Lendlease Communities (Wilton) Pty Ltd v Wollondilly Shire Council

[2020] NSWLEC 1608

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lendlease Communities (Wilton) Pty Ltd v Wollondilly Shire Council [2020] NSWLEC 1608

Hearing dates:

Conciliation conference on 6 November 2020

Date of orders:

4 December 2020

Decision date:

04 December 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

Proceedings 2019/200833

The Court orders that:

(1)   Leave is granted to the Applicant to rely on the amended plans and documents as set out at Annexure “A”.

(2) The Applicant is ordered to pay the Respondent’s costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3)   The appeal is upheld.

(4)  Development application 641/2018 for the subdivision of land into residential allotments and associated works and infrastructure at Bingara Gorge, Wilton, NSW 2571 on land described as Lot 5 in DP 270536 (Lot 36 in DP270536 and Lot 81 in DP280044), Lot 31 in DP 270536 (Part Lot 33 in DP 270536), Lot 208 in DP 1104390, Lot 207 in DP 1104390 and Lot 206 in DP 1104390 is approved subject to the conditions set out in Annexure “B”.

Proceedings 2019/224408

The Court orders that:

(1)   Leave is granted to the Applicant to rely on the amended plans and documents as set out at Annexure “A”.

(2) The Applicant is ordered to pay the Respondent’s costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(3)   The appeal is upheld.

(4)   Development application 706/2018 for the subdivision of land into residential allotments, residue lots, community association lot, public roads, associated utility provisions and landscaping and associated works and infrastructure at Stirling Drive, Greenbridge Drive and Fairway Drive, Wilton NSW 2571 on land described as Lot 31 in DP 270536 (Part Lot 33 in DP 270536), Lot 26 in DP 270536 (Lot 205 in DP 1104390) and Lot 5 in DP 270536 (Lot 36 in DP 270536) is approved subject to the conditions set out in Annexure “B”.

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders – Staged development – Bingara Gorge Estate – Section 4.24 of the Environmental Planning and AssessmentAct1979 – development application in respect of the site consistent with the consent for the concept proposal

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Interpretation Act 1987

Land and Environment Court Act 1979

Mine Subsidence Compensation Act 1961

Protection of the Environment Administration Act 1991

Rural Fires Act 1997

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55 – Remediation of Land

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Transport Administration Act 1988

Water Management Act 2000

Wollondilly Local Environmental Plan 2011

Cases Cited:

Bay Simmer Pty Ltd v State of New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135

Bilborough v Deputy Commissioner of Taxation (2007) 162 FCR 160; [2007] FCA 773

Director of Public Prosecutions v Yigit (2008) 51 MVR 105; [2008] NSWCA 226

Woolworths Pty Ltd v Lister [2004] NSWCA 292

Texts Cited:

Beyond the Pavement Design Code 2004

Beyond the Pavement RTA Urban Design Policy, Procedures and Design Principles

Environmental Criteria for Road Traffic Noise (EPA 1999

Environmental Noise Management Manual

Noise Mitigation Guideline

NSW Road Noise Policy

Planning for Bushfire Protection 2019

Wollondilly Development Control Plan 2011

Wollondilly Development Control Plan 2016

Category:

Principal judgment

Parties:

Lendlease Communities (Wilton) Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)

Representation:

Counsel:
I Hemmings SC (Applicant)
T Robertson SC (Respondent)

Solicitors:
Addisons (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/200833; 2019/224408

Publication restriction:

Nil

Judgment

1. On 12 November 2020, two related development appeals (Proceedings Nos. 2019/200833 and 2019/224408) were listed before me for a conciliation conference under s 34 of the Land and Environment Court Act1979 (“LEC Act”). At the conciliation, the parties reached agreement as to the terms of a decision in each proceeding that would be acceptable to the parties. Under s 34(3) of the LEC Act, I am required to dispose of the proceedings in accordance with the parties’ decision if that decision is one that the Court could have made in the proper exercise of its functions.

2. The decisions involve the Court exercising the functions under s 4.16(1)(a) of the Environmental Planning and Assessment Act 1979 (“EPA Act”) and the grant of a conditional development consent in each appeal. In order to exercise that power, I must be satisfied that any jurisdictional preconditions have been met. To that end, the parties have filed written submissions addressing the relevant preconditions which they addressed orally during the conference. After a consideration of their joint submissions and the evidence tendered during the conciliation conference (as recorded in the Exhibits List on the Court file), I am content to make the orders sought for the following reasons.

Facts

3. The appeals arise from the respondent’s decision on 18 May 2006 to grant a staged development consent (DA 993-05) for the Bingara Gorge Estate comprising: 1,165 residential lots, a sewage treatment plant and an 8-hole golf course and a golf driving range (“first concept approval”).

