PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 | Case summary

PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 | Case summary | Zoe

[26]

Clause 7.2(2)(e) of the Wentworth Local Environmental Plan 2011 (WLEP) regarding suitable road access is a jurisdictional prerequisite to the granting of consent to the development. Access to the Site seems to be encompassed in the SOFAC R2 (Ex 2R1) at Contention 3 titled "Access to the Site is non-compliant and requires design changes" and refers to AS2890.1:2004 and AS2890.2:2018 and particularises levels and gradients. My findings in relation to s 2.119 of the SEPP Transport and Infrastructure will inform my findings and conclusions in relation to cl 7.2(2)(e) "suitable road access" of the WLEP.
The Second Respondent also contends that there is insufficient information to satisfy the consent authority as to 'adequate arrangements' for the purpose of stormwater drainage as required by cl 7.2(2)(d) of the WLEP (Contention 4, SOFAC R2). Then at Contention 5 of the SOFAC R2, the Second Respondent contends that there has been no detailed consideration of the impact of a second service station site on the existing stormwater runoff and the potential for increased flooding risk and that there is no assessment of the cumulative impacts of the proposed use in conjunction with the existing service station on the adjacent residential properties. The R2 Submissions address the Applicant's submissions on stormwater at pars 71 to 80. I accept that cumulative impacts are a relevant consideration for the assessment of the Proposed Development and note that although the Applicant accepts that there will be an accumulation of impacts as development occurs within the zone, consideration of the zoning alone without material which assess the cumulative stormwater impacts of the development is not sufficient, because even if the expectation of the Court approving an application to use a site for a purpose for which it is zoned may exist, that expectation must be limited to the acceptability or otherwise of the environmental impacts resulting from the Proposed Development (BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [118]).
The First Respondent contends that the Proposed Development must be refused because it has not been demonstrated that the safety, efficiency and ongoing operation of the Sturt Highway (a classified road) will not be adversely affected by the Proposed Development, that the application proposes suitable road access and any potential traffic safety, road congestion or parking implications of the development have been appropriately addressed. In this regard, the Respondents submit that the Court would not be satisfied that the development application is consistent with the requirements of ss 2.119 and 2.122 of SEPP Transport and Infrastructure and that the Court is precluded from granting development consent to the application.
I will deal with this contention using the following framework:

[50]

The Court, as consent authority, must not grant development on land that has frontage to a classified road unless it is satisfied that, where practicable and safe, vehicular access to the land is provided by a road other than the classified road (s 2.119(2)(a), SEPP Transport and Infrastructure). There are two components to s 2.119(2)(a): first, whether there is in fact vehicular access to the land via a road other than the classified road, the desired outcome, and secondly, whether that access via a road other than the classified road is practicable and safe (Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138 (Modern Motels) per Preston CJ at [21] and [42]).
The Proposed Development proposes vehicular access to the Site directly off the Sturt Highway except in the case of an emergency where vehicles may access the Site via the ROW from Melaleuca Street.
Dealing firstly with the first component of s 2.119(2)(a), namely, the desirable outcome of providing vehicular access to the Site by a road other than a classified road, I note at the outset that in Modern Motels the question of whether a right of way is a road for the purpose of s 2.119(2)(a) was not raised or determined notwithstanding that the vehicular access proposed included traversing a right of way.
The categorisation of the ROW is a matter in dispute between the parties and the Court is asked to make a finding as to whether the ROW is a road for the purpose of s 2.119(2)(a) of the SEPP Transport and Infrastructure.
To answer the question of whether the ROW is a road, one looks firstly to statutory definitions for 'road'. A 'road' is not defined in the SEPP Transport and Infrastructure and s 2.3(1) of the SEPP Transport and Infrastructure says that "A word or expression used in this Chapter has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Chapter." When one goes to the Standard Instrument (Local Environmental Plans) Order 2006 (the Standard Instrument), there is a definition for 'road' in the Dictionary and that definition says as follows:

[56]

In order to rely on the ROW as being a road for the purpose of s 2.119(2)(a) of the SEPP Transport and Infrastructure one would look at the definitions above and consider whether the ROW is a private road. I will come back to the secondary enquiry, in the event that the ROW is a private road, and that is whether the route through the ROW onto Melaleuca Street is practicable or safe for vehicular access as opposed to access to and from the Site via the classified road. Although, I note the Second Respondent's position is that the secondary enquiry as to Melaleuca Street is not required and that the Court is to exclusively consider the ROW. I do not agree with that position and I will give my reasons below.
Firstly, though, I make the initial threshold finding as to whether the ROW is a private road.
The Applicant submits that the ROW is not a road, but land owned by others over which there are certain rights of access, "but that does not mean it is a road within the meaning of s 2.119" (Applicant Submissions, par 5.5). The Second Respondent submits that this is wrong at law (R2 Submissions, par 26) and that the ROW is "clearly a "private road" which has the potential to provide vehicular access to the Site." (R2 Submissions, par 28).
The ROW is an easement over land created pursuant to an Instrument which is in evidence before the Court (Ex 2R2, Tab 1). That Instrument sets out the terms of easement and restrictions as to user, intended to be created pursuant to s 88B, Conveyancing Act 1919. Item 3 of the Instrument on DP1029509 resulting from Plan of Subdivision of Lot 3 in DP 870633 and Easement within Lot 2 DP 870633 provides for an "Easement for Services and Right of Carriageway 15 wide" over Lot 7 (Lot burdened) and to the benefit of Lots 5 (the Site) and 6 in DP1029509, Lot 2 in DP 870633 and to the benefit of Wentworth Shire Council. The Right of Carriageway 15 wide referred to in Item 3 is the relevant ROW. The terms of Item 3 include terms for services and in relation to the ROW provides at Sheet 5 of 7 as follows:

[76]

(1) it is practicable and safe in traffic engineering terms for vehicular access to the land to be provided by a road other than the classified road, namely by Melaleuca Street and the 15m right of carriageway. On the basis of what Mr Steal says at par 12 of Ex 6, and to quote directly from that paragraph he says, "The use of the right of way at the rear of the site to gain access to the site is not clearly limited in terms of practicability or safety from a traffic engineering perspective".

(2) there is no traffic engineering evidence from the Applicant to the contrary as the matter wasn't addressed at all by Mr Rodgers. He simply accepted that access would not be provided by Melaleuca Street and the right of carriageway. Mr Rodgers simply says, at par 9 of Ex 6, in respect of s 2.119(2)(a) of the SEPP Transport Infrastructure, "Access is not proposed via the right of way."

(3) the relevant part of Melaleuca Street that fronts the right of carriageway is a designated heavy vehicle route and legally capable of being used by all types of vehicles including heavy vehicles (Ex 2R2, Tab 5). During the course of the site inspection, there were heavy vehicles already using Melaleuca Street and the right of carriageway for access and parking. The First Respondent submits that to suggest it can't be used or there are engineering problems with its use or traffic or safety concerns belies the fact that it is in fact a heavy vehicle designated route on Melaleuca Street and the right of carriageway is used by large trucks including of the B-Double variety.

