COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of modification application lodged with the Council to modify Development Consent D89/321 which was a consent for the Torrens title subdivision into 127 lots and 3 public reserves at Lot 31 DP 939374 and Lot 2 in DP 206753 (the Consent). The proposed modifications under DA-1989/321/F as lodged was to reconfigure the road and lot layout of 51 lots in the subdivision at the remaining undeveloped Lot 313 in DP 1123222 being Terrie Avenue, Figtree (the Site).
The Consent was originally granted on 15 May 1990 and has been modified on a number of occasions. The Respondent council provided to the Court a copy of the Consent plans and a copy of the conditions of consent as at 7 August 1991, which followed Modification am approved 7 August 1991 with only a single change to condition 15 regarding developer contributions.
Modification am1 approved 13 August 1991 and Modification am2 approved 15 August 1991 also did not make any changes to the plans.
Modification am3 was approved on 25 August 1993 with an amended description of 116 lots and 4 public reserves. Stage A (23 lots) and Stage B (42 lots) were constructed leaving 51 lots for the remaining stages C, D and E.
DA-1989/321/D was approved on 10 February 2014 involving 24 of the remaining 51 lots, known as Stage C. Stages D and E comprising the remaining 27 lots were shown indicatively only.
DA-1989/321/E was approved on 16 September 2020 and related to tree conditions only with no plan changes.
Modification Application DA-1989/321/F, being the subject of this appeal, was lodged on 7 June 2023 with the Respondent and relates to Stages C-E and the remaining 51 lots. The balance of the Consent is for all intents and purposes constructed and completed.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 28 October 2024. I have presided over the conciliation conference.
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 approving the modification of the consent subject to conditions.
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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to approve the modification of a consent.
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 to be the terms of s 4.55 of the EPA Act to modify a consent. The parties explained how the jurisdictional prerequisites have been satisfied.
The Proposed Modification was lodged by the Applicant which is the owner of the Site as noted in the Form titled "Owners Consent to Lodge an Application" filed with the Class 1 Application, as required by s 98(1), Environmental Planning and Assessment Regulation 2021.
The relevant jurisdictional requirements are contained in s 4.55(2) of the Act, which provides as follows:
4.55(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development consent if -
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with -
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.
I will address the satisfaction of ss 4.55(2)(a) to 4.55(2)(d) in order.
I note that the Respondent did not contend that the Proposed Modification did not satisfy the jurisdictional prerequisite of s 4.55(2)(a) of the EPA Act. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all). The Respondent has provided to the Court a copy of the stamped Consent plans comprising of 4 sheets being:
1. Subdivision Layout Plan prepared by Forbes Rigby and Associates Pty Ltd File Ref No 88035.101 Sheet 1 of 2 Rev 2 dated 15 June 1989
2. Subdivision Layout Plan prepared by Forbes Rigby and Associates Pty Ltd File Ref No 88035.102 Sheet 2 of 2 Rev 2 dated 15 June 1989
3. Proposed Road Closure and Creation of Public Accessway prepared by Forbes Rigby and Associates Pty Ltd File Ref No 88035.205 Rev 0 dated 7 November 1989
4. Layout Amendment Lots 101-113 prepared by Forbes Rigby and Associates Pty Ltd File Ref No 88035.105 Drawing No 1 Rev 0 dated 21 February 1990
I have also had regard to the 16 conditions of consent reproduced in Notice of Determination of an Application to Amend Development Consent No D89/321.
The Court's recent guidance in the Realize Architecture case (Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 (Realize Architecture Appeal), and case at first instance, Realize Architecture Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1437). These include the following from Preston CJ's Realize Architecture Appeal at paras [29] to [43]:
"Whilst an assessment of quantitative and qualitative features of the two developments may be of assistance in undertaking a comparison, it does not displace the test in s 4.55(2)(a);
By themselves, a finding of fact on qualitative or quantitative differences are uninformative of whether or not the development is or is not substantially the same. What is required is an evaluative categorisation of facts, to assign relative significance or weight to the different facts, and balancing the facts as weighted. Thus greater weight could be given to the qualitative comparison (i.e. impacts) if the decision maker considered it appropriate.