4. On 30 August 2016 and 28 September 2016, the Court granted a further approval to development application DA 010.2015.00000283.001 for:

1. increased lot yield for up to 1,800 lots;

2. the removal of vegetation within development precincts 1 Rural, 2 Fairways West, 3 Fairways East, 7 Bushland and 8 Golf Town;

3. the construction of pedestrian paths, cycle ways and fire trails within the Environmental Protection and Recreation Lands (“EP&R Lands”) and the associated removal of a maximum of 1.2 hectares of vegetation; and

4. concept approval for up to 827 residential allotments within the development precincts 1 Rural, 2 Fairways West, 3 Fairways East, 7 Bushland and 8 Golf Town, Wilton resulting in a maximum of 1,800 residential allotments.

(“second concept approval”)

The subject development applications

5. Section 4.24 of the EPA Act requires that while any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development of the site.

6. On 25 October 2018, the applicant, Lendlease Communities (Wilton) Pty Ltd, lodged development application DA641/2018 and development application DA706/2018 (together, the “Development Applications”). The Development Applications, for infill development pursuant to the previous consents, sought approval for:

1. 711 residential lots;

2. 24 residue lots;

3. 3 association property lots;

4. public road dedications, internal local roadways, on-street parking and pedestrian and cycleways;

5. road reserve landscaping, street tree planting and embellishment;

6. fire trails;

7. utility infrastructure;

8. 350m² bio-retention rain garden;

9. boundary treatment with the EP&R Lands; and

10. additional conservation lands.

7. These Development Applications were publicly notified for the following periods:

1. DA 641/2018 (Proceedings 2019/200833)

1. 15 November 2018 – 13 December 2018,

2. 30 May 2019 – 27 June 2019, re-notified due to amendments to the DA,

3. 5 September 2019 – 3 October 2019, re-notified due to an earlier error in the DA materials that included an incorrect Lot and DP reference.

2. DA 706/2018 (Proceedings 2019/224408)

1. 6 December 2018 – 25 January 2019.

8. During the notification period Bradcorp Holdings and Ms Cita Murphy lodged written objections to these Development Applications (Tabs 21 and 22 of the Council’s Bundle). Although, the objection from Bradcorp Holdings was ultimately withdrawn following the filing of amended civil engineering plans for Fairways North Stage 2 prepared by J. Wyndham Prince.

Amended documents

9. On 23 October 2020, the Registrar of the Court granted the applicant leave to amend the Development Applications to include the documents contained within Exhibit “SW-1” to the Affidavit of Suzanne Whitty dated 15 October 2020 (Exhibit B). As the Council formed the view that environmental impact of the amendments was no greater than the Development Applications as lodged, noting a decrease in the lot yield, increased buffer to the EP&R Lands, decreased vegetation removal in the EP&R Lands, and a reduced bushfire impact, it was decided that re-notification of the applications was not required. In this regard, the parties draw my attention to the following provisions:

1. Schedule 1 of the EPA Act specifies at cl 23(2): Re-exhibition is not required if the environmental impact of the development has been reduced or not increased.

2. Council’s Community Participation Plan (“CPP”) gives a discretion to Council as to whether it should re-notify. The CPP states that:

“If a development application is amended prior to being determined, the application will only be re-notified if the environmental impact is deemed by Council to be greater than that of the original development proposal.”

Wollondilly Local Environmental Plan 2011 (“LEP”)

10. Turning now to the LEP I note that the land to which the Development Applications relate is located within the Wilton Growth Area and subject to the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (“Growth Centres SEPP”). Clause 7A of the Growth Centres SEPP provides that the provisions of the LEP are specified for the land within the Bingara Gorge Precinct within the Wilton Growth Area (Council’s Bundle of Documents – Exhibit 3, Tab 3).

Characterisation and permissibility

11. The land is zoned ‘R2 Low Density Residential’ pursuant to the LEP and the proposed development is permissible with consent.

12. The Development Applications (as amended) is for the purposes of a 676-lot community title subdivision with associated works.

13. Relevantly, cl 2.6 of the LEP authorises the subdivision of the land with development consent.

14. I have had regard to the objectives for development for the R2 Low Density Residential zone, as required by cl 2.3(2) of the LEP, and based on the joint planning report (Exhibit 6) am satisfied that the development achieves the stated objectives: to provide for the housing needs of the community within a low-density residential environment and enable other land uses that provide facilities or service to meet the day to day needs of the residents.

Development standards- residential lot size

15. Pursuant to the Lot Size Map referred to in cl 4.1(2) of the LEP, the size of any residential lot resulting from a subdivision of the subject site is not to be less than 250m². The size of all residential lots resulting from the Development Applications (as amended) are greater than 250m².

