Misra v Campbelltown City Council No 2

Texts Cited: NSW Rural Fire Service, Planning for Bushfire Protection 2019

Category: Principal judgment

Parties: Prem Misra (Applicant)
Campbelltown City Council (Respondent)

Representation: Counsel:
R White with N Nadj (Solicitor) (Applicant)
J Reid with J P Zorzetto (Solicitor) (Respondent)
Solicitors:
Bick and Steele (Applicant)
HWL Ebsworth (Respondent)

File Number(s): 2024/00174000

Publication restriction: Nil

JUDGMENT

Background

1. On 14 October 2025 I directed the parties to confer and settle conditions in accordance with my reasons for judgment, and upon receipt of acceptable conditions, I would then make final orders (Misra v Campbelltown City Council [2025] NSWLEC 1744 (the Judgment) at [153]).

2. The parties were directed to submit final conditions on 27 October 2025, and they were afforded two adjournments, being to 4 November 2025, then final conditions were received on 14 November 2025.

Conditions in Contention

3. The parties made submissions on four competing conditions: the deferred commencement condition (Schedule A), Modification of DA397/95 (condition 2), Bushfire Requirements (condition 12) and Use of the Site (condition 81). Their competing submissions are set out below together with my decision on each condition.

Deferred Commencement Condition (Schedule A)

Council’s submissions

4. The Council submitted that the Court held at [124] of the Judgment that "appropriate water flow to the Site from Sydney Water must be obtained before the consent is operative and a deferred condition is to be imposed to address this matter".

5. The need for such a condition arose because of the experts agreement that: "the required fire hydrant system is likely to require a static water supply onsite due to low water pressure in the street, and that a water tank and pump room not currently proposed may be required as part of this fire fighting equipment" (Ex 7 at [14.4]).

6. The parties disagree about the time for compliance with this condition. Council seeks this be done within 12 months from the date of consent, while the applicant seeks 24 months.

7. The Council submits that 12 months from the date of consent is a reasonable period of time for an investigation to be undertaken by a suitably qualified hydraulic engineer. Council's understanding is that this is a relatively simple investigation, and information relevant to the investigation will be readily available from Sydney Water. Further, the applicant has been aware of this deficiency since the BCA JER (Ex 7) was filed.

8. It submits that the applicant has not provided Council with any explanation as to why 12 months is not sufficient. However, if some intervening event transpires rendering compliance problematic, it remains open to the applicant to seek a further 12-month extension under s 4.54 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

Applicant’s submissions

9. The applicant submits that 24 months is a reasonable period to ensure there is sufficient time to engage an appropriate expert, have the expert prepare a report, provide the results of the investigation and report to Council, and engage with any queries from Council. This will provide the applicant with time to ensure that the condition can be met, noting that the drafting requires the condition to be complied with to the satisfaction of Council.

10. It is further submitted that it is no answer that the time can be extended by one year, because that is at the discretion of Council.

11. The applicant contends that it is at least conceivable that if a report was produced and provided to Council within 10 months, Council’s failure to engage with the report in the 2 months remaining could lead to the consent lapsing.

12. Furthermore, should the development consent be issued by the Court in late November or early December, the 12 month period does not take into consideration the general Christmas and January shutdown period, effectively reducing the period for compliance to 10 months. Moreover, allowing the applicant a period of 24 months to satisfy the condition is reasonable and necessary and there is no prejudice to Council.

Considerations and findings

13. For the reasons submitted by the applicant, I accept the applicant’s deferred commencement condition of 24 months. It provides a reasonable time frame for Council’s consideration and achievement of the condition.

Proposed condition 2 – Modification of DA397/95

Council’s submissions

14. The Council submits that my acknowledgment at [8(b)] of the Judgment that the development for which consent was sought, included "part of the existing dwelling to be used exclusively for the community facility purpose" identifies a clear conflict between what the Community Facility (CF) Consent will approve, namely use of the meeting and event room for the purpose of the community facility managed in accordance with a POM, and the 1996 Consent which approves the same space for a residential use.