(4) there are no topographical or physical constraints in providing access to and from the development from Melaleuca Street and the 15m wide right of carriageway.

(5) the suggestion that it is not practicable for a service station that has frontage to a classified road being limited to having vehicle access provided by a road other than the classified road is not made good by any evidence. "There is no evidence in this case at all that it is economically prohibitive to provide for a service station that wouldn't have access off the roads that are available other than the classified road." (Transcript 24 October 2023, p 189 at par 7)

[77]

The Applicant submits that in relation to s 2.119(2)(a) of the SEPP Transport and Infrastructure, it is not practicable or safe for vehicular access to be provided to the proposed service station by a road other than the classified road, in circumstances where the service station does not have frontage to any other road. "Access to the Site from Melaleuca Street would only be achieved by traversing a right of way over land owned by Saunders. The right of way is not a road, but land owned by others over which there are certain rights of access. But that does not mean it is a road within the meaning of s 2.119." (Applicant Written Submissions, par 5.5).
I find that the ROW forms part of the Proposed Development notwithstanding that the Applicant proposes to limit its use to emergency events, and for use by emergency vehicles, (R2 Submissions, par 31). Mr Steal states that "the practicability of the use of the ROW for alternative access to the site is a matter for others." (Ex 6 at [18] and [48]). Mr Rogers, for the Applicant, conceded in cross-examination that he had not undertaken any assessment of that access route.
The Second Respondent relies on the two reasons why the Applicant has not undertaken the assessment to conclude that neither of the two reasons identified by the Applicant sufficiently address the matter in s 2.119(2)(a) of the SEPP Transport and Infrastructure (R2 Submissions, par 25). The Respondent submits that the onus is on the Applicant to satisfy the Court as to whether it is safe and practicable to provide vehicular access to the Site by a road other than the classified road and there is insufficient material to address the relevant jurisdictional requirements in consideration of the Proposed Development, "It is not a matter for the traffic experts to consider during joint conferencing, nor is it a matter for objectors to raise at the hearing" (R2 Submissions, par 32). The Second Respondent relies on the decision of Preston CJ in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 (Australian Protein) which provides at [2] that:

[86]

"words in 2.119(2)(b) talk about, "will not be adversely affected", it doesn't mean that any impact is an adverse impact unless it's beneficial; that's not how that works. An adverse effect is one which is actually adverse, and it has to be found to be positively adverse. There is no evidence that the turns, the displaced turns, has an adverse effect upon the things which are enumerated in that provision."

...

"So, the simple proposition is this, that the fact that vehicles who are displaced from turning right must turn left, and then will have to use other aspects of the road network to continue their journey is not an adverse effect upon the safety, efficiency and ongoing operation of the road; there is no evidence that it is. To suggest that Mr Rogers' use of the word, "minimal", means that it's somehow an adverse effect is not correct. Minimal effect does not mean adverse. Minimal means exactly that; it has a minimal effect. It has an effect because it increases the number of vehicles that will do that manoeuvre, but that doesn't mean it's adverse.

It can only be adverse if it does something in a negative way to the safety, efficiency and ongoing operation of the road, and you would not accept the Steel test, that's the Mr Steel test, that any additional turn on the road is an adverse safety effect. Now if that were the standard, that would simply mean that this clause is insurmountable, because every time you have a development that increases the volume of vehicles using the classified road from a development and doing a turn on the road, you would be having an adverse effect upon the safety, efficiency and ongoing operation of the classified road; that can't be what it means. That would simply be an absurdity. The road is designed in a way that the safety, efficiency and ongoing operation of the classified road is protected, as I put to Mr Steel. That is, there is a right turn bay at Carramar to facilitate the ongoing safety and operation of the classified road.

It allows people to turn off the main carriageway, it allows a vehicle to continue to pass that vehicle that might be stationary waiting to turn right into Carramar, because that's a design feature of the road that's designed to maintain its safety, efficiency and ongoing operation. To suggest that that existing feature, that road feature, is an adverse effect is actually saying that the current road design is not up to scratch, and that's not right; no expert says that. Nobody suggests that turning right at Carramar is unsafe, or that each turn into Carramar affects the safety, efficiency and ongoing operation of the classified road. It seems to Mr Steel that it's only people that come from our development that do that right turn affects the safety and efficiency of the classified road. What's good for the goose is good for the gander".

[138]

"52. First, s 2.119(2)(b) imposes a jurisdictional threshold in respect of which the Court must be satisfied at the time of granting consent. For reasons previously explained, the Court cannot defer satisfaction of a jurisdictional matter by way of condition, and especially not where the ultimate form of the development is unknown. This was critical to Commissioner Dickson's refusal of the Applicant's former development application for a Highway Service Centre at the Site31. There, Dickson C similarly found that there was no jurisdiction to approve that development application, in that the state of satisfaction required by s2.119(2)(b)(i) could not be deferred. Whilst deferred commencement conditions are occasionally imposed by consent authorities, or the Court on appeal, they cannot validly be deployed to address matters of a jurisdictional nature which require satisfaction prior to the granting of consent.

53. Secondly, the condition is inherently uncertain, and offends the Mison principle. There may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of leaving open the possibility of a significantly different development. The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [25]- [28].

54. In this case, the condition leaves open the possibility of a significantly different development. A service station that allows access to large trucks is an entirely different proposition to a service station which does not. The deletion of the diesel bowsers and canopy along with the B-Double parking is, in and of itself, a sufficient difference to render the condition invalid. The fact that a "concept Site Plan" has been provided at Annexure A to the draft conditions does not alter the fact that the development contemplated by the condition would be significantly different from that applied for. Nor is it correct to contend, as the Applicant does, that any such proposal has been properly assessed.

55. Thirdly, it is well established in Part 4 jurisprudence that a decision-maker may not validly defer consideration of fundamental matters required to be considered at the time of granting the consent: see, for example Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-276; Farah v Warringah Council [2006] NSWLEC 191 at [61], [66]; Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 at [14], [95]-[96]. The proposed condition defers consideration of a critical matter (access to the Site and the ability for petrol tankers to fuel the Site in order for the Site to operate as a service station) to post determination and leaves unresolved an essential part of the development consent: Huntington & MacGillivray v Hurstville City Council (No 2) (2005) 139 LGERA 84; [2005] NSWLEC 155 at [29].

56. The Court must be aware of the development it is approving. The deferred commencement condition proffered significantly alters the development from what is sought in the application in the event the first part of the condition cannot be satisfied.

57. In oral submissions on 13 September 2023, the Applicant contended that confirmation that gradients comply with the requisite standard is "invariably" required to be the subject of conditions, and further, that the experts were satisfied that the issue was capable of being resolved, and that it was just a "matter of detail" to go in plans approved by a construction certificate.

