Bruce Kerr Pty Ltd v Central Coast Council

[2021] NSWLEC 1149

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bruce Kerr Pty Ltd v Central Coast Council [2021] NSWLEC 1149

Hearing dates:

7 and 8 December 2020 and 9 February 2021

Date of orders:

24 March 2021

Decision date:

24 March 2021

Jurisdiction:

Class 1

Before:

Espinosa C

Decision:

See orders at [18]

Catchwords:

DEVELOPMENT APPEAL – modification application – classified road – subdivision – new access crossing - BAR Treatment – consent orders – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979 ss 8.9, 4.56

Environmental Planning and Assessment Regulation 2000 cl 119

Texts Cited:

Austroad, Guide to Road Design Part 4: Intersections and Crossings – General (2017)

Practice Note – Class 1 Development Appeals, Land and Environment Court of New South Wales (2018)

Category:

Principal judgment

Parties:

Bruce Kerr Pty Ltd (Applicant)
Central Coast Council (First Respondent)
Transport for NSW (Second Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
J Farrell (First Respondent)
A Hemmings (Second Respondent)

Solicitors:
PJ Donellan (Applicant)
Central Coast Council (First Respondent)
Lindsay Taylor Lawyers (Second Respondent)

File Number(s):

2020/144104

Publication restriction:

No

Judgment

1. COMMISSIONER: This is Class 1 - Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the actual refusal of an application to modify condition 2.3 of development consent DA51983/2017 under s 4.56(1) of the EPA Act, being a consent granted by the Court for an eight lot residential subdivision (the Proposed Modification) at 18-20 Allawa Close Bensville, legally described as Lot y DP 415041(the Site).

2. The original consent was granted by the Court including condition 2.3 which requires Basic Right Turn treatment works in accordance with the Austroads Guide to Road Design Part 4: Intersections and Crossings – General (Sydney 2017) (BAR Treatment) on Empire Bay Drive Bensville. Empire Bay Drive is a classified road and five of the eight lots within the subdivision are proposed to be accessed via Empire Bay Drive, specifically lots 1, 2, 3, 4 and 6.

3. The hearing of the Development Appeal commenced on site and continued via MS Teams. On the second day of the hearing the parties advised the Court that an agreement had been reached following the tender and consideration of the Traffic Joint Expert Report prepared by Craig McLaren, Traffic Engineer/Road Safety Auditor for the Applicant, Michael Bissett, Surveyor for the Applicant and Damien Chee, Traffic Engineer/Road Safety Auditor for the Second Respondent filed 3 December 2020 (Traffic JER) (Exhibit R2(2)). The proceedings were adjourned to allow the parties to prepare and file Consent Orders and to comply with statutory requirements to notify the amended Proposed Modification.

4. It is agreed that Empire Bay Drive is a classified road.

5. Mr McLaren succinctly summarised the issue in this case in the Traffic JER at [3.2.1] as follows:

“Summarily the case relates to a consent condition imposed on the proposed residential subdivision to provide BAR road treatments at each of the three driveways to Empire Bay Drive.”

6. The Applicant’s case is that the condition 2.3 is an overcomplication because of the cost involved and the actual risk outweighed the burden imposed on the Applicant. Road safety is the primary contention raised by the First Respondent in the Statement of Facts and Contentions filed 17 July 2020 (Exhibit R1(2)).

7. Mr Chee expressed the view in the Traffic JER at [3.3.98] that the applicant should only be obliged to address the risks imposed by their development application. He formed this opinion after undertaking an analysis of crash data (with all crash events occurring under existing case with no fully-functioning driveways in place), a review of the warrants for BAR treatments, an analysis of gap availability for right-turn movements through opposing traffic, an analysis of follow-up headway to determine the risk of rear-end crashes should there be a vehicle in front that stops to turn right, and a review of the other passing facilities already in place in the nearby vicinity. (Traffic JER at [3.3.97])

8. Mr Chee provided a number of options including the option which the parties have ultimately adopted in the Consent Orders filed 10 February 2021, being that the right-turn movement from Empire Bay Drive to the property should be banned and supported by NO RIGHT TURN signs as well as physical island/inhibitors to prevent the right turn movements. (Traffic JER at [3.3.102]). The agreed solution is based on Figure A-23 of the Austroads Guide to Road Design Part 4: Intersections and Crossings – General (Sydney 2017) appearing at folio 389 of First Respondent’s Bundle (Exhibit R1(1)) namely the solution labelled “Double right turn ban (reinforce with signs).

