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[2025] NSWLEC 1197
General information, not legal advice.
Land and Environment Court (NSW)
2025-04-02
Horton C
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Waluya Pty Ltd v Minister for Planning and Public Spaces (No 2) [2025] NSWLEC 1197
Hearing dates: 7-8 November 2024: submissions on 20, 28 February 2025 and 5 March 2025
Date of orders: 02 April 2025
Decision date: 02 April 2025
Jurisdiction: Class 1
Before: Horton C
Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development consent is granted to development application 23/1084 seeking consent for a bus depot transport facility including a bus driveway and bus parking for 96 vehicles; an at-grade car park with 110 car spaces and 4 disabled car spaces, a two-storey administration building for staff and visitors, two storeys workshop for bus maintenance and repairs, hardstand for bus parking with an awning in the north east of the site, bus washing and refuelling facilities, earthworks, site security including electric fencing around the site, landscaping, retaining walls, and signage at 1-3 Faunce Street; 7A Racecourse Road; 9 Racecourse Road; 9A-11 Racecourse Road; 38 Young Street, and 50 Young Street, West Gosford, subject to conditions at Annexure A.
(3) All exhibits are returned, except for Exhibit A.
Catchwords: DEVELOPMENT APPLICATION – whether development permissible in B6 Enterprise Corridor zone – whether jurisdictional preconditions are satisfied – signage is consistent with objectives of Chapter 3 – signage satisfies assessment criteria in Schedule 5
Legislation Cited: Biodiversity and Conservation Act 2016, ss 6.5, 7.13
Environmental Planning and Assessment Act 1979, s 7.12
Land and Environment Court Act 1979, s 39
Roads Act 1993
Biodiversity Conservation Regulation 2017, cl 6.7
Environmental Planning and Assessment Regulation 2021, s 38
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 4, Sch 2, ss 2.3, 4.9
State Environmental Planning Policy (Industry and Employment) 2021, Ch 3, ss 3.1, 3.6, Sch 5
State Environmental Planning Policy (Precincts – Regional) 2021, Ch 5, ss 5.25, 5.26, 5.36, 5.39, 5.40, 5.43, 5.45, 5.48, 5.53
State Environmental Planning Policy (Resilience and Hazards) 2021, ss 2.10, 4.6
State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.122
Cases Cited: Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117
Waluya Pty Ltd v Minister for Planning and Public Spaces [2025] NSWLEC 1062
Category: Principal judgment
Parties: Waluya Pty Ltd (Applicant)
Minister for Planning and Public Spaces (Respondent)
Representation: Counsel:
A Pickles SC (Applicant)
F Berglund (Respondent)
Solicitors:
Mills Oakley (Applicant)
Department of Planning, Housing and Infrastructure (Respondent)
File Number(s): 2023/266853
Publication restriction: Nil
C****OMMISSIONER: On 6 February 2025, the Court published a preliminary decision Waluya Pty Ltd v Minister for Planning and Public Spaces [2025] NSWLEC 1062 (Waluya No.1) in this matter relating to a facility to accommodate passenger buses and other uses on land known as 13 Faunce Street, 7A, 9 and 9A-11 Racecourse Road, 38 and 50 Young Street, West Gosford (the site).
The Court found that the proposed development is permitted with consent in the B6 Enterprise Corridor zone, when the provisions contained in Ch 5 of State Environmental Planning Policy (Precincts – Regional) 2021 (Regional SEPP) are read together with those at s 2.112 of State Environmental Planning Policy (Transport and Infrastructure) 2021.
However, the Court also directed that the Applicant in these proceedings, Waluya, should file and serve documents to describe the signage proposed, pursuant to Ch 3 of State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP), and for the parties to file a supplementary joint expert report prepared by the traffic experts who were to confer on matters of signage and traffic safety.
On 20 February 2025, Waluya complied with the Court’s directions, and filed a Wayfinding and Business Identification Signage Report prepared by DEM dated February 2025 (Signage Report), and an Assessment of the proposed signage prepared by Urbis, dated 19 February 2025 (Urbis Assessment).
On 28 February 2025, the parties filed a supplementary joint expert report prepared by the traffic experts, Mr Brett Maynard, on behalf of Waluya, and Mr Andrew Morse on behalf of the Minister for Planning and Public Spaces (the Minister). The experts agreed an additional sign type should be added, identified as WS-04.
A consequential amendment to the Signage Report is appended to the supplementary joint report of the traffic experts, identified as Wayfinding and Business Identification Signage Report prepared by DEM dated 27 February 2025 (the Amended Signage Report). The Amended Signage Report includes WS-04.
