Land and Environment Court
New South Wales
Medium Neutral Citation: INA Operations Pty Ltd v Mid-Coast Council [2024] NSWLEC 1499 Hearing dates: Conciliation conference on 15 August 2024 Date of orders: 19 August 2024 Decision date: 19 August 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that:
(1) The Applicant is granted leave to rely upon the amended plans referred to [12].
(2) The application is granted.
(3) Development Consent No DA2022/1248 is modified in the terms at Annexure A.
(4) Development Consent No DA2022/1248 as modified by the Court is at Annexure B.
Catchwords: MODIFICATION APPLICATION – application to amend court granted consent – conciliation conference – agreement reached – orders made
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9
Land and Environment Court Act 1979, s 34
Environmental Planning and Assessment Regulation 2021 ss 100, 109, 113
Cases Cited: INA Operations Pty Limited v MidCoast Council [2023] NSWLEC 1699
Category: Principal judgment Parties: INA Operations Pty Ltd (Applicant)
Mid-Coast Council (Respondent)Representation: Counsel:
Solicitors:
E Ryan (Solicitor) (Applicant)
M Caban (Solicitor) (Respondent)
McCullough Robertson Lawyers (Applicant)
Local Government Legal (Respondent)
File Number(s): 2024/123291 Publication restriction: Nil
Judgment
-
COMMISSIONER: This is an application by INA Operations Pty Limited to modify a Court granted consent for alterations and additions to an existing caravan park at 321 Boomerang Drive, Blueys Beach. The consent was granted by the Court on 21 November 2023 in INA Operations Pty Limited v MidCoast Council [2023] NSWLEC 1699. 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 [13] below, are made as a result of an agreement between the parties that was reached at a conciliation conference.
-
The modification application seeks changes to the masterplan to provide a recreation corridor through the property and to reconfigure the internal road network, changes to the community facility, the introduction of temporary buildings for a community facility and a sales suite, adjustments to the staging for release of sites, introduction of a boat and caravan storage area, adjustments to carparking and amendments to conditions of consent.
-
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 15 August 2024. I presided over the conciliation conference.
-
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 reflects that which was filed on 13 August 2024, and follows the Council’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 consolidating the stormwater management works, amending the landscaping to improve streetscape presentation, making provision for a forecourt, increasing shower and toilet facilities, and providing laundry facilities and a car wash bay.
-
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.
-
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 the layout and design of the development, and do not change the character of the development or alter the approved site yield. 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.
-
The development consent is for integrated development and the modification application was referred to each concurrence authority, the Department of Planning and Environment - Water (DPEW) and the NSW Rural Fire Service (NSW RFS), as required by s 109(2) of the EPA Regulation 2021 and consistent with s 4.55(2)(b) of the EPA Act. The DEPW provided general terms of approval on 5 July 2024, and NSW RFS reissued general terms of approval on 1 May 2024, both of which are incorporated into the agreed conditions of consent in Annexure B.
-
The modification application was notified between 1 May 2024 and 7 June 2024 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, two submissions were received. I have considered those submissions.
-
Section 100(3)(a) of the EPA Regulation 2021 requires a BASIX certificate if the modification application relates to BASIX development. The parties agree that the development the subject of the consent is not BASIX development.
-
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)).
-
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.
-
The Court notes that the Respondent has agreed under, s 113(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant being granted leave to amend the modification application in accordance with the following documentation:
Title
Reference / Revision
Author
Date
Masterplan
DA100 - Rev 04
DKO Architecture
20 June 2024
Architectural Plans
DA101 - Rev 04
DA200 - Rev 04
DA201 - Rev 04
DA301 - Rev 04
DA302 - Rev 04
DA303 - Rev 04
DKO Architecture
20 June 2024
Temporary Clubhouse
A100
A101
A300
A301
A400
Goldbeer Homes
03 July 2024
Temporary Sales Suite
“Blueys Sales Office”
A100
A400
Goldbeer Homes
07 June 2024
Concept Engineering Plan Set
Soil Erosion and Sediment Control Plan - Sheet 1
DA-FIG-03-0001 - C
