Land and Environment Court New South Wales Medium Neutral Citation: Kousis v Inner West Council [2022] NSWLEC 1611 Hearing dates: 23 September 2022 and 6 October 2022 Date of orders: 04 November 2022 Decision date: 04 November 2022 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders: 1) The appeal is dismissed. 2) The Exhibits A, B, C, D, E, G, J, K, L, M, 1, 2, 3, 4, 5, 6, and 7 are retained. Exhibit H is returned. Catchwords: MODIFICATION APPLICATION – secondary access – modification of condition and deletion of advisory note – minimal amendment Legislation Cited: Access to Neighbouring Land Act 2000 ss 5, 7, 33 Environmental Planning and Assessment Act 1979 ss 1.3, 1.4, 4.15, 4.16, 4.17, 4.55, 4.55(1A), 8.9, 8.10, 8.14 Environmental Planning and Assessment Amendment Act 1999 Environmental Planning and Assessment Regulation 2021 cll 67, 113 Environmental Planning and Assessment Regulation 2000 cl 23 Environmental Planning and Assessment Amendment (Modification) Regulation 2021 Interpretation Act 1987 s 3 Land and Environment Court Act 1979 ss 17, 39 Leichhardt Local Environmental Plan 2013 zoning Roads Act 1993 s 16 Road Transport (General) Regulation 2021 cl 120 Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council 11 Elvina Avenue Pty Ltd v Pittwater Council; Doering v Pittwater Council; 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223. Bardsley-Smith & Anor v Penrith City Council & Ors [2012] NSWLEC 79 Bechara v Plan Urban Services Pty Ltd (2006) 149 LGERA 41 Bentley & Ors v Drummoyne Council & Ors [1999] NSWLEC 84 Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 69 House of Peace Pty Ltd & Anor v Bankstown City Council [2000] NSWCA 44 Intrapac Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 83 J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23 Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227 King, Markwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362 Ku-ring-gai Council v Buyozo Pty Ltd [2012] NSWCA 177 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2) [2015] NSWLEC 114 MLC Properties v Camden Council (1997) 96 LGERA 52 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Planning Commissioner (WA) v Temwood Holdings Pty Ltd [2004] HCA 63 Thompson v Randwick Corporation [2950] HCA 33; (1950) 81 CLR 87 Texts Cited: Draft Inner West Local Environmental Plan 2020 Leichhardt Development Control Plan 2013 Category: Principal judgment Parties: Filippo Kousis (First Applicant) Amy Kousis (Second Applicant) Inner West Council (Respondent) Representation: Counsel: M Fozzard (Applicant) S Turner (Solicitor)(Respondent) Solicitors: D G Briggs & Associates (Applicant) Inner West Council (Respondent) File Number(s): 2022/155922 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 appeal against a deemed refusal of an application to modify development consent no. DA 2020/1159 (DA/2020/1159) being MOD/2021/0525 (Modification) proposing the modification of a condition of consent and deletion of an advisory note, pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act). 2. The proceedings are brought pursuant to s 8.9 of the EPA Act, and fall within Class 1 of the Court's jurisdiction pursuant to s 17d of the Land and Environment Court Act 1979 (LEC Act). 3. The proceedings were commenced in this court within the time period provided by s 8.10 of the EPA Act. 4. The statutory function to be exercised in determining the proceedings is s 8.14(1) and (2) of the EPA Act and s 39(1)-(8) of the LEC Act. 5. DA/2020/1159 granted consent on 27 July 2021 for "Ground and first floor alterations and additions to existing detached dwelling-house, new swimming pool and associated works, including tree removal" (Ex A: Application Class 1, Annexure B) [1] . 6. Inner West Council (Council) is of the view that the legal access is off Nelson Street, Rozelle whilst the Applicants consider that the legal access to the Site is both from Nelson Street, and relevantly for this case from York Place. 7. The subject site (the Site) is Lot 8 Sec A in Deposited Plan 119, and is known as 73 Nelson Street, Rozelle. The Site is located on the northern side of Nelson Street, and presently accommodates a single storey dwelling. It is approximately 304m2 in area and has a frontage of approximately 9.8m to Nelson Street and 9.8m at the rear – part of the rear boundary faces onto York Place but is separated from it by a parcel of land approximately 0.61m in depth (Ex 1: Council's Statement of Facts and Contentions filed 6 July 2022 (SOFAC) p 2) [2] . 8. The parcel of land between York Place and the Site is the whole of the land in Lot 1 in Deposited Plan 724767 having a depth of 0.61m and a width of approximately 9.145m (York Place strip of land). The 9.8m rear boundary of the Site appears to back onto York Place but of the 9.8m rear boundary line, approximately 9.145m, being the York Place strip of land and the width of York Place, separates York Place from the Site in the area directly between the Site and York Place. Figure 1: The Site – outlined in green. Ex 1: SOFAC p 3 1. Figure 1 shows the front of the Site facing onto Nelson Street, and the rear facing onto York Place, however, the York Place strip of land which separates the Site from York Place is hidden on Figure 1 underneath the tree canopy, but it can be clearly seen on the Survey plan by Peak Surveying Services prepared by M Elliott and J Pierce dated 16 September 2020, and being tab 2, pp 24, and 25 of Ex B: Applicant's Bundle of Documents [3] , and Ex A last page of unnumbered pages. 2. The Site and all surrounding properties are located within the R1 General Residential zone under Leichhardt Local Environmental Plan 2013 (LLEP 2013), as shown in Figure 2 below, and the proposed development is permissible with consent (Ex 1 SOFAC pp 2). The provisions of the draft Inner West Local Environmental Plan 2020 do not amend the relevant zoning of the Site. Figure 2: The Site outline in red within the General Residential Zone, showing the Heritage Conservation Area (in diagonal pink lines), and the listed Heritage Items in York Place shaded in brown. 1. The Site is not heritage listed, but it is within a heritage conservation area. To the rear of the Site to the north is a row of Heritage listed buildings (shown in brown on Figure 2) consisting of No. 2 – 16 York Place (Ex 1: SOFAC p 2) 2. The adjoining properties consist of mixed single and double storey residential dwellings. 3. Nelson Street is sufficiently wide to enable angled parking adjacent to the Site, and parallel parking on the opposite side of Nelson Street (see Figure 1 above). 4. York Place is a narrow road (9.145m wide) which Council has permitted to be a shared zone by: 1. Identifying a 3.1m wide access through the centre of York Place which permits vehicular access either by driving in a forward manner and reversing out of York Place, or vice versa, and is a shared zone with pedestrians. 2. Allowing street parking via marked street parking bays 2.1m wide which straddle the street and the footpath on both sides of York Place. 3. By allowing the street parking, the pedestrian access either side of York Place has been reduced by 0.3m and is now 1.2m wide. The residents of York Place share access to and from their homes with the vehicular traffic – hence the 'shared zone'. Details of York Place parking and vehicular traffic are given on Ex G: Leichhardt Council's York Place, Rozelle, Narrow Streets, Marked Bays and Tree Planting, dated 22 February 2010, Plan No. NS-YOR-1 [4] 1. On-site parking is at a premium in the surrounding area. The pressure on the on-street parking in the vicinity of the Site is reflected by the 4 hour parking restrictions that apply in Nelson Street (to the north-west of Evans Street) between 8am and 10pm; and 2 hours parking restrictions that apply in York Place between 8am and 10pm seven days a week, other than where the car has a resident sticker or a visitor parking sticker. A resident parking permit and a visitor parking permit has been issued to the Site since 2006: Ex 1, SOFAC p 4). 2. On 30 April 2020 the Site was transferred to the Applicants (Ex 1, SOFAC, p 6 [6.10]). On 27 May 2020, IWC Residential Parking Permit (PKR/2020/2993) and Visitor Parking Permit (PKV/2020/0374) were issued to the Applicants with an expiry date of 30 April 2022 (Ex 1, SOFAC, p 6 [6.12]). 3. The Application seeks 2 amendments (via deletions) to DA2020/1159, which for convenience I have underlined below: 16 Construction Traffic Management Plan Prior to any demolition, the Certifying Authority, must be provided with a detailed construction Traffic management Plan (CTMP) to cater for construction prepared by a person with RMS accreditation to prepare a work zone traffic management plan. Details must include truck parking areas, work zones, crane usage, etc., related to demolition/construction activities. A work zone approval must be obtained. All site access must be off Nelson Street. Advisory Notes Public Domain and Vehicular Crossings This development consent does not authorise vehicular or pedestrian access to the property off York Place. In this regard the applicant must first demonstrate that they have a legal right to attain access. (Advisory Note) Ex A: pp 8-9 and 13 respectively in annexure 'B'. Legislation Access to Neighbouring Land Act 2000 5. Act does not authorise work or activity regulated by or under other Act and does not authorise access prohibited by or under other Act (1) Nothing in this Act: (a) enables a person to carry out any work or engage in any activity for which a consent or other authority must be obtained or granted under any other Act without the required consent or authority, or (b) enables a person to carry out any work or engage in any activity that is prohibited by or under any other Act. (2) A person may not apply for an access order under this Act if access to the land concerned, for the purposes for which access is required, is prohibited by or under another Act. 7 Persons who may apply for a neighbouring land access order (1) A person who, for the purpose of carrying out work on land owned by the person, requires access to adjoining or adjacent land may apply to the Local Court for a neighbouring land access order. (2) A person who, for the purpose of carrying out work on land owned by another person, requires access to adjoining or adjacent land may apply to the Local Court for a neighbouring land access order with the consent of the person on whose behalf the work is to be carried out. (3) The Local Court may waive the requirement for consent under subsection (2) if it thinks it appropriate to do so in the circumstances. (4) A person may apply for a neighbouring land access order even if access to the land concerned, for the purposes for which access is required, may be obtained by way of an easement imposed by an order under section 88K of the Conveyancing Act 1919. However, a person may not apply for a neighbouring land access order if access to the land concerned, for the purposes for which access is required, may be obtained or granted under any other provision of an Act. Environmental Planning and Assessment Act 1979 4.55 Modification of consents—generally (cf previous s 96) …… (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application— (a) the provisions of— (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. (2) Compliance with non-discretionary development standards—development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority— (a) is not entitled to take those standards into further consideration in determining the development application, and (b) must not refuse the application on the ground that the development does not comply with those standards, and (c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards, and the discretion of the consent authority under this section and section 4.16 is limited accordingly. (3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards— (a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and (b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard. Note— The application of non-discretionary development standards to complying development is dealt with in section 4.28(3) and (4). (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority— (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria. (4) Consent where an accreditation is in force A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations. (5) A consent authority and an employee of a consent authority do not incur any liability as a consequence of acting in accordance with subsection (4). (6) Definitions In this section— (a) reference to development extends to include a reference to the building, work, use or land proposed to be erected, carried out, undertaken or subdivided, respectively, pursuant to the grant of consent to a development application, and (b) non-discretionary development standards means development standards that are identified in an environmental planning instrument or a regulation as non-discretionary development standards. 