Urban release area

16. The subject site is identified as part of an urban release area on the Urban Release Area Map.

17. As required by cl 6.1 of the LEP, the Secretary of the Department of Planning and Environment (via their Acting Deputy Secretary, Planning + Design) has certified in writing to the Council that satisfactory arrangements have been made to contribute to the provision of relevant designated State public infrastructure in relation to the lots that would be smaller than the minimum lot size permitted on the land immediately before the land became part of an urban release area as required by cl 6.1(2) of the LEP. (A copy of the relevant certifications is at Tabs 12 and 13 of the Council’s bundle).

Public utility infrastructure

18. Based on the evidence before me, I am satisfied as required by cl 6.2 of the LEP that public utility infrastructure that is essential for the proposed development is available, or that adequate arrangements have been made to make that infrastructure available when it is required as identified in cl 6.2 of the LEP having regard to the drawings at Tabs 16-20 of Exhibit SW-1. In that regard, I note that as required by cl 6.3 of the LEP, a development control plan has been prepared for the land the subject of the Development Applications (Council’s Bundle, Tab 5).

Essential services

19. I am also satisfied having regard to the drawings at Tabs 16-20 of Exhibit SW-1, as required by cl 7.1 of the LEP, that the essential services identified in cl 7.1 of the LEP are available, or that adequate arrangements have been made to make them available when required.

Biodiversity protection

20. The subject site is identified as containing areas of ‘sensitive land’ pursuant to the ‘Natural Resources Biodiversity Map’ referred to in cl 7.2(2) of the LEP and consideration has been given to those matters regarding biodiversity protection required to be considered pursuant to cl 7.2(3) of the LEP.

21. Having considered the conclusions set out in the Joint Ecology Report prepared by Dr Meredith Henderson and Mr David Henry dated 23 October 2020, I am satisfied about that the matters set out in cl 7.2(4) of the LEP are not a reason to refuse the applications.

Water protection

22. The EP&R Lands are identified as ‘sensitive land’ on the Natural Resources – Water Map pursuant to cl 7.3 of the LEP. The Development Applications do not propose any work in the EP&R Lands, or on any other land identified as ‘sensitive land’ pursuant to cl 7.3 of the LEP.

Flood planning

23. The Development Applications are not proposed on land at or below the flood planning level.

Earthworks

24. I have considered the matters required to be considered pursuant to cl 7.5(3) of the LEP regarding earthworks and based on the evidence I am satisfied that those matters are not a basis to refuse consent to the applications.

State Environmental Planning Policy No 55 – Remediation of Land

25. Consideration has been given as to whether the subject site is contaminated as required by cl 7(1) and I am satisfied that the land will be suitable after remediation for the purposes of the proposed subdivision and that the remediation will be carried out before the land is subdivided having regard to the conclusions of the remediation action plan prepared by Geotechnique Pty Ltd dated 12 November 2019 and Council’s draft conditions of consent.

State Environmental Planning Policy (Infrastructure) 2007 (“ISEPP”)

26. Clause 104 of the ISEPP applies to traffic-generating development specified in Column 1 of the Table to Sch 3 to the ISEPP. The proposed development involves the subdivision of land of 200 or more allotments where the subdivision includes the opening of a public road.

27. As required by cl 104(3)(a), the Council gave written notice of the Development Applications to Roads and Maritime Services, now Transport for New South Wales (“RMS”). RMS made submissions in response to that notice that are contained at Tab 15 and Tab 18 of the Council’s Bundle of Documents (Exhibit 3).

28. In respect of DA 641/2018, RMS stated on 12 August 2019 that they were satisfied with the information provided.

29. In respect of DA 706/2018, RMS requested further information on 1 November 2020. On 3 November 2020, RMS gave comments to Council that are attached at Annexure 2.

Integrated development and other referrals

30. The applicant nominated the Development Applications to be treated as ‘integrated development’ applications pursuant to s 4.46 of the EPA Act. The integrated Development Applications nominated a request for integrated approvals pursuant to:

1. Section 15 of the Mine Subsidence Compensation Act 1961;

2. Section 100B of the Rural Fires Act 1997; and

3. Section 91 of the Water Management Act 2000 (only in respect of DA 641/2018).

31. Stamped plans from the Mine Subsidence Advisory are included at Tabs 21 – 25 of Exhibit SW-1.

32. The Development Applications and amended Development Application documents were referred to NSW Rural Fire Service. To date, no general terms of approval have been received. Pursuant to s 39(6) of the LEC Act, the Court has power to determine the Development Applications. Based on the joint report of the parties’ bushfire experts (Exhibit 11) and subject to the proposed conditions in each appeal, I am satisfied that there is no basis to refuse consent to the applications on the ground of bushfire.

