Australand Residential Edmondson Park Pty Limited as trustee for Australand Residential (Edmondson Park) Trust v The Minister for Planning and Public Spaces

[2020] NSWLEC 1611

Land and Environment Court

New South Wales

Medium Neutral Citation:

Australand Residential Edmondson Park Pty Limited as trustee for Australand Residential (Edmondson Park) Trust v The Minister for Planning and Public Spaces [2020] NSWLEC 1611

Hearing dates:

Conciliation conference on 29 September 2020 and 20 November 2020

Date of orders:

7 December 2020

Decision date:

07 December 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   The application to modify Concept Plan MP 10_0118 (MOD 8) to reduce the car parking rate for 2-bedroom apartments in the Frasers Town Centre Core from 1.2 spaces to 1 space per 2-bedroom apartment is approved, subject to the conditions at annexure “A”. The Court notes that the amended Frasers Town Centre Design Guidelines (referred to at 1.7A of Schedule 2 of annexure “A”) are at annexure “B”.

(3)   No order as to costs.

Catchwords:

MODIFICATION APPLICATION – modification to concept plan – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017

Liverpool Local Environmental Plan 2008

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy (State Significant Precincts) 2005

Cases Cited:

Barrick Australia Ltd v Williams (2009) 168 LGERA 43; [2009] NSWCA 275

Texts Cited:

Apartment Design Guide

NSW Roads and Maritime Services, Guide to Traffic Generating Developments

Category:

Principal judgment

Parties:

Australand Residential Edmondson Park Pty Limited as trustee for Australand Residential (Edmondson Park) Trust (Applicant)
The Minister for Planning and Public Spaces (Respondent)

Representation:

Counsel:
M Staunton (Applicant)
J Farrell (Respondent)

Solicitors:
Corrs Chambers Westgarth (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2020/38830

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings arise following the Minister’s refusal of an application pursuant to s 75W of the Environmental Planning and Assessment Act1979 (EPA Act) for the modification of Concept Plan Approval MP 10_0118 (Original Approval).

The proposal

2. The Original Approval was granted on 18 August 2011 under Div 3 within Pt 3A of the EPA Act and as approved, provided for:

1. concept plan approval pursuant to s 75O for:

1. 3,530 dwellings;

2. development of the Frasers Town Centre (Town Centre) including 35,000-45,000m² of retail, business and commercial floor space; and

3. the upgrade of Campbelltown Road, and

2. approval pursuant to s 75P(1)(c) for certain remediation works which required no further environmental assessment.

3. The Original Approval was then modified on five occasions up to and including Mod 6 on 6 March 2018. The changes approved under the relevant modifications are set out in Table 1 below.

4. Relevantly, Mod 4 approved a significant increase in density of the Original Project.

5. The subject modification request proposes to amend the Fraser Town Centre Design Guidelines (Design Guidelines) introduced as a part of Mod 4 which set minimum car parking rates for different dwelling types within the Town Centre area. The current approved rate for 2-bedroom dwellings under the Design Guidelines is 1.2 car spaces per apartment, and the modification request proposes to reduce this rate to 1 space per 2-bedroom apartment (Proposed Modification).

6. The Environmental Assessment Report (EAR) states that the car parking rate has ‘an impact to the design planning and feasibility’ for the Town Centre. The modification is requested for reasons which include feedback received by the applicant that potential purchasers of 2-bedroom apartments did not require a second car space.

7. The applicant submitted a Transport Statement dated 18 March 2019 with the modification request. The Transport Statement was prepared by Ason Group on behalf of the applicant. The Transport Statement stated:

1. the proposed rates comply with the minimum State set guidelines relating to car parking under the Roads and Maritime Services (RMS) Guide to Traffic Generating Developments (RMS Guide), exceeding that rate by 0.1 car spaces per 2- bedroom unit;

2. the modification request would encourage a shift away from private transport use;

3. one of the original ‘travel demand management’ initiatives of the Original Approval (Mod 4) was to reduce car parking rates; and

4. on-street car parking controls are anticipated in surrounding areas in line with most railway stations and retail centres, which will “limit the opportunity for latent resident parking demands to adversely impact the surrounding area”.

8. The applicant submitted additional information in response to submissions lodged against the modification request, which was accompanied by a Parking Demand Assessment prepared by Ason Group.

