Wechsler v Parramatta City Council

The site and its context

1. The site comprises two lots legally known as Lot 1 of DP 455462 and Lot 2 Section 47 DP 5818. It is currently vacant and has a combined area of 2682m2. Together the allotments form a corner site with frontages to Silverwater Road (42.04m) and to Derby Street (57.91m). The site is level, with a natural fall to the north-west to Silverwater Road. Adjoining the site to the east and south are two storey warehouse buildings with large concrete parking and delivery areas. Across the road and opposite the site on Derby Street is a one storey equipment hire company, and opposite the site on Silverwater Road is a range of one and two storey industrial and commercial units, and a petrol station.
2. The site benefits from development consent DA 129/95 granted by the former Auburn Council on 10 October 1995 (and modified on 20 June 2001) for the construction of three industrial units for manufacturing and warehouse purposes. Some works have been carried out following the grant of consent, including the installation of stormwater lines, 61 piers bored and socketed into shale bed rock and a sewerage drainage system, preparation of a slab sub grade level and compacted, and establishment of site power. There is some dispute between the parties as to whether that development consent has lapsed, however I need not make a determination in that regard.
3. The site is identified on the Environmental Protection Authority's "List of NSW contaminated sites notified to the EPA." An environmental site assessment found the presence of volatile organic compounds on the site, including total petroleum hydrocarbon and chlorinated hydrocarbon detected along the eastern boundary, believed to be as a result of the operational history of the adjoining property to the east.
4. The site is located within the Silverwater Industrial area and the locality comprises a range of industrial buildings, including petrol storage facilities, distribution centres, small scale light industrial premises, small scale warehousing, goods hire facilities, and petrol stations. The development surrounding the site generally consists of one and two storey warehouse, distribution and light industrial units containing large footprints.

Planning controls

1. Section 79C(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 79C(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
2. The subject site is located within the IN1 General Industrial zone under the Auburn Local Environmental Plan 2010 ("ALEP 2010"). Self-storage facilities are an innominate use permitted with development consent in the zoning table for the IN1 General Industrial zone.
3. Clause 2.3(2) of the ALEP 2010 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are: "• To provide a wide range of industrial and warehouse land uses. • To encourage employment opportunities. • To minimise any adverse effect of industry on other land uses. • To support and protect industrial land for industrial uses. • To encourage economic growth of the locality. • To minimise adverse effects on the natural environment."
4. Clause 4.4(2) of the ALEP 2010 establishes floor space ratio ("FSR") controls in accordance with the FSR maps. Pursuant to those maps, the applicable FSR control for the site is 1:1. The proposed development has a FSR of 2.67:1, which exceeds the maximum floor space control by 167%. There is no height control applicable to the site.
5. Clause 4.6 allows a variation to development standards to be permitted, and provides as follows: "4.6 Exceptions to development standards (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Secretary has been obtained. …"
6. The Auburn Development Control Plan 2010 (ADCP 2010) also applies. It sets out provisions in relation to industrial areas, parking and loading, stormwater drainage, and tree preservation, which are considered below.
7. The State Environmental Planning Policy No 55 - Remediation of Land ("SEPP 55"), the State Environmental Planning Policy No 64 - Advertising and Signage ("SEPP 64") and the State Environmental Planning Policy (Infrastructure) 2007 ("Infrastructure SEPP") also apply.

