Kirrawee ILS Pty Limited ATF Kirrawee ILT Trust v Sutherland Shire Council [2023] NSWLEC 1102

Land and Environment Court New South Wales

Medium Neutral Citation: Kirrawee ILS Pty Limited ATF Kirrawee ILT Trust v Sutherland Shire Council [2023] NSWLEC 1102 Hearing dates: Hearing on 23 & 24 February 2023, conciliation conference on 24 February 2023 Date of orders: 09 March 2023 Decision date: 09 March 2023 Jurisdiction: Class 1 Before: Washington AC Decision: The Court orders: (1) The written request pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (LEP), seeking variation to the minimum landscaped area control in cl 6.14 of the LEP, prepared by Willowtree Planning dated 23 February 2023 is upheld. (2) The Appeal is upheld. (3) Development consent is granted to Development Application No. DA22/0435, for the Torrens Title Subdivision of one (1) lot into four (4) lots at 41-51 Waratah Street, Kirrawee, subject to the conditions in Annexure A. (4) All exhibits are to be returned. Catchwords: DEVELOPMENT APPLICATION – conciliation conference – subdivision – contaminated site – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, , ss 4.16, 8.7 Environmental Planning and Assessment Regulation 2021, s 37 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 Sutherland Local Environmental Plan 2015 (SLEP), cll 2.6, 4.1, 4.3, 4.4, 4.6, 6.2 5.10, 6.1, 6.4, 6.13A, 6.14, 6.16 Category: Principal judgment Parties: Kirrawee ILS Pty Limited ATF Kirrawee ILT Trust (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: A Pickles SC (Applicant) M Staunton (Respondent)

Solicitors: Mills Oakley (Applicant) Sutherland Shire Council (Respondent) File Number(s): 2022/201899 Publication restriction: No

Judgment 1. COMMISSIONER: The Applicant, Kirrawee ILS Pty Ltd ATF Kirrawee ILT Trust, has lodged a development application to subdivide an industrial lot at 41-51 Waratah Street, Kirrawee into four Torrens title lots with ancillary stormwater works. This Class 1 appeal has resulted from the deemed refusal by Sutherland Shire Council (the Respondent) of this development application, and has been brought to Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The site is legally described as Lot 19 in DP 749252. 2. This matter commenced before the Court as a hearing, with the principal contentions being whether the site should be remediated prior to subdivision, and the acceptability of a written cl 4.6 request to vary the landscaped area development standard set out in cl 6.14 of the Sutherland Shire Local Environmental Plan 2015 (SSLEP). In the course of the hearing the parties resolved these issues, and requested the matter be listed for a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The hearing was subsequently adjourned and a s 34 conference between the parties held on 24 February, over which I presided. 3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 4. Council's contention regarding the timing of remediation of the site was resolved through a letter of offer made by the Applicant whereby a positive covenant would be placed on the title of all four subdivided lots that principally requires remediation of the site to be undertaken prior to any use or change of use, and that evidence of this must be provided to the satisfaction of Sutherland Shire Council. 5. Council's contention regarding the adequacy of the Clause 4.6 request was resolved through the submission of a further amended written request, which is discussed further below under matters of jurisdiction. 6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is one that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the development application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how each has been satisfied. From this I note the following points.

Jurisdictional prerequisites 1. The applicant is the registered proprietor of the site, and owner's consent has therefore been provided. 2. Subdivision is permissible with development consent pursuant to cl 2.6 of the SSLEP. The site is zoned IN1, however as there is not use requested as part of this application, there is no conflict with the permitted uses of this zone.

State Environmental Planning Policy (Resilience and Hazards) 2021 (Resilience SEPP) 1. Section 4.6 of the Resilience SEPP requires the consent authority to consider prior to granting development consent whether the land is contaminated, and if so, it is satisfied that the land is suitable, or will be suitable after remediation, for the purpose for which the proposed development is to be carried out. Based on the parties' submission and the following documents, the site is suitable in its current state for the purpose of subdivision: 1. Preliminary Site Investigation, prepared by JK Environments dated 15 March 2022; 2. Detailed Site Investigation, prepared by JK Environments dated 23 August 2022; 3. Hazardous Building Materials Survey, prepared by JK Environments dated 10 March 2022; 4. Contamination Management Plan, prepared by JK Environments dated 13 September 2022; 5. Overarching Remediation Action Plan, prepared by JK Environments dated 13 September 2022; 6. Site Audit Report, prepared by Ramboll dated 6 October 2022; and 7. Data Gaps Investigation, prepared by JK Environments dated 23 February 2023