9. Representatives of the applicant stated in a meeting held on 24 September 2019 that:

1. the reduced rate for 2-bedroom apartments would lead to an actual reduction of around 60 to 65 car parking spaces in total for the overall development;

2. the overall development of the Town Centre facilitated a lifestyle which did not require high levels of car ownership with retail space, entertainment, food outlets, open space, and schools all within walking distance.

Background

10. The Edmondson Park South Concept Plan Area (Concept Plan Area) is set out at Figure 1 below. The Town Centre is within the Concept Plan Area and is identified at Figures 1 and 2 below.

11. The Concept Plan Area is within South West Growth Area identified in the mid-2000s by the NSW Government for greenfield development to cater for Sydney’s growth. In comparison to Sydney’s inner suburbs, the outer southwestern suburbs are traditionally of a lower housing density, are provided with fewer public transportation options, and hence have higher levels of car dependency and car ownership rates.

12. The Concept Plan Area is located within the Edmondson Park Release Area, which is a part of the South West Growth Area. The Concept Plan Area is located within the Liverpool and Campbelltown LGAs, approximately 8km south west of the Liverpool City Centre, 11km north east of the Campbelltown City Centre and 34km south west of the Sydney CBD. The Concept Plan Area has an area of 413ha and is bounded by the M5 Motorway to the south and east and extends north of the South West Railway Line (see Figure 1).

13. The Town Centre has an area of 26.1ha, and sits between the South West Railway Line and Edmondson Park Railway Station to the north, Bernera Road to the west, and Campbelltown Road to the south-east (see Figure 1 and Figure 2).

14. The Town Centre is located adjacent to the Edmondson Park Rail Station, which is located on the T2 Leppington Line (T2 Line) and the T5 Cumberland Line (T5 Line). The T2 Line provides services to the CBD via Liverpool and Strathfield and the T5 Line provides services to Richmond via Parramatta. Both lines terminate at Leppington, one station to the west.

15. The only railway stations in the South West Growth Area are Edmondson Park and Leppington Rail Stations. They service a wide catchment and attract a large number of commuters who drive and park at the station during the day.

The Statutory Controls

16. The former Pt 3A of the EPA Act applies to the Original Approval (as modified) and the modification request. In particular:

1. the Original Approval is an approval of a concept plan pursuant to Div 3 of the former Pt 3A of the EPA Act; and

2. section 75W is the relevant modification power for the modification request.

17. In relation to savings and transitional provisions, Pt 3A of the EPA Act was repealed on 1 October 2011, with transitional arrangements provided for former Part 3A projects. These transitional arrangements applied until 1 March 2018 (the cut-off date) under the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (ST&OP Regulation). Under Sch 2 of the ST&OP Regulation, Pt 3A continues to apply to concept plans after the cut-off date, and the power to modify concept plans under s 75W arises from Sch 2, cll 3BA(5) and 3C.

18. Clause 3BA(5) of Sch 2 of the ST&OP Regulation provides that modifications to a concept plan may be lodged after the cut-off date if the Minister is satisfied that:

1. (a) the proposed modification is to correct a minor error, misdescription or miscalculation, or

(b) the proposed modification is of minimal environmental impact, or

(c) the project to which the concept plan as modified relates is substantially the same as the project to which the concept plan currently relates (including any modifications previously made under section 75W).

19. The NSW Department of Planning, Industry and Environment (Department) and the NSW Independent Planning Commission (Commission) agree that the modification request is within the scope of cl 3BA(5) of the ST&OP Regulation, being “of minimal environmental impact.” Based on the evidence I accept that to be the fact.

20. The Commission was the consent authority at first instance in respect of the Proposed Modification under the Minister for Planning’s delegation of that function to the Planning Assessment Commission (PAC) by instrument of delegation dated 14 September 2011.

21. The Commission is to be taken to be the same legal entity as the PAC, pursuant to cl 7 of the ST&OP Regulation. Under the Minister’s delegation dated 14 September 2011 the Commission was the consent authority in respect of the modification request because the Department received more than 25 submissions from the public objecting to the modification request.

22. Section 75W allows the applicant to request the Minister to modify the approval for a project. It provides:

(1) In this section:

Minister’s approval means an approval to carry out a project under this Part, and includes an approval of a concept plan.

modification of approval means changing the terms of a Minister’s approval, including:

(a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and

(b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval.

(2) The proponent may request the Minister to modify the Minister’s approval for a project. The Minister’s approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part.

