Bingara Development Pty Ltd v Wollondilly Shire Council [2023] NSWLEC 1522 (13 September 2023)

Last Updated: 18 October 2023

Land and Environment Court New South Wales

Case Name:	Bingara Development Pty Ltd v Wollondilly Shire Council
Medium Neutral Citation:	[2023] NSWLEC 1522
Hearing Date(s):	Conciliation Conference on 4 and 25 August 2023
Date of Orders:	13 September 2023
Decision Date:	13 September 2023
Jurisdiction:	Class 1
Before:	Bradbury AC
Decision:	The Court orders that: (1) The appeal is upheld. (2) Modification Application 2015/283/2 is approved and development consent DA/2015/283/1 granted by the Court on 28 September 2016 in proceedings 2016/158921 is modified in the terms set out in Annexure A. (3) As a consequence of the modification, development consent DA/2015/283/1 is subject to the consolidated, modified conditions of consent set out in Annexure B.
Catchwords:	MODIFICATION APPLICATION – changes to condition requiring the carrying out of intersection works – conciliation conference – agreement between the parties – orders
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.56, 8.9, 8.10 Environmental Planning and Assessment Regulation 2021, ss 100, 113 Land and Environment Court Act 1979, s 34
Category:	Principal judgment
Parties:	Bingara Development Pty Ltd (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Counsel: H Kahagalle (Solicitor) (Applicant) J Hones (Solicitor) (Respondent) Solicitors: Addisons (Applicant) Hones Lawyers (Respondent)
File Number(s):	2023/78879
Publication Restriction:	Nil

JUDGMENT

1. COMMISSIONER: This appeal relates to the Applicant’s modification application 2015/283/2 (Modification Application) for the modification of development consent DA/2015/283/1 which was granted by this Court on 28 September 2016 (Consent): Lendlease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2016] NSWLEC 111. The application to which the Consent relates is referred to in that judgment as DA 010.2015.00000283.001.
2. Development consent was granted by the Council on 15 May 2006 for the staged development of the Bingara Gorge Estate to create 1,165 residential lots, a sewage treatment plant and an 8-hole golf course and a golf driving range (First Concept Approval). The Consent permitted the Applicant to increase the proposed lot yield to up to 1,800 residential lots and to make a number of other changes to the development contemplated by the First Concept Approval (Approved Development).
3. The Modification Application was lodged with the respondent on 22 November 2022 and seeks approval to amend condition 10 of the Consent and to insert two new conditions 10A and 10B. On 8 June 2023, the Council granted consent to a modification application (DA/2015/283/3) for the modification of road design and condition 10(1) of the Consent. The proposed modification of condition 10 the subject of this appeal is consistent with the modification to condition 10(1) recently approved by the Council.
4. Condition 10(2) of the Consent currently relates to two separate road intersection upgrades in Wilton: the intersection of Picton Road with Pembroke Parade and the intersection of Picton Road with Almond Street. The condition, as currently drafted, requires the intersection upgrades to be carried out prior to the release of the 1,166th residential lot unless otherwise agreed with the Council and Transport for NSW (TfNSW).
5. The Modification Application seeks approval to amend condition 10 of the Consent as follows (with deletions in strike-through, and additions underlined):

“10. TRAFFIC MANAGEMENT

These conditions have been imposed to ensure that development works within the Shire are carried out in a safe manner which is acceptable to Council and members of the public.

(1) Proposed changes to the existing built form of Fairway Drive (between Pembroke Parade and Stirling Drive) shall be in accordance with the Local Traffic Committee recommendations at its meeting of 7th February 2023 and Plans NA82013043-005-SK021; SK022; SK023; Revision 2, dated 9/02/2023 prepared by Cardno (Amended DA/2015/283/3).

(1A) A Section 138 Consent Certificate under the Roads Act 1993 is required for carrying out the works as per approved Plans NA82013043-005-SK021; SK022; SK023; Revision 2, dated 9/02/2023 prepared by Cardno (Amended DA/2015/283/3).

(2) The applicant shall upgrade the Picton Road intersections with both Pembroke Parade and Almond Street to signalised forms prior to release of the 1,166th Lot or at some other time agreed with the WSC and the RMS.

(i) The applicant must submit to TfNSW for approval:

(a) A road safety investigation into geometric and line marking deficiencies to the intersection of Picton Road and Almond Street;

(b) Concept plans for a proposed scope of works, including turning paths, to address identified deficiencies

(Picton Road and Almond Street Road Works).

(ii) The Applicant must carry out the approved Picton Road and Almond Street Road Works as soon as reasonably practicable and prior to the release of the 1,500th Lot or at some other time agreed with the Council and TfNSW. post the completion of the current intersection upgrade works at Picton Road and Pembroke Parade, and prior to the registration of the 1,800th residential allotment.

The applicant is required to enter into a Works Authorisation Deed (WAD) prior to constructing the Picton Road and Almond Street Road Works, noting fees for administration, plan checking, civil and/or project management/all costs, to be paid by the applicant prior to the commencement of works.

The applicant shall as part of the works approval obtain formal endorsement of the capacity / traffic lane improvements, signal phase arrangements and allocated minimum green time to cycle time ratio for the Pembroke Parade approach to the Picton Road junction generally in accordance with the SIDRA analysis reported in the Cardno Technical Memorandum dated 20 January, 2016

(3) The applicant shall ensure that the detailed design of the relevant road carriageways in future stages of development can safely accommodate the swept path of the 11m long Design Bus and includes bus bay design and locations that avoid driveways for the proposed bus route generally in accordance with the Cardno "Conceptual Bus Stop Plan", Drawing Reference No. NA82013043 Sk02, dated 29 April 2016.”

