Koresoft Pty Ltd v Byron Shire Council

[2024] NSWLEC 1540

Land and Environment Court

New South Wales

Medium Neutral Citation:

Koresoft Pty Ltd v Byron Shire Council [2024] NSWLEC 1540

Hearing dates:

Conciliation conference on 15 August 2024

Date of orders:

03 September 2024

Decision date:

03 September 2024

Jurisdiction:

Class 1

Before:

Young AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent No DA 10.2020.574.1 is modified in terms set out in Annexure A.

(3) Development consent No DA 10.2020.574.1, as modified by the Court, is set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – modification of consent for farm stay accommodation – 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

Roads Act 1993, s 138

Rural Fires Act 1997, s 100B

Byron Local Environmental Plan 2014, cl 6.8

Environmental Planning and Assessment Regulation 2021, s 113

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119

Category:

Principal judgment

Parties:

Koresoft Pty Ltd (Applicant)
Byron Shire Council (Respondent)

Representation:

Counsel:
M Young (Solicitor) (Applicant)
P Hudson (Solicitor) (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
Marsdens (Respondent)

File Number(s):

2023/209963

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by Byron Shire Council (the Council) to modify development consent No DA 10.2020.574.1.

2. The modification application seeks to modify the approved development for Farm Stay Accommodation at 219 The Saddle Road Brunswick Heads (the Site) to enable access from Gulgan Road (a Classified Road) and other amendments in relation to vegetation management on the site. The original consent for the development was granted by Council on 14 October 2021.

3. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the parties on 15 August 2024.  I presided over the conciliation conference.

4. 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.

5. This reflects the signed agreement that was submitted on 14 August 2024 following 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 (the Regulation).

6. The signed agreement is supported by a Jurisdictional Note from the parties, that sets out the jurisdictional pre-requisites that must be satisfied before the Court can exercise its functions under s 34(3) of the LEC Act.

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

8. The parties’ decision involves the Court exercising the power under s 4.55(1A) of the EPA Act to modify the development consent No DA 10.2020.574.1 subject to the conditions in Annexure A.

Jurisdictional Prerequisites

9. Based on the Jurisdictional Note, the documents that accompany the Class 1 Application, as amended prior to the conciliation conference, and the documents referred to in Annexure A, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act, as set out below.

10. I am satisfied that owner’s consent accompanied the modification application.

11. In regard to s 4.55(1A)(a) of the EPA Act, I am satisfied that the modification application is of minimal environmental impact as it obviates the need for undertaking roadworks on The Saddle Road and instead is seeking access to the site from Gulgan Road by relying on roadworks that have been approved under another development consent for an Agricultural Produce Industry (DA 10.2019.158.1) on the same property.

12. Furthermore, the amendments relating to vegetation management on the site would not result in any additional environmental impacts as they relate only to the submission of a revised vegetation management plan and removal of various related administrative requirements.

13. In regard to s 4.55(1A)(b) of the EPA Act, I am satisfied that the development (as modified) is substantially the same development for which the consent was originally granted. Apart from allowing access to the site from Gulgan Road, there are no other substantive quantitative or qualitative changes to the approved development including in regard to the built form and the operation of the development.

14. In regard to s 4.55(1A)(c) and (d) of the EPA Act, the modification application was notified by the respondent for 14 days from 31 May 2023 to 14 June 2023. In response to the notification of the application, no submissions were received.

15. Pursuant to s 4.55(3) of the EPA Act, I must consider the relevant matters referred to in s 4.15(1). In relation to this, the parties submit that the modification does not give rise to any additional considerations under s 4.15(1) beyond that which was considered in the original consent, except for the suitability of the proposed access from Gulgan Road to the subject property – see below.

16. Based on the assessment report prepared by the Respondent (dated 31 August 2023) for the purposes of the modification application, together with the Jurisdictional Note and the proposed conditions for the modified consent, I am satisfied that the matters that arise under s 4.15(1) have been satisfactorily taken into account.

