Warnervale Employment Zone Pty Ltd v Central Coast Council

Land and Environment Court (NSW)|2020-10-16

Judgment

COMMISSIONER: This is an appeal pursuant to s 8.15 of the Environmental Planning and Assessment Act 1979 (EP&A Act) against the deemed refusal by the Council of development application DA/795/2018 (DA) for a vehicle hire and sales premises at 450 Pacific Highway, Wyong (site).
I have determined that the appeal must be dismissed and the DA refused because: 1. The First Applicant no longer exists and the Second Applicant is not a person which has a right of appeal; 2. I am not satisfied as required by cl 7 State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) that the land is suitable, or will be suitable after remediation, for the purpose for which the development is proposed to be carried out; 3. Access to and from the Pacific Highway is unacceptable; 4. There is insufficient information to be satisfied as to the activities proposed to be carried out and that there are not unreasonable impacts from stormwater drainage, loss of vegetation and earthworks and the like.
My detailed reasons for these conclusions are set out below. Although in my opinion neither named Applicant is entitled to pursue this appeal, I have nevertheless dealt with the merit considerations of the appeal in the event I am wrong in that regard. I deal with the merit contentions separately, summarising the relevant statutory provisions, the evidence and submissions and determination in relation to each contention under the heading for that contention.
The Applicants' were represented by Mr R Clark who is a director of the Second Applicant, 422 Pacific Highway Wyong Pty Ltd (422 PH) and was, until its deregistration, a director of the First Applicant, Warnervale Employment Zone Pty Ltd (Warnervale). Mr Clark is not legally qualified, but during the hearing demonstrated an understanding of the legal process and was given significant latitude in presenting the Applicants' case. I explained various procedural aspects of the case to Mr Clark from time to time as was necessary and Mr Clark did not appear to hesitate to ask questions or seek to clarify a matter if he felt he needed to.

