Toplace Pty Ltd v Council of the City of Sydney

The site and development history

1. The site that is the subject of the consent that is sought to be modified is known as 67-77 Epsom Road, and legally identified as Lot 100 in Deposited Plan 1232278 ("Toplace site"). It has an area of 6,926m2 and has street frontages of 105m to Epsom Road to the north, 70m to Dalmeny Avenue to the west, and 105m to Magari Street to the south. It is relatively flat and rectangular in shape.

The locality

1. The Toplace site is located in the north eastern sector of Rosebery, in an area with a history of land uses of an industrial and commercial character but which is now in a state of transition toward medium to high density residential development.
2. To the south of the site is a relatively high density residential development known as "Kimberley Grove", comprising a series of apartment buildings ranging from 4 to 8 storeys in height. To the north of the site is a range of small to medium scale industrial and commercial buildings. To the east of the site, beyond the adjacent lot of land, is Southern Cross Drive, which is a major arterial road from which access to the Toplace site can be gained via Link Road. An aerial photograph of the site and its immediate surrounds is shown at Figure 1.

The concept consent

1. The Toplace site originally formed part of 67-77 Epsom Road and 95 Dalmeny Avenue, Rosebery. It was legally identified as Lots 1 and 2 in Deposited Plan 858174 ("Overland site"). On 30 July 2010, a concept consent was granted for the Overland site, which incorporated a stage 1 development for five residential flat buildings ranging from 4 to 8 storeys in height, and one mixed use building ranging in height from 1 to 13 storeys, as well as public domain works including a 3,260m2 public park, four new internal roads, the dedication and setback of a 1.4 metre strip of land along the Epsom Road boundary and dedication and setback of two strips of land along the eastern boundaries for future footpath extensions or landscaping areas.
2. The layout of the concept approved by the concept consent is set out in Figure 2, which also shows the intersection of Link Road and Epsom Road as a signalised intersection.
3. Condition 17 of the concept consent concerns the upgrade to the Epsom Road and Link Road intersection. Condition 17, as originally imposed, was worded as follows: "(17) UPGRADE TO EPSOM ROAD / LINK ROAD INTERSECTION (a) Any stage 2 Development Application for the site shall be accompanied by a plan showing works to upgrade the intersection of Epsom Road/Link Road. The intersection shall be designed as follows: (i) Link Road approach - left turn lane (30-40m) + shared through/right turn lane + right turn only lane; (ii) Epsom Road (East) approach - shared left / through lane + 60m through lane + right turn only lane; (iii) Epsom Road (West) approach - free flow left turn slip lane + 20m long bus only lane + right turn only lane. (b) Detailed signal and road design plans of the proposed new traffic signals and interchange at Epsom Road/Link Road will need to be forwarded to the RTA for approval prior to the commencement of any road works. The plans must show all dimensions (e.g. lane width, kerb return radius), pavement marking, bike lane and logo, parking controls, bus zones, pedestrian crossing, median islands, signs and driveways. The RTA fees for administration, plan checking, signal works inspections and project management shall be paid for by the developer prior to the commencement of works. (c) Works to upgrade the intersection shall be completed prior to the issue of a Construction Certificate for any part of the development."
4. It was amended on a number of occasions, and is currently worded so as to require the works to be completed prior to the issue of any occupation certificate for Building A: "(17) UPGRADE TO EPSOM ROAD / LINK ROAD INTERSECTION (a) Prior to the issue of an Occupation Certificate for Building A a plan showing works to upgrade the intersection of Epsom Road / Link Road shall be submitted to and approved by the Director City Planning, Development and Transport. The intersection shall be designed as follows: (i) Link Road approach - left turn lane (30-40m) + shared through / right turn lane + right turn only lane; (ii) Epsom Road (East) approach - shared left/through lane + 60m through lane + 60m right turn only lane; and (iii) Epsom Road (West) approach - free flow left turn slip lane + 20m long bus only lane + right turn only lane. (b) Detailed signal and road design plans of the proposed new traffic signals and interchange at Epsom Road/Link Road will need to be forwarded to the RTA for approval prior to the commencement of any roadworks. The plans must show all dimensions (e.g. lane width, kerb return radius), pavement marking, bike lane and logo, parking controls, bus zones, pedestrian crossing, median islands, signs and driveways. The RTA fees for administration, plan checking, signal works inspections and project management shall be paid for by the developer prior to the commencement of the works. (c) Works to upgrade the intersection shall be completed prior to the issue of any Occupation Certificate for Building A."
5. As demonstrated in Figure 2, Building A is the northernmost building in the concept consent for the Overland site, and is located on the Toplace site.

