Spectrum Retail Group Pty Ltd v Lismore City Council

Land and Environment Court (NSW)|2022-03-21

Judgment

COMMISSIONER: This appeal concerns a development application (DA) by Spectrum Retail Group Pty Ltd (Applicant) for the demolition of existing structures and the construction of a service station and neighbourhood shop (Proposed Development) on land in South Lismore.
The Proposed Development will be carried out on the land described as Lots 1 and 2 DP 300777 and Lot 4 Section 2 DP 4372 known as 135 - 139 Union St South Lismore (Site). The Site is located on the corner of Elliott Rd and Union St, the latter forming part of the Bruxner Highway. It has an area of 1,865 m2 and is located in an area that is affected by flooding.
The DA was made to the Council on 11 February 2021 and was refused by the Council on 18 October 2021. The Applicant appeals from that decision pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court's jurisdiction.
In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.16 of the EPA Act.
The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 7 and 14 February and 16 and 21 March 2022. I presided over the conciliation conference.
At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was filed on 21 March 2022 and is supported by a Statement of Jurisdictional Pre-conditions provided by the Applicant on the same date. The agreement involves the Court approving the DA, subject to conditions of consent.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions.

General 1. The appeal was brought pursuant to s 8.7 and was made within the time required by s 8.10 of the EPA Act. 2. The Applicant made the DA with the consent of the owners of the Site in accordance with cl 23(1) of the EPA Regulation. 3. Notice of the DA was given by the Council to adjoining owners and occupiers between 17 February and 17 March 2021. Three submissions were made during the notification period and a further three submissions were received after the notification period had ended. The submissions raised issues which included: 1. The loss of the existing business on the Site known as "Skimmo's Corner Store" which is considered to have significant cultural, historical and community value. 2. The loss of business and jobs. 3. The lack of any need for another service station. 4. The risk of flooding. 5. The incompatibility of the Proposed Development and associated signage with the surrounding area. 6. Traffic congestion and hazards. 7. Noise impacts on nearby residences. 8. Environmental impacts on local waterways, specifically Hollingworth Creek. 1. I have considered these submissions in the determination of the DA.

Permissibility and zone objectives 1. The Land is within Zone B6 - Enterprise Corridor under the LEP. The Proposed Development is permitted with development consent on land within that zone. 2. Clause 2.3(2) of the LEP provides that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within that zone. The objectives of Zone B6 - Enterprise Corridor are: • To promote businesses along main roads and to encourage a mix of compatible uses. • To provide a range of employment uses (including business, office, retail and light industrial uses). • To maintain the economic strength of centres by limiting retailing activity. • To provide for residential uses, but only as part of a mixed-use development. • To encourage development that would not be suitable in Zone B3 Commercial Core due to its operational characteristics. 1. In determining the DA, I have had regard to those objectives. The Proposed Development will add to the mix of businesses along this section of the Bruxner Highway.

Earthworks 1. Clause 6.2(3) of the LEP provides that, in deciding whether to grant development consent for earthworks (or for development involving ancillary earthworks), the consent authority must consider the matters set out in that clause. I accept the agreed submission of the parties that the matters set out in cl 6.2(3) of the LEP are satisfactorily addressed by the DA. The proposed earthworks have been designed to minimise detrimental impacts on existing drainage or soil stability and will facilitate the proposed and potential future development on the site. I accept the parties' joint position that the works are concentrated on the slope located towards the rear of the site and will have minimal impact on adjoining properties.

