Cornish Group No. Six Pty Ltd v Dungog Shire Council

[2022] NSWLEC 1637

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cornish Group No. Six Pty Ltd v Dungog Shire Council [2022] NSWLEC 1637

Hearing dates:

Conciliation conference on 7 November 2022

Date of orders:

16 November 2022

Decision date:

16 November 2022

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Modification Application No. 36/2019/3 to modify Development Consent 36/2019 is approved.

(3) Development Consent 36/2019 is modified in the terms in Annexure A.

(4) As a consequence of order (3), Development Consent 36/2019 is subject to the consolidated modified conditions set out in Annexure B.

Catchwords:

APPEAL – modification application – modification concerning access to an adjacent property – conciliation conference – agreement reached – orders made

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2021, cl 113

Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Cornish Group No. Six Pty Ltd (Applicant)
Dungog Shire Council (Respondent)

Representation:

Counsel:
A Seton (Solicitor) (Applicant)
D Gunter (Solicitor) (Respondent)

Solicitors:
Marsdens Law Group (Applicant)
Spark Helmore (Respondent)

File Number(s):

2022/250654

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This appeal concerns an application to modify a development consent for the staged rural subdivision of land at 734 Gresford Road, Vacy. The modification application was lodged pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act), and seeks to modify the consent by the construction of a driveway providing access to an adjacent lot, together with amendments to the conditions. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the EPA Act. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(1A) of the EPA Act. The final orders in this appeal, outlined in [10] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. 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 7 November 2022. I presided over the conciliation conference.

3. At 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 was acceptable to the parties. The agreement was subsequently filed on 11 November 2022, following the Council’s approval of an application for an amendment to the modification application pursuant to cl 113 of the Environmental Planning and Assessment Regulation 2021.

4. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(1A) of the EPA Act. The signed agreement is supported by a Jurisdictional Note at Annexure C of the agreement, which sets out the matters about which the Court must be satisfied to dispose of the proceedings in accordance with the decision that has been agreed upon by the parties.

5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the proposed modification is of minimal environmental impact, and the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I reach these conclusions for the following reasons:

• The environmental impact of the proposed modification is limited to earthworks to construct the driveway to match the existing surface levels at the property boundary with a compacted base course and spray seal. The driveway is intended to replace an existing track that meanders near to the boundary, which will be closed after the driveway is completed. The land on which the track is located will be rehabilitated with landscaping works, and no trees or significant vegetation are required to be removed to construct the driveway. The parties agree, and I accept, that the environmental impact is negligible.

• Quantitatively, there is no change to the number or size of the proposed lots in the development for which consent was originally granted. Similarly, qualitatively, the proposal results in rural residential lots and roads of the same configuration and layout as originally approved. There is no essential element of the development the subject of the original consent that is being altered by the modification application, and the works required to landscape and rehabilitate the land on which the track is located are matters of detail that do not change any essential physical characteristic of the development. The modified development is therefore substantially the same as that for which consent was originally granted.

6. The modification application was notified by Council between 22 June 2022 and 6 July 2022 in accordance with s 4.55(1A)(c) of the EPA Act. In response to the notification of the application, two submissions were received. I have considered the issues raised in those submissions.

7. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)).

8. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

9. The Court notes that:

1. Dungog Shire Council, as the relevant consent authority has agreed, pursuant to cl 113(1) of the Environmental Planning and Assessment Regulation 2021, to amend Modification Application No. 36/2019/3 in accordance with the amended plans and documents listed below:

Doc No.	Revision No.	Document Title	Prepared By	Dated
Letter setting out amended modification	Minotaur Project Management	07/11/2022
5	D	Staging Plan Drawing No.21-037-CC-C106	IDC	02/11/2022
6	B	Driveway Plan Drawing No.21-037-CC-C810	IDC	02/11/2022

2. The amended modification application documents listed above were lodged on the NSW planning portal on 7 November 2022 and filed with the Court on 8 November 2022.

10. The Court orders that:

1. The appeal is upheld.

2. Modification Application No. 36/2019/3 to modify Development Consent 36/2019 is approved.

3. Development Consent 36/2019 is modified in the terms in Annexure A.

4. As a consequence of order (3), Development Consent 36/2019 is subject to the consolidated modified conditions set out in Annexure B.

……………………….

J Gray

Commissioner of the Court

Annexure A (157557, pdf)

Annexure B (331452, pdf)

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Decision last updated: 16 November 2022