Bingara Development Pty Ltd v Wollondilly Shire Council

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."