Flood impacts 1. At the time the application was lodged (11 February 2021), cl 6.3 (flood planning) of the LEP applied to the Site as the Site was identified as being within the 'flood planning area' on the flood planning map referred to in that clause. On 14 July 2021, State Environmental Planning Policy Amendment (Flood Planning) 2021 (Flood SEPP) commenced and repealed cl 6.3 of the LEP. On the same date, the Standard Instrument (Local Environmental Plans) Amendment (Flood Planning) Order 2021 (Flood Order) commenced. 2. Clause 8(1) of the Standard Instrument (Local Environmental Plans) Order 2006 contains the following savings provision: (1) The amendments made by an amending order do not apply to or in respect of any development application that was made, but not determined, before the commencement of the amending order. 1. As a consequence, the new cl 5.21 in the LEP does not apply to the DA, which was lodged but not determined before 14 July 2021. 2. While the Flood SEPP repealed cl 6.3 of the LEP on 14 July 2021, it did not include a savings provision with respect to development applications lodged before 14 July 2021 and not determined by that date. 3. Having regard to the above, I conclude that neither the provisions of the former, and now repealed, cl 6.3 of the LEP nor the provisions of the new cl 5.21, intended to replace cl 6.3, apply to the determination of the DA. In this regard I note that Commissioner Bish came to the same conclusion in IDA Safe Constructions Pty Ltd v Central Coast Council [2021] NSWLEC 1434 at par [28] - [32] as did Commissioner Chilcott in Rothshire Pty Ltd v Fairfield City Council [2021] NSWLEC 1649 at par [48]. 4. Notwithstanding this conclusion, as noted earlier in this judgment, the Site is located in an area that is subject to flooding. One of the Council's contentions was that the DA should be refused, as it said the Proposed Development was not compatible with the flood hazard of the Site and that the Site was therefore not suitable for the Proposed Development. Section 4.15(1)(c) of the EPA Act requires the consent authority to consider the suitability of the Site for the Proposed Development. The parties agree, and I accept, that the introduction of additional flood mitigation measures (such as the collapsible acoustic wall, hydrostatic flood barriers and flood refuge area) now incorporated in the DA satisfactorily address this contention and make the Site suitable for the Proposed Development.

Drinking water quality 1. The site is identified as being within the Drinking Water Catchment on the Drinking Water Catchment Map referred to in cl 6.4 of the LEP and that clause therefore applies to the DA. Clause 6.4(3) of the LEP provides that, before determining a development application for development on land to which the clause applies, the consent authority must consider the following: (a) whether the development is likely to have any adverse impact on the quality and quantity of water entering the drinking water storage, having regard to the following - (i) the distance between the development and any waterway that feeds into the drinking water storage, (ii) the on-site use, storage and disposal of any chemicals on the land, (iii) the treatment, storage and disposal of waste water and solid waste generated or used by the development, (b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development. 1. Clause 6.4(4) of the LEP provides that development consent must not be granted to development on land to which the clause applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid any significant adverse impact on water quality and flows, 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. 1. I accept the parties' joint position that the Proposed Development includes the underground storage of liquid fuels which are to be stored in specially designed underground fuel tanks in compliance with the Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019 and NSW Environment Protection Authority (EPA) requirements. These include loss monitoring and leak detection systems integrated in the fuel tank along with management and monitoring procedures. The operational footprint of the service station will be covered in concrete hardstand, supported by a stormwater management system designed to EPA criteria, "Managing Runoff from Service Station Forecourts Standards". I accept the parties' position that, with the proposed conditions of consent, the sealed concrete hardstand, the provision of an effective stormwater management system, and the specially designed underground fuel tanks, the potential for contamination within the drinking water catchment is minimal.

Availability of essential services 1. Clause 6.9 of the LEP provides that development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available, or that adequate arrangements have been made to make them available when required: (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access. 1. I accept the joint position of the parties that all required services are available and will be constructed or supplied to a satisfactory level of compliance with the requirements of all relevant authorities.

State Environmental Planning Policy (Transport and Infrastructure) 2021(Transport SEPP) and State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) 1. Clause 45(2) of the Infrastructure SEPP (now cl 2.48 of the Transport SEPP) applies to the DA because the Site is both adjacent to a substation and within 5 m of an overhead electricity powerline. That clause requires the consent authority to give written notice of such a DA to the electricity supply authority, and to take into consideration its response (if any). In this case, the DA was notified to Essential Energy and I have taken into consideration its response (at pp 66 - 70 of Tab 13 of the Class 1 Application). 2. Clause 101 of the Infrastructure SEPP (now cl 2.118 of the Transport SEPP) also applies to the DA because the Site has a frontage to a classified road, the Bruxner Highway. Clause 101(2) of the Infrastructure SEPP provides that a consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that- (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of - (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. 1. An assessment of the Proposed Development against these provisions was carried out by the Applicant's traffic expert, Mr Brett Maynard who concluded that: 1. It is not practicable to provide vehicular access to the Site other than by the Bruxner Highway; 2. The safety, efficiency and ongoing operation of the Bruxner Highway will not be adversely affected by the Proposed Development; and 3. The Proposed Development is not sensitive to traffic noise or emissions because it is directly servicing road traffic, with no other independent uses or site occupants other than point-of-sale employees. 1. I accept those conclusions.

