Stevens Holdings Pty Limited trading as Stevens Group v Newcastle City Council (No 2) - [2020] NSWLEC 1287

Land and Environment Court

New South Wales

Medium Neutral Citation: Stevens Holdings Pty Limited trading as Stevens Group v Newcastle City Council (No 2) [2020] NSWLEC 1287
Hearing dates: 12-13 February 2020, 3 March 2020 and 2 June 2020
Date of orders: 03 July 2020
Decision date: 03 July 2020
Jurisdiction: Class 1
Before: Horton C
Decision:
The Court orders that:
(1) The Applicant is granted leave to rely upon amended plans and other documents at Exhibits E, G and K.
(2) The appeal is dismissed.
(3) Development consent for Development Application No. DA2018/00714 for a ‘one into 200 lot Torrens title subdivision constructed in eight stages, inclusive of vegetation clearing, creek rehabilitation works, earthworks, drainage works, roads, services and landscaping’ on land at 198 Lenaghans Drive, Black Hill is refused.
(4) The exhibits are returned except for Exhibits E, G and K.

Catchwords:
DEVELOPMENT APPEAL – Concept Plan Approval pursuant to Part 3A – Transitional Part 3A – whether application is generally consistent – subdivision of land – traffic and transport impact assessment - likely environmental impacts of the development

Legislation Cited:
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017
Land and Environment Court Act 1979
Newcastle Local Environmental Plan 2012
Roads Act 1993
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy (State and Regional Development) 2011
State Environmental Planning Policy No 44—Koala Habitat Protection
Uniform Civil Procedures Rules 2005

Cases Cited:
Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86
Pittwater Council v Minister for Planning (2011) 184 LGERA 419; [2011] NSWLEC 162
Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58
Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396
Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20; [2008] NSWLEC 185

Texts Cited:
Greater Newcastle Metropolitan Plan 2036

Category: Principal judgment
Parties: Stevens Holdings Pty Ltd trading as Stevens Group (Applicant)
Newcastle City Council (First Respondent)
Roads and Maritime Services (Second Respondent)
Representation:
Counsel:
A Galasso SC with E Tringali (Applicant)
F Berglund (First Respondent)
S Nash and A Hemmings (2 June 2020) (Second Respondent)
Solicitors:
DWF (Australia) (Applicant)
Newcastle City Council (First Respondent)
Corrs Chambers Westgarth (Second Respondent)

File Number(s): 2018/377424
Publication restriction: No

Judgment

COMMISSIONER: Just outside of the city of Newcastle, north of Sydney, the M1 Pacific Motorway intersects with John Renshaw Drive and Weakleys Drive. To the south west of this intersection is an area of land referred to as the Emerging Black Hill Precinct. Stevens Holdings Pty Limited, trading as the Stevens Group (the Applicant), seeks consent for development that is the subject of this is an appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act), following the deemed refusal by Newcastle City Council (First Respondent) of Development Application No. DA2018/00714 for a ‘one into 200 lot Torrens title subdivision constructed in eight stages, inclusive of vegetation clearing, creek rehabilitation works, earthworks, drainage works, roads, services and landscaping’ (the proposed development) on land at 198 Lenaghans Drive, Black Hill (the site).
The M1 Pacific Motorway is a declared Motorway, and a declared Controlled Access Road. John Renshaw Drive is also a declared Controlled Access Road by Government Gazette. Together they form part of the National Land Transport Network and the State road network.
The development the subject of the development application proposes uses comprising, when complete, gross floor area in the order of 425,320m². These uses will generate traffic. It is the volume of traffic generated, and the likely impact of that traffic on the road network in the vicinity that is at the heart of the dispute between the parties.

The site and its context

The site is located on the southwest corner of the intersection of the Pacific Motorway (M1) and John Renshaw Drive (B68) at Beresfield, with an area of approximately 183 hectares and being legally described as Lot 30 in Deposited Plan 870411, and Lot 4 in Deposited Plan 847676 for the purposes of access roads, associated infrastructure, landscaping and signposting.
The site is bisected by Viney Creek which runs south to north, and is densely vegetated with predominantly Dry Schlerophyll Forest, isolated clearings and land within easements for overhead electricity that traverse the western and northern parts of the site.
The northern boundary of the site is separated from John Renshaw Drive by land owned by Hunter Water Corporation, in which the Chichester Pipeline is located.
To the west of the site, a development is proposed on Lot 1131 in Deposited Plan 1057179, known as the Broaden site, and which, along with the subject site, forms the Emerging Black Hill Precinct (EBHP).
While the two sites within the EBHP immediately adjoin, the Broaden site is located in the Cessnock City Council local government area, and is the subject of a development application that is yet to be determined.

Evolution of the appeal

In accordance with its usual practice, 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 2 July 2019, and at which I presided.
A number of public submissions were heard at the commencement of the conciliation proceedings on 2 July 2019, and written submissions are contained in Exhibit 5. Submissions objecting to the proposed development are found at folios 1660-1678. Submissions in support of the proposed development are found at folios 1679-1687.
As resolution was not reached, the conciliation conference was terminated on 2 October 2019. However, the parties subsequently consented to me hearing the matter.
In October 2019, Roads and Maritime Services (RMS) joined the proceedings, pursuant to s 64 of the LEC Act, as the Second Respondent. The Second Respondent’s Statement of Facts and Contentions is marked Exhibit 7.
As the Second Respondent has been known by a number of different titles prior to, and during the proceedings, it is relevant to state here that the following are all taken to refer to the Second Respondent:

Roads and Traffic Authority (RTA)

Roads and Maritime Services (RMS)

Transport for NSW (TfNSW)

As I had previously had the opportunity to view the site on 2 July 2019, the matter commenced at Court.
On the first day of the hearing, the Applicant sought leave of the Court, unopposed by the Respondents, to amend the application by relying upon amended engineering plans and reports, and other documents that were marked Exhibit E.
The Applicant also sought leave of the Court, unopposed by the Respondents, to amend the application by relying upon an amended staging plan that was marked Exhibit G.

The issues

The issues in dispute originate from a Concept Plan approval granted by the NSW Planning and Assessment Commission (PAC) on 19 November 2013 of Concept Plan Application No. 10_0093 (the Concept Plan).
The PAC determined, relevantly:

“(a) to approve the concept plan referred to in Schedule 1, subject to the terms of approval and modifications in Schedule 2,

(b) under section 75P(2)(c) of the EP&A Act, where development is subject to Part 4 of the Act (other than complying development), that development is subject to further environmental assessment requirements specified in Schedule 2, Part D of this approval.

…

(d) under section 75P(1)(b) of the Act, development the subject of the Concept Plan is subject to Part 4 or Part 5 of the Act, whichever is applicable.

The modification and further assessment requirements are required to:

Encourage the orderly future development of the site; and

Ensure adequate mitigation of environmental impacts of future development.”

It is helpful to state here that the application for Concept Plan approval was made by the then owner of the site, Coal & Allied Industries Limited (Coal & Allied) on whose behalf a number of reports were prepared to satisfy Environmental Assessment Requirements, also referred to as Director General’s Requirements, in accordance with Part 3A of the EPA Act.
Those reports include a Traffic and Transport Report prepared by Hyder dated October 2010, (Exhibit 5, folios 167-229) that the Second Respondent submits is relevant in considering the study area, horizon year and offsite road upgrades that were assumed at the time the application was made by Coal & Allied.
The Development Application now before the Court proposes to amend the location of the site access from that shown in the original Concept Plan application, as well as the proposed staging sequence and the lot layout.
The Applicant proposes site access at two locations along John Renshaw Drive, to the north of the site. Where it is necessary to refer to only one of those intersections, I will distinguish them as follows:

the signalised intersection, which provides the western access, or

the left in/left out intersection, which provides the eastern access.

In broad terms, the particular focus on the signalised intersection is that, unlike the left in/left out intersection that may allow traffic to ‘go with the flow’ of through-traffic on John Renshaw Drive, the operation of the signalised intersection may impose delays on the traffic seeking through-access on John Renshaw Drive, and traffic generated by the subject site and the adjoining Broaden site.
Those delays may result in queuing, with the potential to impose further impacts across a nationally-significant road network that may be addressed by undertaking what is described as offsite road upgrades.
The background facts of the matter and the contentions identified by the First Respondent are set out in the Statement of Facts and Contentions filed with the Court on 1 February 2019 (Exhibit 1), and the Amended Statement of Facts and Contentions filed with the Court on 22 July 2019 (Exhibit 2) which I am told should be read together. Following amendment to the application, the remaining contentions may be summarised as follows:

The development is not generally consistent with the terms of the Concept Plan approval as required by cl 3B(2)(d) of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (Transitional Regulation).

The indicative lot layout is considered unsatisfactory and is not generally consistent with the Concept Plan approval.

The revised traffic and transport impact assessment was not prepared in the manner required by, and so is not generally consistent with, Schedule 2, Part D Condition 1.15.

The location of the western-most intersection with John Renshaw Drive, and other road infrastructure constructions or upgrades has not been determined.

On 5 November 2019 the Second Respondent filed a Statement of Facts and Contentions marked Exhibit 7 containing two contentions that may be summarised as follows:

The Development Application does not adequately assess the traffic and transport impacts of the Development on the surrounding National, State and regional road network.

The Development Application does not adequately demonstrate that the location and design of the two proposed site accesses would accommodate traffic from all stages of the development, and so the application does not conform to Condition 1.15 or Condition 1.16 of the Concept Plan approval.

Condition 1.15 of the Concept Plan approval is in the following terms:

“Any subdivision application must include a revised traffic and transport impact assessment that:

a) has been prepared in consultation with Council and RMS;

b) details traffic generation from each stage of the development;

c) demonstrates that the site access would accommodate traffic from all stages of the development, and if required, provide details of alternative access arrangements that may be required;

d) intersection analysis and micro simulation modelling including detail of any offsite road upgrades that would be required to accommodate the proposal.”

Condition 1.16 of the Concept Plan approval provides:

“The first subdivision application for the site must include detailed design for a signal controlled intersection at the western access to the site on John Renshaw Drive that has been prepared in accordance with RMS requirements.”

In written submissions the Second Respondent particularises the grounds on which the Court should refuse the application in the following terms:

No consultation with the First or Second Respondent in preparing a Traffic and Transport Impact Assessment (TTIA).

An inappropriately limited study area.

An assessment of traffic impacts over a time period the Second Respondent considers to be unrealistic, and absent of modelling to address the impacts and consequences of delays in the release of stages of development on offsite road upgrades.

No assessment of traffic generation from each stage of the development or of impacts on the surrounding road network to inform the proposed offsite road upgrades.

An inadequate micro-simulation model that incorporates errors and has not been the subject of base case model calibration and validation.

The use of SIDRA modelling as the primary traffic impact assessment tool, rather than incorporating its results into a micro-simulation model to prove the proposed site access arrangements and offsite road upgrades will work with the surrounding road network.