(3) The request for the Minister’s approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.

(4) The Minister may modify the approval (with or without conditions) or disapprove of the modification.

(5) The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court. The Court may determine any such appeal.

(6) Subsection (5) does not apply to a request to modify: (a) an approval granted by or as directed by the Court on appeal, or (b) a determination made by the Minister under Division 3 in connection with the approval of a concept plan.

(7) This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan.

23. The following environmental planning instruments are otherwise of potential relevance to the Project:

1. State Environmental Planning Policy (State Significant Precincts) 2005 (State Significant Precinct SEPP). Relevantly, the Concept Plan Area is listed in Appendix 16 of the State Significant Precinct SEPP. The State Significant Precinct SEPP provides planning controls for the Concept Plan Area;

2. State Environmental Planning Policy (Infrastructure) 2007; and

3. Liverpool Local Environmental Plan 2008 (Liverpool LEP).

Review by Department

24. The modification request was lodged with the Department by the applicant on 23 March 2019. It was placed on public exhibition from 17 June 2019 until 1 May 2019.

25. The Department received a total of 37 submissions which comprised 5 agency submissions and 32 submissions from the public. Of these public submissions, 31 were objections and one was in support of the modification request.

Council’s submissions

26. In its submission dated 10 May 2019, the Council raised concerns with the modification request and stated that the current Design Guideline rates were proposed to manage the future car parking demand that may arise from the Town Centre development.

27. Council contested the use of the RMS Guide rates as it

“may not be appropriate for a town centre development like Frasers Town Centre … due to the classification of the Edmondson Park Town Centre … its geographical location away from major activity centres, high levels of car based destinations in the region more generally and an overall high prevalence of motor vehicle ownership…”.

28. In its submission, Council also:

1. noted a high demand for public parking near the rail station, which may be increased by a reduction in the provision of car parking for 2-bedroom apartments;

2. referenced census 2016 data that indicated approximately 66 per cent of households in Edmondson Park South and Bardia had access to two or more cars;

3. suggested a detailed parking demand assessment would be needed to determine any variation to the existing car parking standards; and

4. acknowledged that ‘the area would benefit from higher public transport use and other alternative modes of travel to reduce the demand for private motor vehicles’ but that this does not reduce the need for an appropriate level of car parking provision to be provided.

Government agency comments

29. No issues were raised with respect to car parking by Campbelltown City Council, Sydney Water, or the NSW RMS (now Transport for NSW).

30. In its submission during the exhibition period, Endeavour Energy commented that it was “not necessarily opposed to the modification…” however acknowledged that the reduction of car parking would encourage:

“increased traffic congestion and reduced availability of parking / access for service vehicles… [r]estricted access to electricity infrastructure by maintenance workers causes delays in power restoration and may have severe consequences in the event of an emergency.”

Department’s Assessment Report (AR)

31. The Department’s AR noted that Council raised concerns with the modification request on the basis of:

1. the Design Guidelines parking requirements are inappropriate;

2. the parking rates in the RMS Guide are inappropriate;

3. the proposal will potentially exacerbate current parking issues;

4. there is a need to evaluate broader planning context such as geographic and socio-economic factors of the LGA; and

5. there is a need for the modification request to include a detailed parking assessment.

32. The applicant provided a Response to Submissions on 6 June 2019.

33. The Department’s AR dated 12 August 2019 concluded that the Proposed Modification was appropriate as, in the opinion of the Department:

1. it is consistent with strategic policies for reducing car dependency and encouraging alternative forms of transport in highly accessible locations;

2. it complies with the minimum car parking requirements prescribed by the Apartment Design Guide and set out in the RMS Guide;

3. it is consistent with car parking rates applied in town centres with similar characteristics; and

4. RMS and Campbelltown Council raised no objections to the proposal.

Review by Commission

34. The Department referred the Proposed Modification to the Commission for determination.

35. In assessing the Proposed Modification, the Commission:

1. met with the Department to discuss the Department’s AR on 24 September 2019;

2. met with the applicant on 20 September 2019;

3. conducted an inspection of the Project site on 23 September 2019;

4. met with the Council on 23 September 2019;

5. conducted a locality tour;

6. held a public meeting on 23 September 2019. No members of the public spoke at that meeting;

7. provided the public with the opportunity to lodge written comments for up to seven days following the public meeting. The Commission received a total of 35 written comments about the Modification Request.