State Environmental Planning Policy (Resilience and Hazards 2021) (Hazards SEPP) 1. The provisions of State Environmental Planning Policy No. 55 - Remediation of Land (SEPP 55) were transferred to Chapter 4 of the Hazards SEPP on 1 March 2022. 2. Cl.4.6 of the Hazards SEPP (previously cl 7 of SEPP 55) provides: 4.6 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) 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 (c) 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. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subsection (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subsection (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is - (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land - (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge). 1. A Preliminary Site Investigation and report was submitted with the application (Tab 3K of the Class 1 Application) which concludes that the risk of soil contamination to human health is negligible and that the investigation area (development footprint) is suitable for commercial/industrial use. 2. The provisions of State Environmental Planning Policy No. 33- Hazardous and Offensive Development (SEPP 33) were transferred to Chapter 3 of the Hazards SEPP on 1 March 2022. 3. Clause 3.12 of the Hazards SEPP provides: 3.12 Matters for consideration by consent authorities In determining an application to carry out development to which this Part applies, the consent authority must consider (in addition to any other matters specified in the Act or in an environmental planning instrument applying to the development) - (a) current circulars or guidelines published by the Department of Planning relating to hazardous or offensive development, and (b) whether any public authority should be consulted concerning any environmental and land use safety requirements with which the development should comply, and (c) in the case of development for the purpose of a potentially hazardous industry - a preliminary hazard analysis prepared by or on behalf of the applicant, and (d) any feasible alternatives to the carrying out of the development and the reasons for choosing the development the subject of the application (including any feasible alternatives for the location of the development and the reasons for choosing the location the subject of the application), and (e) any likely future use of the land surrounding the development. 1. A preliminary hazard assessment was submitted with the DA (Tab 3J of the Class 1 Application) which identified that the service station fill points were less than the calculated setback distances to the southern boundary and therefore a risk screening analysis was also carried out. This concluded that the societal risk posed by the Proposed Development is negligible.

State Environmental Planning Policy (Industry and Employment) 2021 (Employment SEPP) 1. The provisions of State Environmental Planning Policy No. 64 - Advertising and Signage (SEPP 64) (other than cll 1, 2, 32 and 32A) were transferred to Chapter 3 of the Employment SEPP on 1 March 2022. 2. Clause 3.6 of the Employment SEPP provides that: 3.6 Granting of consent to signage A consent authority must not grant development consent to an application to display signage unless the consent authority is satisfied - (a) that the signage is consistent with the objectives of this Chapter as set out in section 3.1(1)(a), and (b) that the signage the subject of the application satisfies the assessment criteria specified in Schedule 5. 1. The objectives of the Chapter as set out in s 3.1(1)(a) are: (a) to ensure that signage (including advertising) - (i) is compatible with the desired amenity and visual character of an area, and (ii) provides effective communication in suitable locations, and (iii) is of high quality design and finish, and 1. I accept the parties' joint submission that the proposed signage is consistent with these objectives and that the proposed signage satisfies the assessment criteria specified in Sch 5 (previously Sch 1 under SEPP 64) (see page 37 of Tab 13 to the Class 1 Application).

Conclusion

As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to the agreement between the parties. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act.
The Court orders that: 1. The Applicant is to pay the Respondent's costs thrown away in the amount of $1.00 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA21/57, for the demolition of existing structures, removal of six (6) trees and construction of a service station and neighbourhood shop with associated site works on the land described as Lots 1 and 2 DP 300777 and Lot 4 Section 2 DP 4372 known as 135 - 139 Union St South Lismore, subject to the conditions in Annexure A.

Acting Commissioner of the Court Annexure A (403064, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 April 2022

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Judgment (13 paragraphs)

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Cases Cited (2)