Planning Agreement

1. The conditions of the concept consent referred to a Voluntary Planning Agreement submitted to the Council by the developer, Overland Consolidated Pty Ltd. That condition, condition 2, required: "The scope of works relevant to each state of the development as specified in the Voluntary Planning Agreement submitted to Council on 1 April 2010 by the developer Overland Consolidated Pty Ltd, must be completed to the satisfaction of Council prior to the issue of any Occupation Certificate for each of those stages.
2. A Planning Agreement that applies to the Overland site was subsequently entered into between Overland Consolidated and the Council ("Overland VPA"). It included a payment of a monetary contribution, dedication of land and works in kind. The public domain works under the planning agreement include new public roads, land dedications for footpath extensions and landscaped areas and a new public park. The agreement does not include the upgrade to the Epsom Road and Link Road intersection. However, it does include land dedications on Epsom Road and to the east of the Overland site to enable a new southern road between the Overland site and the adjoining site to the east. The Planning Agreement was subject to two deeds of variation, which modified the infrastructure contributions and public benefits as a consequence of changes to the mix of land uses, the design of the internal roads and the design of the park.

Detailed development consents

1. Detailed development consents were subsequently granted for the construction of the buildings.
2. Development consent D/2011/1202 approved the construction of Building D, and includes 106 apartments. Condition 31 of the consent requires the intersection to be upgraded prior to the issue of the occupation certificate, if the occupation certificate permits more than 320 apartments to be occupied. This is consistent with an earlier iteration of condition 17 of the concept consent.
3. Development consent D/2012/1422 approved the construction of Buildings G and H, and includes 118 apartments. Condition 9 of the consent requires the intersection to be upgraded prior to the issue of the occupation certificate, if the occupation certificate permits more than 320 apartments to be occupied. As above, this is consistent with an earlier iteration of condition 17 of the concept consent.
4. Development consent D/2014/1977 approved the construction of Buildings B, C, E and F and includes 247 apartments. The requirements of condition 17 of the concept consent was not imposed as a condition of this consent, on the basis that, by the time of granting of this consent, condition 17 had been modified such that it related only to the detailed development application for Building A.
5. Development consent D/2015/624 is the consent the subject of the present modification application that is on appeal, and approved the construction of Building A ("Toplace consent") on the Toplace site. As modified by subsequent applications, Building A comprises 266 residential apartments, 71 serviced apartments and 13 retail tenancies. Toplace, through its counsel, represented to the Court that the building is largely complete and ready for occupation.