No assessment of the impacts or consequences of potential delays in the approval or delivery of the M1 to Raymond Terrace Link project by 2029 which the Applicant relies upon to alleviate the nature of offsite road upgrades required to mitigate the impacts of the proposal on the National and State road network.

Expert evidence

As the issues in dispute relate, primarily, to traffic considerations and secondarily, to the lot layout and staging now proposed, the Court was assisted by evidence from the following experts:

For the applicant: Mr Tim Rogers (traffic), and Mr Andrew Brown (engineering, town planning) and Ms Lin Armstrong (town planning).

For the First Respondent: Mr Dipen Nathwani (traffic) and Mr Brian Cameron (town planning).

For the Second Respondent: Mr Alen Krljic (traffic and planning).

In their joint report, marked Exhibit 3, the town planning experts substantially agreed on the issues in dispute but concurred that the resolution of the indicative lot layout was dependent on traffic-related matters.
However, in his oral evidence, Mr Cameron accepted that his remaining concerns had been resolved by changes in the lot layout shown in Exhibit G or, in relation to the proximity of works required by the signalised intersection to the Chichester Pipeline, could be satisfied by a condition of consent.
The traffic experts prepared individual expert reports, and conferred in order to prepare a joint expert report. These reports are marked as follows:

Statement of Evidence prepared by Mr Rogers (Exhibit D).

Statement of Evidence prepared by Mr Krjlic (Exhibit 8).

Joint expert report prepared by Mr Rogers and Mr Krjlic (Exhibit 6).

Supplementary joint expert traffic report (Exhibit 12)

On the second day of the hearing, the Applicant tendered the results of further SIDRA modelling (Exhibit K) that I understand from Mr Rogers includes a greater proportion of heavy vehicles in the morning and afternoon peak periods, and assumes full development of the Broaden site and the Stevens site in the year 2044.
In summary, the results of the modelling in Exhibit K suggest that the level of service provided by the signalised intersection as currently proposed by the Applicant is considered satisfactory in the morning peak period, but that during the afternoon peak period, the signalised intersection fails to provide a satisfactory level of service, and so Mr Rogers has shown an additional lane at the intersection.
According to Mr Rogers, if not for traffic generated by the adjoining Broaden site, the intersection would continue to provide a satisfactory level of service in the form that it appears in the application before the Court.

Objections to evidence

At the commencement of the hearing, Mr Nash, counsel for the Second Respondent, objected to evidence contained in the Expert Report prepared by Mr Rogers, later marked Exhibit D, and in the Joint Traffic Expert Report, marked Exhibit 6 on two grounds:

Firstly, that Mr Rogers had relied on discussions undertaken, and documents prepared in the course of, the s 34 conciliation conference which is inadmissible by operation of s 34(11) of the LEC Act.

Secondly, that Mr Rogers relied on micro-simulation modelling undertaken by SCT Consulting who are not expert witnesses in these proceedings, were not bound by the expert witness code of conduct in the Uniform Civil Procedures Rules 2005 and had not participated in joint conferencing.

After a short adjournment to consider the objections set out by the Second Respondent, I determined that:

Firstly, the provisions of s 34(11) of the LEC Act preclude the admission of discussions and documents without the consent of parties, and as consent had not been granted, I directed that those aspects of Exhibit D that sought to rely upon the content of discussions and documents prepared in the course of the conciliation conference be redacted, and were not read.

Secondly, in relation to the modelling undertaken by SCT Consulting, I am comfortable that it was completed under the direction of Mr Rogers and is within his expertise to interpret and explain. Furthermore, I consider the preparation of the micro-simulation modelling to be analogous to material that may be prepared for, and not by, a planner or ecologist such as Geographic Information Systems (GIS) modelling or mapping.

Notwithstanding my finding at [38(1)], it is relevant to record here that the substance of the Second Respondent’s objections is in respect of the degree of discussion or consultation between the parties, which is also the subject of contentions relating to Condition 1.15(a).
Furthermore, as observed by Ms Berglund, counsel for the First Respondent, ‘the breach runs through the evidence’. For example, the First Respondent’s Statement of Facts and Contentions (Exhibit 2) sets out certain dates on which interactions between the parties is said to have occurred. Mr Nathwani’s expert traffic report (Exhibit 4) also contains numerous references to the content of ‘without prejudice’ discussions held during the Court-annexed s34 conciliation conference that were agreed to be struck.
Consistent with my finding at [38(1)], it is my intention to consider evidence of the fact that parties interacted during the period in which s34 conciliation conferencing from 2 July 2019 - 2 October 2019, but to exclude the content of the same from any consideration.

Planning framework

The Concept Plan approval was granted by the PAC on 19 November 2013, pursuant to Part 3A of the EPA Act in accordance with a delegation from the Minister for Planning and Infrastructure dated 14 September 2011.
Part 3A of the EPA Act was subsequently repealed on 1 October 2011 and an assessment of impacts of the development must be in accordance with the provisions of the Transitional Regulation.
Clause 2 of Schedule 2 to the Transitional Regulation sets out the provisions relevant to Transitional Part 3A projects in the following terms:

2 Transitional Part 3A projects

(1) The following are, subject to this Schedule, transitional Part 3A projects—

(a)  an approved project (whether approved before or after the repeal of Part 3A),
(b)  a project that is the subject of an approved concept plan (whether approved before or after the repeal of Part 3A),
(c)  a project for which environmental assessment requirements for approval to carry out the project, or for approval of a concept plan for the project, were last notified or adopted within 2 years before the relevant Part 3A repeal date (unless the environmental assessment is not duly submitted on or before 30 November 2012 or on or before such later day as the Secretary may allow by notice in writing to the proponent),
(d)  a project for which an environmental assessment (whether for approval to carry out the project or for approval of a concept plan for the project) was duly submitted before the relevant Part 3A repeal date.

(2) Environmental assessment requirements referred to in subclause (1)(c) do not include environmental assessment requirements determined under section 75P(1)(a).

(3) If the environmental assessment requirements referred to in subclause (1)(c) are expressed to expire at a particular time, those requirements continue and do not expire at that time.

(4) A part of a project is a transitional Part 3A project if that part of the project meets the criteria under this clause for a transitional Part 3A project even though the whole project does not meet those criteria.

(5) A transitional Part 3A project extends to the project as varied by changes to the Part 3A project or concept plan application, to the concept plan approval or to the project approval, whether made before or after the repeal of Part 3A.

(6) Development is not a transitional Part 3A project if it ceased to be a project to which Part 3A applies before the repeal of Part 3A or if it ceases to be such a project after that repeal in accordance with the provisions of or continued by this Schedule.

Clause 3B of Schedule 2 contains provisions related to development the subject of a concept plan approval, and provides relevantly:

3B Provisions applying with respect to approval of concept plans

(1) This clause applies to development (other than an approved project) for which a concept plan has been approved under Part 3A, before or after the repeal of Part 3A, and so applies whether or not the project or any stage of the project is or was a transitional Part 3A project.

(2) After the repeal of Part 3A, the following provisions apply to any such development (whether or not a determination was made under section 75P(1)(b) when the concept plan was approved)—

(a) if Part 4 applies to the carrying out of the development, the development is taken to be development that may be carried out with development consent under Part 4 (despite anything to the contrary in an environmental planning instrument),
…
(d) a consent authority must not grant consent under Part 4 for the development unless it is satisfied that the development is generally consistent with the terms of the approval of the concept plan,
(e) a consent authority may grant consent under Part 4 for the development without complying with any requirement under any environmental planning instrument relating to a master plan,
(f) the provisions of any environmental planning instrument or any development control plan do not have effect to the extent to which they are inconsistent with the terms of the approval of the concept plan,
(g) this clause applies instead of section 75P(2), but any direction, order or determination made under section 75P(2) in connection with the concept plan continues to have effect.
…

The parties are agreed that pursuant to cl 3B(2)(a), the provisions of Part 4 of the EPA Act apply, and the development is taken to be development that may be carried out with development consent under Part 4.
The repealed Part 3A of the EPA Act contained provisions relating to Major infrastructure and other projects at s 75.
Section 75O provides that if, at subs (1)(a) a proponent makes an application for approval and, at subs (1)(b) the Director-General (of the Department of Planning) has given a report to the Minister to consider, then the Minister may give or not give approval for the concept plan for the project.
The Minister, at s 75O(4) may grant approval of a concept plan with modifications, before final approval for the project or any stage of the project is given, subject to fulfilling obligations contained in a statement of commitments in accordance with s 75O(5).
The determinations, or combination of determinations, available to the Minister when granting Concept Plan approval are in the following terms at s 75P:

75P Determinations with respect to project for which concept plan approved

(1) When giving an approval for the concept plan for a project, the Minister may make any (or any combination) of the following determinations:

(a)  the Minister may determine the further environmental assessment requirements for approval to carry out the project or any particular stage of the project under this Part (in which case those requirements have effect for the purposes of Division 2),
(b)  the Minister may determine that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act (in which case the project or that stage of the project ceases to be a project to which this Part applies),
(c)  the Minister may determine that no further environmental assessment is required for the project or any particular stage of the project (in which case the Minister may, under section 75J, approve or disapprove of the carrying out of the project or that stage of the project without further application, environmental assessment or report under Division 2).

(1A) The further requirements for approval to carry out the project or any part of the project that the Minister may determine under subsection (1) (a) are not limited to matters that the Director-General may require under Division 2.

…

(2) If the Minister determines that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of this Act, the following provisions apply:

(a)  the determination of a development application for the project or that stage of the project under Part 4 is to be generally consistent with the terms of the approval of the concept plan,
(a1)  any consent granted for the project or that stage of the project under Part 4 is to be subject to such conditions as the Minister directs for the purpose of fulfilling the obligations in a statement of commitments submitted by the proponent (in which case those conditions cannot be modified without the approval of the Minister and a person cannot appeal to the Court under this Act in respect of the direction or any such conditions imposed by the consent authority),
(b)  the project or that stage of the project is not integrated development for the purposes of Part 4,
(c)  any further environmental assessment of the project or that stage of the project under Part 4 or Part 5 is to be undertaken in accordance with the requirements determined by the Minister when approving the concept plan (despite anything to the contrary in that Part),
(c1)  a provision of an environmental planning instrument prohibiting or restricting the carrying out of the project or that stage of the project under Part 4 (other than a project of a class prescribed by the regulations) does not have effect if the Minister so directs,
(d)  the Minister may, by order, declare that that stage of the project (or any part of it) is exempt or complying development for the purposes of this Act,
(e)  the Minister may, by order, declare that that stage of the project (or any part of it) is not designated development for the purposes of this Act,
(f)  the Minister may, by order, revoke or amend (as the case requires) the declaration of the project under this Part.
An order under paragraph (d), (e) or (f) is to be published in the Gazette and has effect according to its tenor.