The Applicants

The DA was lodged on or about 13 July 2018 by Warnervale with the consent of the owners of the site Yialkin Shevket and Ozel Shevket. The appeal was lodged on 8 November 2018 against the deemed refusal of the DA, naming three Applicants: 40 Gindurra Road Somersby Pty Ltd, Warnervale and 422 PH.
On 3 December 2018 an Amended Application Class 1 was filed naming the Applicants' only as Warnervale and 422 PH, removing 40 Gindurra Road Somersby Pty Ltd as an Applicant. The amendment was made in response to observations made by Moore J in related proceedings in Class 4 of this Court's jurisdiction. Other than noting that the appeal in these proceedings was amended, nothing turns on the circumstances in which the amendment came to be made.
Shortly prior to the hearing the Council had filed and served an affidavit of Malakeh Domingo, the solicitor for the Council, affirmed 12 October 2020 in support of a motion it also filed but ultimately did not press. (The Council did read that affidavit in the hearing of the Applicants' motion). Annexed to that affidavit is an ASIC Current Organisation Extract which recorded that Warnervale was deregistered on 10 May 2020 pursuant to s 601AB Corporations Act 2001 (Cth).
The consequence of deregistration is that the corporation ceases to exist: s 601AD Corporations Act 2001 (Cth).
I drew that to Mr Clark's attention shortly after the hearing commenced. After indicating that he proposed to make an application for reinstatement the following ensued: "COMMISSIONER: I haven't said that the proceedings themselves are evaporated as it were. All I said was that Warnervale as an applicant does not exist and the only applicant remaining is 422 Pacific Highway Pty Limited, as at today. Because I cannot and will not speculate upon the consequences of any application for reinstatement. It simply means that Warnervale does not exist. There is however a second applicant, 422 Pacific Highway Wyong Pty Limited. Now in relation to that company Mr Clark, the development application according to the amended application you've filed was made by Warnervale Employment Zone Pty Limited. What role does 422 Pacific Highway Pty Limited have to play? CLARK: It has a common interest in the development of that property. COMMISSIONER: It has a financial arrangement with the company formerly that used to, was in existence as Warnervale Employment Zone? CLARK: Yes that's correct. COMMISSIONER: Is that arrangement recorded in writing? CLARK: Yes. COMMISSIONER: Have you provided any evidence of that? Sorry, let me get to the end very quickly. Warnervale had a right to appeal under the Environmental Planning and Assessment Act because it was the applicant for development consent. The right to appeal to this Court could only be maintained by either Warnervale or any principal for whom Warnervale was acting as an agent, if it was acting as an agent at the time of the lodgement of the development application. CLARK: Yes. COMMISSIONER: Otherwise 422 Pacific Highway has no right to prosecute this litigation. CLARK: If I could provide a copy. COMMISSIONER: Provide a copy of what Mr Clark? CLARK: The agreement your Honour. COMMISSIONER: Does it demonstrate there is an agency and principal relationship between Warnervale and 422 Pacific Highway? CLARK: Yes. COMMISSIONER: It does? CLARK: Yes." (Tcpt, 14 October 2020, pp 7-8)
I directed that Mr Clark provide a copy of that document to the Council and the Court by 6pm that day, 14 October 2020. The hearing then proceeded on the assumption that Mr Clark would be able to establish that 422 PH was a proper and lawful Applicant in the proceedings.
In answer to the direction Mr Clark produced the document which is reproduced below:
The document records the appointment of 422 PH as the agent of Warnervale. It does not demonstrate that Warnervale was acting as the agent for 422 PH when it lodged the DA or at all.
On the morning of the second day of the hearing the following exchange occurred: "COMMISSIONER: …Further in terms of housekeeping Mr Clark. My direction yesterday in response to your informing the Court that there was a document reflecting the agreement between Warnervale Employment Zone and 422 Pacific Highway was to supply to the council and the Court by 6pm yesterday a true copy of the document demonstrating the relationship between Warnervale Employment Zone and 422 Pacific Highway Wyong Pty Limited. A document which I will just hand down to you was received by the Court. I just ask you to look at that. Is that the document you produce in answer to that direction? CLARK: Yes that's correct. COMMISSIONER: Thank you I'll have that returned to the Court and Mr Clark you described yesterday that it was a financial relationship between the two companies and that that financial relationship was recorded in a document. But I take it there is no other document between these two companies, other than the one you produced. CLARK: Well there's some common interest documents which we have. But that was my understanding was you were looking for the agency agreement. COMMISSIONER: Well I made a specific direction to produce a document demonstrating the relationship between Warnervale and 422 Pacific Highway. In any event I think this should be marked as an exhibit. EXHIBIT #C PRINCIPAL AGENCY AGREEMENT BETWEEN WARNERVALE EMPLOYMENT ZONE PTY LIMITED AND 422 PACIFIC HIGHWAY WYONG PTY LIMITED DATED 22/12/17 TENDERED, ADMITTED WITHOUT OBJECTION COMMISSIONER: Mr Clark that document was brought into existence in 2017 is that right? CLARK: Correct. COMMISSIONER: And the development application was lodged when, 13 July 2018. Mr Clark on its face what this document says is that 422 Pacific Highway Wyong is the agent of the principal Warnervale Employment Zone. What I explained or endeavoured to explain yesterday was that what sometimes happens is a development application is lodged by one party or entity on behalf of another. For example an architect's firm might lodge a development application on behalf of its client. CLARK: Yes. COMMISSIONER: In which case the architect's firm is the agent for a principal being their client. In the course of the judgment yesterday, I also indicated that we were proceeding on the assumption that when Warnervale Employment Zone Pty Limited lodged the development application it was assumed to be lodged both on behalf of itself and as agent for 422 Pacific Highway Wyong. Therefore 422 Pacific Highway Wyong on that assumption, would be entitled to prosecute these proceedings as an applicant dissatisfied with a determination of the council. The document you have provided indicates that Warnervale has at all times been a principal and 422 Pacific Highway Wyong being an agent. When the development application was lodged by Warnervale Employment Zone Pty Limited, this document doesn't suggest it did it in any other capacity other than in its own capacity and not as agent for 422 Pacific Highway Wyong. On its face, there is no material before me at the present time which would indicate there is any right for 422 Pacific Highway Wyong to pursue these proceedings. I put you on notice of that issue again now. I put you on notice yesterday when the material about the ceasing to exist of Warnervale Employment Zone Pty Limited was discussed. So what you will need to address in due course, because I would not insist that you address it now, is the capacity or is the manner in which 422 Pacific Highway Wyong Pty Limited can pursue these proceedings. That's a matter raised by me. I don't know whether the Council was going to or would have. But it's my job to ensure that as far as the Court is concerned, only those persons who are entitled or entities that are entitled to be parties to proceedings are parties to proceedings. So you will need to take that on notice and it will need to be dealt with, I suspect first thing tomorrow morning." (Tcpt, 15 October 2020, pp 2-4)