Surrounding development

1. The adjacent sites to the north-east and east of the Overland site are known as the Reachdaze site and the Warehouse Group site respectively. They are shown in Figure 3 as Site A and Site B. Site C is the Overland site, the site of the concept consent shown in Figure 2.
2. On 20 February 2007, the Court granted a concept consent for the Reachdaze site and the Warehouse Group site ("Dolina concept consent"): see Warehouse v Sydney City Council [2007] NSWLEC 25.
3. The Dolina concept consent approved the demolition of the existing structures at 1-5 Link Road and 87-103 Epson Road, and the construction of a mixed use development comprising 11 buildings. It also approved the "reconstruction of parts of Epsom and Link Roads and the construction of two new north-south roads, three new east-west roads and a public park".
4. The Dolina concept consent included some deferred commencement conditions, one of which required the owner to enter into a public benefit agreement which was required to include the "construction and dedication where relevant, of the signalized Epsom Road/Link Road intersection and the association "approach" and "departure" sides".
5. The Dolina concept consent also includes conditions setting out the requirements of the Roads and Traffic Authority (at condition 22) and the Sydney Traffic Committee (at condition 23) concerning alterations to the public road system.
6. On 16 September 2011, a Voluntary Planning Agreement was entered into by Reachdaze Pty Ltd and The Warehouse Pty Ltd with the Council ("Dolina VPA"). The Dolina VPA requires Reachdaze and Warehouse to dedicate land and design and construct the intersection works required for the intersection of Epsom Road and Link Road. It also includes an indemnity against Reachdaze and Warehouse for the works carried out, the provision of security guaranteeing the completion of the works to the intersection, the right to call upon the security for any failures to design or do the works on the intersection, and the right to itself carry out the works with any costs involved (if exceeding the secured amount) being a debt immediately due and owing to the Council. At clause 29.1, the Dolina VPA includes a covenant that no building would be occupied until the works required were carried out.
7. The Dolina concept consent was later amended to include the following as condition 1B: "The scope of works relevant to each phase of the development as specified in the Voluntary Planning Agreement between The City of Sydney, Reachdaze Pty Ltd and The Warehouse Pty Ltd, dated 16 September 2011, must be completed to the satisfaction of Council prior to the issue of any Occupation Certificate for each of those phases."
8. On 10 February 2014, a stage 2 detailed consent was granted for the Reachdaze site ("Reachdaze consent") at 5 Link Road, 947 South Dowling Street and 132-134 Epsom Road, Zetland. It was for the construction of four mixed use buildings, including 189 residential units and 6151m2 of commercial space. Consistent with clause 29.1 of the Dolina VPA, condition 3 of the Reachdaze consent required that the developers works identified as being required for "Phase 1 of the development of the subject site and the adjacent property at 87-103 Epsom Road, Zetland, shall be provided prior to the issue of any Occupation Certificate". These works include the upgrade to the intersection of Link Road and Epsom Road.
9. On 6 December 2016, the Council granted a modification application that resulted in the wording of condition 3 of the Reachdaze consent to be changed to "prior to the issue of a final occupation certificate". This meant that an interim occupation certificate could be issued before the works on the intersection were completed. The modification application was made pursuant to the former s 96(1A) of the EPA Act, now s 4.55(1A). It was granted in circumstances where the final design of the intersection had not been agreed to by the Council and the Roads and Maritime Services ("RMS") (now known as TNSW). Development at the Reachdaze site is now largely complete. An interim occupation certificate was issued on 8 November 2017 and the intersection works for Phase 1 remain outstanding.
10. The Warehouse Group site has not yet been developed in accordance with the Dolina concept consent, although a development application for a detailed stage 2 consent was submitted on 29 November 2019.

The legislative framework for the appeal

1. The application to modify the Toplace consent was lodged pursuant to s 4.55(1A) of the EPA Act. In considering the appeal, the Court exercises the functions of the consent authority, the Council, in determining the application (s 39 of the LEC Act).
2. The exercise of the power in subs 4.55(1A) requires the Court to first be satisfied of a number of pre-conditions. The first is at s 4.55(1A)(a), that "the proposed modification is of minimal environmental impact", and the second is s 4.55(1A)(b), 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".
3. Upon reaching the satisfaction of these two pre-conditions, subs (3) provides that: (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.
4. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
5. However, s 4.24(2) precludes the determination of any further development application from being "inconsistent with the consent for the concept proposals for the development of the site". Section 4.24 is as follows: 4.24 Status of concept development applications and consents (cf previous s 83D) (1) The provisions of or made under this or any other Act relating to development applications and development consents apply, except as otherwise provided by or under this or any other Act, to a concept development application and a development consent granted on the determination of any such application. (2) While any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site. (3) Subsection (2) does not prevent the modification in accordance with this Act of a consent granted on the determination of a concept development application.
6. Section 4.24(2) has also been raised by the Council as a jurisdictional issue that precludes the grant of the modification application. However, s 4.24(2) applies to the "determination of any further development application", and a question therefore arises as to whether the "determination of any further development application" extends to the determination of a modification application. Even if s 4.24(2) does not raise a jurisdictional issue, inconsistency with the concept consent would nevertheless be a relevant matter in considering the merits of the modification application.