Evidence

1. The Council relied on the expert evidence of Mr Rofail, stormwater engineer; Ms Fleming, arborist and Ms Baretto, traffic engineer. In considering the proposal, I am also assisted by the evidence of Ms McCabe and Mr Gosling, town planners, who participated in a joint conference of experts, prepared a joint report and gave evidence at the hearing.
2. Dr Wechsler also gave evidence by affidavit. However, in his affidavit he purported to give expert opinion based on his experience and qualifications as an engineer, and on his completion of botany as a first year elective at university. The Council objected to the reading of the affidavit on the basis of it containing opinion evidence. I upheld that objection only insofar as it related to those paragraphs of the affidavit that contained opinion evidence, as I found that it is inappropriate for a person who is an applicant and an advocate for themselves, to also adduce expert evidence, particularly in circumstances where the evidence is sought to be adduced after the individual expert reports have been filed. Although I have confidence that Dr Wechsler holds the qualifications and experience that he asserts, any expert evidence must be adduced in accordance with the requirements of the Uniform Civil Procedure Rules 2005 ("UCPR"). Directions to allow Dr Wechsler to rely on evidence of his own expert opinion were not made by either the Assistant Registrar or Robson J when the matter was before them for directions, and so in accordance with r 31.19(3) the evidence cannot be adduced. I also note that my decision reflects the framework for the giving of expert evidence established by the UCPR, which requires an expert to uphold the duty to the Court and adhere to the Code of Conduct contained in Schedule 7 by ensuring that he or she "…is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness". The present circumstances can be distinguished from Pittwater Council v A1 Professional Tree Recycling Pty Ltd 165 LGERA 1; [2008] NSWLEC 325 and Nash v Minister Administering the Environmental Planning and Assessment Act 1979 [2007] NSWLEC 624, in both of which the expert witness was an officer, employee or director of the party to the proceedings and a legal representative was advocating on behalf of that party.

Bulk, scale and the floor space ratio

1. The Council's contention is first that development consent should be refused because the proposal does not comply with the floor space ratio standard, resulting in a bulk and scale with an unacceptable impact, and the request to vary that standard should not be granted. The experts agree that the FSR of the proposal is 2.67:1, which is significantly larger than the development control of 1:1. The non-compliance therefore results in an additional 4478m2 of floor area.
2. Clause 4.6 of ALEP 2010 provides a degree of flexibility in the application of development standards to achieve better outcomes for and from development in certain circumstances. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7, Preston CJ found that in applying the provisions of cl 4.6, the power to allow an exception to a development standard can be exercised where the Commissioner is satisfied that: 1. the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)) (at [7]), 2. the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)) (at [7]), 3. the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i)) (at [38]), and 4. the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i)) (at [38]).
3. In outlining (3) and (4) above, His Honour stated that the Court need not be directly satisfied that compliance is unreasonable or unnecessary and sufficient environmental planning grounds exist, but rather "only indirectly by being satisfied that the applicant's written request has adequately addressed" those matters.
4. The objectives of the FSR control are set out in cl 4.4 and are as follows: "(a) to establish a maximum floor space ratio to enable appropriate development density to be achieved, and (b) to ensure that development intensity reflects its locality."

The clause 4.6 request

1. Dr Wechsler lodged a revised cl 4.6 request, which outlines the basis upon which he says that a variation to the FSR standard should be granted. By way of summary, the request makes the following points (inter alia):

• The proposed development has a similar building envelope and form to other permissible uses on the site, and only breaches the FSR because of the proposed use as a self-storage facility, which requires the additional floor space to enable customers to access the storage units.
• Warehouses and distribution centres generally store goods within a single storey and use machinery to access stored goods, and a warehouse that does so could be constructed with the same volume as the proposed development. The proposed development, if constructed in that fashion, would have a FSR of 0.65:1 but would not be able to serve as a self-storage facility.
• It is not appropriate to use the FSR as a measure of bulk, scale and intensity in this instance because the nature of the self-storage facility is different to other goods storage facilities, and the same bulk and volume can be achieved with a compliant FSR.
• The intensity of use of a self-storage facility, where customers attend infrequently to store, access and retrieve their goods, is less than that of a warehouse, which is used daily at higher frequencies to despatch goods.
• As noted in the traffic and parking assessment, traffic generated for a self-storage facility is less than that for a warehouse development.
• The ALEP 2010 does not prescribe a maximum building height for the site, and the height of the proposed building, which is 15.01m, is consistent with the building heights of other industrial development within the Silverwater industrial area.
• To comply with the FSR control and remain a self-storage facility, the building would have a height of 4m with approximately 30% of the building having a two storey component. This would render the self-storage facility uneconomic, and the building would be smaller in height than the majority of buildings in the area.
• Allowing four storeys would make it an economically viable self-storage facility.
• Self-storage facilities provide opportunities for business start-ups and assist other businesses overcome short term storage problems, and the facility therefore supports the economic activity of the area.
• There are negligible, minimal or unlikely to be adverse impacts caused by the additional floor space.