The Council did not move for summary dismissal, and it was my opinion that it was not appropriate to require Mr Clark to deal with the issue other than in final submissions. Had the Applicant(s) been legally represented I would not have taken that course.
In my opinion, although the Council took no active part in any debate about the entitlement of 422 PH to prosecute the appeal, it was important to the integrity of the Court process that only entities who are entitled so to do, engage the Court in the exercise of its powers. That said, the fact that the deregistration of Warnervale had only very recently come to light, meant that Mr Clark was entitled some time to consider the position and was only required to make such submissions as he wished at the conclusion of the hearing. There was no further material tendered by or relied upon by Mr Clark in relation to this issue.
In submissions Mr Clark took the Court to an interlocutory decision of Robson J in related Class 4 proceedings Central Coast Council v 422 Pacific Highway Wyong Pty Ltd (No 2) [2018] NSWLEC 97. Mr Clark pointed out that in that case he was named as the authorised agent for 422 PH.
The following exchange occurred: "CLARK: So the Court accepted that we had implied authority as 422 Pacific Highway to act on the development. COMMISSIONER: Where do I see that? You're being granted leave to act as agent for those two companies. An agent can only do something on behalf of a principal that exists. Warnervale doesn't exist. Nobody can pretend to act on behalf of Warnervale now because Warnervale doesn't exist. My question to you from day one has been how does 422 Pacific Highway Wyong propound this appeal, and I gave you examples of how a development application may be lodged as agent for some other party, and you indicated there were documents in existence in relation to the relationship between Warnervale and 422 Pacific Highway. You produced a document and said that that is the whole of the document, or that's the document which reflected what the direction was, to provide any documents evidencing a relationship between the two companies. That's exhibit C, and that document does not fall within the category of appointing Warnervale as the agent of 422 Pacific Highway for the purpose of lodgement of the development application. It simply is an agent and an agency agreement whereby Warnervale is the principal of 422 Pacific Highway Wyong is the agent, so it doesn't fall within the category of the documents which I said is sometimes the case when a development application isn't lodged, and that's why I explained that yesterday and invited you today to make submissions. I wasn't going to summarily dismiss the application but I wanted your submissions as to on what basis you suggest 422 Pacific Highway can prosecute this appeal. If there's something in this judgment which assists, please take me to it. This appears to be a decision in relation to, it's a motion to amend the summons, and also to seek interlocutory relief against 422 Pacific Highway and Warnervale Employment Zone, and undertakings given by "cease importation of fill". So there was an interlocutory regime established it seems by agreement between the parties recorded by his Honour. CLARK: Agreement between the parties, yep. Implied authority is inferred from the conduct of the parties in the circumstances of the case." (Tcpt, 16 October 2020, pp 42-43)
No other submission was made by Mr Clark.
Section 8.7(1) of the EP&A Act provides: (1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.
The right of appeal is a statutory right vested in the applicant for development consent, if it is dissatisfied with the determination of the application. It is well settled that an applicant for development consent may have been performing that function as agent for a principal, and accordingly the principal has a right of all appeal although the development application was not in its name. It was most aptly put by Craig J in Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 (Betohuwisa) at [54] after reviewing the authorities: "54…the right to appeal afforded by s 97 [now s 8.7] is restricted to the "person" making the development application, or if made in an agency capacity, then that person's principal."
Earlier at [44] ff, his Honour rejected the argument in that case that the applicant for the purposes of s 97 (now s 8.7) includes "those persons so closely related to [the applicant for development consent] as to be regarded as the privies of the applicant such as agents, mortgagees, persons to whom the applicant has divested all conceivable rights in the property including the right to develop it".
Warnervale does not exist. It cannot prosecute this appeal. Even if Mr Clark and/or 422 PH is its agent, it is trite to say that an agent has no greater right or power than its principal. If the principal does not exist, then the agent for that now non-existent principal cannot take any steps purporting to be on its behalf.
There is no evidence that at the time of lodgement of the development application Warnervale was acting on behalf of 422 PH as well as or instead of itself. The only document produced by Mr Clark appoints 422 PH as the agent for Warnervale. It does not establish that Warnervale was at any time the agent for 422 PH.
Mr Clark had every opportunity to produce any document which would establish the entitlement of 422 PH to prosecute this appeal. The only document he has produced is the agency agreement to which I have referred which does not assist his argument.
The fact that Mr Clark has been entitled to act as the agent of 422 PH and Warnervale in other (albeit related) proceedings is not to the point. It does not establish the necessary relationship to entitle 422 PH to be an applicant in these proceedings. I should also add, that consistent with the decision in Betohuwisa, a financial relationship between 422 PH and Warnervale, if there be one, would not have been sufficient to entitle 422 PH to be exercise the statutory right of appeal in s 8.7 of the EP&A Act.
It follows that in my opinion the proceedings are now incompetent because one of the named Applicants no longer exists and the other is not a person who was an applicant for development consent as that term is properly understood in s 8.7 of the EP&A Act. That is sufficient to dispose of the appeal, but in the event I am not correct in that conclusion, I will deal with the matters of merit raised by the Council in its contentions.