58. Contrary to the Applicant's submissions, the Court would have no confidence in the Applicant's ability to satisfy the condition in circumstances where:

[161]

"So why should the driveway be any different just because it's got a sewer underneath it that we need to cater for in the final design. This contention has just simply been overcooked and overstated in my submission, Commissioner. When we go back to the second respondent's contentions, the second respondent has never put that this is a reason for refusal, actually what it says is, access to the site is non-compliant and requires design changes. Yes, okay, we need to get final design of the sewer, we need to know its depth below the ground, we need to know the thickness of the pipe, we need to survey that in detail, and we need to provide a final design for the driveway which overcomes that problem.

If need be, we can move the sewer if we have to. One way or another, the applicant is capable of doing either of those things, moving the sewer or designing a driveway which will achieve the appropriate standard over the sewer, but it's not actually a matter that goes to a question of whether or not access can be provided to the site; it doesn't actually make much difference. It doesn't make any difference, in an environmental sense, as to whether or not - we're dealing with fractions of centimetres of pavement, of the level of the pavement above a sewer; that's the argument. It's got no question of moment to environmental impacts, because we know that the whole of the site's going to be virtually covered in concrete except where it's shown to be landscaped, and that doesn't change one way or the other.

So, what is the environmental impact that we're assessing here. If we can be sure, if we can impose a condition requiring that the Australian Standard be complied with for the design over the sewer, isn't that the answer, and if it's good enough for the other conditions, it's good enough for the car parking condition in 34B and 31B for drainage, why is it not good enough for the driveway where it overcomes the sewer; they're exactly the same. And so, it would be expected that that would be a matter of final design. And I might add, this is an issue that was raised by a second respondent who was joined three weeks before the hearing of this matter. The criticism being heaped upon the applicant for not having detailed designs and scraping plans with respect to a sewer, which has to be surveyed in detail to understand its depth and will be done in the course of preparing detailed design drawings, is not the be-all and end-all and the determinant of this development application.

It doesn't determine whether this use is a suitable use for this site. It doesn't determine any likely environmental impacts arising out of the development, and all of the submissions that follow from this about the potential for queuing of vehicles because a tanker might scrape the ground is just speculative. The whole point about the deferred commencement condition is that that won't happen because the driveway will be designed to prevent it from happening.

So how could that ever go. How could that ever be related to the question under 2.119 as to the safety and efficiency of the classified road, because you would be required to assume, Commissioner, in granting consent subject to the deferred commencement condition; one, that is that the applicant will demonstrate that the gradient will achieve the Australian Standard. So I address at 3.48 a number of matters in relation to what you would say, Commissioner, is judicial notice of the fact, that conditions are regularly imposed in this Court which require demonstration of compliance with the requisite Australian Standard, and I've set out a number of facets of the evidence, and in response to para 58 of the written submissions of Mr Lazarus."

[166]

"24 In accordance with principles explained by this Court in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, there may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B (Priestley JA). The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application.

25 These two categories may overlap in circumstances where consent is granted subject to a condition which allows for significant variation of the development proposed.

26 In Mison, the condition in question required that the overall height of the dwelling house to be constructed be reduced "to the satisfaction of Council's Chief Town Planner". Because the approved height remained to be determined, and might, the Court held, fall at any point within an undefined range, the consent left open the possibility that that which was consented to would be significantly different from the development the subject of the application.

27 Alternatively, it was said that there was a substantial degree of uncertainty in relation to a condition which was "an important aspect of" the development: p 737B (Priestley JA). Meagher JA adopted a similar approach at 741. Clarke JA described the question of height as an aspect of the development "which was beyond question of critical importance". However, his Honour preferred to rest his decision on the lack of finality, rather than the possibility of there being a consent to a significantly different development: p 740F. Clarke JA also considered that the failure to specify a criterion for determining height was a fatal omission.

28 Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests.

29 Since Mison, the EP&A Act has been amended to include new s 80A and in particular subs (4), which provides as follows:

Parties

Applicant/Plaintiff:

PC Infrastructure Pty Ltd

Respondent/Defendant:

Wentworth Shire Council

Legislation Cited (6)

Trade Practices Act 1974(Cth)

Planning and Assessment Act 1979

Environment Court Act 1979

Planning and Assessment Regulation 2000

Minister Administering The Crown Land Act 1989

Practices Act 1974

Cases Cited (26)