On 5 March 2025, Waluya provided to the Court a supplementary assessment of the proposed signage prepared by Urbis and directed to the additional sign type WS-04 dated 3 March 2025 (Amended Urbis Assessment).
Read together, the Urbis Assessment and the Amended Urbis Assessment describe the signage proposed as comprising two kinds of signage:
Firstly, Wayfinding/Direction signage:
(a) Two illuminated signs, 1.1m high adjacent to both the northern and southern driveways, four in total, visible to vehicles travelling north or south along Racecourse Road. These signs are designated ‘WS-01’, to the northern driveway, and ‘WS-02’ adjacent to the southern driveway. (b) Regulation signage to restrict right turns for vehicles exiting the site at specific times, located on the northern side of the northern driveway.
Secondly, building identification signage in the form of an illuminated 4.3m high structure located at the main pedestrian entry along Racecourse Road, identifying ‘Busways Bus Depot’.
As stated in Waluya No.1, at [82], s 3.6 of the Industry SEPP precludes the grant of consent unless the Court is satisfied that the signage is consistent with the objectives of Ch 3 of the Industry SEPP, and that the signage proposed satisfies the assessment criteria in Sch 5 of the Industry SEPP.
The Urbis Assessment also provides an assessment of the proposed signage against, firstly, the objectives of Ch 3 of the Industry SEPP, and secondly, against the criteria at Sch 5 of the Industry SEPP.
In respect of the objectives at s 3.1(1) of the Industry SEPP, the Urbis Assessment is, in summary, that the signage will maintain the desired amenity and visual character of the locality, will provide effective communication as it is proposed in a location appropriate to guide drivers to the bus depot, and is of high quality design and materials.
In respect of the criteria at Sch 5 of the Industry SEPP:
The proposed signage is consistent with the character of the area by virtue of it being confined to site access points, and at a low height. As such, visual clutter is avoided.
The site is not located in an area of a kind identified in criteria 2 as special, and is not proposed to obscure a view or vista of a kind in criteria 3. Instead, the signage is proposed in a landscape buffer, and is designed to remain below the line of the building envelope proposed in the development. For these reasons, the signage is also consistent with the streetscape, setting and landscape in the vicinity of the site, and compatible with the scale and characteristics of the buildings proposed on the site.
The proposed signage does not include associated devices, logos or advertisements or advertising structures.
To the extent the signage is proposed to be illuminated, this is predominantly at a low level to avoid glare to passing motorists and is considered a functional requirement to guide bus drivers to the depot in low light.
The signage is proposed to be located at an angle to ensure an unobstructed view for drivers approaching the site, and is setback 600mm from the outer edge of the driveway to avoid impact from vehicles and is supported by a suitably qualified traffic expert for safety.
The experts agree the proposed signage raises no matter of traffic or road safety.
However, Mr Morse, traffic expert for the Minister, also notes that the signage proposed to the northern driveway of the site indicates the driveway is to be used by waste and other service vehicles.
In Waluya No.1, it was noted by the Court that the Operational Management Plan provides for the induction of drivers using the northern driveway. As the signage suggests the northern driveway is to be used also by waste and other service vehicles, Mr Morse considers it necessary to amend the without prejudice conditions of consent to require the induction of all drivers, and not merely bus drivers.
The experts agree the text of an amendment to the conditions of consent to provide for the same, and also agree that an amendment to the signage is also appropriate to the effect that ‘No entry – buses and authorised vehicles excepted’.
The Urbis Assessment supports the explanation of the signage proposed, at pp 20-23 of the Amended Statement of Environmental Effects, cited in Waluya No.1 at [83].
For the reasons set out in the Urbis Assessment, supported by statements in the Amended Urbis Assessment, I am satisfied that the signage proposed is consistent with the objectives of Ch 3 of the Industry SEPP, and that the signage satisfies the assessment criteria specified in Sch 5. I also accept the agreed position of the traffic experts that the signage proposed does not pose a risk to traffic or road safety.
In considering all of the issues arising in respect of traffic and road design, I also note there are matters of a jurisdictional kind to be considered at s 2.122 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport SEPP).
Written notice of the development application was given to Transport for NSW (TfNSW), in reply to which a response was received, dated 22 May 2023 (TfNSW Advice) (Exhibit E). The TfNSW Advice identifies Racecourse Road as an unclassified regional road, for which the Central Coast Council is the roads authority, in accordance with the Roads Act 1993.
The TfNSW also recommends consideration be given to equitable cost sharing of future road upgrade works, necessitated by the intensification of development within the Gosford CBD. I note that contributions under s 7.12 of the Environmental Planning and Assessment Act 1979 (EPA Act) are provided for within the without prejudice conditions of consent.