4.17 Imposition of conditions (cf previous s 80A) (1) Conditions—generally A condition of development consent may be imposed if— (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under section 4.16(3) or (5), subsections (5)–(9) of this section or section 7.11, 7.12, 7.24 or 7.32. (2) Ancillary aspects of development A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority. (3) A consent authority that has not determined a request to indicate whether a specified aspect of development has been carried out to the satisfaction of the consent authority, or a person specified by the consent authority, within the relevant period, prescribed by the regulations, applicable to the aspect or the development is, for the purpose only of section 97, taken to have determined the request by indicating that it, or the person, is not satisfied as to the specified aspect. (4) Conditions expressed in terms of outcomes or objectives A consent may be granted subject to a condition expressed in a manner that identifies both of the following— (a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve, (b) clear criteria against which achievement of the outcome or objective must be assessed. (4A) Conditions replaced by other legislative controls A development consent for the carrying out of development may be granted subject to specified conditions that cease to have effect on the issue of an authorisation under another Act relating to that development (or any part of it) if the consent authority is satisfied that the matters regulated by those conditions will be adequately addressed by such an authorisation when it is issued. The regulations may restrict the imposition of any such condition. (4B) Conditions relating to financial assurance A development consent may be granted subject to a condition of a kind described in Part 9.4 of the Protection of the Environment Operations Act 1997 to secure or guarantee funding for or towards the carrying out of works or programs required by or under the consent. The regulations may restrict the imposition of any such condition and may make provisions with respect to any such condition of the kind set out in that Part (including in relation to the calling on and use of any financial assurance). (5) Modification or surrender of consents or existing use rights If a consent authority imposes (as referred to in subsection (1)(b)) a condition requiring the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11, the consent or right may be modified or surrendered subject to and in accordance with the regulations. (11) Prescribed conditions A development consent is subject to such conditions as may be prescribed by the regulations. Note— Section 6.16(2) provides that a condition of consent has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development. 8.14 Powers of Court on appeals (cf previous s 39(6A) Land and Environment Court Act) (1) In addition to any other functions and discretions that the Court has apart from this subsection, the Court has, for the purposes of hearing and disposing of an appeal under this Division, all the functions and discretions which the consent authority whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (2) The decision of the Court on an appeal under this Division is, for the purposes of this or any other Act or instrument, taken to be the final decision of that consent authority and is to be given effect to accordingly. 1. A modification application made under s 4.55(1A) of the EPA Act requires that the consent authority to be satisfied that the proposed modification is of minimal environmental impact. The assessment requirements are less extensive for a modification when compared with a development application. However, assessment of the modification relates to the state of mind of the relevant consent authority and is reviewable by a court: King, Markwick, Taylor & Ors v Bathurst Regional Council (2006) 150 LGERA 362; [2006] NSWLEC 505 (King, Markwick), per Jagot J at [60], [61] – "The conditions which qualified the exercise of power under s 96(1A) in this case were contained in sub-s (a) and (b) – namely, that the Council was satisfied that the proposed modification was of minimal environmental impact, and that the Council was satisfied that the development to which the consent as modified related was substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified." "Both conditions turned upon the state of mind of the Council, rather than the existence of objective facts. This does not mean that the exercises of the power by the Council are beyond the scope of judicial review. First, the power to modify a consent under s 96(1A) is available only if the Council, in fact, formed the relevant states of satisfaction. Secondly, the decisions reached must not be affected by any material misdirection in law, and must be so unreasonable that no reasonable authority could properly have arrived at the decisions (see, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130] – [137] per Gummow J, and the cases there cited)." Section 96(1A) was inserted into the EPA Act by the Environmental Planning and Assessment Amendment Act 1999 Sch 33 cl 4, and which has been superseded by s 4.55(1A). 1. The word 'minimal' in s 4.55(1A)(a) takes its ordinary meaning of very small or negligible, as per Jagot J in [84] of King, Markwick. 2. It is the impact that must be minimal, rather than the proposed modification itself: Bechara v Plan Urban Services Pty Ltd (2006) 149 LGERA 41; [2006] NSWLEC 594 (Bechara) per Jagot J at [57]: "…..The 'minimal' requirement qualifies the 'environmental impact' of the proposed modification, rather than the proposed modification itself – which is subject to the 'substantially the same' requirement in s 96(1A)(b). Hence, the focus must be on the impact or effect of the modification on the environment. Given the very broad and inclusive definition of 'environment' in s 4(1) of the EPA Act, it is necessarily a matter for the consent authority to identify for itself the relevant categories of potential impacts." 1. The requirement to consider the 'impacts' in the context of s 4.55(1A) demands a comparative assessment of the environmental impacts of the development as originally approved and the development as modified. Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 (Dravin) at [57]: "Furthermore, the task required by s 96(1A)(a) demands a comparative assessment of the environmental impacts of the development as originally approved and the development as modified. As with the task required by s 96(1A)(b), the comparative assessment required by s 96(1A)(a) is not to be done in a 'sterile vacuum' by comparing the bare terms of the consent as originally granted and the consent as modified, but rather is to involve an appreciation, qualitative as well as quantitative, of the developments and the environmental impacts of those developments." 1. The Council raised 3 contentions (Ex 1: SOFAC pp 11-12): 1. "Parking/Access: No parking/access was approved nor proposed as part of the subject development application. Had parking/access formed part of D/2020/1159 any works would be required to be within the subject property, any use and works on adjoining land would need to be legally recognised and form part of the development application, the planning objective is to reduce vehicle dependency and priority is given to safely (sic) and other persons. There are means of providing construction access to the property. Particulars 1. DCP – C1.11 Parking provides objectives: a) Objective O1 to reduce reliance on the car. b) Objective O2 – priority is to be given to the needs of pedestrians, disabled people and cyclists above the needs of the car. ……..." 1. "Legal access: There is no evidence that the Site has legal right of way (ROW) over a residential parcel of land (York Street strip of land). Conditions are imposed to access to the Site pre and post construction via Nelson Street until such time the owners can establish legal access to York Place." 2. "The Public interest: Construction of development or alteration of approved development without following the procedures laid down under the EPA Act undermines the planning process and is contrary to the public interest. The well founded objections raised by neighbouring residents clearly demonstrate this." 1. The York Street strip of land remains in the ownership of Frances William Robinson by virtue of a Deed dated 1 February 1908 (Ex B: Applicant's Bundle of Documents, p 18). There is no evidence before me that: 1. The York Street strip of land has been dedicated to Council pursuant to s 16(1) of the Roads Act 1993, and therefore does not come under the provisions of the that Act. 2. Any actions have been taken by the Applicants to ascertain if any living descendants of Frances William Robinson exist who would have a right to the title of the York Street strip of land, and the ability to grant a right of way over the land in favour of the Applicants, or indeed sell the strip of land to the Applicants or Council. 3. Any actions have been taken by the Applicants in the Local Court of NSW to secure a right of way over the York Street strip of land for the purposes of general access via York Place, or, relevant to this case, for access during the construction of the works under D/2020/1159 pursuant to the provisions of Pt 2, Div 2 s 7 (1) of the Access to Neighbouring Land Act 2000 (ANL Act). 4. Any actions by Council to bring the ownership of the York Street strip of land into its name, and it thereby become part of York Place. 5. There has been continued use of York Place by pedestrians or vehicular traffic via the gate at the rear of 73 Nelson Street since 1989/1990. 6. Who constructed the concrete 'layover' from the rear of the Site to York Place, for a width of approximately 30cm, or when it was constructed. The concrete 'layover' was not approved by Council, and gives ease of vehicular access from York Place through the rear gate of the Site. 1. In order to uphold the appeal "the consent authority must be satisfied that the proposed modification is of minimal environmental impact (s 4.55(1A)(a) of the EPA Act); the consent authority must be satisfied that the development to which the consent as modified relates to substantially the same development as the development for which the consent was originally granted before that consent as originally granted was modified (s 4.55(1A)(b)); the consent authority has notified the application as required (s4.55(1A)(c)); and the consent authority has considered any submissions (s 4.55(1A)(d))" as per Preston CJ in Intrapac Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 83 (Intrapac Skennars) at [35]. 2. By Condition 16 in DA/2020/1159 Council denies ingress and egress to the Site from York Place to enable construction works to carry out the building works as permitted in DA/2020/1159. 3. The Modification seeks to: 1. Remove the prohibition to access for construction in Condition 16; and 2. Remove the Advisory Note stating that no vehicular access or pedestrian access is permitted to the Site from York Place until the Applicant obtains legal access over the York Place strip of land. 1. The Applicants challenge Condition 16 and the Advisory Note in two ways: 1. Council has granted consent to a gate in the rear fence (see paragraphs 29 & 30 below) and thus has granted vehicular and pedestrian access to York Place, across the York Place strip of land, to the owners of the Site. It is a right in rem. By imposing the last sentence in Condition 16 the Council denies the existing right of the Applicant to apply to the Local Court for a right of way over the York Place strip of land to York Place pursuant to ss 5 and 7 of the ANL. DA/2020/1159 did not include any alteration or modification of the rear fence and rear gate. 2. The Council's Condition 16 in DA/2020/1159 is unlawful because it does not meet the 3 tests laid down in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury). 1. be imposed for a planning purpose – not an ulterior one; 2. fairly and reasonably relate to the development that is the subject of the development application; and 3. not be so unreasonable that no planning authority would have imposed it (Wednesbury principle: Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223. 1. Whilst stating the above arguments in favour of their case, the Applicants also acknowledge that it is not part of their case to prove the validity of the former BA consents granting permission for a gate in the rear fence. The Gate in the Rear Fence 1. Relevantly to this matter is the construction of a gate in the rear fence at the Site. In Ex 1: SOFAC, p 5, para 6.1 – 6.5 (Council's position): "6.1 On 28th April 1989, approval was granted for building application (BA89/238) for construction of a 1.8 metre high fence to replace the existing 1.5 metre high fence at the York Place frontage. The certificate of levels no. 2334 dated 20 June 1989, states that the levels at the boundary to be 170mm above the asphalt road to York Place which confirms that no vehicle crossing was considered. 6.2 On 2 April 1990, approval was granted for building application (BA/90/165) for a single storey alterations and additions and driveway off York Place. 6.3 On 3 September 1990, a Building Certificate (BC237/90) was issued. The survey plan with the application provided is dated 18 January 1989. 6.4 On the 19 June 1991, a letter from council was issued advising that BA/90/165 was null and void as work had not commence. 6.5 On 6 September 1996, approval was granted for building application (BA/96/555) for alterations to existing fence and gate to the rear boundary off York Place. There are no indications of the adjoining land Lot 1 DP 724767, no driveway, no vehicle space, no crossing. There is no record of a vehicular crossing application / approval." 1. In response the Applicant states: 1. BA 89/238 already relevantly included gate access (Ex E: Applicants' Statement of Facts and Contentions in Reply filed 29/07/22 [5] [4.1.1] p3). (SOFACIR); and 1. The 1989 BA – Ex 6 p 5 letter from Peters & Ludlow solicitors on behalf of the owners of 7 York Place to Council dated 21 May 1990 which stated – "We should be pleased if you would kindly provide us with details of Council's approval in respect of the rear access to the Nelson Street property in order that we can give this matter our further consideration. "As indicated on the telephone we consider that it is completely unreasonable that council should approve the construction of a driveway in such a position that our clients are prevented from parking in front of their property…." 