Waluya Pty Ltd v Minister for Planning and Public Spaces

Land and Environment Court (NSW)|2024-11-08

The Applicant's submissions

The Applicant submits that while 'bus depot' is not identified as development permitted with consent in the Land Use Table of the Regional SEPP it is a distinct species of 'transport depot' that is permitted when the instruments are read together.
Waluya submits that the proper assessment of whether there is an inconsistency in provisions is identified by Blackshield T and Williams G, Australian Constitutional Law and Theory (Federation Press, 4th ed, 2006), and set out in Hastings at [51], in the following terms: (1) the impossibility of obedience to both laws, as in the case of an obligation combined with a prohibition. (2) The conferral of a power by one law and its removal or diminution by another, and (3) A discernible intention to "cover the field", on the part of the law having paramountcy.
When assessing whether inconsistency exists between the instruments through the lens of the three approaches set out in Hastings, at [51], Waluya submits: 1. Firstly, obedience to both instruments is not impossible. While a bus depot is a kind of transport depot, not all transport depots are bus depots, given the more expansive definition of a transport depot in the Dictionary of the Regional SEPP to embrace uses such as freight, and although a transport depot is prohibited development in the Land Use Table found in the Regional SEPP, uses not nominate as prohibited are permitted. As a bus depot is not prohibited, and is differently described in the Transport SEPP, it may be permitted with consent. 2. Waluya submits the circumstance is analogous to the prohibition in a Land Use Table of a genus such as residential accommodation, but for a particular species of residential accommodation such as shop top housing. In the circumstances of this case, the permitted species is identified by the Land Use Table in another instrument, the Transport SEPP. 3. Secondly, the Transport SEPP confers the power to approve a bus depot in the B6 zone, and there is no express removal of that power by the Regional SEPP, because a bus depot is differently defined to a transport depot. 4. Thirdly, a note to the Land Use Table at Part 5.3 (the Note) of the Regional SEPP makes clear that the Regional SEPP does not purport to "cover the field" of permitted uses. The note relevantly provides: Note - State environmental planning policies, including the following, may be relevant to development on land to which this Chapter applies - … State Environmental Planning Policy (Transport and Infrastructure) 2021, Chapter 2 - relating to infrastructure facilities, including air transport, correction, education, electricity generating works and solar energy systems, health services, ports, railways, roads, waste management and water supply systems 1. The Note identifies Chapter 2 of the Transport SEPP, which includes public transport facilities, bus layovers and bus depots as relevant forms of road infrastructure facilities as defined at s 2.108 in the following terms: road infrastructure facilities includes - … (b) associated public transport facilities for roads used to convey passengers by means of regular bus services, and (c) bus layovers that are integrated or associated with roads (whether or not the roads are used to convey passengers by means of regular bus services), and (d) bus depots, and (e) bus stops and bus shelters, and …

The alternative is argued

Waluya also sets out a position in the alternative, in the event the Court finds the relevant provisions inconsistent, and seeks to identify which instrument prevails over the other.
This is necessary to address because the instruments contain virtually identical provisions as to which prevails in the event of inconsistency.
Both s 2.7 of the Transport SEPP, and s 5.9 of the Regional SEPP state that in the event of an inconsistency between the Chapter in question and another environmental planning instrument, whether made before or after the relevant Chapter, that relevant Chapter prevails to the extent of the inconsistency.
The general rule of construction is that a later instrument, where inconsistent with the earlier instrument, can be assumed to prevail over the earlier instrument. Put another way, a later instrument impliedly repeals the earlier instrument to the extent of an inconsistency.
While the Minister's position is that the Regional SEPP must prevail by virtue of the general rule of construction, Waluya argues there is no need to resort to the general rule of construction, because nothing in the Regional SEPP has impliedly repealed provisions of the Transport SEPP. Instead, there is an absence of express words to support the implication that the earlier Transport SEPP is repealed, altered or derogated (Saraswati).
Instead, road infrastructure facilities such as bus depots are desirable in the B6 zone, as is evident in 'passenger transport facilities' being a permitted use in the zone under the Regional SEPP. Likewise, it cannot be that bus stops, bus shelters and bus layovers - all road infrastructure facilities - are intended to be prohibited in B6 Enterprise Corridor zones, as these zones are generally located on main roads that are suited to such uses.
Finally, Waluya submits that the Note found in the Regional SEPP at [24(4)] is all the evidence needed to demonstrate that the Regional SEPP was prepared with the express expectation that provisions at Ch 2 of the Transport SEPP would continue to affect outcomes within the Land Use Table of the Regional SEPP.
For these reasons, Waluya argues the general rule of construction is rendered void by the effect of the Note and the Transport SEPP must prevail to permit those uses at s 2.112 of the Transport SEPP.