36. In the meeting with Council held on 23 September 2019, the Council:

1. stated that ‘car parking has been an issue for…at least a year or so’ and submitted that the applicant’s comparisons to Fairfield, Rhodes, Liverpool and Cabramatta were not justified given these suburbs all had greater levels of bus access to and from their railway stations compared to Edmondson Park;

2. noted that the only way for many people to access Liverpool LGA’s bus services and train stations was by car, due to few overall transport options. It was submitted that there was a need to consider local context when applying state-wide instruments, and that in this instance the local context of Liverpool demonstrates that state-wide parking instruments are not appropriate;

3. made reference to overarching design issues with regard to the size of streets and how the street design impacts parking. Streets were described as narrow and that overflow parking from residential properties impacted on the ability to move through the development area more broadly; and

4. raised regional car ownership patterns as well as how these may be impacted by changing demographics and economic considerations. Higher car ownership rates in the Liverpool LGA were referenced and that whilst young families who are buying into the suburbs now ‘might only have one or two cars’, the children in these families will grow up, and over time end up owning cars also. Council indicated that this may be exacerbated due to people staying at home for longer due to rising house prices.

Refusal

37. On 8 November 2019, the Commission issued the Refusal of the application supported by a written statement of reasons. These reasons included:

1. an identified issue with existing car parking shortages in the Town Centre and surrounding areas;

2. a finding that the reduction of car spaces would likely exacerbate the existing car parking shortages in the Town Centre and surrounding areas;

3. a finding that the Town Centre is in a formative state and future demands are not yet known; and

4. a finding that the Proposed Modification does not promote the relevant objectives of the EPA Act.

The s 34 conciliation

38. On 6 February 2020, the applicant appealed the Minister’s decision to the Court under s 75W(5) of the EPA Act.

39. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 29 September 2020 and 20 November 2020. I presided over the conciliation conference.

40. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved approving the modification to the Original Approval under s 75W(1) of the EPA Act subject to conditions.

41. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its powers.

42. The parties agree that the Mod 8 Application is within the scope of cl 3BA(5) of Sch 2 of the ST&OP Regulation because the Minister is satisfied that the Mod 8 Application is of minimal environmental impact (cl 3BA(5)(b)).

43. By virtue of cl 3BA(5) and cl 3C of Sch 2 of the ST&OP Regulation, the Mod 8 Application is a modification application under the former s 75W of the EPA Act.

Section 75W requirements

44. The Planning Secretary has not notified the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister under s 75W(3).

45. The only jurisdictional preconditions to the determination of the Mod 8 Application arising from s 75W itself are the making of the request and the consent authority, in this case the Court, being satisfied that the request falls within the scope of the section (see Barrick Australia Ltd v Williams (2009) 168 LGERA 43; [2009] NSWCA 275 at [38]) . The parties agree that the request has been made and that it falls within the scope of s 75W and I am also satisfied of that fact based on the evidence as summarised.

Jurisdiction for appeal

46. The former s 75W(5) of the EPA Act provided a right of appeal for an applicant who was dissatisfied with the determination of a request under s 75W.

47. By operation of cl 8E(4) of Sch 4 of the ST&OP Regulation, any appeal was required to be commenced within three months of the applicant receiving notice of the Commission’s determination of the Mod 8 Application (that is by 8 February 2020, as the Commission determined the Mod 8 Application on 8 November 2019). These Class 1 proceedings were commenced on 6 February 2020, within the prescribed appeal period.

48. Based on the evidence and for the reasons outlined above I am satisfied that the parties’ decision is one that I have power to make in the proper exercise of the Court’s functions. In that circumstance, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision. Therefore, the Court orders that:

1. The appeal is upheld.

2. The application to modify Concept Plan MP 10_0118 (MOD 8) to reduce the car parking rate for 2-bedroom apartments in the Frasers Town Centre Core from 1.2 spaces to 1 space per 2-bedroom apartment is approved, subject to the conditions at annexure “A”. The Court notes that the amended Frasers Town Centre Design Guidelines (referred to at 1.7A of Schedule 2 of annexure “A”) are at annexure “B”.

3. No order as to costs.

………………………….

S Dixon

Senior Commissioner of the Court

Annexure A (145517, pdf)

Annexure B (1495659, pdf)

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Decision last updated: 07 December 2020