional details on the method of stormwater disposal.

55. Based on the stormwater plans prepared by JN Responsive Engineering dated 4 and 6 February 2026, and the agreement of the stormwater experts, the Council now accepts that the adequacy of the site’s stormwater disposal has been demonstrated and satisfies the requirements of cl 6.4(3) of the SSLEP relating to stormwater management. Accordingly, we accept the parties’ agreed position that this contention is now resolved and no longer remains an issue.

Flooding (Contention 6)

56. The Council’s contention on flooding relates to insufficient details addressing the flood affectation of the site and the impact of the proposed development on flood behaviour and the environment.

57. Based on the stormwater plans prepared by JN Responsive Engineering dated 4 and 6 February 2026, Mr Ham and Mr DiFonz Georgas agree that there is now a sufficient level of detail to establish that there will be no offsite impacts to adjoining properties from loss of flood storage. Based on the agreed position of Mr Ham and Mr DiFonz Georgas, the Council now accepts that requirements of cl 5.21(3) of the SSLEP relating to flood planning has been addressed. Based on their evidence, we are satisfied of each of the matters in cl 5.21(3) of the SSLEP. The proposed development maintains flood storage and has no flood impacts on adjacent properties. Accordingly, we accept the parties’ agreed position that this contention is now resolved and no longer remains an issue.

Inaccuracy and/or Inadequacy of Information (Contention 7)

58. This contention has been resolved through the supply of additional information during the preparation of expert joint reports, through the amended plans and by the agreement in the conditions of consent at Annexure A. The contention is resolved and there is sufficient information to determine the development application.

The remaining contentions

59. The principal contentions remaining concern whether the proposal is suitable for the site given its context, whether the proposed development is compatible with the character of the area and whether the proposed built form has acceptable amenity and visual impacts. These contentions themselves remain interrelated. Therefore, we have classified the remaining issues in dispute as being bulk, scale, setbacks, visual impact and character which are separate but ultimately interrelated issues.

Site suitability, bulk, scale, setbacks, visual impact and character

The Council’s position

60. The Council remains opposed to the development application on the basis that the site is not suitable for the proposed development, and that the proposed development is not compatible with the character of the local area and will have adverse visual and amenity impacts. In particular, the Council contends that its built form is too large in both height and footprint and does not fit into its sensitive context, in light of both its coastal environment context and the predominant low scale residential context (contention 1). It also contends that the scale and distribution of bulk on the site, as well as the building design itself, in terms of materials and finishes, is not compatible with the context, has adverse visual impacts and is not compatible with the suburban residential character (contention 2). The heritage context of the site, including proximity to the heritage listed Silver Beach and Roadway, including heritage listed groin was also raised during the course of the hearing.

61. The Council submits that the objectives of the C4 Environmental Living zone inform the character of the locality the proposal ought to respond to.

62. The Council relies on the evidence of Mr Sheehan and Mr Jarvis that, whilst the amendments to the development application have made improvements in the design, the footprint remains large in its context, the height of the building remains significantly in excess of its neighbours, the length of the building contributes to the excessive footprint and the building is insufficiently set back from adjoining properties and is hence insufficiently landscaped. As a result, they opine that the proposal is visually prominent and is out of character with its coastal environment location and predominantly low-density residential context. In particular, Mr Sheehan and Mr Jarvis note that the width of the site provides constraints for the depot land use being able to accommodate reasonable separation and landscape opportunities to the adjoining residential interfaces. Mr Jarvis also opines that the proposal has undertaken an insufficient site and contextual analysis to inform the design.

63. The Council, at various points throughout the hearing, referred to the zoning of the site as a historical ‘anomaly’, with the site’s zoning established for a purpose which is no longer relevant or appropriate in its context. Mr Sheehan’s evidence is that the broad-based generic controls that apply to the site are a problem and that the site requires different or more specific controls developed for its specific constraints. With respect to the site’s zoning and generic development standards, Mr Sheehan indicated he would have preferred that the site had been subject to proper strategic planning.