1. Mr Gosling gave evidence consistent with the above points, and gave evidence that in his opinion there is no characteristic height of buildings or built form either along Silverwater Road or within Silverwater industrial area. Mr Gosling's evidence was that the reason for this is because the buildings are constructed to suit the function of the industry for which they are used.
2. Mr Gosling also gave evidence that representatives of Kennards were of the view that the economic viability of a three-storey proposal was questionable, which is supported by evidence demonstrating that the estimate of the initial rate of return of a three-storey proposal would be less than what Kennards considered as an acceptable return.
3. Dr Wechsler also submits that the proposal is consistent with the zone objectives because it will generate activity in an area that is otherwise "stagnant". However, this submission was not supported by the evidence of either town planning expert, who both agreed that the area is active with industrial uses.

The Council's response to the clause 4.6 request

1. The Council submits that the written request does not adequately address the matters required by cl 4.6(3)(a) and (b), in that it does not demonstrate that there are sufficient planning grounds to justify contravening the standard and that compliance is unreasonable or unnecessary.
2. The Council relied on the evidence of Ms McCabe, who opined firstly that the site is a cleared unconstrained site which only needs to retain the mature Lemon Scented Gum located on the Silverwater Road frontage, and that therefore development can occur on the site within an envelope created that meets the FSR control and accommodates the functions required. Secondly, Ms McCabe opined that there is nothing specialised or particular about a self -storage facility that warrants the additional floor space and the additional height generated as a result. Her view is that the reason for not having a height limit is to allow industrial operations to be accommodated at a height that is particular to their function, and as a result buildings in the vicinity are in the order of 8-12m, have one or two storeys, and large floor to ceiling heights. Thirdly, Ms McCabe is of the view that a four storey building, as proposed, does not result in development of appropriate density, and that therefore the proposal does not meet the objectives of the FSR control. Her evidence is that the built form of the proposal is larger than anything surrounding the site, and the floor area is in excess of that anticipated by the controls and results in a development that is unnecessarily high. She says that a building that would generate a FSR that complied would result in a less intense building and one that could arguably be lower and comprise greater landscaped area. Finally, her evidence is that the proposal does not meet the objectives of the zone as it does not encourage employment opportunities, in that it only employs one full time employee, and it adversely impacts the natural environment because of the risk it poses to the Lemon Scented Gum.