The Site and Locality

The site has an area of 31.72 hectares and is an irregular shape. It has a frontage to the Pacific Highway and is located in close proximity to the intersection of Johns Road/Pollock Avenue and the Pacific Highway, an intersection which is a roundabout.
There are residential properties to the south, light industrial uses to the north and a large mostly vacant site to the west. To the east across Pacific Highway is generally low-density housing.
The site is zoned B6 Enterprise Corridor pursuant to Wyong Local Environmental Pan 2013 (WLEP 2014). The land to the south, west and north is also zoned B6.
The Court conducted a site inspection. In Court after the site inspection I recorded the following observations with which the parties agreed: "I observed the entry, I observed the existing house. The location of the proposed relocatable shed to operate as what is described on the plans as a gatehouse. The location of the proposed external WC and the site of a proposed sewer connection. It was indicated by Mr Clark that it is proposed that the existing dwelling be used for the purposes of an office and that the toilet facilities within that dwelling be available to those who work in the office. And that the external toilet facilities would be a chemical toilet. That is, by way of a septic tank and which would be for use by those non-office persons who are visiting the site or staff who are in the yard or the parked car area. I noted that the site has variable levels throughout, it is uneven. There are large areas of informal berms, some covered with weeds, others less so. There has obviously in the past been significant disturbance to the site over a number of years. One area of a weed and grass covered mound, Mr Clark described as natural, having been undisturbed for at least four years and that area is identified in the shape of an eye in the central part of the site, best shown in the aerial photograph on sheet 4 of 4 of the plans within exhibit A. Other areas of mounding, Mr Clark said he did not know what was beneath the grass or weeds. On the northern side of the site at a point about 15 metres from the northern boundary and about halfway down that boundary the parties agreed that the ground level was one to one and-a-half metres above the natural ground level at the base of a tree adjacent to the northern boundary, also around halfway down the northern boundary. That ground level referred to is not on a berm, but the general ground level in that location on the southern side of an informal berm. I also observed the remnant forest the subject of one of the council's contentions at the western end of the site, the site of the proposed sediment pond and where the road widening proposal is in the south east corner of the site. Although I have been informed it is common ground that there has not yet been an acquisition by the RMS. I noted the layback or entry to the site from the Pacific Highway has a driveway width of about 6 metres and there was some additional informal driveway area to the north of the main driveway which is directed to the north." (Tcpt, 15 October 2020, pp 4-5)
It is readily apparent that there have been significant earthworks in the past, the natural ground level is not easy to discern for much of the site, and the present levels of the site vary considerably. It is likely, on the basis of inspection alone, that significant quantities of material have been brought onto the site in the past. Some of the material is in the form of informal berms up to about 1 - 2 metres in height.
The expert evidence of the Council planner Ms E Goodworth, which was not challenged, includes the observation (at [3.1] that on 1 November 2018 there was significant fill on the site with stockpiles approximately 2m in height when standing on the ground level which had also been filled.
The site and surrounds, zoned B6, are planned as an area to be regenerated with commercial uses including business, office, retail and light industrial uses. It is fair to say that that regeneration is in its infancy, as there is limited new development. Mr Clark through his corporate entities seeks to be part of that regeneration.

The Proposal

The proposal is largely encapsulated in four plans which are Annexure A hereto. The principal elements of the proposal, as shown on the plans and as explained by Mr Clark, are: 1. the sealing of virtually the whole of the site but for the elements described below; 2. a landscaped berm around the perimeter of the site with a dish drain; 3. a sedimentation pond in the north western corner; 4. provision for parking for 180 vehicles which will be available for rental; 5. a relocatable office to be used as a gatehouse; 6. provision for staff parking; 7. the use of the existing dwelling as an office; 8. the connection of wastewater from the existing house to the Council's sewer main within the property known as 462 Pacific Highway; 9. the provision of an external toilet and wash basin which will be a "chemical toilet" which will not be connected to the sewer but will be pumped out at regular intervals; 10. entry from and exit to Pacific Highway on a "left in left out" basis; 11. removal of some "dangerous trees" and retention of others.
Mr Clark said that the facility will operate with no customers coming to the site. There will not be sales of vehicles, only rental of vehicles. He likened the proposed operation as analogous to Domino Pizzas. Whereas Domino Pizzas delivered pizzas, this operation will deliver rental vehicles. That is, a customer will arrange for hire of the vehicle by telephone or internet and the rental car will be delivered to the person's desired location for the commencement of the rental period. It will also be collected at the customer's location at the end of the rental period.
There will be five "yard" staff for the delivery, pick up and maintenance of vehicles. And potentially two additional staff in the office at the site.
Mr Clark says that the available soil/fill on the site will be utilised for the base of the sealed areas and the perimeter, and if any additional material is required it will be imported. He was unable to identify any particular quantity which will be required.