The basis for the modification application

1. The modification application the subject of the appeal was originally lodged on the basis that it sought a consistent approach to that which was taken for the neighbouring development on the Reachdaze site. That is, the modification application sought a modification to condition 28 of the Toplace consent so that it would be consistent with the modification made to condition 35 of the Reachdaze consent, to allow the intersection upgrade to occur prior to the issue of a "final occupation certificate" rather than "any occupation certificate".
2. The reference to a "final occupation certificate" reflects the provisions of the EPA Act under the former Part 4A, in which there is a distinction (in s 109H) between an interim occupation certificate and a final occupation certificate. Although Part 4A has been repealed, it continues to apply to development consents granted before 1 December 2019, pursuant to cl 18A of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017. As such, the amendment sought by Toplace would allow an interim occupation certificate to be issued prior to the completion of the works described in condition 28, although those works would need to be completed prior to the issue of a final occupation certificate.
3. On appeal, Toplace submits that there are a number of grounds that warrant the change to the wording as sought.
4. First, Toplace says that the upgrade to the intersection is the responsibility of the developer of the Reachdaze site. In support of this, Toplace relies on the Dolina VPA and the conditions of the Reachdaze consent and the Dolina concept consent.
5. Second, Toplace submits that the circumstances that led to modification of the Reachdaze consent exist in the present modification application. Those circumstances are that a final design for the intersection upgrade was not yet approved by the Council and RMS (now TNSW), the land to be dedicated for the intersection upgrade from the Warehouse Group site had not yet been dedicated, and the obligation to construct the intersection upgrade was enforceable under the Dolina VPA. Toplace submits that each of these matters remain true.
6. Third, Toplace submits that it is not reasonable for the building to be completed but remain unoccupied for an indeterminate period whilst the design for the intersection upgrade is finalised and the work is done by another developer, or by the Council if the developer defaults under the VPA.
7. Fourth, Toplace submits that there is no consent or VPA for it to carry out the works for the intersection upgrade, including the works on land that has not yet been dedicated. Toplace submits that condition 28 concerned only timing, and did not impose any obligation on it to carry out the works or bear the cost of the works.
8. Fifth, Toplace says that the evidence is that the works will be carried out in the future. In support of this proposition, Toplace refers to the letter of Mr Graham Jahn, the Director of Planning Development and Transport at the Council, of 16 August 2019. The letter made demands upon HiFu Capital Pty Ltd, the developer of the Reachdaze site, to get on and complete the works by 7 December 2020. The letter outlines that the Council has the ability to complete the works itself and recover from the guarantees and securities provided under the Dolina VPA.
9. Further, Toplace submits that there was no finding, in the Council's assessment of the Toplace detailed stage 2 consent for Building A, that the development would require the upgrading of the intersection.
10. For these reasons, Toplace submits that it is reasonable to grant the modification sought. However, before determining the merits of the modification application and conducting any assessment under s 4.55(3) of the EPA Act, the pre-requisites to exercise of the power pursuant to s 4.55(1A) need to be satisfied.

Is the proposed modification of "minimal environmental impact"?