33. I also note that the National Resources Access Regulator issued general terms of approval in respect of DA 641/2018 on 18 July 2019. These are at Tab 14 of the Council’s Bundle of Documents (Exhibit 3).

Consistency with Concept Approvals

34. Both ASOFACs identify inconsistencies between the relevant development application and the earlier concept DAs. Section 4.24(2) of the EPA Act provides:

While any consent granted on the determination of a concept development application for a site remains in force, the determination of any further development application in respect of the site cannot be inconsistent with the consent for the concept proposals for the development site.

Subsection (3) makes it clear that this does not prevent the modification “in accordance with this Act” of a consent granted on the determination of a concept development application.

35. The parties have invited me to consider the following observations about these provisions.

36. First, the provision only applies to conflicts between the later consent and the consent for concept proposals for the site. It does not apply to a conflict with the Stage 1 consent, which by definition is not a concept proposal, but detailed proposals for the first stage of development: subss 4.22(2) and (4). Any such consent authorises the work and does not need a further consent: s 4.22(4)(b).

37. Second, the requirement for consistency with an earlier concept DA applies when the later DA is determined. “Determination” is the act of granting or refusing consent: s 4.16(1). “Determine” or “Determination” are used throughout Pt 4 of the EPA Act in this context.

38. Third, subs (3) makes it clear that a concept DA is not set in stone but may be modified in accordance with the EPA Act. There are two common methods for modification of a development consent. It may be modified under s 4.55, but ordinarily the consent authority must be satisfied that it is substantially the same development. A consent may also be modified by a condition of a later consent under s 4.17(1)(b). Subsection (5) then provides that if such a condition is imposed, the consent may be modified “subject to and in accordance with the Regulations”. Clause 97 of the Environmental Planning and Assessment Regulation 2000 requires a notice of modification containing the information set out in cl 97(1) to be delivered to the consent authority, and only upon delivery does it take effect and operate according to its terms to modify the consent to which it relates: cl 97(2). Accordingly, it is clear that this kind of modification does not take effect upon the grant of a consent with a condition under s 4.17(1)(b) but only upon the delivery of the notice of modification, which must necessarily be later than the determination of the consent modifying the earlier consent.

39. Fourth, the consequence is that a concept DA cannot be modified by the s 4.17 route to remove an inconsistency with a later consent, because the inconsistency will subsist when the later consent is determined. However, this constraint does not apply where the consent to the first stage of development is modified to make it consistent with the later consent.

40. There are two inconsistencies identified by the experts and apparent from a comparison of the plans. First, the fire trails have been removed, and replaced (in effect) by perimeter roads. Second, a plan for an acoustic wall fronting the Hume Highway is to be prepared and designed in accordance with Council’s now repealed DCP (Wollondilly Development Control Plan 2011), before subdivision is approved for lots in the vicinity of the Highway (agreed to be within 200m of the Highway). After careful consideration, I have reached the view that s 4.24 is not an impediment to the grant of the current consents because of these provisions in the earlier concept approvals.

Fire Trails

41. In the proceedings before Moore J which produced the second concept approval, the principal issue was whether the edges of the residential development should be protected from fire from the gorge by a perimeter road (and other measures) or a fire trail (and other measures). The fire trail was to be constructed in the EP&R Lands which are environmentally sensitive. Moore J decided against the perimeter road and in favour of the fire trail, as the applicant had submitted. The approved plans show the approximate location of the fire trail, which was also to provide cycleway and walking access.

42. Since that decision, the provision of perimeter roads has become almost obligatory and is regarded as a more effective way of shielding houses from radiant heat than fire trails. Planning for Bushfire Protection 2019 reflects this consensus. Since the Christmas bushfires, compliance with best practice in bushfire risk areas is plainly in the public interest. To implement the agreement of the bushfire experts, the subdivision design had been amended to include perimeter roads, and Council is of the view that the fire trails are therefore unnecessary. Cycleway and walking access can be provided as part of the perimeter road design. This has the added benefit of removing disturbance from the environmentally sensitive lands adjoining the subdivisions.

43. The question then arises whether granting consent to these Development Applications without the fire trails is inconsistent with the second concept DA, which required them. In my view, it is not.

44. The simple reason why that is so is that Moore J did not require the construction of the fire trails in the concept DA. His Honour granted consent to two applications, as he was authorised to do by s 4.22 in an omnibus consent. The first application set out concept proposals for the development of the site: s 4.22(1). The second was for the first stage of development: subss 4.22(2) and (4). The concept proposals for the development of the site was the urban subdivision, and the first stage authorised clearing and trail construction works.

