NSWNSWLEC

Bannerman Consulting Pty Ltd v Coffs Harbour City Council

[2022] NSWLEC 1086

Land and Environment Court (NSW)|2021-12-22

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2021-12-22

Source

Original judgment source is linked above.

Judgment (3 paragraphs)

[1]

Judgment

These proceedings are an appeal made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Coffs Harbour City Council of Development Application No. 0160/19DA (DA) for a change of use to include increased capacity at a restaurant and the use of outdoor areas for dining (including car parking and other development related to the use) (proposed development) at 963 Orana Way, Nara Glen (site).
At the outset of the part-heard hearing on 22 December 2021, the parties advised the Court that the applicant had prepared amended plans and documents, and on that basis the parties had reached an in-principle agreement as to the terms of an agreement that would be acceptable to the parties.
Accordingly, the matter was reallocated to me under s 34(1) of the Land and Environment Court Act 1979 (LEC Act), and the conciliation conference was held on 22 December 2021, at which I presided.
At the conciliation conference, the parties reached agreement as to the final terms of a decision in the proceedings that would be acceptable to them. This decision involved the Court upholding the appeal and granting development consent to the development application, as amended, subject to conditions. A signed s34 agreement was ultimately filed with the Court on 10 February 2022.
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 a decision 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, as amended.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135. The parties have identified and explained how the jurisdictional prerequisites of relevance in these proceedings have been satisfied in their jurisdictional submission which accompanied their agreement.

Bannerman Consulting Pty Ltd v Coffs Harbour City Council [2022] NSWLEC 1086 | Case summary | Zoe

Additionally, the TIA and the conditions also address the requirements of cl 101 of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) in relation to the proposed development. The subject site has a frontage to Orara Way, which is a Classified (Regional) Road (MR151). The Council is the roads authority for all public roads (other than freeways or Crown roads for which it has not been granted control over) in the local government area, pursuant to s 7 of the Roads Act 1993.
Briefly, in respect of the Council-controlled Crown road reserve located adjacent to the site, the applicant is prohibited from using this area for vehicular access, pursuant to condition 47 of the agreed conditions. Further to this, condition 9 of the agreed conditions also requires a permanent fence to be erected on the southern boundary of the site, adjoining this road reserve for the purposes of restricting vehicular access between it and the subject site.
Concurrence from Transport for NSW (TfNSW) is required prior to Council's approval of works on classified (regional) roads under s 138 of the Roads Act. Section 138(1) provides, that: A person must not - (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority.
Importantly, subs (2) goes on to state: A consent may not be given with respect to a classified road except with the concurrence of TfNSW.
Considering this in respect of the proposed development, arrangements to ensure adequate suitable vehicular access can be provided for on-site have been considered and recommendations addressing this have also been made in the TIA and which are once again included as conditions of consent. Specifically, this includes the construction of an Austroads Type Basic Axillary Right and Left (BAR/BAL) intersection treatment on Orara Way. This is reflected by condition 11 of the consent, whereby plans and specifications of the works are to be submitted to and approved by Council and TfNSW prior to the issue of a Civil Works Certificate; condition 21 requiring a Civil Works Certificate to be obtained from Council, in accordance with s 138 of the Roads Act prior to the commencement of works within the road reserve; and condition 32 requiring a letter of Satisfactory Completion for these Civil Works to be obtained from Council prior to the issue of the first Occupation Certificate or Commencement of Use.
Additionally, cl 101(2) of the Infrastructure SEPP provides, that: 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 a 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.
This clause does not require concurrence from TfNSW, however, it does require the consent authority to consider the above matters. Having considered the matters raised at subcll (a) to (c), I am satisfied that they have been adequately addressed in the TIA, once again in conjunction in the agreed conditions of consent identified previously.
In respect of cl 7.11(b) of the CHLEP regarding the supply of electricity for the proposed development, the parties agree this issue is adequately addressed through the current system servicing the existing development. While there will be additional capacity required as a result of the proposed development it is accepted by the parties this will not require any upgrades to the existing system.
As a result of the amendments made to the application on 15 December 2021, for which leave was granted by the Registrar of the Court on that date, the parties are now both satisfied that sufficient details have been provided to ensure capacity for the disposal and management of sewage and the supply of water on the site as required prior to the issuing of development consent by cl 7.11 of the CHLEP are contained as part of the proposed development.
In terms of the requirements of the proposed development for the disposal and management of sewage, this is set out in detail in the Earth Water Consulting Report dated 10 December 2021. This document is referred to at Condition 6 of Annexure A of the s 34 Agreement executed by the parties and was also a document for, which the Court granted the applicant leave to rely on as part of its amended proposal on 15 December 2021. The report, which was prepared by an appropriately qualified expert in this field was completed following close consultation with his counterpart acting on behalf of the Council in this matter. In this regard, the report addressed concerns raised by the Council, including in its further ASOFC filed with the Court on 1 October 2021. The report sets out in detail the existing capacity of the wastewater management system on-site and the upgrade required in order to meet the additional demand that would result from the proposed development. The proposed upgrade of the relevant system has also been considered with regard to any environmental impacts it would potentially have on the site and any surrounding public or private areas. Prior to seeking leave to rely on this report at the return of the notice of motion on 15 December 2021, the parties' respective experts both agreed this adequately addressed the requirements of cl 7.11 of the CHLEP in relation to wastewater and did so in a way, that would have an acceptable environmental impact.
Additionally, the findings of this report are reflected in a number of the agreed conditions of consent. This includes:

With regards to the requirements of cl 7.11 of the CHLEP insofar as they relate to the supply of drinking water, this has also been considered in detail in a water supply assessment, prepared by de Groot & Benson Pty Ltd dated 7 December 2021. This report is also referred to in Condition 6 of the agreed conditions included at Annexure A of the s 34 Agreement entered into by the parties. The applicant was also granted leave by the Court to rely on this document as part of its amended proposal, as per the orders made on 15 December 2021.
Similar to that for wastewater disposal and sewage management, the water supply assessment considers the existing capacity on-site in respect of potable water and the additional demands that would reasonably be required from the proposed development. Taking this into account the assessment sets out in detail the necessary upgrades required of this system in order to meet the additional demands on capacity. In doing so it has considered the various mechanisms used to supply and distribute fresh water, like whether it would be appropriate to source it from a ground bore source, or using a rainwater tank, for example for the proposed development. Working in close consultation once again with his counterpart acting on behalf of the Council, the report then makes a clear recommendation as to what is required in order to meet the reasonable capacity requirements of the proposed development. In the report's conclusion and discussion section the responsible expert has had consideration of cl 7.11 of the CHLEP in respect of water supply and states explicitly, that the report and its recommendation satisfy its requirements.
As with the other services identified as part of cl 7.11, the supply of drinking water is also dealt with by way of the agreed conditions of consent, specifically condition 67 - Private supply of drinking water.
The parties agree there is no history of contamination on the site and the proposed continuation of an existing restaurant use of it is, therefore, satisfactory, pursuant to cl 7 of the State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55).
The site has previously been approved for mixed use development and has been constructed in accordance with a consent granted by the Court, pursuant to DA 0808/16DA. This development application, in addition to subsequent applications, including 0444/17DA required a consideration of cl 7 of SEPP 55. The site is not located on the Coffs Harbour Acid Sulphate Soils Map, and the parties agree there is no contamination of the site, given there is no history of this.
Condition 4 of the agreed conditions of consent sent to the Court by way of email at 11:21am on 22 December 2021 requires the applicant to seek a modification of existing development consents, pursuant to the mechanism provided for under cl 97 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation).
Specifically, the applicant is required to submit a notice of modification in respect of condition 30 of 0808/16DA, in addition to condition 18 of development consent 0444/17DA. The purpose of these requirements is to ensure that there is one consolidated development consent which applies to the whole of the site and which does not leave room for any inconsistency with any earlier development consent(s) applying to the site.
The power to impose such a condition is found in s 4.17(1)(b) of the EPA Act, which enables a condition of development consent to be imposed if "it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates". Section 4.17(5) then says: If a consent authority imposes (as referred to in subsection (1)(b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11, the consent or right may be modified or surrendered subject to and in accordance with the regulations.
The relevant Regulation which in turn applies pursuant to s 4.17(5) is cl 97 of the EPA Regulation. That Regulation, which simply requires a 'notice of modification' to be provided to the Council (the Regulation specifies what must be included in the notice, but it is simple). Importantly, cl 97(2) provides as follows: (2) A duly signed and delivered notice of modification or surrender of a development consent or existing use right referred to in subclause (1) - (a) takes effect when it is received by the consent authority, and (b) operates, according to its terms, to modify or surrender the development consent or existing use right to which it relates.
As such, the proposed condition 4 will facilitate and require the modification of the earlier development consents applicable to the site, to ensure that they are made entirely consistent with the subject development consent, which is essentially a consolidation. This process is expressly empowered by s 4.17(1)(b) of the EPA Act and with cl 97 of the EPA Regulation, as detailed above.