COMMISSIONER: On 20 July 2005 Wingecarribee Shire Council (Council) granted development consent LUA03/2011 (Consent) for bulk water extraction and a storage shed/staff amenities on the land described as Lot 85 DP 751275 and Lot 2 DP 531503 Wombeyan Caves Rd, High Range (Site).
The Site is within Zone RU2 - Rural Landscape under the Wingecarribee Local Environmental Plan 2010.
Condition 5 of the Consent was in the following terms:
"Condition 5:
Hours of Operation / Truck Movements
The hours of operation are limited to between 7:00am and 6:00pm week
days only, with no movements (on) Saturday, Sunday and Public Holidays. To
assist in monitoring this condition the applicant shall maintain a register of
dispatches - date, time, vehicle and volume of water. This register shall
be made available to Council or Government Agencies upon request.
Truck movements during these hours shall be restricted to a maximum of twelve (12) movements per day."
On 21 December 2015, the Council received an application (LUA03/2011.04) to modify condition 5 of the Consent to remove the restriction on permitted vehicle movements and times, so as to allow vehicle movements 24 hours per day, seven days per week. No change was proposed to the limit on daily vehicle movements. On 14 December 2016 the Council resolved to modify the Consent to permit vehicle movements between 6 pm and 7 am on a 12 month trial basis. The modification was approved subject to conditions which limited night time deliveries to one per hour with a maximum of 4 per night. An additional condition was imposed requiring compliance with relevant noise control provisions in the Protection of the Environment Operations Act 1997.
On 26 October 2017, the Applicant lodged a further application (LUA03/2011.05) to modify the Consent to permit 24 hour operation on an ongoing basis. This application was approved by the Council on 10 October 2018, subject to conditions, but again on a trial basis - this time for a period of 3 months.
The modification application the subject of this appeal (LUA03/2011.06) was lodged on 17 December 2018 and seeks to remove the trial period in condition 5 of the Consent to enable night time deliveries associated with the development on a permanent basis. That modification application was approved by the Council on 24 April 2019 but subject to a number of conditions with which the Applicant is dissatisfied. Those conditions permitted 24 hours a day operation only:
1. if and when:
1. the vehicular access from the Site to Wombeyan Caves Rd is upgraded to comply with Austroads Part 4A BAL standards (the access condition); and
2. the Applicant has erected wildlife safety warning signage along Wombeyan Caves Rd (the wildlife condition); and
1. on a trial basis for 2 years from the date the Council provides written confirmation that the access has been upgraded and wildlife safety warning signage has been erected (the trial period condition).
The Council also proposed the amendment of the condition limiting truck deliveries during the night time (condition 5(vi)) to reduce the maximum from 4 to 2.
The Applicant appeals from the conditions imposed by the Council on its grant of approval to the modification application. In its Statement of Facts and Contentions filed on 20 November 2019 (Ex A), the Applicant contends that it would be unreasonable to require compliance with the access condition and the wildlife condition prior to the commencement of 24 hour operation because the Applicant will be required to expend significant costs of approximately $40,000 in carrying out the works yet will obtain only a temporary approval for the 2 year trial period. It also contends that the trial period condition is unreasonable as it has already operated during previous trial periods with no complaints having been made to the Council about its operations. The Applicant also seeks to keep the maximum number of night time truck deliveries at 4.
In its Statement of Facts and Contentions in Reply filed on 21 May 2020 (Ex 1), the Council contended that the imposition of a 2 year trial period was reasonable and appropriate in circumstances in which it says that the Applicant has not demonstrated that the movement of vehicles will not have an adverse impact on acoustic privacy of residences along the haulage route. It also contended that compliance with the access condition was reasonable and necessary to ensure traffic safety and that the wildlife condition was reasonable and appropriate due to the higher likelihood of a collision with nocturnal native fauna during night time operations. Finally, the Council contended that the Applicant had not demonstrated that 4 deliveries (8 truck movements) during the night would not have an adverse impact on the acoustic privacy of residences along the haulage route.
Joint expert reports were prepared by Anton Reisch (for the Applicant) and Matthew McCarthy (for the Council) on traffic, and by Aaron McKenzie (for the Applicant) and Renzo Tonin (for the Council) on acoustics.
The joint expert reports concluded that the impacts of the night deliveries can be managed by the imposition of conditions of consent and that a trial period is not necessary.
Following the filing of the joint expert reports shortly before the hearing of the appeal was due to commence, the Council agreed that all of its contentions had now been addressed and that there was nothing that warranted refusal of the modification application. Nevertheless, in carrying out the functions of the consent authority, the Court is required to consider compliance with the Practice Note - Class 1 Development Appeals, Land and Environment Court of New South Wales (2018) (Practice Note) and to determine for itself whether it is lawful and appropriate to approve the modification application having regard to the whole of the relevant circumstances, including the expert evidence, the submissions made by local residents and the proposed conditions.
