Speed Gas Pty Ltd v Northern Beaches Council

Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183

Category: Principal judgment

Parties: Speed Gas Pty Ltd (Applicant)
Northern Beaches Council (Respondent)

Representation: Counsel:
L Nurpuri (Applicant)
A Stafford (Respondent)
Solicitors:
Mills Oakley (Applicant)
Northern Beaches Council (Respondent)

File Number(s): 2024/389804

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the decision of the Northern Beaches Local Planning Panel (panel) to refuse Development Application No DA2024/0149 (DA). The DA is described in the agreed consent conditions at Annexure A to this judgement, as follows (at p 1):

“Demolition of unauthorised structures, installation of a 30,000L underground LPG tank and a 15,000L liquid nitrogen tank, construction of a new filling platform and rooftop storage area and use of the site for the storage, maintenance and filling of gas cylinders and portable heaters for off-site distribution.”

2. Under s 8.15(4) of the EPA Act, Northern Beaches Council (Council) is the respondent in these proceedings subject to the control and direction of the panel.

3. At the parties’ request, the Court arranged a conciliation conference between the parties under s 34(1) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 1 and 2 October 2025 and at which I presided. The parties had reached an 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 granting development consent to the DA, as amended, subject to conditions.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, provided it is a decision that the Court could have made in the proper exercise of its functions. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent in accordance with the parties' agreement (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [62]-[65]). Ultimately, I find that there are none. But there are certain statutory questions which require attention before this function can be exercised by the Court. I attend to the relevant matters below, assisted by the advice in the parties' agreed jurisdictional note of 2 October 2025 (AJN).

Jurisdiction

Designated development

5. The parties advise the proposed development is designated development pursuant to s 4.10(1) of the EPA Act and s 7 of the Environmental Planning and Assessment Regulation 2021 (NSW) (EPA Regulation). The development is a chemical storage facility under Item 13(2)(e) of Sch 3 to that Regulation.

6. On 25 October 2023 the Secretary of the Department of Planning and Environment (as it was) gave notice of its environmental assessment requirements (SEARs) under s 176 of the EPA Regulation (Council's bundle of documents filed 22 September 2025 (Council’s bundle) Tab 7 f 359). Consultation requirements were set out at p 5 of the SEARs.

7. I am advised the environmental impact statement (EIS) addresses the EPA Regulation requirements for EISs and responds to the SEARs (AJ par 7.1), and further that the EIS addresses requirements of s 190 and 192 of the EPA Regulation with respect to form and content of the EIS (AJN par 6).

Warringah Local Environmental Plan 2011

8. The parties advise the site is zoned E4 General Industrial under the applicable Warringah Local Environmental Plan 2011 (WLEP) and that the proposal is permissible within this zone as a ‘warehouse or distribution centre’, ‘light industry’ and ‘local distribution premises’. Demolition is also permissible under cl 2.7 of WLEP.

9. Further, the parties directly advise that they agree the proposal is not appropriately characterised as a “heavy industrial storage establishment” under WLEP, which would have made the proposal prohibited in the E4 zone. I note and accept the parties’ advice as explained below.

10. The definition of “heavy industrial storage establishment” under WLEP is as follows:

“Heavy industrial storage establishment means a building or place used for the storage of goods, materials, plant or machinery for commercial purposes and that requires separation from other development because of the nature of the processes involved, or the goods, materials, plant or machinery stored, and includes any of the following—

(a) a hazardous storage establishment,

(b) a liquid fuel depot,

(c) an offensive storage establishment..”

11. The parties advise that the proposed storage does not “require separation from other development because of the nature of the processes involved, or the goods, materials, plant or machinery stored”. The parties’ reasoning is that the specialist appointed by the applicant drew this conclusion (Hazkem letter dated 24 July 2025). The reasons for this Hazkem conclusion is outlined as follows: “the quantity of the substances is limited and does not exceed guideline levels for State Environmental Planning Policy (Resilience and Hazards) 2021, the LPG tank will be installed underground, and liquid nitrogen is non flammable and non-toxic and will be stored above ground”. The parties also relied on the fact that the hazardous materials expert engaged by Council supports this conclusion and on these bases, the parties agree that no separation is required (AJN par 2.2(d)(i)). I accept that the development is not prohibited by the chapeau to the definition of “heavy industrial storage establishment”.