Judgment

COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA2021/008 for construction and operation of a service station trading as "On the Run" or OTR, and associated works (the Proposed Development) at 83-89 Hendy Road Buronga legally described as Lot 5 in DP1029509 (the Site).
This matter is about a proposal to build a service station on a site which has frontage onto a classified road and the reliance on proposed access to the proposed new service station from the Sturt Highway (also known as Hendy Road), being the relevant classified road. In particular, the matter is about whether the Court can be satisfied as to s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) in the context of firstly whether an alternate road is practically and safely available for vehicles and secondly, whether there is an adverse impact on the classified road where a right turn in to the Site is provided to westerly travelling vehicles but there is no ability or alternative to turn right out of the Site in order to resume that journey in a westerly direction.
The Site was subject to proceedings Peregrine Corporation Pty Ltd v Wentworth Shire Council [2018] NSWLEC 1647 (Peregrine) in relation to DA 2017/004 to construct and operate a Highway Service Centre which was refused by Dickson C who found at [48] to [53] that she did not have jurisdiction to approve the development application because she was unable to rely on a deferred commencement condition to satisfy the conjunctive jurisdictional prerequisites in cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007, which is in identical terms to s 2.119(2) of SEPP Transport and Infrastructure. The evidence before Dickson C in the matter of Peregrine included: "that if the diesel fuel bowsers servicing of heavy vehicles (A Doubles and B Doubles) within the facility were in use, and an additional heavy vehicle entered the site, they would be unable to maneuver (sic) fully off the Sturt Highway. This would create a further potential conflict point." (Peregrine, par [51])
I will come back to the reliance on a deferred commencement condition to satisfy the jurisdictional prerequisites of s 2.119(2) of the SEPP Transport and Infrastructure at [109].
The Second Respondent was joined as a party to these current proceedings following a Notice of Motion heard before Moore J on 9 August 2023 and on 14 August 2023 Moore J made orders in accordance with Short Minutes of Order. In accordance with those orders, the Second Respondent filed a Statement of Facts and Contentions Second Respondent (SOFAC R2) on 11 August 2023 (Ex 2R1).
The proceedings commenced on Site where three objectors gave evidence expressing concerns regarding traffic and vehicular and pedestrian safety (Ex 1) in particular regarding heavy vehicles. Heavy vehicles is a focus of the Proposed Development and I come back to this where there is further detail of the proposal to limit right hand turns into the Site to vehicles under 9m (Condition 8) at [12] and a proposed Deferred Commencement Condition DC1 to address the ability of vehicles over 12.5m to turn left into the Site at [109]. Following an inspection of the local area, the Court was taken to visit an existing OTR service station operating at 2090 Fifteenth Street, Irymple, Victoria approximately 12 minutes drive from the Site and another existing OTR operation at 463-469 Deakin Avenue, Mildura, Victoria.
The proceedings resumed at Wentworth Local Court for the balance of the listed hearing and then adjourned part heard to 24 October 2023 where closing submissions were heard. Proposed/Draft Conditions of Consent filed 17 October 2023 (Ex L) were tendered on 24 October 2023.
The First Respondent's case is that the proposed service station is fundamentally flawed because it fails to satisfy the jurisdictional prerequisites in s 2.119 of the SEPP Transport and Infrastructure in two ways. The provision sets out matters about which the consent authority, in this case the Court, must form positive opinions of satisfaction in order to have the power to grant consent to a development application on land that has frontage to a classified road. Firstly, the First Respondent submits that, the Proposed Development is flawed because the development does not provide for vehicular access to the land by a road other than the classified road even though it is practicable and safe to do so (s 2.119(2)(a), SEPP Transport and Infrastructure). In response to the jurisdictional prerequisite identified by the First Respondent regarding vehicular access to the land by a road other than the classified road pursuant to s 2.119(2)(a) of the SEPP Transport and Infrastructure, the Applicant asserts in its outline of submissions and orally that there is no other road by which access can be obtained beyond the right of carriageway that benefits this particular land, that is, the Applicant submits that the 15-metre wide right of carriageway (ROW) is not a road. I will come back to the status of the ROW at [45].
Secondly, the Frist Respondent submits that the Proposed Development is flawed because, the development provides for a right turn in by vehicles in circumstances where those vehicles have no ability or alternative to turn right out of the site and continue the journey travelling in a westerly direction, thereby increasing the prospect of vehicles carrying out unsafe manoeuvres on the classified road to head back in a westerly direction after having been forced to turn left to travel east. This increased prospect of unsafe manoeuvres is a design impact of the Proposed Development on the classified road and the question for the court is whether it is satisfied that this design impact of vehicular access is not adverse insofar as the safety, efficiency and ongoing operation of the classified road is concerned (s 2.119(2)(b), SEPP Transport and Infrastructure). I deal with the jurisdictional prerequisites of s 2.119 of the SEPP Transport and Infrastructure in relation to the safety and operation of the Sturt Highway at [25].
The Second Respondent's case, as set out in written submissions filed 17 October 2023 (R2 Submissions) and augmented by oral submissions in Court on 24 October 2023, is that the appeal should be dismissed because of the extent of traffic related impact arising from the Proposed Development. In particular, the Second Respondent submits that the Applicant was unable to resolve two critical issues raised by the Respondents as follows (R2 Submissions, par 7): 1. The design of the left-only exit will result in displaced turns by drivers seeking to resume a westbound trip who may make U-turns in carriageway of the Sturt Highway, enter a local road to undertake a U-turn, or use local roads to return to the classified road network. I will deal with this first issue together with the First Respondent's second jurisdictional prerequisite submission as outlined at [8], namely the impact of the design of vehicular access on the safety, efficiency and ongoing operation of the classified road; and 2. The non-compliant change in gradient of the driveway due to the location of a gravity-fed sewer located underneath the front part of the Site has the consequence that it is now agreed by all the traffic experts that access to the Site by articulated heavy vehicles over 12.5m is "not practical" (Ex 11, at par [4]). The Applicant proposes a deferred commencement condition in order to address this concern which I come back to at [109].
The Second Respondent's position, as outlined in their Written Submissions at par 9, is that the appeal ought to be dismissed, as: 1. The Court cannot be satisfied of the jurisdictional matters in s 2.119 of the SEPP Transport and Infrastructure; 2. The deferred commencement condition proposed by the Applicant results in a fundamental and significant change to the development for which consent is sought, offending the principles in relation to finality outlined in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison); 3. The proposed deferred commencement condition impermissibly seeks to defer assessment of matters essential to the development (see Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake); and 4. The Proposed Development results in unacceptable impacts.
The Applicant proposes to deal with and resolve the matters raised by the Respondents by way of conditions (Ex L) as follows: 1. A deferred commencement condition (Condition DC1) which, unless the Council is satisfied that left-turn access is demonstrated consistent with AS2890.2:2018 following the provision of further information, deletes the diesel bowsers and canopy along with the B-Double parking, and restricts access to the Site to light vehicles and rigid trucks no longer than 12.5m; and 2. A condition that has the effect of prohibiting right turns into the Site from the Sturt Highway (Hendy Road) for vehicles over 9 metres long (Condition 8).
I will come back to Condition DC1 at [109].
The First Respondent submits that it has not been demonstrated that the Proposed Development can be carried out in an acceptable way and that the proposal by the Applicant to impose a deferred commencement condition is not a lawful method of resolving the fundamental problem. I agree and set out my considered reasons.

Safety and operation of the Sturt Highway (s 2.119, SEPP Transport and Infrastructure)

Satisfaction of this contention is a jurisdictional prerequisite for the Court to be able to exercise its function to grant the consent sought and will be a primary focus in these proceedings as the Applicant acknowledges that s 2.119 of the SEPP Transport and Infrastructure is the heart of the matters in dispute in this case (Transcript 24 October 2023 p 218 at par 5).
As the Sturt Highway is a classified road, the Court, as consent authority, must not grant consent to development on land that has a frontage to a classified road unless it is satisfied pursuant to s 2.119(2) of the SEPP Transport and Infrastructure that: (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of - (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
I am satisfied that the Proposed Development, a proposed service station, is a development of a type that is not sensitive to traffic noise or vehicle emissions arising from the adjacent classified road. It remains to be satisfied as to subs (a) and subs (b) of s 2.119(2) of the SEPP Transport and Infrastructure.
One of the objectives of the jurisdictional prerequisites set out in s 2.119(2) of SEPP Transport and Infrastructure is to ensure that new development does not compromise the effective and ongoing operation and function of classified roads.
The First Respondent contends at Contention 1(k) that the Court must not grant consent to the development application because it cannot be satisfied that: "a. It is not practicable to provide vehicular access to the land by a road other than the classified road (noting that there has been no assessment of the use of the ROW as an alternative access to the site), and b. The safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development. c. The potential traffic safety, road congestion or parking impacts of the development are acceptable. d. The proposal provides suitable road access and is consistent with clause 7.2(2) of the WLEP 2011 which states: "7.2 Essential services … (2) Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required - … (e) suitable road access.""

What is the status of the 15m wide ROW? Is the ROW a road for the purpose of s 2.119(2)(a) of the SEPP Transport and Infrastructure?