64. The Council also relies on the evidence of Mr Sheehan and Mr Jarvis that the side boundary setback is inadequate, and the landscaping proposed may not be retained in perpetuity. Specifically, Mr Sheehan’s evidence is that the trees could be removed in the future based on the Council’s practice to allow removal of trees within 3.5m of a residential boundary. Mr Jarvis’ evidence is that the mitigation of the impacts of the external walls should not be reliant on landscaping, and that the perimeter landscaping is insufficient in that it does not provide a dense and layered landscape response.

65. Mr Jarvis opines that whilst there have been improvements to the design of the built form through the prior amendments to the development application, the nominal changes made to the perimeter of the building do not overcome the Council’s concerns over the large footprint of the building and the bulk and scale of the development. Mr Jarvis and Mr Sheehan opine that the site is a narrow site for the typology of the proposed land use, resulting in a compromised design outcome. Mr Sheehan considers that the building footprint is also unusually large in response to the site’s FSR control, due to technical exclusion of loading and manoeuvring areas which are excluded under the definition of gross floor area, and in this instance internalised within the building and hence resulting in a disproportionately larger building footprint. Mr Jarvis opines that this larger footprint fails to recognise and respond to the open space and garden patterns enjoyed by adjoining properties. He considers that the building should be stepped and set back further from the adjoining side boundaries so that greater separation and landscaping opportunities could be provided.

JS Adventure’s position

66. JS Adventure’s position is that the development application is an appropriate response to the zone’s permissible land uses, is consistent with the character of the area and provides an appropriate bulk, scale and visual presentation to the street and context, particularly given the zoning and the SSLEP development standards that apply to the site.

67. JS Adventure submits that the Council has had ample time to correct or remove the perceived zoning anomaly through an amendment to the SSLEP under Pt 3 of the EPA Act. The Caltex refinery closed in 2014, with the cooling pipes below the site decommissioned in 2017. JS Adventure points out that the Council has progressed 25 amendments to the SSLEP since its introduction in 2015, including 15 amendments since 2018, which have occurred after removal of the pipes on site in 2017. JS Adventure submits that the Council have therefore had ample time to amend the site’s zoning and/or make specific local provisions for the site that respond to its sensitivities.

68. JS Adventure’s position is therefore that the proposed development provides a land use, built form and scale which is consistent with what is intended for the site under the applicable planning controls. JS Adventure relies on the evidence of Mr Vine, who notes that there is no specific character statement contained within the SSLEP or SSDCP that applies to the site and the locality. Mr Vine relies on the compliance of the development with its relevant SSLEP development standards, including building height, FSR and landscaped area, which means that the proposed development meets the objectives of the standards and by extension the desired future character of the area. Mr Vine notes that the proposed development is modest when comparing it to the maximum permitted under the relevant development standards.

69. Mr Vine’s evidence is that the proposed development has gone to considerable effort to provide a site-specific design response in both the building form and in the materials chosen. The office element and pitching points of the rear external walls are designed to be aligned with the 9m building height limit that applies to the adjoining residential properties and are more than 6m below the permitted height limit, with the height then raking up to the maximum height proposed within the site. His evidence is that the width of the driveway has been adequately reduced, that the proposal aligns with the front setbacks of the adjoining dwellings, and that the height of the building at the street frontage is reflective of the adjoining low-density dwellings.

70. Mr Vine utilises Chapter 28 of the SSDCP concerning General Industrial as a ‘guide’ to determine an appropriate side setback for industrial sites adjoining residential zones. This section of the SSDCP nominates a 3m side setback. Mr Vine notes that the 3m side setback is achieved, but also points out design considerations that have been incorporated including stepping of the setback so that some areas achieve a side setback of greater than 3m.

71. JS Adventure submits that there are no relevant SSDCP controls requiring the dense and layered landscape response which the Council’s experts advocate for, and that the proposal complies with the landscape section of Chapter 30 and it would be lawfully erroneous under s 4.15(3A) of the EPA Act to impose more stringent standards. JS Adventure also notes that there is no applicable planning control that allows the removal of trees within 3.5m of the boundary without making an application to the Council.