12. The parties further advise that the proposal does not include a hazardous storage establishment, a liquid fuel depot or an offensive storage establishment.

13. A hazardous storage establishment is defined as follows in WLEP:

“Hazardous storage establishment means a building or place that is used for the storage of goods, materials or products and that would, when in operation and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate the building or place from existing or likely future development on other land in the locality), pose a significant risk in the locality—

(a) to human health, life or property, or

(b) to the biophysical environment.”

14. The parties have the agreed view that the proposal is not a hazardous storage establishment under this definition (AJN par 2.2(d)(iii)). The parties rely on the Hazkem preliminary hazard analysis (PHA) which finds as such; and the fact that the PHA was independently reviewed by the hazardous materials expert engaged by Council. The parties agree that the development is not prohibited by virtue of paragraph (a) of the definition of "heavy industrial storage establishment". I accept the parties’ reasoning.

15. A liquid fuel depot is defined as follows in WLEP:

“Liquid fuel depot means premises used for the bulk storage of petrol, oil, petroleum or other inflammable liquid for wholesale distribution and at which no retail trade is conducted.”

16. The parties have the agreed view that the proposal is not a liquid fuel depot under this definition (AJN par 2.2(d)(ii)). The parties indicate the application is not for wholesale distribution but rather (according to the statement of environmental effects dated 13 May 2025) for distribution to end users: “(commercial and hospitality businesses) along with households” (as per AJN par 2.2(d)(ii)). Proposed Condition 52A provides that "Sale of LPG and nitrogen is to be made by distribution to ends users of the LPG or nitrogen and not to retailers or others who on-sell those products to third parties". For these reasons, the applicant and Council agree that the development is not prohibited by virtue of paragraph (b) of the definition of "heavy industrial storage establishment". I accept the parties’ reasoning.

17. An offensive storage establishment is defined in WLEP as follows:

“Offensive storage establishment means a building or place that is used for the storage of goods, materials or products and that would, when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate the building or place from existing or likely future development on other land in the locality), emit a polluting discharge (including, for example, noise) in a manner that would have a significant adverse impact in the locality or on existing or likely future development on other land in the locality.”

18. The parties are satisfied that the proposal does not meet this definition (AJN par 2.2(d)(iv)). The parties’ advice on this point includes the following:

“Given that nitrogen is odourless, non-flammable and non-toxic, liquid nitrogen is not a polluting discharge that would have a significant adverse impact in the locality within the meaning of “offensive storage establishment” in State Environmental Planning Policy (Resilience and Hazards) 2021 or the LEP. In respect of the LPG, the potential risk in this respect is associated with odour. There is an odour management plan dated 2 October 2025 prepared by Stephenson Environmental Management and conditions of consent requiring implementation of that plan and a condition requiring no degassing of cylinders. Following [objector] submissions on site yesterday, a condition is now proposed to ensure any LPG odour is managed in accordance with the odour management plan. With the relevant measures in place, the LPG will not be a polluting discharge that would have a significant adverse impact in the locality within the meaning of “offensive storage establishment” in State Environmental Planning Policy (Resilience and Hazards) 2021 or the LEP.”

19. This reasoning seems adequate to me. Based on the parties’ advice, I do not see the proposal as prohibited by virtue of paragraph (c) of the definition of “heavy industrial storage establishment”.

20. The parties advise of their consideration of the applicable E4 zone objectives and believe the proposal would give effect to them.

21. It is agreed that the site falls within a flood planning area. The parties AJN gives consideration to cl 5.21 relating to flood planning (par 2.6). The parties reasoning relies on the fact of the new liquid nitrogen tank being located on “stilt like legs which allow water to pass under” and that the LPG tank would be underground; and that the technical analysis in Council’s evaluation of the DA found favourably with respect to this provision. I accept the parties advice that I can be satisfied with respect to each of the provisions of cl 5.21(2).

22. The parties advise, and I accept, that cl 5.22 does not apply. Among other things it is noted that the proposal is not for sensitive and hazardous development, as defined, and that the site is within the "Low Risk Flood Precinct" (AJN par 2.7):

“As a consequence, and given the location, layout and flood behaviour, there is no reason to believe that people will require evacuation from the subject site and there are no particular safety considerations in respect of this land.”

