Jasminco Resources Pty Limited v Goulburn Mulwaree Council

The Site

1. The site has frontage to the Hume Highway along its western boundary (adjoining Lot 2), and Tiyces Lane along its eastern boundary (adjoining Lot 1). Curlewin Lane forms part of the north-eastern boundary of the site and currently provides access to the site.
2. Lot 1 has an area of 44.08 Ha and Lot 2 has an area of 45.06 Ha. The site is elevated with respect to surrounding lands, and is highest in its north-eastern portion. The elevation of the quarry varies from 725.5 m to 731.5 m above height datum (AHD), and will be located within the boundaries of Lot 1.
3. Across this site are pockets of remnant vegetation which are observed across both lots, and which include species of the Endangered Ecological Community, including: Yellow Box; White Box; and Blakely's Redgum.
4. Also located across the site (both Lots 1 and 2), and which traverses the site in a southwest to northeast direction is an easement that contains infrastructure for energy services (both transmission and distribution), and includes stanchions and power lines.
5. The character of the surrounding area is described as large lot rural subdivisions, which are predominantly used for agriculture and domestic dwellings, and interspersed by native vegetation of a high conservation value.
6. The site is currently used for agricultural purposes and includes a non-residential farm building. There are also four dams on Lot 1 and three dams on Lot 2, which are fed by established drainage lines.

Background

1. DA 0330/1617 was submitted to Council on 11 May 2017, and following notification, 15 written submissions were received, including 11 objections.
2. Subsequently, the DA was referred by Council to the relevant authorities for concurrence, including: Roads and Maritime Services; Water NSW; Department of Environment and Heritage Office; Department of Primary Industries (Agriculture, as well as Resources and Energy); and Pejar Local Aboriginal Land Council.
3. The DA was assigned to the Southern Joint Regional Planning Panel (SRJPP) on 1 June 2017, who determined to refuse the DA on 6 December 2017 for the following reasons: 1. Owners consent not provided for proposed works along Tiyces Lane, 2. Insufficient information to assess environmental impacts and appropriateness of access arrangements, and 3. Unsuitability of a quarry in an E3 zone and incompatibility with surrounding land uses.
4. The applicant appealed against the refusal of DA 0330/1617, pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). As a result, the Land and Environment Court (the Court) ordered a conciliation between the parties, pursuant to s 34(1) of the Land and Environment Court Act 1979 (the Court Act), which commenced as a site view on 19 September 2018.
5. As the parties were unable to reach an agreement after a brief adjournment, pursuant to s 34(4)(b) of the Court Act, the conciliation was terminated on 21 September 2018 and the hearing of the appeal was set down at the parties request before myself, as presiding Commissioner of the conciliation. The parties agreed to rely on observations and information obtained from the conciliation, including objectors' statements to supplement evidence tendered in Court at the hearing.
6. Prior to the hearing, leave was granted by the Court at the applicant's request, with no objection from the respondent, to amend the plans and supporting documents to be relied upon in the hearing of the appeal (as an outcome of the s34 conciliation). The DA was further notified on 13 December 2018. A total of 21 submissions were subsequently received, which were all except one, in objection to the proposed development. At the same time Council continued to liaise with authorities with a concurrence responsibility.
7. Based on the newly designed internal road located beneath the energy easement and new egress point onto Tiyces Lane as shown in the amended plans, the Council sought concurrence on 7 January 2019 from Essential Energy, as owner of the energy (distribution) infrastructure within the easement (based on the title search provided in Exhibit 7).
8. The Court granted an adjournment of the hearing, by request of the parties, to allow the applicant the opportunity to consider whether there was a potential issue requiring owners consent relating to the proposed modification road works on Tiyces Lane, and also to address the requirement for a heritage assessment, pursuant to cl 5.10 of the Goulburn Mulwaree Local Environmental Plan 2009 (GMLEP). The Court also granted leave for the applicant to amend their DA to include the request for removal of the (s 88B) restriction on direct access from the Hume Highway to the site, as sought for this proposed development.
9. The hearing resumed on 12 April 2019 with the amended DA filed with the Court (tendered as Exhibit J). Thereafter, the respondent was made aware of the concurrence requirement, as it relates to the proposed internal road design, from Transgrid as owners of transmission line components with infrastructure in the energy easement. The Court granted a further adjournment by request and agreement of the parties, for the respondent to seek concurrence from Transgrid for proposed (internal) road works within the energy easement, pursuant to cl 45 of the State Environmental Planning Policy (Infrastructure) 2007.
10. At the start of the (second) resumption of the hearing on 18 April 2019, the applicant tendered evidence of its correspondence with Transgrid regarding internal road works located within 20 m of their transmission stanchions. The applicant also provided evidence (Exhibit N) of its title search, dated 11 April 2019, that shows that the easement across the site relates to energy services owned by Transgrid (for transmission lines) and Essential Energy (for distribution lines). It is understood from this document that Transgrid and Essential Energy services relate to 60.96 m and 20 m of the easement width, respectively.