For the reasons set out below, I have determined that it is appropriate to approve the modification application.
[2]
Compliance with the Practice Note
In considering the consent orders, the Practice Note, provides at par 99 that:
"Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:
(i) the content of the proposed orders (including the proposed conditions of consent);
(ii) the date of the hearing by the Court to consider making the proposed consent orders; and
(iii) the opportunity for any such person to be heard,
or that, in the circumstances of the case, notification is not necessary."
At the commencement of the hearing, the Court was informed that notice of the hearing had been given to those people who had made submissions on the modification application. Indeed several objectors attended the hearing, which was conducted on Microsoft Teams, as observers. However, the lateness of the Council's decision to support the approval of the modification application meant that the objectors were generally unaware that the Council now supports the approval of the modification application. Accordingly, to ensure compliance with the Practice Note, on 29 July 2021 I made the following directions:
"1. The respondent is to notify each person who made a submission on the modification application of the content of the proposed consent orders (including the proposed conditions of consent) and inform them that, if they wish to do so, they may make a further written submission about those proposed consent orders by Friday 14 August 2021.
2. The respondent is to file and serve on or before 21 August 2021:
(a) an affidavit setting out the steps taken to comply with the requirements of paragraph [99] of the Court's Practice Note for Class 1 Development Appeals; and
(b) a supplementary bundle of documents containing any submissions received by the respondent following the notification referred to in order 1.
3. The parties are to file a joint agreed submission in relation to issues raised by any additional objections received following the notification referred to in order 1 by Friday 28 August 2021.
4. Liberty to apply on 3 days notice."
On 19 August 2021 the Respondent filed the affidavit of Elaine Mee Yeo, a solicitor employed in the office of the Respondent's legal representatives, made on the same date. Ms Yeo deposes that, of the 20 people who had lodged objections to the modification application, one had indicated during the course of the proceedings that he no longer had an interest in the matter and the remaining 19 had been contacted on 30 July 2021 by either email or letter:
1. informing them of the parties' agreement to the Court making consent orders in the proceedings;
2. providing them with a copy of the consent orders and the amended conditions of consent; and
3. inviting them to make a further submission on the modification application by 13 August 2021.
Ms Yeo also deposed that, on the same day, she sent emails to the residents of 460 and 599 Wombeyan Caves Road, High Range in similar terms. These residents did not object to the development, but had been contacted by the parties' representatives in the course of the proceedings for the purpose of carrying out acoustic monitoring at their properties.
As a result of this, the Respondent received three further submissions from local residents. Of these, one expressed disappointment at the Council's decision and one expressed reservations that the proposed conditions will be adhered to but accepted that the conditions are comprehensive and resolved his major concerns. The third submission requested two amendments to the proposed conditions:
1. First, the inclusion of a definition of "movement" and "delivery";
2. Second, an amendment to condition 5(iv) to enable any resident who observes a heavy vehicle associated with the development contravening any of the conditions to be able to report the contravention to the Council for investigation.
In accordance with the directions I made on 29 July 2021, the parties filed joint supplementary written submissions on 27 August 2021 which respond to the additional submissions from the local residents. The parties submit that nothing has been raised, following reasonable notice of the proposed orders to all persons who objected to the modification application, that warrants amendment to the proposed conditions of consent agreed by the parties.
I have decided that the proposed conditions do not need to be amended as proposed by the resident's submission. The first proposed amendment (the inclusion of a definition of "movement" and "delivery") does not arise from the modification application now before the Court and, if there is any ambiguity in the drafting of the existing conditions (about which I express no view) that is not a matter requiring determination by the Court in this appeal. As for the second proposed amendment, the conditions now include a note explaining that, if any person observes a heavy vehicle on Wombeyan Caves Road, which he or she reasonably believes is associated with the carrying out of the development, contravening any of the restrictions and requirements imposed by the conditions, the person may (or "should"):
record the date and time of the contravention and, if possible, the identity of the vehicle or vehicles, and
report the contravention to the operator of the development.
In this way, the proposed conditions allow the operator an opportunity to receive and deal with complaints from members of the public, at least in the first instance, without the need for involvement by the Council. Of course, there is nothing to stop members of the public raising any concerns they might have about the operation of the development directly with the Council (either in addition to, or instead of, the operator). The second proposed amendment to the conditions is not required to enable members of the public to do so.