Findings

Where inconsistency is found in environmental planning instruments, paramountcy is to be accorded to one instrument over another (Hastings at [51]), in accordance with the general presumption a s 3.28 of the EPA Act.
However, in the circumstances of this case, the relevant environmental planning instruments are State Environmental Planning Policies with virtually identical provisions.
The relationship of the Transport SEPP to other environmental planning instruments is found, relevantly, at s 2.7(1) of the Transport SEPP: …if there is an inconsistency between this Chapter and any other environmental planning instrument, whether made before or after the commencement of this Chapter, this Chapter prevails to the extent of the inconsistency.
Likewise, the relationship of the Regional SEPP to other environmental planning instruments is found, relevantly, at s 5.9 of the Regional SEPP: In the event of an inconsistency between this Chapter and another environmental planning instrument, whether made before or after this Chapter, this Chapter prevails to the extent of the inconsistency. …
It matters not that Waluya argues the Land Use Table at Part 5.3 of the Regional SEPP is a Land Use Table usually and properly contained within a Local Environmental Plan that would, by virtue of its subordinacy, be prevailed over by provisions of the Transport SEPP. The provisions at the heart of this dispute are found in environmental planning instruments of equal status.
The first question is whether an inconsistency exists between the Regional SEPP and the Transport SEPP. In my view, for the reasons that follow, no inconsistency arises.
Waluya seeks consent for development it characterises as a bus depot, which it submits is a particular and distinct species of facility from that of a transport depot, which is a nominate prohibited use at item 4 of the Land Use Table found in the Regional SEPP. The Land Use Table permits any other development not specified in Item 2 or Item 4 of the Land Use Table.
While not a use nominated at Item 3 of the Land Use Table, there is nothing in the Regional SEPP that precludes operation of the Transport SEPP, and no intention to that effect is implied or would suggest other than the instruments are capable of sensible operation.
Having regard to the character, purpose and other features of the development the subject of the development application, the characterisation affords a subtle distinction from that of a transport depot. It is not used in connection with a shop, passenger or freight transport undertaking as a transport depot may be.
While there is authority to conclude that, if the genus is a nominate prohibited purpose, development for that purpose will be prohibited even if it could also come within one or more species of purposes that are innominate permissible purposes: Botany Bay City Council v Pet Carriers International Pty Limited (2013) 201 LGERA 116; [2013] NSWLEC 147, at [55] (Pet Carriers), the circumstances that give rise to such an authority are distinct from those at play in this case.
The distinction is drawn because it is not argued that the prohibition or proscription in Item 4 of the Land Use Table is set aside because an aspect of the development also falls with a definition or class of activity that is not proscribed.
Instead, it is argued, and I accept, that the instruments are capable of being read together and that when the instruments are so read, development for the purpose of a bus depot is permitted.