Relevant Planning Controls and Requirements

1. The requirements of s 4.15(1) of the EPA Act 1979, with respect to the proposed development are relevant in consideration for the Court to grant consent to this DA. 4.15 Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
2. Section 88B of the Conveyancing Act 1919 for the creation and release of easements, is relevant to the proposed development as it relates to the request for the removal of the current restriction registered on title (over Lot 2 to benefit Lot 1) for ingress to the site from the Hume Highway.
3. Works on Tiyces Lane and the Hume Highway require approval from the relevant authority, pursuant to s 138 of the Roads Act 1993.
4. A development application must be made by the owner of the land to which the development applies, pursuant to cl 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) which states: 49 Persons who can make development applications (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land.
5. A DA must provide relevant and sufficient supporting information to allow assessment before the grant of consent, pursuant to cl 50(1)(a) of the EPA Reg. Relevant information to support this DA includes road design works and where necessary evidence of owners consent for works that the development relies upon, as specified in Schedule 1, Part 1, cl 1(1)(b), (i) and cl 2(3)(a) and (d). 50 How must a development application be made (1) A development application: (a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, … Schedule 1 Part 1 Development applications 1 Information to be included in development application (1) A development application must contain the following information: … (b) a description of the development to be carried out, … (i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner's consent is required by this Regulation, … 2 Documents to accompany development application (3) The sketch referred to in subclause (1) (b) must indicate the following matters: (a) the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land's boundaries and adjoining development, ... (d) proposed finished levels of the land in relation to existing and proposed buildings and roads, …
6. As the proposed development is a quarry (part of an extractive industry), there are relevant clauses of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (SEPP Mining) that require the Court's consideration in assessment of this DA, including those which relate to: cl 12, compatibility with other land uses; cl 14, natural resource and environmental management; cl 15, resource recovery; and cl 16, transport.
7. With regards to the proposed works within the (energy) easement, the Court is required to consider cl 45 of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP infrastructure): 45 Determination of development applications - other development (1) This clause applies to a development application (or an application for modification of a consent) for development comprising or involving any of the following: (a) the penetration of ground within 2m of an underground electricity power line or an electricity distribution pole or within 10m of any part of an electricity tower, (b) development carried out: (i) within or immediately adjacent to an easement for electricity purposes (whether or not the electricity infrastructure exists), or (ii) immediately adjacent to an electricity substation, or (iii) within 5m of an exposed overhead electricity power line, (c) installation of a swimming pool any part of which is: (i) within 30m of a structure supporting an overhead electricity transmission line, measured horizontally from the top of the pool to the bottom of the structure at ground level, or (ii) within 5m of an overhead electricity power line, measured vertically upwards from the top of the pool, (d) development involving or requiring the placement of power lines underground, unless an agreement with respect to the placement underground of power lines is in force between the electricity supply authority and the council for the land concerned. (2) Before determining a development application (or an application for modification of a consent) for development to which this clause applies, the consent authority must: (a) give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks, and (b) take into consideration any response to the notice that is received within 21 days after the notice is given.
8. The site is located within an E3 Environmental Management zone, as identified in the GMLEP. The proposed development is permissible with consent in this (E3) zone, pursuant to cl 2.3 of the GMLEP. Of further relevance in consideration of this DA are the following clauses of the GMLEP: cl 1.2 aims of the plan; cl 1.9A suspension of covenants, agreements and instruments; cl 2.3 as it relates to zone objectives; cl 7.2 terrestrial biodiversity; cl 4.1 subdivision lot size; cl 5.10 heritage conservation; and cl 6.3 flood planning.
9. The relevant clauses of the Goulburn Mulwaree Development Control Plan 2009 (GMDCP) for the Court's consideration include: cl 5.9 relating to rural land use conflict; cl 7.2 as it relates to traffic; and 7.4 for easements.
10. The documents relied upon in assessment of noise and roads impacts, are the Industrial Noise Policy 2017 and Austroads Guide to Road Design (Austroads), respectively.