1. The Council contends that, in the absence of updated traffic information, it cannot be determined whether the proposed modification is of minimal environmental impact. In their submissions, both the Council and TNSW submit that Toplace needs to persuade the Court that the proposed modification is of "minimal environmental impact". In discussing the meaning of "minimal" in the context of the former equivalent provision in s 96, Jagot J explains in Bechara v Plan Urban Services Pty Ltd (2006) 149 LGERA 41; [2006] NSWLEC 594 at [57]: "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."
2. In Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38, Preston CJ describes it as a comparative exercise, requiring (at [57]), "a comparative assessment of the environmental impacts of the development as originally approved and the development as modified."
3. TNSW submits that there is insufficient information before the Court to assess the impact of delaying the obligation in condition 28, and the Council submits that Toplace has not undertaken the comparative exercise in order to demonstrate that deferring the intersection works will have minimal environmental impact.
4. Toplace submits instead that, in circumstances where the equivalent modification to the Reachdaze consent was made pursuant to s 96(1A) (what is now s 4.55(1A)), there is no issue with respect to the environmental impact and the satisfaction of s 4.55(1A)(a).
5. I do not accept Toplace's submission. Toplace bears the persuasive burden of establishing that, on the balance of probabilities, s 4.55(1A)(a) is met. Toplace has not discharged that burden and based on the evidence before the Court and for the following reasons, I am not persuaded that the proposed modification is of "minimal environmental impact".
6. Firstly, it is not sufficient to rely on the modification of the Reachdaze consent pursuant to s 96(1A) as a basis upon which to conclude that the proposed modification to condition 28 is of minimal environmental impact for the purpose of the equivalent statutory provision in s 4.55(1A). When compared with the Toplace consent, the Reachdaze consent concerns a different site, with different numbers of residential units, with a different concept consent and VPA. Whereas the Toplace consent allows the construction of 266 residential apartments and 71 serviced apartments, the Reachdaze consent allows the construction of 189 residential apartments. Condition 17 of the concept consent, which is the stage 1 consent for the Toplace consent, is not found in the Dolina concept consent, which is the stage 1 consent for the Reachdaze consent. Further, the Dolina VPA and the Overland VPA contain different obligations, and the requirement to upgrade the intersection is enforceable under the Dolina VPA, which is registered on the title of the Reachdaze site. The Overland VPA does not contain that same enforceable obligation. These factual distinctions between the two consents (and between the applicable VPAs and concept consents) mean that an assessment of the environmental impact of a modification to one of the consents does not procure the same outcome in the other consent.
7. Secondly, the evidence that is before the Court does not establish that there will be minimal environmental impact. Instead, the evidence in the traffic assessment reports that are before the Court demonstrates that the traffic impact of the development of the Toplace site necessitates the upgrade to the intersection, and the expert opinion evidence relied upon by Toplace is not sufficient to contradict this. Given the broad definition of "environment" in s 1.4 of the EPA Act, an impact on traffic or the road network is an "environmental impact". Even though the environmental impact may be limited to the time prior to which the intersection upgrade finally occurs, the evidence is nevertheless insufficient to satisfy me that the impact during that time is minimal.
8. The traffic assessment report lodged in support of the detailed development application for Building A was prepared by Thomson Stanbury Associates ("TSA") and dated May 2015. That report considered traffic capacity analyses of the nearby intersections using SIDRA and SCATES for two future scenarios with and without the development of the Warehouse Group site, and undertook an analysis to determine the level of development that could be constructed at the Overland site before the Epsom Road and Link Road intersection would need to be upgraded. This was described as involving "incrementally loading development traffic from the… site to the intersection until it operates unsatisfactorily". Using that analysis, the upgrade of the intersection was reported to be required when the development traffic generating capacity of 158 trips per peak hour was realised. That is, the report shows that once there were more than an additional 158 trips per peak hour, the existing intersection would operate unsatisfactorily. Based on a maximum average peak hour traffic generation for high density residential development of 0.19 vehicle trips per peak hour per dwelling, the report calculated that Buildings B, C, D, E, F and H would be expected to generate 92 peak hour vehicle trips, and that Building A would generate a further 165 peak hour vehicle trips. The report therefore shows that the occupation of Building A (with or without the occupation of all of the other buildings), would result a number of traffic movements that exceeds the capacity of the existing intersection of Link Road and Epsom Road, causing it to operate unsatisfactorily. This is stated at page 7 as follows: "… it is acknowledged that the traffic generating capacity of the subject DA for Building A is likely to result in a realisation of the requirement for the upgrading of the intersection of Epsom Road and Link Road".
9. This is consistent with the earlier report of Halcrow dated 5 July 2011, which examined the capacity of the existing intersection using SIDRA and incrementally loading traffic to the intersection until it operates with an unsatisfactory level of service. In doing so, the report found that the existing intersection could accommodate an additional capacity of 75 vehicles per hour, which would relate to a total of 160 vehicles per hour (two way) in the morning peak period. Based on an average peak hour traffic generation of 0.44 trips per unit (higher than the 0.19 vehicle trips later used by TSA), the report then concludes that: "…approximately 320 to 360 residential apartments could be developed at the Overland Gardens site without the need to undertake capacity improvement works at the Epsom Road - Link Road intersection. At this level of development and base traffic conditions, the intersection would theoretically operate satisfactorily."
10. As this number exceeds the number of residential apartments in Buildings B, C, D, E, F and H, the Halcrow report shows that there would be an unacceptable traffic impact occasioned by the occupation of all of the buildings unless the intersection is upgraded. Based on this evidence, the issue of an interim occupation certificate allowing occupation of Building A without the intersection having been upgraded to the required standard (or upgraded at all), which is what the proposed modification to condition 28 would enable, could not be described as having a "minimal environmental impact".
