COMMISSIONER: appeal against Bayside Council's (Council) refusal of Modification No MDA-2022/16 (Modification) lodged with Council on 1 February 2022 to amend Condition 11A of Development Consent No. DA-2009/10208 (DA) to make permanent those hours of operation specific to Unit 10B currently available through a 12 month trial at Lot 100 in Deposited Plan 1213007, being the land known as 1/1A Hale Street, Botany NSW (Site).
The proceedings have been brought pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of the Modification.
The proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).
The statutory power or function to be exercised in determining the Modification is contained in ss 4.16(1)(a) and 8.14(1) and (2) of the EPA Act, and s 34(3)(a) and (b) of the LEC Act.
The business conducted at the Site by the Applicant is that of maritime container handling.
The Modification seeks to replace the previously approved hours of operation for Unit 10B on the Site, with the hours of operation that were available through the previously approved 12 month trial period. Condition 11A is a reviewable condition imposed on the consent that states the following:
"For Unit 10B only, container handling may take place during the following hours in accordance with the Noise Control Recommendations contained within the Environmental Noise Impact Report prepared by Day Design dated 26 June 2020:
Monday - Thursday: 5:00am to 7:00am
6:00pm to 8:00pm
8:00pm to 5:00am for a maximum of 15 minutes per hour
Friday Midnight to 7:00am
6:00pm to 8:00pm
Saturday 3:00am to 5:00am for a maximum of 15 minutes per hour
5:00am to 8:00am
1:00pm to 6:00pm
Sunday: 8:00am to 6:00pm
6:00pm to 10:00pm for a maximum of 15 Minutes per hour
Public Holidays 8:00am to 6:00pm
"Entry to the site during the hours of 8:00pm to 7:00am shall be via Luland Street only. All container handling shall comply with the NSW EPA Industrial Noise Policy for industry 2017.
"This condition is a reviewable condition pursuant to the Environmental Planning and Assessment Regulation 2000 which is limited to a trial period of twelve (12) months only.
……"
The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 29 May, 3 July, 7, 22 and 29 August, and 10 September 2024. I presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal, and approving the Modification subject to conditions.
Under s 34(3)(a) and (b) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16(1)(a) of the EPA Act to uphold the appeal, and approve the Modification, subject to conditions of consent in Annexure B. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how the jurisdictional prerequisites had been satisfied as follows:
1. The Modification was made pursuant to s 4.55(2) of the EPA Act, and was lodged with Council on 1 February 2022.
2. The Modification was made with the Owner's Consent pursuant to s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021 (Class 1 Application, Tab 5).
3. The Modification was determined by the Council pursuant to s 4.16(1)(b) of the EPA Act by way of refusal on 12 September 2023.
4. The subject appeal was filed on 25 October 2023 within the prescribed time period for the purposes of s 8.10(1) of the EPA Act.
5. The Modification seeks amendments to Condition 11A of the DA, and it is confined to the hours of operation of the container handling business. Pursuant to s 4.55(2)(a) of the EPA Act, the Modification is substantially the same development as the DA for which consent was originally granted (Canterbury-Bankstown Council v Realize Architectural Pty Ltd [2024] NSWLEC 31 taking an holistic approach to comparing the original DA with the Modification; and Arrage v Inner West Council [2019] NSWLEC 85 at [26]-[27]).
6. Consultation with the relevant Minister or a public authority or approval body was not required pursuant to s 4.55(2)(b) of the EPA Act.
7. Pursuant to s 4.55(3) of the EPA Act, the Council has considered the Modification against matters for consideration pursuant to s 4.15(1) of the EPA Act.
8. No reasons were set out in the Notice of Determination for the grant of consent to the DA dated 7 July 2009 (Feldkirchen Pty Ltd v Development Implementation Pty Ltd and Anor [2021] NSWLEC 116 at [71]).
9. The parties have, however, taken into account the planning history of the Site, including the facts and circumstances surrounding the grant of the DA, subsequent modifications and the approval by the Bayside Local Planning Panel of the modification to the DA providing for, in summary, extended hours of the Applicant's operation at unit 10B during the night time on a 12 month trial period basis.