For the reasons set out in Waluya No.1 at [79]-[81], I consider the accessibility of the site to be adequately addressed pursuant to s 2.122(4)(b)(ii) and, as stated above at [18], I find the potential traffic safety, road congestion and parking implications arising from the proposed development to be satisfactory, pursuant to s 2.122(4)(b)(iii) of the Transport SEPP.
There are also other aspects of a jurisdictional kind that are necessary to consider prior to determining whether the application before the Court is deserving of the grant of consent. I will now consider those matters.
No part of the proposed development is above the height standard of 12m that applies to the site when the relevant map at s 5.25(2) of the Regional SEPP is considered.
A floor space ratio (FSR) of 1.5:1 is permitted on the site by the relevant map at s 5.26(2) of the Regional SEPP. The FSR of the proposal is 1.15:1 and so complies.
The site is not identified as an item of heritage significance, and is not located within a heritage conservation area. An Aboriginal Heritage Due Diligence Assessment prepared by Travers Bushfire and Ecology dated 14 December 2022 (Exhibit A, Tab 10) found no record of aboriginal sites, objects or areas where objects are likely to be located. As such, the heritage conservation provisions at s 5.36 of the Regional SEPP does not apply.
The site is identified within an area of Class 5 Acid Sulfate Soils (ASS). However, a Preliminary ASS assessment undertaken as part of a Geotechnical Investigation by Stantec dated 19 July 2024 (Exhibit B, Tab 11) concludes that ASS will not be encountered on the site, and so an ASS Management Plan is not required. On the basis of the site elevation above sea level, the extent of excavation proposed by the development and conclusions of the Geotechnical Investigation, I accept an ASS Management Plans is not required under s 5.39 of the Regional SEPP.
A Flood Assessment prepared by AT&L dated 7 May 2024 (Exhibit B, Tab 14g) identifies the site as prone to inundation, and concludes, following flood modelling, that the probably maximum flood flows can be conveyed across the site in a safe manner as overland flow, except for a portion of the site in the proposed southern driveway. TUFLOW modelling, amended as explained in the letter from AT&L dated 16 July 2024 (Exhibit B, Tab 15) indicates that the flood hazard across the site does not exceed Hazard value ‘H1’, which is considered generally safe for people, vehicles and buildings.
Where flooding is likely to impact the southern driveway, the Flood Assessment proposes automated gates to prevent access to the driveway whilever inundated.
A Flood Emergency Response Plan (FERP), also prepared by AT&L dated 18 July 2024 (Exhibit B, Tab 16) also identifies the flood behaviour originating from sources such as Narara Creek, stating the site itself is not prone to flooding in the 1% Annual Exceedance Probability event, but that Racecourse Road is. The FERP also outlines recommended responses to flood at Section 5.4. Reference to Flood Management is also made in the Operational Plan of Management (p 19).
On the basis of the above, pursuant to s 5.40 of the Regional SEPP, I am satisfied that the proposed development is compatible with the flood hazard of the land, and is not likely to significantly adversely affect flood behaviour of properties or the environment nor result in unsustainable costs to the community as a consequence of flooding.
Section 5.43 of the Regional SEPP precludes the grant of consent for a building on land in the B6 zone unless the building will have a street frontage of at least 24m. The proposed office building does not have a street frontage of at least 24m. In a jurisdictional statement provided to the Court during proceedings, Waluya submits that the site’s shape, topography and extent of fall restricts the ability for the site to achieve the frontage required by s 5.43(2) of the Regional SEPP, but that the proposal is consistent with the aims of Ch 5 of the Regional SEPP in any event.
The Addendum Statement of Environmental Effects prepared by Urbis dated 18 July 2024 (Amended SEE) (Exhibit B, Tab 1) also states that standard parking and manoeuvring requirement for a bus depot are not compatible with a street frontage greater than that provided by the office building.
A careful read of the architectural plans reveals, in my view, that the provision is met, but not by the proposed office building in the first instance. To the north eastern corner of the site is a building identified as the Workshop building that is shown on the First Floor Plan (ar-1202 Rev a05) (Exhibit B, Tab 3) to be 73.4m in length. The northern elevation is shown on the ground floor plan (ar-1200 Rev a05) at 32m in length. The Workshop building adopts the alignment of Young Street to the east of the site, and Faunce Street West to the north of the site, and clearly exceeds the minimum length of 24m, consistent with the objective at s 5.43(1) of the Regional SEPP to encourage the amalgamation of smaller lots to achieve the efficient development of land and design of buildings - albeit at a lower scale than may be considered common for a street frontage by virtue of the fall of the land and the excavation proposed in this corner of the site . The provision at s 5.43(2) of the Regional SEPP does not require the street frontage to have particular characteristics, such as an ‘active street frontage’ by the relevant map at s 5.48(1) of the Regional SEPP that identifies the location of such frontages.