Evidence

1. The applicant has relied on Mr Keith Allen, Mr Robert Mowle and Dr Peter Gangemi for expert evidence on planning, traffic and acoustic, respectively.
2. The respondent has relied on Ms Diane James, Mr Craig McLaren and Dr Renzo Tonin for expert evidence on planning, traffic and acoustic, respectively.
3. The ecology experts, Mr Pat Guiname for the applicant and Mr Brian Faulkner for the respondent, were not required to give oral evidence as the relevant ecological contentions were resolved to their satisfaction during joint conferencing. The Court relies on their joint expert reports in assessment of the proposed development and the relevant conditions of consent proposed by the parties to resolve these contentions.

Is there a jurisdictional requirement for owners consent for works along Tiyces Lane, and if required, has it been satisfied to grant consent for this DA?

1. In consideration of the proposed development before the Court under appeal, I must first deal with the potential jurisdictional requirement as it relates to owners consent for any works along Tiyces Lane associated with the proposed development that extend onto private lands. This is a fundamental jurisdictional issue, whereby pursuant to cl 49(1)(b) of the EPA Reg, any works to be located on private land require the consent of the owner on whose land the works are proposed for the application of the DA.
2. The traffic experts agree that there are existing portions of the road reserve of Tiyces Lane and its associated road infrastructure (i.e. drainage culverts) that currently encroach onto private land, namely Lots 20 and 21, DP 621540. The experts disagree however whether future works are required on parts of Tiyces Lane as part of the proposed development that will be locate on these private lands.
3. The Court is not constrained to consider future works that result in further incursion onto private lands as a result of modifications to Tiyces Lane as related to the proposed development, provided relevant owners consent is obtained at the application of the DA.
4. The first requirement for the Court's consideration is whether there is sufficient information, as provided in the supporting documents to the DA and including the proposed conditions of consent, for the Court to be satisfied that there is or is not a requirement for owners consent, particularly from either Lots 20 and/or 21. The second issue that needs to be resolved to enable the Court to grant consent to the DA, is if the Court is satisfied that there are proposed works on either of these lots (20 and 21) as a result of the proposed development, that owners consent has been provided.
5. I address the first issue. The applicant, through its expert Mr Mowle contends that no works are designed or proposed along Tiyces Lane that will occur on private land, as shown in the road design plans (Exhibit 18). He agrees that these plans are 'conceptual' in design, although argues that the detailed design of road works to support the functioning and safety associated with the proposed development will appropriately be provided after consent of the DA, as provided for in the conditions of consent. These conditions specifically require detailed road design plans: as part of the s138 Roads Act approval, prior to appointment of a private certifying authority (PCA); and in support of a road safety audit after completion of road works, prior to occupation certificate.
6. The respondent's expert, Mr McLaren agrees that the plans before the Court are conceptual in design and currently do not show any works to be undertaken within private lands, namely Lots 20 and 21. However, he contends that these plans are not sufficiently detailed, nor representative of what is actually likely to be required to ensure safety and functionality in the operation of Tiyces Lane to support the proposed development, particularly as it relates to heavy vehicle haulage. He disagrees that the detail provided in the (conceptual) road design plans (Exhibit 18) are sufficient to satisfy the requirements of cl 50(1)(a) of the EPA Reg, and in particular for the Court to be satisfied that Tiyces Lane is safe and functionable. To achieve this, he contends further works on private lands will be required.
7. The proposed road works associated with the DA are described in Exhibit 18, which include: 1. Improvements to and construction of internal roads to support the new quarry and existing agricultural industry, that traverses beneath an existing easement for energy infrastructure, and which connects with the proposed ingress and egress roads; 2. Creation of a new egress (exit) onto Tiyces Lane, and construction of a new (104 m) acceleration lane by widening (3.5 m) the existing road including work to the shoulder on the north bound side of Tiyces Lane; 3. Dedication of 1.54 m2 from Lot 1 for road widening of Tiyces Lane; 4. Construction of a new deceleration lane (min 180 m long and 7 m wide) along the Hume Highway to form the ingress (entry) onto the site (Lot 2); and 5. Reconstruction of an existing acceleration lane from and in connection to Tiyces Lane for trucks entering the Hume Highway to travel south (with traffic measures to restrict north turning truck movements).
8. The proposed works along Tiyces Lane are basis for this contention, and therefore the focus of the Court's consideration. It is understood from the road design plans that parts of Tiyces Lane, from the site to the Hume Highway acceleration lane entrance, which are proposed to be modified to support the proposed development, and in particular become suitable for heavy vehicle haulage.