11. The individual report and evidence of Mr Brodie in the joint report in these proceedings is not sufficient to contradict this evidence. Although Mr Brodie carried out revised traffic generation estimates and revised modelling of the intersection as a result of the joint conferencing process (Ex 6 Annexure I), Mr McLaren's evidence is that this nevertheless shows long queues from a nearby intersection that will impact the Link Road roundabout. He also opines that the modelling is inadequate for a proper assessment as it does not include the impacts on the operation of the Epsom Road and Rosebery Avenue intersection or the increase in pedestrians. I accept this evidence. The Epsom Road length between the Dalmeny Avenue traffic lights and the Link Road roundabout is 78m, and the intersection of Rosebery Avenue with Epsom Road is around 94m to the east of the Dalmeny Avenue intersection. The evidence of Mr McLaren is that the SIDRA modelling by Mr Brodie (in Ex 6 Annexure I) shows a queue of 124m to the east (for westbound traffic) within Epsom Road extending from the Dalmeny Avenue signals through to the Link Road roundabout, which would queue through the roundabout. His evidence is also that it shows a queue of 186m and 190m (AM and PM peak hours respectively) to the west within Epsom Road from the Dalmeny Avenue signals, which will block the Rosebery Avenue junction. Even though the latter queue commences to the west of the Link Road roundabout, Mr McLaren opines that the absence of the Rosebery Avenue junction from the modelling means that the impact of not upgrading the Link Road roundabout has not been properly assessed in accordance with RMS standards. Additionally, I accept Mr McLaren's evidence that the pedestrian demand generated by the occupation of Building A has not been included in any assessments to date. Further, both Mr McLaren and Mr Wheatley agree that there is a lack of infrastructure for pedestrians and cyclists to cross Epsom Road near the roundabout and therefore a need to upgrade the intersection to meet road safety considerations. I accept their evidence in that respect, which is not contradicted by Mr Brodie.
12. Mr Wheatley also considers that in order to understand the impacts of the proposed amendment to condition 28, there should be an assessment in accordance with RMS guidelines as follows (Ex 6 p 21): "a. Estimate the traffic and pedestrian conditions that are likely to be present at the stages of development of interest, i.e: i. Any Occupation Certificate for Building A ii. Final Occupation Certificate for Building A iii. Full development of all sites A, B, and C. b. Undertake traffic modelling for each of the above stages to determine the likely performance of the intersections for each and to see at which stage the intersection is expected to need upgrading for traffic capacity. c. Review the projected pedestrian volumes against the pedestrian safety warrants for traffic signals to determine at which stage the pedestrian safety warrants for traffic signals are met."
13. I accept that such an assessment would identify the environmental impact of occupying Building A without an upgrade to the intersection, and as the modelling by Mr Brodie does not carry out this assessment and suffers from the inadequacies identified by Mr McLaren, the evidence that is before the Court does not establish that the proposed modification of condition 28 is of minimal environmental impact. Similarly I consider that, in there not being an adequate assessment, there is insufficient information on the extent of the environmental impact of the modified condition 28 when compared to the condition as currently worded, or on the period of time over which that impact might occur, to enable me to be satisfied that there is minimal environmental impact.
14. Further, in determining whether the proposed modification is of minimal environmental impact, no assistance is gained from the existence of an obligation for another developer to upgrade the intersection pursuant to the Dolina VPA and the Reachdaze consent. Other than a demand made on Hifu by the Council's letter of 16 August 2019, there is no evidence of the schedule of intersection upgrade works and when they will actually be completed. The letter of 16 August 2019 does not provide any certainty in that regard. As such, the proposed modification to condition 28 will have the effect of allowing Building A to be occupied prior to the upgrade to the intersection, and the Court must be satisfied that the environmental impact of that can be described as "minimal" to meet what is required by s 4.55(1A)(a). The fact that there exists an outstanding obligation on another developer of a separate site to upgrade the intersection by a specified date does not mean that the proposed modification of the Toplace consent is of minimal environmental impact.
15. I accept the submissions of both TNSW and the Council that the wording of condition 28 contemplates that an obligation for Toplace to carry out the intersection upgrade only arises if those works have not already been carried out when Toplace seeks an occupation certificate. I accept the submissions of the Council that the requirement to submit plans in condition 17 of the concept consent, which were originally required prior to a construction certificate, makes it clear that condition 17 required the beneficiary of the consent to ensure that the intersection works were carried out as part of any stage 2 development consent. I accept their submission that whilst condition 17 does not expressly say that the relevant works must be carried out by the beneficiary of the consent, the effect of the condition is that the obligation must be complied with, whether by the beneficiary of the consent or someone else, prior to the issue of a stage 2 construction certificate (as originally worded) and prior to any occupation certificate for Building A (as currently worded). I accept the Council's position that the developer of the Overland site had the opportunity to include the intersection upgrade as part of any revised public benefit offer that might form the basis for a deed of variation for the Overland VPA. Therefore, I accept the submissions of the Council that it is not correct to say that the intersection upgrade was never to be the responsibility of the developer of the Toplace site, as such an interpretation would be inconsistent with the plain wording of condition 28 of the Toplace consent and condition 17 of the concept consent, would impermissibly require the Court to construe the conditions by reference to extrinsic material beyond the Toplace consent and its terms, does not take into account the possibility that the Reachdaze site might never have been developed, and does not reflect the traffic assessment reports described above, which show that the intersection upgrade would be required to be carried out by the developer of the Toplace site if it was not carried out as part of the Dolina consent. The latter is also made clear in the report to the City of Sydney Planning Committee dated 6 May 2010, which refers to the RTA position and states that the RTA "have further advised that if the 'Dolina' development does not proceed prior to the subject application, there will still be a requirement for the [Epsom Road and Link Road] junction to be upgraded to the standards and specifications that they originally required and not just as an upgraded roundabout". As such, in circumstances where there is insufficient evidence on the extent of the environmental impact of the modification sought to condition 28 and on the duration of that impact, the existence of an outstanding enforceable obligation for another developer to upgrade the intersection is not sufficient to persuade me that the modification is one of minimal environmental impact.
16. For all of these reasons and based on the evidence before the Court, I am not satisfied that the proposed modification is of minimal environmental impact. As such, the requirement of s 4.55(1A)(a) is not met and there is no power to exercise the function to modify the consent pursuant to s 4.55(1A). The appeal must therefore be dismissed and the modification application refused.