As the proposed development involves the erection of a new building, development consent must not be granted unless the consent authority, or the Court on appeal, considers that the development exhibits design excellence, pursuant to s 5.45 of the Regional SEPP.
The Minister does not contend that the proposed development fails to exhibit design excellence, nor dispute the reasons set out on p 4 of the DA Design Report (Exhibit B, Tab 24) as to the grounds on which design excellence is achieved.
The DA Design Report provides detailed answers to each of the particular questions posed by the provisions at s 5.45 of the Regional SEPP by reference to sections within the DA Design Report, and does not merely consider the topics of those matters (Toga Penrith Developments Pty Limited v Penrith City Council [2022] NSWLEC 117, at [74]).
Having had regard to the detailed responses to those particular questions posed at s 5.45(4) of the Regional SEPP, I consider the proposal exhibits design excellence.
Key views and vistas are also identified in the DA Design Report, at p 21. A more comprehensive Visual impact Assessment (VIA), prepared by DEM Architects dated July 2024 (Exhibit B, Tab 6), also accompanies the amended development application, that according to Waluya demonstrates the proposal will protect and enhance key vistas and view corridors in Gosford City Centre. The VIA sets out the assessment methodology adopted at Section 4.1, comprising both landscape character impact assessment and visual impact assessment in a manner consistent with practice note EIA-N04 prepared by TfNSW in 2023. Ten key viewpoints are identified at Section 4.3.2 of the VIA, that are represented in photomontage images on pp 17-36. The VIA satisfies me that the proposal will protect and enhance those vistas and views represented in the Visual Impact Assessment, absent any other vistas identified as key, or any view corridors to which regard should be had at s 5.53 of the Regional SEPP.
Waluya advises that the site is identified on the relevant Coastal Environment Area Map as being within the ‘coastal environment area’ to which s 2.10 of State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) is directed.
The Amended SEE sets out grounds by which the potential adverse impacts at s 2.10(1) of the Resilience SEPP have been considered. On the basis of the following grounds set out at pp 16-20 of the Amended SEE, I am satisfied that the development is designed, sited and will be managed to avoid, minimise or mitigate an adverse impact of a kind referred to in subs 2.10(1):
I accept the site is highly disturbed by past industrial and warehouse uses, diminishing the ecological values of the site that are more fully described in the Biodiversity Development Assessment Report prepared by Travers Bushfire & Ecology dated 19 July 2024 (BDAR) (Exhibit B, Tab 12), and for which credits are assessed. As such, adverse impacts on the biophysical and ecological environment are mitigated.
In respect of surface and groundwater hydrology, I have considered the proposed stormwater drainage system set out in the Civil engineering drawings prepared by AT&L (Exhibit B, Tab 14b) and note stormwater is collected, stored and filtered before discharge to the nearby estuary. MUSIC modelling (Exhibit B, Tab 14d) predicts a reduction in post development flow, suspended solids, phosphorous, nitrogen and gross pollutants. Accordingly, I accept that adverse impacts on the hydrological environment and on water quality of the marine estate are avoided. Relatedly, I also accept the avoidance, minimisation and mitigation measures detailed on pp 56-59 of the BDAR as a valid basis to form an opinion of satisfaction that the potential impact on native vegetation and fauna is avoided, minimised or mitigated.
On the basis of the Geotechnical Investigation, I accept that groundwater management and earthworks have been considered in the site’s context, and that the reasons at (1) and (2) above likewise assist in forming an opinion of satisfaction that any adverse impact on coastal environmental values and natural coastal process have been minimised.
For reasons identical to those at [26], I accept that the potential for adverse impacts on aboriginal cultural heritage, practices and places is addressed and I am satisfied that any adverse impact has been minimised by undertaking such an assessment.
The Court is also required to consider whether the site is contaminated pursuant to s 4.6 of the Resilience SEPP. A Preliminary Site Investigation prepared by Stantec dated 27 March 2023 (Exhibit A, Tab 56), and a Detailed Site Investigation also prepared by Stantec and dated 8 February 2024 (Exhibit B, Tab 8) concluded that the site was contaminated. A hazardous materials survey was undertaken on the site by Remedy Enviro Services in May 2024 (Exhibit B, Tab 9).