The clause 4.6 request cannot be granted

1. In considering each of the four requirements set out in Randwick City Council v Micaul Holdings Pty Ltd, I find first that the proposal is in the public interest insofar as it is consistent with the objectives of the zone. To be "consistent" requires general consistency only. Therefore, an employment opportunity for one person, although not generating a large number of positions of employment, is nonetheless consistent with the objective to provide employment opportunities. Further, I accept the evidence of Mr Gosling that self-storage facilities, by their nature, support the economic activity of the area by assisting businesses and new business start-ups to overcome short term storage problems, and the facility therefore supports the economic activity of the area.
2. As to the second requirement, however, I am not satisfied that the proposal is consistent with the objectives of the control and therefore in the public interest in that respect. Clause 4.4(1) sets out those objectives, and makes a distinction between enabling "appropriate development density to be achieved" (cl 4.4(1)(a)) and ensuring that the "development intensity reflects its locality" (cl 4.4(1)(b)). In making such a distinction, I am of the view the "intensity" relates to the frequency of use and the number of movements in, to and from the site, including traffic movements. I accept that, in accordance with cl 4.4(1)(b), the intensity of the proposed self-storage facility is compatible with, or reflects, the intensity of the locality, given the evidence that its usage will be less intense than that of the neighbouring warehouse units.
3. In considering cl 4.4(1)(a), the question of what is "appropriate development density" in the present circumstances is difficult considering the mix of uses that are contemplated in an industrial zone. In this respect, the "density" must be construed as a reference to firstly the size and number of units of use within a given area (in that high density results in smaller sized uses in larger numbers, such as units in a residential flat building), and secondly, the bulk and scale that results from applying the FSR control. With the latter, the greater the FSR control, the more bulk and scale you can have on each property, which results in a locality that is denser in bulk and scale. I accept the first element of density is achieved by the proposal, in that the facility proposes one use to operate over a parcel of land in a manner and with a site coverage that is commensurate with other industrial land uses in the locality. However, as to the second element, I accept the evidence of Ms McCabe that a four storey facility is not consistent with an objective to achieve "appropriate development density" given the bulk and scale envisaged by the FSR control and characteristic of the immediate locality through industrial uses of either two storeys or equivalent heights. The evidence is that the proposal will result in a building that is 4.4-4.7m higher than the adjacent building to the east, and 4-5m higher than the buildings in the locality, which makes the proposal disparate from the bulk and scale of the locality. This is despite the evidence that the proposal otherwise complies with the building setbacks and landscaping requirements, and maintains the street trees characteristic of Silverwater Road. Whilst industrial uses are built to the height required for their function, I accept the evidence of Ms McCabe that the FSR control limits the bulk and scale across the site and this proposal fails to do so.
4. The third requirement is that the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case. Whilst I accept that the request establishes, in general, that strict compliance may be unreasonable or unnecessary for a self-storage facility in the particular zone given the additional floor space that is inherent in that use, it does not go so far as to demonstrate why compliance with the standard is "unreasonable or unnecessary" in the circumstances of the present application. In Wehbe v Pittwater Council 156 LGERA 446; [2007] NSWLEC 827, Preston CJ at [44]-[48] detailed a number of alternate approaches which might establish that compliance with a development standard is "unreasonable or unnecessary" for the purposes an objection to a development standard under the State Environmental Planning Policy No 1 - Development Standards. Whilst the policy does not apply to the present application, the approaches detailed by Preston CJ inform how cl 4.6(3)(a) might be satisfied. Those approaches are that:

• The objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe v Pittwater Council at [44]),
• The underlying objective or purpose of the standard is not relevant to the development (Wehbe v Pittwater Council at [45]),
• The objective would be thwarted if compliance was required (Wehbe v Pittwater Council at [46]),
• The development standard has virtually been abandoned or destroyed by the Council's own actions in departing from the standard (Wehbe v Pittwater Council at [47]), or
• The zoning or the standard is unreasonable or inappropriate (Wehbe v Pittwater Council at [48]).

1. Given my finding that the proposal is not consistent with the objectives of the standard, the first approach is not made out. Further, none of the other approaches are established by the request. As such, I cannot be satisfied that, in the circumstances of the present case in which Dr Wechsler is proposing a four-storey building, the request establishes that compliance with the development standard is "unreasonable or unnecessary".
2. The fourth requirement is that the written request adequately demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. I accept that it does. This is because the request outlines that the additional floor space required for a self-storage facility means that the proposed use is sufficiently unique in the zone to allow the FSR control to be applied flexibly.
3. However, this does not mean that it justifies a contravention of the FSR to the extent that it is proposed, particularly given the finding above that the proposal is not consistent with the objectives of the FSR standard. The evidence that a three storey facility does not meet the desired rate of return is not a relevant consideration in determining whether a four storey facility can be supported on planning grounds.
4. Accordingly, the cl 4.6 request must be refused on the basis that the proposal is not consistent with the objectives of the FSR control, and on the basis that the request does not establish that compliance with the control is "unreasonable or unnecessary" in the present application. Cl 4.6(3) states that where the request does not establish the requisite matters, development consent "must not be granted for development that contravenes a development standard". In light of this, there is no power to grant development consent for the current proposal.
5. However, I note that if the proposal was amended to become either a two or a three storey facility, it may nonetheless breach the FSR control but, depending on the design, its bulk and scale might potentially be considered to complement the existing development density with a disparate height to address the corner. Such a proposal might be able to be considered to be of "appropriate development density" consistent with the objectives of the control, and also be sufficient to allow the request to demonstrate that compliance with the control is "unreasonable or unnecessary in the circumstances". However, that is not the current proposal. In some circumstances it can be appropriate to use the 'amber light' approach, which would enable me to make directions for the applicant to file amended plans to reflect my findings. I do not consider that this would be an appropriate course for two reasons. Firstly, there is insufficient certainty to determine that simply removing a storey from the current proposal would resolve this issue. Secondly, there are two merit issues that form the second and third reason why I am of the view that the proposal should be refused. They are set out below.