The Environmental Assessment Requirements for the Concept Plan, issued on 19 August 2010 are set out at Exhibit 5, folios 162-166. Key Assessment Requirements are set out on folio 163 and include, relevantly, matters listed under the heading ‘Transport and Accessibility’.
Further Environmental Assessment requirements are set out in Part D of the Concept Plan approval at folios 118-123 and include, relevantly, matters set out under the heading ‘Traffic and Transport’.
The application of State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) was initially contested. The Second Respondent submits that the requirement at subs 4.15(1)(a)(i) of the EPA Act for the Court to consider any environmental planning instrument applies and is not supplanted by the terms of the Concept Plan approval.
In contra-distinction to the Statement of Facts and Contention in Reply at Exhibit C (par 32), the Applicant’s written submissions in closing accepts the application is subject to SEPP Infrastructure.
As the site has a frontage to a classified road, the provisions of SEPP Infrastructure apply. Clause 101 of the SEPP Infrastructure is in the following terms:

101 Development with frontage to classified road

(1) The objectives of this clause are—

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and
(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and
(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—
(i) the design of the vehicular access to the land, or
…
(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

As the proposal is for a subdivision of land of 50 or more allotments with access to a classified road, Schedule 3 of the SEPP Infrastructure defines the development as a traffic-generating development. Clause 104 of SEPP Infrastructure provides, relevantly:

…

(3) Before determining a development application for development to which this clause applies, the consent authority must—

(a) give written notice of the application to RMS within 7 days after the application is made, and
(b) take into consideration—
(i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, RMS advises that it will not be making a submission), and
(ii) the accessibility of the site concerned, including—
(A) the efficiency of movement of people and freight to and from the site and the extent of multi-purpose trips, and
(B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and
(iii) any potential traffic safety, road congestion or parking implications of the development.

The Second Respondent accepts that its submission made in accordance with cl 104(3)(b)(i) and dated 3 December 2018 (RMS December letter), was not provided within 21 days as required by cl 104(3)(b)(i) and, as a consequence, it is not a mandatory consideration, but submits that regard should be had to the content of the submission commencing at Exhibit 5, folio 1457 under subs 4.15(1)(a)(i) of the EPA Act.
In summary, the submission contains advice to the First Respondent under the following headings:

Major Project Concept Approval

Greater Newcastle Metropolitan Plan 2036

Traffic and Transport Impact Assessment (TTIA) by Arcadis, 7 May 2018

Advice to Council

The Second Respondent also acknowledges that its role is not to provide ‘concurrence’, as it would be if the proposed development was integrated development, but instead submits that a proper description of its role in the proceedings is to assist the Court to determine the planning merits of the development application the subject of the appeal.
As John Renshaw Drive is a controlled access road, s 70 of the Roads Act 1993 applies, and provides, relevantly:

70 Construction of access to freeways, transitways etc prohibited

A person—

(a) must not construct any means of access to or from a freeway, transitway or controlled access road otherwise than in accordance with the consent of RMS, and

(b) must not enter or leave a freeway, transitway or controlled access road except by a means of access or a route provided for that purpose.

…

The Second Respondent also submits that while the First Respondent, as the Council, is the appropriate roads authority by virtue of ownership of John Renshaw Drive, subs 87(2) of the Roads Act 1993 prevents the carrying out of traffic control work on any classified road by that road authority without the consent of RMS, which has not been granted.
This is consistent with s 138 of the Roads Act 1993 which provides, relevantly at subs (2):

(2) A consent may not be given with respect to a classified road except with the concurrence of RMS.

However, it is commonly held by the parties that the application before the Court does not include an application made under s 138 of the Roads Act 1993.

Newcastle Local Environmental Plan 2012

The Newcastle Local Environmental Plan 2012 (NLEP) makes provision for Arrangements for designated State public infrastructure at cl 8.1(2) in the following terms:

8.1 Arrangements for designated State public infrastructure

(1) The objective of this clause is to require satisfactory arrangements to be made for the provision of designated State public infrastructure before the subdivision of land in an urban release area to satisfy needs that arise from development on the land, but only if the land is developed intensively for urban purposes.

(2) Development consent must not be granted for the subdivision of land in an urban release area if the subdivision would create a lot smaller than the minimum lot size permitted on the land immediately before the land became, or became part of, an urban release area, unless the Director-General has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that lot.

(3) Subclause (2) does not apply to—

(a)  any lot identified in the certificate as a residue lot, or
(b)  any lot to be created by a subdivision of land that was the subject of a previous development consent granted in accordance with this clause, or
(c)  any lot that is proposed in the development application to be reserved or dedicated for public open space, public roads, public utility undertakings, educational facilities or any other public purpose, or
(d)  a subdivision for the purpose only of rectifying an encroachment on any existing lot.

(4) This clause does not apply to land in an urban release area if all or any part of the land is in a special contributions area (as defined by section 7.1 of the Act).

According to the Second Respondent, the EBHP is a site of strategic importance and is a defined ‘Catalyst area’ identified as a Freight and Logistics Hub under the Greater Newcastle Metropolitan Plan 2036 prepared by the Department of Planning and Environment in September 2018 (Exhibit 5, folios 651-738).

The assessment required following the Concept Plan approval

The Applicant’s position on the assessment required following the Concept Plan approval

Mr Galasso SC submits that the development application cannot be considered in a vacuum, but originates in the Concept Plan approval granted on 19 November 2013 in accordance with Part 3A of the EPA Act, and for which s 75P of the EPA Act sets out the mechanisms for approval of a project the subject of the Concept Plan.
The terms of the Concept Plan approval at [18] do not state that the project the subject of that Concept Plan approval is to be determined subject to the other provisions of the EPA Act in accordance with s 75P(1)(b), and it is not integrated development in accordance with s 75P(2)(b). It is, however, accepted by the Applicant that the determination is referrable to Part 4 of the EPA Act, albeit in a modified form.
To that end, the assessment of the application before the Court should be in accordance with the provisions of subcl 3B(2)(d) of Schedule 2 of the Transitional Regulation, which at [45], precludes a consent authority from granting consent under Part 4 unless it is satisfied that the development is generally consistent with the terms of the approval of the concept plan.
Likewise, s 75P(2)(a) of the EPA Act is in similar terms, requiring that the determination of this development application must be generally consistent with the terms of the Concept Plan approval.
This is virtually identical to the terms of Condition 1.5 of the Concept Plan approval, which provides:

“The determination of future applications for development on the Site under Part 4 of the Act, for which Council is the consent authority, is to be generally consistent with the terms of this approval.”

Additionally, further environmental assessment is to be undertaken in accordance with the requirements of the terms of the Concept Plan approval set out in Schedule 2, Part D, with which the project the subject of the Concept Plan approval should be generally consistent.
According to Mr Galasso, this is consistent with the statutory scheme inherent to Part 3A of the EPA Act which the Court has regarded as being applicable to projects of a scale for which some flexibility is appropriate and inevitable given they are often complex, extensive and multi-staged. It is therefore no surprise that the provisions of environmental planning instruments are legislatively excluded to the extent they are inconsistent with the terms of the Concept Plan approval (cl 3B(2)(f)).
The practical effect of Mr Galasso’s argument, he submits, is that while the location of the signalised intersection has been amended since the Concept Plan approval, the location now proposed remains generally consistent with the Concept Plan approval, is based on sound engineering advice and is agreed by the First Respondent’s traffic expert to be acceptable.
Furthermore, the lot layout and staging of the development is substantially similar to that shown in the Concept Plan Application (Exhibit G), and so the application before the Court is generally consistent with the Concept Plan approval.

The Second Respondent’s position on the assessment required following the Concept Plan approval

According to Mr Nash, counsel for the Second Respondent, the PAC did not grant approval to the Concept Plan without need for further assessment or reporting, as it could have in accordance with s 75P(1)(c).
Instead, the terms of the Concept Plan approval expressly required “further environmental assessment” pursuant to s 75P(2)(c) which refers to the matters set out in Conditions 1.15 and 1.16 of Schedule 2 of the Concept Plan approval (Exhibit 5, folio 119) which are imposed alongside, and not in substitution of, the requirements in Part 4 of the EPA Act, including those found at s 4.15.
Furthermore, the terms of the Concept Plan approval expressly deferred all matters related to traffic effects and impacts owing to the traffic model prepared by Hyder (Exhibit 5, 169-229) being identified as in need of update, and giving rise to Condition 1.15 and Condition 1.16.
In summary, the Second Respondent contends that the application should be refused as the Applicant has not adequately assessed the impacts of the proposal on the wider road network as required by the terms of the Concept Plan approval, and in accordance with s 4.15 of the EPA Act, which at subs 4.15(1)(a)(i) includes consideration of SEPP Infrastructure.

In particular, the Second Respondent contends that:

The Applicant’s Traffic and Transport Impact Assessment (TTIA) is inadequate as it was not prepared in consultation with the Second Respondent, and its modelling is deficient.

There is insufficient information to establish that the traffic volumes generated by the proposed development can be sustained by the existing or planned road network with safety and efficiency.

The Applicant has failed to provide evidence of a safety audit, survey, environmental assessment, engineering review or design of the off-site upgrade works.

The Applicant’s proposed staging of the off-site upgrade works does not model or assess each stage of the development, and does not promote orderly and economic development of land as the M1/John Renshaw Drive/Weakleys Drive intersection is proposed to be upgraded four times over a 9-10 year time frame.

The evaluation required following the Concept Plan approval

Assisted as I am by written submissions from the parties, I will first set out what I consider to be the proper approach to an evaluation of the development the subject of the development application, brought as it was, under Part 3A of the EPA Act.
At the outset, it is relevant to note that while the parties dispute whether the project the subject of the Concept Plan approval is a transitional Part 3A project, they are agreed that whether the project is a transitional Part 3A project or not, is not, of itself, determinative of the appeal.
According to Mr Galasso, counsel for the Applicant, assisted by Ms Tringali, the development application satisfies the definition of a ‘transitional Part 3A project’ as it is a project that is the subject of an approved Concept Plan approval, in accordance with cl 2(1)(b) of Schedule 2 of the Transitional Regulation, and as it is also a project for which an environmental assessment was duly submitted before the repeal of the Part 3A pursuant to under cl 2(1)(d) of Schedule 2 of the Transitional Regulation.
In the alternative, and in contra distinction to its position initially held at pars 2 and 25 of Exhibit 7, the Second Respondent submits that the proposed development is not a transitional Part 3A project as the terms of the Concept Plan approval included a determination under s 75P that the development the subject of the Concept Plan approval was to be subject to Part 4 of the EPA Act which, by operation of cl 2(6) of the Transitional Regulation, causes the provisions of Part 3A to cease.
When giving approval to a Concept Plan in accordance with s 75P of the EPA Act, as was in force at the time, the Minister, or the Minister’s delegate as it was in this case, may require further assessment or no further assessment at all.
The PAC did not grant approval to the Concept Plan without need for further assessment or reporting, as it could have in accordance with s 75P(1)(c).
Instead, modifications to the Concept Plan were set out in Part C of the Concept Plan approval (Exhibit 5, folio 117) and further environmental assessment requirements were set out in Part D of the Concept Plan approval with which any subsequent determinations under Part 4 of the EPA Act should be generally consistent, as required by Condition 1.5 (Exhibit 5, folio 116).
Such a determination, made under Part 4 of the EPA Act, is to be generally consistent with the terms of the approval of the concept plan, in accordance with s 75P(2)(a).
In my view then, the effect of the Concept Plan approval on the application of Part 4 of the EPA Act in assessing the development the subject of the development application is as follows:

Firstly, the effect of s 75P(2)(b) is that the project is not considered to be ‘integrated development’ and so those particular provisions of Part 4 do not apply. Consequently, the role of the Second Respondent is not as a relevant approval body for which general terms of approval are to be granted as set out in s 4.47 of the EPA Act.