1. Council responded to Peters & Ludlow on 28 May 1990 – Ex 6 p 14, stating inter alia: "On 27 April 1990 the application was approved by Council subject to a number of conditions. "Your comments have been noted and you are advised the approval granted is valid and work has been carried out in accordance with the conditions of approval of the approved plan." 1. 1990 BA dated 6 April 1990 in relation to 73 Nelson Street giving consent to the erection of a single storey addition to the rear of the dwelling. Ex 6, pp 37-41, and – 1. On 6 April 1990 Council wrote to the owner of 73 Nelson Street in relation to BA 90/165 for single storey addition to rear of dwelling, and stated inter alia – "This is to certify that the plans and specifications numbered 90/165 have been approved by the Council subject to conditions hereunder…..". Ex 6, pp52-53. 1. The works according to BA 96/555 were finalised and photographs of their finalisation were forwarded to Council in a letter dated 14 January 1997 (Ex 6: tab 3, pp 64-65), and - 1. On 10/02/1997 the completed works (according to BA 96/555) were inspected by Council and approved (Ex 6: tab 3, p 86). 1. Clearly Condition 16 seeks to restrict access for the purposes of construction to Nelson Street. In view of the challenge brought by the Applicants, the question to be determined is: Do the proposed modifications to Condition 16 and deletion of the Advisory Note amount to a minimal modification to D/2020/1159 from a qualitative and quantitative perspective? 2. The town planning experts (Mr Kim Burrell for the Applicant, and Mr Tim Cooper for the Council) conferred and prepared a Joint Expert Report filed on 19 August 2022 (Ex 3) [6] : 1. The town planner experts agreed in Ex 3, para 2.1, p3: "It is agreed that the survey for BA 89/328 did not illustrate the spite strip at the rear of 73 Nelson Street." The reference to the "spite strip" is a reference to the York Street strip of land. 1. Mr Burrell, for the Applicant, states, inter alia in Ex 3: "2.9 I understand the Council's contention asserts, in summary, that the subject site does not have any legal vehicle access to York Place (at the rear of the site), no access was sought from the current development application D/2020/1159 and that there are alternative means of construction access. Integral to this matter, it would appear that Council was not aware of the existence of a spite strip at the rear of the site and its intention under the current application is to effectively prevent access to York Place despite it granting building approvals late last century providing same. 2.10 With respect to the first part of [2.9] i.e. legitimate vehicle access, in my opinion, the proposal has the benefit of development consent for vehicle access into the backyard via York Place. No action has been taken by the council to seek a declaration that the consents are null and void as a result of its assertion. After detailing BA 89/238, BA 90/165 and BA 96/555, Mr Burrell continues: 2.22 It is noted that the difference between BA 96/555 and BA 89/238 is that the sliding gate replaced the paired inward opening gates and the sliding component commenced 1500mm from the western boundary rather than flush to the common western boundary. 2.23 I am satisfied that the site enjoys the benefits of vehicle access as approved by BA 89/238 and the subsequent approval by BA 96/555. 2.24 With respect to the second part of [2.9] I am satisfied that no access was sought from the current development application DA/2022/1159 … nor was it required to be sought…. 2.25 With respect to the third part of [2.9], I am satisfied that alternative access from the front of the site (Nelson Street) is not relevant because existing valid approvals provide access from York Place." 3.5 In my opinion, condition 16 does not satisfy the Newbury Test with respect to the imposition of conditions on a development consent. 3.6 I understand that the condition's planning purpose is to manage construction access to the site. However, Council's planning report suggests that the nexus between the condition and the development is a greater degree relates to the question of legal access to and from York Place rather than a question of greater impact on York Place residents than on Nelson Street residents. Furthermore, the condition is inherently superseded by the fact that application can be made to the local court for site access over an adjoining lot pursuant to Access to Neighbouring Land Act 2000. In my opinion, it is therefore extraneous. 3.7 As stated above, the condition may relate to site access during construction, however, it is not fair and reasonable as it appears that the council's assessment of the application has disregarded the approved vehicle access embedded in its previous approvals as well as a comparison assessment of the site access impacts from York Place and Nelson Street. In my opinion, it is therefore extraneous." 1. Mr Cooper for the Council states, inter alia in Ex 3: "2.2 There is no record of a current approval relating to a vehicle space or right of way over Lot 1 DP 724767 from York Place. This is confirmed by the following provided at Attachments B – Attachment E to the Joint Report: 2.2.1 BA 89/238 relates to construction of a 1.8 metre high fence to replace the existing 1.5 metre high fence at the York Place frontage. Attachment B. 2.2.2 The certificate of levels no. 2334 dated 20 June 989 does not refer to an approved vehicular crossing. Attachment B. 2.2.3 BA 90/165, whilst approved was not acted upon and cannot be relied upon. Attachment C. 2.2.4 BA 96/555 relates to alterations to existing fence and gate to the rear boundary off York Place. Attachment D. 2.3 The file for BA 89/238 of Attachment B provides a survey plan at page 31 referencing a car space. It is my understanding that this survey refers to that proposed under BA 90/165 noting this survey follows a file note dated 3 May 1990, including correspondence from a neighbour. 2.4 The survey data within Councils records relating to BA 89/238, BA 90/165 and BA 96/555 do not refer to the adjoining land Lot 1 DP 724767. For Council to issue an approval for use on adjoining land it would need to be legally recognised. 3.2 There is no record of a current approval relating to a vehicle space accessed from York Place. The application of Access to Neighbouring Land Act 2000 to obtain a right of way or easement across adjoining land (Lot 1 DP 724767) is a matter for legal submission." 1. The Applicants have not taken any steps to enforce their alleged right to vehicular and pedestrian access through their rear gate to York Place, notwithstanding that DA/2020/1159 was granted on 27 July 2021, but noting that attached to the Class 1 Application (Ex A- pages not numbered) in these proceedings, there is a Land Registry Search of the York Place strip of land dated 1 July 2021, and a survey clearly delineating the York Place strip of land dated 16 September 2020. 2. The Council has not taken any steps to overturn the BA's that it questions arising from the fact that the relevant applications did not disclose the York Place strip of land. The Applicants also failed to disclose the York Place strip of land in their Pre-Development Meeting with Council on 3 December 2020 (Ex 7 Respondent's Further Supplementary Bundle of Documents, pp 31-39 [7] ) which they had in their possession via the Survey dated 16 September 2020 (Ex A: Class 1 Application – pages unnumbered – last page). 3. The Applicants submit that they have access to their property via York Place as a result of the prior approvals, and that the 1996 BA puts it beyond doubt (Ex 6, pp 69-72) as the application was determined by the granting of consent to construct "timber fence and gate to rear of property". Therefore the Court cannot in a quasi-way determine the validity of these consents as: 1. The validity of the consents is not an issue in these proceedings; 2. The Court has no power to make these types of findings. 1. However, the Applicant submits it is within the Court's jurisdiction and power in these proceedings to examine the previous consents to say how those consents operate. 2. With respect, the Court's jurisdiction and power in these proceedings is to determine if the proposed amendments fall within the chapeau of s 4.55(1A) of the EPA Act, whilst taking into account all the facts bearing upon the environmental impact of the Modification. In relation to Condition 16, the Court needs to consider, within the confines of s 4.55(1A) and ss 4.15 and 4.16 whether it is appropriate to delete the words : "All site access must be off Nelson Street" in relation to the grant of a Construction Traffic Management Plan. That requires the Court to: 1. Consider if the amendment is "minimal". 2. If it is substantially the same development. 3. Has the proposal been notified, and if submissions have been made, what is the public interest which needs to be considered by the Court. 1. The traffic experts (Mr Dean Brodie for the Applicant, and Mr Minas Kassiou for the Council) conferred and prepared a Joint Expert Report filed on 5 September 2022 (Ex 4) [8] : 1. Mr Dean Brodie (DB), for the Applicants, stated at para [8] on p 3: "DB notes the objectives of the Inner West Council DCP C1.11 which seeks a reduction in reliance of private vehicle use and prioritise the needs of pedestrians, disabled people and cyclists above the needs of the car. However, DB questions the relevance of these matters for a proposal which as a basis is seeking to construct an approved development in the safest manner and in the minimal timeframe to reduce the impact of construction on the surrounding community and public parking availability." And in the following paragraphs: [18] "On the matter of on-site parking provision, DB notes the Council approved stamped plans for B/A 89.238 clearly show, as part of the replacement of the existing fence which fronts York Place, Council's approval of a 3.0m wide entry gate arrangement which did not prevent vehicular or machinery access as part of the approval. That is, any item up to a width of 3.0m could be accommodated within the approved gate entry provided as part of the reconstruction of the fence….." [63] "…in the event that a large vehicle/item was required to gain access to the site for a short period via York Place, the temporary removal of parking on one side only (subject to pre-notification period letterbox drop, placement of notifications on windscreens, signage and managed access) would again reduce the overall length of construction and associated impacts on public parking availability in Nelson Street." [67] "A vehicle up to a width of 3.0m could be managed/accommodated within York Place and the subject site with no change to the parking arrangements …." [69] "Any vehicle greater in size than a 99th percentile vehicle listed above (in [67]) could be 'walked' along York Place to gain access to the site without any loss in parking…." 1. Mr Kassiou for the Council states in para [22] – "In addition, Figure B and Figure C below (on p 9) shows tree (sic) with trunks of approximate 300mm to 400mm diameter at the rear of 73 Nelson Street adjacent to York Place where a car space would be. Also, the rear yard is configured of paved pathways and trees which would indicate that off-street parking was not utilised at this location. This is consistent with Council's records that an off-street, car space was never approved at this location especially noting that the survey undertaken on 9/9/2020 was prepared and drawn on 16/9/2020." And in para [74] "Upon obtaining an easement of the parcel of land known as DP724767, Council may consider the request, subject to frequency, time of day, CTMP, duration, etc." 1. Both Mr Brodie and Mr Kassiou agreed at para [50] on p 16: "…that upon obtaining an easement of the parcel of land known as DP 724767, Council may consider construction access for certain vehicle types could be a workable access arrangement subject to preparation and Council approval of an appropriate Construction Traffic Management Plan (CTMP) report which details adequately and concisely proposed frequency of vehicle access, time of day, duration of each stage or works, etc." 1. Mr Kassiou states in para [52] on p 16 – "Strip parcel of land shown" (meaning the York Place Strip of Land) "is privately owned located land between the subject site, 73 Nelson Street and the road reserve being York Place. This parcel of land known as DP 724767 is still in ownership of the original land holder, and the deposited plan provides no easement or legal right of way of the land to 73 Nelson Street." Applicants' Submissions 1. The Applicants repeats para [27], [28], [30] above. 2. The principles of construction enunciated in Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No. 2) [2015] NSWLEC 114 at [39] – [48] are relevant: [42] "Any lack of clarity or certainty in a council development consent is the responsibility of the council and it must take the consequences: Royal Ryde Homes at 324. [43] "As a development consent is a document in rem, communications between the parties do not form part of the matrix relevant to construction: Westfield Management at [41]. [44] "As a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, 195 LGERA 182 at [44]; Shell Co of Australia at 637." [47] "The ordinary rules of construction and principles of interpretation apply to a development consent as with any other statutory instrument: Ko-veda at [97]-[99]. Like all legal documents, a development consent must be read as a whole. The effect of doing so may be to depart from the material and ordinary meaning of the words of one provision, where it is necessary to do so to avoid absurdity or inconsistency with the rest of the instrument: Tempe Recreation at [53]-[54]." 