Retention of the significant street tree

1. There is a mature lemon scented gum (Corymbia citriodora) located on the Silverwater Road frontage of the site, which both Ms McCabe and Mr Gosling agree ought to be retained as it forms part of the streetscape setting for the building. Ms McCabe and Mr Gosling agree that mature vegetation, such as the lemon scented gum, is typical of the streetscape along the eastern side of Silverwater Road.
2. This is supported by the evidence of Ms Fleming, who opines that the tree provides environmental amenity and is prominent in the streetscape, providing scale to the built environment of Silverwater Road. Ms Fleming says that the tree also forms a canopy connection to the adjacent existing street trees, and that she assessed it as being in good health and condition.
3. I accept the above evidence that the tree ought to be retained. Ms Fleming's evidence is that to retain the tree, in accordance with the AS4970-2009 (Protection of Trees of Development Sites), the works should be setback from the tree by 3.8m in order to protect the structural root zone of the tree. The proposal has the building sited at around 3m from the tree.
4. The tree protection zone of 3.8m is based on a calculation applied under the AS4970-2009 without regard to the species. Whilst this evidence is not, of itself, sufficient to say that the proposal will compromise the future retention of the tree, it creates an uncertainty as to whether the tree can be retained with construction within that zone. This uncertainty then shifts the burden to Dr Wechsler to establish that the tree can nonetheless be retained. This would usually be done by providing a report of a qualified arborist who has undertaken an assessment, which may include root mapping, to determine whether the proposed work will compromise the structural integrity of the tree. This assessment has not been done, and there is therefore insufficient information to satisfy me that the tree can be retained with the current proposal.
5. There was some evidence by Mr Gosling that there was work done pursuant to the earlier consent that was within the tree protection zone, and Dr Wechsler referred to that work in his cross-examination of Ms Fleming. However, the assertion that the tree survived the earlier work is not sufficient to persuade me that the work the subject of the proposal will not compromise the structural integrity of the tree.
6. I also accept that this requirement for additional information cannot be dealt with by way of deferred commencement condition or by way of a condition required to be satisfied prior to the issue of a construction certificate. Both of these types of conditions involve the grant of consent to the proposal, but delay some part of the process to enable tasks to be undertaken. It is not appropriate for those tasks to cause further assessment by the consent authority that might question the proposal the subject of the consent, as the consent has already been granted. For example, in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, the Court of Appeal found that if a condition imposed on development consent has the effect of leaving an aspect of the development for a decision to be made at a later time, and if that decision may alter the proposed development, then the consent is not a consent to the application.
7. In the present proceedings, there is a risk (even if it is but a small risk) that the information from an arborist will not be able to support the retention of the tree in the context of the current proposal. The additional information therefore has the effect of leaving that part of the application undecided for a period. As a result, it may not be appropriate for the current proposal to be the subject of a consent, and amendments to the building may need to be made to accommodate the retention of the tree. In the context where both planners and Ms Fleming agree (and I accept) that the tree should be retained, there is insufficient certainty to grant development consent without that information. This is the second reason why I am of the view that consent should be refused.

Stormwater management

1. There is presently no stormwater plan for the amended proposal. The stormwater plan relied upon is that which relates to the original application, and relies on the existing stormwater pipes on the site. There is also a dispute between the Council and Dr Wechsler as to whether onsite detention tanks are required.

