Land and Environment Court New South Wales Medium Neutral Citation: PC Infrastructure Pty Ltd v Wentworth Shire Council [2024] NSWLEC 1139 Hearing dates: 11, 12, 13 September and 24 October 2023 Date of orders: 26 March 2024 Decision date: 26 March 2024 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is dismissed. (2) Development application No DA2021/008 for construction and operation of a service station trading as "On the Run" or OTR, and associated works is determined by refusal to grant consent to the application. (3) All exhibits are retained. Catchwords: DEVELOPMENT APPEAL – service station – frontage on classified road – whether a right of way is a road – jurisdictional prerequisite as opposed to merit assessment –whether a deferred commencement condition can satisfy a jurisdictional prerequisite - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7, 8.7 Conveyancing Act 1919, s 88B Land and Environment Court Act 1979, ss 34AA, 39, 56A Roads Act 1993, s 138 Environmental Planning and Assessment Regulation 2000, cl 55 Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Plan (Transport and Infrastructure) 2021, ss 2.3, 2.48, 2.119, 2.122 State Environmental Planning Policy (Infrastructure) 2007, cl 101 Wentworth Local Environmental Plan 2011, cl 7.2 Cases Cited: Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Benson McCormack Architects v Manly Council [2013] NSWLEC 1223 BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 Intrapak Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 1006 Kindimindi Investments Pty Ltd v Land Cove Council & Anor (2006) 143 LGERA 277; [2006] NSWCA 23 Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6 McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Modern Motels Pty Limited v Fairfield City Council (No 2) [2013] NSWLEC 1224 Modern Motels Pty Ltd v Fairfield City Council [2013] NSWLEC 138 Olsson v Goulburn Mulwaree Council & the Minister Administering The Crown Land Act 1989, Olsson v The Minister Administering The Crown Land Act 1989 (2010) 176 LGERA 71; [2010] NSWLEC 169 Peregrine Corporation Pty Ltd v Wentworth Shire Council [2018] NSWLEC 1647 Platford v van Veenendaal and Shoalhaven City Council (2018) 229 LGERA 101; [2018] NSWLEC 27 Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1222 Texts Cited: Standards Australia, AS/NZS 2890.1:2004, March 2004 Standards Australia, AS 2890.2:2018, December 2018 Wentworth Development Control Plan 2011 Category: Principal judgment Parties: PC Infrastructure Pty Ltd (Applicant) Wentworth Shire Council (First Respondent) SJ & AC Saunders Pty Ltd (Second Respondent) Representation: Counsel: A Pickles SC (Applicant) A Seton (Solicitor) (First Respondent) J Lazarus SC/L Nurpuri (Second Respondent) Solicitors: Allens (Applicant) Marsdens Law Group (First Respondent) Mills Oakley (Second Respondent) File Number(s): 2022/284588 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of development application DA2021/008 for construction and operation of a service station trading as "On the Run" or OTR, and associated works (the Proposed Development) at 83-89 Hendy Road Buronga legally described as Lot 5 in DP1029509 (the Site). 2. This matter is about a proposal to build a service station on a site which has frontage onto a classified road and the reliance on proposed access to the proposed new service station from the Sturt Highway (also known as Hendy Road), being the relevant classified road. In particular, the matter is about whether the Court can be satisfied as to s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) in the context of firstly whether an alternate road is practically and safely available for vehicles and secondly, whether there is an adverse impact on the classified road where a right turn in to the Site is provided to westerly travelling vehicles but there is no ability or alternative to turn right out of the Site in order to resume that journey in a westerly direction. 3. The Site was subject to proceedings Peregrine Corporation Pty Ltd v Wentworth Shire Council [2018] NSWLEC 1647 (Peregrine) in relation to DA 2017/004 to construct and operate a Highway Service Centre which was refused by Dickson C who found at [48] to [53] that she did not have jurisdiction to approve the development application because she was unable to rely on a deferred commencement condition to satisfy the conjunctive jurisdictional prerequisites in cl 101(2) of the State Environmental Planning Policy (Infrastructure) 2007, which is in identical terms to s 2.119(2) of SEPP Transport and Infrastructure. The evidence before Dickson C in the matter of Peregrine included: "that if the diesel fuel bowsers servicing of heavy vehicles (A Doubles and B Doubles) within the facility were in use, and an additional heavy vehicle entered the site, they would be unable to maneuver (sic) fully off the Sturt Highway. This would create a further potential conflict point." (Peregrine, par [51]) 1. I will come back to the reliance on a deferred commencement condition to satisfy the jurisdictional prerequisites of s 2.119(2) of the SEPP Transport and Infrastructure at [109]. 2. The Second Respondent was joined as a party to these current proceedings following a Notice of Motion heard before Moore J on 9 August 2023 and on 14 August 2023 Moore J made orders in accordance with Short Minutes of Order. In accordance with those orders, the Second Respondent filed a Statement of Facts and Contentions Second Respondent (SOFAC R2) on 11 August 2023 (Ex 2R1). 3. The proceedings commenced on Site where three objectors gave evidence expressing concerns regarding traffic and vehicular and pedestrian safety (Ex 1) in particular regarding heavy vehicles. Heavy vehicles is a focus of the Proposed Development and I come back to this where there is further detail of the proposal to limit right hand turns into the Site to vehicles under 9m (Condition 8) at [12] and a proposed Deferred Commencement Condition DC1 to address the ability of vehicles over 12.5m to turn left into the Site at [109]. Following an inspection of the local area, the Court was taken to visit an existing OTR service station operating at 2090 Fifteenth Street, Irymple, Victoria approximately 12 minutes drive from the Site and another existing OTR operation at 463-469 Deakin Avenue, Mildura, Victoria. 4. The proceedings resumed at Wentworth Local Court for the balance of the listed hearing and then adjourned part heard to 24 October 2023 where closing submissions were heard. Proposed/Draft Conditions of Consent filed 17 October 2023 (Ex L) were tendered on 24 October 2023. 5. The First Respondent's case is that the proposed service station is fundamentally flawed because it fails to satisfy the jurisdictional prerequisites in s 2.119 of the SEPP Transport and Infrastructure in two ways. The provision sets out matters about which the consent authority, in this case the Court, must form positive opinions of satisfaction in order to have the power to grant consent to a development application on land that has frontage to a classified road. Firstly, the First Respondent submits that, the Proposed Development is flawed because the development does not provide for vehicular access to the land by a road other than the classified road even though it is practicable and safe to do so (s 2.119(2)(a), SEPP Transport and Infrastructure). In response to the jurisdictional prerequisite identified by the First Respondent regarding vehicular access to the land by a road other than the classified road pursuant to s 2.119(2)(a) of the SEPP Transport and Infrastructure, the Applicant asserts in its outline of submissions and orally that there is no other road by which access can be obtained beyond the right of carriageway that benefits this particular land, that is, the Applicant submits that the 15-metre wide right of carriageway (ROW) is not a road. I will come back to the status of the ROW at [45]. 6. Secondly, the Frist Respondent submits that the Proposed Development is flawed because, the development provides for a right turn in by vehicles in circumstances where those vehicles have no ability or alternative to turn right out of the site and continue the journey travelling in a westerly direction, thereby increasing the prospect of vehicles carrying out unsafe manoeuvres on the classified road to head back in a westerly direction after having been forced to turn left to travel east. This increased prospect of unsafe manoeuvres is a design impact of the Proposed Development on the classified road and the question for the court is whether it is satisfied that this design impact of vehicular access is not adverse insofar as the safety, efficiency and ongoing operation of the classified road is concerned (s 2.119(2)(b), SEPP Transport and Infrastructure). I deal with the jurisdictional prerequisites of s 2.119 of the SEPP Transport and Infrastructure in relation to the safety and operation of the Sturt Highway at [25]. 7. The Second Respondent's case, as set out in written submissions filed 17 October 2023 (R2 Submissions) and augmented by oral submissions in Court on 24 October 2023, is that the appeal should be dismissed because of the extent of traffic related impact arising from the Proposed Development. In particular, the Second Respondent submits that the Applicant was unable to resolve two critical issues raised by the Respondents as follows (R2 Submissions, par 7): 1. The design of the left-only exit will result in displaced turns by drivers seeking to resume a westbound trip who may make U-turns in carriageway of the Sturt Highway, enter a local road to undertake a U-turn, or use local roads to return to the classified road network. I will deal with this first issue together with the First Respondent's second jurisdictional prerequisite submission as outlined at [8], namely the impact of the design of vehicular access on the safety, efficiency and ongoing operation of the classified road; and 2. The non-compliant change in gradient of the driveway due to the location of a gravity-fed sewer located underneath the front part of the Site has the consequence that it is now agreed by all the traffic experts that access to the Site by articulated heavy vehicles over 12.5m is "not practical" (Ex 11, at par [4]). The Applicant proposes a deferred commencement condition in order to address this concern which I come back to at [109]. 1. The Second Respondent's position, as outlined in their Written Submissions at par 9, is that the appeal ought to be dismissed, as: 1. The Court cannot be satisfied of the jurisdictional matters in s 2.119 of the SEPP Transport and Infrastructure; 2. The deferred commencement condition proposed by the Applicant results in a fundamental and significant change to the development for which consent is sought, offending the principles in relation to finality outlined in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison); 3. The proposed deferred commencement condition impermissibly seeks to defer assessment of matters essential to the development (see Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake); and 4. The Proposed Development results in unacceptable impacts. 1. The Applicant proposes to deal with and resolve the matters raised by the Respondents by way of conditions (Ex L) as follows: 1. A deferred commencement condition (Condition DC1) which, unless the Council is satisfied that left-turn access is demonstrated consistent with AS2890.2:2018 following the provision of further information, deletes the diesel bowsers and canopy along with the B-Double parking, and restricts access to the Site to light vehicles and rigid trucks no longer than 12.5m; and 2. A condition that has the effect of prohibiting right turns into the Site from the Sturt Highway (Hendy Road) for vehicles over 9 metres long (Condition 8). 1. I will come back to Condition DC1 at [109]. 2. The First Respondent submits that it has not been demonstrated that the Proposed Development can be carried out in an acceptable way and that the proposal by the Applicant to impose a deferred commencement condition is not a lawful method of resolving the fundamental problem. I agree and set out my considered reasons. Notice of Motion to amend the Proposed Development 1. The Applicant sought to amend the Proposed Development by Notice of Motion (NOM) filed by the Applicant and listed on first day of the hearing. The NOM was heard on the second day of the hearing to allow the Traffic experts to confer as to the proposed amendments by the Applicant and for the Applicant to prepare and provide a list of changes including a scraping analysis in C07.10DA (Ex G). The First and Second Respondents objected to the orders sought in the NOM to the extent that the amending plans were not sufficient to demonstrate that a B-Double (26m long heavy vehicle) or a B-Triple (36.5m long road train) could traverse the driveway without scraping. Both the First and Second Respondent sought a direction for further conferencing by the Traffic experts to which the Applicant agreed. Orders on the NOM 1. The Court Ordered on 12 September 2023 as follows: 1. Pursuant to s 39(2) of the Land and Environment Court Act 1979 (LEC Act) the Court, exercising its function as consent authority agrees pursuant to cl 55 Environmental Planning and Assessment Regulation 2000 to the Applicant amending the Proposed Development by the following documents: 1. Civil Engineering Package Plans (Ex G) 2. Architectural plans SK03L and SK04L (All architectural drawings were removed from Ex A, Tab 11 and marked Ex F) 3. Fyfe Environmental Planning Report (Ex H) 4. Stormwater Management Plan (Ex J) 1. The Applicant is to pay the costs of the First Respondent thrown away pursuant to s 8.15(3) of the EPA Act as agreed or assessed. 2. The Court notes and directed the Applicant to provide further information by way of a scraping analysis by way of scale and vehicle profile by 8 am 13 September 2023. 3. The Court directs the Traffic experts to confer at 9 am 13 September 2023 in relation to any further scraping analysis provided by the Applicant. 