Contention 1 - The Proposal is a sham

Mr Clark correctly observed that the word "sham" is not defined in the EP&A Act, nor is it a term used in the Act. The heading to the Contention may tend to divert the reader from the real question raised by the Council which arises from the description of Contention 1 beneath the heading: "The application should be refused because the real use of the site to (sic) which consent is being sought, is the filling and stockpiling of material, not a 'vehicle sales or hire premises'."
The Council relies on two elements: 1. The existence of prior disposal of fill to the site; and 2. The inadequacy of the information provided in support of the DA which would enable its characterisation as for the purpose of vehicle sales or hire premises.
In my view Contention 1 disguises what is the proper question to be asked, and which is only implicit in the Contention. The DA is for a specific purpose. It is the obligation of the Court to determine that application, for that purpose. If there is insufficient information to be satisfied that the DA is for the stated purpose then the DA must be refused and the appeal dismissed.
The Council in its submissions invites the Court to conclude that there are two independent uses being proposed - a "waste disposal facility" and a "depot". The first question truly is whether the DA is for the stated purpose. If the answer is "no" then that is the end of the exercise. It is not the task of the Court to then seek to characterise the activities for which development consent is sought and determine whether or not those purposes are lawful if the purpose is not the purpose for which consent is sought. The task is to determine the development application before it, including the purpose identified which the activities are said to serve. (The foregoing is on the assumption that, as here, a proponent does not assert two different paths to approval by identifying two different possible purposes which embrace the activities sought to be approved.)
There is an overlap between this Contention and Contention 6, which is that there is not adequate information to enable a proper assessment of the proposal. In many respects the same facts are relied upon by the Council to assert that the inadequacy of the information leads to an inability to characterise the purpose as "vehicle sales or hire premises" and to assess its impacts.
Mr Clark relies upon the plans and Statement of Environmental Effects, and submits that a vehicle hire or sales premises is a true characterisation of the DA. He says that the site in its present condition requires regrading and that regrading must occur to enable the sealing of the surface to enable the proposed use, and that there is sufficient detail to conclude the use is for vehicle sales or hire premises.
The Council relies on the unchallenged evidence of Ms Goodworth, and in its submissions identifies the following matters which it says go both to the characterisation issue and the ability to assess the environmental impacts of the proposal: 1. There has been filling of the site and the present levels are unknown; 2. Further filling is proposed from an indeterminate present level to a higher but also indeterminate level; 3. The further filling is inconsistent with the long section in the plans for which consent is sought leading to further uncertainty; 4. The unclear and conflicting information has implications for stormwater disposal, sewerage connections, impacts on vegetation and amenity of neighbouring properties; 5. No building is proposed for the display of vehicles for sale whereas in correspondence with the Council the Applicant referred to an existing car sales facility with showrooms as being the nature of the operation, casting doubt on the bona fides of the newly amended application for rental only; 6. The Applicant had previously identified an office off site as part of the operation; 7. There is a paucity of detail about the use and how it will be conducted; 8. There is no proposal for washing or cleaning or maintaining of vehicles; 9. The business model of delivering all rental vehicles to customers is implausible.
It is useful to recall the short summary of earlier cases by Preston CJ in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell) at [27]-[28]: "27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534. 28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": at 508."
Characterisation of proposed activities is objectively determined by reference to the application and its relevant context. It is not determined simply by reference to the stated intention, nor because a particular label is attached to the proposed activities.
I accept that the DA is for the purpose of a vehicle sales or hire premises. That is what the plans show and what is described in the Statement of Environmental Effects and the additional information provided. That the characterisation is done at a level of generality (Chamwell at [36]) assists the Applicant, because much of the detail is lacking. It is true, as the Council submits, that the DA relies on the existence of the earlier introduction of fill onto the site, however the existence of the fill itself does not render the land use something else because the proposed activity involves the regrading of the site before its sealing. That is, any activity which may have constituted earthworks or storage of fill, or a waste disposal facility is overtaken by the event of the activities proposed in the DA.
Whilst it is arguable that Mr Clark, as the directing mind of the interested corporate identities, has simply sought to identify a lawful use to which the site in its existing condition may be put, including any imported fill, and has no real intention to carry out that use or purpose, nevertheless I accept the DA on its face is one of vehicle sales or hire premises and there is a sufficient description of what activities are proposed to constitute that purpose.
Whether or not there is sufficient information to enable the proper assessment of the DA is another question altogether and is dealt with below.