1. Mr Fozzard further relies upon J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23 (J.K Williams Staff Pty Ltd) at [59]-[63] : [59] "A development consent granted under Part 4 of the EPA Act or an approval granted under Part 3A of the EPA Act are to be construed having regard to the statutory provisions governing its grant (Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [268]) and "its enduring functions" of authorising the carrying out of the development or activity for which consent or approval was sought (Winn v Director-General National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [4]). The consent or approval speaks "according to its written terms, construed in context but having regard to its enduring function": House of Peace v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [37] and see [23]. The meaning of the language used in the consent or approval "is to be determined objectively having regard to the context in which the consent was issued and taking into account the fact that, unlike a contract between parties, the consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant": K&M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23; [2013] NSWCA 202 at [23]. [60] "It is permissible to look at the application seeking consent or approval and the documents and plans accompanying the application in order to determine the scope and operation of the consent or approval and the development or activity for which consent or approval was sought: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council at [57]-[59], [62], [80], [296]-[298], [302]-[305], [310] and [311]. [61] "A consent or approval is to be determined in accordance with the same principles of statutory interpretation that are applicable to interpreting other legal documents. Planning permissions are not in a special category requiring adoption of a completely different approach to their interpretation: Trump International Golf Club Scotland Ltd v Scottish Ministers at [2016] 1 WLR 85; [2015] UKSC 74 at [60], [66]. There is no general principle requiring laxity or flexibility in construing delegated planning legislation or statutory instruments, including development consents or approvals, nor do practical considerations permit a re-writing of delegated legislation or statutory instruments to meet what the court thinks is a permissible and practical outcome: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191 at [45]; Environment Protection Authority v Grafil Pty Ltd (2019) 238 LGERA 147; [2019] NSWCCA 174 at [257]-[261], [272]." [62] "A condition of consent or approval is to be interpreted by asking "what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the Court would have regard to the natural and ordinary meaning of the relevant words, and overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense": Trump International Golf Club Scotland Ltd v Scottish Ministers at [34]." A consent approval speaks to its written terms and cannot lead to an impractical outcome. 1. The purpose of the 3 consents have been to allow access to the land. They have approved construction of a gate and construction of a fence. It must have been for the location or approval of a car space within the Site – provided that there has been substantial commencement of the developments. 2. MLC Properties v Camden Council (1997) 96 LGERA 52 at [58]: the development consent is an instrument as identified by s 3 of the Interpretation Act 1987. 3. Mr Fozzard referred to the case of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 (Dartbrook), where Preston CJ found, in obiter dicta, that there is no express or implied authority in the EPA Act that allows a proponent to amend its application to modify a development consent. These comments were upheld by Robson J in Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 69 who held that there was no express provision allowing a consent authority to amend a modification application. However, I note that on 14 July 2021 the Environmental Planning and Assessment Amendment (Modification) Regulation 2021 came into effect addressing this issue by creating a new regulation, cl 121B of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000), now cl 113 Environmental Planning and Assessment Regulation 2021, EPA Regulation 2021, that allows a modification application to be amended. 4. In 1643 Pittwater Road Pty Ltd v Pittwater Council 11 Elvina Avenue Pty Ltd v Pittwater Council; Doering v Pittwater Council; 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 McClellan J found in relation to modification of a consent at para [52]: "It would follow that when an application is made to modify a consent by deleting or varying a condition of consent, the application must be evaluated as required by s 96(3) and relevant matters referred to in s 79C(1) must be considered. Provided there is a power to impose conditions in respect of a consent to a modification, the consent authority must be able to determine the application by granting it and deleting the original condition, but also by imposing some other condition relating to the same planning matter." 1. Mr Fozzard relies upon the following documents in support of his contention that the existing on-site carparking space, and access via the rear gate is not part of the development application which resulted in the consent for DA/2020/1159: 1. Ex 6 Respondent's Bundle of Documents [9] , p 256 Plan of Existing Ground Floor, dated 17.12.20 identifying an 'existing car space' at the rear, but not identifying the rear gate. 2. Ex 6, p 267, Plan DA14, Issue B dated 12.12.20 showing existing and proposed landscaping, again does not show rear gate. 3. Ex J: Statement of Environmental Effects by Raymond Panetta Architect dated December 2020, Issue A [10] where it states on p 12 at [4.11]: "There is no change to the existing carparking". 4. Ex 6, p 270, Inner West Development Assessment Report for DA/2020/1159 on p 271 para [1] Executive Summary states : "……The main issues that have arisen from the application include: Legal right of way (ROW) from the rear of the site to York Place. Legal access has not been established by the owners as requested by Council and raised by surrounding residents. Conditions will be imposed regarding access to the site during and post construction." 1. When Mr Cooper was questioned in cross examination (in words to the effect of for the question and response): Q: In respect of the purpose of imposing conditions, is that related to the concern of the neighbours? Response: It was important to address the legal issues; to address the informal access to the rear land. Q: Informal access? Response: There are two components: the legal access and the traffic engineering matters. 1. Ex 1: SOFAC p. 9 and [6.26] "The Facts are: As extracted from the development assessment report it states on p. 2 (as set out above), and further on p. 3: "Submissions from neighbouring properties questioned the validity of the crossover, access and egress from the rear of the subject Site to York Place. Council requested that the applicant provide information in regard to the legal right of way from the site into York Place". The applicants provided documentation that confirmed the following: 1. "BA/96/555 – Approved 6 September 1996 – fence and gate to the rear boundary off York Place. There is a parcel of land located between the subject site, 73 Nelson Street and the road reserve being York Place. This parcel of land known as DP 724767 is still in the ownership of the original land holder, and the deposited plan provides no easement or legal right of way over the land to 73 Nelson Street. Given the above, Council can not recognise the parking hardstand indicated on the plans as there is no legal access to it off York Place. The application is recommended to be conditioned as below until such time as the owner of 73 Nelson Street obtain legal rights of way over it: Public Domain and Vehicular Crossings This development consent does not authorise vehicular or pedestrian access to the property off York Place. In this regard the applicants must first demonstrate that they have a legal right to attain access. Reason: To ensure the applicant is aware that this consent does not infer approval of access to the site from York Place." 1. The above supports the submission that the underlying purpose is to do with the legal access to the land. This underlying purpose assists in the construction and application of conditions lawfully imposed, and the converse of that. Condition 16 should not be enforceable. 2. The purpose is other than just construction. The unlawful purpose informs the invalidity of the consent condition. 3. The Applicants further rely upon: 1. Ex 3: p. 6: Town Planning Joint Report, p 6 [2.26] evidence of Mr K Burrell for the Applicants as to why access to the back of the house via Nelson Street is problematic, and [4.4] where Mr Burrell gives his opinion as to why the public interest is served by the works under the CTMP being carried out via York Place and not Nelson Street. 2. Ex 4: Traffic Joint Report, p 17 [57] Mr Brodie gives evidence as to why there is a lesser impact by using larger machinery for shorter periods (meaning off York Place) as opposed to using small machinery for a longer period (meaning off Nelson Street). Likewise Mr Brodie states at [59] limiting construction access only via Nelson Street increases the potential impact of construction as it would take a longer period. 3. In Ex 4, p 16 para [50] Both traffic experts agree that upon obtaining an easement over the parcel of land known as DP 724767 Council may consider construction access for certain vehicle types which could be a workable access arrangement subject to preparation and Council approval of an appropriate CTMP report which details adequately and concisely proposed frequency of vehicle access, time of day, duration of each stage of works, etc. 4. Discussions in pre-lodgement meeting with Council not relevant to the decision this court has to make. 5. Ex C: Affidavit of Dix Dickson [11] at para [20]: It is only going to take 4 days. 6. Ex D: Affidavit of Filippo Kousis [12] : Deals with the enquiries made before they bought the property. Difficult if they cannot get an application under the ANL. 7. Ex 4: Traffic Joint Report, Mr Kassiou's evidence at paras [19]-[22] are made and given in response to evidence from Mr Brodie at [24], [28]. 8. Ex 4 Traffic Joint Report para [6] sets out the documents on which the experts rely for their Joint Report. The Applicants particularly rely upon the evidence of Mr Dean Brodie as given in paras [31], [39], [51], [59], [61], [63], [67], [69] and [48]. 9. Ex 7: Respondent's Further Supplementary Bundle of Documents [13] pp 132-133 (photographs of York Place as it was being upgraded by Council) and p 129 (Council's budget of $30,000 and specification for upgrading York Place with an estimated date of 8/8/2019). 1. In regard to the Contentions: 1. The condition is not for a planning purpose. It has a civil purpose to regulate civil relations between owners (meaning access over the York Place strip of land). 2. There is no nexus. 3. Condition 16 is unreasonable in the Wednesbury sense. If the Applicants are right about being no nexus, then they are right as to the reasonableness question. 1. Condition 16 applies to prohibit all access from York Place, and applying it post-construction (which it does) renders it unlawful. Neither DA/2020/1159 nor DA/2021/0525 proposed any additional parking or access not already approved upon the Site. This is the most significant aspect of the case. 2. It is unfair and unjust to impose a condition which effectively denies the Applicants the ability to act upon the development consent and acts as a barrier to an entitlement and right under law which would otherwise be available to the Applicants. The former is achieved by its effective and practical revocation of a prior approval by way of the condition, and the latter by being a condition which infringes the Applicants' ability to call in aid of entitlements under law, namely: 1. the ANL Act, 2. coming to an agreement with the landowners (s 33(4) ANL Act), and 3. obtaining title over and to the land. 1. Further Condition 16 fails the first, second and third test in Newbury. – It fails the first test in Newbury being the requirement that Condition 16 be for a planning purpose, and it also fails the second and third test – 1. The use of York Place (or Nelson Street) for parking, loading or work zone is the subject to an application under cl 120 of the Road Transport (General) Regulation 2021. It must be that the Applicant is entitled to make an application for a permit under this provision. The issue of a permit is not before the Court for determination, only whether the Condition 16 should be modified. 2. The Council's position contradicts the fact that Council has, and is treating the York Place strip of land as a public road, and is and has exercised control over the land. This is so because Council has asphalted part of the York Street strip of land. The Council's use of the York Street strip of land arguably gives it a right to ownership by prescription (again, not for determination here). 3. Upon a request of the Council by the Applicants in relation to whether York Place has been dedicated, and Council responded that it has no such record. 4. The Council has approved the rear gate and recognised that approval. 