1. The scraping analysis and further joint conferencing referred to in [16(3)] and [16(4)] resulted in the Supplementary Joint Expert Traffic Report marked Ex 11 which I will come back to. The Proposed Development 1. As described in the Amended Statement of Environmental Effects prepared by SLR Consulting dated May 2023 (Ex A, Tab 10) the Proposed Development is for: 1. The construction and use of a service station with proposed 24/7 trading hours; 2. On-site car parking; 3. Fuel canopy including 3 fuel double sided fuel bowsers and associated fuel infrastructure; 4. Diesel canopy including 3 fuel bowsers; 5. Site preparation including earthworks; 6. Landscaping; 7. Business identification signage; and 8. Road works. Expert evidence 1. The parties rely on the evidence contained in a number of Joint Expert Reports prepared by Traffic Experts and Town Planning Experts. The Court was assisted by the following Joint Expert Traffic Reports: 1. filed 10 August 2023 Tim Rogers for the Applicant and Tom Steal for the First Respondent (Ex 6) 2. filed 25 August 2023 Tim Rogers for the Applicant, Tom Steal for the First Respondent and Rhys Hazell for the Second Respondent (Ex 7) 3. filed in Court on 12 September 2023 prepared by Tim Rogers for the Applicant, Tom Steal for the First Respondent and Rhys Hazell for the Second Respondent (Ex 10) 4. filed in Court on 13 September 2023 prepared by Tim Rogers for the Applicant, Tom Steal for the First Respondent and Rhys Hazell for the Second Respondent (Ex 11) 1. The Court was also assisted by the Joint Expert Town Planning Report filed 21 August 2023 prepared by Stephen O'Connor for the Applicant and George Kenende for the First Respondent (Ex 5). The Town Planners were not cross examined during the hearing because the First Respondent conceded that the Proposed Development was permissible and did not press Contention 3 as set out and particularised in the Amended Statement of Facts and Contentions filed 11 July 2023 (ASOFAC) (Ex 2). The First Respondent concedes that the Proposed Development would remain permissible if the Planning Proposal were to be gazetted and the Site was rezoned E1 Local Centre because 'commercial premises' and 'service stations' are land uses that are permissible within the E1 Local Centre. 2. The remaining contentions in the First Respondent's ASOFAC for determination by the Court have been refined to be the following: 1. Safety and operation of the Sturt Highway and satisfaction of the provisions in ss 2.119 and 2.122 of the SEPP Transport and Infrastructure (Contention 1, particulars (d), (h) of the ASOFAC (Ex 2) and Contention 2(a)-(c) SOFAC (Ex 2R-1)); 2. Inadequate on-site vehicular manoeuvring for a 36.5m B Triple heavy vehicle in the context of the Sturt Highway being an approved road train route. (Contention 2, particulars (a) and (b) and Contention 1 particular (f)); 3. Electricity transmission network and potential safety risks associated with existing overhead power lines in proximity to the Site (s 2.48 SEPP Transport and Infrastructure) (Contention 4). The Applicant relies on the report by Power Solutions (Ex A, Tab 21); 4. Zone Objectives – Zone RU5 Village – limited to traffic (Contention 5); 5. Public interest and Precedent (Contentions 6 and 7). 1. The Second Respondent raises additional contentions and filed Written Submissions on 17 October 2023 (R2 Submissions). The Applicant provided written outline of submissions and submissions in reply to the R2 Submissions. All parties made oral closing submissions which have been recorded onto the transcript. 2. I will carefully deal with the first contention however, as part of my determination, there are a number of questions to be answered in order to reach the conclusion I reach. These questions are as follows and which I come back to their answers at [147]: 1. Can a jurisdictional prerequisite be addressed by reference to a condition of consent? (ss 4.16 and 4.17 EPA Act) 2. Does the power to impose a deferred commencement condition apply to the satisfaction of a jurisdictional prerequisite? (s 4.16(3) EPA Act) 1. Having reached my conclusions set out in this judgment in relation to Contention 1, the safety and operation of the Sturt Highway, I do not address the balance of the contentions in any detail because the first contention is a jurisdictional prerequisite which I find to not be satisfied. I now set out my reasons. Safety and operation of the Sturt Highway (s 2.119, SEPP Transport and Infrastructure) 1. Satisfaction of this contention is a jurisdictional prerequisite for the Court to be able to exercise its function to grant the consent sought and will be a primary focus in these proceedings as the Applicant acknowledges that s 2.119 of the SEPP Transport and Infrastructure is the heart of the matters in dispute in this case (Transcript 24 October 2023 p 218 at par 5). 2. As the Sturt Highway is a classified road, the Court, as consent authority, must not grant consent to development on land that has a frontage to a classified road unless it is satisfied pursuant to s 2.119(2) of the SEPP Transport and Infrastructure that: (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of— (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road. 1. I am satisfied that the Proposed Development, a proposed service station, is a development of a type that is not sensitive to traffic noise or vehicle emissions arising from the adjacent classified road. It remains to be satisfied as to subs (a) and subs (b) of s 2.119(2) of the SEPP Transport and Infrastructure. 2. One of the objectives of the jurisdictional prerequisites set out in s 2.119(2) of SEPP Transport and Infrastructure is to ensure that new development does not compromise the effective and ongoing operation and function of classified roads. 3. The First Respondent contends at Contention 1(k) that the Court must not grant consent to the development application because it cannot be satisfied that: "a. It is not practicable to provide vehicular access to the land by a road other than the classified road (noting that there has been no assessment of the use of the ROW as an alternative access to the site), and b. The safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development. c. The potential traffic safety, road congestion or parking impacts of the development are acceptable. d. The proposal provides suitable road access and is consistent with clause 7.2(2) of the WLEP 2011 which states: "7.2 Essential services … (2) Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required— … (e) suitable road access."" 1. Clause 7.2(2)(e) of the Wentworth Local Environmental Plan 2011 (WLEP) regarding suitable road access is a jurisdictional prerequisite to the granting of consent to the development. Access to the Site seems to be encompassed in the SOFAC R2 (Ex 2R1) at Contention 3 titled "Access to the Site is non-compliant and requires design changes" and refers to AS2890.1:2004 and AS2890.2:2018 and particularises levels and gradients. My findings in relation to s 2.119 of the SEPP Transport and Infrastructure will inform my findings and conclusions in relation to cl 7.2(2)(e) "suitable road access" of the WLEP. 2. The Second Respondent also contends that there is insufficient information to satisfy the consent authority as to 'adequate arrangements' for the purpose of stormwater drainage as required by cl 7.2(2)(d) of the WLEP (Contention 4, SOFAC R2). Then at Contention 5 of the SOFAC R2, the Second Respondent contends that there has been no detailed consideration of the impact of a second service station site on the existing stormwater runoff and the potential for increased flooding risk and that there is no assessment of the cumulative impacts of the proposed use in conjunction with the existing service station on the adjacent residential properties. The R2 Submissions address the Applicant's submissions on stormwater at pars 71 to 80. I accept that cumulative impacts are a relevant consideration for the assessment of the Proposed Development and note that although the Applicant accepts that there will be an accumulation of impacts as development occurs within the zone, consideration of the zoning alone without material which assess the cumulative stormwater impacts of the development is not sufficient, because even if the expectation of the Court approving an application to use a site for a purpose for which it is zoned may exist, that expectation must be limited to the acceptability or otherwise of the environmental impacts resulting from the Proposed Development (BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237; [2004] NSWLEC 399 at [118]). 3. The First Respondent contends that the Proposed Development must be refused because it has not been demonstrated that the safety, efficiency and ongoing operation of the Sturt Highway (a classified road) will not be adversely affected by the Proposed Development, that the application proposes suitable road access and any potential traffic safety, road congestion or parking implications of the development have been appropriately addressed. In this regard, the Respondents submit that the Court would not be satisfied that the development application is consistent with the requirements of ss 2.119 and 2.122 of SEPP Transport and Infrastructure and that the Court is precluded from granting development consent to the application. 4. I will deal with this contention using the following framework: 1. Consultation with Transport for NSW (TfNSW) regarding the traffic generating development (s 2.122, SEPP Transport and Infrastructure) at [34]; 2. Description of the Site at [40]; 3. Is there a road other than a classified road from which practicable and safe vehicular access can be provided to the Site (s 2.119(2)(a), SEPP Transport and Infrastructure)? At [59]; 1. What is the status of the ROW? At [45]; 1. Is the safety, efficiency and ongoing operation of the classified road adversely affected by the Proposed Development? At [79]; 2. Proposed Deferred Commencement condition sought by the Application to satisfy the terms of s 2.119 of the SEPP Transport and Infrastructure at [109]; 3. Findings and conclusions at [58], [106] – [107], [135], [146] - [150]. Traffic generating development requires notification to TfNSW (s 2.122, SEPP Transport and Infrastructure) 1. The Proposed Development is traffic-generating development and s 2.122(4) SEPP Transport and Infrastructure applies which provides that: (4) Before determining a development application for development to which this section applies, the consent authority must— (a) give written notice of the application to TfNSW within 7 days after the application is made, and (b) take into consideration— (i) any submission that RMS provides in response to that notice within 21 days after the notice was given (unless, before the 21 days have passed, TfNSW advises that it will not be making a submission), and (ii) the accessibility of the site concerned, including— (A) the efficiency of movement of people and freight to and from the site and the extent of multipurpose trips, and (B) the potential to minimise the need for travel by car and to maximise movement of freight in containers or bulk freight by rail, and (iii) any potential traffic safety, road congestion or parking implications of the development 1. The Court has before it the following evidence as to consultation with TfNSW: 1. TfNSW have written three letters regarding the Proposed Development: 1. First on 22 March 2021 (Tab 9, Ex 3) responding to the referral and seeking further information. 2. TfNSW had not provided their concurrence under s 138 of the Roads Act 1993 to the form and extent of vehicular access proposed pursuant to the Proposed Development, from the Sturt Highway, in particular the proposed right turn onto the Sturt Highway. The Respondents submit that it would be premature for the Court to approve the Proposed Development before it has been demonstrated that the requirements set out by TfNSW in their letter dated 28 October 2021 (Tab 19, Ex 3) can be properly satisfied and are an acceptable and safe outcome for the Site. 3. The third letter from TfNSW is at Ex 9 dated 7 September 2023 providing conditions of consent at Attachment 1. The contents of this letter are relevant insofar as the First Respondent's submission opposing the deferred commencement condition (refer to [141] below). 1. Finally, at Ex M is a letter from TfNSW dated 20 October 2023 which provides as follows: "… TfNSW has provided, in principle support, to an access to and from Hendy Road subject to certain conditions of consent being met. TfNSW is satisfied that safe vehicular access can be provided at this location and that this proposed access does not impact on any future plans to widen Hendy Road. … In the event the proposed development is approved, the Applicant must comply with TfNSW Condition 15 to enter into a Works Authorisation Deed (WAD). The proposed access at this location will be further refined as part of the WAD process including further detailed design and possible relocation of utilities. … ". 1. The First Respondent submits that "… it's important to note that the section [2.119 of SEPP Transport and Infrastructure] does not involve consultation with or concurrence from TfNSW at all. In fact, TfNSW is not mentioned at all in the section, and the consent authority must not defer the requirement to form a positive opinion to another authority that has no role to play under the sections. It's solely a matter for the consent authority to form the requisite opinion." (Transcript 24 October 2023, p 183, par 1). 1. The Second Respondent's short submission is that "… to the extent that TFNSW might be contemplating some, what be described as an iterative process involving TFNSW and the applicant, that's a separate statutory process, … not relevant at all to the determination of your jurisdiction under s 2.119…we say that Ex 9 is of no assistance to you in determining those jurisdictional questions" (Transcript 24 October 2023, p 207 at par 35 and p 208 at par 7). 1. Although I am satisfied that the required notification process pursuant to s 2.122 of the SEPP Transport and Infrastructure has been complied with, the Court must form positive opinions of satisfaction pursuant to s 2.119 of the SEPP Transport and Infrastructure in order to have the power to grant consent to a development application on land that has frontage to a classified road. (Transcript 24 October 2023, p 182, par 49). 2. In accordance with the framework I have adopted I will now move on to the description of the Site. Description of the Site 1. It is necessary to understand the Site and its surrounds in order to determine the requirements of s 2.119 of SEPP Transport and Infrastructure. 