9. The traffic experts were unable to reach agreement on the extent of likely works that may be required along Tiyces Lane and also as to whether those works would be located on private property, and therefore require owners consent to be obtained. The points of disagreement along Tiyces Lane that relate to potential private land incursions are shown in Exhibit 20. There are five points along Tiyces Lane that are in dispute, of which three locations relate to potential incursion into Lot 21, and two points relate to potential incursion into Lot 20.
10. Mr Mowles contends that as shown in the amended plans before the Court, all road works associated with Tiyces Lane are capable of being contained within the Council's existing road reserve, and that no work will be required on private land other than that owned by the applicant. He relies on providing the exact details of required work to ensure the road (Tiyces Lane) functions safely, after DA consent, as part of the construction stage of the development.
11. He contends that any 'incidental works' required on this road, would be detailed as part of the s 138 (of the Roads Act) approval application.
12. Mr McLaren however contends that there are a number of locations along Tiyces Lane that, to enable the road to function safely and to support the proposed development, would require works to extend onto Lots 20 and 21. He does not consider that the conceptual road designs before the Court accurately reflect the expected/required road conditions for heavy vehicle haulage from the site to the Hume Highway, and which are able to appropriately protect the existing (domestic) road users. He recognised that the trucks from the site would be speed limited to 80 km/hr, however the general public using this road are able to travel at 100 km/hr, and it is this incompatibility of speed which has not been considered in the design of the road.
13. The traffic experts agree that at the junction of Tiyces Lane and the upgraded acceleration lane (at point one, shown in Exhibit 20), the road surface requires an appropriate 'superelevation' and that a modification in the current curvature of the road (at points one and two) will be required to ensure safety of users. They also agree that these features are not currently shown in the (conceptual) road design plans before the Court.
14. The experts agree that to achieve the required superelevation of the road surface at this point (one), the corner of Tiyces Lane would need to be widened and elevated. Mr McLaren considers that adjusting the curvature of the road at this location, would require it to be elevated on the eastern side of the road and to prevent vehicles, particularly trucks crossing the centreline in the bend of the road, will require battering (1:3 slope), guardrails, drainage culvert and/or other structures to be located on the internal corner. He contends this would result in an extension of road works onto private property, namely Lot 21.
15. Mr Mowle, however, is confident that the superelevation of the road at this location can be achieved without incursion onto Lot 21, such as by designing a vertical retaining wall. This, he states, would be considered in detail after DA consent (as provided for in the conditions). Mr Mowle also states that works to adjust the superelevation of the road at this point could be undertaken by moving the junction of the road further west towards the road reserve located close to the Hume Highway, which could also be assessed in the detailed design stage.
16. The experts agree that the proposed dual to single carriageway portion on Tiyces Lane, where the trucks from the site enter existing traffic flow, would require the existing north bound lane of this road to be partly decommissioned (shown as points five and six in Exhibit 20), although they disagree on the timing and responsibility for these works. They agree that this portion of the road is currently located on private land, on Lots 20 and 21. Mr McLaren contends that for safety, this (existing) portion of Tiyces Lane would need to be decommissioned to ensure other road users, who are able to travel at 100 km/hr, do not become confused at the merge. However, Mr Mowle contends that what is proposed is not unsafe, nor the responsibility of the applicant being a public road.
17. Mr McLaren states that to enable safe and effective decommissioning of the north bound lane on Tiyces Lane at points five and six (Exhibit 20), works to the drainage culvert would be required which would occur on private land (Lots 20 and 21), as these portions of the road already extend onto private land and cannot be left without any action for reasons of safety.
18. Mr Mowle is confident that the required works on Tiyces Lane can be fully contained in the existing road reserve, and that any subsequent changes to the design plans that are before the Court which are required to address safety do not require owners consent to be consistent with cl 49 of the EPA Reg.
19. Based on the conceptual road design plans and confidence of their traffic expert, the applicant therefore relies on the road design plans (Exhibit 18) on which this appeal is based, and does not seek to obtain owners consent for Lots 20 or 21. These are the road design plans that the Court can be satisfied it has sufficient information to grant consent to this DA.