1. The Applicants further submit that the only question for the Court to determine under Contention No. 1 is whether, if there is no parking/access proposed in the application, Condition 16 can be imposed limiting, restricting or applying to limit access. It clearly cannot, and in the Applicant's submission it is hopeless and unmeritorious at all to suggest otherwise. The only availability to consider Condition 16 is in relation to the construction activities, but that would not in any way underpin the condition as applying post development. Further, it is unreasonable to restrict construction activities in this way. 2. The Applicants accept that construction activities are a legitimate issue to consider, but say that Condition 16 is invalid and unlawful, and as far as it applies to construction activities, it is unreasonable and unfair. 3. So far as access is concerned, particularly construction access, the order of the day is timely completion of the works, safety, and amenity. The Applicant do not accept that access from Nelson Street alone meets that order. It is not a question of prioritising the residents of York Place over the residents of Nelson Street, or vice versa. It may be accepted that there is always some interference, but the Council's condition of consent No. 16 means access from Nelson Street only, and is against the order of the day, orderly development (s1.3(c) EPA Act), and is unreasonable in the circumstances. 4. In relation to legal access, the Court's enquiry here is whether Condition 16 is within power (and reasonable) to require the Applicants to establish 'legal access' in the circumstances of the development proposed. 5. In relation to public interest – Condition 16 is invalid: the consideration of the public interest only arises in respect to construction activities. 6. The Applicants submit that Condition 16 is unlawful and not validly imposed on 3 mutually exclusive challenges:- 1. Effectively revoking a prior approval. By the 1990 BA and 1989 BA, a fence and access gate along York Place was approved. The Advisory Note objected to seeks to suggest that the current owners cannot even use the gate for pedestrian access gate which is a determination manifestly unreasonable. The Court would start from a point that the 1996 BA approved a rear gate and that access to York Place was approved by it. The Council cannot submit that by a condition made under s 4.17 of the EPA Act there must be a modification or surrender of the 1996 BA. 2. The gate and fence have been erected, and clearly the 1996 BA could not lawfully be modified or surrendered without an express condition or voluntarily, the former of which could not be done unless it was connected to the proposed development (calling on the second limb in Newbury). The only question left becomes whether the later development consent can affect a variation of the original consent (AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112). It cannot. Nothing has been proposed to touch upon access. There is no nexus between the applications. The development consent did not seek to include rear access or any building works related to rear access (putting aside construction activities), nor were there any changes proposed in respect to the rear fence or gate. This development and the 1996 BA are only related because they are on the same parcel of land (the Site). 3. The Council seeks to revoke the 1996 BA by restriction, which it cannot lawfully do, and practically distinguishes its enduring quality (House of Peace Pty Ltd & Anor v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23], [41]. [23] "Emphasis upon the use as distinct from the person using the land reminds that a consent operates in rem." [41] "the enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later." 1. It effectively removes a right and entitlement under the law: Condition 16 attempts to remove the right of the Applicant to act upon a prior approval (gate and fence). 2. Condition 16 removes the right of the owner to make an application for access under the ANL Act. Section 5 of the ANL Act provides that an owner cannot make an application if it is prohibited by law. Condition 16 would make such an application prohibited by law. 3. Condition 16 fails all 3 tests in Newbury – neither the development consent nor the modification propose any new vehicular access, new driveway, new cross over (layback), boundary fence or changes to the rear gate, and thus – 1. It is wrong for the Council to contend that traffic and parking are relevant considerations, beyond construction activities; 2. It is wrong and unreasonable for the Council to ignore the prior approvals and the existing Site conditions that it approved, and the control it has exercised and continues to exercise over the York Place strip of land; and 3. Where the Council pleads in Contention 1 that "No parking / access was approved nor proposed as part of the subject development application", that is a complete answer as to the validity of Condition 16 because a condition that doesn't relate to the proposed development is not a valid or lawful condition, and falls foul of the second test in Newbury. 1. The Applicants' appeal should be upheld and the Modification Application granted. Respondent's Submissions 1. The Council does not hold a record evidencing the dedication of York Place as a Public Road (Ex B: Applicant's Bundle of Documents, tabs 5 and 9 [14] ). 2. In relation to what has, and has not, been approved on the Site, the Council submits: 1. Much can be said about previous history on this Site. However, there is no record of a vehicular crossing application from the Site to York Place. The only application which explicitly makes reference to vehicular access is BA90/165 which was not acted upon, and which Council says is null and void. Further the York Place strip of land was not identified to Council when the BA90/165 was lodged and assessed. 2. BA89/238 (Ex 6 Respondent's Bundle of Documents, p20) approved construction of a 1.8 metre timber fence to rear of the Site as replacement of a 1.5 timber rear fence together with a gate. Condition 4 refers to an application to be made to Council's engineer for the issue of a "Certificate fixing levels at the property alignment prior to commencement of building work". The site plan in Ex 6: Respondent's Bundle of Documents, p. 31 does not show the York Place strip of land. The Officer's report states that "in this case it is proposed for a 1.8m rear fence for increased privacy to rear yard as yard backs onto York Place. Appears satisfactory in the circumstances." And "car parking N/A". (Ex B: p 24) The approved plan for BA89/238 dated 27/4/89 extracts a survey report plan (Ex B: pp 32,33) – it does not show the York Place strip of land but it does not an permit encroachment by the Site onto the York Place strip of land. 3. Building Application BA96/555 (Ex B, p 78) for alterations to rear fence and gate. The Area Supervisor's Report shows "parking N/A" and "Refer to Municipal Engineer – Traffic/Pedestrian safety etc – X" meaning parking not applicable and no need to assess traffic/pedestrian safety. 4. In considering the history of BA89/238, BA90/165 and BA96/555, there is no evidence that the rear of 73 Nelson Street was being used for vehicular access. It is only in more recent times in relation to the predevelopment application and the development application of DA/2020/1159 that the issues arose and Council acted accordingly in relation to Condition 16 and the Advisory Note, the subject of the Modification Application. 5. The York Place File (Ex 6, tab 5, pp 157 onwards) provides background information. The resurfacing of York Place as shown in the Coping Drawing Plan (Ex 7: Respondent's Further Supplementary Bundle of Documents, pp 125 onwards, specifically p 128) shows works within York Place up to, but not including the width of the York Place strip of land, which can be seen as a remaining white strip at the end of York Place. The Work Order – Financially Complete (Ex 7 p 141) shows the York Place upgrade words finished by 11 November 2019. The Local Traffic Committee Agenda for 4 March 2010 includes a report (Ex 7 p 53) on the creation of the shared zone for York Place states in the 3rd para: "Footpath parking is proposed on the full length of both sides of the road. This parking layout is required to comply with the RTA's requirements to maintain a clear travel lane for emergency vehicle access and an accessible path for pedestrians." 6. At the Applicants' pre-development meeting with Council, and the Pre-Development Application Advice form (PREDA form) that (Ex 7 pp1-30) shows: 1. The Applicants ticked the box on p 1: "I understand that the level and accuracy of the advice provided will depend on the quality and detail of the information provided to Council". 2. On p 2: "….The more information you submit; the more advice can be provided". 3. On 3 November 2020 Council sent a letter to the Applicants (Ex 7 p 3) stating, inter alia: "All advice provided is on a 'without prejudice' basis. It is noted that the advice given does not preclude the need for full assessment and Council determination. Furthermore, designing in accordance with the advice does not ensure consent will be given to the proposal after a full assessment." Noting the predevelopment application did not include the Survey drawn on 16 September 2020 which was submitted with DA/2020/1159 and the Modification Application (Ex A last page of the unnumbered pages). 4. The Pre-Development Application Advice by Council dated 16 December 2020, included Parking on p4 (Ex 7, p 34): "(a) The garage/carport slab or driveway must rise within the property to be 170mm above the adjacent road gutter level" "(b) to (e) sets out dimensions and sections but also The Plan must include 900mm wing of layback on each side of the crossing at the kerb line and existing on street parking spaces in York Place." 1. From the above it is clear that no off street parking was recognised by Council and Council set out the relevant requirements for off street parking to be achieved. 2. However, the Applicants are of the view that off street parking does not form part of DA/2020/1159 or the Modification Application (Ex 3: Town Planning Joint Report, Mr Burrell at para [2.24]). 3. Neither DA/2020/1159 nor the Modification Application included the York Place strip of land as part of the application. 1. In relation to s 4.17(5) of the EPA Act, the Council seeks a condition, in Condition 16 that surrenders BA90/165 to avoid any doubt about that consent, or confusion about access to York Place. 2. DA/2020/1159 was reported to the Inner West Local Planning Panel on 27 July 2021 (the Panel), with a recommendation by Council officers for approval subject to conditions. The Panel Minutes show that consent was granted unanimously on 27 July 2020 with the recommended Condition 16 and, inter alia, a note as follows: "Note – the Panel noted that the note titled 'Public Domain and Vehicular Crossing' should be moved to the top of the list of Advisory Notes, and that its reason should be deleted." The reason deleted stated: "Reason: To ensure the applicant is aware that this agreement does not infer approval of access to the site from York Place." (Ex 6 p 272). 1. Condition 16 is reasonable and practical. The disputed Advisory Note is reasonable and practical. Access via Nelson Street is reasonable and practical. There is no evidence from Mr Burrell (Ex 3), Mr Brodie (Ex 4), Mr Dickson (Ex C), or Mr Kousis (Ex D) that access via Nelson Street is prohibited or restricted to prevent acting on DA/2020/1159 through to completion. The Respondent's Bundle of Documents (Ex 6 pp 314-668) demonstrates that numerous properties in Nelson Street obtained development consent and constructed in-ground concrete swimming pool, alterations and additions to ground and first floor additions. These properties are set close to the street and with various or nil setbacks. The Council's planning and traffic evidence confirms access is reasonable and practical via Nelson Street. 2. Justice Sheehan considered the validity of a condition in Bardsley-Smith & Anor v Penrith City Council & Ors [2012] NSWLEC 79 (Bardsley-Smith) at paras: [304] "The power of Council to impose conditions is broad. The test of the validity of a condition attached to a consent originates from Newbury District Council v Secretary of State for the Environment [1981] AC 578, and was set out by McHugh J in Western Australian Planning Commission v Temwood Holdings Pty Limited [2004] HCA 63; (2004) 221 CLR 30, at [57], as follows: (1)The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning. (2)The condition reasonably and fairly relates to the development permitted. (3)The condition is not so unreasonable that no reasonable planning authority could have imposed it. [305] "I discussed the Newbury/Temwood principles in my first instance judgment in Botany Bay City Council v Ralansaab and 7 Ors [2010] NSWLEC 225, at [171]-[186]. When my decision in that case was reviewed by the Court of Appeal - in Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 - Basten JA said: "In Australia the question is not so much whether the "Newbury test" has been adopted by the High Court, or courts of intermediate appeal, but rather what it requires. Labels are frequently adopted without sufficient reference to the specific statutory and factual context in which they are to be applied." [306] "There is a valuable discussion of these issues also in Biscoe J's judgment in Dogild v Warringah Council (2008) 158 LGERA 429, at [37]-[68]. His Honour there referred to pre-Newbury Australian authority and other relevant decisions. 