45. Order 2 made by Moore J on 28 September 2016 granted development consent for three matters:

1. the removal of vegetation within development precincts 1 Rural, 2 Fairways West, 3 Fairways East, 7 Bushland and 8 Golf Town;

2. the construction of pedestrian paths, cycleways and fire trails within the EP&R Lands and the associated removal of a maximum 1.2 hectares of vegetation; and

3. concept approval for up to 827 residential allotments within development precincts as above resulting in a maximum of 1,800 residential allotments;

on the subject land subject to the conditions of consent annexed and marked “A”.

46. Moore J granted consent to the concept proposals for the subdivision, but also granted consent to works involving the removal of vegetation and the construction of the fire trails. Paras [40(1)] and [40(2)] are not concept proposals but conventional development consents for work. Subsections 4.22(2) and (4) enable a concept DA to set out detailed proposals “for the first stage of development” in the case of a staged development. Subsection (4) provides that consent to the concept DA authorises the carrying out of development where the concept DA also provided the requisite details of development for that first stage: [40(2)]. That these were two quite different species of development is clear from Bay Simmer Pty Ltd v State of New South Wales (2017) 222 LGERA 286; [2017] NSWCA 135 (Bay Simmer) at [24]-[26] per Basten JA; at [71] per Leeming JA.

47. The confusion arises because although Moore J’s orders separate the consent to the concept proposals from the consent to the first stage of development, the conditions of consent are not so clear on their face. Subsection 4.22(4) provides that the terms of a consent granted on the determination of a concept DA “are to reflect the operation of this subsection”, but some conditions apply to both forms of development.

48. Condition 1(1) is a conventional grant of consent for vegetation removal and construction of the fire trails. Condition 1(2) commences “concept approval is granted” for the residential subdivision, requiring subsequent consents for subdivision in accordance with its terms. Condition 1(3) makes it clear that the consent does not authorise subdivision and that further consent must be obtained. Then condition 1(4) relates back to the conventional Stage 1 development. It provides that development “shall take place in accordance with” the plans and documents referenced including (b) the fire trails.

49. So much is clear. What is liable to confuse is condition 1(5) which imposes a timing requirement for vegetation removal and fire trail construction, but by reference to the grant of later consents for subdivision. Section 4.17(1)(d) enables the condition to limit the period during which development may be carried out. This is such a condition. Works for the removal of vegetation and the construction of fire trails can only be carried out after a later development consent has been granted for subdivision on or adjoining the relevant section of the clearing and fire trail, as the case may be. The purpose of this provision is to ensure sequential development and to prevent over-clearing before the works are necessary as part of the build-out of the subdivision. Although the condition requires the plans for subdivision to show the area to be cleared and the locations where the trail is to be constructed, these are described as the works “approved by this development consent”. That is plainly a reference to the Stage 1 consent, not to the concept proposal. Although the later subdivision consent must comply with the consent to the concept proposal, and in planning for subdivision the fire trails are to be shown nominated on the plans, the location of the trail has already been fixed by the Stage 1 consent and the authority for their construction has been given by that consent, and not by the concept proposals or later subdivision consents based on them.

50. With that in mind, the question under s 4.24(2) is whether the current DAs are inconsistent with the consent for “for the concept proposals” for the development of the site. They are inconsistent with the Stage 1 consent, but the Stage 1 consent does not set out concept proposals, but rather “detailed proposals for the first stage of development”: s 4.22(2). In other words, there is an inconsistency but not a relevant inconsistency. The concept proposals are for urban subdivision, not for work on the adjoining EP&R Lands.

51. It may be argued, however, that condition 1(5) requires the location of the fire trails to be nominated in accordance with the approved development, and these are stipulations for the later development consents for subdivision and therefore part of the concept proposal. That is so, but if the consent which approved the fire trails is modified, then the condition operates on the modified consent, because a modification to a consent becomes part of the consent itself. When condition 1(5) speaks of “any trails… approved by this development consent”, it refers to the consent as modified, if it is modified. And it may be modified under s 4.17 to remove the fire trails, as condition 1(5) does not operate until construction of the trails is about to commence.

52. In any event, condition 1(5) restricts the timing of works. It does not apply to the granting of consent to trail construction (that has already occurred) but to the commencement of carrying out those works. If the consent for doing so is modified before the works are commenced, condition 1(5) therefore applies to the modified consent, and s 4.17(1)(b) can be utilised to alter (or for that matter remove) the obligation to construct the trails. Looking at para 1.5(c) of the condition, if there are no trails to be constructed that are approved by the development consent, there is no requirement for subsequent subdivision applications to nominate any area for their construction. The paragraph does not oblige any trail to be constructed: it only operates where the first stage development consent has imposed an obligation for trails in that location. Once the first stage consent is modified to remove that obligation, para (c) has no application to trails (although it could still apply to the removal of vegetation).