2. The Site is vacant land located on the northern side of the Sturt Highway, which is also known as Hendy Road, in Buronga, New South Wales. Sturt Highway (Hendy Road) is a classified road. The Site has direct frontage of 99.62m to the Sturt Highway (Hendy Road). The Site is affected by proposed road widening along the Sturt Highway frontage, noted on the Certificate of Title. TfNSW has advised the Respondent that the road widening is critical to the future functioning of the state road network. I have reproduced the Locality Plan extracted from the Cover Sheet and Drawing List DWG C01DA Rev E (Attachment A to Ex 6) at Fig 1. Fig 1: Locality Plan extracted from the Cover Sheet and Drawing List DWG C01DA Rev E 1. The Site is located 60m east of the intersection of the Sturt Highway and Melaleuca Street, Buronga. The Site adjoins an existing "Shell" service station to the east owned by the Second Respondent, and government offices (presently the National Parks and Wildlife office building) are located to the west of the Site. Residential buildings exist on the other side of the Sturt Highway to the south of the Site, 35m from the front of the subject allotment, and 30m behind (to the north) of the Site on the other side of Lot 1 DP1213735 (the right of carriageway). The Site and the surrounding land is within the RU5 Village Zone pursuant to WLEP. 2. Other adjacent or nearby relevant sites with frontage to Sturt Highway (Hendy Road) have the following access arrangements: 1. Shell access in and out in both directions; 2. IGA (Midway Market) left turn exit only, or via a ROW through Shell (Traffic Assessment (Amended Plans) dated 21 July 2023 p 5, Attachment B to JER Traffic (Ex 6) (July Traffic Report)); 1. I note the Applicant's submission as follows: "Anyone leaving the IGA development, the Midway Centre, also is required to turn left out of the site. They do the same manoeuvre, they turn right, and indeed, the right turn bay was adjusted for that very purpose and a median was extended along the highway in front of the Midway Centre for that very reason, in order to maintain the safety and efficiency of ongoing operation of the classified road. So why is it the applicant's vehicles cause an adverse effect, but the IGA's vehicles don't; absolute nonsense." (transcript 24 October 2023, p 236) 1. and 2. Grandview Estate access via Melaleuca Road only, that is, cannot access via Sturt Highway. 1. The ROW to the north of the Site is an important consideration in these proceedings. What is the status of the 15m wide ROW? Is the ROW a road for the purpose of s 2.119(2)(a) of the SEPP Transport and Infrastructure? 1. The Court, as consent authority, must not grant development on land that has frontage to a classified road unless it is satisfied that, where practicable and safe, vehicular access to the land is provided by a road other than the classified road (s 2.119(2)(a), SEPP Transport and Infrastructure). There are two components to s 2.119(2)(a): first, whether there is in fact vehicular access to the land via a road other than the classified road, the desired outcome, and secondly, whether that access via a road other than the classified road is practicable and safe (Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138 (Modern Motels) per Preston CJ at [21] and [42]). 2. The Proposed Development proposes vehicular access to the Site directly off the Sturt Highway except in the case of an emergency where vehicles may access the Site via the ROW from Melaleuca Street. 3. Dealing firstly with the first component of s 2.119(2)(a), namely, the desirable outcome of providing vehicular access to the Site by a road other than a classified road, I note at the outset that in Modern Motels the question of whether a right of way is a road for the purpose of s 2.119(2)(a) was not raised or determined notwithstanding that the vehicular access proposed included traversing a right of way. 4. The categorisation of the ROW is a matter in dispute between the parties and the Court is asked to make a finding as to whether the ROW is a road for the purpose of s 2.119(2)(a) of the SEPP Transport and Infrastructure. 5. To answer the question of whether the ROW is a road, one looks firstly to statutory definitions for 'road'. A 'road' is not defined in the SEPP Transport and Infrastructure and s 2.3(1) of the SEPP Transport and Infrastructure says that "A word or expression used in this Chapter has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Chapter." When one goes to the Standard Instrument (Local Environmental Plans) Order 2006 (the Standard Instrument), there is a definition for 'road' in the Dictionary and that definition says as follows: road means a public road or a private road within the meaning of the Roads Act 1993, and includes a classified road. 1. A review of the Roads Act 1993 Dictionary one finds the meaning of road, public road and private road which I reproduce below as follows: road includes— (a) the airspace above the surface of the road, and (b) the soil beneath the surface of the road, and (c) any bridge, tunnel, causeway, road-ferry, ford or other work or structure forming part of the road. public road means— (a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and (b) any road that is declared to be a public road for the purposes of this Act. private road means any road that is not a public road. 1. In order to rely on the ROW as being a road for the purpose of s 2.119(2)(a) of the SEPP Transport and Infrastructure one would look at the definitions above and consider whether the ROW is a private road. I will come back to the secondary enquiry, in the event that the ROW is a private road, and that is whether the route through the ROW onto Melaleuca Street is practicable or safe for vehicular access as opposed to access to and from the Site via the classified road. Although, I note the Second Respondent's position is that the secondary enquiry as to Melaleuca Street is not required and that the Court is to exclusively consider the ROW. I do not agree with that position and I will give my reasons below. 2. Firstly, though, I make the initial threshold finding as to whether the ROW is a private road. 3. The Applicant submits that the ROW is not a road, but land owned by others over which there are certain rights of access, "but that does not mean it is a road within the meaning of s 2.119" (Applicant Submissions, par 5.5). The Second Respondent submits that this is wrong at law (R2 Submissions, par 26) and that the ROW is "clearly a "private road" which has the potential to provide vehicular access to the Site." (R2 Submissions, par 28). 4. The ROW is an easement over land created pursuant to an Instrument which is in evidence before the Court (Ex 2R2, Tab 1). That Instrument sets out the terms of easement and restrictions as to user, intended to be created pursuant to s 88B, Conveyancing Act 1919. Item 3 of the Instrument on DP1029509 resulting from Plan of Subdivision of Lot 3 in DP 870633 and Easement within Lot 2 DP 870633 provides for an "Easement for Services and Right of Carriageway 15 wide" over Lot 7 (Lot burdened) and to the benefit of Lots 5 (the Site) and 6 in DP1029509, Lot 2 in DP 870633 and to the benefit of Wentworth Shire Council. The Right of Carriageway 15 wide referred to in Item 3 is the relevant ROW. The terms of Item 3 include terms for services and in relation to the ROW provides at Sheet 5 of 7 as follows: "Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorised by him to go, pass and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof" 1. I Reproduce below Deposited Plan 1029509 showing the ROW over Lot 7: Fig 2: Deposited Plan 1029509 (Ex 2R2 Tab 1) showing ROW over Lot 7 1. In the decision of Palm Lake the characterisation of an access way by Dickson C as a road was not disturbed by the s 56A of the LEC Act appeal decision of Preston CJ at [57]. Part of that judgment deals with the characterisation of an access way as a road, for the purposes of that particular development, and ultimately Preston CJ concluded that the Commissioner was not wrong in doing that, even though it wasn't a public road, it was an access way that could be characterised as a road for the purposes of the definition of road in the zoning table that applied to that particular land that was subject to that decision. Preston CJ at [65] – [67] of Palm Lake states: "65 Having correctly understood the characterisation task she was required to undertake, the Commissioner evaluated whether the access way could be characterised as being the nominate permissible use of road. No error is revealed in the Commissioner' analysis and conclusion that the access way could be characterised as a road. The facts of the access way allowing access to and from the seniors housing development in the present case were analogous to the facts of the access handle allowing access to and from the light industrial use in Argyropolous v Canterbury Municipal Council. Palm Lake submitted that the Commissioner was correct to so find. 66 … The Commissioner's approach to determine first whether the access way could be characterised as being for the nominate permissible development of road (a development specified in item 3 of the land use table for the RU2 Zone) was correct. If the access way could be characterised as being for the nominate permissible development of road, it would be permissible, irrespective of whether it could also be characterised as being a seniors housing development. 67 … the Commissioner did not fail to consider the purpose of the use of the access way. Whilst the Commissioner does not in the paragraphs where she finds the access way falls within the definition of "road" expressly refer to the purpose of the use of the access way, the Commissioner had earlier recognised the need to consider the purpose of the particular use when she set out the task of characterisation of the access way (in [74] and [75]), adopted the submissions of Palm Lake (set out in [70]-[72]) concerning the proper characterisation of the access way, and referred to prior decisions, including Botany Bay City Council v Pet Carriers International Pty Ltd, which focused on characterising the purpose of a particular use (at [75])." 1. The Site and the land over which the Instrument is registered, are all zoned RU5 Village pursuant to the Land Zoning Map of the WLEP (Ex 3, Tab 33, folio 277) and the Land Use Table of the WLEP expressly nominates roads as development permitted without consent in the RU5 Village zone (Ex 3, Tab 33, folios 225-226). 2. I am satisfied and find that the ROW is a private road for the purpose of s 2.119(2)(a) of the SEPP Transport and Infrastructure because the terms of the Instrument expressly provides a right for vehicular access to and from the Site over that ROW without the requirement to seek any further or additional consents or permits, although I do note that the terms of the ROW does not extend to undertaking works over the ROW. Further, a road is a nominated development permitted without consent within the RU5 Village zone. Accordingly, I find that there is a road, other than the Sturt Highway, by which vehicular access to the Site can be provided and that this is a desirable outcome and satisfies the first component of s 2.119(2)(a) of the SEPP Transport and Infrastructure. 3. I now move on to the second component of s 2.119(2)(a), which is whether that desirable outcome, providing vehicular access to the Site by the ROW, is practicable and safe. 4. Both Respondents rely on the decision of Preston CJ in Modern Motels where at [42] Preston CJ says as follows: "42 … The phrase "where practicable" regulates the desired outcome ("vehicular access to the land is provided by a road other than the classified road"). The consent authority is precluded from granting consent to a development on land that has frontage to a classified road unless it is satisfied that the desired outcome will be achieved, where that desired outcome is practicable. That is to say, the practicability is as to the outcome of providing vehicular access to the land by a road other than the classified road." 1. The Second Respondent submits that in relation to the desired outcome, meaning that vehicular access to the land is not to be provided by the classified road but instead by a road other than the classified road, is "not a relative concept but an absolute one. It is not a matter of whether it is more desirable to have access from the classified road, but whether access from a road other than classified road is practicable and safe." (R2 Submissions, par 21). 2. The Second Respondent submits that the exclusive focus of s 2.119(2)(a) of the SEPP Transport and Infrastructure is the ROW and elaborates as follows "it is, in fact, not, or does not involve a consideration of Melaleuca Street at all, let alone what might happen once a truck or other vehicle leaves Melaleuca Street in order to access the classified road. The only question that is required to be dealt with is whether access by the ROW is safe and practical." (Transcript 24 October 2023, p 207, par 5). 1. The Second Respondent goes on to submit that: " … even if the proper consideration is, as Council submits, the form of access by the right of way and Melaleuca Street, our submission is there is simply no assessment that has been carried out in particular of the right of way in order to enable you to even get to first base as to your consideration of that jurisdiction matter." (Transcript 24 October 2023, p 207 at 11). "The evidence of service station developments usually having access to classified roads is irrelevant to the assessment required to be undertaken by subsection (2)(a). A "practice" of allowing service stations to access classified roads does not establish that an alternative route is not practicable and safe." (R2 Submissions, par 35). 1. Following the decision in Modern Motels, Brown C provided the decision of Modern Motels Pty Limited v Fairfield City Council (No 2) [2013] NSWLEC 1224 (Modern Motels on remitter) being a remitted hearing, and at [11], Brown C said that as there is no definition of the word 'practicable' in the planning instruments, the dictionary meaning was accepted, Macquarie dictionary meaning of "practicable" in the extract of the 7th edition: 1. Capable of being put into practice, done or effected, especially with the available means or with reasonable prudence; feasible. 