1. In Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227 at para [12] Lloyd J said: "12 It must be remembered, however, that a development consent such as the present one, is not a document drafted by lawyers. It was drafted by town planners, to be read by town planners and non-legally trained people. The development consent and the conditions must be read in a common sense way so as to give effect to the obvious intention of the draftsperson. Conditions of a development consent are to be construed, not as if the words were the language of a statute, but from a practical viewpoint: see Gill v Donald Humberstone & Co Ltd (1963) 1 WLR 929; Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531; and Hecar Investments No. 6 Pty Ltd v Lake Macquarie Municipal Council (1984) 53 LGRA 322 at 323." 1. The Council's position is that Condition 16 and the Advisory Note in question are valid and reasonable. They are not prohibitive to development, nor do they infringe upon the Applicants' property rights. The Applicants are seeking rights over an adjoining lot of land without previously disclosing that information. The Applicants were put on notice: 1. about the 'null and void' BA90/165 when they sought access to Council's files; 2. when they sought and received pre-development advice prior to lodgement of DA/2020/1159 when Council included parking information in its Pre-Development Advice; 3. when they received their own survey report dated 16 September 2020. 1. Nelson Street is a reasonable access point for construction as evident with other approvals provided within Ex 6: Respondent's Bundle of Documents as set out above. 2. Bentley & Ors v Drummoyne Council & Ors [1999] NSWLEC 84, at paras 16, 17, 47, 58, 59, 63-65, 69-70, 78-79, 82 and 90 is authority on a plan lodged with Council with insufficient detail and inaccurate information: [82] "The council acted promptly when it finally became aware of the discrepancies and acted to revoke the building approval in accordance with its statutory power." [103] "The Court is satisfied that it was reasonable for the council to revoke the building approval by reason of the established fact that it was obtained by misrepresentation of the intended levels for the height of the building. No other issue has been raised in the class 2 proceedings." 1. The Council was lulled into a false position when it approved building plans BA90/165. Pursuant to s 4.17(5) of the EPA Act the Council seeks a condition that surrenders BA90/165 to avoid any doubt about that consent. 2. Condition 16 is for a planning purpose – it is a construction traffic management plan condition. It reasonably and fairly relates to the development; and it is a reasonable condition to impose in the circumstances of the consent. The Advisory Note is just that, it is not a condition, it provides relevant advisory information in the circumstances. 3. The consent authority lacks power to grant consent to the Modification Application: 1. As per Ku-ring-gai Council v Buyozo Pty Ltd [2012] NSWCA 177 (Buyozo), at para [10]-[11], [52]-65] the power to modify a development only ever arises where there is some change proposed to the development the subject of a development consent (ie a change to the approved building and/or its use). At para [63]: "The upshot of this analysis is that the power in s 4.56(1) as with powers in ss 4.55(1A) and 4.55(2), can only be exercised to modify a development consent if the modification will effect some change to the development the subject of the development consent. This need not be the only effect of the modification but it be at least one of the results of the modification of the development consent." 1. As a result it appears that the consent authority has no power to grant consent to the Modification Application. 2. The Modification Application is not properly made: in determining an application for modification the consent authority 'must' take into consideration the matters referred to in s 4.15(1) 'as are of relevance to the development'. The proposed modifications to delete the last sentence in Condition 16 and the Advisory Note are not of minimal environmental impact for the following reasons: 1. The Applicants are seeking access over the York Place strip of land, on one hand they are saying they have access via the 3 BA's, but that is not a matter that requires further consideration by the Court in these proceedings, but they require access over the York Place strip of land for construction purposes without seeking development consent/owners' consent over that land in these proceedings. There is no record of probate or locating the owner of the York Place strip of land. The Applicants are saying that the Court should not be concerned about these things, but simply it is a case of there is no power to impose the last sentence in Condition 16 or the Advisory Note. 2. Part of the consequences of the Applicants proposal for construction via York Place is the concern expressed by Mr Kassiou (Ex 4 par [54]) that access is problematic because of the available width (9.145m wide, with a shared road for vehicular traffic/pedestrians of 3.1m wide). Construction via Nelson Street would have less traffic and amenity impact, if it has any. Mr Kassiou and the residents of York Place have concerns regarding the safety and amenity impact on the York Place residents should construction access to the Site be permitted. 3. The Applicants have not established that Condition 16 and the Advisory Note provide unreasonable construction access via Nelson Street. The Applicants raised an issue about the raised beds and flora on the eastern side of the Site, but these issues were not delineated in the plans (Ex A), and the Applicants were not seeking, nor required by Council, to retain the landscaping along the eastern side. 4. Section 4.55(3) of the EPA Act requires the consent authority to take into consideration the reasons given by the consent authority for the grant of the consent sought to be modified. Council raised the following: 1. Ex 6 p 276: "C1.11: Parking Council has not been satisfied that the subject site has legal right of way (ROW) over a residual parcel of land between the subject site and York Place. Conditions are imposed to access to the site pre and post construction via Nelson Street until such time the owners can establish legal access to York Place." 1. Ex B, Applicants' Bundle of Documents, p 40, part of the Transcript of Inner West Local Planning Panel meeting on 27 July 2021: Question to Mr Panetta (Applicants' architect): Do you think this development, if it was approved could actually be serviced from Nelson Street without any access from York Place, given the size of the renovation in terms of the building development? Response: Mr Panetta: Yes. Look it would make things more difficult, but look anything's possible from a construction point of view, but it would make it more difficult. 1. In Ex 4, para [43], Mr Kassiou for Council said: "The approval for a gate and the placement of concrete to attempt to form a layback without approval of Council does not imply an approved vehicular access and therefore should not be appropriated." 2. Mr Turner put to Mr Brodie in cross examination Ex M: The Traffic Planner's Construction Traffic Management Plan for 73 Nelson Street, Rozelle dated 1 September 2021 [15] , and in particular: 1. Page 10, para 3.1 Construction Work Areas: "A construction Work Zone is proposed to be located on Nelson Street…" 2. Page 11, para 3.5 Site Parking: "Due to the constraints of the site, parking will not be available on site. All site staff, workers and contractors related to the project will be encouraged to park in a designated private off-street parking (such as parking stations) or encouraged to use public transport where practical." 3. Page 18 and 19: Appendix A: Traffic Control Plans 4. Page 20 and 21: Vehicle Movement Routes. Mr Brodie confirmed that Ex M shows construction management from Nelson Street. 1. In relation to the York Place 10km/hr shared zone, under cross examination Mr Kassiou for Council expressed his concern about the width of the road for construction access. At para [54] of Ex 4 he qualified his concern that the use of York Place would not be favourable irrespective of whether the Heritage Item or the Heritage Conservation Area existed due to the width and length of York Place. 2. Under cross examination Mr Burrell for the Applicants confirmed that the architectural plans for DA/2020/1159 do not show any notations that landscaping on the eastern side of the Site is to be retained, and that the stormwater plans (numbered C01 Issue A) show new stormwater pipes through that section of the Site. Mr Burrell advised that the plants could be removed and replanted. This advice contradicts para 35 (g) of Ex D: Affidavit by Mr Kousis dated 22 August 2022 where he raises the issue of the loss of camelia plants. 1. The Modification Application should be refused. Applicants' Submissions in Reply 1. The case of Buyozo related to s 94 of the EPA Act (as it then was, now s 7.11) developer contributions. It is not relevant to this matter. 2. It is safer for the pedestrian traffic in Nelson Street if the construction access is via York Place. 3. Since 2010 Council has noted "VC" for vehicle crossing at the entrance to the gate in the rear fence on the Site – see Ex G: Plan NSW-YOR-1 Marked Bays and Tree Planting on York Place. However, the Applicants agreed that the notation of "VC" does not mean that the vehicle crossing is legal. 4. Section 4.55(1A) of the EPA Act is a complete answer to Newbury. Part of the Applicants' task is to demonstrate that the proposal is minimal – and substantially the same development in form and substance – which they have done. 5. In Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 Preston CJ stated at par [57]: "Furthermore, the task required by s 96(1A)(a) demands a comparative assessment of the environmental impacts of the development as originally approved and the development as modified. As with the task required by s 96 (1A)(b), this comparative assessment required by s 96(1A)(a) is not to be done in a "sterile vacuum" by comparing the bare terms of the consent as originally granted and the consent as modified, but rather is to involve an appreciation, qualitative as well as quantitative, of the developments and the environmental impacts of those developments." 1. In Bechara v Plan urban Services Pty Ltd & Ors [2006] NSWLEC 594 Jagot J (as she then was) stated at par [57]: "In King, Markwick, Taylor & Ors v Bathurst Regional Council [2006] NSWLEC 505 at [84], I said that "minimal", in the context of s 96 construed as a whole, must take its ordinary meaning of "very small" or "negligible". The "minimal" requirement qualifies the "environmental impact" of the proposed modification, rather than the proposed modification itself - which is subject to the "substantially the same" requirement in s 96(1A)(b). Hence, the focus must be on the impact or effect of the modification on the environment. Given the very broad and inclusive definition of "environment" in s 4(1) of the EPA Act, it is necessarily a matter for the consent authority to identify for itself the relevant categories of potential impacts." 1. In Councils Development Assessment (Ex K [16] ) par [1] on p 2 Council states: "Council records indicate that a crossover was approved to facilitate a gate to the rear of the 73 Nelson Street from York Place. Councils legal team confirm a residue of land between the rear of 73 Nelson Street and York Place road reserve as land owned by the original land developer. Documents indicate there is no legal right of way of the land, and the applicant was asked to demonstrate this. Until such time as the current owners of 73 Nelson Street can provide a legal right of way the access point and the handstand as indicated on the application does not form part of this assessment or approval, and therefore a condition will be imposed to ensure the access of the site during construction and on going must be off Nelson Street. The applicant will be encouraged to apply for Construction zone parking off Nelson Street during the course of construction." 1. For the reasons given above the Court would grant approval to the Modification Application. Findings 1. Council granted consent to BA/89/238 on 27 April 1989 for "Construction of a 1.8m timber fence to rear of premises as replacement of 1.55m timber rear fence". The construction of a gate in the rear fence did not form part of this consent. (Ex B pp 20,21). The plan attached to the application did not disclose the York Place strip of land (Ex B p 31). The stamped plans did not disclose a gate in the rear fence (Ex B pp 32-33). 2. Council granted consent to BA90/165 on 2 April 1990 for "Single storey addition to rear of dwelling". The stamped plans attached to the consent disclose a notation "new driveway" in the rear fence. The York Street strip of land is not disclosed in the application. The consent included at Note: "An application must be made to Council for the construction of all vehicular crossings and, where applicable, closure of redundant crossings. Upon receipt…". (Ex B pp 37- 41 and 52-59). On 10 June 1991 Council wrote to the owner of the Site (Mr G Zrinski) advising that "As this work was not substantially commenced within twelve (12) months of approval, your (sic) are advised that the approval granted is now null and void and if you wish to proceed with the work further application to Council, together with the prescribed fee will be necessary". (Ex B p 36) 3. Council granted consent to BA96/555 on 11 September 1997 to "Construct timber fence and gate at rear of property." (Ex 6 pp69-72) There was no application for, nor consent given, to a crossover enabling ingress and egress from York Place through the rear gate of the Site. The stamped plan attached to the BA96/555 did not identify the York Place strip of land, and identified the area immediately outside the rear of the Site as 'Laneway York Place" (Ex 6 pp 84-85). 