A simplistic approach of relying on, for example, a negative determination in regard to quantitative differences is not the correct approach.
A change to "critical elements" does not necessarily mean that a development is not substantially the same. Identifying "critical elements" is at most an aide to assist in undertaking the comparative exercise required under s 4.55(2)(a), but does not replace it."
The parties agree that the proposed modification results in a development which is substantially the same as originally approved. The majority of the Consent has been complied with, subdivided and constructed and this change results in a total of 49 lots for the final stage, being a reduction of 2 lots compared to the 51 lots which were remaining following Modification am3.
I am satisfied that the result of the comparison between the Consent and the Proposed Modification is a finding that the development is "essentially" or "materially" the same as the approved development (Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto); Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8). I reach this conclusion because the Proposed Modification only seeks to make amendment to the remaining 51 of the originally approved 127 lots. The Applicant amended the Proposed Modification pursuant to a Notice of Motion granted on 29 Jully 2024 and a further amendment made in accordance with the notation below at [33] by reducing the remaining lots from 51 to 49. The Proposed Modification does not change the essence of the development being a large residential subdivision, construction of new roads and dedication of public reserves. There are no material changes to the impacts of the development other than some improvements to the road layout, drainage and stormwater management and vegetation management.
The parties explain that the changes to the layout, engineering design, and Vegetation Management Plan areas comprise design changes to accommodate environmental constraints which have arisen, or become better understood, since the grant of the Consent in 1990.
General terms of approval under the Water Management Act 2000 have been granted by the Department of Planning and Environment-Water dated 6 September 2024 and are incorporated into the agreed conditions.
General terms of approval have been granted under the Rural Fires Act 1997 have been granted by RFS dated 19 September 2024 and are incorporated into the agreed conditions.
The Proposed Modification was also referred to Endeavour Energy and their response dated 22 June 2023 is also incorporated into the agreed conditions.
The modification application was notified in accordance with the EPA Act from 21 June to 21 July 2022. A total of 78 submissions were received. Resident objectors also spoke on Site at the conciliation conference arranged by the Court on 4 April 2024. The amended application (for which leave was granted on 29 July 2024) was notified from 31 July to 14 August 2024. A total of 49 submissions were received.
The parties have considered those submissions received and they provided the following written summary of their response to the objector concerns which I reproduce in full for their benefit:
"Responses to Community Submissions
Inadequate Consultation
There has been no attempt at community consultation from the Developer, and only the formal and limited advice from Council to residents neighbouring the site.
Response:
The original consent for 127 lots was granted on 15 May 1990.
This modification was lodged with Council on 7 June 2023. It was notified between 21 June and 21 July 2023 including a notification in the local newspaper.
78 submissions were received.
Following the lodgement of the appeal, persons making submissions were notified of the appeal, and the opportunity to attend the section 34 conciliation conference. 6 persons took that opportunity and spoke to the (then) presiding Commissioner as well as the parties and their representatives at the site. A considerable number of other residents attended to view the commencement of the conference and the site view.
Following the grant of the Motion to amend the modification proposal, the modification was again publicly notified between 31 July and 14 August 2024.
49 submissions were received and considered.
Council has advised the community's coordinator that the appeal is proceeding to agreement between the parties.
Repeated Cycles of Modified Proposals
This amendment is now modification F Version 2, spanning the past thirty years, demonstrating the fact that the site is not suitable for residential development.
Response:
The Site has been previously zoned R2 Residential, and subsequently C4 Environmental Living. Residential subdivision is permitted (and has been approved) on the Site.
There is no restriction at law to prevent a landowner from pursuing modifications.
Potential for further modifications
There appears to be no limit on how often developers can request modifications.
Response:
Individual landowners are entitled at law to lodge development applications and modifications to consents.