Conclusion and findings

1. I accept that based on the plans before the Court that there are no works that support the proposed development which are currently shown/identified to be located on private lands.
2. I agree with the experts that these (road design) plans are conceptual. I however find that the limited information provided in these conceptual plans results in uncertainty with regards to what will actually be required to support the proposed development and whether any works could potentially extend onto private lands. This is primarily due to the insufficiency of detail provided in the road design plans that supports this DA under appeal. There is uncertainty in my mind as to the likely finished levels to account for adjusting the superelevation of the road surface along Tiyces Lane, particularly where the acceleration lanes join Tiyces Lane. The plans do not show in sufficient detail to ease my concern how the proposed acceleration lanes connect to the existing road survey in terms of elevation. Although I accept there are (elevation) sections for road the proposed surface provided, I consider there is insufficient elevation detail shown in these road design plans. The supporting information provided is therefore inconsistent and insufficient to satisfy the requirements of the EPA Reg, Schedule 1, Part 1 cl 2(3)(d) as follows: (d) proposed finished levels of the land in relation to existing and proposed buildings and roads …
3. It is apparent that the supporting documents of the DA currently before the Court are inadequate and do not allow for a proper assessment of the potential impacts of the proposal and in particular if there is a jurisdictional requirement for owners consent. Nor does it pass the necessary threshold tests of relevant environmental planning instruments. I am not satisfied I have sufficient information to be assured that the proposed development does not require owners consent for works along Tiyces Lane, pursuant to cl 49(1(b) of the EPA Reg. It is not sufficient nor jurisdictionally correct for the applicant to deal with any potential issue at a later stage after development consent has been granted.
4. My assessment of insufficient information to be satisfied to grant consent is consistent with the findings of Chief Justice Preston in the Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 (Al Maha) [97] as follows: [97] The development application will be "ineffective and incomplete" whilst so ever the development application does not contain the information and is not accompanied by the documents that the EPA Act and the Regulation require to be provided in order for the consent authority to validly exercise the power to determine the development application. There can be no valid determination of the development application until there is substantial compliance with such statutory prescriptions: McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [189].
5. I do not accept the proposition advanced by Mr Mowles that the failure of the applicant to provide an appropriate level of information can be overcome by the grant of conditions of consent. To take such an approach provides no certainty to the Court that the application could achieve the objectives of the planning controls and be confident that the proposed development is in compliance with the jurisdictional requirement of cl 49(1) of EPA Reg.
6. Having regard to the evidence available, I am not satisfied that the development is appropriate nor accords with relevant planning instruments and controls. I consider there is insufficient information to comply with s 4.15(1)(b) of the EPA Act.
7. I find that the conceptual road design plans and evidence of Mr Mowles has not addressed the burden of proof required for the Court to be satisfied that the required works along Tiyces Lane will be fully contained in the existing road reserve and will not extend further onto private property.
8. The experts agree and I accept, that further works will be required along Tiyces Lane to support the function of the DA than what is shown in the amended (road design) plans. The experts also agree, which I accept, that Tiyces Lane cannot support the proposed development in its current form and that to permit fully ladened trucks to travel from the site along the proposed route, new/modified acceleration lanes and curve modification (to adjust for superelevation) works are required. Specifically it is agreed that further works to Tiyces Lane are required and not accurately shown on the design plans before the Court include: an appropriate superelevation of all the acceleration lanes where they connect with the existing road surface; change to the existing road curvature (at point 1) on Tiyces Lane; and road safety measures to prevent cars accessing those portions of the north bound lane of Tiyces Lane that are to be decommissioned.