Secondly, the operation of cl 3B(2)(a), Schedule 2 of the Transitional Regulation excludes those provisions contained in an environmental planning instrument that would prevent the development being defined as development that may be carried out with consent and, at cl 3B(2)(f), an environmental planning instrument has no effect to the extent it is inconsistent with the terms of the approval of the concept plan.

However, also in my view, the effect of [88(2)], does not preclude consideration of the terms of SEPP Infrastructure as set out at [55] and [56] which contains pre-conditions to the grant of consent in relation to matters that are expressly stated in the terms of the Concept Plan approval to be the subject of further environmental assessment under Part 4 of the EPA Act as specified in Schedule 2, Part D of the approval.
Neither is the effect of any other matter at s 4.15(1) of the EPA Act limited by the Concept Plan approval.
With this is mind, I must first consider if the application is generally consistent with the terms of the Concept Plan approval, in accordance with cl 3B(2)(d) of Schedule 2 of the Transitional Regulation, and s 75P(2)(a) of the EPA Act.
The terms of the Concept Plan approval that are relevant to this consideration are Condition 1.15 and Condition 1.16, which are, in my view, inter-dependent. The terms of Condition 1.15 effectively particularise the RMS requirements that are, in part, the subject of Condition 1.16. Therefore, it is necessary to consider the terms of Condition 1.15 in order to reach a conclusion as to whether the Applicant has satisfied the terms set out in Condition 1.16.
Following consideration of the relevant terms of the Concept Plan approval, being the relevant Conditions, I must then assess the application before the Court in accordance with Part 4 of the EPA Act, in the modified form set out above.

Is the application generally consistent with the Concept Plan approval?

The primary dispute between the parties is whether the application before the Court is sufficient in its assessment of the likely impact of the traffic generated by the development on the nationally-significant road network in the local area.
A particular focus of the parties is on the signalised intersection which is required to be generally consistent with the terms of the Concept Plan approval. While the terms of Condition 1.16 are set out at [28], it is re-produced again here as follows:

The elements of this aspect of the dispute may be summarised as follows:

Firstly, whether the relocation of the intersection from the position shown in the Concept Plan approval is acceptable;

Secondly, whether the design of the intersection is a ‘detailed design’, and

Thirdly, whether it has been prepared in accordance with RMS’ requirements.

The original Concept Plan (Exhibit 5, folio 126) proposed a 3-way signalised intersection at the western boundary of the subject site where it adjoins the Broaden site, with a 23m wide Road Reserve along the full length of the boundary with the Broaden site.
The parties are agreed that while the intersection was originally shown at the western boundary of the subject site, the footprint of the intersection was wholly located on the portion of John Renshaw Drive fronted by the Stevens site. It did not span the boundary of the subject site with the adjoining Broaden site and so was not ‘shared’.
That said, I understand that the intersection in this location, and the Road Reserve connecting to it, reflects an intent for development in the EBHP to be co-ordinated so as to minimise the number of intersections resulting from development in the EBHP on John Renshaw Drive.
Correspondence to this effect from the Second Respondent to the First Respondent at [57]-[58] (Exhibit 5, folio 1459) recommends that a masterplan be prepared for the EBHP in accordance with the Greater Newcastle Metropolitan Plan 2036, and that it be supported by a TTIA.
The Applicant now proposes to relocate the signalised intersection a distance of 225m to the east, with resultant changes in the internal road and lot layout of the proposed development. This gives rise to the contention as set out at [25(4)], and the question, as put by Mr Galasso, as to “whether or not the intersection location is acceptable” (Tcpt, 12 February 2020, p 62(13-14)).
Correspondence from the Second Respondent to the Department of Planning dated 13 February 2018 (Exhibit 6, Attachment E), confirmed it had undertaken a review of two options prepared by Northrop on behalf of the Applicant. Option A was located 225 metres east of the boundary, and option B was in the location shown in the Concept Plan approval.
According to the actions of the Second Respondent (Exhibit 7, par 37):

“RMS recommended Option A was the preferred intersection location as it allowed greater sight lines due to its location on the crest rather than below the crest and would reduce the length of the speed zone drop required on John Renshaw Drive”

Additionally, the Second Respondent engages further on the location of the intersection later as follows:

“…

The intersection should be adjusted slightly to be located on the crest on John Renshaw Drive, which is very close to the location shown on Option A.

…”

In his oral evidence, Mr Nathwani accepts the advice from Northrop engineers that the relocation of the signalised intersection improves sightlines from oncoming traffic, in part due to the obstruction cause by high voltage electricity towers.
Mr Galasso submits that the relocation of the signalised intersection is a natural consequence of further investigation by the Applicant and is consistent with Part 3A of the EPA Act given the scale of the projects subject to approval under Part 3A are often complex, extensive and multi-stage projects, the retention of some flexibility is appropriate and inevitable as held by Preston CJ in Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20 at [80].
For this reason, the conditions attached to a project approval must be construed having regard to the desirable inherent flexibility that the statutory scheme in Part 3A of EPA Act promotes, as shown by Justice Pepper in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 at [92(k)] citing Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [23] per Jagot J; Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20; [2008] NSWLEC 185 at [80] per Preston CJ and Pittwater Council v Minister for Planning (2011) 184 LGERA 419; [2011] NSWLEC 162 at [48] per Pain J.
For the reasons set out below, I find that the relocation of the signalised intersection does not, of itself, offend the requirement of cl 3B(2)(d) of the Transitional Regulation to be generally consistent with the terms of the Concept Plan approval:

Firstly, I accept that Concept Plan approval under Part 3A of the EPA Act is a particular form of approval for which some inherent flexibility is appropriate and inevitable.

Secondly, and relatedly, Concept Plan approval is a form of approval that enables a proponent to progress a project the subject of a Concept Plan approval, in accordance with the environmental assessment requirements determined by the Minister when approving the Concept Plan, as set out in s 75P(2)(c) of the EPA Act. For the reasons set out by the Second Respondent in correspondence at [103]-[104], the assessment undertaken by Northrop at [102], appears to be consistent with the Further Environmental Assessment Requirements set out in Part D of the Concept Plan approval at Condition 1.15 and Condition 1.16.

Thirdly, in my view, a plain reading of the text in Condition 1.16 suggests a signalised intersection providing the western access should be the subject of a detailed design that is prepared in accordance with RMS’ requirements (my emphasis). As Condition 1.16 is so worded, the proper assessment of the signalised intersection against the terms of the Concept Plan approval is not whether it is in the same location, but whether the application includes a detailed design that has been prepared in accordance with RMS’ requirements.

That said, while the decision to relocate the intersection was supported by RMS on the grounds of improved road safety, that support was on the basis of what RMS regarded as ‘preliminary designs’ and, as I will expand upon later, the circumstances of the relocation are not without additional challenges for the Applicant in satisfying the terms of Condition 1.16.
In respect of which, the Second Respondent submits, and I accept, that the relocation of the signalised intersection heightens the need for detailed design of the intersection in order to satisfy the requirement of Condition 1.16 (written submissions, par 106).
For the reasons set out earlier it is now necessary to consider whether the design proposed for the signalised intersection is ‘detailed design prepared in accordance with RMS’ requirements’.

Detailed design

The parties dispute the precise meaning of the term “detailed design” at Condition 1.16, and whether the documentation of the signalised intersection, completed by Northrop Engineers (Exhibit E drawing C6.11) achieves the required level of detailed resolution.
As it was put by the Applicant, the question may be posed as to whether Condition 1.16 employs ‘detailed design’ as a term of art, or merely infers a greater level of detail than was in the Concept Plan approval.
Regardless, the traffic experts are essentially agreed that the application before the Court is not a detailed design in engineering terms.
That said, Mr Galasso tells me that geotechnical investigation and pavement design, which has not yet been completed, can be readily undertaken for the intersection in its proposed location.
In his oral evidence, Mr Krjlic accepts that the level of detail provided may be sufficient to locate the intersection relative to the site, provide the number and width of lanes, the length of deceleration and acceleration lanes, and the grades of roads. However the term ‘detailed design’, in the civil engineering discipline, encompasses drawings, reports, surveys, geotechnical, utilities, drainage, pavement design and the like that are at a level of resolution ready for construction, and it is for this reason that a proponent would not usually invest in detailed design until the scope of the project is agreed with RMS.
Mr Krjlic considers the proper approach would have been for the Applicant to first satisfy the terms set out in Condition 1.15, before then investing in the detailed design required by Condition 1.16.
However, in his oral evidence, Mr Rogers opines that a literal reading of Condition 1.16 would require a level of detail that is ‘over doing it’ and illogical when standing in the proponent’s shoes. Consequently, he acknowledges that the intersection design is not a detailed design, as detailed design is never undertaken as part of a DA. In projects with which he has been involved over the last 30 years, Mr Rogers is not aware of an instance where detailed engineering design has been lodged with a consent authority.
Instead, an intersection is more commonly developed to a concept design level of resolution for the purposes of gaining initial approval and so as to enter into a Works Authorisation Deed (WAD) with RMS, after which the detailed design is commenced (Tcpt, 13 February 2020, p 36).
Mr Nathwani concurs with Mr Rogers on the level of detail usually required of an applicant by a consent authority, and is also of the opinion that Condition 1.16 must be read in conjunction with the Department of Planning’s consideration (Exhibit D, p3) which is an excerpt taken from the Director General’s Environmental Assessment Report (Director General’s Report) and provides, relevantly (Exhibit 5, folio 367):

“…

Discussions with RTA indicate that the site access arrangements from John Renshaw Drive would not change significantly if the traffic model was adjusted to address RTA’s concerns. As such, the Department is satisfied the proposed access to the site is appropriate. The Department therefore recommends that the detailed design for the access is submitted with the first subdivision application for RTA’s approval.