The bulk, scale and site suitability of the proposed development is acceptable

72. Contrary to the Council’s position, we find that the type of use is suitable for the site. We also find that the built form is consistent with the applicable planning controls and compatible with the character of the surrounding locality, is appropriately designed with adequate setbacks and landscaping, provides an acceptable bulk and scale, provides sufficient articulation of the built form and provides appropriate materials and finishes for the proposed use. We reach this conclusion for the reasons outlined in the paragraphs following.

73. Firstly, we are required to assess the development application against the land use zoning that is in force and applies to the site, rather than give any weight to the view that another land use zoning should apply. Whether the zoning is an anomaly or an anachronism is not relevant to our consideration. The Council’s position and the resident objector evidence is underlain by a discontent that the site’s planning controls and land use zoning ought to be different from what they are, due to a heavy industrial zone being located next to an environmental living zone. The Council and the objector’s obvious disappointment regarding the historical zoning of the site is not a matter we are able to adjudicate on. The Court is required, pursuant to s 4.15(1)(a)(i) of the EPA Act, to consider the provisions of any environmental planning instrument, and we are therefore required to assess the development against the zoning that applies to the site pursuant to the SSLEP and the planning controls as they apply.

74. We agree with JS Adventure’s position that to action a change to the site’s planning controls, including to the zoning or by applying site-specific development standards, must be achieved by an amendment to the SSLEP through Pt 3 of the EPA Act. We disagree with Mr Sheehan that planning proposals or rezonings are generally applicant driven and note that such an amendment could have been progressed by the Council initiating it at any time, including after lodgement of the development application.

75. Under the current and in force planning controls, the site is zoned E5 Heavy Industrial pursuant to the SSLEP, which we are bound to consider in our decision making under s 4.15 of the EPA Act. Even a site with a historical zoning is permitted to allow for and contemplate a range of currently permissible uses in its zone. In this instance, we note that a depot is one of the least offensive, noxious uses permitted in the E5 Heavy Industrial zone, which includes other permissible uses such as data centres, hazardous and offensive storage establishments, freight transport facilities, and warehouse and distribution centres. As such, the proposed use as a depot is suitable for the site in the context of its applicable zoning. Further, in our consideration, the proposal has been designed with site specific design responses to address its context, which we outline further in the paragraphs below.

76. Secondly, we have had regard to the objectives of the zone, and we find that the proposal is acceptable when considered against the E5 Heavy Industrial zone objectives. During the hearing, it was clear that the main zone objective of concern to the Council was the third objective, being “To minimise any adverse effect of industry on other land uses”. We have had regard to this objective and note that the concerns regarding traffic, parking, noise, vehicle emissions, flooding and stormwater impacts on the surrounding residential locality have been resolved through the evidence and agreement of the relevant experts in these disciplines.

77. In terms of the other zone objectives, Mr Sheehan agrees that the first objective is not relevant and that the fourth objective is suitably addressed by the development application. Whilst there was some concern from Mr Sheehan as to whether the proposal makes efficient use of industrial land, consistent with the second objective, as a zone objective we consider this relates to permitting/enabling a range of land uses that enable the efficient and viable use of land zoned industrial under the SSLEP, rather than pointing to the efficient use of a specific site. In our consideration, finer grain SSDCP controls would be more relevant to guide the efficient use on a specific site basis. Nonetheless, we consider that the individual site layout does demonstrate efficiency, through its compliance with the site’s principal development standards of height, FSR and landscaped area and through the agreed position of the traffic, stormwater and noise experts on matters of technical efficiency. The proposed development is plainly a more efficient use of the E5 Heavy Industrial zoned land, compared to its current vacant state.