4. It appears that at some stage between 1989 and 1996 a gate was constructed in the rear fence. Formal approval for a gate for given on 11 September 1997 via BA96/555. Condition 3 of BA96/555 required an application to be made for a crossover from the rear gate to York Place. Although BA96/555 was granted, there was no consent given for a cross-over to enable construction of a vehicular entry/exist from the rear gate, across the York Place strip of land, to the York Place road reserve. 5. There was no evidence given for access over the York Place strip of land since the deposited plan was first registered (Ex B: Applicants' Bundle of Documents, tab 1, pp 2,3) in 1987, and nor since it was transferred into the ownership of Francis William Robinson Esq on 3 September 1908 (Ex B p 18). 6. No root of title was provided to the York Place strip of land. However, a Land Registry Services Title Search on 1 June 2021 identifies the land as Folio 1 in Deposited Plan 724767. The title is in the name of Francis William Robinson, and bears the following Notations: "Note: land is 0.61 metre reserve in DP 39 adjoining York Place – there is no evidence of resumption dedication or government gazette notification as regards this reserve. Unregistered Dealings: Nil". (Ex B p 22) 7. Although a gateway approved by Council will give, at its lowest, an implied permission of ingress/egress through the gate, I do not find that Council gave permission for vehicular access through the rear gate. The question arises as to whether the Council would consent to pedestrian access via the rear gate if it was aware of the York Place trip of land. 8. At a time unknown to the Applicants, or the Council, the level from York Place to the rear gate was build up to the level of the rear gate for a width of approximately 0.3m. Neither the Applicants, nor the Council, know at what time the informal 'layover' was constructed. 9. There is no evidence that the rear gate access has been used regularly or at all for vehicular traffic prior to 2016. Between 2016 and 2018 a former owner would contact the neighbours in York Place to advise when any access would be likely to occur – being 30/5/2018 between 7.30 and 8am; 26 February 2018 between 7.30 and 8am; and in 2017 a timber delivery on 17/10/2017; painters on 16/10/2017 at 7am; and in 2016 on 8/6/2016; 19/1/2016 (Ex B tab 16, pp 706-713). 10. I accept Mr Kassiou's statement in Ex 4 para [43] referring to the York Place strip of land "….the deposited plan provides no easement or legal right of way over the land to 73 Nelson Street. The approval for a gate and the placement of concrete to attempt to form a layback without the approval of Council does not imply an approved vehicular access and therefore should not be appropriated". 11. The Applicants rely upon correspondence in Council's Building Application files to support their case that the gate is lawful, and has been lawfully used since 1990. However, although the building applications are a right in rem, their interpretation is confined to the actual consent documentation, and not extrinsic evidence on the consent authority's files. Lake Macquarie City Council v Australian Native Landscapes – par [42]-[44] and [47]. J. K. Williams Staff Pty Ltd – par [59]-[63] - also noting "it is permissible to look at the application seeking consent or approval and the documents and plans accompanying the application in order to determine the scope and operation of the consent or approval for which the consent was sought". Therefore the Applicants cannot rely upon the correspondence between Council and Peters & Ludlow solicitors. 12. I find that Council has not given permission for vehicular traffic to enter the Site by the rear gate. There may have been notes on plans but it does not appear that the rear yard was used for car parking. (Mr Kassiou Ex 4: p 8 par [22]). Further the Council would not approve a crossover/layover across land that was not owned by the applicant, nor Council, and no owner's consent to such an application has been provided. 13. I reject the submission by the Applicants that Condition 16 is unlawful because a gate had previously been approved by Council. Usually the applicant is required to apply for a crossover which traverses council's land. In this case the Applicants would need to apply for a crossover which traverses the York Place strip of land, as well as Council's road reserve as the York Place strip is only 0.61m wide. 14. The Applicants contend that Condition 16 applies to prohibit all access from York Place and is therefore unlawful. DA/2020/1159 and the Modification does not propose any additional parking or access to or from York Place which is not already approved on the Site. In considering Council's power to amend an earlier development application (in this case BA/1996/555 which gave rear access to the Site), guidance can be gleaned from the following cases: 1. Bardsley-Smith : at [304]: "A planning purpose is one that implements a planning policy whose cope is ascertained by reference to the legislation that confers planning functions on the authority…". A consent authority cannot grant consent over land which is not owned by the proponent unless the consent of the owner of the land has been expressly given in writing EPA Regulation 2000 cl 23 (a) and (b)). The planning purpose in imposing the last sentence in Condition 16 is to prevent the use of the rear gate for the purposes of construction of the works in DA/2020/1159, and maintain the safety and amenity of the shared zone for pedestrian and vehicular traffic in York Place. 2. The Council relies upon Bentley, in relation to relying upon misleading information in the lodgement of the building applications by not identifying the York Place strip of land, that the Council has power to overturn the consent formerly given once it became aware of the 'misrepresentation'. As late as 20 December 2020 in the Pre-development Meeting for DA/2020/1159 Council was not aware of the York Street strip of land (Ex 7, p34), and the Applicants did not produce or disclose their survey dated 16/9/20 (Ex A last page) which would have brought the York Street strip of land to Council's attention at that point in time. The York Street strip of land was clearly in Council's mind when drafting Condition 16, and it was also clearly in the mind of the Inner West Planning Panel when it determined DA/2020/1159 on 27 July 2021. (Ex 6 p 272). 1. The Applicants further submit that Condition 16 is unlawful because it fails all 3 tests in Newbury. 1. Is the last sentence of Condition 16 for a planning purpose? The Applicants repeat their arguments as set out above. The Applicants accept that construction activities are a legitimate issue to consider, but submit that Condition 16 is invalid and unlawful, and as far as it applies to construction activities it is unreasonable and unfair. I shall consider this issue further when considering the application of s 4.55(1A) of the EPA Act. I note the wide meaning of 'environment' in s 1.4 of the EPA Act: "environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings". 2. Where is the nexus? Does Condition 16 reasonably and fairly relate to the development permitted? Condition 16 confines access for construction to be via Nelson Street, and specifically excludes access for construction via York Place. The nexus, as per Sheahan J in Bardsley-Smith at par [304] "reasonably and fairly relates to the development permitted". There is no doubt there is a financial benefit to the Applicants if they are permitted to access the Site from York Place. There is also a benefit to the Nelson Street residents if the construction access is via York Place. Absent the York Place strip of land taking into consideration ss 4.15(1)(a) and (b) and 4.17 of the EPA Act, it is still reasonable for Council to limit access via Nelson Street, for the following reasons: 1. Nelson Street is a wide street (no details of its width have been given) – as can be seen from Figure 1 in par [9] above, Nelson Street permits angled parking adjacent to the Site, and parallel parking on the opposite side, with sufficient width between the parking to allow a 2-way traffic flow. 2. York Place is a narrow road, being approx. 9.145m wide and 50m in length. York Place provides parking, and the shared zone of 3.1m wide is limited to 10km/hr for vehicular traffic which requires the vehicle to be driven in a forward manner, and reversed out of York Place, or vice versa. (Ex G) 3. Councils Development Control Plan 2014, par C1.11 Parking provides the following objectives: Objective 01 to reduce reliance on the car. Objective 02 – priority is to be given to the needs of pedestrians, disabled people and cyclists above the need of the car. …. 1. Council's Contention No. 1 which states: "No parking / access was approved nor proposed as part of the subject development application' and the Applicants say that is a complete answer as to the invalidity of Condition 16 because it does not relate to the development. Once Council received the Survey dated 16/09/20 (Ex A last page) it was on notice that the Site does not have legal access to York Place because of the intervening York Place strip of land. The consent authority is required to consider every aspect of the impact on the environment of a development which includes the construction phase, and notwithstanding that a Construction Traffic Management Plan will need to be approved pursuant to cl 120 of the Road Transport (General) Regulation 2021, that does not preclude Council from managing access to the land in the appropriate way taking into consideration the concerns and amenity of the community together with the need for access by emergency vehicles on a 3.1m road access width. 2. There were 21 submissions made to Council objecting to DA/2020/1159 and 19 made to the Modification (multiple from the same properties in York Place). The submissions raised the following concerns (Ex 1 [6.15] : "Parking/Access from York Place Tree removal Heritage/conservation …… Privacy/overlooking ……. Excavation/pool location Construction management Child safety ……" 1. Five objectors addressed me on York Place at the beginning of the hearing. Some of those who addressed me were speaking for several of their neighbours. One objector is a disabled veteran who expressed a need for a sense of safety and security, and the necessity to have easy vehicular access to her home for emergency vehicles, taxis, and for her elderly mother when she comes for respite care. All the objectors expressed concern about the shared zone being used for pedestrian access (adults and children) together with construction vehicles. One advised how access had been obtained via the rear gate on an intermittent basis, but only after liaison with the York Place residents to ensure it did not infringe on their use of the road. I find that Condition 16 reasonably and fairly relates to the development and the limitation it places on access for the construction vehicles/personnel is reasonable after taking into consideration the requirements under s 4.55(3). (Bardsley-Smith) – [304]. Condition 16 therefore passes the second test in Newbury. 1. The condition is not so unreasonable that no reasonable planning authority could have imposed it. One of the reasons raised by the Applicants that the third test makes Condition 16 unlawful is that Council has maintained York Place, including approximately 30cm of the York Place strip of land being covered in bitumen, a Council "no parking" signed being placed on this strip, together with line-marking and kerb & guttering adjacent to the 2 homes at the end of York Place – see the photographs in Ex B pp 51, 52 and 53. 1. The Local Traffic Committee Agenda for 4 March 2010 includes a report on the creation of the shared zone for York Place, and this report states in the 3rd paragraph (Ex 7 p 53): "Footpath parking is proposed on the full length of both sides of the road. This parking layout is required to comply with the RTA's requirements to maintain a clear travel lane for emergency vehicle access and an accessible path for pedestrians". 2. The Council argued that s 4.17(5) of the EPA Act gives the consent authority power to modify or surrender a former consent. Section 4.17(5) provides that the power referred to is "subject to and in accordance with the regulations". However "subject to and in accordance with the regulations" means cl 67 of the EPA Regulation 2021 which provides that it is the owner, or with the owner's consent, by which a former consent can be modified or surrendered. 3. Having regard to the matters raised under the first and second test, Condition 16 is not so unreasonable that a planning authority could not impose it (Wednesbury). 1. The Modification is brought pursuant to s 4.55(1A) of the EPA Act, and I repeat pars [19]-[22] above. 2. In order to uphold the appeal, the consent authority must be satisfied that – 1. the proposed modification is of minimal environmental impact (s 4.55(1A)(a); 2. The development to which as modified relates is substantially the same development as the development for which the consent was originally granted (s 4.55(1A)(b); 3. The consent authority has notified the application as required (s4.55(1A)(c); and 4. The consent authority has considered any submissions (s 4.55(1A)(d) As per Preston CJ in Intrapac Skennars at [35]. 