…”

The effect of which is that, notwithstanding adjustments required to the traffic modelling, the Department was satisfied with the location of the intersection at the Concept Plan stage, and so required detailed design of the same as a condition of the Further Environmental Assessment Requirements contained in Part D of the Concept Plan approval.
However, the Applicant’s subsequent decision to relocate the intersection, on what may be reasonable grounds, effectively nullifies the satisfaction formerly reached as to the location of the signalised intersection as shown in the Concept Plan approval.
As it was put by Mr Nathwani (Tcpt, 13 February 2020, p 39):

“Now the site access has changed to 225 metres east of the site. I have no objection to that. It appears to have better sight lines..(not transcribable)..the electrical infrastructure, but I’m unsure of how much detailed investigations Northrop has undertaken, such as geotech or utility investigations, to demonstrate that the layout, which they adopted from the traffic, traffic exports [sic] input, will be ‑ physically be able to be delivered, and therefore I consider that condition 1.16 has not been satisfied, even though it is not the standard practice to have a detailed design in the DA, the location of the intersection has completely changed, so now we are back to square one.”

As the traffic experts are agreed, albeit for different reasons, that the design of the signalised intersection is not detailed in its resolution, and absent evidence to the contrary, I am left with a preliminary view that the design was not detailed as required by, and so is not consistent with, the terms of the Concept Plan approval at Condition 1.16.
That said, as stated at [117], I concur with Mr Krjlic’s view that the proper approach to an assessment of the application before the Court in relation to Condition 1.16 is to first consider the terms of Condition 1.15 which, in effect, particularise the RMS requirements that are to be accorded with in the preparation of the detailed design.
The matters set out in Condition 1.15 are both broad, in that consultation is required, at (a), with Council and the RMS, and specific, in that Condition 1.15(b)-(d) sets out a number of particular traffic-related matters that must be detailed or demonstrated through modelling. It is therefore necessary to set out the basis of the modelling undertaken by the Applicant in order to conclude whether the work undertaken can be said to satisfy those matters in Condition 1.15.

The Applicant’s modelling is disputed

At this point, it is important to state that two types of modelling are referred to in this case: SIDRA modelling and micro-simulation. As it was explained to me, SIDRA modelling is a mathematical tool that produces numerical values that can then be interpreted by traffic engineers to inform their decisions on traffic flows. Whereas, micro-simulation is an agent-based modelling tool that can visualise the geometric implications of simulated driver decisions in certain conditions, such as lane-changing behaviour in response to surrounding traffic conditions.
The two types of modelling are compatible, and SIDRA modelling is often used in support of, or as an input to, micro-simulation.
In essence, the traffic experts dispute the precise balance of SIDRA and micro-simulation appropriate in the circumstances, which may be summarised as follows:

Mr Krjlic considers micro-simulation is required to show the impact of the signalised intersection on the wider road network that is nationally significant road infrastructure.

In the alternative, Mr Rogers is of the view that as the signalised intersection is located 1.3km from the intersection at the M1 Motorway, it is effectively isolated and so SIDRA modelling is sufficient.

In broad terms, the Second Respondent considers the deficiencies in the Applicant’s Traffic and Transport Impact Assessment (TTIA) prepared by Arcadis (contained in Exhibit L), to be the result of a lack of consultation with the RMS as required by Condition 1.15(a) (Exhibit 7, Contention 1, particular (g)) and, according to Mr Krjlic’s oral evidence, due to flaws present in the TTIA on which Mr Rogers’ modelling (Exhibit 6, Attachment A) has subsequently been based.
The Applicant submits that consultation was undertaken, but consultation is not a like term for agreement and, while the Second Respondent may have advised the Applicant as to certain things, it remains the prerogative of the Applicant, on the advice of its experts, to proceed on an alternative basis.
The Applicant relies upon Mr Roger’s expert report (Exhibit D) for evidence of consultation with the First and Second Respondent as follows:

“Consultation with RMS/Council was undertaken during July, August and September 2019 with two meetings (2 July and 7 August 2019), and a number of email exchanges/telephone discussions with RMS officers…”

Mr Krjlic is aware that consultation took place, however upon review of the TTIA, he formed the opinion that it was not ‘appropriate consultation’ as it had not agreed upon such issues as the appropriate study area, the requirement and criteria for the base case model development, calibration and validation, future horizon years, heavy vehicle proportion assumptions, or details about access arrangements (Exhibit 6, p3).
Contention 1 (Exhibit 7), as it appears in particular (l) contends that the TTIA fails to provide data on traffic generation from each stage of the development, or any data regarding traffic generation from the Broaden site.
In their oral evidence, the experts are now agreed on the trip-generation rates to be applied (Exhibit 6, pp3-4) (Tcpt, 13 February 2020, p 87), and the proportion of heavy vehicles assumed (Tcpt, 13 February 2020, pp 15-16). Where there is a difference of opinion, that difference is resolved once the overall results derived from those rates are considered (Tcpt, 13 February 2020, p 16).
Furthermore, the experts are also agreed that the signalised intersection shown in Exhibit K works for the development of the subject site, but that an additional lane is required in the afternoon peak to accommodate traffic generated by development on the adjoining Broaden site (Tcpt, 13 February 2020, pp 23-24).
That said, Mr Krjlic is of the view that as the subject site is forecast to generate around 1,500 vehicles per hour and the combined EBHP is forecast to generate more than 3,000 vehicles per hour, traffic on John Renshaw Drive will more than double. As the site is in close proximity to the M1 Motorway, micro-simulation is the appropriate tool to assess the impact on the road network.
Furthermore, according to Mr Krjlic, and accepted by Mr Rogers, the initial micro-simulation modelling undertaken for Mr Rogers by SCT Modelling contains errors that were said to include ‘cars running red lights’.
At the commencement of the second day of the hearing, the Applicant was granted leave to rely upon new SIDRA modelling, marked Exhibit K, that had been completed by Mr Rogers and which assumes full development of both the Broaden site and Stevens site (Tcpt, 13 February 2020, p 12), and which Mr Krjlic acknowledges has resolved the errors at [138] subject to the short period he was given to review.
Mr Rogers also accepts Mr Nathwani’s assessment that Exhibit K contains further errors in the modelling of traffic undertaking ‘left out/right in’ movements at the signalised intersection during the afternoon peak by a margin of around 20% of vehicles turning.
As I understand it, the error relates to the proportion of traffic that may use the internal road network connecting the subject site and the adjoining Broaden site. Mr Rogers is of the view that a greater proportion of traffic from the Broaden site will access John Renshaw Drive through the subject site, than the reverse. However, he concedes that the modelling in Exhibit K does not, in effect, include 100% of traffic generated by the fully developed site, as 20% of the traffic is assumed to be re-routed through the adjoining Broaden site.
Mr Rogers concedes that to correct the number of vehicles using the intersection would extend the queue of vehicles at the intersection, but would not change the overall level of service.
The Second Respondent also disputes two further assumptions underlying the Applicant’s modelling. These are:

The horizon year.

The study area.

Horizon year

It is common ground between the parties that the Applicant has completed SIDRA modelling with an horizon year of 2044, and micro-simulation modelling with an horizon year of 2029. The result of which, according to Mr Krjlic, is that the SIDRA assessment was not incorporated in the micro-simulation model to prove that the intersection works in the context of the wider road network. (Tcpt, 13 February 2020, p 17).
As I understand it from the parties, the relevance of establishing an agreed horizon year as a factor in the modelling allows two inputs to be understood together. Firstly, the volume of traffic that can be attributed to background growth beyond the site, and secondly, the rate at which the proposed development generates traffic.
The rate of background growth in road-based traffic is agreed by the experts to be a cumulative figure of 1.5% each year. Over 10 years, this equates to 15% growth in traffic volume.
Closely related to this is the staging of development on the site that will determine the volume of traffic generated by the stages of the development, which will be progressive over time. Put another way, as the 8 stages of the proposal develop, each stage will generate more traffic until the development is fully developed. The rate at which this traffic will be generated has an impact on the volume of new traffic added into the road network.
According to the Second Respondent, the staging of the development the subject of Condition 1.15(b) is critical to allow the incremental impacts of the proposed development to be properly aligned with the timely provision of upgrades to road infrastructure in the wider road network.
However, Mr Rogers’ initial micro simulation modelling (Exhibit 6, Attachment A) only factored traffic generated when the development is 50% complete, in 2024, and at 100% complete in 2029. As it is unlikely that the development will be fully complete in 2029, the assumptions underlying Mr Rogers’ modelling do not include an accurate volume of background growth.
In his oral evidence, Mr Rogers’ states that, absent any particular horizon year specified by the Second Respondent, he adopted a 10 year horizon year because, firstly, that is what he would normally do when working with RMS in the Hunter Region, and secondly, as the Applicant advised that was the anticipated duration of the development (Tcpt, 13 February 2020, p 49).
According to Mr Krjlic, an horizon year cannot be prescribed for such a scale of project as this without consultation with the RMS. Conventionally, a proponent proposing development in close proximity to the state road network would first prepare a technical note upfront that sets out the modelling assumptions such as the purpose, study area, horizon year and the like to use as the basis of consultation with the RMS, and prior to micro simulation being commenced.
In order to assist proponent’s in this regard, RMS publish ‘Traffic Modelling Guidelines’ that includes guidance on setting the objectives, scope, timeframe as well as the calibration and validation of the model (Exhibit 9, folio 199-436).
However, Mr Rogers’ cites the disclaimer contained in the Traffic Modelling Guidelines (Exhibit 9, folio 204) that the purpose of the guide is for the use by “modellers and managers undertaking work for RMS” and as the Applicant’s modelling is not undertaken for the RMS, the guide should be given little weight despite express reference to it being made in the TTIA.
Mr Krjlic considers it more appropriate that an horizon year of 2044 is assumed as was used in the Outer Newcastle Study (ONS) (Exhibit 8, Annexure 7), beyond which time detailed inputs required for micro-simulation are difficult to determine with confidence and which is more appropriately the intent of what Mr Krjlic refers to as ‘forecasting strategic modelling’.
Additionally, an horizon year of 2044 would allow for greater tolerance in the time taken for the development the subject of the development application to reach completion of all 8 stages, which are each susceptible to variations in market forces such that full development in 9-10 years is doubtful.
Mr Rogers accepts that 2044 may be an appropriate horizon year for strategic planning purposes, such as the Outer Newcastle Study, but a date beyond 2034 for a development application is entering the realm of speculation given potential variables such as autonomous cars which may increase or decrease traffic volumes.
Whereas Mr Nathwani suggests that as the initial timeframe for development in the TTIA assumed commencement in 2016, with completion in 2031, there is no reason that a duration of 15 years to reach full development is not still appropriate (Tcpt, 13 February 2020, p 65), and given the evident ease with which a development of this scale can be delayed, an horizon year of 10 years is insufficient.