Contention 2 - Contaminated Land

The Council contends that the Court cannot be satisfied that the site is suitable for the proposal as required by cl 7 SEPP 55.
Clause 7 provides: 7 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 subclause (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 subclause (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, …
Clause 7 of SEPP 55 is a precondition to the grant of development consent. In the absence of satisfaction under cl 7, development consent cannot be granted.
The Council relies on the evidence of Ms Goodworth who identifies that the proposal is a change of use from a dwelling house to vehicle sales or hire premises. As such, she says, sub-clause (2) is engaged. Next she says, having regard to the location, size and improvements on the site, the prior use of the site was likely to be agricultural activities (poultry sheds or orchards). Table 1 to the Contaminated Land Planning Guidelines includes such agricultural activities.
Therefore, she concludes, the site is land identified in subcl (4) and so subcl (2) requires the consent authority to consider a preliminary investigation of the land before granting consent. The Council submits there is no document which constitutes a preliminary investigation before the Court.
In addition, the Council points to clause 3.7 of Chapter 6.11 of Development Control Plan 2013 - Development Controls for Wyong Shire (WDCP 2013): "A preliminary Contaminated Lands Assessment was provided as part of the rezoning process for the B6-Enterprise Corridor rezoning which identified sites where historic land uses have increased the potential for site contamination to be present and are likely to require management prior to changes in land use. The identified sites will require further investigation with regard to potential on-site contamination due to historic land use."
The present site is identified in WDCP 2013 as one to which clause 3.7 applies.
Mr Clark does not dispute the analysis of Ms Goodworth in relation to SEPP 55, nor the operation of clause 3.7 of WDCP 2013. He does however point to a document forming part of the DA entitled Environmental Management Plan (EMP) which he says satisfies cl 7 of SEPP 55. The EMP is written by Mr J Moyle, described as a Licenced (sic) Asbestos Assessor, of JM Enviro Services. It states it is prepared for Commercial Building Pty Ltd of 450 Pacific Highway, Wyong.
Unsurprisingly, having regard to its title, the Environmental Management Plan makes provision for the management of impacts from the development of the site including contamination in the event it is encountered. It identifies protocols to be observed during development but appears not to be directed to any particular form of development, nor does it appear to be site specific.
More importantly the EMP does not report on any investigation of the site, review any investigation by others, report on any sampling of the site, refer to the state of the site, or refer to any imported fill. In short, the EMP is a standard template form of EMP which does not in any way resemble a preliminary investigation into the potential for contamination of the site.
I accept the evidence of Ms Goodworth that the proposal is a change of use from a dwelling house to vehicle sales or hire premises and that subclause 7(2) is engaged. I also accept that the prior use of the site was likely to be agricultural activities (poultry sheds or orchards) as identified in Table 1 to the Contaminated Land Planning Guidelines for the reasons she identifies.
Accordingly, pursuant to subcl 7(4) SEPP 55 I am required to consider a report specifying the findings of a preliminary investigation prior to determining an application for development consent. There is no preliminary investigation report and therefore I do not have power to grant development consent.
I should add that because the site is identified in WDCP 2013 as potentially contaminated based on investigations prior to rezoning the site, SEPP 55 was also engaged. The factual finding about the historical use above is reinforced by the provisions of WDCP 2013.
Quite apart from the provisions of SEPP 55, WDCP 2013 itself requires the Applicant to carry out an investigation into the possible contamination of the site before any development consent would be granted. It was not done. Therefore, as a matter of merit assessment, I would not have granted development consent without a proper understanding of the nature and extent of any contamination of the site and the steps required to deal with that contamination.
That conclusion is only reinforced by the extent of the earthworks which have been carried out, including the importation of fill onto the site. It is incumbent on an applicant for development consent to ensure that the site is in a condition suitable for any proposed development, especially when the likelihood of the existence of contamination is as high as it is in this case.
The DA must be refused because of the failure to satisfy the Court in accordance with cl 7 of SEPP 55. It also should be refused because of the failure to address contamination of the site as required by WDCP 2013.

Contention 3 - Sewage services

During the hearing Mr Clark made it clear that the application included a waste disposal system whereby the sewage from the existing dwelling, whilst presently a septic system, would be connected to the Council sewer when the dwelling is converted into an office. The connection point is to be in the rear of 436 Pacific Highway, to the south of the site.
The Council's Senior Development Assessment Engineer Mr M Kimura gave written and oral evidence. He accepted in cross-examination that there was a sufficient fall in the land so that the connection was feasible. Mr Kimura however opined that a concept plan for sewage disposal should be provided before any grant of development consent and that there was no such plan.
Clause 7.9 of WLEP 2013 provides that: 7.9 Essential services 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.
The Council submits that the operation of cl 7.9 of WLEP 2013 extends to the manner in which access to an essential service is provided, even where that service is presently available. I do not agree. Clause 7.9 requires the availability of the essential services either at the time of the grant of consent, or satisfactory arrangements for their future availability when required. The clause does not itself require an analysis of how the essential service will be utilised.
There is no issue that the sewer main and subsequent treatment facilities are capable of receiving the sewage waste from the site. I am satisfied the service is available. The real question is not whether I am satisfied under cl 7.9 WLEP 2013, but whether there is sufficient information to be satisfied that sewage can be connected to the sewer main.
Although the information about the connection is scant, if this was the only matter in issue then I would not have refused the DA. It is likely that having accepted that a connection to the sewer main is physically feasible, conditions of consent could be imposed to ensure that connection is carried out in an environmentally sound manner.
The outside "chemical toilet" is not proposed to be connected to the sewer. Mr Kimura, unchallenged in this regard, says that such an arrangement is only appropriate for temporary uses such as festivals and markets. He says that given the number of people entering the site, a more robust and permanent arrangement is required. Consistent with the water and sewer load generated by an industrial use, I agree. It is not appropriate to have a basic "pump out" style facility for the anticipated load and with its attended risks of failure and environmental harm.
If this DA was otherwise capable of approval, I would have required the outside toilet facility to be connected to the sewer or deleted altogether and all staff use the facilities within the existing dwelling/future office.
I would not refuse the DA on the basis of the Council's contention concerning inadequate arrangements for the provision of sewage services.

