Australia, Aug. 19 -- New South Wales Land and Environment Court issued text of the following judgement on July 18:

1. COMMISSIONER: These proceedings relate to an appeal to the Court pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the actual refusal of development application DA2022/0358. That development application seeks consent for the demolition of existing structures and the construction of 25 industrial units and 37 self-storage units over basement and ancillary works. The development is proposed at 51a Anderson Road, Mortdale NSW 2223 (Lot 142 DP 843446).

2. The Court arranged a conciliation conference between the parties pursuant to s 34 of the Land and Environment Court Act 1979 which was held 19 March 2025. No agreement was reached at the conciliation, and it was ultimately terminated on 27 May 2025 and the proceedings were listed for hearing. Notwithstanding the termination of the conciliation the parties continued negotiations and ultimately reached agreement on the terms of the resolution of the proceedings. That agreement is for the grant of the application, as amended, subject to conditions. The parties requested a further conciliation conference which was listed before me on 4 July 2025.

3. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). The purpose of this test is to determine whether any jurisdictional impediments that preclude the making of orders in accordance with the parties' agreed resolution. (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons:

1) The development application was lodged by the owners of the land: s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).

2) The development application was notified and advertised in accordance with the requirements of the Georges River Council Community Participation Plan from 27 September 2022 to 13 October 2022. No submissions were received.

3) Pursuant to s 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH), the consent authority must not grant consent to a development unless it has considered whether a site is contaminated, and if it is, that the site is suitable (or will be suitable after undergoing remediation) for the proposed use. The Applicant prepared a Detailed Site Investigation prepared by Australian Geoenviro dated 16 April 2025 (the 'DSI') and a Remedial Action Plan prepared by Australian Geoenviro dated 14 May 2025 (the 'RAP'). The DSI concludes that the Site can be made suitable for the proposed industrial and self-storage use subject to works as proposed in the RAP. The Council has imposed conditions of consent which require compliance with these documents. Section 4.6 of SEPP RH is satisfied.

4) Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) addresses vegetation in non-rural areas. The parties agree, and I accept, that the amended development application proposes the retention of a mature tree on the existing site and the development application proposes landscaping works. The parties agree, and I accept, that I can be satisfied that the amended development application has given due consideration to the provision of vegetation.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/198111599ee4c5f46dcc3b13)

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