15. In that circumstance, where both consents operate over the same area, the Council submits that clear delineation of the different approved uses within the Existing Building is beneficial to both the applicant and Council. Moreover, it is submitted that this is precisely the mischief that s 4.17(1)(b) of the EPA Act is intended to address and avoid.

16. Further, it is submitted that potential compliance action for any failure to comply with the CF Consent will be complicated by uncertain reliance on and recourse to the 1996 Consent if they are not brought into a form of consistency, permitting overlapping by different land uses.

17. To avoid such complications, the Council submits that a condition should be imposed under s 4.17(1)(b) to require modification of the 1996 Consent.

18. This will remove obvious inconsistencies, such as removing the tennis court which under the CF Consent is proposed as parking and create a clear demarcation of uses, consistent across both development consents, and enable Council to better enforce either of the development consents. It submits that it is extremely undesirable from a regulatory perspective for multiple, conflicting development consents to operate over a site, an outcome that is also not in the public interest.

19. Accepting that the Existing Building has not been constructed as approved by the 1996 Consent the Council submits that this represents an ongoing breach of s 4.17(1)(b), and it will mean the CF Consent and 1996 Consent will sit awkwardly together. The obvious and practical way to remedy the breach (going forward) and harmonise otherwise conflicting plans, is to require the 1996 Consent to be modified so that the plans approved by that consent are consistent with plans approved by the CF Consent. This also results in the orderly and economic development of land, which otherwise would not be addressed.

20. While the Council does not cavil with the proposition that multiple consents can operate in respect of a site: Waverley Council v CM Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 (Hairis), it submits that is that there is a discretion to impose such a condition requiring modification (s 4.17(1)(b)) and the circumstances of this case and the conflicting nature of the development consents in question warrant such a condition being imposed on the merits.

Applicant’s submissions

21. The Council seeks to impose a condition which will require the applicant to modify the development consent for the dwelling house, being DA397/95, to include a condition that requires the development to be completed in accordance with a number of identified plans, prior to the commencement of any works associated with the development consent for the community facility.

22. The applicant submits that the condition is unnecessary and moreover, apt to cause confusion.

23. The condition is unnecessary because the development consent authorises alterations and additions to the main building. Council’s proposed condition 2 seeks to ensure that the historic consent DA 397/95 is completed in accordance with a specified list of approved drawings. The drawings referred to in the proposed condition do no more than replicate conditions in agreed condition 1 which form the approved development granted consent by the Court. In the event that the consent is activated, the building will be altered, and used, in accordance with the approved plans, together with the other conditions. For these reasons it is unnecessary.

24. It is further submitted that the proposed condition appears to be an unjustified attempt to cavil with the Court’s findings set out in the published reasons. At [117]-[118] of the Judgment, findings were made that:

The evidence is that the existing building has been modified over time, and that some of the building works may have been undertaken without the benefit of a development consent or other approval. However, as the applicant submits, that fact is irrelevant to my merit assessment of this DA: Bowers v Northern Beaches Council & Grigull Custodian Pty Ltd [2022] NSWCA 253 at [63] and Goldcoral at [51]-[53].

I am satisfied on the basis of the BCA agreed evidence that development consent can be granted to the development to carry out the upgrade of the existing and the new works as proposed in the expert evidence and in the [application] now before the Court…

25. The Court has carried out a merit assessment of the proposed works and use and if the applicant proceeds in accordance with the consent now granted, any previous non-compliances with the earlier consent (insofar as they relate to what is now approved) will simply not arise.

26. A modification of DA397/95 is unnecessary for the orderly and economic development of the site. At [63] of Bowers v Northern Beaches (2022) 253 LGERA 427; [2022] NSWCA 253, the Court made it clear that:

…A development application seeks development consent for, and the development consent authorises, the carrying out of development in the future, and does not retrospectively approve development that has been carried out in the past: *Kur-ring-*gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 at [39].

27. The original development consent and the development consent that has now been granted by the Court are two separate consents and there is nothing unusual or unique about the current position that would warrant a requirement for a modification.