The Court, as consent authority, must not grant development on land that has frontage to a classified road unless it is satisfied that, where practicable and safe, vehicular access to the land is provided by a road other than the classified road (s 2.119(2)(a), SEPP Transport and Infrastructure). There are two components to s 2.119(2)(a): first, whether there is in fact vehicular access to the land via a road other than the classified road, the desired outcome, and secondly, whether that access via a road other than the classified road is practicable and safe (Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138 (Modern Motels) per Preston CJ at [21] and [42]).
The Proposed Development proposes vehicular access to the Site directly off the Sturt Highway except in the case of an emergency where vehicles may access the Site via the ROW from Melaleuca Street.
Dealing firstly with the first component of s 2.119(2)(a), namely, the desirable outcome of providing vehicular access to the Site by a road other than a classified road, I note at the outset that in Modern Motels the question of whether a right of way is a road for the purpose of s 2.119(2)(a) was not raised or determined notwithstanding that the vehicular access proposed included traversing a right of way.
The categorisation of the ROW is a matter in dispute between the parties and the Court is asked to make a finding as to whether the ROW is a road for the purpose of s 2.119(2)(a) of the SEPP Transport and Infrastructure.
To answer the question of whether the ROW is a road, one looks firstly to statutory definitions for 'road'. A 'road' is not defined in the SEPP Transport and Infrastructure and s 2.3(1) of the SEPP Transport and Infrastructure says that "A word or expression used in this Chapter has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Chapter." When one goes to the Standard Instrument (Local Environmental Plans) Order 2006 (the Standard Instrument), there is a definition for 'road' in the Dictionary and that definition says as follows: road means a public road or a private road within the meaning of the Roads Act 1993, and includes a classified road.
A review of the Roads Act 1993 Dictionary one finds the meaning of road, public road and private road which I reproduce below as follows: road includes - (a) the airspace above the surface of the road, and (b) the soil beneath the surface of the road, and (c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of the road. public road means - (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act. private road means any road that is not a public road.

Will the safety, efficiency and ongoing operation of the classified road be adversely affected by the development? (s 2.119(2)(b) SEPP Transport and Infrastructure)

The second, and conjunctive, jurisdictional prerequisite is set out in s 2.119(2)(b) of the SEPP Transport and Infrastructure, namely am I satisfied that safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of any of the following: 1. The design of the vehicular access to the land, or 2. The emission of smoke or dust from the development, or 3. The nature, volume or frequency of vehicles using the classified road to gain access to the land.
I am satisfied that there is no evidence that the emission of smoke or dust from the development will adversely affect the Sturt Highway.
There are two remaining elements to s 2.119(2)(b) of the SEPP Transport and Infrastructure. The first element goes to the design of the vehicle access to the land and the second element is the nature, volume or frequency of vehicles using the classified road to gain access to the land.
The Proposed Development provides for and allows vehicles heading in a westerly direction along the Sturt Highway to turn right into the proposed service station and shop but does not permit right turns out of the Site by the drivers of vehicles who may wish to continue heading in a westerly direction along the Sturt Highway.
The Applicant's submissions as to design of vehicular access to the land - Transcript 24 October 2023 p 235 at par 7: "How is the safety, efficiency and ongoing operation of the classified road adversely affected by the design of the vehicular access to the land. How does that relate to the question of displaced turns; it doesn't. The displaced turners are able, safely, without any effect on the safety, efficiency and ongoing operation of the road, to turn out of the development and turn left onto the classified road. The adverse effect being alleged is an effect not of the safety and efficiency of the classified road affected by the design of vehicular access to the land at all, but just randomly doing turns on the road. Now, that's not what the question is directed to. It has to be an effect of the design of the vehicular access, as I submitted in chief, and that the design of the right-hand turn into Carramar is not an aspect of the design of the vehicular access to the land."
I do not agree with the Applicant's submission and find that the design of vehicular access includes the ingress and egress movements required by vehicles in order to enter and leave a site.
The First Respondent submits that the evidence of Mr Rogers at 54 of Ex 7 where he notes that the July Traffic Report "found that the proposed OTR petrol station with no right turn egress onto the Sturt Highway would have minimal impact on the efficiency and operation of the adjacent road network" (emphasis added), can only be a negative or adverse impact (Transcript 24 October 2023 p 191 at par 30).

Deferred commencement condition sought by the Applicant to satisfy the jurisdictional prerequisites s 2.119 SEPP Transport and Infrastructure

The deferred commencement condition was proposed by the experts after their further joint conferencing upon reviewing the additional scraping analysis (Ex 11 at pars 4 and 5), I accept the Second Respondent's submission that the Applicant was doing their best to come up with a practical solution (Transcript 24 October 2023, p 212, par 20). However, the Court is required to determine whether the deferred commencement condition proposed by the Applicant in Ex L as DC1 is a legally valid solution and whether it satisfies a jurisdictional prerequisite, namely the terms of s 2.119(2) of the SEPP Transport and Infrastructure.
In the Supplementary Joint Traffic Report (#4) dated 13 September 2023 filed in Court on the same day (Ex 11) prepared by Tim Rogers, Tom Steal and Rhys Hazell, the experts agree that after reviewing the swept paths provided by Northrop as listed at par 3 of the Report, that "access to the site by articulate heavy vehicles over 12.5m long is not practical". On this basis the experts suggest the following deferred commencement condition: ""Unless it can be demonstrated that with the redesign of the driveway to allow access by articulated heavy vehicles in accordance with AS2890.2:2018, the site shall be limited to light vehicles and rigid trucks. This would require a redesign of the driveway to restrict access to light vehicles and rigid trucks (including works on Hendy Road), review of internal arrangements to accommodate 12.5m rigid trucks at the bowsers in front of the control building, that the truck fuelling component not be constructed and the provision of "No Access for trucks longer than 12.5m" signage. Deliveries will be restricted to an appropriate size tanker, either a 17m articulated tanker or a 19m b-double tanker for which longitudinal sections must show appropriate access in accordance with the ground clearance requirements of AS2890.2:2018.""
The experts did not reach agreement as to the location of the signage limiting the 12.5m truck access to the Site (Ex 11, pars 6 and 7).
I note that the practical solution proposed by the experts in Ex 11 does not actually provide a solution to the identified and agreed problem, which is that access to the Site by articulated heavy vehicles over 12.5m long is not practical, other than if the Applicant fails to satisfy the council of compliance that there will be a service station which does not service large vehicles by prohibiting access to vehicles 12.5m and over.
There is argument between the parties as to the ability to impose conditions that go to satisfy a jurisdictional prerequisite. The Applicant relies on s 4.16(1) of the EPA Act which empowers the Court, as the consent authority, to determine a development application by granting consent to the application, either unconditionally or subject to conditions. It is relevant that s 4.16(2) of the EPA Act provides that: (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.

(1) The Court cannot be satisfied of the jurisdictional matters in s 2.119 of the SEPP Transport and Infrastructure;

(2) The deferred commencement condition proposed by the Applicant results in a fundamental and significant change to the development for which consent is sought, offending the principles in relation to finality outlined in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison);

(3) The proposed deferred commencement condition impermissibly seeks to defer assessment of matters essential to the development (see Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake); and

(4) The Proposed Development results in unacceptable impacts.