Noise barrier condition

53. Condition 20.6 of the first concept approval consent provides:

“All required noise barriers in the vicinity of the Hume Highway shall be designed in accordance with the requirements of s 6.9.3 of DCP No. 56 – Wilton Parklands. Plans detailing compliance with this requirement must be submitted with any application for subdivision to create lots for residential dwellings within the vicinity of the Hume Highway. All acoustic barriers must be located on privately owned land.”

54. Noise barriers are required because the applicant’s noise consultant has advised that very considerable traffic noise reduction is required: Tab 5, Exhibit SW-1, Atkins letter, 21 September 2020. Absent a noise barrier, mechanical ventilation will be required in lieu of open windows, in some cases with special acoustic treatment: Atkins, pp 259-261. Unfortunately, this report does not predict noise attenuation from erecting barriers, nor does it advise on location, height, materials etc.

55. The noise experts recommended that the consents affected by condition 20.6 should use s 4.17 to modify the concept approval, because it is presently inconsistent with their proposed condition. For the reasons explained above, s 4.17 is not available to remove the source of conflict with a concept proposal. There is no doubt at all that condition 20.6 relates to the concept proposals, because condition 20 of the first concept DA was only for such proposals. The Stage 1 consent conditions (including condition 4.30 for noise barriers) are set out elsewhere in the consent.

56. Moreover, the recommendation in the joint noise report is premised on a mistaken construction of condition 20.6. Para 15 of the report states:

“The experts agree that condition 20.6 is no longer relevant as the DCP No. 56 has been superseded, and since the issue of a concept DA, the SEPP (Infrastructure) 2007 has been introduced and there has been changes in EPA policies in relation to road traffic noise.”

57. Clause 6.9.3 of DCP 56 imposes urban design standards on noise barriers between the subdivision and the highway. It relevantly provides:

“6.9.3 Noise control measures

Noise control is to be achieved by buffer zones, separation distances, earth mounds and landscape treatments or a combination of these.

Building design and building materials for noise attenuation in accordance with relevant Australian Standards are acceptable in achieving noise mitigation provided that these do not compromise compliance with other relevant objectives and controls of this DCP.

Acoustic barriers in the form of walls are not acceptable for mitigation of noise from the Hume Highway and Picton Road.

Walls may be integrated into an acoustic mitigation treatment for noise from the Hume Highway and Picton Road only in exceptional circumstances where it is clearly demonstrated that alternative solutions are not achievable due to physical site constrains. Any wall incorporated into an acoustic mitigation treatment must be of high quality design and visibly obscured such that it is not readily visible in the landscape as viewed from any public place and shall meet all the following criteria:

• be backfilled to the maximum depth possible as certified by a suitably qualified and experienced structural engineer with earth or other medium suitable for supporting long term plant growth

• demonstrated to be 80% screened by established landscaping within two years of construction

• the portion of wall above backfilling shall feature a change of articulation, materials, textures and finishes for at least every 15 metres of length

• be of materials which are non-reflective and varied in texture and colour with all external finishes matching the features of the natural environment (earth, rock and vegetation)

• where landscaping is incorporated in the acoustic mitigation treatment a detailed plan is required which demonstrates the short and long term management requirements to sustain the landscaping in a healthy condition and to a standard which continues to provide the screening required in accordance with this control.

• Comply with all relevant requirements of:

- Environmental Noise Management Manual (RTA)

- Beyond the Pavement Design Guide 2004 (RTA)

- Environmental Criteria for Road Traffic Noise (EPA June 1999)

• All noise mitigation works are to be confined within privately owned land and shall not occur on land owned by Council nor on land owned by the Roads and Traffic Authority.

• Any landscaping associated with acoustic treatments shall be demonstrated to be compatible with bushfire asset protection zones.”

It is not primarily directed to imposing noise standards but to the appearance of any barrier.

58. Furthermore, the reference to outdated noise standards in the DCP, which are incorporated in condition 20.6, must be approached in accordance with s 68(3) of the Interpretation Act 1987. This relevantly provides:

...in any… instrument… a reference to a provision of the repealed… instrument extends to the corresponding provision of the… re-made instrument…

Subsections 68(3)(a) and (b) do not apply, because condition 20.6 does not refer to the DCP as a whole but to a provision of it.