Sutherland Shire Local Environmental Plan 1. Pursuant to SSLEP cl 4.1 (3A), the site is subject to a minimum lot size of 1000m2, which will be achieved in all four proposed allotments. 2. The application does not propose any buildings, has no heritage significance, is not identified as being flood prone, and is not identified as having acid sulfate soil and so the requirements of SSLEP cll 4.3, 4.4, 5.10, 5.21 and 6.1 are met. 3. The parties submit and I accept that the minor earthworks proposed to facilitate stormwater management are not considered likely to adversely impact or cause risk to the site and surrounds, and will be managed in accordance with the civil plans, Stormwater Management Report, Contamination Management Plan and ORAP, in accordance with the requirements of SSLEP cl 6.4. 4. Pursuant to SSLEP cl 6.13A the applicant must demonstrate that the site can provide and/or enhance both canopy trees and cycleways. The parties submit and I accept that the requirements of this clause are met because, based on the evidence in the amended Clause 4.6 Request, additional landscaping and deep soil areas are capable of being achieved on site to facilitate canopy trees. Additionally, Condition 4 of Annexure A requires the Applicant to provide a cycleway along the boundary of Waratah St. 5. Pursuant to SSLEP cl 6.14, a minimum 10% of the total site is required to be landscaped. The proposed development retains the existing landscape on site, which equates to 7% of the total site area. This landscaped area requirement forms a development standard which, pursuant to SSLEP cl 4.6 requires a written request to vary. Clause 4.6(3) requires a written request which demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. The applicant has submitted a written request prepared by Willowtree Planning dated 24 February 2023. 6. SSLEP cl 4.6(4) states that development consent must not be granted for the development unless I am satisfied that the Applicant's written request adequately addresses the matters required under cl 4.6(3). It also requires me to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the landscaped area standard, IN1 Industrial Zone. 7. The parties submit, and based on the written request, I am satisfied that the written request adequately justifies the variance to the landscaped area development standard, and is in the public interest because: 1. Any future built form on the site would be required to demonstrate compliance with this standard and as such, landscaping can (and is expected to be) appropriately addressed at future DA stages when a more meaningful design response to proposed buildings and site layout can be achieved. Further, this development application in no way precludes the 10% landscaped area being achieved in future developments and thus the non-compliance is considered to be temporary, to be implemented in future stages of development. There is no adverse impact on the area resulting from this non-compliance. Subsequently, compliance with this development standard is unreasonable or unnecessary in these circumstances. 2. The proposal is consistent with the relevant zone objectives, including: 1. The proposed development seeks to establish the subject site for future industrial land uses, contributing to the provision of a wide range of industrial and warehouse land uses. 2. The subdivision of the site will encourage future industrial development, thereby encouraging employment opportunities. 3. The proposed development will not result in any adverse effect of industry on other land uses. 4. The proposed development seeks to retain the current industrial land for industrial uses. 5. The proposed development will not result in any adverse impacts on areas of environmental significance. 1. The proposal is consistent with the relevant objectives of the development standard, including: 1. Adequate opportunities exist for the retention or provision of vegetation that contributes to the biodiversity and enhances the tree canopy of Sutherland Shire: the proposed development seeks to retain all existing vegetation and will not inhibit the provision of additional vegetation, with adequate deep soil for canopy trees, in future. 2. The proposed development will not impact the existing urban run-off. 3. The proposed development seeks consent for subdivision and minor stormwater works only which will not result in any visual impacts. 4. No landscaping is proposed because no built form is proposed, but the application does not preclude the future provision of compliant landscape works. 1. The parties submit and I accept that the proposal is in the public interest as it does not raise any matter of significance for State or regional environmental planning, and that the public benefit of maintaining the development standard is not considered significant in the circumstances of this case. 2. For the above reasons, I am satisfied that the Applicant's written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of this case, and that there are sufficient environmental planning grounds to justify the proposed variation to the landscaped area development standard. 3. To the extent that the urban design provisions of SSLEP cl 6.16(6) are applicable, the parties submit, and I accept that the public domain will be enhanced by the requirement for a cycleway as outlined in Condition 4 of Annexure A, and that all other relevant considerations are addressed in the development application as amended. 4. From this, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

Conclusion 1. As the parties' decision is one that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court notes that: 1. Sutherland Shire Council, as the relevant consent authority, has agreed under s 37(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Development Application No. DA22/0435 to incorporate the following material (the Further Amended Application): 1. Amended Clause 4.6 Request – Landscaped Area, prepared by Willowtree Planning dated 24 February 2023; 2. Data Gaps Investigation, prepared by JK Environments dated 23 February 2023; and 3. Letter of Offer from Applicant dated 24 February 2023. 1. The Further Amended Application was filed with the Court on 24 February 2023. 1. The Court orders: 1. The written request pursuant to cl 4.6 of the Sutherland Shire Local Environmental Plan 2015 (LEP), seeking variation to the minimum landscaped area control in cl 6.14 of the LEP, prepared by Willowtree Planning dated 23 February 2023 is upheld. 2. The Appeal is upheld. 3. Development consent is granted to Development Application No. DA22/0435, for the Torrens Title Subdivision of one (1) lot into four (4) lots at 41-51 Waratah Street, Kirrawee, subject to the conditions in Annexure A. 4. All exhibits are to be returned.

E Washington

Acting Commissioner of the Court Annexure A

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Amendments 09 March 2023 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to the site address at 'Decision' and paragraphs [1] and [23]. 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 March 2023