9. I agree with Mr McLaren that to address safety and functionality of the road to support the proposed (quarrying) purpose of the development, there will likely be works required at the corner of Tiyces Lane merging into the upgraded acceleration lane leading to the Hume Highway. Although not shown on the design plans before the Court, I agree with Mr McLaren that for the proposed development to function, the curve of the road at this point will need to be adjusted, which could potentially extend onto private property, namely Lot 21, although there is uncertainty by how much and what is likely to be required. I observe on the plans that there is currently very limited distance between the existing road alignment and Lot 21 boundary (at point 1 in Exhibit 18), and therefore there is considerable doubt in my mind as to how any works could be contained within the road reserve and not extend onto private land. I find Mr Mowles explanation not sufficient to allay these doubts.
10. I find that the road design plans supporting the DA do not satisfy the requirements of cl 50(1)(a) of the EPA Reg, because the supporting documents as required in Schedule 1, Part 1 cl 2(3)(a) and (d) are not adequate: (3) The sketch referred to in subclause (1) (b) must indicate the following matters: (a) the location of any proposed buildings or works (including extensions or additions to existing buildings or works) in relation to the land's boundaries and adjoining development, … (d) proposed finished levels of the land in relation to existing and proposed buildings and roads …
11. Pursuant to s 4.10 of the EPA Act, the applicant is required to address in its Environmental Impact Statement (EIS) the Secretary's Environmental Assessment Requirements (SEARs), as described in Exhibit B. The SEARs for the proposed development, with regards to traffic and transport, require the applicant to specifically address: "an assessment of potential traffic impacts on the capacity, condition, safety and efficiency and safety of the local and State road networks, detailing the nature of the traffic generated transport routes, traffic volumes and potential impacts on local and regional roads", as well as; "a description of the measures that would be implemented to maintain and/or improve the capacity, efficiency and safety of the road network (particularly proposed transport routes) over the life of the development".
12. I find that the EIS together with the other supporting documents of the DA, namely the road design plans, are lacking in sufficient detail to adequately address the SEARs. The issue of safety on the proposed transport routes is not addressed sufficiently in the supporting documents before the Court.
13. Preston CJ in the Al Maha judgement at [91] explains the relevant information that must support a development application: "[91] The land on which the development is to be carried out is to be determined not only from the address and formal particulars of title shown on the development application form but also from the documents that must accompany the development application. The Regulation requires the development application to be accompanied by specified documents, including 'a site plan', 'a sketch of the development', and 'a statement of environmental effects' (in the case of development other than designated development or State significant development) or 'an environmental impact statement' (in the case of designated development or State significant development) (cl 2(1)(a),(b),(c),(e) of Sch 1 of the Regulation). The site plan must indicate, amongst other matters, 'the location, boundary dimensions, site area and north point of the land' (cl 2(2)(a) of Sch 1 of the Regulation). … [93] These accompanying documents describe the development to be carried out and the land on which the development is to be carried out."
14. The reliance on a condition of consent that defers detail after consent is granted, and which could potentially result in works on private land that had not previously been addressed, is inconsistent with the legal principal established in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison). In this judgment, Clarke JA states: "Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final." (at 740)
15. Preistley JA, Clarke JA and Meagher JA, in their opening statements at [1] of the Mison judgment recognise the significance of ensuring conditions complement the consent being sought, as described below: "[1] If a condition imposed upon a purported consent to a particular development application pursuant to s 91(1) of the Environmental Planning and Assessment Act 1979 has the effect of significantly altering the development in respect of which the consent is made or if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which application was made then the purported consent is not a consent to the application." (at 734)
16. It is incumbent on the applicant to satisfy the requirement for certainty, particularly if relying on a condition of consent where there is some concern regarding works that may potentially extend onto private land, and which relate to safety and functionality of the proposed development. I find that based on what is in evidence before the Court in this appeal, uncertainty still prevails.