(2004) 138 LGERA 237

(2006) 143 LGERA 277

(2023) 111 NSWLR 634

(1991) 23 NSWLR 734

(2010) 176 LGERA 71

(2018) 229 LGERA 101

(1997) 95 LGERA 268

(2000) 111 LGERA 181

(2005) 139 LGERA 84

(1997) 95 LGERA 86

Cited By (3)

Minton v Shoalhaven City Council

The Path Investment Group Pty Ltd v Sutherland Shire Council

Thunderbirds Are Go Pty Ltd v Council of the City of Ryde and Transport for NSW

In the decision of Palm Lake the characterisation of an access way by Dickson C as a road was not disturbed by the s 56A of the LEC Act appeal decision of Preston CJ at [57]. Part of that judgment deals with the characterisation of an access way as a road, for the purposes of that particular development, and ultimately Preston CJ concluded that the Commissioner was not wrong in doing that, even though it wasn't a public road, it was an access way that could be characterised as a road for the purposes of the definition of road in the zoning table that applied to that particular land that was subject to that decision. Preston CJ at [65] - [67] of Palm Lake states: "65 Having correctly understood the characterisation task she was required to undertake, the Commissioner evaluated whether the access way could be characterised as being the nominate permissible use of road. No error is revealed in the Commissioner' analysis and conclusion that the access way could be characterised as a road. The facts of the access way allowing access to and from the seniors housing development in the present case were analogous to the facts of the access handle allowing access to and from the light industrial use in Argyropolous v Canterbury Municipal Council. Palm Lake submitted that the Commissioner was correct to so find. 66 … The Commissioner's approach to determine first whether the access way could be characterised as being for the nominate permissible development of road (a development specified in item 3 of the land use table for the RU2 Zone) was correct. If the access way could be characterised as being for the nominate permissible development of road, it would be permissible, irrespective of whether it could also be characterised as being a seniors housing development. 67 … the Commissioner did not fail to consider the purpose of the use of the access way. Whilst the Commissioner does not in the paragraphs where she finds the access way falls within the definition of "road" expressly refer to the purpose of the use of the access way, the Commissioner had earlier recognised the need to consider the purpose of the particular use when she set out the task of characterisation of the access way (in [74] and [75]), adopted the submissions of Palm Lake (set out in [70]-[72]) concerning the proper characterisation of the access way, and referred to prior decisions, including Botany Bay City Council v Pet Carriers International Pty Ltd, which focused on characterising the purpose of a particular use (at [75])."

The First Respondent submits that restricting all vehicular access to Melaleuca Street and the right of the carriageway is practicable and safe for at least five reasons articulated in closing submissions and recorded on the transcript (24 October 2023 from p 188 and submits that the Court would form the positive opinion of satisfaction that vehicle access to the land by a road other than the classified road has not been provided, even though it is practicable and safe to do so and, therefore, on the basis of such opinion the Court would have no power to grant consent to the development due to the operation of s 2.119(2) of the SEPP Transport and Infrastructure. The five reasons relied on by the First Respondent have been summarised as follows: 1. it is practicable and safe in traffic engineering terms for vehicular access to the land to be provided by a road other than the classified road, namely by Melaleuca Street and the 15m right of carriageway. On the basis of what Mr Steal says at par 12 of Ex 6, and to quote directly from that paragraph he says, "The use of the right of way at the rear of the site to gain access to the site is not clearly limited in terms of practicability or safety from a traffic engineering perspective". 2. there is no traffic engineering evidence from the Applicant to the contrary as the matter wasn't addressed at all by Mr Rodgers. He simply accepted that access would not be provided by Melaleuca Street and the right of carriageway. Mr Rodgers simply says, at par 9 of Ex 6, in respect of s 2.119(2)(a) of the SEPP Transport Infrastructure, "Access is not proposed via the right of way." 3. the relevant part of Melaleuca Street that fronts the right of carriageway is a designated heavy vehicle route and legally capable of being used by all types of vehicles including heavy vehicles (Ex 2R2, Tab 5). During the course of the site inspection, there were heavy vehicles already using Melaleuca Street and the right of carriageway for access and parking. The First Respondent submits that to suggest it can't be used or there are engineering problems with its use or traffic or safety concerns belies the fact that it is in fact a heavy vehicle designated route on Melaleuca Street and the right of carriageway is used by large trucks including of the B-Double variety. 4. there are no topographical or physical constraints in providing access to and from the development from Melaleuca Street and the 15m wide right of carriageway. 5. the suggestion that it is not practicable for a service station that has frontage to a classified road being limited to having vehicle access provided by a road other than the classified road is not made good by any evidence. "There is no evidence in this case at all that it is economically prohibitive to provide for a service station that wouldn't have access off the roads that are available other than the classified road." (Transcript 24 October 2023, p 189 at par 7)

The Applicant's submissions as to 'minimal' and adverse effect - Transcript 24 October 2023 p 235 at pars 1 and 39: "words in 2.119(2)(b) talk about, "will not be adversely affected", it doesn't mean that any impact is an adverse impact unless it's beneficial; that's not how that works. An adverse effect is one which is actually adverse, and it has to be found to be positively adverse. There is no evidence that the turns, the displaced turns, has an adverse effect upon the things which are enumerated in that provision." … "So, the simple proposition is this, that the fact that vehicles who are displaced from turning right must turn left, and then will have to use other aspects of the road network to continue their journey is not an adverse effect upon the safety, efficiency and ongoing operation of the road; there is no evidence that it is. To suggest that Mr Rogers' use of the word, "minimal", means that it's somehow an adverse effect is not correct. Minimal effect does not mean adverse. Minimal means exactly that; it has a minimal effect. It has an effect because it increases the number of vehicles that will do that manoeuvre, but that doesn't mean it's adverse. It can only be adverse if it does something in a negative way to the safety, efficiency and ongoing operation of the road, and you would not accept the Steel test, that's the Mr Steel test, that any additional turn on the road is an adverse safety effect. Now if that were the standard, that would simply mean that this clause is insurmountable, because every time you have a development that increases the volume of vehicles using the classified road from a development and doing a turn on the road, you would be having an adverse effect upon the safety, efficiency and ongoing operation of the classified road; that can't be what it means. That would simply be an absurdity. The road is designed in a way that the safety, efficiency and ongoing operation of the classified road is protected, as I put to Mr Steel. That is, there is a right turn bay at Carramar to facilitate the ongoing safety and operation of the classified road. It allows people to turn off the main carriageway, it allows a vehicle to continue to pass that vehicle that might be stationary waiting to turn right into Carramar, because that's a design feature of the road that's designed to maintain its safety, efficiency and ongoing operation. To suggest that that existing feature, that road feature, is an adverse effect is actually saying that the current road design is not up to scratch, and that's not right; no expert says that. Nobody suggests that turning right at Carramar is unsafe, or that each turn into Carramar affects the safety, efficiency and ongoing operation of the classified road. It seems to Mr Steel that it's only people that come from our development that do that right turn affects the safety and efficiency of the classified road. What's good for the goose is good for the gander".