One benefit here in this instance is moving from a development approved in 1990 with 16 conditions to requirements, controls and standards that reflect 2024 outcomes and objectives.
Encroachment on the Illawarra Escarpment and impact upon iconic views
It is a concern that the DA process allows for the acceptance of Proposals for development within lands classified as 'Illawarra Escarpment'.
Response:
Since the original consent was approved in 1990, the Site has been rezoned C4 Environmental Living to promote less impactful residential development.
Land mapped as Illawarra Escarpment can be the subject of residential development, subject to compliance with objectives and controls.
The proposal as shown on the plans now before the Court preserve more of the Escarpment land and natural contours than that approved under the original consent as modified. For example, the revised lot layout brings lots further to the north and east, away from the escarpment. More of the site is given to riparian corridors, and more of the Site is now subject to a VMP. The VMP is subject to conditions requiring active implementation of vegetation and replanting.
The improvements to the lot layout shown on the most recent plans are in contrast to that approved as per the original consent as modified.
Traffic access and road safety
While no amended or current traffic study has been conducted as part of the Amended Proposal, there appears to be nothing to change or ease community concerns in relation to the impact of increased traffic volumes through Valley Drive and Terrie Avenues, and out through the feeder roads leading the main roads heading north and south from the suburb.
Response:
There is an existing consent that applies to the Site and permits a further 51 lots to be constructed. The revised proposal before the Court involves a slight reduction in lot numbers to 49. External traffic impacts are not a reason, in that context, to refuse this modification application.
The NSW RFS have also issued General Terms of Approval to the proposal now before the Court.
None of the above means that Council should not continue to review and investigate options for increased road safety and access.
Biodiversity Loss
The successive modifications have seen the removal of over 100 mature and healthy habitat trees from the site.
The proposal would be significantly improved if Lot 51 is resized to be consistent with its neighbouring lots and the majority of the remaining 5.8ha be rezoned and maintained as a fully rehabilitated public reserve.
Response:
All tree removal has been authorised under successive modifications, recognising that the Site has been zoned R2 and now C4. Historical aerial photos show the Site has been the subject of significant clearing and regrowth in the past 70 years.
A portion of the Site along its southern boundary is to be dedicated to Council. Council is not otherwise in a position to acquire or rezone the area of the Site to be the subject of the VMP.
The recasting of the lot layout further to the north and east from that currently approved, as well as the extension of the VMP, will assist in restoring habitats and vegetation corridors.
Endangered Species Impact
The biodiversity assessment, looks only at the impacts within the boundaries of the site, failing to acknowledge the impacts on the surrounding environment including those to Byarong Creek.
Response:
The modification involves an extension of the VMP over a greater proportion of the Site and greater protection to species via additional riparian corridors. The conditions also require a retiring of credits in relation to impacts upon the impacted plant community Blackbutt - Turpentine - Bangalay Moist Open Forest.
Further, the design of the proposal with the central watercourse and accompanying riparian corridor is likely to reduce sedimentation and uncontrolled impacts downstream in Byarong Creek.
Flood Risk and Management
In the assessments provided by the Developer, it is clear that the site is subject to flooding and as a result of the proposed development there are likely impacts on existing residential lots adjoining and down-slope of the site.
Response:
The modification application has been accompanied by a Flood Study as well as a Stormwater Management report.
The modification involves conveying water to the road network and then to the associated stormwater network, which includes On Site Detention basins (OSD). In particular, OSD basins 1 (central gully) and 2 ((eastern gully) are large basins modelled to ensure Terrie St is flood free in the PMF event, and otherwise attenuate peak flows such that peak flows post-development are designed to be less than the pre-development scenario.
Stormwater Management
During recent years, earthworks on site have been progressing slowly. From mid-2021 to mid-2022 when these works appeared to be trying to be progressed, significantly higher than average rainfall was experienced across the Illawarra. During this time, denuded slopes, earthworks and stockpiles appeared to have resulted in uncontrolled volumes of muddy water and slurry being discharged via the stormwater system into Byarong Creek.