2. Capable of being used or traversed or admitting of passage 1. The Second Respondent made it clear that as owner of the land burdened by the ROW, owners consent is not provided to any development over the ROW by the Applicant. The Proposed Development does not propose any development over the ROW, however I do make the observation firstly, that development consent for 'road' cannot be sought as 'road' is a nominated development permitted without consent pursuant to the Land Use Table of the WLEP and secondly, the Site benefits from the terms of the Instrument. 2. Similar to the factual matrix in Modern Motels, the access to the Site that does not involve the direct access of Sturt Highway involves vehicles turning left or right off the Sturt Highway onto Melaleuca Street and then turning right into the ROW to then access the Site. 3. The First Respondent's submission is that: "It's clear that Melaleuca Street is a public road, and that the 15-metre right of carriageway that benefits the land is a private road. It's an area that allows vehicles, and is, in fact, formed to enable vehicles and pedestrians to pass over, to park on, and to generally move in and out of." (Transcript 24 October 2023 p 185, par 16). "… the submissions of the first respondent is that Melaleuca Street is a public road. The 15-metre right of carriageway that benefits this particular land is a private road in the sense of the definition that is provided in the Roads Act. And importing those definitions into, as required, into the word "road" as used in s 2.119(2)(a) of the Transport and Infrastructure SEPP, means that there clearly is another road that provides access to this land other than the classified road. That's not the end of the matter because we have to deal with this issue of whether it is practicable and safe and, in that particular context, I take you firstly to the decision of Preston J in the matter of Modern Motels Pty Limited v Fairfield City Council where the phrase "where practicable" is dealt with." (Transcript 24 October 2023 p 186, par 14). 1. In relation to this secondary enquiry regarding Melaleuca Street, it is the Applicant's Reply Submissions at par 3.19 as to evidence that Melaleuca Street is not practicable and safe: "There is evidence that Melaleuca Street would not afford safe and practical access to the development. Among that evidence is the following: (a) Oral and written evidence given by Mr Keith Thomson expressing concerns that increased use of the right of way will have an adverse effect on the safety of pedestrian movement in Melaleuca Street. (Ex 3, page 23) (b) Written letters from several residents to the original DA before its amendment which removed access to the right of carriageway raising safety concerns about potential for additional heavy vehicle traffic movements on residential street including Melaleuca St. (Ex 3, pages 14, 19, 20, 22, 29) (c) Letters written on behalf of the second respondent making it clear that they would oppose use of the right of carriageway. (Ex 3, pages 28-36) (d) Evidence of Mr Steal when cross examined (on the agreed construction of s 2.119(2)(a)) that it would be very strange and impractical to require access to a service station via a local road when it has access to a highway. (Transcript D2 page 87) (e) Evidence of Mr Rogers that TfNSW have a practice of allowing access to the classified road even where there may be access to another road, in recognition of the lack of practicality in requiring access to service stations from a local road. (Transcript D2 page 87)" 1. The Applicant submits at par 3.20 that "The lack of practicality or safety in diverting all traffic to Melaleuca Street means that even if the ROW is a road, it cannot be practical access because it connects to Melaleuca Street, which is not safe and practical." 2. The Second Respondent relies on the TfNSW mapped heavy vehicle route which includes Melaleuca Street on that route. I reproduce below the map tendered by the Second Respondent (Ex 2R2, Tab 5) Fig 3: TfNSW permitted heavy vehicle roads (19m semi-trailers and longer) (Ex 2R2, Tab 5) 1. The First Respondent submits that restricting all vehicular access to Melaleuca Street and the right of the carriageway is practicable and safe for at least five reasons articulated in closing submissions and recorded on the transcript (24 October 2023 from p 188 and submits that the Court would form the positive opinion of satisfaction that vehicle access to the land by a road other than the classified road has not been provided, even though it is practicable and safe to do so and, therefore, on the basis of such opinion the Court would have no power to grant consent to the development due to the operation of s 2.119(2) of the SEPP Transport and Infrastructure. The five reasons relied on by the First Respondent have been summarised as follows: 1. it is practicable and safe in traffic engineering terms for vehicular access to the land to be provided by a road other than the classified road, namely by Melaleuca Street and the 15m right of carriageway. On the basis of what Mr Steal says at par 12 of Ex 6, and to quote directly from that paragraph he says, "The use of the right of way at the rear of the site to gain access to the site is not clearly limited in terms of practicability or safety from a traffic engineering perspective". 2. there is no traffic engineering evidence from the Applicant to the contrary as the matter wasn't addressed at all by Mr Rodgers. He simply accepted that access would not be provided by Melaleuca Street and the right of carriageway. Mr Rodgers simply says, at par 9 of Ex 6, in respect of s 2.119(2)(a) of the SEPP Transport Infrastructure, "Access is not proposed via the right of way." 3. the relevant part of Melaleuca Street that fronts the right of carriageway is a designated heavy vehicle route and legally capable of being used by all types of vehicles including heavy vehicles (Ex 2R2, Tab 5). During the course of the site inspection, there were heavy vehicles already using Melaleuca Street and the right of carriageway for access and parking. The First Respondent submits that to suggest it can't be used or there are engineering problems with its use or traffic or safety concerns belies the fact that it is in fact a heavy vehicle designated route on Melaleuca Street and the right of carriageway is used by large trucks including of the B-Double variety. 4. there are no topographical or physical constraints in providing access to and from the development from Melaleuca Street and the 15m wide right of carriageway. 5. the suggestion that it is not practicable for a service station that has frontage to a classified road being limited to having vehicle access provided by a road other than the classified road is not made good by any evidence. "There is no evidence in this case at all that it is economically prohibitive to provide for a service station that wouldn't have access off the roads that are available other than the classified road." (Transcript 24 October 2023, p 189 at par 7) 1. The Applicant submits that in relation to s 2.119(2)(a) of the SEPP Transport and Infrastructure, it is not practicable or safe for vehicular access to be provided to the proposed service station by a road other than the classified road, in circumstances where the service station does not have frontage to any other road. "Access to the Site from Melaleuca Street would only be achieved by traversing a right of way over land owned by Saunders. The right of way is not a road, but land owned by others over which there are certain rights of access. But that does not mean it is a road within the meaning of s 2.119." (Applicant Written Submissions, par 5.5). 2. I find that the ROW forms part of the Proposed Development notwithstanding that the Applicant proposes to limit its use to emergency events, and for use by emergency vehicles, (R2 Submissions, par 31). Mr Steal states that "the practicability of the use of the ROW for alternative access to the site is a matter for others." (Ex 6 at [18] and [48]). Mr Rogers, for the Applicant, conceded in cross-examination that he had not undertaken any assessment of that access route. 3. The Second Respondent relies on the two reasons why the Applicant has not undertaken the assessment to conclude that neither of the two reasons identified by the Applicant sufficiently address the matter in s 2.119(2)(a) of the SEPP Transport and Infrastructure (R2 Submissions, par 25). The Respondent submits that the onus is on the Applicant to satisfy the Court as to whether it is safe and practicable to provide vehicular access to the Site by a road other than the classified road and there is insufficient material to address the relevant jurisdictional requirements in consideration of the Proposed Development, "It is not a matter for the traffic experts to consider during joint conferencing, nor is it a matter for objectors to raise at the hearing" (R2 Submissions, par 32). The Second Respondent relies on the decision of Preston CJ in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 (Australian Protein) which provides at [2] that: "2 … an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed." 1. His Honour in Australian Protein was dealing with merit consideration, environmental impacts, and I accept the Second Respondent's submission that the Applicant's burden of proof applies equally, if not more so, to satisfying the Court that the jurisdictional preconditions in s 2.119(2) of the SEPP Transport and Infrastructure have been satisfied. (Transcript 24 October 2023, p 207 at 20) 2. The evidence before the Court is sufficient to find that the ROW and Melaleuca Street provides practicable and safe alternate access to the Site. 3. Accordingly, I conclude that I am not satisfied that the Court has the jurisdiction pursuant to s 2.119(2)(a) of the SEPP Transport and Infrastructure to grant consent to the Proposed Development. 4. This finding is sufficient grounds to refuse the Appeal as the Proposed Development fails the jurisdictional prerequisite of the terms of s 2.119(2)(a) of the SEPP Transport and Infrastructure however, I will proceed to determine whether the Proposed Development satisfies the balance of the jurisdictional prerequisite set out in s 2.119(2)(b) of the SEPP Transport and Infrastructure. Will the safety, efficiency and ongoing operation of the classified road be adversely affected by the development? (s 2.119(2)(b) SEPP Transport and Infrastructure) 1. The second, and conjunctive, jurisdictional prerequisite is set out in s 2.119(2)(b) of the SEPP Transport and Infrastructure, namely am I satisfied that safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of any of the following: 1. The design of the vehicular access to the land, or 2. The emission of smoke or dust from the development, or 3. The nature, volume or frequency of vehicles using the classified road to gain access to the land. 1. I am satisfied that there is no evidence that the emission of smoke or dust from the development will adversely affect the Sturt Highway. 2. There are two remaining elements to s 2.119(2)(b) of the SEPP Transport and Infrastructure. The first element goes to the design of the vehicle access to the land and the second element is the nature, volume or frequency of vehicles using the classified road to gain access to the land. 3. The Proposed Development provides for and allows vehicles heading in a westerly direction along the Sturt Highway to turn right into the proposed service station and shop but does not permit right turns out of the Site by the drivers of vehicles who may wish to continue heading in a westerly direction along the Sturt Highway. 4. The Applicant's submissions as to design of vehicular access to the land – Transcript 24 October 2023 p 235 at par 7: "How is the safety, efficiency and ongoing operation of the classified road adversely affected by the design of the vehicular access to the land. How does that relate to the question of displaced turns; it doesn't. The displaced turners are able, safely, without any effect on the safety, efficiency and ongoing operation of the road, to turn out of the development and turn left onto the classified road. The adverse effect being alleged is an effect not of the safety and efficiency of the classified road affected by the design of vehicular access to the land at all, but just randomly doing turns on the road. Now, that's not what the question is directed to. It has to be an effect of the design of the vehicular access, as I submitted in chief, and that the design of the right-hand turn into Carramar is not an aspect of the design of the vehicular access to the land." 1. I do not agree with the Applicant's submission and find that the design of vehicular access includes the ingress and egress movements required by vehicles in order to enter and leave a site. 2. The First Respondent submits that the evidence of Mr Rogers at 54 of Ex 7 where he notes that the July Traffic Report "found that the proposed OTR petrol station with no right turn egress onto the Sturt Highway would have minimal impact on the efficiency and operation of the adjacent road network" (emphasis added), can only be a negative or adverse impact (Transcript 24 October 2023 p 191 at par 30). 