Land and Environment Court New South Wales Medium Neutral Citation: Goolawah Co-operative Limited v Kempsey Shire Council [2022] NSWLEC 1498 Hearing dates: Conciliation conference on 9 & 28 August 2022; 1 September 2022 Date of orders: 20 September 2022 Decision date: 20 September 2022 Jurisdiction: Class 1 Before: McEwen AC Decision: The Court orders: (1) The appeal is upheld. (2) Development consent T6-02-109 for a seventy-eight (78) lot rural landsharing community at 200 Illa Langi Road, Crescent Head NSW (Lot 1 in DP 1191860) and associated roadworks is modified in the terms set out in Annexure 'A'. (3) Development consent T6-02-109 for a seventy-eight (78) lot rural landsharing community at 200 Illa Langi Road, Crescent Head NSW (Lot 1 in DP 1191860) and associated roadworks as modified by the Court is Annexure 'B'. Catchwords: MODIFICATION APPLICATION – alteration to staging of roadworks – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9, 8.10 Environmental Planning & Assessment Regulation 2000, cl 49 Kempsey Local Environmental Plan 2013, cll 5.2, 5.6, 5.8, 5.10, 5.16, 7.1, 7.2, 7.3, 7.4, 7.9, 7.11; Pts 4, 5, 6, 7 Land and Environment Court Act 1979, s 34 State Environment Planning Policy (Biodiversity and Conservation) 2021 State Environmental Planning Policy (Building Sustainability Index BASIX) 2004 State Environmental Planning Policy (Industry and Employment) 2021 State Environmental Planning Policy No. 15 – Rural Landsharing Communities State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy (Transport and Infrastructure) 2021 Texts Cited: Kempsey Shire Council, 'Comprehensive Koala Plan of Management for Eastern Portion of Kempsey Shire LGA Volume I—The CKPoM (Working Provisions)' (April 2011) Category: Principal judgment Parties: Goolawah Co-operative Limited (Applicant) Kempsey Shire Council (Respondent) Representation: Counsel: P Clarke (Solicitor) (Applicant) A Pickup (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Local Government Legal (Respondent) File Number(s): 2022/111192 Publication restriction: No Judgment 1. COMMISSIONER: The nature of the proceedings: These proceedings are an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant against the deemed refusal by the Kempsey Shire Council (respondent) to modify development consent no. T6-02-109 (Consent) which approved a 78-lot rural landsharing community at 200 Illa Langi Road, Crescent Head (legally described as Lot 1 in DP 1191860) (Site), and associated roadworks upon Nevertire Road and Illa Langi Road, which provide access to the Site. 2. The modification application T6-02-109 REV 04 (Modification Application) was lodged with the respondent on 11 January 2022. The appeal was filed on 19 April 2022 within the time limit prescribed by s 8.10 of the EPA Act. 3. The appeal falls within Class 1 of the Court's jurisdiction. The statutory power to be exercised in determining the proceedings is contained in s 4.55(1A) of the EPA Act. 4. The Modification Application seeks consent for modification to condition 4 of the Consent. Condition 4 imposed an obligation upon the applicant to carry out certain road upgrade and maintenance works to Nevertire Road and Illa Langi Road (Works) to facilitate the carrying out of the development approved in the Consent. Specifically, the applicant seeks to alter the staging of the bitumen sealing of Nevertire Road and the maintenance regime for Illa Langi Road, which is to remain an unsealed gravel road. 5. The conciliation conference: The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act (LEC Act) between the parties, which was held on 9 August 2022. The conciliation conference continued on 24 August 2022 and 1 September 2022. I presided over the conciliation conference. 6. The parties' agreement: At the conciliation conference the parties reached agreement as to the terms of a decision which would be acceptable to the parties. This decision involves the Court upholding the appeal and modifying the Consent. A signed written agreement was filed with the Court on 2 September 2022. 7. Satisfaction of jurisdiction: Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. In this case, as noted above, the parties' decision involves the Court exercising the function under s 4.55(1A) of the EPA Act to modify the Consent. 8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings in a joint jurisdictional statement. The parties further explained how these prerequisites have been satisfied. The matters of relevance and the parties' explanation as to their satisfaction are summarised below. 9. The Works that are proposed to be carried out (as modified during the proceedings) will be undertaken on the road reserve for both Nevertire and Illa Langi Roads. 10. The Modification Application was lodged with the consent of the owner of the Site, being the applicant, in accordance with (now repealed) cl 49 of the Environmental Planning and Assessment Regulation 2000 (Regulation). 11. The Modification Application was assessed by the respondent under s 4.55(1A) of the EPA Act. In relation to the jurisdictional requirements of s 4.55(1A): 1. The Court can be satisfied that the development as it is proposed to be modified is substantially the same development as the development for which consent was originally granted and before that consent was modified. The effect of the Modification Application (as amended) is to substitute one standard of road upgrading and maintenance, and the timing in respect of same, for another. The development approved by the Consent remains unchanged. 2. No conditions of the Consent were imposed as a requirement of concurrence of the Minister, or any public authority or approval body. 3. The Modification Application was notified in accordance with the requirements of the EPA Act, the Regulation and the respondent's notification policy between 16 May 2022 and 30 May 2022. The submissions made in respect of the Modification Application were considered and taken into account by the parties in the course of reaching agreement in the proceedings. 4. The parties agree that the approval of the Modification Application would be in the public interest. 5. The parties agree that the application is of minimal environmental impact as the sealing of Nevertire Road will mean that the use of the road will generate less dust and noise than would be generated if the road was not sealed. 