The Applicant seeks the following deferred commencement condition (DC1) which is not agreed by the First or Second Respondent and I reproduce DC1, as well as, the respective positions of the parties from the Proposed/Draft Conditions of Consent filed 17 October 2023 (Ex L) as follows: "DC1: The Applicant must submit to Council for its satisfaction either: (1) amended civil plans which demonstrate that the design of the driveway allows left-turn access to the Site from the Sturt Highway (Hendy Road) by the following heavy vehicle types in accordance with AS2890.2:2018: (a) 20 metre articulated vehicles; (b) 26 metre B-Doubles; OR in the event that access cannot be demonstrated in accordance with (1) above, (2) amended architectural, landscape and civil plans which: (a) delete the diesel bowsers and canopy along with the B-Double parking as shown in the Concept Site Plan Drawing No. 16JN1294.2 SK07 at Annexure A to this consent which will restrict access to the Site from the Sturt Highway (Hendy Road) to light vehicles and rigid trucks no longer than 12.5m, and either a 17m articulated petrol tanker or a 19m B-double petrol tanker; (b) include proposed signage prohibiting vehicles longer than 12.5m from turning left into the Site from the Sturt Highway (Hendy Road), other than petrol tankers for deliveries; and (c) demonstrate that the design of the driveway allows left-turn access to the Site from the Sturt Highway (Hendy Road) for either a 17m articulated tanker or a 19m B-double tanker in accordance with AS2890.2:2018. Page 3 of 30 [Applicant Position: The Applicant proposes the above deferred commencement condition, including having regard to the evidence of the traffic experts in their Joint Traffic Report #4 dated 13 September 2023. The proposed deferred commencement condition is able to be lawfully imposed pursuant to s4.16(3) and s4.17(1)(h)(i) of the EP&A Act. The Applicant does not accept the Second Respondent's position that the proposed condition is uncertain or would require a fundamental redesign of the proposal from what has already been assessed, including having regard to the Concept Site Plan referred to in the proposed DC1, Condition 1 below and Annexure A.] [First Respondent Position: The proposed deferred commencement condition is not agreed.] [Second Respondent Position: The proposed deferred commencement condition is not agreed on the basis that it is uncertain and cannot be lawfully imposed, requires a fundamental redesign of the proposal, the impacts of which have not been assessed.]"

The Second Respondent's Contention 3 in the SOFAC R2 (Ex 2R1) filed 11 August 2023 expressly particularised the design changes required to comply with the Australian Standards in order to access the Site. As the Applicant seeks to rely on a DC1, I reproduce an extract of the particulars of the SOFAC R2 Contention 3 which support the submission that the Applicant put on notice as to design changes which were not attended to prior to the hearing of the Appeal: "b. A recent level survey … has shown that the level from the edge of the existing carriageway to the site boundary rises at the proposed exit is around 1.41m in 8m across the verge/footpath. This equates to a gradient of 1 in 5.7 (ie 17.6%) not allowing for any flattening of the driveway at the point where vehicles enter or leave the Site. c. An existing gravity fed sewer traverses the frontage of the Site, close to the surface level. d. The design indicated on the drawings and details of the Amended Development Application do not identify how the level; difference will be accommodated into the driveway crossing. No sections of the driveway, its gradient and the road/kerb levels have been provided to permit an assessment. The potential impacts associated with the works required to address the change in levels include: i. Vehicle/heavy vehicle scraping at the change of levels. ii. Speed of entry - vehicles entering from the right turn facility may face a steep ingress to the site which will result in vehicle entering more slowly rather than a flat entry. The increased time to navigate the steep gradient and driveway has not been assessed and may result in additional road safety concerns for large vehicles. … c. At a minimum, sections which consider the levels from the centre line of the road, kerb, extent of the road reserve to the front boundary of the Site and internal to the site should be included for assessment. d. It has not been demonstrated that the driveway gradient does not comply with the Australian Standards and the impacts of the proposed design cannot be adequately assessed based on the information provided."

The Second Respondent submits that there are numerous reasons why the Court would not be satisfied that DC1 would be valid and permissible and articulates the following three reasons at pars 52 - 59: "52. First, s 2.119(2)(b) imposes a jurisdictional threshold in respect of which the Court must be satisfied at the time of granting consent. For reasons previously explained, the Court cannot defer satisfaction of a jurisdictional matter by way of condition, and especially not where the ultimate form of the development is unknown. This was critical to Commissioner Dickson's refusal of the Applicant's former development application for a Highway Service Centre at the Site31. There, Dickson C similarly found that there was no jurisdiction to approve that development application, in that the state of satisfaction required by s2.119(2)(b)(i) could not be deferred. Whilst deferred commencement conditions are occasionally imposed by consent authorities, or the Court on appeal, they cannot validly be deployed to address matters of a jurisdictional nature which require satisfaction prior to the granting of consent. 53. Secondly, the condition is inherently uncertain, and offends the Mison principle. There may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of leaving open the possibility of a significantly different development. The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [25]-[28]. 54. In this case, the condition leaves open the possibility of a significantly different development. A service station that allows access to large trucks is an entirely different proposition to a service station which does not. The deletion of the diesel bowsers and canopy along with the B-Double parking is, in and of itself, a sufficient difference to render the condition invalid. The fact that a "concept Site Plan" has been provided at Annexure A to the draft conditions does not alter the fact that the development contemplated by the condition would be significantly different from that applied for. Nor is it correct to contend, as the Applicant does, that any such proposal has been properly assessed. 55. Thirdly, it is well established in Part 4 jurisprudence that a decision-maker may not validly defer consideration of fundamental matters required to be considered at the time of granting the consent: see, for example Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-276; Farah v Warringah Council [2006] NSWLEC 191 at [61], [66]; Weal v Bathurst City Council (2000) 111 LGERA 181 at [14], [95]-[96]. The proposed condition defers consideration of a critical matter (access to the Site and the ability for petrol tankers to fuel the Site in order for the Site to operate as a service station) to post determination and leaves unresolved an essential part of the development consent: Huntington & MacGillivray v Hurstville City Council (No 2) (2005) 139 LGERA 84; [2005] NSWLEC 155 at [29]. 56. The Court must be aware of the development it is approving. The deferred commencement condition proffered significantly alters the development from what is sought in the application in the event the first part of the condition cannot be satisfied. 57. In oral submissions on 13 September 2023, the Applicant contended that confirmation that gradients comply with the requisite standard is "invariably" required to be the subject of conditions, and further, that the experts were satisfied that the issue was capable of being resolved, and that it was just a "matter of detail" to go in plans approved by a construction certificate. 58. Contrary to the Applicant's submissions, the Court would have no confidence in the Applicant's ability to satisfy the condition in circumstances where: (a) access to the Site is constrained by the existence of the gravity-fed sewer. The proposed levels in that part of the Site cannot be lowered any further than they have already; (b) the experts did not suggest, expressly or implicitly, that it was likely that a solution would be found to this conundrum. To the contrary, they were silent on this topic; (c) the Applicant has been aware of the contention raised by the Second Respondent since July 2023, and yet has failed to develop a satisfactory solution to the access arrangement in that time, despite several attempts to do so; (d) the various plans tendered by the Applicant during the course of the hearing alone were unable to demonstrate that any access could accommodate the gravity fed sewer traversing the driveway and any cover material of that sewer32; and (e) There is no evidence before the Court, in light of the agreement reached by the traffic experts in Exhibit 11, that even petrol tankers to refuel the service station are able to access the Site. In the event they cannot, the utility of a service station is pointless. 59. In the circumstances, the Court cannot be satisfied that adequate access arrangements to the Site for the development proposed is available or can be made available." The Court has the power to impose a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition, in accordance with s 4.16(3) and s 4.17(1)(h)(i) of the EPA Act which provide as follows: 4.16 Determination (cf previous s 80) … (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. … 4.17 Imposition of conditions (cf previous s 80A) (1) Conditions - generally A condition of development consent may be imposed if - … (h) it is authorised to be imposed under the following - (i) section 4.16(3) or (5),"