3. The Applicant's submissions as to 'minimal' and adverse effect – Transcript 24 October 2023 p 235 at pars 1 and 39: "words in 2.119(2)(b) talk about, "will not be adversely affected", it doesn't mean that any impact is an adverse impact unless it's beneficial; that's not how that works. An adverse effect is one which is actually adverse, and it has to be found to be positively adverse. There is no evidence that the turns, the displaced turns, has an adverse effect upon the things which are enumerated in that provision." … "So, the simple proposition is this, that the fact that vehicles who are displaced from turning right must turn left, and then will have to use other aspects of the road network to continue their journey is not an adverse effect upon the safety, efficiency and ongoing operation of the road; there is no evidence that it is. To suggest that Mr Rogers' use of the word, "minimal", means that it's somehow an adverse effect is not correct. Minimal effect does not mean adverse. Minimal means exactly that; it has a minimal effect. It has an effect because it increases the number of vehicles that will do that manoeuvre, but that doesn't mean it's adverse. It can only be adverse if it does something in a negative way to the safety, efficiency and ongoing operation of the road, and you would not accept the Steel test, that's the Mr Steel test, that any additional turn on the road is an adverse safety effect. Now if that were the standard, that would simply mean that this clause is insurmountable, because every time you have a development that increases the volume of vehicles using the classified road from a development and doing a turn on the road, you would be having an adverse effect upon the safety, efficiency and ongoing operation of the classified road; that can't be what it means. That would simply be an absurdity. The road is designed in a way that the safety, efficiency and ongoing operation of the classified road is protected, as I put to Mr Steel. That is, there is a right turn bay at Carramar to facilitate the ongoing safety and operation of the classified road. It allows people to turn off the main carriageway, it allows a vehicle to continue to pass that vehicle that might be stationary waiting to turn right into Carramar, because that's a design feature of the road that's designed to maintain its safety, efficiency and ongoing operation. To suggest that that existing feature, that road feature, is an adverse effect is actually saying that the current road design is not up to scratch, and that's not right; no expert says that. Nobody suggests that turning right at Carramar is unsafe, or that each turn into Carramar affects the safety, efficiency and ongoing operation of the classified road. It seems to Mr Steel that it's only people that come from our development that do that right turn affects the safety and efficiency of the classified road. What's good for the goose is good for the gander". 1. The Applicant submits orally that the submissions of the First and Second Respondent render s 2.119 insurmountable which the Applicant submits is an absurd result and asks the rhetorical question 'how is it that the Proposed Development's vehicles have an adverse impact but not the IGA or the Shell vehicles?!'. 2. The First Respondent relies on the decision in Benson McCormack Architects v Manly Council [2013] NSWLEC 1223 (Benson) where Dixon C (as she then was) found at [8]-[14] as follows: "8 Although the decision of Modern Motels Pty Limited v Fairfield City Council is a case focused upon cl 101(2)(a), the judgment of the Chief Judge makes clear the fact that the three matters in cl 101(2) are conjunctive and, therefore, I need to be satisfied of each of them before determining to grant development consent (at [20]). 9 Any one matter in cl 101(2) about which I am not satisfied precludes the issue of consent. 10 In this case the parties agree that cl 101(2)(a) is not relevant because the classified road is the only road access to the land. 11 That said, the next relevant consideration is cl 101(2)(b)(i) and, according to the only traffic assessment before me from Mr Pindar, the design of the vehicular access to the land - which requires a reversing movement from the land onto the classified road - will adversely affect the safety, efficiency and ongoing operation of the classified road - albeit "slightly". 12 Having regard to that evidence I cannot be satisfied as required by cl 101(2)(b) that "...the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i)the design of the vehicular access to the land 13 Therefore, I agree with the council if I am not satisfied on the evidence then cl 101(2) precludes me from granting development consent to this application. 14 I cannot accept the applicant's submission that a slight adverse impact does not preclude satisfaction. The clause does not contemplate varying degrees of satisfaction it invites satisfaction or not and a slight adverse impact does not satisfy me in this case as required by cl 101(2)(b)." 1. The First Respondent takes the Court to Benson in the context of the evidence of Mr Rogers "who speaks of there being a minor impact" (emphasis added) (Transcript 24 October 2024, p 193 at par 24). At Ex 6, par 10 Mr Rogers' evidence is that the July Traffic Report demonstrates that: "development traffic has minimal impact on the operation of the surrounding road network with separate left and right turn bays at the access." 1. The July Traffic Report Mr Rogers refers to is at Attachment B of Ex 6 dated 21 July 2023 and at par 42, with regard to whether the proposed access would not adversely affect the safety, efficiency and ongoing operation of the Sturt Highway "this traffic review has found that proposed OTR petrol station would have minimal impact on the adjacent road network". 2. During cross examination Mr Rogers explained that minimal impact "may mean there's a slight delay – an increase delay with the vehicle, say, turning at an intersection at Lucas Street because you've got through traffic. Is that an adverse impact? No, but it may require vehicles to wait longer to turn right out of Melaleuca Street, for example." (Transcript 13 September 2023, p 137 par 40). Mr Steal's evidence is that there is an adverse impact on the safety and efficient operation of the classified road (Transcript 13 September 2023, p 138 par 45) and Mr Hazel says that "it can be a decline in operation of that intersection but that decline could still mean that that intersection operates satisfactorily." (Transcript 13 September 2023, p 138 par 27). 3. The First Respondent submits (Transcript 24 October 2023, pp 189 and 190) that the Court should reject the assertion of Mr Rogers in the JER Traffic filed 10 August 2023 (Ex 6) at p 8, par 36 where he says in relation to the Updated Traffic Impact Assessment report dated 21 July 2023 appended at attachment B to Ex 6 (the July Report): "36. Paragraphs 18 and 19 of the July Report note that: • westbound traffic would not access the site due to the inconvenience of the return trip and the provision of alternate similar facilities (Shell and IGA) adjacent to the site that provide for westbound traffic either directly to turn right onto the highway or use the ROW to access Melaleuca Street and then turn right onto the highway. • For the infrequent circumstance that a customer to OTR from the west wanted to return to the west, the customer would turn left out of the site, turn right into Carramar Drive, undertake a u-turn using the service road parallel to the Sturt Highway and then turn left back onto the highway. The number of above movements would be very low using existing roads. Therefore, no road upgrades would be required and there would be no impact on residents." 1. In oral evidence Mr Rogers accepted that some westbound traffic that wished to continue to head in a westbound direction would enter the Site (Transcript 13 September 2023, p 127 par 45). I find that it would be more than infrequent. 2. The First Respondent submits that the Proposed Development would increase the prospect of vehicles carrying out unsafe manoeuvres on the classified road to head back in the westerly direction (Transcript 24 October 2023, p 182 par 45). The First Respondent submits that Mr Steal's evidence gives a more rational and logical account of what is likely to happen as a result of providing for the channelised right turns into the Site (Transcript 24 October 2023, p 182 at par 49) and refers to his evidence at pars 38 and 39 of Ex 6 as follows: "38. I do not agree with TR's assertion in Paragraph 36 that no drivers approaching from the east with the intention of continuing their trip to the west will enter the site. Service stations provide a service to drivers travelling along major roads and it can be reasonable expected that a proportion of drivers travelling westbound will enter the site using the proposed CHR treatment with the intention of resuming their westbound trip after visiting the site. 39. As discussed previously in Paragraph 14, drivers exiting the site with the intention of travelling westbound will be required to make a U-Turn or use an alternative route, either of which are undesirable outcomes." 1. In relation to design (s 2.119(2)(b)(i), SEPP Transport and Infrastructure) Mr Steal at par 13 Ex 6 expresses his view as follows: "The proposed design of the vehicular access to the land, which includes AUL (auxiliary left turn) treatment and a CHR (channelised right turn) treatment, meets the relevant requirements of AS2890.1 and the Austroads Guide to Road Design. The implementation of these designs will mitigate the potential safety impacts associated with entry movements. The design of the vehicular access to the land is therefore unlikely to have an impact on the safety, efficiency or ongoing operation of the classified road." 1. In relation to s 2.122(4)(b)(ii) of SEPP Transport and Infrastructure at par 14(b) Ex 6 Mr Steal expresses his view that: "The proposed left-only exit design is inefficient as a result of the proposed right turn into the site for westbound traffic and the absence of an alternative route for drivers to resume travelling westbound. There will be some impact associated with displaced turns by drivers seeking to resume a westbound trip after entering the site who may: i. Make a U-turn in carriageway of the Sturt Highway; ii. Enter a local road (such as Carramar Road as suggested by TR) to undertake a U-Turn; iii. Use local roads such as Midway Drive and Pitman Avenue to return to the classified road network." 1. Then at par 15(b) of Ex 6 Mr Steal goes on to explain that: "The displaced turns required to resume a westbound direction of travel will incur additional turning movements on the classified and local road networks which are undesirable from a road safety perspective." 1. Mr Steal disagrees with Mr Rogers saying at pars 38 and 39 of Ex 6 as follows: "I do not agree with TR's assertion in Paragraph 36 that no drivers approaching from the east with the intention of continuing their trip to the west will enter the site. Service stations provide a service to drivers travelling along major roads and it can be reasonably expected that a proportion of drivers travelling westbound will enter the site using the proposed CHR treatment with the intention of resuming their westbound trip after visiting the site. As discussed previously in Paragraph 14, drivers exiting the site with the intention of travelling westbound will be required to make a U-Turn or use an alternative route, either of which are undesirable outcomes." 1. Mr Steal concludes at pars 44 and 49 of Ex 6 as follows: "In view of my responses above, the displaced turns resulting from the proposal to provide an attractive entry to the site for traffic approaching from the east but no facilities to enable traffic to depart to the west is likely to have an adverse impact on traffic safety along the Sturt Highway. 1. […] In my view, the displaced turns that will result from the proposal will adversely affect the safety of the Sturt Highway." 1. The First Respondent submits that: "having regard to the evidence, … the design of the vehicle and access to the land insofar as it does not enable drivers travelling westbound to enter the site to continue heading in that direction without travelling eastwards along the classified road and carrying out a U-turn on the classified road or enter other local roads to the east is likely to have an adverse effect on the efficiency and ongoing operation and safety of the classified road" (Transcript 24 October 2023, p 191 at par 11). 1. The Second Respondent refers the Court to the decision of Clay AC in Intrapak Skennars Head Pty Ltd v Ballina Shire Council [2021] NSWLEC 1006 (Intrapak Skennars) at [106]: "106 In my opinion however the position is different in relation to questions of law. Questions of law are obviously not merit assessments in themselves. They are questions which, in the particular case in the Court's class 1 jurisdiction, are necessary to determine in order to make the ultimate administrative decision. It is that type of determination that Mac Services and Challenger refer to as being apt to apply the principle of comity in decision making. That is, where a Judge at first instance (or Commissioner) has made a determination on a question of law, then it should be followed as a matter of comity unless the Commissioner considers it is "plainly wrong" (Challenger) or convinced that the judgment was wrong (Michael Realty)." 1. The Second Respondent relies on Intrapak Skennars to support the First Respondent's submission as to the proper construction of s 2.119(2)(b) of SEPP Transport and Infrastructure and that is that even using the language of Benson ""Even a slight adverse impact is sufficient to deny the court jurisdiction." You're obliged to follow that decision unless you are persuaded that it is clearly wrong… There's no reference to some test of substantially or words of that nature. It simply will not be adversely affected." (Transcript 24 October 2023, p 208 at 44). 2. The Applicant, in oral closing submissions does not cavil with Clay AC's decision of Intrapak Skennars. However, the Applicant submits in Written Reply at par 3.28 that the Second Respondent's submission is: "a semantic one, but also a misreading of the provision. It is not relevant to look for "any" adverse effect, simpliciter, rather it must be an adverse effect on the safety and efficiency of the classified road. This calls for a judgment and must be a matter of fact and degree. The fact that the prohibition on right-turn movements out of the site means that there is an "adverse consequence" in the form of inconvenience for drivers wishing to continue westbound is not the right test. It is not a question of whether it has adverse consequences for them, but whether it has adverse consequences on the safe and efficient ongoing operation of the classified road." 1. The Applicant states in their Written submissions in Reply at par 3.31 and orally that minimal is not adverse, that it can only be adverse if the impact does something to the safety and operation of the classified road. At par 3.30 the Applicant submits: "It is agreed that the issue of right turn prohibition might be relevant to the enquiry under s 2.119(2)(b)(iii) (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of— (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, but only to the extent to which having regard to the nature, volume and frequency, the effect would be adverse. The agree position of the experts is that the nature, volume and frequency of the vehicles displaced and using Carramar Road and the service road to perform a U-turn would be very low, and, in any event, light vehicles have alternatives to the right turn into Carramar Road." Ex 6 at 36, Ex 7 at 9, Transcript D3 131.10-26, 138.24-32." 