[3]
Jurisdiction to determine the modification application - subs 4.55(2)(a),(c) and (d) of the EPA Act
Before I can determine the modification application under s 4.55(1), I need to be satisfied about the matters raised by subss 4.55(2)(a), (c) and (d) of the Environmental Planning and Assessment Act 1979 (EPA Act). The section provides relevantly as follows:
4.55 Modification of consents - generally (cf previous s 96)
(2) Other modifications 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 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 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 the period prescribed by the regulations or provided by the development control plan, as the case may be.
…
(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.
Section 4.55(2)(a) requires a comparison to be made between the development as proposed to be modified and the development as originally approved and before any modifications: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16]; Arrage v Inner West Council [2019] NSWLEC 85. The features or components of the development as originally approved must be compared with the development as proposed to be modified to assess whether the modified development remains substantially the same as the development as it was originally approved.
The development as originally approved and before any modifications was a bulk water extraction facility and storage shed/staff amenities with truck movements restricted to be between 7am and 6pm Monday to Friday, with no movements on Saturday, Sunday or public holidays. The development as proposed to be modified remains a bulk water extraction facility and storage shed/staff amenities and truck movements will remain restricted to Monday to Friday with no movements permitted on Saturday, Sunday or public holidays. However, truck movements will no longer be restricted to be between 7am and 6pm. I am satisfied that the development to which consent as modified relates is substantially the same development as the development for which the consent was originally granted. While there will be changes to the hours during which the development can operate, I am satisfied that the essence of the development after modification is essentially and materially the same as that originally approved (Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [173(5)]). I am satisfied in regard to subs 4.55(2)(a) of the EPA Act.
With respect to subs 4.55(2)(c), the application, being one for a modification pursuant to s 4.55(2) of the EPA Act, was required to be notified for 14 days (cl 16, Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017; s 96(2)(c) of the Environmental Planning and Assessment Act 1979, as at 1 January 2018; cl 119 of the Environmental Planning and Assessment Regulation 2000). The modification application was notified between 2 and 30 January 2019, a period that was longer than required by the relevant statutory provisions. I am therefore satisfied that the requirements of subs 4.55(2)(c) of the EPA Act have been met.
With respect to subs 4.55(2)(d), Council received 20 submissions in response to the application. Those submissions relevantly raised issues of traffic safety, noise from night time vehicle movements, death and injury to nocturnal wildlife associated with vehicle movements, and limitations on the road capacity. I accept the parties' joint submission that the substance of the issues raised by these submissions are sufficiently addressed by the joint expert reports and, in turn, by the proposed conditions to be imposed if the modification application is approved.
Accordingly, having reached the requisite state of satisfaction required by s 4.55, I find that there is no jurisdictional impediment to the grant of consent to the application.
[4]
Merit assessment of the proposal in accordance with s 4.55(3)
Section 4.55(3) provides that, in determining a modification application, the consent authority must take into consideration such of the matters referred to in s 4.15(1) as are of relevance to the development the subject of the application. It also provides that the consent authority must take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
As noted previously, the modification application seeks to remove the trial period in condition 5 of the Consent to enable night time deliveries associated with the development on a permanent basis. In terms of s 4.15, the proposed modification gives rise to potential traffic impacts and noise impacts. The joint expert reports filed by the parties concluded that these impacts can be managed by the imposition of conditions of consent and that a trial period is not necessary. I accept that evidence.
The Council approved the modification but subject to conditions which the applicant objects to. The key issue in the appeal therefore concerns the conditions to be imposed if the modification application is approved by the Court. As the parties have now agreed on the conditions they say should be imposed, it is those conditions that should be considered by the Court in determining whether the modification application should be approved.
The conditions sought to be imposed if the modification application is approved may be summarised as follows:
1. A number of conditions are proposed as a consequence of the joint acoustic report (Ex 6) which are intended to reduce the impacts associated with night time heavy vehicle movements.
2. A condition is proposed requiring the site access to the development to be upgraded to provide a Basic Left Turn (BAL) road treatment, designed in accordance with AUSTROADS Guide to Road Design Part 4A: Unsignalised and Signalised Intersections.
3. A condition is proposed requiring the operator of the development, within three months of the grant consent, to erect wildlife warning signage on Wombeyan Caves Road.
I will now consider each of these proposed conditions in turn.
As for the first set of conditions, the joint acoustic report (Ex 6) recommends the imposition of the following conditions:
1. the use of engine compression brakes on Wombeyan Caves Road is prohibited at all times;
2. a speed limit of 50kph for all heavy vehicle movements on Wombeyan Caves Road from 10pm to 7am unless the driver has reasonable cause to believe this poses a safety hazard to the vehicle trailing at the time;
3. all heavy vehicle movements into and out of the Site shall be logged in a Truck Log including date and time, vehicle registration details, driver name and whether inbound or outbound;
4. the proponent shall take all feasible and reasonable measures to minimise heavy vehicle movements in the quietest time of the night (midnight to 4:00am) and demonstrate this commitment in the Truck Log;
5. the proponent shall only select haulage contractors operating trucks that are no more than 10 years old that are regularly maintained in accordance with the manufacturer's specifications.
