COMMISSIONER: This decision relates to the Applicant's modification application DA/484/2011/P (Modification Application) for the modification of development consent DA/484/2011 which was granted by this Court on 12 January 2012 (Consent): Treysten Pty Limited v Hornsby Shire Council [2011] NSWLEC 1364 (Treysten).
The development to which the Consent relates is a seniors living development comprising 76 self-care dwellings and a community centre (Proposed Development) on the land described as Lot 1 DP 1211969 and known as 392 Galston Rd, Galston (Site).
The Site is an "L shaped" lot which has access to both Galston Rd and Mid Dural Rd. Both roads are "metropolitan main roads" within the meaning of the Roads Act 1993. The Proposed Development will have access to them both.
The Modification Application, as originally framed, sought to defer the construction of road intersection works the subject of the Consent from stage 2 to stage 3 and proposed the continued use of an existing unapproved crossing until the final intersection works had been completed.
The Modification Application was lodged directly with the Court pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) on 17 July 2023. An application to the Court under that section is an application in Class 1 of the Court's jurisdiction and the Court has the power to determine the Modification Application in accordance with s 4.55(2) of the EPA Act.
On 19 July 2023 Transport for NSW (TfNSW) was joined in the proceedings as the Second Respondent.
On 8 September 2023 the Applicant obtained what purports to be a partial occupation certificate (Certificate) for Stage 2 of the Development (Reference 220116/01) from Grant Harrington of Private Certifiers Australia. I note that, on 10 October 2023, the Applicant has provided the Respondents with an acknowledgment that the Certificate is invalid and of no effect and gave the Respondents an undertaking:
1. to not act in reliance upon the Certificate; and
2. to not allow, permit or enable any occupation of any part of stage 2 of the Proposed Development in reliance upon the Certificate.
Vigor Master Pty Ltd v Hornsby Shire Council [2023] NSWLEC 1665 | Case summary | Zoe
The proceedings were originally listed for hearing before me on 10, 11 and 12 October 2023. At the commencement of the site inspection on 10 October 2023 the Court was informed that the parties had been in discussions to resolve the dispute between them and, at the parties' request, I adjourned the hearing until 3.45pm that day to enable the parties to continue those discussions. At that time the Court was informed that further time was required to conclude the parties' negotiations and I adjourned the hearing, first until 4.00 pm and then 4.10 pm on 10 October and then until 10 am on 11 October 2023. On that day, the Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act), which commenced on 11 October 2023 and concluded on 1 November 2023. I presided over the conciliation conference.
After the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The parties' final signed agreement was lodged with the Court on 2 November 2023 and involves the Court approving the amendment of the Modification Application in accordance with s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) and modifying the Consent in the following ways:
1. Removal of unauthorised interim access from the Site to Galston Road;
2. Construction of a median island on both Galston Road and Mid Dural Road; and
3. Modification to conditions 3, 18, 20, 44D, 59, 60, 61F, 80, 80A, 81, 82, 90 and 91.
The agreement is supported by an Agreed Jurisdictional Statement provided by the parties on 1 November 2023 which I have had regard to in making my decision.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if it is a decision that the Court could have made in the proper exercise of its functions. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. I am satisfied of this for the following reasons:
1. The Modification Application was made by the Applicant under s 4.55(2) and (8) of the EPA Act. Section 4.55(8) enables the Court to modify a consent granted by it. In this case, the Consent was granted by the Court in Treysten.
2. Section 98(7) of the EPA Regulation provides that a development consent may not be modified by the Court under s 4.55(8) of the EPA Act if a modification application has been made to the consent authority under s 4.56 of the EPA Act and has not been withdrawn. The Court has been informed by the Council that a modification application has not been made to it under s 4.56 of the EPA Act in relation to the modifications to the Consent, the subject of the application made to the Court.
3. The Modification Application was made by the Applicant with the consent of the owner of the land to which the Modification Application relates in accordance with s 98(1)(b) of the EPA Regulation.