1. I accept the Applicant's submission that the Court must assume that people will comply with road signs (Applicant Written Reply at 3.31 (f)). However, I am not persuaded that the impact will not be adverse to the safety and efficient operation of the classified road. The evidence of the effort required for the vehicles seeking to continue in the direction of travel after turning right into the Site and the potential safety implications of the 'u-turn manoeuvre' together with the delay or decline in operation of the intersection leads me to conclude that I am not satisfied that the safety, efficiency and ongoing operation of the Sturt Highway will not be adversely affected by the Proposed Development as a result of the design of the vehicular access to the land and the nature, volume or frequency of vehicles using the classified road to gain access to the land (s 2.119(2)(b)(i) and (iii) SEPP Transport and Infrastructure). 2. For these reasons above, I find that practicable and safe vehicular access to the Site can be provided by a road other than the Sturt Highway ((s 2.119(2)(a), SEPP Transport and Infrastructure) and that the Proposed Development will have an adverse impact on the safety, efficiency and ongoing operation of the Sturt Highway (s 2.119(2)(b), SEPP Transport and Infrastructure). I will come back to this in response to the Applicant's proposal to address the impact on the Sturt Highway by the deferred commencement condition below. 3. I conclude that as I have not formed the state of satisfaction required by s 2.119 of the SEPP Transport of Infrastructure the Court does not have the power or jurisdiction to grant consent to the Proposed Development. 4. Notwithstanding reaching this conclusion, I will address the Applicant's proposed deferred commencement condition DC1 which is proposed as a means to satisfy s 2.119 of the SEPP Transport and Infrastructure. Deferred commencement condition sought by the Applicant to satisfy the jurisdictional prerequisites s 2.119 SEPP Transport and Infrastructure 1. The deferred commencement condition was proposed by the experts after their further joint conferencing upon reviewing the additional scraping analysis (Ex 11 at pars 4 and 5), I accept the Second Respondent's submission that the Applicant was doing their best to come up with a practical solution (Transcript 24 October 2023, p 212, par 20). However, the Court is required to determine whether the deferred commencement condition proposed by the Applicant in Ex L as DC1 is a legally valid solution and whether it satisfies a jurisdictional prerequisite, namely the terms of s 2.119(2) of the SEPP Transport and Infrastructure. 2. In the Supplementary Joint Traffic Report (#4) dated 13 September 2023 filed in Court on the same day (Ex 11) prepared by Tim Rogers, Tom Steal and Rhys Hazell, the experts agree that after reviewing the swept paths provided by Northrop as listed at par 3 of the Report, that "access to the site by articulate heavy vehicles over 12.5m long is not practical". On this basis the experts suggest the following deferred commencement condition: ""Unless it can be demonstrated that with the redesign of the driveway to allow access by articulated heavy vehicles in accordance with AS2890.2:2018, the site shall be limited to light vehicles and rigid trucks. This would require a redesign of the driveway to restrict access to light vehicles and rigid trucks (including works on Hendy Road), review of internal arrangements to accommodate 12.5m rigid trucks at the bowsers in front of the control building, that the truck fuelling component not be constructed and the provision of "No Access for trucks longer than 12.5m" signage. Deliveries will be restricted to an appropriate size tanker, either a 17m articulated tanker or a 19m b-double tanker for which longitudinal sections must show appropriate access in accordance with the ground clearance requirements of AS2890.2:2018."" 1. The experts did not reach agreement as to the location of the signage limiting the 12.5m truck access to the Site (Ex 11, pars 6 and 7). 2. I note that the practical solution proposed by the experts in Ex 11 does not actually provide a solution to the identified and agreed problem, which is that access to the Site by articulated heavy vehicles over 12.5m long is not practical, other than if the Applicant fails to satisfy the council of compliance that there will be a service station which does not service large vehicles by prohibiting access to vehicles 12.5m and over. 3. There is argument between the parties as to the ability to impose conditions that go to satisfy a jurisdictional prerequisite. The Applicant relies on s 4.16(1) of the EPA Act which empowers the Court, as the consent authority, to determine a development application by granting consent to the application, either unconditionally or subject to conditions. It is relevant that s 4.16(2) of the EPA Act provides that: (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. 1. The Applicant seeks the following deferred commencement condition (DC1) which is not agreed by the First or Second Respondent and I reproduce DC1, as well as, the respective positions of the parties from the Proposed/Draft Conditions of Consent filed 17 October 2023 (Ex L) as follows: "DC1: The Applicant must submit to Council for its satisfaction either: (1) amended civil plans which demonstrate that the design of the driveway allows left-turn access to the Site from the Sturt Highway (Hendy Road) by the following heavy vehicle types in accordance with AS2890.2:2018: (a) 20 metre articulated vehicles; (b) 26 metre B-Doubles; OR in the event that access cannot be demonstrated in accordance with (1) above, (2) amended architectural, landscape and civil plans which: (a) delete the diesel bowsers and canopy along with the B-Double parking as shown in the Concept Site Plan Drawing No. 16JN1294.2 SK07 at Annexure A to this consent which will restrict access to the Site from the Sturt Highway (Hendy Road) to light vehicles and rigid trucks no longer than 12.5m, and either a 17m articulated petrol tanker or a 19m B-double petrol tanker; (b) include proposed signage prohibiting vehicles longer than 12.5m from turning left into the Site from the Sturt Highway (Hendy Road), other than petrol tankers for deliveries; and (c) demonstrate that the design of the driveway allows left-turn access to the Site from the Sturt Highway (Hendy Road) for either a 17m articulated tanker or a 19m B-double tanker in accordance with AS2890.2:2018. Page 3 of 30 [Applicant Position: The Applicant proposes the above deferred commencement condition, including having regard to the evidence of the traffic experts in their Joint Traffic Report #4 dated 13 September 2023. The proposed deferred commencement condition is able to be lawfully imposed pursuant to s4.16(3) and s4.17(1)(h)(i) of the EP&A Act. The Applicant does not accept the Second Respondent's position that the proposed condition is uncertain or would require a fundamental redesign of the proposal from what has already been assessed, including having regard to the Concept Site Plan referred to in the proposed DC1, Condition 1 below and Annexure A.] [First Respondent Position: The proposed deferred commencement condition is not agreed.] [Second Respondent Position: The proposed deferred commencement condition is not agreed on the basis that it is uncertain and cannot be lawfully imposed, requires a fundamental redesign of the proposal, the impacts of which have not been assessed.]" 1. I reproduce below the Concept Site Plan Drawing No 16JN1294.2 SK07 at Annexure A to Ex L: Fig 4: Concept Site Plan Drawing No 16JN1294.2 SK07 (Ex L) 1. The Second Respondent's Contention 3 in the SOFAC R2 (Ex 2R1) filed 11 August 2023 expressly particularised the design changes required to comply with the Australian Standards in order to access the Site. As the Applicant seeks to rely on a DC1, I reproduce an extract of the particulars of the SOFAC R2 Contention 3 which support the submission that the Applicant put on notice as to design changes which were not attended to prior to the hearing of the Appeal: "b. A recent level survey … has shown that the level from the edge of the existing carriageway to the site boundary rises at the proposed exit is around 1.41m in 8m across the verge/footpath. This equates to a gradient of 1 in 5.7 (ie 17.6%) not allowing for any flattening of the driveway at the point where vehicles enter or leave the Site. c. An existing gravity fed sewer traverses the frontage of the Site, close to the surface level. d. The design indicated on the drawings and details of the Amended Development Application do not identify how the level; difference will be accommodated into the driveway crossing. No sections of the driveway, its gradient and the road/kerb levels have been provided to permit an assessment. The potential impacts associated with the works required to address the change in levels include: i. Vehicle/heavy vehicle scraping at the change of levels. ii. Speed of entry – vehicles entering from the right turn facility may face a steep ingress to the site which will result in vehicle entering more slowly rather than a flat entry. The increased time to navigate the steep gradient and driveway has not been assessed and may result in additional road safety concerns for large vehicles. … c. At a minimum, sections which consider the levels from the centre line of the road, kerb, extent of the road reserve to the front boundary of the Site and internal to the site should be included for assessment. d. It has not been demonstrated that the driveway gradient does not comply with the Australian Standards and the impacts of the proposed design cannot be adequately assessed based on the information provided." 1. The Second Respondent adds in the Proposed/Draft Conditions (Ex L) that: "The concept plan is deficient and does not provide sufficient detail including reference to the access arrangement for large B-Double trucks, including petrol tankers entering the site for refuelling purposes." 1. The Second Respondent submits that there are numerous reasons why the Court would not be satisfied that DC1 would be valid and permissible and articulates the following three reasons at pars 52 - 59: "52. First, s 2.119(2)(b) imposes a jurisdictional threshold in respect of which the Court must be satisfied at the time of granting consent. For reasons previously explained, the Court cannot defer satisfaction of a jurisdictional matter by way of condition, and especially not where the ultimate form of the development is unknown. This was critical to Commissioner Dickson's refusal of the Applicant's former development application for a Highway Service Centre at the Site31. There, Dickson C similarly found that there was no jurisdiction to approve that development application, in that the state of satisfaction required by s2.119(2)(b)(i) could not be deferred. Whilst deferred commencement conditions are occasionally imposed by consent authorities, or the Court on appeal, they cannot validly be deployed to address matters of a jurisdictional nature which require satisfaction prior to the granting of consent. 53. Secondly, the condition is inherently uncertain, and offends the Mison principle. There may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of leaving open the possibility of a significantly different development. The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application: Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [25]-[28]. 54. In this case, the condition leaves open the possibility of a significantly different development. A service station that allows access to large trucks is an entirely different proposition to a service station which does not. The deletion of the diesel bowsers and canopy along with the B-Double parking is, in and of itself, a sufficient difference to render the condition invalid. The fact that a "concept Site Plan" has been provided at Annexure A to the draft conditions does not alter the fact that the development contemplated by the condition would be significantly different from that applied for. Nor is it correct to contend, as the Applicant does, that any such proposal has been properly assessed. 55. Thirdly, it is well established in Part 4 jurisprudence that a decision-maker may not validly defer consideration of fundamental matters required to be considered at the time of granting the consent: see, for example Cameron v Nambucca Shire Council (1997) 95 LGERA 268 at 275-276; Farah v Warringah Council [2006] NSWLEC 191 at [61], [66]; Weal v Bathurst City Council (2000) 111 LGERA 181 at [14], [95]-[96]. The proposed condition defers consideration of a critical matter (access to the Site and the ability for petrol tankers to fuel the Site in order for the Site to operate as a service station) to post determination and leaves unresolved an essential part of the development consent: Huntington & MacGillivray v Hurstville City Council (No 2) (2005) 139 LGERA 84; [2005] NSWLEC 155 at [29]. 56. The Court must be aware of the development it is approving. The deferred commencement condition proffered significantly alters the development from what is sought in the application in the event the first part of the condition cannot be satisfied. 57. In oral submissions on 13 September 2023, the Applicant contended that confirmation that gradients comply with the requisite standard is "invariably" required to be the subject of conditions, and further, that the experts were satisfied that the issue was capable of being resolved, and that it was just a "matter of detail" to go in plans approved by a construction certificate. 58. Contrary to the Applicant's submissions, the Court would have no confidence in the Applicant's ability to satisfy the condition in circumstances where: (a) access to the Site is constrained by the existence of the gravity-fed sewer. The proposed levels in that part of the Site cannot be lowered any further than they have already; (b) the experts did not suggest, expressly or implicitly, that it was likely that a solution would be found to this conundrum. To the contrary, they were silent on this topic; (c) the Applicant has been aware of the contention raised by the Second Respondent since July 2023, and yet has failed to develop a satisfactory solution to the access arrangement in that time, despite several attempts to do so; (d) the various plans tendered by the Applicant during the course of the hearing alone were unable to demonstrate that any access could accommodate the gravity fed sewer traversing the driveway and any cover material of that sewer32; and (e) There is no evidence before the Court, in light of the agreement reached by the traffic experts in Exhibit 11, that even petrol tankers to refuel the service station are able to access the Site. In the event they cannot, the utility of a service station is pointless. 