28. The Court made it clear in Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 at [53] that:

…There is no legal principle that development consent cannot be sought to carry out development to erect a building (which includes a structure) or to carry out works that would amend a building or works that are unlawful, and then to use in the future the new or amended building or works. That was recognised in Ralph Lauren at [128]. Contrary to the Council’s contention, development consent can be granted to the development proposed by Goldcoral to carry out works to upgrade the stretch of internal road through the littoral rainforest, to revegetate and use for conservation purposes the existing drainage channel in the littoral rainforest and to upgrade and use the road, bridge and infrastructure on Iron Gates Drive.

29. There is no legal principle that requires the applicant to modify the original consent. As Talbot J decided in Hairis at [28]:

…There is no statutory constraint upon the category of development, as defined, that can be the subject of a development application. In the Court’s view, the distinction between an application to alter a building and an application to alter a right arising from an earlier development consent is not sustainable in the present context. Although it may not be elegant, it is nevertheless, in the Court’s opinion, correct to regard the development application as an application for consent to carry out specific building works in order to achieve a particular use. The approach taken by Mr Ayling whereby he seeks to confine the application by relating it only to the change of a right is inconsistent with the Court’s understanding of the practical effect of the application…

30. The Court in Hairis went further at [30] to observe:

There is no statutory or other legal constraint upon the number of development applications that a person can make in respect of the same land. A shopping centre complex is a demonstrative example of the way in which there can be a mosaic of development consents extending around the different parts or sections of a single site…

Considerations and findings

31. I accept the Council’s submission requiring the 1996 Consent to be modified and endorse the inclusion of condition 2 as drafted by the Council. The clear delineation of each use is most easily understood by the modification of the 1996 Consent – as proposed by the Council. If the CF consent is not taken up, then the 1996 Consent will remain and the existing building will be exposed to any regulatory action by Council in the event of a proven breach.

Proposed condition 12 – Bushfire Requirements

Council’s submissions

32. The Council submits that the Court recorded at [123] of the Judgment that "Fire safety is of particular concern given the subterranean design of the building and the possibility of 178 people on the Site at any one time." This is in part because the existing building is not compliant with the BCA (see Judgment at [120]-[122]) and because the site is identified as bush fire prone land (Ex 1 at [19]).

33. It is further submitted that the Court, at [133] of the Judgment, explained its preparedness to grant consent to the change of use application on the basis that:

…no work will be allowed to commence under the consent until a construction certificate is issued s 6.6(1) of the EPA Act. This will ensure that matters of fire protection and the structural capacity of building will be appropriately addressed and assessed by the certifier before that authorisation of the change of use"… (Emphasis added)

34. The Council seeks to impose condition 12, which seeks to achieve compliance with the requirements of Planning for Bushfire Protection 2019 through the implementation of the applicant's "Bushfire Risk Assessment" prepared by P Hurley dated February 2022 (Bushfire Report) (Ex A, Tab 13).

35. The Council does not propose to approve the Bushfire Report, given its inconsistent references to an 'Eco-tourist facility'. Rather, the Council proposes that certain recommendations contained in the Bushfire Report form the substance of condition 12. In this regard:

(a) Condition 12(a) reflects the recommendation in [9.1] of the Bushfire Report; (b) Condition 12(b) reflects the recommendation in [9.1.1] of the Bushfire Report; (c) Condition 12(c) reflects the recommendation in [9.3] of the Bushfire Report; (d) Condition 12(d) reflects the recommendation in [9.4] of the Bushfire Report; (e) Condition 12(e) reflects the recommendation in [9.5] of the Bushfire Report; (f) Condition 12(f) reflects the recommendation in [9.6] of the Bushfire Report; (g) Condition 12(g) reflects the recommendation in [9.7] of the Bushfire Report; (h) Condition 12(h) reflects the recommendation in [9.8] of the Bushfire Report; and (i) Condition 12(i) reflects the recommendation in [9.9] of the Bushfire Report.

36. It is further submitted that the requirements in condition 12 are not "new", they reflect what the applicant proposed in its Bushfire Report, and it is necessary to respond to matters of fire safety which the applicant has identified in its application.

Applicant’s submissions

37. The applicant submits that the Council seeks to impose a wholly new condition (not previously provided to the applicant prior to or during the hearing) requiring the applicant to upgrade the building and the site, ostensibly in accordance with the Planning for Bushfire Protection 2019. Moreover, the Council asserts that the condition is included because it was recommended by the applicant’s bushfire expert.