The study area

Contention 1, particular (h) (Exhibit 7) states that consultation with the Second Respondent did not include arriving at an appropriate study area for the TTIA as required by Condition 1.15.
Mr Galasso submits that nowhere in Condition 1.15 is there a specific study area prescribed but regardless, the study area adopted is consistent with that envisaged by the Second Respondent and the Department of Planning and Infrastructure at the time of the Concept Plan approval, as set out in the Director General’s Assessment Report, dated August 2013 (Exhibit D, par 15), and as stated in correspondence from the Second Respondent dated 5 April 2011 (Exhibit 5, folio 564-566).
Accordingly, the area selected by Mr Rogers’ for micro-simulation was sufficient to determine the appropriate access to the site, and to identify upgrades necessary to John Renshaw Drive, and the intersection of John Renshaw Drive, the M1 and Weakleys Drive.
The Second Respondent submits that as the correspondence dated 5 April 2011 set out matters under headings titled ‘Preliminary requirements’ and ‘Additional Information’, it cannot be read as being conclusive or exhaustive. Additionally, subsequent studies undertaken in the area effectively superseded those matters outlined in April 2011.
Mr Krjlic acknowledges that the signalised intersection, and the intersection of the M1 Motorway/John Renshaw Drive/Weakleys Drive are both included in the micro-simulation model undertaken by the Applicant.
However, according to Mr Krjlic, the completion of the ONS for the Second Respondent (Exhibit 8) updated the area of road network appropriate to be studied from that in 2013, at the time of the Concept Plan approval, and so should include, as a minimum:

Section of John Renshaw Drive about 3km west of M1 Pacific Motorway.

Intersection of John Renshaw Drive/Weakleys Drive/M1 Pacific Motorway.

Section of John Renshaw Drive between M1 Pacific Motorway and New England Highway, including the eastbound John Renshaw Drive viaduct merge point with New England Highway.

Weakleys Drive from M1 Pacific Motorway to New England Highway.

Section of M1 Pacific Motorway including future southbound on-ramp merge on M1 Motorway with the proposed M1 to Raymond Terrace Link.

In his oral evidence, Mr Rogers’ agreed the difference in study area preferred by the Applicant could be defined as comprising [163(1) and 163(2)], while Mr Krjlic’s comprised all [163(1)]-[163(5)]. To Mr Krjlic, the need for (3)-(5) is as follows (Tcpt, 13 February 2020, p 79):

Firstly, the eastbound John Renshaw Drive viaduct merge point with the New England Highway is important as a significant volume of traffic from the development will seek to access the Newcastle CBD.

Secondly, the whole of Weakleys Drive is important as there is significant traffic from the development site turning left in the morning and in the afternoon peak turning right back towards the site, and the Applicant’s micro-simulation currently stops midway, at a roundabout which precludes a full understanding of the traffic on Weakleys Drive.

Thirdly, the M1 to Raymond Terrace link, once completed, will merge traffic from three lanes to one lane so as to merge with the M1 and the modelling undertaken with the development actually highlighted that this will have significant capacity issues resulting in queuing.

In Mr Nathwani’s experience, the process of determining an appropriate study area generally involves two steps. Firstly, determine the traffic generated by the development and secondly, consider the location in its context in order to demonstrate the extent, or limits, of any impact.
The proposed development will generate significant traffic and so Mr Nathwani considers it reasonable for the Applicant to determine a study area that demonstrates the limits of the impact the development will likely impose on its environs (Tcpt, 13 February 2020, pp 85-86).
Of particular concern to Mr Nathwani is the impact of heavy and light vehicle traffic that will not ‘vanish in thin air’ but is instead likely to enter the M1 Motorway from John Renshaw Drive at the southbound merge, and to impact on Weakleys Drive up to the New England Highway however as these areas are omitted from the study area for which micro-simulation was undertaken, the impact is not certain.

Scope and contribution to offsite road upgrades

Condition 1.15(d) of the Concept Plan approval requires details of any offsite road upgrades required to accommodate the proposal.
The Applicant’s proposed scope and sequence of the off-site road upgrades are contained in proposed conditions marked Exhibit H that may be summarised as follows:

Prior to Stage 1-3:

Construct and dedicate the signalised intersection on John Renshaw Drive and associated acceleration and deceleration lanes.

Construct and dedicate the internal road connecting the signalised intersection to the internal roundabout and two lanes in each direction.

Construct and dedicate Road MCL03 from the roundabout to the boundary of Lot 1131 (being the proposed adjoining Broaden site).

Prior to Stage 4 and 5:

Construct the left in/left out intersection on John Renshaw Drive.

Upgrade the intersection of M1/John Renshaw Drive/Weakleys Drive to provide an additional eastbound through lane and additional short right turn lane on to the M1 motorway.

Prior to stage 6:

Upgrade John Renshaw Drive from two lane to four lanes between the signalised intersection and the intersection with M1/Weakleys Drive

Upgrade the intersection of M1/John Renshaw Drive/Weakleys Drive to provide an additional right turn lane from John Renshaw Drive on to the M1 and an additional right turn lane from Weakleys Drive onto John Renshaw Drive.

Prior to stage 7:

Upgrade the intersection of M1/John Renshaw Drive/Weakleys Drive to provide an additional west bound through lane on John Renshaw Drive and reconfigure the left turn lane from John Renshaw Drive onto the M1 motorway.

Prior to Stage 8:

Upgrade the intersection of M1/John Renshaw Drive/Weakleys drive to extend the left turn lane from the M1 motorway onto John Renshaw Drive.

In the ONS, Mr Krjlic provides a table of Recommended Additional Upgrade Projects (Exhibit 8, p14) developed from a number of scenarios that assumes development timing in the EBHP as noted in column 3 of this table to include 0%, 50%, 75% and 100% of development in the EBHP.
It is agreed by the parties that the purpose of modelling a scenario with 0% development in the EBHP is to understand what, if any, offsite road upgrades may be attributable to background growth only.
As I understand it, undertaking the modelling in this way assists to determine the upgrades required to the road network that are attributable to:

background growth only;

background growth and development on the subject site only; and

background growth, and development in the EBHP.

The traffic experts are agreed that the SIDRA analysis and micro simulation modelling indicate the signalised intersection will cater appropriately for traffic if John Renshaw Drive is duplicated to four lanes, and that it is reasonable to expect the duplication to be completed by 2034 by which time, according to the Applicant, the site is fully developed.
A tabulation of offsite road upgrades is also provided at Attachment C, Table 2 of the joint report (Exhibit 6) prepared by Mr Krjlic, and titled ‘Additional road network upgrade requirements’ (Table 2).
Table 2 sets out the offsite road upgrades identified to achieve a satisfactory level of service, based on the following two scenarios:

50% of development completed on the subject site only, without the M1 to Raymond Terrace Link and in the year 2024.

100% of development completed on the subject site only, with the M1 to Raymond Terrace Link and in the year 2034.

In his oral evidence, Mr Krjlic describes the work undertaken to produce Table 2 as being ‘back of the envelope’, and prompted by the lack of agreement between the experts and the errors he saw in the Applicant’s modelling.
Mr Krjlic accepts that modelling undertaken by him at [170] of those scenarios assuming background growth only, or 0% development timing, are omitted from Table 2, but states this is only due to time constraints.
In the alternative, the Applicant submits that the omission of those scenarios is deliberate and serves to prevent the Court from understanding what upgrade works are attributable to background growth, regardless of development on the subject site.
However, as the traffic generated by the proposed development is ten times that of the background growth, Mr Krjlic is of the view that all of the upgrade works listed in Table 2 are attributable to the subject site, with the exception of the additional capacity for the right turn movement on the M1 Motorway approach which requires further modelling to confirm, and the impact of the subject site on Weakleys Drive that Mr Krjlic refers to as a ‘mutual contribution’, and by which I understand to mean may be partly attributable.
The Applicant accepts the scope of works identified in Table 2, with the exception of the upgrade to Weakleys Drive which is said to lack a nexus with the development, is relatively recent in its construction and is likely to require further upgrade due to background growth alone.
Furthermore, the Applicant submits that a contribution to the upgrade of Weakleys Drive has already been made as evidenced by the Secretary’s Certificate for Satisfactory Arrangements for designated State public infrastructure (Secretary’s Certificate) (Exhibit F, Tab 2) which states the value of the contribution in relation to the development is $4,350,000.
The effect of the Secretary’s Certificate is a dispensation pursuant to subcl 8.1(2) of the NLEP that would otherwise prohibit subdivision if not for the Secretary’s Certificate confirming that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that lot.

According to the Applicant, the Secretary’s Certificate has the particular effect of exempting the Applicant from contributing to the Special Infrastructure Contribution set out in the Environmental Planning and Assessment (Special Infrastructure Contribution – Hunter Region) Determination 2018 (Exhibit 5, Folio 79-112) which, at Schedule 2, includes the upgrade of Weakleys Drive to which it has already made a contribution for the reasons at [181].
The First Respondent accepts that advice received from the Department of Planning and Environment on 27 June 2019 resolves the matter of State Infrastructure Contributions (Exhibit 2, Contention 4).
The Applicant submits that, should the Court find Mr Rogers’ own modelling to be deficient, the modelling undertaken by Mr Krjlic in the ONS is, in its study area and detail, adequate to satisfy the Court that the impacts of traffic on the wider road network have been modelled with an horizon year of 2044, for all of the EBHP and is acceptable.
In the alternative, the Second Respondent considers the ONS to have been completed for a different purpose, and does not fit the description of a TTIA as required by Condition 1.15 but rather is a strategic planning document.
Additionally, the road upgrades proposed at [169] have not been designed to even a ‘concept design’ level, and lack essential supporting material such as a survey or civil engineering assessment, or a road safety audit. There is no environmental impact assessment provided to understand the potential impacts on the road reserve due to road widening, or on the M1 Motorway which may be the subject of disruptive construction works on four separate occasions over a 9-10 year period (Second Respondent’s written submissions, par 19(c)).

The proposed conditions of consent are disputed

At the conclusion of the hearing on 3 March 2020, the Court directed that the parties confer in order to settle agreed conditions of consent within a period of 7 days.
On 16 April 2020, the Court was informed by the Applicant’s solicitor that the parties were conferring on a consolidated set of without prejudice conditions to be filed Wednesday 22 April 2020.
On 1 May 2020, the First and Second Respondent’s filed without prejudice draft conditions of consent that were later marked Exhibit 15.
On 1 May 2020, the Applicant also filed without prejudice draft conditions of consent later marked Exhibit N.
On 4 May 2020, the Court was advised on behalf of the First and Second Respondent’s that the parties were in dispute as to a number of the conditions that the Second Respondent submitted were contrary to the evidence led by the Applicant, and to the conditions of the original Concept Plan approval and for this reason, certain conditions proposed by the Applicant were invalid and sought to assist the Court with detailed submissions.
As the conditions in dispute were, in my view, matters that are essential in the context of the Court’s consideration, I directed the parties to provide brief oral submissions on 2 June 2020.
Immediately prior to the commencement of the hearing, new counsel for the Second Respondent, Ms Hemmings, provided the Court with written submissions that she described as an ‘aide memoir’ arising from her own summarising of the issues subsequent to receipt of the brief.
The parties dispute the draft conditions of consent for the reasons set out as follows.