4. I am satisfied that the development to which the Consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent was modified, as required by s 4.55(2)(a) of the EPA Act. As noted above, the originally approved development involves a substantial seniors housing development, and I am satisfied that the changes to the road intersection works proposed by the Modification Application will not result in the development to which the Consent as modified relates being substantially different to the development for which consent was originally granted. When compared to the Consent, the Modification Application only proposes removal of the unauthorised driveway and a minor redesign of the road works required on Galston Road and Mid Dural Road. Consequential amendments are then made to the approved conditions, as previously modified. Otherwise, the timing of the road works is in accordance with the Consent as previously amended.
5. Section 4.55(2)(b) of the EPA Act requires the consent authority to consult with the relevant Minister, public authority or approval body in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body. The Modification Application proposes the amendment of conditions that appear to have been imposed at the request of TfNSW. As noted above, TfNSW has been joined as a party to, and has played an active role in, the proceedings. I am satisfied that the requirements of s 4.55(2)(b), to the extent that they are relevant, have therefore been satisfied.
6. The notification requirements of s 4.55(2)(c) of the EPA Act have been met. The Modification Application was notified between 26 July and 16 August 2023 and, as amended, again between 15 and 29 October 2023. No submissions were received by the Council on either occasion. However, four residents of the existing seniors living development gave oral evidence to the Court on 10 October 2023. Some said they had no issues with the existing access arrangements, but one said she thought the right hand turn from the Site was dangerous and thought the proposed left hand turn only would be safer. None of the residents expressed any concern about the proposal to prevent right hand turns into and out of the Site. I am satisfied that those submissions have been taken into consideration as required by s 4.55(2)(d) of the EPA Act.
7. Section 4.55(3) of the EPA Act provides that, in determining an application for the modification of a development consent, the consent authority must take into consideration:
1. such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the Application; and
2. the reasons given by the consent authority for the grant of the consent that is sought to be modified.
1. In relation to s 4.55(3)(a), I am satisfied that, in coming to their agreement, the parties have considered such of the matters specified in s 4.15(1) of the EPA Act as are of relevance to the Proposed Development.
2. In relation to s 4.55(3)(b), I have taken the reasons contained in the decision of the Court in Treysten into consideration. At [12] of the Court's decision in Treysten the Court noted that access from both Mid Dural and Galston Roads would be "restricted to left in/left out" and the modifications to the Proposed Development the subject of the Modification Agreement are intended to achieve this.
As I have concluded that the parties' agreement is a decision that the Court could have made in the proper exercise of its functions, I am required by s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' agreement.
The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.55(3)(a) and 4.15(1) of the EPA Act.
The Court notes that:
1. The Applicant has agreed to pay the Respondents' costs thrown away by the amendment to the modification application, as agreed or as assessed.
2. On 10 October 2023, the Applicant provided a duly executed document to the Respondents stating that it:
1. acknowledges that the partial occupation certificate 220116/01issued by Grant Harrington of Private Certifiers Australia on 8 September 2023 (Partial OC) is invalid and of no effect; and
2. undertakes to the Respondents:
1. to not act in reliance upon the Partial OC; and
2. to not allow, permit or enable any occupation of any part of Stage 2 of the Development in reliance upon the Partial OC.
1. acknowledges that prior to the occupation of Stage 2 of the Development Consent, a new Occupation Certificate must be issued.
[2]
Orders
The Court orders that:
1. In accordance with s 113 of the Environmental Planning and Assessment Regulation 2021, the Court approves the Applicant amending the modification application to rely upon the following amended plans:
DOCUMENT DATE
Drawing No. 5959_RD04_G Issue H Sheet No. 4/8 10 October 2023
Drawing No. 5959_RD05_G Issue H Sheet No. 5/8 10 October 2023
Drawing Reference DET-001 Version A 30 August 2023 (as marked up on 10 October 2023)
[3]
Modification Application DA/484/2011/P is approved and development consent DA/484/2011 granted by the Court on 12 January 2012 in proceedings 2011/10677 is modified in the terms set out in Annexure A.
2. As a consequence of the modification, development consent DA/484/2011 is subject to the consolidated, modified conditions of consent set out in Annexure B.
[4]
Annexure A (287487, pdf)
Annexure B (522661, pdf)
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Decision last updated: 07 November 2023