10. State Environmental Planning Policy (Transport and Infrastructure) 2021 (T&I SEPP) is the principal planning instrument applying to the Site:
1. The Site is located within the IN1 General Industrial Zone.
2. Pursuant to Ch 5 - Three Ports - Port Botany, s 5.12 the objectives relevant to the Site are:
∙ To provide a wide range of industrial and warehouse land uses;
∙ To encourage employment opportunities;
∙ To minimise any adverse effect of industry on other land uses;
∙ To facilitate and encourage port related industries that will contribute to the growth and diversification of trade through the port;
∙ To enable development for the purposes of business premises or office premises associated with, and ancillary to, port facilities or industries.
∙ To encourage ecologically sustainable development.
1. The parties have had regard to the zone objectives pursuant to s 5.12 of the T&I SEPP, and ss 4.15(1)(a)(i) and 4.55(3) and of the EPA Act.
2. The parties are satisfied that, as a result of the amendments to the conditions of the DA, relating to mitigation of noise impacts for extended night time hours on a further monitoring basis, the amended conditions result in a development that is acceptable having regard to the objectives of the IN1 zone, including the objective to "minimise any adverse effect of industry on other land uses".
3. The parties are satisfied that the development consent as amended is satisfactory, having regard to the detailed additional conditions of consent imposed to mitigate noise impacts to adjoining residential zoned land, in particular the conditions requiring further acoustic monitoring and the provision of results to Council for a 12 month period following commencement of the Modification.
1. As the T&I SEPP is the principal planning instrument applying to the Site, the Bayside Local Environmental Plan 2021 is not applicable to the Site.
2. Pursuant to s 4.15(1)(c) of the EPA Act, the parties are further satisfied that the impacts of the Modification and the suitability of the Site are both satisfied in relation to approval of the Modification.
3. Pursuant to s 107(2) of the Environmental Planning and Assessment Regulation 2021 the Council notified the Modification between 10 February 2022 to 24 February 2022. Four submissions were received in response to the notification. Pursuant to s 4.15(1)(d) of the EPA Act, the parties have considered the issues raised in the submissions and are satisfied that the Modification as amended is acceptable.
4. Pursuant to s 4.15(1)(e) of the EPA Act, and based on the assessment of the Modification, the Council is satisfied that the amendments to the conditions of consent in the DA as Annexure B hereto are consistent with the public interest.
5. Council is satisfied that the Contentions raised in its Statement of Facts and Contentions filed 7 December 2023 have been resolved.
Taking into account the matters at [9], I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I further note:
1. After having perused the objectors' submissions, and hearing their oral submissions at the onsite view on 29 May 2024, I note the parties considered the reasons for the objections which resulted in further acoustic testing being carried out during specific times and under certain conditions.
2. The parties also negotiated a Plan of Management for the Site, with the purpose of reducing the acoustic impact of loading and unloading the shipping containers.
3. Botany Port requires shipping containers to be collected at certain hours, and picking them up at those specified hours meets the objective of the T&I SEPP.
4. I am not required, and I have not, considered the merits of the Modification.
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)(a) and (b) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
I shall uphold the appeal, and approve the Modification subject to Conditions in Annexure B pursuant to ss 4.16(1)(a) and 8.14(1) and (2) of the EPA Act.
The Court notes that Bayside Council, as the relevant consent authority, has agreed to the Applicant relying on the following additional documentation, pursuant to s 113(1) of the Environmental Planning and Assessment Regulation 2021:
1. Environmental Noise Impact Assessment prepared by Day Design Pty Limited, Report number 6981-3.1R, Rev C dated 12 July 2024; and
2. Plan of Management, prepared by Planning Ingenuity dated 4 September 2024.
The Court orders:
1. The appeal is upheld.
2. In relation to Unit 10B on Lot 100 in Deposited Plan 1213007 being the land known as 1/1A Hale Street, Botany, NSW, Modification application number MDA-22/16 for modification of DA-2009/10208, is determined by approval:
1. Development consent DA-2009/10208 is modified pursuant to the terms set out in Annexure A.
2. Development consent DA-2009/10208 as modified by the Court is Annexure B.
[2]
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Decision last updated: 17 October 2024