17. Furthermore, pursuant to s 4.55(3) of the EPA Act, the parties submit, and I accept, that the proposed modification application does not impact or alter the reasons for the grant of consent to the development as approved under DA 10.2020.574.1, including the conclusion by the Respondent that the development will not have a significant impact on the natural, built, social or economic environment of the locality.

18. Finally, the NSW Rural Fire Service issued an updated Bush Fire Safety Authority on 7 June 2023 containing the General Terms of Approval pursuant to s 100B(3) of the Rural Fires Act 1997, which is incorporated into the conditions in Annexure A.

Access to and from Gulgan Road

19. On 13 August 2024, the Applicant filed an expert report prepared by Mr Allan Evans a civil engineer with Greg Alderson Associates. The evidence of Mr Evans addresses (without limitation) the matters that arise for consideration in regard to the proposed access from Gulgan Road. In particular, cl 6.8(3A) of the Byron Local Environmental Plan 2014 (Byron LEP).

20. It is noted that the requirements of cl 6.8(3A) are similar to those in s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (Infrastructure SEPP):

21. In the Expert Report at par 15, Mr Evans states that he is of the opinion that the requirements of cl 6.8(3A)(a) are satisfied for the following reasons:

“(a)     The closest intersection to the development from The Saddle Road exit is The Saddle Road and Mullumbimby Road, west of the development. This intersection is unsafe due to poor sight distances to the north created by a crest on the northern approach from Mullumbimby. There is consequently a significant risk of a collision between a vehicle turning into or from The Saddle Road and a vehicle proceeding along Mullumbimby Road.

(b)   The Saddle Road is not paved for its entire length. The paving ceases at approximately the point at which access is obtained to the Property. The Saddle Road remains unsealed for a significant portion of its length. In terms traffic safety, it is better that vehicles travel on paved roads rather than unpaved (unsealed) roads.

(c)    The length and condition of that section The Saddle Road that would be needed to enter / exit via the Saddle Rd east, without using the Mullumbimby Rd intersection, means exit via the problem intersection will regularly appear as a preferred option for users due to the practicality issues The Saddle Road east presents. Additionally, the nature of The Saddle Road will easily facilitate u-turns, negating any restrictions that could be placed on property exit direction.”

22. In regard to the roadworks themselves, the intersection between the site and Gulgan Road will be constructed and improved pursuant to the Agricultural Produce Industry development consent No DA 10.2020.574.1 and the works undertaken pursuant to an associated s 138 approval under the Roads Act 1993.

23. Consequently, the concurrence of Transport for NSW (TfNSW) is not required for the proposed modification. Nonetheless, Annexure B to the Expert Report attaches a letter from TfNSW dated 7 June 2023 that responded to the modification application in so far as it sought to vary vehicular access to the subject property. Without limitation that letter states as follows:

“TfNSW has reviewed the referred information and considers that the additional traffic generated by the proposed modified access arrangements is satisfactorily catered for by the proposed intersection treatment at Gulgan Road and concurs to the carrying out of the proposed works.”

24. Having regard to the above, I consider that cl 6.8(3A) of the Byron LEP and the entirety of s 2.119 of the Infrastructure SEPP are satisfied.

Conclusion

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

26. I have considered the jurisdictional prerequisites and I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

27. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

28. The Court notes that Byron Shire Council, as the relevant consent authority, has agreed under s 113(1) of the Environmental Planning and Assessment Regulation 2021 to the Applicant amending Modification Application 10.2020.574.2 in accordance with the plans listed in Annexure A.

Orders

29. The Court orders that:

1. The appeal is upheld.

2. Development consent No DA 10.2020.574.1 is modified in terms set out in Annexure A.

3. Development consent No DA 10.2020.574.1, as modified by the Court, is set out in Annexure B

M Young

Acting Commissioner of the Court

209963.23 Annexure A

209963.23 Annexure B

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Decision last updated: 03 September 2024