Response:
The proposal now before the Court involves a range of updated conditions, including in relation to the need for a detailed Soil and Water Management Plan and inclusion of appropriate sediment control measures.
Geotechnical Risk
The amended proposal offers no improvements that could reduce the geotechnical risk on the site.
Response:
The lot location has been recast to move further downslope. Further, conditions relating to geotechnical testing, assessment and protection are already in the existing consent (Conditions 1-5) and further updated (condition 32).
Liability Implications for existing and future residents
Despite the level of concern expressed by the community in relation to the increased flood risk and geotechnical instability resulting from any development on the site, the Amended Proposal fails to provide answers to the community's questions in relation to who is, and will be, responsible/liable for future impacts on downslope and downstream residential properties in Terrie avenue and Valley drive if the engineering designs and controls prove to be inadequate.
Response:
Responsibility and/or liability in relation to any such issue will be resolved by reference to legal principles in relation to nuisance or negligence as each facts may determine.
Amenity Loss
During the earthworks and construction phases of the of the development site, over 116,000 tonnes surface material will be excavated, moved, and relocated on-site.
The sheer scale of these earthworks and associated activities will have severe impacts on the amenity of the residential suburb surrounding the Site.
Response:
It is acknowledged that the local community will endure traffic, construction and other impacts during the construction phase. However, this is not a reason for refusal, and will be managed by conditions."
The parties also explained their merit assessment and how they considered and addressed the terms of s 4.55(3) of the EPA which provides as follows:
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
The parties have taken into consideration the matters pursuant to s 4.15(1) of the Environmental Planning and Assessment Act 1979 as are relevant to the Proposed Modification and they consider that, on merit, the proposal is satisfactory. By way of summary the parties have considered the following as part of their merit assessment:
1. Biodiversity Conservation Act 2016 - A Biodiversity Development Assessment Report prepared by Ecoplanning and dated 26 May 2023 is at Tab 17 of the Class 1 Application. Proposed new conditions 94B-D and 153-155 require the active implementation of a Vegetation management plan for three years (94A-B), ongoing protection of the VMP area (154-155), the retirement of ecosystem credits (94C), and the preparation of a Construction Environmental Management Plan (94D). The above extracted Landscape Site Plan shows the proposed VMP Area.
2. State Environmental Planning Policy (Biodiversity and Conservation) 2021 - An Arboricultural Development Assessment Report prepared by Moore Trees and dated 5 July 2024 is at Tab G of RJB-1 and the conditions referenced above are proposed to ensure tree protection.
3. State Environmental Planning Policy (Resilience and Hazards) 2021 - A Preliminary Site Investigation is at Tab 9 of the Class 1 Application filed with the Court and new conditions 38E and 129B are proposed with respect to an unexpected finds protocol.
4. Wollongong Local Environmental Plan 2009:
1. The Applicant's "Statement of Environmental Effects Section 4.55(2) Modification to DA89/321 following S.34 Conciliation" dated 1 Jully 2023 (at Tab 5 of Exhibit RJB-1 to the Affidavit of Ryan John Bennett sworn 11 July 2024) addresses compliance with the terms of the Wollongong Local Environment Plan 2009 and the Wollongong Development Control Plan 2009
The parties have also taken into consideration the reasons given in the notice of determination (s 4.55(3), EPA Act). The reasons given in the Notice dated 7 August 1991 are as follows:
"To minimise any likely adverse environmental impact of the proposed development.
To ensure the protection of the amenity and character of land adjoining and in the locality.
To ensure the proposed development complies with the provisions of Environmental Planning Instruments and Council's Codes and Policies.
To ensure the development does not conflict with the public interest."
The parties seek to depart from the Court's template for conditions in appeals of modification applications because the Consent only consisted of 16 conditions whereas there are now 159 conditions together with numerous annexures incorporating the general terms of approval from various statutory agencies detailed at [21] and [22] above. Accordingly, the use of the template would not provide the clarity of the proposed amendments as intended by the design of those templates. The amendments have been identified in the conditions at Annexure A using the convention of underlining the amendments from this Mod F, and identifying the previous Mods D and E where relevant.