59. Three questions arise. First, whether condition 20.6 is an instrument. Second, whether DCP 56 is also an instrument. Third, whether the three noise standards referred to in clause 6.9.3 of the DCP are also instruments. If the answer is yes in each case, then s 68(3) applies, subject to any contrary intention (s 5(2)).

60. Section 3(1) of the Interpretation Act defines ‘instrument’ to mean an instrument made under an Act, and includes an instrument made under any such instrument. Condition 20.6 forms part of a development consent made under the EPA Act. It is an instrument, as defined. The DCP was made under the EPA Act and is also an instrument. As for the three noise documents referred to in the DCP, they are also instruments for the reasons explained below.

61. The next question is whether s 68(3) applies where the instruments have been repealed. Condition 20.6 has not been repealed, so it continues to be in force. The provision of the DCP was repealed by the 2011 DCP, but it was replaced by an identical provision. The 2011 DCP was repealed by the 2016 DCP (Wollondilly Development Control Plan 2016), but no provision replaced the noise wall standard. On the question of traffic noise, it was silent. Does s 68(3) then apply to it? It can only do so if there is a “corresponding provision” in the re-made instrument.

62. There is no corresponding provision, because the current 2016 DCP contains no provisions relating to noise barriers in this location. Presumably, it was thought unnecessary as the requirements for noise barriers had been incorporated in the first concept DA.

63. In Woolworths Pty Ltd v Lister [2004] NSWCA 292, Handley JA accepted a decision of the NZ Court of Appeal that “corresponding” in a provision such as s 68(3) included a new section dealing with the same subject matter as the old one, in a manner or with a result not so far different from the old as to strain the accepted meaning of the word “corresponding”. Handley JA said:

“Although both provisions may deal with the same subject matter, the new provision may have such a different operation in creating or affecting rights and obligations that it cannot properly be characterised as a corresponding provision.” at [9]

64. The 2016 DCP makes no reference at all to noise attenuation by barriers adjoining the Hume Highway in this location. It is sometimes said that s 68 adopts an “always speaking” approach to legislation and instruments: this is true, but it does not apply where there is only silence. It follows that condition 20.6 incorporates the specific control concerning noise barriers to be found in DCP 56, and not the current DCP, which does not.

65. The noise experts considered, however, that this condition was outdated because it referred to noise standards that applied at the date of granting the first concept DA. First, it should be observed that an expert’s opinion that a condition is outdated if correct, does not detract from the enforceability of the condition. Second, the always speaking approach would apply if the standards were instruments made under an Act, directly or indirectly. If the standards have been replaced by more recent standards, then the DCP control in condition 20.6 would apply to those replacement standards.

66. Clause 6.9.3 of the DCP requires compliance with relevant requirements of the Environmental Noise Management Manual (RTA), Beyond the Pavement Design Code 2004 (RTA) and Environmental Criteria for Road Traffic Noise (EPA 1999).

67. First, Environmental Criteria for Road Traffic Noise (EPA June 1999) was replaced by the NSW Road Noise Policy (RNP): see p 2.3. It was replaced with effect from 1 July 2011. Although the RNP was published by DECCW, the EPA’s website states that “The EPA has developed a NSW Road Noise Policy with other key agencies and industry…”. It notes that the RNP is supported by explanatory provisions: “They explain the main differences between the Policy and the former Environmental Criteria for Road Traffic Noise and how to apply them”. Both the former and current policy are instruments, because they are made under the Protection of the Environment Administration Act 1991. One of the general functions of the EPA is to ensure that the best practicable measures are taken for environmental protection, to coordinate the activities of all public authorities in respect of those measures, to enquire into and report on the efficacy of those measures and to review the regulatory framework for environment protection and to advise the community on environment protection: s 7. Its powers include to publish reports and information on any aspect of environment protection and to formulate and promote plans for environment protection. It is required to develop environmental quality objectives, guidelines and policies to ensure environment protection: ss 8 and 9(1). The RNP and its predecessor were made in the exercise of these powers. They are therefore made under the Protection of the Environment Administration Act and are instruments. Section 68(3) applies to them. Accordingly, the reference in the DCP must be taken to mean the RNP.

68. The second document referred to is the Environmental Noise Management Manual (RTA). The RTA and its successor the RMS enjoyed wide powers under the Transport Administration Act 1988 to establish general standards and principles in connection with the improvement of traffic arrangements, expressed in the widest possible terms: subss 52A(1) and (2). Under these powers, the RMS could adopt standards for road construction, which are set out in the Manual. It is an instrument. In fact, the Manual still exists, but its detailed provisions concerning the need for and design of noise barriers (Practice Notes iv, iv(a) iv(c)) have been replaced by the Noise Mitigation Guideline. It references the Noise Wall Design Guideline, the RNP, the Noise Criteria Guideline and QA specification R271, Design and Construction of Noise Walls. Once again, s 68(3) applies. The Manual has been replaced by the Noise Mitigation Guideline, including the more recent specifications for noise walls referenced in it.