The means by which the Transport SEPP is paired is the Note at Part 5.3 of the Regional SEPP. While I acknowledge that s 5.4 of the Regional SEPP cautions that Notes in Ch 5 of the Regional SEPP are provided for guidance, and do not form part of the Chapter, I accept Waluya's construction that this may be the case, except where a Note is to a table it shall be taken to be part of an Act or instrument (s 35(4)(b) of the Interpretation Act).
The Note at Part 5.3 is distinct from those notes that appear, for instance, interspersed with Principal Development Standards at Part 5.5 of the Regional SEPP. The Note that appears after s 5.28(6) merely advises: "When this Chapter was made it did not include all of these zones."
The relevance of the Note is that it invokes Ch 2 of the Transport SEPP that ultimately permits development for the purposes of a bus depot by those provisions at s 2.112 of the Transport SEPP in the B6 zone in which the proposed development is proposed.
I also note the Minister's submissions that Item 3 of the Land Use Table in Ch 5 of the Regional SEPP permits development for the purposes of a passenger transport facility that, notably, excludes reference to a business from the definition. As I understand the Minister's submission, it is a relevant distinction that the proposed development is development proposed in connection with a business undertaking.
However, a passenger transport facility would appear more relevantly distinguished from a bus depot by virtue of the definition of a passenger transport facility as a building or place used for the assembly or dispersal of passengers by any form of transport, including facilities required for parking, manoeuvring, storage or routine servicing of any vehicle that uses the building or place.
As such, a passenger transport facility appears, primarily, to be a building or place for the assembly or dispersal of passengers. That is not a purpose proposed in the development the subject of this development application. The proposal is not for a passenger transport facility. Whether or not the characterisation is for development in connection with a business would appear to matter not when regard is had to the objectives for development in the B6 zone that would seem to encourage development for the purposes of business.
The objectives for development in the B6 zone are as follows: • To promote businesses along main roads and to encourage a mix of compatible uses. • To provide a range of employment uses (including business, office, retail and light industrial uses). • To maintain the economic strength of centres by limiting retailing activity. • To provide for residential uses, but only as part of a mixed use development
I note here that s 5.13 of the Regional SEPP requires regard to be had to those objectives. Waluya submits that the objectives are achieved by the proposed development involving a business along a main road with a mix of compatible uses, and providing a range of employment uses that maintains the economic strength of Gosford City Centre, while omitting retail uses from the proposal.
For the reasons set out above, I find the proposed development to be development permitted with consent, subject to those aspects of merit in dispute between the parties, and subject to matters of jurisdictional fact that must be considered before the Court's power to grant development consent is enlivened.