Condition A.61 – the timing of certain approvals

As set out by the Respondents’ in Exhibit 15, the proposed Condition A.61 requires the Applicant to obtain, within two years, certain approvals from the First and the Second Respondent prior to the issue of a subdivision certificate, including:

Detailed design and construction of the proposal signalised intersection associated with Stage 1 of the development.

Concept design of all proposed internal roads within Stage 1 that connect the subject site and the adjoining Broaden site.

A plan of subdivision to dedicate sufficient land as public road consistent with (1) and (2), and the registration of the same.

The First Respondent submits that the dedication of land for the public road, whether constructed or not, is intended to provide the adjoining Broaden site with a legal means to construct internal roads and access the signalised intersection, regardless of the progress made by the Applicant in the proposed development but that a 2 year timeframe in which to secure the relevant approvals is reasonable.
In the alternative, to avoid a condition that would effectively limit the consent to a two year period, the Applicant proposes that approvals for concept design be obtained within two years, and that approvals for detailed design, and land dedicated for the public road, occur within four years.

Condition C.3 – the requirement for an additional TTIA for the signalised intersection

The terms of Condition C.3 as proposed by the Second Respondent may be summarised to require, prior to the carrying out of any works, a TTIA to determine the appropriate location and design of the signalised intersection in accordance with, and to, the Respondents’ satisfaction. Furthermore, the terms of the TTIA are proposed to require the agreement of the Respondents’ in relation to an appropriate study area, traffic generation rates, modelling scenarios and the like.
However, according to the Applicant, it is the evidence of Mr Rogers and Mr Krjlic (Exhibit 6, Attachment C) that Stages 1-3 of the proposed development do not require offsite road upgrades and it is for that reason that the Applicant proposes any TTIA be required only prior to Stage 4.
In support of which, the staging table contained at Exhibit G is said to confirm that Stages 1-3 represents around 30% of the development which is well below the 50% development assumed by Mr Krjlic in modelling contained at Exhibit 6, Attachment C at which point offsite road upgrades would be required.

Condition C.4 – approval of the internal road network

The terms of Condition C.4 as proposed by the Second Respondent may be summarised to require the Respondents’ to approve the design and construction of the internal road layout that will connect the subject site and the adjoining Broaden site to the signalised intersection that is located on a classified road and so subject to the Second Respondent.
As development on the adjoining Broaden site is within the Cessnock Council area, the Respondents’ consider the role of the Second Respondent relevant to ensuring co-ordinated and orderly delivery of the EBHP.
The Applicant objects to any role for the Second Respondent as the road is a local road, and the responsibility for approval lies solely with the First Respondent.

Condition C.5 – the left in/left out intersection

The parties dispute the terms of Condition C.5 for similar reasons as set out at [198], in relation to which the Second Respondent submits that a WAD should be entered into prior to the issue of a subdivision certificate, and not prior to Stage 4 as it is immediately prior to the time the left in/left out intersection is required.
In the alternative, the Applicant relies on Mr Rogers’ evidence to the effect that the left in/left out intersection is not required until Stage 7 but notwithstanding, is proposed to be completed prior to Stage 4.

Condition C.6 – a WAD for the John Renshaw Drive upgrade

The terms of Condition C.6 seek to require the Applicant to enter into a WAD with the Second Respondent prior to the carrying of any works, and for the WAD to comprise certain works including upgrade of the existing pavement of John Renshaw Drive, and that the works be completed prior to the subdivision certificate being issued.
According to the Second Respondent, the Applicant has not provided evidence as to the timing of the proposed upgrade of John Renshaw Drive and which the traffic experts agree is integral to the construction and operation of the signalised intersection.
Furthermore, the upgrade of John Renshaw Drive will require upgrade of the existing pavement to support the heavy vehicle traffic generated by development on the subject site.
The Applicant prefers the upgrade of John Renshaw Drive to be completed prior to Stage 4 to coincide with the construction of the left in/left out intersection and to include the upgrade of the existing pavement only in the event that it requires upgrade.

Condition C.7 - the requirement for an additional TTIA for upgrades to the M1

The terms of Condition C.7 as proposed by the Respondent may be summarised to require, prior to the carrying out of any works, a further TTIA to identify the upgrades required to the M1 Motorway/Weakleys Drive/John Renshaw Drive intersection, undertaken with the agreement of the Respondents’ in relation to an appropriate study area, traffic generation rates, modelling scenarios and the like.
According to the Respondents’, the need for the condition arises from the inadequacy of the TTIA prepared by the Applicant in assessing the impact of the development on the wider road network.
For the reasons set out at [200], the Applicant considers that any further TTIA is more appropriately required prior to Stage 4.

Condition C8 - the requirement for an additional TTIA for upgrades to Weakleys Drive

The terms of Condition C.8 are similar to those of Condition C.3 and Condition C.7 as it seeks from the Applicant a further TTIA to demonstrate whether or not offsite road upgrade works are required to Weakleys Drive.
For the reasons largely set out at [181]-[183], the Applicant considers the Condition should be deleted.

Condition C.9 – the requirement for an additional TTIA for upgrades to the Southbound merge from the M1

The terms of Condition C.9 are similar to those of Condition C.3, Condition C.7 and Condition C8 as it seeks from the Applicant a further TTIA to demonstrate whether or not offsite road upgrade works are required for additional lane capacity at the southbound merge from the M1 Motorway.
For the reasons set out at [200], the Applicant considers that any further TTIA is more appropriately required prior to Stage 4.
Furthermore, the Applicant proposes that, in lieu of any works being undertaken to the M1 intersection by the Applicant and for the reasons set out by Mr Krjlic at [185], the parties are not constrained from agreeing an alternative means of upgrade wherein the Applicant could enter a Voluntary Planning Agreement or make a monetary contribution consistent with a contributions plan.

Findings

Section 75P(2)(a) of the EPA Act requires the determination of a development application to be generally consistent with the terms of the approval of the concept plan, presumably to ensure that departures from the terms of the Concept Plan approval do not vitiate the original approval for which flexibility is appropriate and inevitable.
Furthermore, any further environmental assessment of the project under Part 4 is to be undertaken in accordance with the requirements determined by the Minister when approving the concept plan, which are at Part D of the Concept Plan approval, as set out at s 75(2)(c).
‘Traffic and Transport’ are identified as matters of further environmental assessment in the terms of the Concept Plan approval. Consequently, the Court must be satisfied that the development the subject of the development application is generally consistent with the terms set out at Condition 1.15 and Condition 1.16 in order conclude that the grant of consent is warranted in accordance with s 4.16 of the EPA Act.
In granting Concept Plan approval, the PAC required further environmental assessment of traffic-related matters, that were to be satisfied by the preparation of a TTIA prepared in consultation with Council and the RMS (Condition 1.15a).
For the reasons broadly stated at [23]-[24], the signalised intersection that is the particular focus of Condition 1.16 is to accord with RMS requirements that are evidenced in a detailed design that is informed by a TTIA prepared in consultation with the First and Second Respondents.
As stated at [108] while I do not consider the relocation of the intersection, of itself, to offend the requirement at s 75P(2)(a) of the EPA Act to be generally consistent with the terms of the Concept Plan approval, an assessment of whether the Applicant has prepared a detailed design in accordance with Condition 1.16 requires consideration of the RMS requirements that are, in effect, set out in Condition 1.15.
In order to assess whether the Applicant has prepared a ‘detailed design’ requires consideration of more than the intersection depicted at Exhibit E Drawing No. C6.11, but must include investigation, modelling and analysis from which the drawing at C6.11 is derived, and which is also to be in accordance with the RMS requirements
Condition 1.15(a) requires a TTIA to be prepared in consultation with the Respondents’, presumably in order to ensure that the parties were aligned in matters relevant to the TTIA and as set out in Condition 1.15(b)-(d).
However, the evidence of the Applicant is that the TTIA was prepared prior to the consultation held between July-October 2019, and only then arising from conciliation discussions under s 34 of the LEC Act.
While I accept that consultation does not always result in agreement, in my mind it follows that where it does not, it is incumbent on the Applicant to demonstrate any likely environmental impacts arising from the divergence of agreement to the satisfaction of the consent authority, or in this case the Court on appeal, in preference to the circumstances where, absent modelling, the likely environmental impacts of the development are the subject of speculation.
I accept Mr Nathwani’s evidence that this could have been done, for example, had the Applicant settled upon a wider study area that demonstrates the limits of the impact the development will likely impose on its environs. This was not done.
Instead, the study area omits intersections that I accept are relevant, such as Weakleys Drive and the New England Highway, and the southbound merge on to the M1 which appear essential to satisfying the intersection analysis and micro-simulation, and offsite road upgrades, required by Condition 1.15(d).
Furthermore, while I accept that the Applicant has, by virtue of the Secretary’s Certificate, satisfied the monetary contributions in respect of Weakleys Drive, I do not accept the Applicant’s submission that proposed upgrades to Weakleys Drive are so remote as to lack a nexus with the development.
As shown in Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at p 101, and more recently by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [6] “Off-site impacts can be caused not only by the proposed development impacting adjoining or other land in an area of influence but also by some other development provided that the impacts of that other development have “a real and sufficient link” with the proposed development, such as where the impacts are caused by “some further undertaking that is ‘inextricably involved’ with the proposed development”.
The Applicant already embraces part of Weakleys Drive within the scope of its micro-simulation modelling and so the Applicant has accepted the intersection and at least a part of Weakleys Drive is relevant to the assessment of likely impacts flowing from the development.
Why only a part, and not the whole, of Weakleys Drive is a relevant input into the micro-simulation modelling for the area was not made clear to me. Given, firstly, that Weakleys Drive runs, primarily, between John Renshaw Drive and the New England Highway, and secondly, that one purpose of a TTIA is to identify and make explicit the input data on which the impact assessment is based, it would appear that the study area fails to demonstrate the limits of the likely environmental impacts arising from the development.
Had consultation occurred in the preparation of the TTIA as required by Condition 1.15(a), the Applicant would also have had the benefit of clarifying the preferred horizon year which does not appear, of itself, to impose a burden either way on the Applicant.
Relatedly, to the extent that the application of the Traffic Modelling Guidelines are now disputed, had consultation occurred in preparing the TTIA, it would have presumably clarified in the Applicant’s mind whether or not the Traffic Modelling Guidelines should form the basis of the TTIA, as is expressly stated by Arcadis in the TTIA, or is to be considered irrelevant, as Mr Rogers states in his evidence.
While I do not consider it to be the role of the Court to now determine the appropriate horizon year, Mr Nathwani’s logic at [157] is, in my view, sound in that, without evidence demonstrating a change in the likely progress of the proposed development staging, the duration of 15 years originally assumed in the TTIA, which was presumably arrived at with some consideration, remains a reasonable assumption for the scale of the development proposed.
Condition 1.15(b) requires the TTIA to detail traffic generation from each stage of the development. From the evidence before the Court, detailing the same assists in an understanding of the need for, the timing of and the scope in respect of offsite road upgrades.
In preference to detailing traffic generation from each stage of the development, the Applicant relies, firstly, upon broad development stages shown in Exhibit G, and secondly, upon validation from Mr Krjlic’s outline in Attachment C, Exhibit 6 to determine a threshold some time after the release of Stage 3, and before Stage 4, when the Applicant then proposes to undertake a further TTIA. In my view, this falls short of the terms of Condition 1.15(b) in three ways:

Firstly, Exhibit G does not provide traffic generation data in respect of each stage of the development,

Secondly, the evidence of Mr Krjlic, as the author of Attachment C, is that I should regard the work as being a ‘back of the envelope’ assessment and no more,

Thirdly, the Applicant’s proposal to undertake a further TTIA at some stage in the future would appear to postpone an assessment of the potential impacts on the wider road network that are essential matters for consideration under s 4.15(1)(b) of the EPA Act, in advance of which presumably would be required in order to agree an appropriate study area and horizon year.