38. The applicant does not accept this condition and does not consider it to be reasonable.

39. Further, bushfire was not a contention raised by the Council during the course of the hearing. It was not a matter addressed by the building consultants. In fact, Council withdrew an earlier contention in relation to a bushfire safety authority. There was some debate about bushfire and whether a Bushfire Safety Authority was required but the applicant made submissions that the site did not require one. The use of the site for the permitted use does not need to be managed as an APZ, including an inner protection zone. The Judgment otherwise does not deal with bushfire issues, which is a reflection that this matter was not raised as a contention by Council.

40. The applicant submits that this is not an issue which arises from the Court’s reasons in the Judgment, at [121]. The applicant accepts a condition, consistent with the reasons in [121] that there should be a condition requiring compliance with the BCA for the purposes of fire safety. This matter is already addressed by condition 33(2).

Considerations and findings

41. I accept the applicant’s submissions and reject the Council’s proposed condition 12. Fire safety is relevantly addressed by condition 33(2).

Proposed condition 81 – Use of the Site

Council’s submissions

42. The Court held at [119] that "[the] evidence is that the altered building, if approved, will comprise repairs to existing works and new works which the applicant submits will be assessed at the CC stage and before issue of an Occupation Certificate."

43. The Council seeks to impose condition 81 which makes it clear that the development consent does not commence operation until after an occupation certificate is issued.

44. It submits that condition 81 reflects s 6.9(1)(b) of the EPA Act, namely that an "occupation certificate is required for…the commencement of a change of building use for the whole or any part of an existing building".

45. The Council considers this is an important condition that makes clear that the site cannot be used until an occupation certificate has been issued under the development consent. This accords with [133] of the Judgment which notes that "matters of fire protection and the structural capacity of building will be appropriately addressed and assessed by the certifier before that authorisation of the change of use".

46. Council has genuine concerns that given:

(a) the building is non-compliant with the BCA; (b) that the CF Consent will allow the Site to accommodate up to 178 people underground; (c) that significant investigations are required (with likely corresponding significant works); and (d) the compliance history (see Ex 1, Council's Further Amended SOFAC at [34]-[35]).

47. It needs to be made very clear that use of the site as a community facility cannot occur until an occupation certificate is issued.

48. That is, such a condition makes plain from when the development consent operates, which assists both the applicant and may assist in any enforcement proceedings (if any arise).

Applicant’s submissions

49. The applicant submits that this condition is unnecessary. An occupation certificate is required for (a) the commencement of the occupation or use of the whole or any part of a new building, or (b) the commencement of a change of building use for the whole or any part of an existing building: s 6.9(1) of the EPA Act.

50. An occupation certificate is already required to be obtained before the building can be used as a community facility. It is superfluous to impose a condition which simply mirrors the legislative requirements.

Considerations and findings

51. I am not prepared to endorse condition 81 as the applicant submits the condition is unnecessary given s 6.9(1) of the EPA Act and the legislative requirement to obtain an occupation certificate before the building can be used as a community facility. The consent conditions in my opinion already make clear the requirements for an occupation certificate before any use of the building under the CF consent.

Orders

52. Accordingly, the Court orders:

53. The appeal is upheld.

54. Development consent is granted to development application No. 783/2022/DA-C, for a community facility at 203 Eagleview Road, Minto, 2566, being Lot 23 DP 535651 subject to conditions of consent, in accordance with the reasons for judgment, at Annexure A.

55. The Respondent is to prepare conditions of consent that reflect those at Annexure A and file with them the Court within 7 days.

56. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW), the Applicant is to pay the Respondent's costs thrown away as a result of the amendments to the development application in respect of the Notice of Motion filed 21 February 2025 and the application granted during the hearing on 27 March 2025, as agreed or assessed.

57. The exhibits are returned except for Exhibit A.

S Dixon

Senior Commissioner of the Court

17400.24 (Annexure A)

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Amendments

16 December 2025

Amendments made under r 36.17 UCPR to include provision of costs and exhibits orders.