Traffic

In short, the Respondent contends that the proposed development will have an unacceptable impact on traffic along Racecourse Road.
In considering the particular issues that arise from this contention, the Court was assisted by the evidence of traffic experts who conferred in the preparation of a joint expert report on traffic matters.
Mr Brett Maynard, on behalf of Waluya, and Mr Andrew Morse on behalf of the Minister, conferred in preparation of a joint expert report on traffic engineering filed with the Court on 28 October 2024 (Exhibit 4).
The proposed development is traffic generating development. It is the traffic generated by the development that the Minister contends will unacceptably impact Racecourse Road. In particular, it is the right hand turn into the site by north bound traffic along Racecourse Road that will adversely impact the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips (s 2.122(4)(b)(ii)(A)), and have implications for traffic safety and road congestion.
Northbound vehicles seeking to turn right into the site from Racecourse Road are directed into a right turn only lane to permit onward traffic to continue in a left hand lane.
Two kinds of vehicles are expected to use the right turning lane; buses returning to the depot from whence they came, and cars driven by bus drivers arriving for work.
These vehicles will be seeking access to two driveways; a southern driveway intended for private vehicles, and a northern driveway intended for buses.
The two driveways are separated by around 30m, and Waluya proposes what is described as a combined channelised right lane, said to be appropriate due to the low traffic volumes, the familiarity of users accessing the site, and the low degree of overlap between peak periods on the site and those in the broader road network.
The two driveways also necessitate the relocation of an existing bus zone on the eastern side of Racecourse Road that does not currently comply with the relevant standards required for such a zone.
The fact that the channelised right lane serves both kinds of vehicles and both driveways is a concern of Mr Morse as it may lead to what he describes as 'interaction issues' whereby the drivers of cars following a bus seeking to enter the channelised right lane may make certain assumptions on what the bus is intending.
Buses queuing in the northern portion of the channelised right hand turn lane may block or delay those vehicles seeking to turn right into the southern driveway, or alternatively such an arrangement may also preclude another bus from queuing and so obstruct the northbound passing lane to the left.
Just as buses will seek to access the site by turning right from Racecourse Road, buses also require a right hand turn on exit from the site. In response to concerns held by the Minister that buses exiting the site may engage in unsafe behaviour when delayed, the parties agree such a circumstance can be avoided by restricting such turns to certain hours of the day.
Mr Morse prefers a permanent prohibition on the right turn for buses exiting the depot, while Mr Maynard proposes restrictions during certain periods.
The Operational Management Plan proposes to restrict buses exiting the site to left only turns between the hours of 7am and 6pm, Monday to Friday, regulated by signage to this effect and reflected in the documentation of bus routes issued to drivers.
The experts agree the operation of the northern driveway is acceptable, and that the level of bus activity is appropriately modelled in SIDRA results contained in Attachment B of the joint report. When the proposed turning restriction proposed at [74] is factored into the modelling, the experts also agree that no capacity issues or impacts arise on Racecourse Road.
Mr Morse's concern, as expressed at par 4.56 of the joint expert report, is focused on the potential for driver confusion arising from the channelized right lane.
To remove the risk, Mr Morse recommends one of three alternatives; 1. Firstly, prohibit right hand turn for cars at the southern driveway. 2. Secondly, move the southern driveway somewhere else. 3. Thirdly, merge or combine the driveways.
Mr Maynard's evidence is that the specialised nature of the bus depot and the training of drivers using the site are two reasons that were considered at the time two driveways were devised, and so mitigates against the need to prohibit right hand turns for cars. Next, the southern driveway cannot be moved without compromising the function of the neighbours driveway to the south of the site.
Instead, the risk arising from the channelised right lane is low, when the ordinary slowing of buses and cars migrating in to the channelised right lane is understood on a road with a 50km/h speed zone, and where multiple driveways already exist at which vehicles may be entering or exiting. A vehicle following a bus that is slowing to enter the channelised right lane will simply follow suit, as is commonly the case, until the passing lane to the left is available.
While the Court was not asked to conduct an onsite view, it is clear from the images available in the VIA (folios 72-73) that Racecourse Road is a relatively straight road with a slight rise in topography to the north, and is subject to 50km/h speed limit. A bend to the east is located well to the north of the proposed northern driveway. As such, the road conditions and sightlines available to northbound drivers appears conducive to safety.
The channelised right lane is intended for use by trained drivers who are, by the terms of the Operational Management Plan, to be inducted into the operational requirements of the site, including access arrangements that will also be monitored via CCTV. On this basis, I accept and prefer Mr Maynard's evidence as to the likely operation of access to and from the site, noting the limits proposed on right hand turn movements from buses exiting the site during hours that coincide with daytime operation of Racecourse Road. There is, however, one aspect that I consider related to the operation of the exit of vehicles from the site that is relevant to the operation of the driveways that is not discussed by the traffic experts, arising from application of State Environmental Planning Policy (Industry and Employment) 2021 (Industry SEPP).

State Environmental Planning Policy (Industry and Employment)