6. prior to permitting any new truck for use during the night time period (10pm to 7am), the proponent shall engage a suitably qualified and experienced acoustic engineer to undertake noise monitoring of the vehicle to confirm the LAmax(Fast) noise level measured at 30m from the centre line of Wombeyan Caves Road when the vehicle is travelling at 50kph does not exceed the corresponding linear average LAmax(Fast) for the existing fleet by more than 2dB(A). A report shall be prepared containing the measured noise levels and the method of compliance assessment;
7. a driver induction and training program shall be implemented informing heavy vehicle drivers of the limitations above and instructed to minimise night-time noise when travelling on Wombeyan Caves Road (such as from unnecessary engine revving and acceleration except for safety reasons). Records shall be kept of drivers having completed the induction and training program;
8. a contact number shall be displayed at the front entrance to the Site to inform residents of how they may lodge noise complaints. All complaints shall be responded to and action taken to resolve any reasonable complaint. Details of the complaint and the action taken shall be logged;
9. records of all documents required in the conditions above shall be kept for a minimum of 2 years and shall be provided to Council upon request.
I am satisfied that these conditions are reasonable and appropriate to reduce the impacts of the proposed night time operations on local residents.
As for the second condition (which has been agreed to by the Applicant), the traffic experts agreed (Ex 5, par 14) that the proposed condition requiring the upgrading of the development site access "will provide an additional level of safety for all vehicle movements through the Site intersection in the longer term". The Applicant's expert, Mr Reisch, expressed concern in the joint traffic report (Ex 5, par 20) about whether the condition requiring the upgrading of the site access was justified by the proposed modification given that the number of daily traffic movements is not proposed to change. To assist the Court in considering Mr Reisch's concern, the Court heard oral evidence from the traffic experts. Having carefully considered that evidence I accept the oral evidence of the Council's traffic expert, Mr McCarthy, that while the intersection works may not have been justified for the previous trial period due to the cost involved, the risk of a collision occurring as trucks enter and leave the Site is clearly greater at night and the proposed intersection works are therefore warranted for a change to permanent night time operations. I am therefore satisfied that the proposed condition fairly and reasonably relates to the development the subject of the modification application and is a condition that it is appropriate for the Court to impose.
As for the third condition, as noted previously, a number of submissions made with respect to the modification application raised concerns about the impact of night time operations on nocturnal wildlife. This condition responds to those submissions by requiring the operator of the development, within three months of the approval of the modification application, to erect wildlife warning signage on Wombeyan Caves Road "in accordance with all necessary approvals by relevant roads authorities, and at no cost to Council". Again, the Applicant has indicated its agreement to the imposition of this condition. I am satisfied that the proposed condition satisfactorily addresses the concerns raised by the local residents and is a condition that it is appropriate for the Court to impose.
Finally, s 4.55(3) also requires the consent authority to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. The Consent itself does not expressly identify any such reasons. In the context of this modification application, the Consent as originally granted included a condition which limited the hours of operation of the development to between 7:00am and 6:00pm weekdays only, with no movements on Saturdays, Sundays and Public Holidays. While no reason was given by the Council for the imposition of such a condition, I find that the condition was imposed with a view to limiting the traffic and noise impacts of night time operations on local residents. As noted previously, the agreed position of the parties and the evidence of the traffic and acoustic experts, which I accept, is that those impacts can be managed by the imposition of the proposed conditions of consent. In those circumstances I am satisfied that it is appropriate to grant approval to the modification application subject to the conditions which have been agreed between the parties.
[5]
Conclusion
For the reasons outlined, I am satisfied that the modifications proposed by the modification application are acceptable after a merit assessment under s 4.15 of the EPA Act subject to the imposition of the agreed conditions. I have therefore decided to grant consent to the modification application subject to the agreed conditions contained in the Consent Orders filed with the Court on 28 July 2021.
The Court orders that:
1. The appeal is upheld.
2. Application 03/2011.06 pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 to modify the development consent LUA03/2011 granted on 20 July 2006 (as amended by previous modification applications), is modified in accordance with the conditions set out in Annexure A.
3. As a consequence of the modification, the development consent LUA03/2011, is subject to the consolidated, modified conditions of consent set out in Annexure B.
4. The exhibits are returned except for B and 2.
[6]
Acting Commissioner of the Court
Annexure A (154409, pdf)
Annexure B (194130, pdf)
[7]
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Decision last updated: 14 September 2021