Compliance with the Practice Note and Compliance with statutory requirements to notify modification of a Court consent

9. In considering consent orders, the Courts Practice Note – Class 1 Development Appeals, provides at [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.”

10. Clause 119(4) of the Environmental Planning and Assessment Regulation 2000 (the Regulation) provides that if an application to which this clause applies is required by this clause to be notified or advertised, and the development consent was granted by the Court on appeal, the application must be so notified or advertised by the council to which the original development application was made. The Central Coast Council was the Council to which the original development application was made.

11. Clause 119(5) of the Regulation requires that a council in the case of an application under s 4.56 of the EP&A Act, notify the Court of:

(a) the manner in which the application was notified or advertised, and

(b) the minimum public exhibition period required by clause 10 of Schedule 1 to the Act, and

(c) the date (or dates) on which the application was notified or advertised.

12. For the purposes of the Court being satisfied with regard to s 4.56(1)(b)(i),(ii) and (c) & (d) of the EP&A Act and cl 119(5) of the Regulation regarding notification requirements, the First Respondent Council tendered an affidavit of Nicholas Ikners filed 5 February 2021 (Exhibit R1(3)).

13. I am satisfied that the statutory notification requirements have been satisfied and that the First Respondent Council did not receive any submissions during the period in which the Modification Application was notified/advertised.

14. In light of there being no submissions having been received I am also satisfied that the requirements of the Practice Note do not require any further steps to be taken.

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.

15. The First Respondent tendered a Bundle of Documents (Exhibit R1(1)) that included the relevant planning controls and other relevant documents including the Council officer’s assessment report on the s 4.56 Modification Application to Council and Council’s Notice of Determination dated 18 March 2020.

16. The Consent Orders filed 10 February 2021 include at Annexure A the amendments to be effected to the conditions of consent to DA51983/2017 consistent with the agreed option proposed by Mr Chee.

17. I have considered the evidence in the Traffic JER, plans and proposed conditions of consent and for the reasons set out in this judgment I find that it is appropriate and within power to uphold the appeal and to grant consent to modify the development consent DA51983/2017 granted by the Court on 11 September 2018 .

18. The Court orders:

1. The Applicant is granted leave to rely on the following amended plans:

File Ref	Drawing Description	Prepared By	Sheet	Date
14503	Access Driveway Design Plan Lot 6	Bissett & Wright	1 of 3	07/12/2020
14503	Shared Access Design Plan Lots 3 & 4	Bissett & Wright	07/12/2020
14503	Shared Access Design Plan Lots 1 & 2	Bissett & Wright	07/12/2020

2. The appeal is upheld.

3. Modification application no. DA/51983/2017 Part 3 to modify Development Consent No. DA/51983/2017 originally granted by the Land and Environment Court of NSW on 11 September 2018 for an eight (8) lot subdivision of Lot Y in DP 415041 at 18-22 Allawa Close pursuant to section 4.56 of the Environmental Planning and Assessment Act 1979 is approved as set out in Annexure “A” and in accordance with the plans marked Annexure “B”.

4. The Court notes that as a consequence of the modification, Development Consent No. DA/51983/2017 is subject to the consolidated, modified conditions of consent set out in Annexure “C”.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (125710, pdf)

Annexure B (4808679, pdf)

Annexure C (346624, pdf)

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Decision last updated: 24 March 2021