COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of an application to modify a development consent Modification Application DA-2008/187/D seeking approval to modify condition 18 to allow for the unloading from a 25 tonne truck (the Proposed Development) at 39-43 Wollongong Road, Arncliffe legally described as Lots 1 to 3 in Deposited Plan 777476 (the Site).
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 31 August 2022. I have presided over the conciliation conference.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and approving the modification to the development consent subject to conditions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to approve a modification to a development consent.
There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent.
The parties explained how the jurisdictional prerequisites have been satisfied and I have considered and adopt the explanation as set out below.
Section 4.55(1) of the EPA Act provides as follows:
(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if--
(a) it is satisfied that the proposed modification is of minimal environmental impact, and
(b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and
(c) it has notified the application in accordance with--
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1), (2) and (5) do not apply to such a modification.
Tanana Corporations Pty Ltd v Bayside Council [2022] NSWLEC 1508 | Case summary | Zoe
The modifications to the development consent DA 2008/187 the subject of this appeal (Consent) are summarised as follows:
1. Strengthened by providing more detail in relation to the loading and unloading, putting beyond doubt among other things that no large trucks (25 tonne or otherwise) can unload on the site (new conditions 16 and 18 - which are modified versions/ more detailed versions of similar conditions from the Consent as originally imposed);
2. An additional noise condition to ensure amenity of surrounding residents (condition 20A);
3. A new condition 138 which requires, pursuant to s 4.17(1)(b) and s 4.17(5) of the EPA Act, amendments to the 2002 consent DA 2002/840 dealing with in summary loading and unloading and ensuring consistency between the two consents; and
4. A new condition requiring temporary metal bollards along the full Wollongong Road frontage to prevent vehicular access to the site via Wollongong Road.
With respect to 'minimal environmental impact' referred to in s 4.55(1A)(a) of the EPA Act, the parties rely on the decision of Bechara v Plan Urban Services Pty Ltd (2006) 149 LGERA 41; [2006] NSWLEC 594 at [57] per Jagot J:
"In King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505 at [84], I said that "minimal", in the context of s 96 construed as a whole, must take its ordinary meaning of "very small" or "negligible". The "minimal" requirement qualifies the "environmental impact" of the proposed modification, rather than the proposed modification itself - which is subject to the "substantially the same" requirement in s 96(1A)(b). Hence, the focus must be on the impact or effect of the modification on the environment. Given the very broad and inclusive definition of "environment" in s 4(1) of the EPA Act, it is necessarily a matter for the consent authority to identify for itself the relevant categories of potential impacts."
The parties agree and I am satisfied that the current amendments to the Consent proposed are of minimal environmental impact. It would be fair to say that the proposed amendments as ultimately put to the Court reduce environmental impacts by strengthening or tightening conditions dealing with loading and unloading.
As to the 'substantially the same' test in s 4.55(1A)(b) of the EPA Act, the principles were summarised by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 as follows:
173 The applicable legal principles governing the exercise of the power contained in s 96(2) (a) of the EPAA may be stated as follows:
(1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440);
(2) the modification power is beneficial and facultative (Michael Standley at 440);
(3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Realty at [16]);
(4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8);
(5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]);
(6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]);
(7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]);
(8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2) (a) (Vacik);
(9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and
(10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52]).
The parties agree that the proposed modifications to the Consent result in the Consent having 'essentially or materially the same essence' and the proposed amended conditions 'alter without radical transformation' the Consent.
With respect to s 4.55(1)(c) and (d) of the EPA Act dealing with notification, the Proposed Development was notified, and one objection was received which is included in the Respondent's Bundle of Documents at pages 24-29. I also note that there were two further submissions received which are at pages 30 - 33 of the Respondent's Bundle of Documents.
The next jurisdictional consideration is s 4.55(3) of the EPA Act which provides as follows:
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
The key jurisdictional matter under s 4.15(1) of the EPA Act relates to the fact that the use is prohibited under the Bayside Local Environmental Plan 2021 (previously Rockdale Local Environmental Plan 2011).
However, it is agreed and I accept that the Site has the benefit of existing use rights. Section 4.70 of the EPA Act provides:
4.70 Saving of effect of existing consents
(cf previous s 109B)
(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.
(2) This section--
(a) applies to consents lawfully granted before or after the commencement of this Act, and
(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and
(c) has effect despite anything to the contrary in section 4.66 or 4.68.
(3) This section is taken to have commenced on the commencement of this Act. [emphasis added]
There have been several decisions of this Court which support the view that a s 4.55 (formerly s 96) modification application can be made to modify a consent saved by s 4.70 (formerly s 109B) of the EPA Act, notwithstanding that the development is currently prohibited under the applicable planning instrument including the decision of Presrod Pty Limited v Wollongong City Council [2012] NSWLEC 240 (Presrod) at [76] per Sheahan J and Brown C and of Reading Properties Pty Ltd v Auburn Council [2007] NSWLEC 186; (2007) 158 LGERA 116 at [33] per Biscoe J.
In Presrod Sheahan J and Brown C stated at [76] as follows:
"Section 109B(2)(b) makes it clear that a DC [ie. development consent], although for a now prohibited use, may continue and may be modified in accordance with the EPA Act."
Accordingly, it is agreed by the parties and I am satisfied that the Court has power to modify the Consent as proposed notwithstanding the prohibition on the use because of the application of s 4.70(2)(b) of the EPA Act.
With respect to taking into account reasons for the original grant of consent, the original Council assessment report with respect to the Consent has been provided to the Court and I have read and considered this report.
In Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 the Court stated:
[55] The constraints on three of the powers, s 4.55(1A), s 4.55(2) and s 4.56(1), indicate that the modification of the development consent sought needs to effect some change to the development the subject of the development consent..." (emphasis added).
"[63] The upshot of this analysis is that the power in s 4.56(1), as with the powers in s 4.55(1A) and s 4.55(2), can only be exercised to modify a development consent if the modification will effect some change to the development the subject of the development consent. This need not be the only effect of the modification but it must be at least one of the results of the modification of the development consent. (emphasis added).
The proposed modification of the Consent will effect a change to the development, including by among other things effecting:
1. change in relation to the use carried out under the Consent, by way of 'strengthening/ tightening' conditions in relation to loading and unloading and noise (comprising a change to the 'use of land' - 'use of land' being a category of 'development' as defined in s 1.5 of the EPA Act);
2. erection of metal bollards as per proposed condition 139 ('erection of a building' being a type of development as defined in s 1.5 of the EPA Act, with 'building' defined in s 1.4 of the EPA Act as including 'any structure or part of a structure')
I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.
As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
[2]
Orders:
The Court orders:
1. The appeal is upheld.
2. Development Consent No. DA-2008/187 is modified in the terms in Annexure A.
3. Development Consent No. DA-2008/187 as modified by the Court is Annexure B.
[3]
Annexure A
Annexure B
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Decision last updated: 20 September 2022