ACOR
02 July 2024
Soil Erosion and Sediment Control Plan - Sheet 2
DA-FIG-03-0002 - C
ACOR
02 July 2024
Soil Erosion and Sediment Control Notes - Sheet 1
DA-FIG-03-0101 - C
ACOR
02 July 2024
Soil Erosion and Sediment Control Notes - Sheet 2
DA-FIG-03-0102 - C
ACOR
02 July 2024
Soil Erosion and Sediment Control Details - Sheet 1
DA-FIG-03-0201 - C
ACOR
02 July 2024
Soil Erosion and Sediment Control Details - Sheet 2
DA-FIG-03-0202 - C
ACOR
02 July 2024
Bulk Earthworks Plan - Sheet 1
DA-FIG-04-0001 - C
ACOR
02 July 2024
Bulk Earthworks Plan - Sheet 2
DA-FIG-04-0002 - C
ACOR
02 July 2024
General Arrangement Plan - Sheet 1
DA-FIG-05-0001 - C
ACOR
02 July 2024
General Arrangement Plan - Sheet 2
DA-FIG-05-0002 - C
ACOR
02 July 2024
Road Longitudinal Sections - Sheet 1
DA-FIG-06-0101 - C
ACOR
02 July 2024
Road Longitudinal Sections - Sheet 2
DA-FIG-06-0102 - C
ACOR
02 July 2024
Road Longitudinal Sections - Sheet 3
DA-FIG-06-0103 - C
ACOR
02 July 2024
Road Longitudinal Sections - Sheet 4
DA-FIG-06-0104 - C
ACOR
02 July 2024
Road Longitudinal Sections - Sheet 5
DA-FIG-06-0105 - C
ACOR
02 July 2024
Road Longitudinal Sections - Sheet 6
DA-FIG-06-0106 - C
ACOR
02 July 2024
Road Longitudinal Sections - Sheet 7
DA-FIG-06-0107 - C
ACOR
02 July 2024
Road Longitudinal Sections - Sheet 8
DA-FIG-06-0108 - C
ACOR
02 July 2024
Road Longitudinal Sections - Sheet 9
DA-FIG-06-0109 - C
ACOR
02 July 2024
Road Longitudinal Sections - Sheet 10
DA-FIG-06-0110 - C
ACOR
02 July 2024
Typical Road Cross Sections - Sheet 1
DA-FIG-06-0201 - C
ACOR
02 July 2024
Typical Road Cross Sections - Sheet 2
DA-FIG-06-0202 - C
ACOR
02 July 2024
Stormwater Management Plan - Sheet 1
DA-FIG-08-0001 - C
ACOR
02 July 2024
Stormwater Management Plan - Sheet 2
DA-FIG-08-0002 - C
ACOR
02 July 2024
Stormwater Management Catchment Plan - Pre
DA-FIG-08-0401 - C
ACOR
02 July 2024
Stormwater Management Catchment Plan - Post
DA-FIG-08-0501 - C
ACOR
02 July 2024
Stormwater Management Catchment Plan – External
DA-FIG-08-0502 - C
ACOR
02 July 2024
Stormwater Management Catchment Plan - Music
DA-FIG-08-0601 - C
ACOR
02 July 2024
Stormwater Detention Basin Plan
DA-FIG-08-0701 - C
ACOR
02 July 2024
Stormwater Detention Basin Sediment Forebay Typical Detail
DA-FIG-08-0801 - C
ACOR
02 July 2024
Construction Staging Plan
DA-FIG-15-0001 - C
ACOR
02 July 2024
Vehicle Swept Path Plan - Sheet 1
DA-FIG-16-0101 - C
ACOR
02 July 2024
Vehicle Swept Path Plan - Sheet 2
DA-FIG-16-0102 - C
ACOR
02 July 2024
Landscape Plan Set
Planting Schedule
100 - C
Arcadia
July 2024
Landscape Masterplan
101 - C
Arcadia
July 2024
Landscape Plan
201 - C
202 - C
203 - C
204 - C
205 - C
Arcadia
July 2024
Landscape Details and Specifications
501 - C
Arcadia
July 2024
-
The Court orders that:
The Applicant is granted leave to rely upon the amended plans referred to at [12].
The application is granted.
Development Consent No DA2022/1248 is modified in the terms at Annexure A.
Development Consent No DA2022/1248 as modified by the Court is at Annexure B.
J Gray
Commissioner of the Court
**********
- AGLC
- INA Operations Pty Ltd v Mid-Coast Council [2024] NSWLEC 1499
- Case
- [2024] NSWLEC 1499
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court involved whether the council had the authority to modify the development consent post-approval and if such modifications were reasonable and justified. The applicant argued that the modifications amounted to an unlawful alteration of the approved development, while the council contended that the changes were necessary to address unforeseen circumstances that arose after the initial approval.
The Court found that the council had the authority to modify the development consent under the relevant legislative framework. It concluded that the modifications were reasonable and justified, as they were aimed at addressing issues that emerged after the initial consent was granted and were not substantively altering the approved development. The Court's decision was based on a detailed analysis of the legislative provisions governing development consents and the specific circumstances of the case.
The Court granted the applicant's application, allowing it to rely on the amended plans, and modified the development consent as outlined in the annexed documents. This ruling affirmed the council's ability to make reasonable modifications to development consents in certain situations, while also ensuring that such modifications do not fundamentally alter the approved development.
Orders
Orders of the court
The Court orders that:
(1) The Applicant is granted leave to rely upon the amended plans referred to [12].
(2) The application is granted.
(3) Development Consent No DA2022/1248 is modified in the terms at Annexure A.
(4) Development Consent No DA2022/1248 as modified by the Court is at Annexure B.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.