Signage is proposed at the entry to the site, as shown in locations marked in the architectural plans prepared by DEM, including building elevations (ar-2612 Rev a03). While not assisted whatsoever by submissions on the matter, s 3.6 of the Industry SEPP development consent is precluded unless the Court, in these circumstances, is satisfied that the signage is consistent with the objectives of Ch 3 of the Industry SEPP, and that the signage proposed satisfies the assessment criteria in Sch 5 of the Industry SEPP.
A detailed explanation of the wayfinding and business identification signage proposed, limited to site access points on Racecourse Road, is set out at pp 20-23 of the Amended SEE. The proposed signage is described as small totem structures within the landscape buffer adjacent to vehicle entry locations. The legend on architectural drawing ar-2612 describes the material and finish of the proposed signage to be a light grey concrete.
However, a plan identified in the index Exhibit B as 'Concept Signage plan' prepared by Stantec (Sheet 1 of 1) dated 1 February 2024 at Tab 20 is, in actual fact, titled 'Channelised Right Turn Lane Concept Layout'. A note to the north of the northern driveway denoting signage does not appear to locate signage. To be clear, the drawing does not appear to match the description in the index to the bundle.
I have tried to locate drawings that would provide a basis for the satisfaction required at s 3.6 of the Industry SEPP. I cannot.
While the assessment of the signage at Table 6 of the Amended SEE against the criteria found in Sch 5 of the Industry SEPP is suggestive of signage that satisfies that the criteria in Sch 5, absent a concept drawing to which consent could be directed, it would appear the Court is unable to reach an informed state of satisfaction as to those matters about which the Court must be satisfied.
I note here that Ch 3 of the Industry SEPP does not regulate the content of signage (s 3.1(2)). It is not signage content that is lacking in the application before the Court, but general dimensions and any other visual description of what can otherwise merely be inferred as small concrete totems.
I also note that the explanation contained in the Amended SEE does not provide an assessment against the objectives at s 3.1(1)(a) of the Industry SEPP.
In such circumstances, the Court would appear to have three avenues available to it. Firstly, to refuse consent. Secondly, to publish a preliminary decision with relevant directions to provide certain material within a time so directed, or thirdly, to grant partial consent, should the Court be so minded, pursuant to s 4.16(4)(b) of the EPA Act.
Mindful of the Court's interests at s 22 of the Land and Environment Court Act 1979 to determine, as far as possible, that all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided, I have concluded that it is appropriate to make directions prior to determining the matter completely and finally.
As the location of the signage appears at the entrance of the driveways, in respect of which contentions as to safety are pressed, I consider the most appropriate way forward is to direct that documents describing the proposed signage be filed and served, with written submissions as to the relevant provisions of the Industry SEPP, and a joint report prepared by the traffic experts as to any safety implications for vehicle movements.

Directions

The Court directs that: 1. Within 14 days, Waluya is to file and serve documents to describe the signage proposed, pursuant to Chapter 3 of State Environmental Planning Policy (Industry and Employment) 2021. 2. Within 21 days, a joint expert report prepared by the traffic experts on any aspect of traffic operation arising from the proposed signage is to be filed with 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: 06 February 2025

The Minister's submissions

The Minister contends that as the proposed development is for the parking and servicing of vehicles in connection with a business undertaking, the proposal is properly characterised as a transport depot.
The Land Use Table in the Regional SEPP prohibits development for such a purpose.
However, the Transport SEPP permits development for the purpose of a bus depot, and the Minister submits that the two clauses are incapable of concurrent operation and inconsistency arises between them (see Hastings Point Progress Association Inc v Tweed Shire Council (2009) 168 LGERA 99; [2009] NSWCA 285, at [5]-[9]) that can only be resolved by applying the principles of statutory interpretation.
A Transport depot is defined in the Dictionary of the Regional SEPP as follows: transport depot means a building or place used for the parking or servicing of motor powered or motor drawn vehicles used in connection with a business, industry, shop or passenger or freight transport undertaking.
A bus depot is defined at s 2.108 of the Transport SEPP as follows: bus depot means premises used for the servicing, repair, garaging or parking of buses.
The Minister argues that the Regional SEPP prevails over the provisions of the Transport SEPP for two primary reasons: 1. Firstly, because the Regional SEPP contains provisions that were formerly contained in the State Environmental Planning Policy (Gosford City Centre) 2018, while the provisions of the Transport SEPP are transferred from the State Environmental Planning Policy (Infrastructure) 2007. The transfer of provisions does not affect the operation or meaning of the provision (s 30A(2) Interpretation Act 1987) and, applying the general rule of construction, the later instrument is assumed to apply. 2. Secondly because the provisions of Ch 5 of the Regional SEPP are particular to the Gosford City Council area, unlike the wider state application of the Transport SEPP. As such, the relevant provisions of the Regional SEPP are confined to a specifically limited geographic area, with a far more restricted and specific compass (Universal Property Group Pty Ltd v Blacktown City Council [2019] NSWLEC 179 at [34]).

(2013) 201 LGERA 116

At a glance

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Judgment (7 paragraphs)

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Cases Cited (7)