The Applicant submits in reply (Transcript 24 October 2023 pp 240 - 241), at pars 31 - 34: "So why should the driveway be any different just because it's got a sewer underneath it that we need to cater for in the final design. This contention has just simply been overcooked and overstated in my submission, Commissioner. When we go back to the second respondent's contentions, the second respondent has never put that this is a reason for refusal, actually what it says is, access to the site is non-compliant and requires design changes. Yes, okay, we need to get final design of the sewer, we need to know its depth below the ground, we need to know the thickness of the pipe, we need to survey that in detail, and we need to provide a final design for the driveway which overcomes that problem. If need be, we can move the sewer if we have to. One way or another, the applicant is capable of doing either of those things, moving the sewer or designing a driveway which will achieve the appropriate standard over the sewer, but it's not actually a matter that goes to a question of whether or not access can be provided to the site; it doesn't actually make much difference. It doesn't make any difference, in an environmental sense, as to whether or not - we're dealing with fractions of centimetres of pavement, of the level of the pavement above a sewer; that's the argument. It's got no question of moment to environmental impacts, because we know that the whole of the site's going to be virtually covered in concrete except where it's shown to be landscaped, and that doesn't change one way or the other. So, what is the environmental impact that we're assessing here. If we can be sure, if we can impose a condition requiring that the Australian Standard be complied with for the design over the sewer, isn't that the answer, and if it's good enough for the other conditions, it's good enough for the car parking condition in 34B and 31B for drainage, why is it not good enough for the driveway where it overcomes the sewer; they're exactly the same. And so, it would be expected that that would be a matter of final design. And I might add, this is an issue that was raised by a second respondent who was joined three weeks before the hearing of this matter. The criticism being heaped upon the applicant for not having detailed designs and scraping plans with respect to a sewer, which has to be surveyed in detail to understand its depth and will be done in the course of preparing detailed design drawings, is not the be-all and end-all and the determinant of this development application. It doesn't determine whether this use is a suitable use for this site. It doesn't determine any likely environmental impacts arising out of the development, and all of the submissions that follow from this about the potential for queuing of vehicles because a tanker might scrape the ground is just speculative. The whole point about the deferred commencement condition is that that won't happen because the driveway will be designed to prevent it from happening. So how could that ever go. How could that ever be related to the question under 2.119 as to the safety and efficiency of the classified road, because you would be required to assume, Commissioner, in granting consent subject to the deferred commencement condition; one, that is that the applicant will demonstrate that the gradient will achieve the Australian Standard. So I address at 3.48 a number of matters in relation to what you would say, Commissioner, is judicial notice of the fact, that conditions are regularly imposed in this Court which require demonstration of compliance with the requisite Australian Standard, and I've set out a number of facets of the evidence, and in response to para 58 of the written submissions of Mr Lazarus."

Conditions can be imposed in accordance with s 4.17 of the EPA Act. Section 4.15 of the EPA Act relates to evaluation of a development application and draws a distinction between merit assessment or evaluative consideration as opposed to the satisfaction of jurisdictional prerequisite. I have also considered the Court of Appeal decision of McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 which considers the question from the reverse perspective, namely, the role of a Commissioner in a conciliation conference and whether the Court was required to consider merits of decision pursuant to s 34AA LEC Act and at pars [65] and [58] provides as follows: "65 … the preferred construction of the words in parenthesis in s 34(3) is that they impose on the Commissioner an obligation to be satisfied that there are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement. That is, the language of s 34(3) gives effect to the general law principle and does not impose some broader obligation on the Commissioner." "58 … general law principle that parties cannot confer jurisdiction on a statutory authority by consent. Thus, in Thomson Australian Holdings Pty Ltd v Trade Practices Commission [20] the High Court stated: "The parties by consent cannot confer power upon the Court to make orders which the Court lacks power to make. As we have seen, the relevant jurisdiction of the Court in relation to the granting of an injunction is limited to the hearing and determination of actions in which application is made for the making of orders under s 80(1) [of the Trade Practices Act 1974 (Cth)] restraining a person from engaging in conduct of a specified kind. The orders made (which were the orders sought) restrain the defendants from engaging in conduct that does not necessarily constitute a contravention of Pt IV … The orders therefore lack the essential feature which distinguishes conduct amounting to a contravention of Pt IV from conduct which does not amount to such a contravention.""

In relation to whether a different development may result, the Applicant refers the Court to the decision in Kindimindi Investments Pty Ltd v Land Cove Council & Anor (2006) 143 LGERA 277; [2006] NSWCA 23 (Kindimindi) which observed that the EPA Act has been amended since Mison. Kindimindi at pars [24] - [29] provides as follows: "24 In accordance with principles explained by this Court in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, there may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B (Priestley JA). The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application. 25 These two categories may overlap in circumstances where consent is granted subject to a condition which allows for significant variation of the development proposed. 26 In Mison, the condition in question required that the overall height of the dwelling house to be constructed be reduced "to the satisfaction of Council's Chief Town Planner". Because the approved height remained to be determined, and might, the Court held, fall at any point within an undefined range, the consent left open the possibility that that which was consented to would be significantly different from the development the subject of the application. 27 Alternatively, it was said that there was a substantial degree of uncertainty in relation to a condition which was "an important aspect of" the development: p 737B (Priestley JA). Meagher JA adopted a similar approach at 741. Clarke JA described the question of height as an aspect of the development "which was beyond question of critical importance". However, his Honour preferred to rest his decision on the lack of finality, rather than the possibility of there being a consent to a significantly different development: p 740F. Clarke JA also considered that the failure to specify a criterion for determining height was a fatal omission. 28 Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests. 29 Since Mison, the EP&A Act has been amended to include new s 80A and in particular subs (4), which provides as follows: "(4) Conditions expressed in terms of outcomes or objectives A consent may granted subject to a condition expressed in a manner that identifies both of the following: (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed.""

PC Infrastructure Pty Ltd v Wentworth Shire Council

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