69. The third document in DCP 56 is “Beyond the Pavement Design Guide 2004 (RTA)”. A document of that name was published in 1999. It was updated in 2004 then replaced by Beyond the Pavement RTA Urban Design Policy, Procedures and Design Principles which was published in 2009. In any event the current document is the 2009 edition and as it expressly replaces the earlier guide, it too falls within s 68(3).

64. Occasionally, it is asked whether “instrument” extends to administrative documents such as these policies rather than legislative instruments. In a different context, “instrument” may be restricted to policies having legal force or which affect rights or liabilities: Bilborough v Deputy Commissioner of Taxation (2007) 162 FCR 160; [2007] FCA 773 at [19]. There is no such restriction on its meaning in the Interpretation Act. A document may be an instrument if it had a statutory source, whether or not it had legal consequences. In Director of Public Prosecutions v Yigit (2008) 51 MVR 105; [2008] NSWCA 226, the Court of Appeal decided that an RTA notice suspending a driver’s licence was a non-legislative instrument for the purposes of the Interpretation Act: at [22]-[26] per Basten JA; at [67] per Handley JA. The EPA and RTA policies would fall into this category of instrument.

65. Accordingly, I accept that it follows that the conclusion of the experts that condition 20.6 is out of date because of the references in the DCP to earlier standards is a misunderstanding of the way in which such references are to be read in instruments.

66. On its proper construction, condition 20.6 cannot be set aside by agreement of experts. It is a condition of the first concept approval and, in accordance with the principles discussed above, subsequent consents must be consistent with it: s 4.24(2): Bay Simmer at [16], [18]. The condition can be complied with by providing a plan for the barrier as part of the subdivision applications before the Court, designed in accordance with the criteria in clause 6.9.3 of the DCP. That is all the condition calls for, and it does not require the subdivision approval to seek consent for the construction of the barrier. There is no reason why the subdivision consents cannot impose conditions, as suggested by the noise experts, that the barrier be constructed before the issue of the subdivision certificate.

67. That said, the evidence is that Council’s preference for a mound rather than a wall cannot be implemented because of subsurface cabling in the location where the mound would be constructed adjoining the Hume Highway. Given that circumstance, an exception to the prohibition on noise walls applies, but so too do the design and landscape character requirements of DCP 56. The principal standard being that the wall must be “of high-quality design and visibly obscured such that it is not readily visible in the landscape as viewed from any public place” and I am satisfied that the terms proposed accommodate this opportunity.

68. For the reasons outlined above I can find no jurisdictional impediment to the grant of consent, accordingly s 34(3) of the LEC Act requires me to dispose of the proceedings in accordance with the parties’ decision in each appeal.

Orders

Proceedings 2019/200833

75. The Court orders that:

1. Leave is granted to the Applicant to rely on the amended plans and documents as set out at Annexure “A”.

2. The Applicant is ordered to pay the Respondent’s costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development application 641/2018 for the subdivision of land into residential allotments and associated works and infrastructure at Bingara Gorge, Wilton, NSW 2571 on land described as Lot 5 in DP 270536 (Lot 36 in DP270536 and Lot 81 in DP280044), Lot 31 in DP 270536 (Part Lot 33 in DP 270536), Lot 208 in DP 1104390, Lot 207 in DP 1104390 and Lot 206 in DP 1104390 is approved subject to the conditions set out in Annexure “B”.

Proceedings 2019/224408

76. The Court orders that:

1. Leave is granted to the Applicant to rely on the amended plans and documents as set out at Annexure “A”.

2. The Applicant is ordered to pay the Respondent’s costs thrown away as a result of the amendment to the development application pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

3. The appeal is upheld.

4. Development application 706/2018 for the subdivision of land into residential allotments, residue lots, community association lot, public roads, associated utility provisions and landscaping and associated works and infrastructure at Stirling Drive, Greenbridge Drive and Fairway Drive, Wilton NSW 2571 on land described as Lot 31 in DP 270536 (Part Lot 33 in DP 270536), Lot 26 in DP 270536 (Lot 205 in DP 1104390) and Lot 5 in DP 270536 (Lot 36 in DP 270536) is approved subject to the conditions set out in Annexure “B”.

…………………………….

S Dixon

Senior Commissioner of the Court

Proceedings 2019/200833

Annexure A (101475, pdf)

Annexure B (454334, pdf)

Proceedings 2019/224408

Annexure A (104157, pdf)

Annexure B (425206, pdf)

Decision last updated: 04 December 2020