LOGOS Development Management Pty Ltd v The Minister for Planning and Public... [2024] NSWLEC 1241 | Case summary

Land and Environment Court (NSW)|2024-05-03

JUDGMENT

COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of modification application SSD-7155- Mod 10. That modification application seeks to amend conditions relating to the carryout of road upgrade works within development consent SSD-7155 (the consent). The consent granted approval for staged construction of warehouse buildings, associated office space, access roads, parking, drainage and landscape at 5-35 Yarrunga Street, Prestons (Lots 5-35 and 43 in DP 2359, Lot 20 in DP 173482, Lots A and B in DP 408207 and Lot B in DP 416483).
The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties which was held on 28 July 2023. The conciliation conference was adjourned to allow the parties to continue discussions, but was ultimately terminated on 24 October 2023.
On the 30 April 2024 the Court granted leave to the Applicant to amend the Modification Application to amend the proposed modified conditions.
The parties have continued discussions and have reached an agreement as to the resolution of the proceedings. The decision agreed upon is for the grant of the Modification Application, as amended, subject to the annexed conditions. The parties advised the Court of their agreement, and the proceedings were listed for a further conciliation conference on 3 May 2024. I presided over the further conciliation conference.
As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that: 1. The Modification Application is made with the consent of the owner of the land to which the development relates in accordance with s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). 2. I am satisfied that the Modification application is consistent with the principles detailed in Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 as: 1. upgrade works to the intersection of Bernera Road and Yarrunga Street were part of the development originally proposed within the Environmental Impact Assessment and were approved by the Development Consent. The Modification Application therefore seeks to modify the development the subject of the Development Consent; and 2. the approved development under the Development Consent (as modified) required the carrying out of physical works prior to the completion of the approved development. The Modification Application proposes a change to this proposal in circumstances where the development is yet to be completed. 1. The Modification Application is made pursuant to s 4.55(1A) of the EPA Act. This provision has a number of conditions that need to be satisfied. The provision states: 4.55 Modification of consents - generally (cf previous s 96) … (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) 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 (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), (2) and (5) do not apply to such a modification. (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. …

Is the development of minimal environmental impact: s 4.55(1A)(a) of the EPA Act 1. The parties agree, and I accept that the Modification Application is of minimal environmental impact. This is because the Modification Application proposes alteration in a condition of the development consent which has the effect of changing the entity who is to carry out the work, a change which has minimal environmental impact. I find that s 4.55(1A)(a) of the EPA Act is satisfied.

Is the development substantially the same development: s 4.55(1A)(b) of the EPA Act 1. After a comparison, I am satisfied that the consent, as proposed to be modified by this Modification Application, is substantially the same development as the development for which consent was originally granted. There is no 'radical' change to the development. The changes proposed do not substantially change the building footprint or massing. The Modification Application does not make transformative changes in the building height or gross floor area (GFA). The fundamental characteristics of the development, development consent no SSD-7155 for staged construction of warehouse buildings, associated office space, access roads, parking, drainage and landscape, remain. Despite the Modification Application amending the means by which the proposed intersection works are undertaken, the development is substantially the same. I find that s 4.55(1)(b) of the EPA Act is satisfied.

Was the Modification Application notified: s 4.55(1A)(c) and (d) of the EPA Act 1. The parties agree, and I accept, that the Modification Application was not required to be notified pursuant to s 105(4) of the EPA Regulation. That provision provides that modification applications made pursuant to s 4.55(1A) of the EPA Act for State Significant development are not required to be notified or advertised. The Statement of Facts and Contentions filed in the proceedings confirm that development consent no SSD-7155 was a State Significant development application. Notwithstanding this, the Respondent has notified Liverpool City Council.

Matters at s 4.15 of the EPA Act: s 4.55(1A)(3) of the EPA Act 1. Under s 4.55(1A)(3) of the EPA Act, the consent authority must also take into consideration two matters. Firstly, the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development, the subject of the application. Secondly, the reasons given by the consent authority for the grant of the consent that is sought to be modified. 2. With the assistance of the agreed jurisdictional note filed by the parties, I conclude, none of the matters referred to in s 4.15(1) of the EPA Act, that are of relevance to the development the subject of the application, precludes the approval of the Modification Application for the reasons set out below: 1. Section 4.15(1)(a)(i) - any environmental planning instrument: The Modification Application can be approved having regard to the provisions of the Liverpool Local Environmental Plan 2008 (LLEP 2008) and the zone objectives including: Zone E4 General Industrial To provide a wide range of industrial and warehouse land uses. To encourage employment opportunities. To minimise any adverse effect of industry on other land uses. To support and protect industrial land for industrial uses. To particularly encourage research and development industries by prohibiting land uses that are typically unsightly or unpleasant. To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area. 1. Section 4.15(1)(a)(ii) - any proposed instrument: there are no applicable draft instruments for consideration. 2. Section 4.15(1)(a)(iii) - any development control plan: the Site is subject to the relevant provisions of the Liverpool Development Control Plan 2008 (LDCP 2008). The LDCP 2008 is of limited applicability to the Modification Application which is administrative in nature. Notwithstanding, the development as approved under SSD 7155 (and as modified) would not require any further consideration of the controls pertaining to the LDCP 2008. 3. Section 4.15(1)(a)(iiia) any planning agreement that has been entered into under s 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4: there is no planning agreement pursuant to s 7.4 of the EPA Act relating to the Modification Application. 4. Section 4.15(1)(a)(iv) the regulations: there are no matters arising out of the Amended Modification Application which raise compliance issues with the EPA Regulation. 5. Section 4.15(1)(b) does not apply as there is no change in the physical development and there are no adverse impacts of the Modification Application, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. 6. Section 4.15(1)(c), the Modification Application does not alter the nature of the development or its operations, such that it would become unsuitable for the subject site. 7. Section 4.15(1)(d) does not apply to the Modification Application as it did not need to be notified so no submissions were received. The Respondent as the consent authority has notified the Council, and has taken Council's submissions into account when entering into the agreement. 8. The Modification Application is in the public interest in accordance with s 4.15(1)(e).

Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.
The Court orders that: 1. The Appeal is upheld. 2. The modification application SSD-7155- Mod 10 relating to development consent no. SSD-7155 is approved, subject to the conditions at Annexure A. 3. As a consequence of Order (2), development consent no SSD-7155 for staged construction of warehouse buildings, associated office space, access roads, parking, drainage and landscape is now subject to the consolidated modified conditions in Annexure B. D Dickson Commissioner of the Court

Annexure A Annexure B 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: 10 May 2024

Is the development substantially the same development: s 4.55(1A)(b) of the EPA Act

(1) After a comparison, I am satisfied that the consent, as proposed to be modified by this Modification Application, is substantially the same development as the development for which consent was originally granted. There is no 'radical' change to the development. The changes proposed do not substantially change the building footprint or massing. The Modification Application does not make transformative changes in the building height or gross floor area (GFA). The fundamental characteristics of the development, development consent no SSD-7155 for staged construction of warehouse buildings, associated office space, access roads, parking, drainage and landscape, remain. Despite the Modification Application amending the means by which the proposed intersection works are undertaken, the development is substantially the same. I find that s 4.55(1)(b) of the EPA Act is satisfied.

Was the Modification Application notified: s 4.55(1A)(c) and (d) of the EPA Act

(1) The parties agree, and I accept, that the Modification Application was not required to be notified pursuant to s 105(4) of the EPA Regulation. That provision provides that modification applications made pursuant to s 4.55(1A) of the EPA Act for State Significant development are not required to be notified or advertised. The Statement of Facts and Contentions filed in the proceedings confirm that development consent no SSD-7155 was a State Significant development application. Notwithstanding this, the Respondent has notified Liverpool City Council.

Matters at s 4.15 of the EPA Act: s 4.55(1A)(3) of the EPA Act

(1) Under s 4.55(1A)(3) of the EPA Act, the consent authority must also take into consideration two matters. Firstly, the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development, the subject of the application. Secondly, the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(2) With the assistance of the agreed jurisdictional note filed by the parties, I conclude, none of the matters referred to in s 4.15(1) of the EPA Act, that are of relevance to the development the subject of the application, precludes the approval of the Modification Application for the reasons set out below:

(a) Section 4.15(1)(a)(i) - any environmental planning instrument: The Modification Application can be approved having regard to the provisions of the Liverpool Local Environmental Plan 2008 (LLEP 2008) and the zone objectives including:

Zone E4 General Industrial

To provide a wide range of industrial and warehouse land uses.

To encourage employment opportunities.

To minimise any adverse effect of industry on other land uses.

To support and protect industrial land for industrial uses.

To particularly encourage research and development industries by prohibiting land uses that are typically unsightly or unpleasant.

To enable other land uses that provide facilities or services to meet the day to day needs of workers in the area.

(b) Section 4.15(1)(a)(ii) - any proposed instrument: there are no applicable draft instruments for consideration.

(c) Section 4.15(1)(a)(iii) - any development control plan: the Site is subject to the relevant provisions of the Liverpool Development Control Plan 2008 (LDCP 2008). The LDCP 2008 is of limited applicability to the Modification Application which is administrative in nature. Notwithstanding, the development as approved under SSD 7155 (and as modified) would not require any further consideration of the controls pertaining to the LDCP 2008.

(d) Section 4.15(1)(a)(iiia) any planning agreement that has been entered into under s 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4: there is no planning agreement pursuant to s 7.4 of the EPA Act relating to the Modification Application.

(e) Section 4.15(1)(a)(iv) the regulations: there are no matters arising out of the Amended Modification Application which raise compliance issues with the EPA Regulation.

(f) Section 4.15(1)(b) does not apply as there is no change in the physical development and there are no adverse impacts of the Modification Application, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.

(g) Section 4.15(1)(c), the Modification Application does not alter the nature of the development or its operations, such that it would become unsuitable for the subject site.

(h) Section 4.15(1)(d) does not apply to the Modification Application as it did not need to be notified so no submissions were received. The Respondent as the consent authority has notified the Council, and has taken Council's submissions into account when entering into the agreement.

(i) The Modification Application is in the public interest in accordance with s 4.15(1)(e).

Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)).
In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.
The Court orders that:

(1) The Appeal is upheld.

(2) The modification application SSD-7155- Mod 10 relating to development consent no. SSD-7155 is approved, subject to the conditions at Annexure A.

(3) As a consequence of Order (2), development consent no SSD-7155 for staged construction of warehouse buildings, associated office space, access roads, parking, drainage and landscape is now subject to the consolidated modified conditions in Annexure B.

Planning and Assessment Act 1979

Environment Court Act 1979

Planning and Assessment Regulation 2021

(2021) 248 LGERA 300

LOGOS Development Management Pty Ltd v The Minister for Planning and Public Spaces

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