17. I find that the proposed conditions of consent, which rely on more detailed road design after consent has been granted does not satisfy the jurisdictional requirement for the Court to grant consent to the DA. In particular, there is insufficient supporting documentation to this DA, which does not satisfy cl 50(1)(a) of the EPA Reg.
18. I do not accept the proposition advanced by Mr Mowle that the failure of the applicant to provide an appropriate level of information can be overcome by the grant of a deferred commencement consent, whereby detailed plans will be submitted as part of the s138 approval. That is not the purpose of s 4.16(3) of the EPA Act. To take such approach provides no certainty to the Court that the application could achieve the objectives of the planning controls and may result in a requirement for owners consent. My assessment is consistent with that put forward by Commissioner Morris in Ho-Chung v Bayside Council [2017] NSWLEC 1056.
19. I therefore find I am unable to properly address the issue of owners consent as it relates to the proposed development, because there is insufficient detail to allow the Court to determine whether there is a jurisdictional requirement to do so.
20. Importantly, Preston CJ in the Al Maha judgment describes what is required to satisfy a consent authority when a proposed development relies on works beyond the land to which the applicant of the DA owns: "[94] If the accompanying documents reveal that part of the proposed development extends to land other than the land whose address and formal particulars of title are shown in the development application form, that other land is also the subject of the development application: see Owners - Strata Plan 37762 v Pham [2005] NSWLEC 500 at [32]. Conversely, the description of the land on which the development is to be carried out in the accompanying documents (such as the statement of environmental effects) can also confine the land to which the development application relates to be a lesser parcel of land than is described in the development application form: see Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36; [2002] NSWLEC 208 at [60]-[63]. [95] The giving of owner's consent to the making of a development application with respect to the owner's land for the purpose of cl 49 of the Regulation is an essential prerequisite to, and part of the process of, a consent authority's determination of the application. That is to say, the giving of owner's consent is necessary to enable the consent authority to exercise its function to grant development consent to the application if it be minded to do so. On an appeal from a determination of the consent authority, the Land and Environment Court cannot uphold the appeal and grant development consent to the development application unless the owner's consent to the making of the application has been given: Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [34(c) and (e)]."
21. I am not satisfied beyond reasonable doubt that the supporting documents to this DA accurately describe the development to be carried out and the land on which the development is to be undertaken. Therefore without this, I am unable to be satisfied on the requirement for owners consent from Lots 20 and/or 21, and therefore development consent cannot be granted by the Court, pursuant to cl 49(1) of the EPA Reg.
22. This finding of insufficient information is consistent with the reasons for refusal as made by the SRJPP, and I consider that the amended plans do not resolve this issue as assessed by the Panel.
23. For the reasons provided above, I have no power to approve this development. In this instance, I find that the supporting documents are insufficient and the issue as it relates to the requirement for owners consent has not been satisfactorily resolved.

Findings

1. I am not satisfied that cl 50(1)(a) of the EPA Reg has been achieved and also that cl 49(1) of the EPA Reg is resolved to ensure that there is no jurisdictional issue with regards to the granting of this consent.
2. I therefore find that the DA does not comply with s 4.15(1)(a)(i) of the EPA Act. I therefore cannot consent to the proposed development.
3. As I have found there is a jurisdictional non-compliance with regards to sufficiency of information, I am not required to address the other contentions that relate to the proposed development, and make no determination with regards to their satisfaction.

Orders

1. Consequently, the orders of the Court are as follows: 1. The appeal is dismissed. 2. Development Application 0330/1617 for establishment of an extractive industry, on Lots 1 and 2 DP 1094055, also known as 63 and 65 Curlewin Lane, Towrang is refused. 3. The exhibits, except for Exhibits A, B, 2, 18, 20 and 24, are returned. ……………………. Sarah Bish Commissioner of the Court

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