59. In the circumstances, the Court cannot be satisfied that adequate access arrangements to the Site for the development proposed is available or can be made available." The Court has the power to impose a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition, in accordance with s 4.16(3) and s 4.17(1)(h)(i) of the EPA Act which provide as follows: 4.16 Determination (cf previous s 80) … (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. … 4.17 Imposition of conditions (cf previous s 80A) (1) Conditions—generally A condition of development consent may be imposed if— … (h) it is authorised to be imposed under the following— (i) section 4.16(3) or (5)," 1. The First Respondent submits that: "… it hasn't been demonstrated in this case that the development as designed and proposed can be carried out in an acceptable way, and the applicant's belated attempt to try and rectify that matter by suggesting a deferred commencement condition is not a lawful method of resolving that fundamental problem." (Transcript 24 October 2023 p 183 at par 10). 1. The Second Respondent refers to the language in the chapeau to s 2.119(2) of the SEPP Transport and Infrastructure and submits that the reference to 'development': "must be a reference to the development for which consent is sought … therefore, conditions proffered by an applicant that would be acceptable to it if the Court granted consent cannot, as a matter of law, affect the Court's satisfaction of the jurisdictional question raised by s 2.119 which requires the state of satisfaction to be reached prior to the granting of consent (as made clear by the text in s 2.119(2))." (R2 Submissions, par 14). 1. The Second Respondent submits that "the Court must determine the jurisdictional questions raised by s 2.119 without any regard to those conditions as any assessment undertaken or conclusion reached embedded in the condition would necessarily occur after the grant of consent." (R2 Submissions, par 18) and relies on the proposition that the consent authority must be satisfied on the basis of the documents which comprise the application, and not by imposition of conditions of consent: Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1222 (Zhiva) at [39]-[41]: "39 SEPP Seniors cl 55 requires that a consent authority must not grant consent to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system. 40 Satisfaction of cl 55 of SEPP Seniors is a jurisdictional pre-condition to the grant of consent, and it is the satisfaction of that clause, and its provisions, that enlivens the Court's power to grant consent in this appeal. 41 The provisions of cl 55 cannot be satisfied by the inclusion of one or more conditions upon the grant of consent, as the Court's power to grant consent is only enlivened following their satisfaction, and prior to the grant of consent." (Emphasis added). 1. The Second Respondent submits that "the proposal to simply impose a deferred commencement condition seeks to defer the assessment of matters which are fundamental to the determination of the development application and jurisdictional preconditions which must be satisfied in order for such a consent to be granted." (R2 Submissions, par 16). 2. This may appear to be a relatively simple proposition put by the Second Respondent, however, the Applicant submits that neither the above decision of Zhiva nor the decision of Lateral Estate Pty Ltd v The Council of the City of Sydney [2017] NSWLEC 6 at [81] support the proposition by the Second Respondent and submits that the proposed deferred commencement is a precondition of: "satisfaction by formulation of an opinion, not a factual state of affairs in existence before the consent is granted. An opinion on whether the development will affect the safety, efficiency and ongoing operation of a classified road is capable of being formed by reference to matters other than solely the content of plans." (Applicants Reply Submissions, par 3.10). 1. In closing submissions the Applicant orally submitted that the Court can consider conditions because the process is a "polycentric problem" (Applicant's Reply Submissions, par 3.13). 2. In closing submissions, the Second Respondent took the Court to a number of authorities to support the proposition that the reference to development in the chapeau to s 2.119(2) of the SEPP Transport and Infrastructure is a reference to the documents that make up the development application and, that conditions proffered by an applicant cannot, as a matter of law, affect the Court's satisfaction of the jurisdictional question which requires the state of satisfaction to be reached prior to the granting of consent (R2 Submissions par 14). 3. The first authority was Platford v van Veenendaal and Shoalhaven City Council (2018) 229 LGERA 101; [2018] NSWLEC 27 (Platford) regarding the imposition of Condition 43 concerning the construction of a seawall and at [13] provides as follows: "… On its proper construction, the development application made by Mr van Veenendaal did not seek consent for development for the purposes of a sea wall. The development for which consent was sought was for the demolition of the existing dwelling and the erection and use of the new dwelling, including the building and structures of the boathouse arm. The development application did not seek consent for development (in any of the ways defined) for the purposes of a sea wall. It is true that part of the development for which consent was sought (in the boathouse arm) depended on the continued existence and proper functioning of the sea wall. The Coastal Hazards Risk Assessment Report (6 June 2016) submitted as part of the development application noted that "the 2013 sewer protection works would need to be maintained and that this revetment would provide a level of protection to the boatshed". However, the development application did not seek consent to maintain the revetment. …" 1. See also Platford at [16]-[17]: "16 … the imposition of condition 43 in the grant of consent to the development application did not extend the approved development to include development for the purposes of a sea wall. The approved development remained that sought in the development application of the demolition of the existing dwelling and the erection and use of the new dwelling. The power to impose condition 43 lay in s 80A(1)(f) of the EPA Act, which empowers a consent authority to impose a condition of development consent if: "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 79C(1) applicable to the development the subject of the consent". 17 The maintenance of the existing sea wall could include the carrying out of works on the land. The Council had power under s 80A(1)(f) to require the carrying out of such maintenance works. The imposition of a condition requiring the carrying out of works does not involve the grant of consent to the carrying out of the works, notwithstanding that the carrying out of works is development as defined. This is because the grant of development consent entitles the holder of the consent to carry out the development approved by the consent but does not require the carrying out of that development. A condition requiring the carrying out of works is different; the works must be carried out if the holder of the consent elects to carry out the development approved by the consent. The development must be carried out in accordance with the consent (see s 76A(1)(b)) and this includes any conditions of the consent. The development for which consent has been granted, however, remains that which was sought in the development application. It does not extend to the carrying out of any works required by a condition of the consent imposed under s 80A(1)(f) of the EPA Act." 1. The Second Respondent submits that: "… when one comes back to considering s 2.119 in the context of the observations made by His Honour in that case [Platford], the change of development by reference or by imposition of conditions does not involve the grant of consent to that altered form of development, and that is absolutely fundamental, we say, to the proper construction to the word 'development' in the provision." (Transcript 24 October 2023, p 204 at par 27). 1. The second authority that the Second Respondent refers the Court to was Zhiva (Chilcott C) and submits that "what the Commissioner was saying in that case is that, before you embark upon a consideration of what conditions to impose upon the grant of consent, you first need to be satisfied of your jurisdiction." (Transcript 24 October 2023, p 205 at par 33). 2. The third authority referred to by the Second Respondent is the decision of Craig J in Olsson v Goulburn Mulwaree Council & the Minister Administering The Crown Land Act 1989, Olsson v The Minister Administering The Crown Land Act 1989 (2010) 176 LGERA 71; [2010] NSWLEC 169 which provides at [26] as follows: "26 The submission on behalf of Mr and Mrs Olsson that the legal prerequisite for consent, namely the existence of a dwelling-house on the land, can be addressed by imposition of a condition seems to me to involve an impermissible approach to the proper interpretation and application of the statutory instrument. Permissibility of all aspects of development in contemplation must be found at the time at which consent is granted. What is fundamentally a prohibited development cannot be transformed into permissible development by imposition of a condition anticipatory of what must occur to overcome the prohibition (cf City of Enfield v De Kuijer (1980) 43 LGRA 39 per Wells J at 42)." 1. The Second Respondent submits that the last sentence above is quite critical because if I am not satisfied: "… on the basis of the amended development application of any of the matters in s 2.119(2), there is a prohibition upon the grant of consent, that that is a prohibition that cannot be overcome by imposition of a condition anticipatory of what must occur to overcome the prohibition, and that would include in this case, proposed condition 8 of the consent, and also the deferred commencement condition." (Transcript 24 October 2023, p 206 at par 10). 1. The Second Respondent submits that the deferred commencement condition DC1 is suggesting a significant change or alteration to the development in respect to which the application is made and will offend the principle set out in the decision of Priestley J in the Court of Appeal in Mison and quotes par 737 as follows: "In my opinion if a condition imposed upon a purported consent to a particular development application has the effet of significantly altering the development in respect of which the application ismade, then the purposrted consent is not a consent to the application. Further, however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be disngificanmtly different from the devleoment for which the application was made, then , again, it seems to me that the council has not granted consent to the application made. "(Transcript 24 October 2024 p 199, at par 35) 1. The authorities above support the proposition that conditions of consent may satisfy deficiencies regarding the merit considerations pursuant to s 4.15 of the EPA Act at the time of granting consent however, one cannot conflate addressing a merit assessment or evaluation (s 4.15. 4.16 and 4.17 of the EPA Act) with the satisfaction of jurisdictional prerequisite. 2. The Applicant submits in reply (Transcript 24 October 2023 pp 240 – 241), at pars 31 - 34: "So why should the driveway be any different just because it's got a sewer underneath it that we need to cater for in the final design. This contention has just simply been overcooked and overstated in my submission, Commissioner. When we go back to the second respondent's contentions, the second respondent has never put that this is a reason for refusal, actually what it says is, access to the site is non-compliant and requires design changes. Yes, okay, we need to get final design of the sewer, we need to know its depth below the ground, we need to know the thickness of the pipe, we need to survey that in detail, and we need to provide a final design for the driveway which overcomes that problem. If need be, we can move the sewer if we have to. One way or another, the applicant is capable of doing either of those things, moving the sewer or designing a driveway which will achieve the appropriate standard over the sewer, but it's not actually a matter that goes to a question of whether or not access can be provided to the site; it doesn't actually make much difference. It doesn't make any difference, in an environmental sense, as to whether or not - we're dealing with fractions of centimetres of pavement, of the level of the pavement above a sewer; that's the argument. It's got no question of moment to environmental impacts, because we know that the whole of the site's going to be virtually covered in concrete except where it's shown to be landscaped, and that doesn't change one way or the other. So, what is the environmental impact that we're assessing here. If we can be sure, if we can impose a condition requiring that the Australian Standard be complied with for the design over the sewer, isn't that the answer, and if it's good enough for the other conditions, it's good enough for the car parking condition in 34B and 31B for drainage, why is it not good enough for the driveway where it overcomes the sewer; they're exactly the same. And so, it would be expected that that would be a matter of final design. And I might add, this is an issue that was raised by a second respondent who was joined three weeks before the hearing of this matter. The criticism being heaped upon the applicant for not having detailed designs and scraping plans with respect to a sewer, which has to be surveyed in detail to understand its depth and will be done in the course of preparing detailed design drawings, is not the be-all and end-all and the determinant of this development application. It doesn't determine whether this use is a suitable use for this site. It doesn't determine any likely environmental impacts arising out of the development, and all of the submissions that follow from this about the potential for queuing of vehicles because a tanker might scrape the ground is just speculative. The whole point about the deferred commencement condition is that that won't happen because the driveway will be designed to prevent it from happening. So how could that ever go. How could that ever be related to the question under 2.119 as to the safety and efficiency of the classified road, because you would be required to assume, Commissioner, in granting consent subject to the deferred commencement condition; one, that is that the applicant will demonstrate that the gradient will achieve the Australian Standard. So I address at 3.48 a number of matters in relation to what you would say, Commissioner, is judicial notice of the fact, that conditions are regularly imposed in this Court which require demonstration of compliance with the requisite Australian Standard, and I've set out a number of facets of the evidence, and in response to para 58 of the written submissions of Mr Lazarus." 