78. Thirdly, we consider that the proposed development acceptably responds to its context adjacent to the C4 Environmental Living zone. Contrary to the Council’s submission that the C4 Environmental Living zone objectives assist in informing the desired future character of the area, we note that pursuant to cl 2.3(2) of SSLEP, we are required to have regard to the objectives of the zone when determining the development application in respect of land within the zone. In this instance, cl 2.3(2) requires us to consider the objectives of the E5 Heavy Industrial Zone, as it relates to development on the site, and not the objectives of the C4 Environmental Living Zone (Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 at [30]-[32]). Nonetheless, we have considered the constraints of the site in that it is proximate to a more sensitive land use zone (Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 at [25]). We find that the proposal responds to this sensitivity in its physical design, through the use of wall height at the site boundary responding to the allowable height in the adjoining C4 zone, with a height of the building at the front matching the height of adjoining low density housing, through compliance with SSDCP front setback, through the provision of minimum 3m side setbacks and through the provision of landscape screening. It also responds to the sensitivities of the adjoining zone in its operational design, by enclosing indoors the functions that cause noise and vehicle emission impacts, through truck movement restrictions, and through compliance with an operational plan of management, which will be enforced through conditions of consent. The proposed development is therefore a form of orderly development to achieve the intended use of the site whilst minimising its impacts.

79. Fourthly, we find that the proposed development and its design provide a suitable response to the existing and desired future character of the locality, consistent with the consideration required by cl 6.16 of the SSLEP. We note that there is somewhat of a distinction between the terms ‘existing character’ and ‘desired future character’, which were used interchangeably in the proceedings. In our consideration, existing character is what exists now in terms of current built form and land use typologies. It is a static analysis of what is in a locality now. Whereas desired future character is how an area is desired to look and function, and can be informed by the planning framework, but can also go beyond that planning framework and include consideration of existing built and natural elements in the locality as well as approved developments (see Woollahra Municipal Council v SJD DB2 Pty Ltd [2020] NSWLEC 115 at [54-63]; Big Property Group Pty Ltd v Randwick Council [2021] NSWLEC 1161 at [43-48].).

80. Clause 6.16 of SSLEP, which relates to urban design, specifically requires the Court to consider the existing character and the desired future character of the locality and the extent to which buildings are designed and will be constructed to (at (1)(b)):

(i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and

(ii) contribute to the desired future character of the locality concerned,

81. The existing character is a predominantly residential neighbourhood punctuated by a small number of strips or slivers of vacant land zoned heavy industrial, that connect through the broader industrial zones in the peninsula. The character, whilst predominantly residential cannot ignore the slivers of land zoned for heavy industrial.

82. The desired future character of the locality as expressed through the current planning framework, includes these remnant pockets of industrial zoned land, interspersed with and adjacent to a low density residential village environment, that has historical roots in the village/township growing as the oil refinery developed and residents were able to live near to and access jobs at the oil refinery. The desired future character, as expressed through the current zoning framework, envisages industrial and residential uses existing alongside and/or adjacent to each other on this unique peninsula. The desired future character therefore contemplates different building forms and uses in the locality, and not solely predominantly residential uses.

83. The Council’s primary concern, supported by the evidence of Mr Sheehan, is that the planning controls for the site essentially set up a development that is inconsistent with the character of the area. However, the assessment of the proposed development against a desired future character cannot be an assessment of an unfulfilled desire for the site to be zoned something different and to have different planning controls. It also does not allow us to ignore or set aside the site’s zoning and development standards.

84. Instead, we accept the evidence of Mr Vine that, as perceived from the street, the public domain and from the coast, the proposed development is designed in a manner that is compatible with the existing and desired future character of the surrounding locality. As the Court has found on more than one occasion, when a development has fulfilled all relevant controls in the SSLEP, there is an expectation that it has achieved the objectives of the controls (Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827; Gunnamatta Bay Holdings Pty Ltd v Sutherland Shire Council [2025] NSWLEC 1230). The development application complies with the development standards which guide built form on the site, including building height, FSR and landscaped area.

85. The proposal does not seek to maximise the height and FSR having regard to those development standards, nor does it seek to minimise the landscaped area in light of the applicable landscaped area development standard. The height of the proposed development does not seek a consistent 11.01m and has been articulated to respond to the site’s constraints. Further, the height of the proposed development includes an additional 1.1m of height to accommodate flood planning requirements but nonetheless falls well short of the maximum height of 16m permitted under the height development standard.