A remediation action plan was also prepared, authored by Stantec dated 19 July 2024 (Exhibit B, Tab 10) that concludes the land will be suitable after remediation, for the purpose for which development is proposed to be carried out, and that the land will be remediated before the land is used for that purpose.
The conclusions are not contested and so, absent evidence to the contrary, I accept the site is capable of remediation in terms required by s 4.6 of the Resilience SEPP.
Chapter 4 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity SEPP) applies to the site by virtue of the local government area being nominated as a Koala management area in Sch 2 of the Biodiversity SEPP.
Where there is no approved koala plan of management in place, as is the case here, s 4.9 of the Biodiversity SEPP requires the relevant council, or the Court on appeal, to consider whether the development is likely to have an impact on koalas or their habitat.
The BDAR notes the nearest record of Koalas is over 2km from the site, documented in 2018, and where the highest concentration appears to be within Yengo National Park (p 42). Furthermore, while two tree species forming the habitat of koalas are found on the site, the BDAR concludes the site does not comprise core koala habitat.
A jurisdictional note prepared by Waluya states that the parties have considered the likely impact on koalas and agree that the proposed development will have no impact on koalas or on koala habitat.
On the basis of the assessment contained in the BDAR, and absent evidence to the contrary, I am satisfied that the development will have no impact on koalas or koala habitat, in accordance with s 4.9(3) of the Biodiversity SEPP.
The BDAR also assesses the impact of the proposal on other aspects of biodiversity, including threatened species, populations and ecological communities in accordance with the Biodiversity and Conservation Act 2016 (BC Act), identifying vegetation consistent with two plant community types (PCTs), and habitats attributed to two threatened fauna species for which a Serious and Irreversible Impacts (SAII) assessment is undertaken, in accordance with s 6.5 of the BC Act and the relevant principles at cl 6.7 of the Biodiversity Conservation Regulation 2017 (BC Regulation). The BDAR concludes there are no SAII communities impacted by the proposal.
The BDAR argues that impacts are minimised and mitigated through landscaping buffers that are consistent with PCTs evident on the site, to replace exotic species with native species so as to increase native species biodiversity and reduce the impact on native fauna, and concludes that biodiversity credits will offset any residual impacts. Pursuant to s 7.13 of the BC Act, I have considered the likely impact of the proposed development on biodiversity values as assessed in the BDAR. I note the Minister does not contend any deficiency in the BDAR. As such, I am satisfied that the applicable provisions of the BC Act and the BC Regulation have been satisfied, and that the agreed conditions of consent will meet the requirements of s 7.13(3) of the BC Act.
Finally, for completeness, I note Ch 2 of the Biodiversity SEPP, which deals with vegetation in non-rural areas, does not apply to land within Central Coast local government area (s 2.3(1)(a)) of the Biodiversity SEPP.
On 20 February 2025, Waluya served a copy of proposed without prejudice conditions of consent on the Minister.
On 24 February 2025, the Minister proposed an amendment to Condition E26 to cite the relevant signage documentation at Condition A2, and the supplementary joint report of the traffic experts filed 28 February 2025 proposed further amendments to the conditions of consent that have been incorporated.
On 5 March 2025, Waluya provided to the Court further amended conditions of consent incorporating the Urbis Assessment, the Amended Urbis Assessment and Amended Signage Report, that were subsequently filed.
On the basis of the findings made in Waluya No.1, and those contained in this decision, I determine the proposed development to be deserving of the grant of development consent, subject to those conditions of consent at Annexure A to this decision.
To the extent the Wayfinding and Business Identification Signage Report prepared by DEM dated February 2025 at [4] amends the development application, and to the extent it is further amended by that amendment proposed at [6], the Court, exercising its power under s 39(6) of the Land and Environment Court Act 1979, approves the amending of development application 23/1084 in accordance with s 38 of the Environmental Planning and Assessment Regulation 2021.
The Court orders that:
The appeal is upheld.
Development consent is granted to development application 23/1084 seeking consent for a bus depot transport facility including a bus driveway and bus parking for 96 vehicles; an at-grade car park with 110 car spaces and 4 disabled car spaces, a two-storey administration building for staff and visitors, two storeys workshop for bus maintenance and repairs, hardstand for bus parking with an awning in the north east of the site, bus washing and refuelling facilities, earthworks, site security including electric fencing around the site, landscaping, retaining walls, and signage at 1-3 Faunce Street; 7A Racecourse Road; 9 Racecourse Road; 9A-11 Racecourse Road; 38 Young Street, and 50 Young Street, West Gosford, subject to conditions at Annexure A.
All exhibits are returned, except for Exhibit A.
Annexure A (426395, pdf)
**********
Waluya Pty Ltd
Minister for Planning and Public Spaces