1. The word "minimal" in the context of s 4.55(1A) takes its ordinary meaning of very small or negligible: King – at [84]. The 'minimal' requirement qualifies the environmental impact rather than the modification itself. By adopting the very broad definition of 'environment' in s 1.4 of the EPA Act the focus must be on the impact or effect on the environment – per Bechara. Removing the words from Condition 16: Construction Management Plan …. "All Site access must be off Nelson Street" could not be considered minimal, very small or negligible. By removing those words the Applicants have made it abundantly clear that they will lodge a CTMP based on access via York Place. The Applicants lodged a CTMP (Ex M) dated 21 September 2021 which was based on access via Nelson Street. The Applicants have filed an Affidavit by Mr Dix Dixon, the builder of the proposed works (Ex C), and the owner, Mr Kousis (Ex D) stating that the development would be built more quickly by having access from York Place, and that reduction in time will save considerable costs for the Applicants, and inconvenience to traffic and pedestrians in Nelson Street. The Applicants stated several times during the hearing, relying upon the affidavit of Mr Dixon (Ex C) that access for construction via York Street would only be for 4 days. However, on perusing Mr Dixon's affidavit it is only the concrete pour for the footings and swimming pool which would take 4 days, and the complete construction time would take a much longer period, including excavation, delivery of materials, access by various trades' people, etc. 2. The environmental impact of this requested modification is not minimal, very small or negligible. The state of mind of the Council is clearly in favour of maintaining the safety and amenity of York Place (being a narrow road with limited access) and limiting vehicular access to the Site via York Place in view of the lack of owner's consent to traverse the York Place strip of land. King, Markwick pars [60]-[61] and [84]; Dravin at par [57]. 3. Applying s 4.55(1A)(b): is the development substantially the same after consent is granted to the Modification? In this case the answer is clearly 'yes'. The same buildings will be erected – the only change is that for the purposes of building the development, construction is limited to Nelson Street, and the Modification if accepted, would allow an application for a CTMP to be made for construction access via York Place, provided the Applicants can get approval to traverse the York Place strip of land via a s 7 application under the ANL Act. Bechara v Plan Urban Services Pty Ltd & Ors [2006] NSWLEC 594 at [57]: The requirement to consider the "impacts" in s 4.55(1A) demands a comparative assessment of the environmental impacts of the development as originally approved and the development as modified. The Applicants give greater emphasis to the public amenity to the Nelson Street residents over the York Place residents (Ex C Mr Dixon's affidavit). 4. In regard to s 4.55(1A)(c): the Council notified the Modification by way of an on-site notice and letter sent to adjoining properties between 19 April and 3 May 2022. The notification resulted in 19 submissions. 5. In regard to s 4.55(1A)(d): I have given consideration to the 19 submissions one of which was a petition (Ex 6, pp 675-678), and heard from 5 residents (4 from York Place, and 1 from Wise Street which adjoins York Place). The concerns raised by the objectors (written and oral) included relevantly: 1. Access, egress and parking issues for both York Place and Wise Street; 2. Access to York Place by emergency vehicles; 3. Potential impact for rubbish collection if they are unable to access York Place at the usual time. 4. Safety of children in the shared zone in York Place, and also for the children to play in the shared zone (there is very little outdoor areas to the residences in York Place); 5. Amenity in both York Place and Wise Street, especially for children crossing Wise Street, and in particular students at Sydney Secondary College Balmain Campus and Rozelle Public School. 6. Nelson Street is much more suited for construction vehicles than York Place, as the Site is double fronted and has side access. 7. Should construction access be permitted in York Place it will cause significant issues to the residents of York Place and Wise Street including significant inconvenience and distress. 8. Dr Badami sets out in a letter to Council (Ex 6 p 698) that access to the rear of the Site took place via arrangements with the owners in York Place, and there was no requested access in 2007, 2008, 2010, 2011, 2019 and 2020; with 2 emails requesting access for tradesmen in 2009, and 1 in 2012 and in 2014 & 2016 for tree lopping; 5 emails regarding new fence and tree lopping (on 2 occasions and 6 months apart) in 2016, and 3 emails in 2017 (in January, May and September). 9. York Place is not, nor has it ever been, intended to be used as a 'rear lane' access for any Nelson Street properties. 10. No valid car space or vehicular crossing approved by Council for the Site. 1. In relation to s 4.55(1A)(c) and (d) Council notified the adjoining neighbours, and considered their submissions, and included the last sentence in Condition 16 and the first Advisory Note under Advisory Notes: Public Domain and Vehicular Crossings (Ex 6 p 249). 2. The Applicant contends that there is no power for the Modification to amend this consent or a former consent (meaning BA96/555). In ACQ Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112, Preston CJ of the LEC, stated inter alia: [232]A development application cannot be made to vary the terms of a development consent directly; a development application can only be made seeking consent for the carrying out of development: Gordon & Valich Pty Ltd v City of Sydney Council [2007] NSWLEC 780 at [15], [16]. Nevertheless, the grant of another development consent may have the consequence of effecting a modification of the original development consent in two ways. First, the second development consent may be granted subject to a condition requiring the modification or surrender of the original development consent (under originally s 91(7) and later s 80(1)(b) and (5) and currently s 4.17(5) of the EPA Act). Second, even without a condition requiring modification, the terms in which the second development consent is granted and the carrying out of development in accordance with the second development consent may have the consequence of effecting a variation of the original consent: Gordon & Valich Pty Ltd v City of Sydney Council at [17]; Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 432-433. [233] There is nothing to prevent a person having two development consents to carry out development on the same land: Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61 at 70; Auburn Municipal Council v Szabo at 433; Waverley Council v Hairis Architects (2002) 123 LGERA 100; [2002] NSWLEC 180 at [30]. A development application can be made, and development consent can be granted, to erect or use a distinct part of a building or land that is already the subject of another development consent: Waverley Council v Hairis Architects at [32]. The two development consents applying to development on the same land need to be read together to ascertain the development that is authorised to be carried out on the land: Pilkington v Secretary of State for the Environment (1973) 26 P&CR 508 at 512-513; [1974] 1 All ER 283 at 287. [234] The nature and extent of the entitlement to apply to modify a development consent or an approval and the constraints on the exercise of the power to modify a development consent or an approval are delineated by the terms in which the statutory provisions create the entitlement and the power: Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240 at 246 and Valiant Timber and Hardware Co Pty Ltd v Blacktown City Council (2005) 144 LGERA 33; [2005] NSWLEC 747 at [29]. The statutory provisions were originally s 109, then ss 96 and 96AA of the EPA Act for modification of a development consent granted under Part 4 of the EPA Act and s 75W of the EPA Act for modification of an approval granted under Part 3A and certain development consents granted under Part 4, and are currently ss 4.55 and 4.56 of the EPA Act for development consents granted under Part 4 of the EPA Act. [239] The power to modify a development consent or an approval must be exercised in relation to the particular modification sought in the particular application or request that has been made to the relevant decision maker. An exercise of the power will not be valid unless it constitutes a determination of that application or request: see similarly, as to the need for a consent to be given to the application that has been made: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [296], [297] and [57]. [240] This proposition is underscored by the terms in which the appeal provisions are framed. …… It is the determination of the request to modify the approval that founds the right to appeal. Similarly, for an application to modify a development consent under Pt 4, an applicant who is dissatisfied with "the determination of the application" may appeal to the Court under the current s 8.9. The application referred to is the application for modification of development consent made under the current s 4.55 of the EPA Act. Again, it is the determination of the application that founds the right of appeal. [241] The exercise of the power to modify a development consent or an approval is subject to satisfaction of certain preconditions, which differ depending on the power that is exercised. In the case of the powers under the former ss 96 and 96AA and the current ss 4.55 and 4.56, there are three types of powers to modify a development consent: one for modifications involving minor error, misdescription or miscalculation, a second for modifications involving minimal environmental impact, and a third for other modifications. The preconditions that must be satisfied before the consent authority can exercise any of these powers to modify a consent differ between the powers: see King v Bathurst Shire Council (2006) 150 LGERA 362; [2006] NSWLEC 505 at [50]-[86]. For the first, the proposed modification must be to correct a minor error, misdescription or miscalculation (s 96(1) now s 4.55(1)). For the second, the proposed modification must be of minimal environmental impact and the consent authority must be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted before that consent as originally granted was modified (s 96(1A) now s 4.55(1A)). For the third, …." [276] The power to condition an approval is implied in the case of the power under ss 4.55 and 4.56 of the EPA Act to modify a development consent: North Sydney Council v Michael Standley & Associates Pty Ltd at 475-476 and 1643 Pittwater Road Pty Ltd v Pittwater Council at [41]. 1. In applying Dartbrook and cl 113 of the EPA Regulation 2021 the consent authority has power to modify DA/2020/1159, as well as an earlier consent. 2. Having regard to the principles of Wesnesbury unreasonableness, the Applicants have not discharged their onus to establish that Council's state of satisfaction under s 4.55(1A)(a) was not reasonably open or so devoid of plausible justification as to amount to an abuse of power. (Bechara at [58]) 3. I find that the Modification is not minimal or negligible in accordance with s 4.55(1A)(a), and although it is substantially the same development in accordance with s 4.55(1A)(b), after taking into consideration the submissions made by the neighbours in York Place and Wise Street after the Modification was notified, that it would be unreasonable to uphold the Modification in relation to Condition 16 of DA/2020/1159. 4. In relation to the request to delete the first Advisory Note in relation to Public Domain and Vehicular Crossings: "This development consent does not authorise vehicular or pedestrian access to the property off York Place. In this regard the applicant must first demonstrate that they have a legal right to attain access", I do not agree that the said Advisory Note should be deleted. The Applicants have been on notice of this legal issue in regard to the York Place strip of land since at least 16 September 2020 (Ex A, survey last page), and between 16 September 2020 and when DA/2022/1159 was granted on 7 July 2021 the Applicants did not take any steps to get an easement for access or an application in the Local Court for access under s 7 of the ANL. It is not for the Council to prove that there is no access via the rear gate, it is for the Applicants to prove that there is a legal access for vehicles and pedestrians via the rear gate to York Place over the York Place strip of land. The Applicants have failed to so prove. 5. I shall dismiss the appeal in accordance with s 8.14(1) and (2) of the EPA Act and s 39(1) - (8) of the LEC Act. Orders 1. The Court orders: 1. The appeal is dismissed. 2. The Exhibits A, B, C, D, E, G, J, K, L, M, 1, 2, 3, 4, 5, 6, and 7 are retains. Exhibit H is returned. ………………………… M Peatman Acting Commissioner of the Court ********** Endnotes 1. Ex A: Application Class 1 filed 30 May 2022 2. Ex 1: Council's Statement of Facts and Contentions filed 6 July 2022 3. Ex B: Applicants' Bundle of Documents 4. Ex G: Leichhardt Council's York Place, Rozelle, Narrow Streets, Marked Bays and Tree Planting, dated 22 February 2010, Plan No. NS-YOR-1 5. Ex E: Applicants' Statement of Facts and Contentions in Reply filed 29/07/22 6. Ex 3: Town Planning Joint Report filed 19 August 2022 7. Ex 7: Respondent's Further Supplementary Bundle of Documents 8. Ex 4: Traffic Joint Report filed 5 September 2022 9. Ex 6: Respondent's Bundle of Documents 10. Ex J: Statement of Environmental Effects by Raymond Panetta Architect dated December 2020, Issue A 11. Ex C: Affidavit of Dix Dickson filed 22 August 2022 12. Ex D: Affidavit of Filippo Kousis filed 22 August 2022 13. Ex 7: Respondent's Further Supplementary Bundle of Documents 14. Ex B Applicant's Bundle of Documents 15. Ex M: The Traffic Planner's Construction Traffic management Plan for 73 Nelson Street, Rozelle dated 1 September 2021 16. Ex K: Council's Development Assessment Report for DA/2020/1159 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: 04 November 2022