86. The wall height to the adjoining neighbours is at 9m and steps up to the ridgeline in the centre of the roof. Mr Jarvis, Mr Vine and Mr Sheehan agree that the lower building height at the front of the site where the building parapets closely match the ridge heights of adjoining dwellings is an appropriate design strategy. The building then rakes up to the maximum proposed height within the site away from the street frontage. Although Mr Jarvis remains of the opinion that the proposed height is not suitable in its context, we prefer the evidence of Mr Vine that the design strategy of having the building lower at the front of the site, matching the dwelling parapet at 112 Prince Charles Parade and lower than the dwelling parapet at 106 Prince Charles Parade, to be effective in minimising the visual impact of the development and providing a building that integrates into the existing character.

87. We therefore conclude that the proposed design contributes to the desired future character of the locality by providing a permissible use in the heavy industrial zoned land whilst also successfully mediating the land use tension of it being located adjacent to land zoned environmental living. It does so by minimising its impacts in terms of visual intrusion and acoustic, traffic and parking. Further, it is designed to respect and integrate into the existing character of this distinctive location through the design choices for matching front ridge heights, landscaped setbacks, and appropriate wall heights. We are therefore satisfied that the design and siting of the proposed development, and its proposed use, is suitable for the site and appropriate in the context of both the existing and desired future character of the locality.

88. We are also satisfied that the proposal adequately addresses the other urban design matters within cl 6.16 of the SSLEP. The proposal does not propose public domain works, nor does it impede the public domain (cl 6.16(1)(c)). The natural environment will be retained/protected through the management of stormwater through the proposed infiltration system (cl 6.16(1)(d)). The proposal responds to the natural landform through minimal excavation and filling (cl 6.16(1)(e)). We have addressed the suitability of the visual impact of the development and its impact on the coastal location at [100] below (cl 6.16(1)(f)). The design of the proposal is not considered to create a crime risk, and the design through the internalisation of what would ordinarily be open vehicle manoeuvring areas, assists in minimising the potential for crime (cl 6.16(1)(g)).

89. We therefore conclude that the urban design matters for consideration in cl 6.16 of SSLEP have been considered and addressed to our satisfaction.

90. Fifthly, we consider that the design of the development provides adequate setbacks, and that an appropriate standard of landscaping can be achieved within those setbacks. We also find that these landscaped setbacks, together with the stepping of the side setbacks, provide adequate privacy to adjoining residents.

91. The parties agree that the front setback complies with the 9m numeric control in the SSDCP, aligns with the predominant street setback and provides an improved presentation to the street when compared to the original development application, including the screening of the car parking from the street. Further, whilst a nil rear setback is contemplated by Chapter 30, Section 2.1(3) of the SSDCP, the proposed development provides a 3m setback at the rear of the site, which adjoins another E5 Heavy Industrial lot.

92. The side setbacks were increased in the most recent amendments to the plans. The proposed development includes side setbacks of at least 3m, from the side boundary to the edge of the 1m permeable pathway of Atlantas cells, so that the full extent of the 3m side setback is available for landscaping. In that regard, the proposed development complies with the SSDCP control for there to be a “landscaped setback from the residential development” as required by Control 3.2(6) of Chapter 30 of the SSDCP. However, the parties agree that there is an error in the absence of a numeric side setback in this control. We accept the evidence of Mr Vine that the setback control of 3m for the residential interface that applies to General Industrial, under Chapter 28 of the SSDCP, is a useful guide. By way of observation, development for the purpose of a depot is permissible in the E4 General Industrial zone and if a depot were proposed in the E4 General Industrial zone adjoining a residential interface, we would be prevented by s 4.15(3A) of the EPA Act from imposing a more onerous setback, beyond the 3m nominated at Chapter 28. On this application, we are unable to invoke s 4.15(3A) of the EPA Act as there is no such numeric control. However, we do note the strong wording alignment between the objectives and the side setback controls in Chapter 28 and Chapter 30.