Contentions 4 and 5 - Roads and Access

The WDCP 2013 provides a form of masterplan for the development of the land zoned B6 including and in the vicinity of the site. In relation to access, it is proposed that there be a single intersection into the area with new roads to be constructed giving access to the various lots. Access to and from Pacific Highway is prohibited.
Mr Clark is frustrated that as he seeks to redevelop the site, the roads which are intended to provide access to the rear of the site have not been constructed. That frustration is understandable if a landowner wishes to proceed with a redevelopment but requires other landowners to construct new roads in conjunction with their developments, and they are not in the process of doing so. It is evident from material Mr Clark provided to the Court that he has endeavoured to encourage the construction of the roads and I accept that it is not likely that rear access to the site will be available in the immediately foreseeable future.
The Applicant is therefore reliant upon access to and from Pacific Highway as the only available access to a public road. There is a legitimate argument that departure from the WDCP 2013 prohibition can be justified to enable redevelopment of the site when the alternative access proposed in WDCP 2013 is not going to be available for some time. However, any access to be provided for a new development must be safe and not impede the proper operation of the Pacific Highway.
The Council contends that the site is not suitable for the proposal due to the safety and traffic management risks associated with the location of the driveway. It relies on the provisions of cl 2.8(g) of the WDCP 2013 prohibiting access to the Pacific Highway and cl 101 of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) which provides: 101 Development with frontage to classified road (1) The objectives of this clause are - (a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and (b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads. (2) The 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.
The Pacific Highway is a classified road for the purposes of cl 101 of SEPP (Infrastructure). The Council contends that the safety, efficiency and ongoing operation of the Pacific Highway will be adversely affected by the development as a result of the design of access and the nature, volume and frequency of vehicles using the Pacific Highway access point.
The Applicant relies on a report from Motion Traffic Engineers dated July 2018 entitled Intersection Assessment of a Proposed Enterprise Gateway Development (Motion report) lodged with the DA. It is not an expert report in the proceedings, but part of the material lodged in support of the DA. Its author is unnamed.
Some observations need to be made about the Motion report. First, it does not indicate it is directed to the impacts of this DA. It states that its task it to "undertake an intersection assessment of a Proposed Industrial Development (sic) at 450 Pacific Highway, Wyong". It does not state what that industrial development is.
The intersection being assessed is the intersection of a driveway to the site with the Pacific Highway. It does not provide a detailed design of the driveway or state the assumed design of the driveway which is being assessed.
The Motion report says the following under the heading "Traffic Volumes": "The truck movements of the site will be a maximum of 30 per day. The truck arrivals will be staggered across the day. It is estimated that 30 number (sic) of trucks will enter and exit the site during peak hours."
It is troubling that the Motion report is clearly internally inconsistent in identifying the number of truck movements. The report makes no mention of car movements.
The Motion report then purports to conduct a SIDRA analysis of the intersection on the assumption of 30 trucks arriving and 30 trucks leaving the site during the morning peak hour and the afternoon peak hour. It concludes: "- The proposed industrial development is a modest trip generator for the AM and PM peak hours. - The additional trips from the proposed industrial development can be accommodated at the nearby (sic) intersection and road network without noticeably affecting intersection performance, delays or queues."
Mr M Kimura gave evidence on behalf of the Council. He said that the Motion report addressed a 12 metre truck and it should have addressed a 25 metre truck which is the type used to deliver motor cars. He said the driveway design does not accommodate such a truck and the width of the Pacific Highway is inadequate to allow the necessary movements of such a truck. He also pointed out that sight distances were not calculated as part of the report to determine if the driveway crossing is safe. He also pointed out the merging of northbound lanes in the vicinity of the site creating unacceptable lane discipline conflicts.
In Mr Kimura's opinion the proposal is unacceptable because the intensification of the existing vehicular access, nature, volume and frequency of vehicles entering and exiting the site will result in an unsafe and inefficient outcome for all road users including those generated by the subject development.
Mr Clark cross-examined Mr Kimura and invited him to make different assumptions about vehicle movements, including that there be no truck movements to and from the site at all. Mr Kimura maintained that additional car movements, even assuming 30 per hour in peak hour, would be of concern as to the safe and efficient operation of the Pacific Highway.
Transport for New South Wales (formerly Roads and Maritime Services) objected to the proposal after it was notified. It stated that it did not support the continued use of the driveway access in the present location for any use other than for the existing dwelling.
I am unable to be satisfied that the safety, efficiency and ongoing operation of the Pacific Highway will not be adversely affected by the proposal.
It is entirely unclear how many vehicle movements will be generated by the proposal and when they will occur. It is an essential component of the process leading to the satisfaction required by cl 101 SEPP Infrastructure that the vehicle movements generated by the proposal are identified. Without that information, it is plain that the impact on the Pacific Highway cannot be properly assessed. Without that proper assessment I cannot be satisfied.
Second, I accept the evidence of Mr Kimura. The driveway is in a difficult position relative to both the roundabout intersection to the south and the merging lanes almost immediately to the north. The speed limit on the Pacific Highway in this location is 70 kph and there is no information as to the 85th percentile speed at the intersection, which is the usual basis of traffic management planning. The Motion report states an "average speed" in the order of 60 kph without identifying how that average was determined and why it is an appropriate measure of safety.
The driveway design is rudimentary with no measures designed to cater for any truck movements and is unchanged from the present design to service a single dwelling.
The Motion report does not properly identify the proposal as the one it is assessing and is internally inconsistent in its assessment of vehicle movements. It fails to assess sight distance requirements, an essential component of considering the safety of movement.
Whilst the prospect of access to Pacific Highway cannot be totally discounted in the event no other access is available for the site upon its redevelopment, there is insufficient evidence to enable me to be satisfied as required by cl 101 of SEPP Infrastructure. On the merits, in any event the proposal fails for the reasons I have stated.