The evidence

1. Mr Rofail's evidence is that the proposal to use the stormwater pipes that exist on the site to connect the building to the Council's stormwater system is inadequate. His opinion is that the pipes are undersized for the proposed building, and do not cater for the 1 in 100 storm event.
2. Mr Rofail's evidence is also that the failure of the proposal to incorporate onsite detention results in a discharge rate into the Council's stormwater system that is excessive. Mr Rofail relies on Part 5 of ADCP 2010 Stormwater Drainage, which requires the installation of onsite detention tanks to reduce the discharge rate into the stormwater system. Part 5 of the ADCP 2010 Stormwater Drainage places the site in the Silverwater Road Catchment, with a permissible site discharge of 130L/s/Ha and site storage requirement of 370 cubic metres per hectare. On the other side of Silverwater Road is the Lower Duck River Catchment, which does not require any onsite detention tanks and there is no limit on the permissible site discharge.
3. On the stormwater plans the subject of the development application prior to amendment, there is a notation that "Site stormwater discharge directed to existing kerb inlet pit. Council drainage investigation has shown an existing connection from the proposed outlet to zone 6 drainage system. Development site previously approved with no on site detention. Drainage connected to trunk system at lower boundary of catchment and therefore no benefit to trunk main to provide on-site detention." However, there is no further evidence to support this notation, and the author of the notation did not give evidence in the proceedings.
4. In cross-examination, Mr Rofail was unable to demonstrate why onsite detention tanks were required for this site as opposed to the area on the other side of Silverwater Road, where onsite detention is not required. He referred to a flood study by Auburn Council, but did not refer to a specific section of the flood study and was unable to use the flood study to demonstrate why the site required onsite detention. Mr Rofail agreed that the delineation between the areas that required onsite detention and those that don't as arbitrary. He also agreed that the stormwater diagrams provided by Dr Wechsler, from the Council's records, demonstrate that the stormwater along Derby Road is being drained to Duck Creek. This is contrary to the information in the ADCP 2010 and suggests that the site is within the Lower Duck River Catchment. Dr Wechsler submitted to the Court that as such, it does not require onsite detention.
5. In cross-examination, Mr Rofail conceded that he was not aware of the extent of the contamination of the site. It was clear that he was not aware of how that might prevent the use of underground stormwater detention tanks. He adhered to the development controls contained in Part 5 of the ADCP 2010 for Stormwater Drainage, rather than considering the flexible approach to achieving the objectives of the controls that is called upon by s 79C(3A)(b) of the EPA Act.

Insufficient information to grant development consent

1. The result of Mr Rofail's evidence is that there is uncontradicted evidence that the current pipes on the site are inadequate, there is uncertainty as to how the stormwater flow will be managed, and it is unclear whether onsite detention of stormwater is required. As Dr Wechsler has demonstrated through the evidence in support of the application, there are contamination risks with the installation of underground onsite detention tanks. As such, it may be that onsite detention, if required, must be aboveground. If so, the proposed facility may not be able to be built in a way that accommodates tanks of the requisite capacity aboveground.
2. It is clear that there is insufficient information to satisfy me that the stormwater management for the site will be adequate. Dr Wechsler proposes that this be dealt with by way of a deferred commencement condition requiring that a stormwater plan be prepared. I am not satisfied that it is appropriately dealt with in that manner, as this leaves an element of the application undecided. There is uncertainty around whether the stormwater plan to be provided will be adequate. Further, there is additional uncertainty around whether stormwater management can be designed adequately whilst also retaining the current building design. Without that certainty, it is inappropriate for the proposal to be the subject of development consent. This too is a reason for refusal of the development application in its current form.

Outcome of the appeal

1. Having considered that the proposal should be refused for the reasons expressed above, I need not consider the remaining contentions. The present application before the Court must therefore be refused.
2. The Court orders that: 1. The appeal is dismissed. 2. The development application, numbered 855/2016, for the construction of a four-storey self-storage facility with associated tree removal and signage at 103 to 105 Silverwater Road, Silverwater, is refused. 3. The exhibits are returned, except for exhibits A, B and 1. ……………………….. Commissioner Gray

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: 09 May 2018