1. I find that the Applicant is conflating the exercise of a merit assessment of a development application with the satisfaction of a jurisdictional prerequisite before a consent authority has the power to grant a consent. 2. Conditions can be imposed in accordance with s 4.17 of the EPA Act. Section 4.15 of the EPA Act relates to evaluation of a development application and draws a distinction between merit assessment or evaluative consideration as opposed to the satisfaction of jurisdictional prerequisite. I have also considered the Court of Appeal decision of McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 which considers the question from the reverse perspective, namely, the role of a Commissioner in a conciliation conference and whether the Court was required to consider merits of decision pursuant to s 34AA LEC Act and at pars [65] and [58] provides as follows: "65 … the preferred construction of the words in parenthesis in s 34(3) is that they impose on the Commissioner an obligation to be satisfied that there are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement. That is, the language of s 34(3) gives effect to the general law principle and does not impose some broader obligation on the Commissioner." "58 … general law principle that parties cannot confer jurisdiction on a statutory authority by consent. Thus, in Thomson Australian Holdings Pty Ltd v Trade Practices Commission [20] the High Court stated: "The parties by consent cannot confer power upon the Court to make orders which the Court lacks power to make. As we have seen, the relevant jurisdiction of the Court in relation to the granting of an injunction is limited to the hearing and determination of actions in which application is made for the making of orders under s 80(1) [of the Trade Practices Act 1974 (Cth)] restraining a person from engaging in conduct of a specified kind. The orders made (which were the orders sought) restrain the defendants from engaging in conduct that does not necessarily constitute a contravention of Pt IV … The orders therefore lack the essential feature which distinguishes conduct amounting to a contravention of Pt IV from conduct which does not amount to such a contravention."" 1. The Applicant submits that the deferred commencement condition is not inherently uncertain and does not offend the Mison principle and that the condition is sufficiently prescriptive to be certain. (Applicant's Written Submissions in Reply at par 3.41). 2. In relation to whether a different development may result, the Applicant refers the Court to the decision in Kindimindi Investments Pty Ltd v Land Cove Council & Anor (2006) 143 LGERA 277; [2006] NSWCA 23 (Kindimindi) which observed that the EPA Act has been amended since Mison. Kindimindi at pars [24] – [29] provides as follows: "24 In accordance with principles explained by this Court in Mison v Randwick Municipal Council (1991) 23 NSWLR 734, there may be no lawful consent to a development application where the consent falls within one of two categories of overlapping circumstances. The first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B (Priestley JA). The second category is where a council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application. 25 These two categories may overlap in circumstances where consent is granted subject to a condition which allows for significant variation of the development proposed. 26 In Mison, the condition in question required that the overall height of the dwelling house to be constructed be reduced "to the satisfaction of Council's Chief Town Planner". Because the approved height remained to be determined, and might, the Court held, fall at any point within an undefined range, the consent left open the possibility that that which was consented to would be significantly different from the development the subject of the application. 27 Alternatively, it was said that there was a substantial degree of uncertainty in relation to a condition which was "an important aspect of" the development: p 737B (Priestley JA). Meagher JA adopted a similar approach at 741. Clarke JA described the question of height as an aspect of the development "which was beyond question of critical importance". However, his Honour preferred to rest his decision on the lack of finality, rather than the possibility of there being a consent to a significantly different development: p 740F. Clarke JA also considered that the failure to specify a criterion for determining height was a fatal omission. 28 Although different language is used in relation to the separate categories of invalidity, it would seem that the test of uncertainty or lack of finality, being determined by reference to an important aspect of the development, requires that what is left uncertain must be the possibility that the development as approved may be significantly different from the development the subject of the application. Thus, the result should not be different depending upon which approach is adopted: a consent will only fail for uncertainty where it leaves open the possibility of a significantly different development. On other hand, a consent may fail, within the first category, where a condition of great precision and certainty of operation results in a significantly different development. Whichever category is preferred in the case of a consent which lacks certainty or finality, it is helpful to bear in mind the relationship between the two tests. 29 Since Mison, the EP&A Act has been amended to include new s 80A and in particular subs (4), which provides as follows: "(4) Conditions expressed in terms of outcomes or objectives A consent may 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."" 1. The Applicant submits in Written Reply "even if the Court did have concerns that the DC(1) and (2) read together could leave the ultimate form of the development uncertain, that can be resolved by imposing one of the two conditions rather than both." (Par 3.43) and at pars 3.46 and 3.47: "In this case DC(1) specifies the standard to be met to achieve access for 26, B-Double trucks, it does not require an assessment of impacts to be made. DC(1) is clear, civil plans are required to demonstrate compliance with AS2890.2:2018. DC(2) also identifies with certainty the outcome of a partial consent by depicting that on a plan." 1. The Applicant has the persuasive burden before the Court. 2. The First Respondent notes that the impact of works that are likely to be required on the Sturt Highway as a direct result of the Proposed Development, as evidenced in the letter from TfNSW dated 7 September 2023, and is also likely to have other changes required to be made to what is proposed, including the provision of 2m wide sealed road shoulders provided on either side (at par 5 of Attachment 1 of the 7 September 2023 letter from TfNSW (Ex 9)). The TfNSW 7 September 2023 letter provides recommended conditions requiring amendment of plans and designs "to comply with TfNSW's requirements in terms of safety, efficiency and ongoing operation of the classified road". I accept that the impacts of the design changes have not been considered or assessed and note that the Chief Judge's decision in Palm Lake as to the need to be able to evaluate and assess matters of impact that are directly related to the development. (Transcript 24 October 2023, p 183 par 30). 3. Palm Lake discusses "The likely impacts ground" at [5] as follows: "5 … required by s 4.15(1)(b) of the EPA Act to take into consideration "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality." 6 The phrase "the likely impacts of that development" embraces not only site specific impacts, being impacts of the proposed development on the development site, but also off-site impacts. Off-site impacts can be caused not only by the proposed development impacting adjoining or other land in an area of influence but also by some other development provided that the impacts of that other development have "a real and sufficient link" with the proposed development, such as where the impacts are caused by "some further undertaking that is 'inextricably involved' with the proposed development": Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at 101 and Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 at 534-535." 1. Then at [24] of Palm Lake: "24 … The task for the Commissioner was to determine whether the likely impacts of the road, civil and infrastructure works in the North Creek Road reserve, that would be required by the deferred commencement condition to be approved prior to the consent for the proposed development operating, were likely impacts of the proposed development. …" 1. At [30] of Palm Lake: "30 …The Commissioner was required to make an evaluative judgment as to whether the likely impacts of the road, civil and infrastructure works required to be undertaken in the North Creek Road reserve were likely impacts of the proposed development, and if so, to take those impacts into consideration in determining the development application for the proposed development. …" 1. At [38] of Palm Lake: "38 In the present case, the Commissioner did not have an understanding of the likely impacts of the road, civil and infrastructure works in the North Creek Road reserve or undertake an evaluation of the relevant matter of the likely impacts of the proposed development with that understanding. The Commissioner instead deferred for later consideration "a complete environmental assessment of all works proposed in the North Creek Road" by granting consent subject to a deferred commencement condition under s 4.16(3) of the EPA Act. The Commissioner thereby failed to take into consideration a mandatory relevant matter." 1. I find that the Proposed Development DC1 will result in works which will have impacts which are impacts of the Proposed Development and I find that I am unable to consider or assess them as the design changes are as yet not certain. It may also be that the principle in Mison is offended by DC1 however, I do not make a finding in that regard as it is unnecessary for the determination of this appeal. 2. I accept that the Court has power to impose a deferred commencement condition pursuant to ss 4.16 and 4.17 of the EPA Act, however, that power only arises if the Court has the power to grant a consent, which follows the satisfaction of jurisdictional prerequisites. Put another way, a deferred commencement condition is not able to satisfy a jurisdictional prerequisite. Accordingly, my conclusions to the questions I posed at [23] are as follows: 1. A jurisdictional prerequisite is unable to be satisfied by reference to a condition of consent because without the power to grant a consent there is no consent for which conditions can be imposed. 2. Equally, the power to impose a deferred commencement condition does not extend to the satisfaction of a jurisdictional prerequisite. 1. Accordingly, I conclude that development consent for the Proposed Development cannot be granted for want of power. I do not propose to address the balance of the contentions other than to make the following relevant brief observation. 2. During the hearing, an aspect of vehicular manoeuvrability on the Site addressed by the experts is the ability for a D-Double (26m long heavy vehicle) and a B-Triple road train to traverse the gradient of the driveway which goes over the existing sewer line in response to the scraping analysis undertaken by the Applicant depicted in C07.10DA Rev B – Vehicle profile for a B-Double (Ex G) which indicated a Minimum Body Ground Clearance of 0.540m whereas the First and Second Respondents submit that the correct clearance should be measured at 0.150m. The Applicant was directed to provide a further scraping analysis by 8 am 13 September 2023 being the third day of hearing. The traffic experts engaged in further joint conferencing from 9 am 13 September 2023 and produced Ex 11 reporting on the scraping analysis outcome. The final supplementary Joint Expert Traffic Report (#4) (Ex 11) provides the Court with evidence of a scraping concern for all vehicles greater than 12m. The evidence relied on by the Applicant before the Court in the form of Ex G and Plan C07.10DA has been superseded by the evidence of the experts in Ex 11. The proposed design of the Proposed Development is for a reduction in cut and fill on the Site and to pier over the existing sewer line. It is agreed that the clearance section does not show that this can be achieved for B-Doubles (Ex 11). 3. I find that the evidence does not support vehicular manoeuvring of any vehicle greater than 12.5m in length traversing the gradient of the driveway which goes over the existing sewer line, or to use the words of the experts, access to the Site by articulated heavy vehicles over 12.5m is "not practical" (Ex 11). Orders: 1. The Court orders: 1. The appeal is dismissed. 2. Development application No DA2021/008 for construction and operation of a service station trading as "On the Run" or OTR, and associated works is determined by refusal to grant consent to the application. 3. All exhibits are retained. ………………………. E Espinosa Commissioner of the Court ********** 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: 26 March 2024