23. With respect to cl 6.1 and acid sulfate soils, the parties advise a Preliminary Acid Sulfate Soils Assessment was conducted which found no detection of potential or actual acid sulfate soils. The preliminary assessment, prepared in accordance with the Acid Sulfate Soil Manual 1998 (consistent with cl 6.1(4)(a) of WLEP) and accepted by the parties, finds that no Acid Sulfate Soil Management Plan is required for this development.

24. The parties advise of their consideration of cl 6.2 (relating to earthworks) and that findings of satisfaction can been made in respect to the provisions of cl 6.4 (relating to development on sloping land), given evidence in the EIS. On the advice of the parties, I am satisfied with respect to the matters listed at cl 6.4(3).

25. I accept the advice of the parties that the proposed development would not contravene any development standards under WLEP, and that no further jurisdictional findings are required in relation to WLEP.

State Environmental Planning Policy (Resilience and Hazards) 2021

26. Chapter 3 (Pt 3) of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) concerns potentially hazardous or potentially offensive development. The parties’ shared view is that the proposal is not appropriately characterised as either (AJN par 3.2(a)). The parties do also note that the operative provisions of Pt 3 have been addressed in any event (AJN par 3.2(c)-(d)). That is, a PHA has been prepared in accord with s 3.11 and the various matters for consideration have been considered with respect to s 3.12. Chapter 3 of SEPP Resilience and Hazards does not act as a jurisdictional constraint to the parties’ agreed decision with respect to this matter.

27. Section 4.6(1) of SEPP Resilience and Hazards concerns contamination and remediation. The parties advise that there is no history or records of any incidents of contamination. The parties believe the site is not likely to be contaminated. The parties note that the land is already being used for industrial purposes and believe it is suitable in its current state for the development is proposed to be carried out. Conditions of consent are proposed to address risk of unexpected finds (eg Condition 37). The requirements of s 4.6(1) of the SEPP Resilience and Hazards are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

28. The parties advise that savings provisions at s 6.65 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 provide that the DA should be assessed against the now repealed 'Chapter 10 Sydney Harbour Catchment', which identifies planning principles for development in the Sydney Harbour Catchment (s 10.10) and Foreshores and Waterways Area (s 10.11); and, in relation to Heritage conservation (s 10.12). To the extent necessary I have taken into consideration the relevant matters at Pt 10.3 Div 2. I accept the advice of the parties that the proposed development would not adversely affect the environmental values of Sydney Harbour.

Other considerations

29. I note the advice of Council that the development application was notified in accordance with requirements, including with respect to its status as designated development and that submissions have been considered. Further I am advised that copies of submissions were forwarded to the Planning Secretary 2025 in accordance with s 4.16(9) of the EPA Act. I also note that one of the objectors made an oral submission prior to the site inspection for the conciliation conference. The parties advise that consideration has also been given to this submission. While unrelated to jurisdiction, I note the parties’ advice that certain agreed conditions relating to a required odour management plan were in response to a concern raised by this objector.

30. The parties advise that all other relevant considerations under s 4.15(1) of the EPA Act have been considered. I accept the advice of the parties that no further jurisdictional findings are required in relation to this matter.

Conclusion

31. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

32. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

33. The Court notes that:

34. Pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021, the Respondent consent authority has approved the Applicant’s amendment to development application DA2024/0149 to rely on the ‘Odour Management Plan’ prepared by Peter W Stephensen & Associates Pty Ltd dated 2 October 2025.

Orders

34. The Court orders that:

35. The appeal is upheld.

36. Development application DA2024/0149 for the demolition of unauthorised structures, installation of a 30,000 litre underground liquified petroleum gas tank and a 15,000 litre liquid nitrogen tank, construction of a new filling platform and rooftop storage area and use of the site for the storage, maintenance and filling of gas cylinders and portable heaters for off-site distribution at 47 Sydenham Road, Brookvale (being the land legally described as Lot 22 Section 3 DP 6033) is determined by the grant of development consent, subject to the conditions set out in Annexure A.

37. The development consent is to take effect from the date of these orders.

.…………………………

P Walsh

Commissioner of the Court

Annexure A (404 KB, pdf)

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