93. In our opinion, the imposition of this numeric setback control in the General Industrial zone indicates a satisfaction the stipulated distance (3m) achieves the objectives for side setbacks under Chapter 28 of the SSDCP, which include a desire to ensure an appropriate transition to surrounding areas and provide a landscape buffer to adjoining land, which is the same as the setback objective in Chapter 30. In the circumstances of the proposed development, which includes the Landscape Plans (Ex H), we are satisfied that an appropriate landscape buffer and transition is provided by the provision of the proposed 3m minimum setback.

94. The landscaped side setback, together with the building design, also achieves adequate privacy for adjoining developments. There are no areas where there is likely to be overlooking from the development to adjacent properties. Whilst Mr Sheehan maintained concerns about privacy impacts from the elevated emergency egress pathway adjoining the side boundaries, Mr Sheehan accepted that this is resolved if that pathway is only to be used for emergency egress. This restriction is reflected in an agreed condition of consent, and we therefore consider that this privacy issue is resolved.

95. We consider that the proposed landscaping provides an acceptable variety of species at an appropriate density that will soften the appearance of the built form to the adjoining neighbours. We do not accept Mr Jarvis’ opinion that more layering is required. Further, his concern about the effective height of the Coastal Banksia and the ability of this species to screen the side elevation walls is not warranted. The landscape plans (Ex H and J) show that the Coastal Banksia can grow to 15m and hence is capable of growing higher than the side boundary walls. Further, Mr Sheehan’s opinion regarding the potential for removal of landscaping is speculative. Any person carrying out the development will be bound by the conditions of development consent, which requires the carrying out of the development in accordance with the landscape plans, and any application for the removal of trees will require an application to be made to and considered by the Council.

96. Sixthly, we find that the size of the building footprint and envelope is appropriate in its context, and has no unacceptable amenity, heritage or visual impacts.

97. The footprint of the building is not unreasonably large for its site, context and use, and it is consistent with what is reasonably anticipated by the applicable planning controls. The FSR is well below the SSLEP FSR development standard (1:1). We do not accept Mr Sheehan’s opinion that the technical exclusion of loading and manoeuvring areas from the standard instrument definition of gross floor area (GFA) results in an unacceptably large building footprint when compared to what is reasonably envisaged by the SSLEP FSR development standard. Many of the industrial land uses permissible in the E5 Heavy Industrial zone would also have exclusions from GFA for loading, manoeuvring and vehicular access. JS Adventure had one of two choices with respect to the areas of GFA in question: To place the manoeuvring areas outside the building walls to reduce Council’s concerns over the extent of the building footprint, or internalise these functions to reduce noise, visual and vehicle emission impacts, with a resultant increase in building footprint. Mr Vine, Mr Sheehan and Mr Jarvis all favour the internalisation of these functions to reduce impacts. We accept their agreed opinion that the internalisation of the impacts in this instance is an appropriate response to reduce amenity impacts. We do not accept Mr Jarvis or Mr Sheehan’s opinion that the increase in footprint results in unacceptable amenity outcomes or creates a perversely larger footprint beyond that which the site can reasonably accommodate. Although the building is larger than that which is observed in the locality, it is consistent with what is reasonably anticipated for the site given the SSLEP development standards and does not depart from any applicable SSDCP numerical controls. In particular, there is no maximum wall length or footprint controls in the SSDCP. As acknowledged by Mr Sheehan and Mr Jervis, there are no planning controls that require the development to replicate the building footprint or building typology in the adjoining C4 zone. There is, however, a minimum landscaped area development standard under the SSLEP, which, in part, governs the extent of the site covered by buildings. The proposal is double the minimum 10% required, achieving 22.6% landscaped area. As such, we consider the building footprint to be acceptable.

98. With respect to the height and length of the side elevation, we do not accept Mr Jarvis’ concerns about the human scale of this elevation or the elevated pathway. There are no applicable SSLEP or SSDCP controls governing wall height or wall length, and, for the aforementioned reasons we consider the side setback and height of the wall on the side boundary to be acceptable when considering the applicable SSLEP and SSDCP controls, and the height of the dwellings on the adjacent properties.

