Land and Environment Court New South Wales Medium Neutral Citation: Reinforced Concrete Pipes Australia (NSW) Pty Ltd v Maitland City Council [2024] NSWLEC 1338 Hearing dates: Conciliation conference on 12 June 2024 Date of orders: 19 June 2024 Decision date: 19 June 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development Consent No DA2006/1324 is modified in the terms in Annexure B. (3) Development Consent No DA2006/1324 as modified by the Court is Annexure C. Catchwords: APPEAL – modification application – alterations to consent for industrial facility for production of concrete pipes – conciliation conference – agreement reached – orders made Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021, s 113 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 Category: Principal judgment Parties: Reinforced Concrete Pipes Australia (NSW) Pty Ltd (Applicant) Maitland City Council (Respondent) Representation: Counsel: T Howard SC/T Poisel (Applicant) J Farrell (Respondent) Solicitors: Hall and Wilcox (Applicant) Sparke Helmore Lawyers (Respondent) File Number(s): 2023/297875 Publication restriction: Nil Judgment 1. COMMISSIONER: In an industrial area in Thornton, the applicant operates an industrial facility at 8 Kestrel Avenue for the manufacture of concrete pipes, following the grant of a development consent in August 2006. The applicant now seeks to modify that consent to reflect changes to the location of plants and infrastructure on the site and to allow the construction of an acoustic barrier, hardstand along the trafficable areas, additional carparking and an updated stormwater management system. It lodged a modification application with Maitland City Council, the respondent, on 30 May 2023. Following the expiry of the period after which a modification application is deemed to be refused, the applicant lodged an appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55(2) of the EPA Act. The final orders in this appeal, outlined in [12] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. Following an adjournment of the hearing of the appeal, the Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 12 June 2024. I presided over the conciliation conference. 3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The signed agreement was provided the same date, following the Council's approval of an application for an amendment to the modification application pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021. The amendments update the location of the pipe machine within the existing shed, update the location and details of the hydraulics room external to the existing shed, incorporate a proposed upgrade to the existing stormwater management system, and change the design of the proposed acoustic barrier including the provision of additional landscaping to assist in screening the wall and softening its appearance. 4. The signed agreement is supported by an Agreed Jurisdictional Statement. Based on the Statement, the addendum to the Statement of Environmental Effects dated June 2024 and the documents referred to in Annexure A, I have considered such of the matters referred to in s 4.15(1) of the EPA Act that are of relevance to the development the subject of the application, consistent with s 4.55(3) of the EPA Act. 5. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I form this state of satisfaction on the basis that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, for the following reasons: * Quantitatively, there is no change to the size of the building on the site or to the production of concrete pipes, although there are changes to the location of plant and equipment. The proposed acoustic wall is to reduce acoustic impacts, the hardstand is to reduce air quality impacts, and the updated stormwater management system will better manage stormwater on the site. * Qualitatively, the modification results in a built form that is consistent with the approved plans in the development consent and remains for the same purpose. 1. The modification application relates to the site identified as Lot 1201 in DP 1043669 (8 Kestrel Avenue), and will also involve vehicular access via the adjoining site identified as Lot 802 in DP 1032401 and Lot 2 in DP 1268876 (21 Firebrick Drive). The registered proprietors of each of these sites have each consented to the lodgement of the modification application. 2. To the extent that the modification application relates to works that have already been carried out (such as the relocation of plant and equipment), a modification of a development consent under s 4.55 of the EPA Act may be granted even where there is a breach of the consent (see Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177 at [35]; Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [113]). 3. The modification application was notified by Council between 19 June 2023 and 17 July 2023 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, three submissions were received. I have considered the issues raised in the written submissions, some of which may be addressed through the proposed acoustic barrier and the sealing of the accessway. 4. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). 5. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any assessment of the merits of the modification application against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act. 6. The Court notes that: 1. Pursuant to s 113(4) of the Environmental Planning and Assessment Regulation 2021, the Council agrees to the amendment of Modification Application No DA2006/1324/3 to rely upon the amended plans and documents which are referred to in Annexure A and filed online on 7 June 2024 and in Court on 12 June 2024. 2. The Applicant has agreed to pay the Council's costs thrown away (as a result of the Applicant's amended application referred to in (1) above and as a result of the Applicant's amended application the subject of leave granted by the Court on 4 March 2024) in the amount of $40,000 (excluding GST). 1. The Court orders that: 1. The appeal is upheld. 2. Development Consent No DA2006/1324 is modified in the terms in Annexure B. 3. Development Consent No DA2006/1324 as modified by the Court is Annexure C. J Gray Commissioner of the Court 297875.23 Annexure A 297875.23 Annexure B 297875.23 Annexure C ********** 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: 19 June 2024