Great River NSW Pty Ltd v Secretary, Department of Planning, Housing and Infrastructure

[2024] NSWLEC 1530

Land and Environment Court

New South Wales

Medium Neutral Citation:

Great River NSW Pty Ltd v Secretary, Department of Planning, Housing and Infrastructure [2024] NSWLEC 1530

Hearing dates:

Conciliation conference on 08 May 2024

Date of orders:

29 August 2024

Decision date:

29 August 2024

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1)   The Applicant is granted leave to rely on the Amended Modification Application.

(2)   The application is granted.

(3)   Development consent DA9876 granted by the Land and Environment Court on 31 March 2022 (proceedings 2021/00204069) is modified in the terms set out in Annexure A.

(4)   Development consent DA9876 granted by the Land and Environment Court on 31 March 2022 (proceedings 2021/00204069) is modified by the Court, as set out in Annexure B.

Catchwords:

APPLICATION – modification application concerning court granted consent – conciliation conference – agreement reached

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Regulation 2021, s 113

Cases Cited:

Great River NSW Pty Ltd v Minister for Planning and Public Spaces [2022] NSWLEC 1162

Category:

Principal judgment

Parties:

Great River NSW Pty Ltd (Applicant)
Secretary, Department of Planning, Housing and Infrastructure (Respondent)

Representation:

Counsel:
A Whealy (Solicitor) (Applicant)
M Harker (Respondent)

Solicitors:
Mills Oakley (Applicant)
Department of Planning, Housing and Infrastructure (Respondent)

File Number(s):

2024/59310

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an application by Great River NSW Pty Ltd to modify a Court granted consent for the subdivision of land at 14-98 Old Castlereagh Road, Castlereagh. The consent was granted by the Court on 31 March 2022 in Great River NSW Pty Ltd v Minister for Planning and Public Spaces [2022] NSWLEC 1162. The application is lodged pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act). The final orders on the application, outlined in [11] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.

2. The modification application, as amended and agreed between the parties, seeks to modify the development the subject of the consent by:

• Amending fencing to remove 15.77 metres of fencing at Lot 12 and replace with 1.8 metre-high chainwire fencing; and

• Amending Condition E13 and inserting a new Condition E13A, which results in requiring the road works for a deceleration lane to occur prior to the issue of a subdivision certificate for stage 11.

3. 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 8 May 2024 and continued by Online Court on various occasions. I presided over the conciliation conference.

4. Following 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 filed on 19 August 2024, and follows the Respondent’s approval of an application for an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The amendments include the change to the fencing described above.

5. The decision agreed upon is for the grant of the modification application subject to conditions, pursuant to s 4.55(2) of the EPA Act. The signed agreement is supported by a Jurisdictional Statement, that sets out the jurisdictional pre-requisites that must be satisfied before the Court can exercise its functions under s 34(3). Based on the Jurisdictional Statement, the documents that accompany the Class 1 Application, and the documents referred to in Annexure A, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act.

6. 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 development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. I reach this conclusion because the amendments relate only to matters of detail concerning fencing as well as changing the timing of the construction of a left turn deceleration lane from Stage 9 to Stage 11, and do not change the subdivision layout, the stormwater design, or any other aspect of the development. The fundamental characteristics and essence of the proposed development remain unchanged by the proposed modification, and the changes are not significant when considered quantitatively in the context of the development as a whole.

7. The modification application was notified between 12 and 26 April 2024 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, six submissions were received. I have considered the issues raised in those submissions.

8. 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)).

9. 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.

10. The Court notes that, pursuant to section 113(1) of the Environmental Planning and Assessment Regulation 2021, the applicant applied to the respondent consent authority for an amendment to modification application to DA9876-Mod 5 in accordance with the SK0090-200044-00 (Rev 1) - Lot 12 Fence Plan – prepared by Enspire Solutions Pty Ltd dated 31 July 2024 (Amended Modification Application).

11. The Court orders that:

1. The Applicant is granted leave to rely on the Amended Modification Application.

2. The application is granted.

3. Development consent DA9876 granted by the Land and Environment Court on 31 March 2022 (proceedings 2021/00204069) is modified in the terms set out in Annexure A.

4. Development consent DA9876 granted by the Land and Environment Court on 31 March 2022 (proceedings 2021/00204069) is modified by the Court, as set out in Annexure B.

J Gray

Commissioner of the Court

59310.24 Annexure A

59310.24 Annexure B

**********

Decision last updated: 02 September 2024