99. We do not accept the Council’s submission that the proposed development has an adverse impact on any of the surrounding heritage items, having regard to cl 5.10 of the SSLEP. Despite no heritage contentions being raised by the Council and no heritage evidence being bought before the Court, the Council submits that the presence of Silver Beach and the heritage listed road is a relevant matter when considering the bulk, scale and presentation of the development in its adjoining heritage context. We note that the Council’s internal heritage officer raised no objection to the development, when the original development application had an additional storey at the street presentation (Ex 2, p 96). There being no evidence to support the Council’s submission that there is an adverse impact on heritage items, the Council’s submission on this point cannot be accepted.

100. Similarly, we find that the visual impact of the development is acceptable in its context. The built form complies with the principal development standards of height, FSR, landscaped area and provides adequate setbacks and landscaping, whilst also ensuring that it responds to the adjoining environmental living zone by distributing height such that the lower wall height at the front and side boundaries reflects the height of adjoining development. The maximum height of 11.01m occurs at the ridge line of the building, well setback from the Prince Charles Drive frontage. The built form therefore steps up from its neighbours and sits appropriately in its visual context, even when viewed from Prince Charles Drive and Silver Beach, and even upon viewing the site from a distance where the additional height becomes visible. The proposed development provides continuity in the existing pattern of built form along Prince Charles Drive. The 3m landscaped setback provided at the rear will also assist in screening the development from the rear.

101. We do not accept Mr Jarvis’ opinion that there is an unacceptable impact from the presentation to the streetscape when the front car park door opens. Instead, we accept Mr Vine’s evidence that the opening of a car park gate is an expected and reasonable operation required by a depot premises. In addition, given the low number of truck movements proposed each day, being six in and six out, and the limited number of vehicle parking space being 18 spaces, we do not accept that the operation of the car park screen will have an adverse visual impact.

102. We also find that the depot building achieves an appropriate aesthetic for its use and is consistent with Control 2.1(1) and Control 2.2(2) in Chapter 30 of the SSDCP. We accept Mr Vine’s evidence that the external finishes and materials, exhibits a high-quality design through the use of off form concrete, curved roof details, integrated planters over the car park roof, articulated walls of various materials and sufficient landscape screening to reduce the visual impact of the development.

103. For the above reasons, we conclude that the bulk and scale of the proposed development is consistent the applicable planning controls and compatible with the existing and desired future character. Contrary to what is contended by the Council in contentions 1 and 2, the proposed development is suitable for the site, responds to its context, and has height, bulk, setbacks, landscaping and floorspace that are consistent with the desired future character of the area as expressed in the planning controls for the site. Further, the proposed development provides design responses to address its context and low-density residential interface. It therefore responds appropriately to its surrounding context and does not have any unacceptable impacts.

The requirements of the SEPP RH

104. The Council raised, in its contentions (contention 2(b)) that the coastal use area considerations at s 2.11 have not been met. The experts did not give evidence concerning these provisions. The Council also submits, although not raised in its contentions, that the development standards under the SSLEP are inconsistent with ss 2.10 and 2.11 of the SEPP RH, such that the considerations within those sections prevail and no regard should be had to the applicable development standards.

105. Contrary to the Council’s submission, there is no inconsistency between the provisions of the SEPP RH and the provisions of the SSLEP and SSDCP. Mr Cole, who represents the Council, was unable to provide any detail around which words in ss 2.10 or 2.11 of the SEPP RH were in direct conflict with a provision in the SSLEP. Absent any such inconsistency, pursuant to s 4.15(1)(a)(i) of the EPA Act, the provisions of each of the SSLEP and the SEPP RH are both required to be considered as an “environmental planning instrument” and there is no hierarchy whereby one is afforded more weight than the other.