Failure to evidence traffic generation from each stage of the development in relation to offsite road upgrades is perhaps best illustrated in the Applicant’s proposal for disruptive construction works to the M1 Motorway/Weakleys Drive/John Renshaw Drive intersection which is proposed on four occasions over 9-10 years that would result in almost continuous construction over that period.
The offsite road upgrades proposed in Exhibit H, and later in the Applicant’s Proposed draft conditions of consent, marked Exhibit N are not supported by traffic generation coincident with the proposed staging.
To the extent that the works to the M1 Motorway/Weakleys Drive/John Renshaw Drive intersection are regarded as disruptive, the Applicant offers an alternative means to undertaking the works, such as entering into a planning agreement.
However, I accept and adopt the Second Respondent’s submissions to the effect that the provisions of s 7.7 of the EPA Act which, at (3), permits a consent authority to require a planning agreement to be entered into as a condition of a development consent but only if it requires a planning agreement that is in the terms of an offer made by the developer or in respect of a statement of commitments made under Part 3A.
While an alternative means of delivery to that initially proposed by the Applicant may well be in the public interest, the Applicant has not made an offer within the terms of s 7.7 of the EPA Act.

As with the M1 Motorway/Weakleys Drive/John Renshaw Drive intersection, the Applicant also prefers the upgrade of John Renshaw Drive to be completed prior to Stage 4 to coincide with the construction of the left in/left out intersection and to include the upgrade of the existing pavement only in the event that it proves to require upgrade.
In my view, the lack of certainty as to the condition of the existing pavement on John Renshaw Drive, and the unknown geotechnical conditions underlying the signalised intersection prevents me from forming a clear understanding of the extent of offsite road upgrades proposed, and is illustrative of an insufficient level of detail evident in the application in respect of offsite road upgrades that falls short of the terms of Concept Plan approval set out at Condition 1.15(d).
Relatedly, I find that the Applicant’s environmental impact assessment is substantially concentrated on the subject site, and does not include a survey or other environmental impact assessment of the likely environmental impacts arising from offsite road upgrades to John Renshaw Drive and at the southbound merge to the M1 Motorway from John Renshaw Drive in particular.
In arriving at this conclusion, I note that an Endangered Ecological Community of Lower Hunt Spotted Gum Ironbark Forest is prevalent in the area (Exhibit 5, folio 358, Fig 6), that 58 threatened fauna species are located within 10km of the site (Exhibit 5, folio 359), and the provisions of State Environmental Planning Policy No 44—Koala Habitat Protection apply to the area.
For the reasons that follow, I also conclude that the intersection analysis and micro-simulation undertaken is not generally consistent with the terms of Condition 1.15(d) of the Concept Plan approval:

SIDRA modelling, limited to the signalised intersection only, assumes an horizon year of 2044. The TTIA adopts an horizon year of 2031, and micro-simulation of the wider road network adopts an horizon year of 2029. As such, the intersection analysis has not been validated by the micro-simulation undertaken and so the Court is unable to form a view as to the efficacy of the modelling relied upon in developing the scope of offsite road upgrades.

In respect of the errors identified by Mr Nathwani in the intersection analysis contained in Exhibit K, at [139]-[140], the Court was not presented with evidence beyond Mr Rogers’ own assurance that the corrected modelling would achieve an acceptable level of service. Furthermore, as the errors relate to traffic using the adjoining Broaden site, and the impact is said to result in additional queuing at the intersection, the Court cannot be assured of the nature or extent of likely impacts on the locality.

After considering the evidence of the experts in relation to the ONS, I accept that the purpose of the ONS is primarily strategic in the broad study area it adopts, and the level of modelling used in its preparation. I also note the ONS does not purport to undertake any detailed road safety audit or provide a survey that would inform an assessment of environmental impact of the offsite road upgrades. As such, it is not a substitute for the TTIA required by Condition 1.15 of the Concept Plan approval.

Considering all the evidence before me, and for the reasons that follow, I find that the signalised intersection is not a detailed design in accordance with the RMS requirements, and so is not generally consistent with the terms of Condition 1.16 of the Concept Plan approval:

Firstly, Mr Rogers concedes that the modelling undertaken at Exhibit K contains errors. While these errors may not be fatal, that the modelling was undertaken without correct inputs, such as the correct heavy vehicle data, and with errors in the number of vehicles assumed to use the intersection, raises doubts as to the efficacy of the intersection analysis undertaken, and which has not been validated by micro-simulation modelling in a wider context. In short, while the Applicant has established the intersection works in isolation, it provides no evidence that it does not adversely impact the wider road network.

Secondly, while the Applicant submits that geotechnical investigation and pavement selection for the signalised intersection in the location proposed can be readily commenced, neither have been and so the likely impact on the signalised intersection, John Renshaw Drive or its road reserve is unknown.

Finally, the experts are in agreement, albeit for different reasons, that the application is not detailed in its design. Mr Krjlic considers essential modelling to be missing, and investigation and analysis to be deficient. Mr Rogers relies on his experience to question the need for a detailed design in advance of a concept design being approved and a WAD being executed. While it is not determinative of the matter before the Court, in my view Mr Nathwani identifies at [123] what may be the nub of the issue that gives rise to the Applicant’s view that a concept design should be approved before a detailed design is entered into. That is, that the Concept Plan approval was granted on the expectation that the signalised intersection would remain in the location shown in the Concept Plan approval.

For those reasons set out above, I must conclude that the application before the Court is not generally consistent with the terms of the Concept Plan approval as particularised in Condition 1.15 and Condition 1.16, and as required by s 75P(2)(a) of the EPA Act.
While in my view that in and of itself precludes the grant of consent, I note that as the site has a frontage to a classified road, I am also prevented from granting consent unless I am satisfied that the proposed development will not adversely affect the safety, efficiency and ongoing operation of John Renshaw Drive in accordance with cl 101(2)(b) of the SEPP Infrastructure.
The site, when fully developed, will impose 1,500 vehicles per hour on a classified road, within close proximity to a declared Motorway, and a declared Controlled Access Road that, together, form part of the National Land Transport Network and the State road network.
As such, it is essential that the likely environmental impacts of the development in the locality are clearly understood. They are not.
There is no doubt that that this application is for a project of a scale that is complex, extensive and multi-staged. As such, it is imperative that investigation, analysis and modelling is undertaken at both a micro and macro scale, and at each stage of the development so that the likely offsite impacts are understood at each stage.
However, for the reasons stated at [246], in the absence of a detailed design for site access, John Renshaw Drive and other offsite road upgrades, I cannot be satisfied that the volume or frequency of vehicles generated by the proposed development to gain access to the site will not adversely affect the safety, efficiency and ongoing operation of John Renshaw Drive, or of the M1 Motorway pursuant to cl 101(2)(b) of the SEPP Infrastructure.
Finally, as stated at [247], I conclude that the Court cannot be satisfied that the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality are sufficiently understood to warrant the grant of consent, pursuant to s 4.15(1)(e) of the EPA Act.
In arriving at my conclusion, I note advice contained in the RMS December letter that the site, along with development on the adjoining Broaden site forms part of a ‘Catalyst Area’ under the Greater Newcastle Metropolitan Plan 2036 and as such there may be public interest in joint master planning between the Cessnock and Newcastle local government areas if a co-ordinated approach to the development in the EBHP is to be found.

Orders

The Court orders that:

The Applicant is granted leave to rely upon amended plans and other documents at Exhibits E, G and K.

The appeal is dismissed.

Development consent for Development Application No. DA2018/00714 for a ‘one into 200 lot Torrens title subdivision constructed in eight stages, inclusive of vegetation clearing, creek rehabilitation works, earthworks, drainage works, roads, services and landscaping’ on land at 198 Lenaghans Drive, Black Hill is refused.

The exhibits are returned except for Exhibits E, G and K.

………………………

T Horton

Commissioner of the Court

**********

Decision last updated: 03 July 2020

Medium Neutral Citation:	Stevens Holdings Pty Limited trading as Stevens Group v Newcastle City Council (No 2) [2020] NSWLEC 1287
Hearing dates:	12-13 February 2020, 3 March 2020 and 2 June 2020
Date of orders:	03 July 2020
Decision date:	03 July 2020
Jurisdiction:	Class 1
Before:	Horton C
Decision:	The Court orders that: (1) The Applicant is granted leave to rely upon amended plans and other documents at Exhibits E, G and K. (2) The appeal is dismissed. (3) Development consent for Development Application No. DA2018/00714 for a ‘one into 200 lot Torrens title subdivision constructed in eight stages, inclusive of vegetation clearing, creek rehabilitation works, earthworks, drainage works, roads, services and landscaping’ on land at 198 Lenaghans Drive, Black Hill is refused. (4) The exhibits are returned except for Exhibits E, G and K.
Catchwords:	DEVELOPMENT APPEAL – Concept Plan Approval pursuant to Part 3A – Transitional Part 3A – whether application is generally consistent – subdivision of land – traffic and transport impact assessment - likely environmental impacts of the development
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 Land and Environment Court Act 1979 Newcastle Local Environmental Plan 2012 Roads Act 1993 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (State and Regional Development) 2011 State Environmental Planning Policy No 44—Koala Habitat Protection Uniform Civil Procedures Rules 2005
Cases Cited:	Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 Pittwater Council v Minister for Planning (2011) 184 LGERA 419; [2011] NSWLEC 162 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20; [2008] NSWLEC 185
Texts Cited:	Greater Newcastle Metropolitan Plan 2036
Category:	Principal judgment
Parties:	Stevens Holdings Pty Ltd trading as Stevens Group (Applicant) Newcastle City Council (First Respondent) Roads and Maritime Services (Second Respondent)
Representation:	Counsel: A Galasso SC with E Tringali (Applicant) F Berglund (First Respondent) S Nash and A Hemmings (2 June 2020) (Second Respondent) Solicitors: DWF (Australia) (Applicant) Newcastle City Council (First Respondent) Corrs Chambers Westgarth (Second Respondent)
File Number(s):	2018/377424
Publication restriction:	No