6. The Modification Application also seeks approval insert a new condition 10A as follows:

“10A. The Applicant is to construct the line marking and wayfinding signage at the intersection of Almond Street and Argyle Street generally in accordance with the plan reference 82022083-02-SK012 (rev 1) by Cardno (NSW/ACT) Pty Ltd, dated 27/07/2023, or as otherwise agreed in writing between the Applicant and Council.”

7. Finally, the Modification Application seeks approval to remove the requirement to carry out the upgrade of the intersection of Picton Road with Almond Street and, instead, to refurbish the homestead cottage at 100 Fairway Drive, Wilton. The latter is encompassed in the following new condition 10B:

“10B. The Applicant is to apply to the Council for the refurbishment of the homestead cottage (located at 100 Fairway Drive, Wilton also known as Lot 50 in DP 270536), including (without limitation) all necessary works to make the Homestead cottage watertight and functional, including, without limitation; roof and guttering and downpipe works conveyed to suitable stormwater conveyance system, internal and external linings, internal fit out, wiring, plumbing; internal and external flooring; painting to all lined and architrave surfaces; with such works to be verified by appropriate certificates of completion by licensed contractors meeting relevant AS/NZ or BCA standards and to be carried out prior to the release of the subdivision certificate for the 1800th lot of the development.”

8. The land the subject of the Modification Application comprises the following:

(1) The land the subject of the proposed roadworks at the intersection of Picton Road with Almond Street is a public road. It adjoins the land described as Lot 1 DP 1018965, Lots 32, 33, 36 and 37 DP 81420 and Lot 1 and Lot 2 DP 128865.

(2) The land the subject of proposed new condition 10A is also a public road and adjoins the land described as Lot 1 DP 1018965, Lot 32 DP 814280, and Lot 13 DP 846009.

(3) The land the subject of proposed new condition 10B is described as Lot 50 DP 270536 known as 100 Fairway Drive, Wilton.

9. The Modification Application was made to the Council on 22 November 2022. When the Modification Application had not been determined by the Council within the period after which it was taken to have been refused, on 9 March 2023, the Applicant appealed to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is an appeal in Class 1 of the Court’s jurisdiction. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the Modification Application pursuant to s 4.56 of the EPA Act.
10. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), which took place on 4 and 25 August 2023. I presided over the conciliation conference.
11. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties’ signed agreement was filed on 25 August 2023 and involves the Court modifying the Consent in the way described in pars [5], [6] and [7] above. The agreement is supported by an Agreed Statement – Jurisdictional Prerequisites provided by the parties on the same date which I have had regard to in making my decision.
12. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.
13. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons:

(1) The appeal was brought pursuant to s 8.9 and was made within the time required by s 8.10 of the EPA Act.

(2) The Modification Application was made by the Applicant with the consent of the owners of the land to which the Modification Application relates in accordance with s 100(1)(i) of the Environmental Planning and Assessment Regulation 2021.

(3) I am satisfied that the development to which the Consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent was modified, this being the test required by s 4.56(1)(a) of the EPA Act. As noted at [2] above, the originally approved development involves a large residential subdivision of land and I am satisfied that the changes to the road intersection works and the refurbishment of the homestead cottage proposed by the Modification Application will not result in the development to which the Consent as modified relates being substantially different to the development for which consent was originally granted. The modifications to the Consent will not result in a radical transformation of the approved development and the essence of the Approved Development will remain the same: Arrage v Inner West Council [2019] NSWLEC 85 at [27].

(4) The notification requirements of s 4.56(1)(b) of the EPA Act have been met. The modification application was notified in accordance with the Wollondilly Development Control Plan 2016 between 6 December 2022 and 15 February 2023. The respondent received a number of submissions and a number of local residents gave oral evidence to the Court on 4 August 2023. The issues raised in these submissions included:

(a) Traffic safety;

(b) Traffic delays;

(c) Emergency Services access;

(d) Bushfire;

(e) Impacts on surrounding development; and

(f) Public interest.

(5) I am also satisfied that the notification requirements of s 4.56(1)(c) of the EPA Act have been met. That provision requires the consent authority to notify, or make reasonable attempts to notify, each person who made a submission in respect of the relevant development application the subject of the Consent of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person. The parties have informed the Court that the Modification Application was notified by the Council on 8 August 2023, to each person who had made a submission in respect of the original development application of the Modification Application in accordance with s 4.56(1)(c). That notification period expired on 22 August 2023 and the Court has been informed that 13 submissions were received during the notification period which raised similar issues to those in the submissions which had previously been received,

(6) Section 4.56(1)(d) of the EPA Act requires a consent authority to consider any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan. The parties have informed the Court that, in reaching agreement with the Applicant, the Council has considered the submissions received as the result of the public notification of the Modification Application.

14. As I have concluded that the parties’ agreement is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ agreement.
15. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.56(1A) and 4.15(1) of the EPA Act.
16. The Court notes that:

(1) The Respondent as the relevant consent authority has agreed under s 113 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending the modification application in accordance with the amended statement of environmental effects prepared by Noble Planning and dated 3 August 2023.

(2) The Applicant agrees to pay the Respondent’s costs thrown away by the amendment of the modification application, as agreed, in the sum of $14,000.00 within 28 days.

17. The Court orders that:

(1) The appeal is upheld.

(2) Modification Application 2015/283/2 is approved and development consent DA/2015/283/1 granted by the Court on 28 September 2016 in proceedings 2016/158921 is modified in the terms set out in Annexure A.

(3) As a consequence of the modification, development consent DA/2015/283/1 is subject to the consolidated, modified conditions of consent set out in Annexure B.

A Bradbury

Acting Commissioner of the Court

Annexure A

Annexure B

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Amendments

18 October 2023 - Pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 the judgment is amended by replacing the reference to “Pembroke Parade” in par [7] with “Almond Street”.