106. The SEE contains a suitable assessment of the proposal against ss 2.10 and 2.11 of SEPP RH. Further, for the reasons outlined in this judgment, we are satisfied that the development has been designed, sited and will be managed to avoid any adverse impacts (ss 2.10(2) and 2.11(1)(b)). The proposed development is for a form of development anticipated by the zoning and is designed to respond to its streetscape and neighbouring context, so that it does not have an adverse impact on the visual amenity and scenic qualities of the coast, or on cultural and built environment heritage. The stormwater is adequately dealt with so as to avoid any impacts on the biophysical, hydrological and ecological environment, or on coastal environmental values and natural coastal processes. There is no adverse impact on any of the matters outlined in ss 2.10(1) or 2.11(1)(a).

Future use of the development

107. The Council raised a number of concerns with respect to the enforceability of the conditions of consent, particularly in regard to ensuring there is compliance with the vehicular route to/from the site, the hours that those vehicles can travel, and the use of the egress pathway. It also sought to raise issues with respect to future use of the site, that may occur pursuant to a process by which a complying development certificate (CDC) can be obtained under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP ECDC).

108. We are satisfied as to the enforceability of conditions at Annexure A. We do not agree with the Council’s concerns that conditions that require self-regulation are inherently unacceptable, and prefer the position advanced by JS Adventure that the proposed development is to be understood as the development, including its operational conditions (see Lahoud v Willoughby City Council (2024) 259 LGERA 419; [2024] NSWCA 163 at [17-20], [34-35] and [39]). Further, it can be assumed that a person benefiting from development consent will comply with the conditions of the consent (see TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 160 at [13]).

109. Further, we do not accept the Council’s submission that consideration ought to be given to hypothetical changes in use of the premises. Any change in use through a development application or CDC would be required to be considered on its merits at the time (for a development application) or against the prescribed standards for a CDC, at the time of making such an application. Similarly, any application for the future removal of trees would have to be assessed by the Council in the ordinary course.

110. We are required to evaluate the merits of the proposed development in accordance with s 4.15 of the EPA Act. We cannot refuse this development application, because of what might happen on the site in the future based on a potential future application that has not yet been submitted.

The evacuation of residents

111. We have considered the contents of the Department of Planning, Land Use Safety Study – Kurnell Peninsula, February 2007. Whilst Mr Sheehan maintained some concerns about the impact of the development on the evacuation of residents from Kurnell peninsula in an emergency, the Council no longer presses the matters at cl 6.14(4) of SSLEP as a contention. Nonetheless, we have considered the findings of the Study, and we have formed the view that the operation of the depot, with a maximum of 15 staff and a low volume of truck and vehicle movements, will not create nor exacerbate any safety risks associated with evacuation of the Kurnell peninsula.

The development application should be granted

112. For the above reasons, none of the contentions raised by the Council warrant refusal of the development application. The proposed depot is a permissible land use in its zone, has bulk and scale that is significantly less than what is anticipated on the site by the applicable planning controls, and has incorporated specific design choices to respond to the surrounding locality, streetscape and reduce its visual impact.

113. In addition, there is no jurisdictional matter that would preclude the grant of development consent. The development application was accompanied by owner’s consent, has been notified and the submissions have been considered. Accordingly, development consent should be granted subject to the agreed conditions of consent.

114. The condition of consent that is sought by the Council that relates to an alarm on the emergency egress path is unnecessary, as other conditions of consent restrict the use of the pathway to an emergency. Any use of the pathway as a breakout space for employees would be contrary to the conditions of consent and would become an issue concerning compliance with those conditions, which can be dealt with through appropriate enforcement action. The additional alarm condition need not be imposed.

115. There is therefore no basis to refuse the development application, and it is granted accordingly, subject to the imposition of the conditions in Annexure A.

The final orders

116. The Court orders that:

117. The appeal is upheld.

118. The development application DA25/0004 for the construction of a warehouse building, office space, parking, landscaping and use of the building as a depot, at 108 Prince Charles Parade, Kurnell, is determined by the grant of consent subject to the conditions in Annexure A.

119. The exhibits are returned with the exception of exhibits A, B, H, J, and 9 which are retained.

J Gray and C Swan

Commissioner/Acting Commissioner of the Court

Annexure A (580 KB, pdf)

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