Contention 6 - Insufficient Information

The Council contends that the application should be refused because the submitted documentation and plans do not provide adequate information to enable a proper assessment of the proposal. I agree. I will deal with the principal matters where the lack of information or its inadequacy is fatal to the application, which is in addition to the shortcomings I have already identified.

The levels of the site

It was apparent from the site inspection that the levels on the site vary considerably and presumed imported material has altered natural ground level. There is no survey which indicates what the levels are generally across the site.
Mr Clark relied upon contours drawn on Plan 2 described as the Traffic Management Plan. However, there is no information or evidence about the source information of the contours. There is no survey from which they were obtained and no indication of the date of the contours.
The contours alone are unreliable without more to determine the relevant levels of the site. Without information about site levels it is not possible to determine the extent of earthworks required and whether any additional material is to be brought on to the site.

Stormwater management

The majority of the site is to be sealed, that is, there will a very large amount of hard surface. Mr Clark relies on the notations on Plan 3 which show proposed falls across the site so that rainwater will make its way to the sedimentation pond in the north western corner of the site. He also indicated that the dish drain around the perimeter will also direct water to the sedimentation pond.
There is however no information about the quantity of water which will be collected during any particular storm event, how it will be transported to the sedimentation basin, whether the basin will cope with the flow and where any overflow from the basin will go. There is the bare statement that water will be reused for irrigation of the landscaping but there is no detail at all about that aspect of the proposal.
Quite simply, proper management of stormwater is a significant requirement of any development, and especially a development such as that proposed here with a very large area of hard surfaces.
This application fails to identify properly how stormwater is to be managed in an environmentally appropriate way.

Impact on Endangered Ecological Community

In the far western part of the site is a remnant endangered ecological community, Swamp Sclerophyll Forest (the EEC). Dr C McLean, the Principal Environmental Planner of the Council made a statement concerning the EEC and noted that no ecological assessment was submitted to Council of the removal of the EEC. No evidence was led by the Applicant and Dr McLean was not cross-examined.
Dr McLean concluded that whilst there was not likely to be a significant impact on the species, he nevertheless identified that there were likely to be direct and indirect impacts on the EEC which have not been assessed. That conclusion is correct.

The use of the dwelling

It is proposed that the existing dwelling be utilised as an office. There are no plans at all showing how the dwelling is to be used in that fashion. The proposal cannot be approved in the absence of a plan showing how an important element of the proposal is to function.

The nature of the operation

The proposal has been described in various ways by the Applicant. From a form of caryard including sales, to rental only with no customers on the site. Trucks, then no trucks accessing the site. These are but examples of how the proposal has varied over time, often in response to the identification of an issue by the Council, but without detail of what is actually proposed, including such matters as fencing, lighting and security.
A complete and accurate description of the proposal is necessary to enable its proper assessment.

Contentions 7 and 8 - Compliance with WDCP 2013 and Public Interest

It is not necessary to deal with the specifics of WDCP 2013. The non-compliances with WDCP 2013 largely mirror the criticisms of the application which are recorded in the earlier contentions and which I have dealt with above.
Nor indeed is it necessary to consider any question of public interest. Suffice it to say that it is not in the public interest to grant a development application with the shortcomings which I have set out.

Conclusion

The DA must be refused and the appeal dismissed for the reasons I have stated. Accordingly, I make the following orders: 1. The appeal is dismissed. 2. Development application DA/795/2018 for a vehicle hire and sales premises at 450 Pacific Highway, Wyong is refused. 3. The exhibits other than exhibits A, B and 1 are to be returned.

Acting Commissioner of the Court Annexure A (6280140, 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: 23 November 2020

(2007) 151 LGERA 400

(2010) 177 LGERA 312

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