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. I adopt the reasons given by the parties and my additional reasons as set out above in this judgment.
As the parties' decision is a decision 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]
Notations:
The Court notes that Wollongong City Council, as the relevant consent authority, has agreed, under section 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending DA-1989/321/F to incorporate the documents listed below:
1. Letter prepared by Umwelt (Australia) Pty Ltd dated 15 October 2024;
2. Civil Engineering Drawings prepared by Site Plus:
Drawing No. Description Revision Date
C01 Title page O 26.09.24
C02 Civil work plan O 26.09.24
C03 Civil Works Detail Plan 1 O 26.09.24
C04 Civil Works Detail Plan 2 O 26.09.24
C05 Earthworks Plan O 26.09.24
C06 O 26.09.24
C07 Typical Sections O 26.09.24
C08 Terrie Avenue Long Section O 26.09.24
C09 Road No. 1 & Access Way Long Sections O 26.09.24
C10 Road No. 2 & Access Way 2 Long Sections O 26.09.24
C11 O 26.09.24
C12 OSD 1 Detail Sheet O 26.09.24
C13 OSD 1 Sections O 26.09.24
C14 OSD 2 Detail Sheet O 26.09.24
C15 OSD 2 Sections O 26.09.24
C16 Lots 6-12 OSD Details O 26.09.24
C17 Drainage Concept Plan O 26.09.24
C18 Drainage Calculations 1 O 26.09.24
C19 Drainage Calculations 2 O 26.09.24
C20 Drainage Calculations 3 O 26.09.24
C21 Western Gully Channel Plan O 26.09.24
C22 Western Gully Channel Long Section O 26.09.24
C23 Southern Retaining Wall Plan 1 O 26.09.24
C24 Southern Retaining Wall Plan 2 O 26.09.24
C25 Retaining Wall Details O 26.09.24
C26 Eastern Reserve Retaining Walls O 26.09.24
C27 Tree Clearing Plan O 26.09.24
C28 Signage and Linemarking Plan O 26.09.24
C29 Soil and Water Management Details O 26.09.24
C30 Soil and Water Management Details O 26.09.24
[3]
Drainage Plans prepared by Site Plus Pty Ltd:
Drawing No. Description Revision Date
G01 Sub-Soil Drainage Works Plan O 26.09.24
G02 Sub-Soil Drainage Works Details O 26.09.24
G03 Total Earthworks Plan O 26.09.24
[4]
Landscape Plans prepared by Site Plus Pty Ltd:
Drawing No. Description Revision Date
LC01/07 Overall Site Plan M 14.10.24
LC02/07 Detail Plan A M 14.10.24
LC03/07 Detail Plan B M 14.10.24
LC04/07 Details A, B & C M 14.10.24
LC05/07 Detail D M 14.10.24
LC06/07 Construction Details - 1 M 14.10.24
LC07/07 Construction Details - 2 M 14.10.24
[5]
Subdivision Plans prepared by Site Plus Pty Ltd:
Drawing No. Description Revision Date
P01 Concept Subdivision Plan O 26.09.24
P02 Subdivision Plan - Aerial Overlay O 26.09.24
P03 Detailed Subdivision Plan O 26.09.24
P04 Land Dedication Plan O 26.09.24
P05 Site Analysis Plan O 26.09.24
P06 Subdivision Staging Plan O 26.09.24
P07 Lot Access Detail O 26.09.24
C27 Tree Clearing Plan O 26.09.24
[6]
Orders:
The Court orders:
1. The appeal is upheld.
2. Development consent DA-1989/321 formerly relating to Lot 31 DP 939374 and Lot 2 DP 206753 known as Terrie Avenue, Figtree, is modified in the terms in Annexure A as underlined and noted as "Amended Modification F" as it relates to the remaining undeveloped parcel lot 313 DP 1123222.
[7]
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: 19 November 2024