The remaining jurisdictional matters

1. The Council and TNSW also contend that the Court lacks the jurisdiction under s 4.55(1A) of the EPA Act because the amendment to condition 28 would result in a development that is not substantially the same as the development the subject of the consent, in contravention of s 4.55(1A)(b). However, I need not consider this contention given that I have found that I am not satisfied with respect to s 4.55(1A)(a).
2. Section 4.24(2) of the EPA Act has also been raised by the Council as a jurisdictional issue. The Council submits that modifying condition 28 in the manner sought would be inconsistent with the concept consent, which would result in a breach of s 4.24(2). In essence, the Council says that s 4.24(2) is therefore a statutory bar to the grant of the modification application. However, as outlined above at [36], a question arises as to whether s 4.24(2) applies to the grant of a modification application. Given that I have not reached the state of satisfaction required by s 4.55(1A)(a), which precludes any power to grant the modification application, there is little utility in consideration of this question and how s 4.24(2) might operate in the context of a modification application.

Outcome of the appeal

1. As I am not satisfied that the proposed modification is of "minimal environmental impact" in accordance with s 4.55(1A)(a), there is no power to exercise the function to modify the consent pursuant to s 4.55(1A). On that basis, there is no utility in considering the submissions made by the parties concerning the merits of the modification application, and the appeal must be dismissed and the application refused.
2. The Court orders that: 1. The appeal is dismissed. 2. The modification application to amend the wording of condition 28 of development consent D/2015/624 concerning 67-77 Epsom Road, Rosebery, is refused. 3. The exhibits are returned, except for Exhibits D and 6. ……………………… J Gray Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2020