1. The respondent has taken into consideration the reasons given by it as consent authority for the grant of the consent that is sought to be modified (s 4.55(3) of the EPA Act). 2. The parties have agreed on the wording of an amended condition 4. The parties agree that the conditions of the Consent as proposed by the Modification Application are appropriate. 3. The parties agree that implementation of the agreement they have reached would bring about a determination that is both final and certain and would not leave for later determination any aspect of the Modification Application. 4. The parties refer to the relevant environmental planning instruments as set out below but note that these provisions do not act as jurisdictional pre-conditions to an application to modify a development consent. As required by s 4.55(3) of the EPA Act, the provisions of those instruments have been taken into consideration insofar as they are of relevance to the development the subject of the Modification Application. Kempsey Local Environmental Plan 2013 (KLEP): 1. Pursuant to the KLEP, the Site contains the following land zoning: 1. C1 – National Parks and Nature Reserves; 2. C2 – Environmental Conservation; 3. RU1 – Primary Production; and 4. RU2 – Rural Landscape. 1. At the time of the granting of the Consent, the development approved pursuant to the Consent was permissible in the RU1 and RU2 zoned portions of the Site in accordance with the (now repealed) State Environmental Planning Policy No. 15—Rural Landsharing Communities (SEPP 15). The relevant provisions of SEPP 15 are now found within cl 7.11 of the KLEP. 2. The respondent (and the Court in the exercise of the respondent Council's powers) has the power to approve the Modification Application pursuant to cl 7.11 of the KLEP. 3. None of the development standards in Pt 4 of the KLEP apply to the Works, nor to any part of the Modification Application, as the Modification Application does not propose any physical amendment to any part of the development approved by the Consent to which any of the standards in Pt 4 of the KLEP apply. 4. The respondent is satisfied that the Modification Application can be approved having considered the matters related to flood planning as set out in cl 5.21(2) of the KLEP. 5. None of the remaining miscellaneous provisions in Pt 5 of the KLEP apply to the Works, nor to any part of the Modification Application, as neither the Site nor the road reserves are: 1. intended to be acquired for public purposes; 2. proposed to be used for any purpose other than residential use; 3. below the mean high water mark; or 4. within or adjacent to a Heritage Conservation Area. 1. Further, the Modification Application does not propose any amendment to the Consent to which cll 5.6, 5.8, 5.10 or 5.16 of the KLEP applies. 2. None of the urban release area provisions in Pt 6 of the KLEP apply to the Modification Application, as neither the Site nor the road reserves are within an urban release area. 3. The parties agree that the Works are not likely to lower the water table and accordingly agree in accordance with cl 7.1(6)(b) of KLEP that an acid sulfate soils management plan is not required for the approval of the Modification Application in accordance with cl 7.1(3) of the KLEP. 4. The respondent has considered the matters relating to earthworks as set out in cl 7.2(3) of the KLEP. 5. The respondent is satisfied that the Works will be in accordance with the Kempsey Shire Council's Comprehensive Koala Plan of Management for Eastern Portion of Kempsey Shire LGA Volume I —The CKPoM (Working Provisions), published in April 2011 as required in cl 7.4(3) of the KLEP. 6. The respondent is satisfied that essential services will still be available to the Site, in accordance with cl 7.9 of the KLEP. 7. The Site already benefits from the Consent granted in accordance with (now) cl 7.11 of the KLEP. The Respondent has reached the necessary state of satisfaction in respect of all matters set out in subcll. 7.11(3)-(6) of the KLEP such that the Modification Application is capable of approval. State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP Resilience and Hazards) 1. The respondent agrees that the Works are "not potentially hazardous" and accordingly SEPP Resilience and Hazards does not apply. State Environment Planning Policy (Biodiversity and Conservation) 2021 (SEPP Biodiversity and Conservation) 1. The respondent has considered the matters set out in Chs 3 and 4 of SEPP Biodiversity and Conservation and is satisfied that the Works will not have any adverse impact on any nearby koala habitat. State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) 1. Neither the Consent as originally granted nor the Works as proposed are types of development to which SEPP Transport and Infrastructure applies. State Environmental Planning Policy (Industry and Employment) 2021 (SEPP Industry and Employment) 1. Neither the Site nor the road reserves are land to which SEPP Industry and Employment applies. State Environmental Planning Policy (Building Sustainability Index BASIX) 2004 (SEPP BASIX) 1. No part of the Modification Application proposes the erection of a dwelling house, and therefore SEPP BASIX does not apply. 2. Based upon the above matters, and as required by s 34(3) of the LEC Act, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions. 3. Disposal of proceedings in accordance with the parties' decision: As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 4. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the Modification Application that arise pursuant to the assessment under s 4.15 of the EPA Act as called up in s 4.55(3) of the EPA Act. 5. The Court orders: 1. The appeal is upheld. 2. Development consent T6-02-109 for a seventy-eight (78) lot rural landsharing community at 200 Illa Langi Road, Crescent Head NSW (Lot 1 in DP 1191860) and associated roadworks is modified in the terms set out in Annexure 'A'. 3. Development consent T6-02-109 for a seventy-eight (78) lot rural landsharing community at 200 Illa Langi Road, Crescent Head NSW (Lot 1 in DP 1191860) and associated roadworks as modified by the Court is Annexure 'B'. ………………………. C McEwen Acting Commissioner of the Court Annexure A (162693, pdf) Annexure B (8608496, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2022