Land and Environment Court New South Wales Medium Neutral Citation: Serafin v Griffith City Council [2024] NSWLEC 1758 Hearing dates: Conciliation conference on 15 November 2024 Date of orders: 26 November 2024 Decision date: 26 November 2024 Jurisdiction: Class 1 Before: Gray C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted to Development Application DA39/2024.1 as amended, for alterations to approved driveway access to light industrial and commercial premises on land known as 759 Thorne Road, Griffith NSW 2680, being Lot 1 in DP 1247659 subject to the conditions of consent in Annexure A. (3) As a consequence of the development consent to Development Application DA39/2024.1 as amended, DA189/2018(3) is subject to the consolidated, modified conditions of consent set out in Appendix 1. (4) As a consequence of the development consent to Development Application DA39/2024.1 as amended, DA1/2022(2) is subject to the consolidated, modified conditions of consent set out in Appendix 2. (5) Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay Respondent's costs thrown away by the amendment of the application for development consent, as agreed or assessed. Catchwords: APPEAL – development application – change vehicular access driveway – conciliation conference - agreement reached – orders made Legislation Cited: Conveyancing Act 1919, s 88E Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 4.17, 8.7 Land and Environment Court Act 1979, s 34 Environmental Planning and Assessment Regulation 2021 ss 37, 38, 67 Griffith Local Environmental Plan 2014, cll 5.21, 7.1, 7.10 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.119 Cases Cited: McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 Category: Principal judgment Parties: Darryl Serafin (Applicant) Griffith City Council (Respondent) Representation: Counsel: A Hemmings (Applicant) T Ward (Solicitor) (Respondent) Solicitors: Hunt & Hunt (Applicant) Pikes & Verekers (Respondent) File Number(s): 2024/349405 Publication restriction: Nil Judgment 1. COMMISSIONER: At 759 Thorne Road Griffith, the applicant operates commercial premises for the retail sale of large commercial machinery, as well as the assembly of machinery, warehouse storage of machinery parts, and an external wash bay. Presently, access to the site by trucks is through a two-way driveway from Thorne Road. On 25 March 2024, Mr Serafin lodged a development application to change the access from a two-way driveway, to two separate one-way driveways to separate the movements in and out of the site. Following the expiry of the period after which a development application is deemed to be refused, Mr Serafin lodged an appeal pursuant to s 8.7 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 development application pursuant to ss 4.15 and 4.16 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, 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 15 November 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 final iteration of the agreement was filed on 15 November 2024. 4. The agreement follows the Council's approval of an application for an amendment to a development application pursuant to ss 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). The amended development application seeks the entry driveway to be located 123m from the centre line of Kidman Way and the exit driveway located approximately 175m offset from the centre line of Kidman Way close to the eastern boundary of the site. An Auxiliary Left Turn Lane is proposed for the entry driveway, which is 50m long including a 15m taper. A 1.2m wide median strip is proposed to run from the pedestrian refuge located at the Kidman Way and Thorne Road roundabout, and will extend at least 4m beyond the eastern end of the entry driveway. The amended development application also includes additional signage and an updated Traffic Management Plan and Driver Code of Conduct. 5. The decision agreed upon is for the grant of development consent subject to conditions of consent pursuant to s 4.16(1) of the EPA Act, including conditions that amend the conditions of consent in DA189/2018(3) and DA1/2022(2). The signed agreement is supported by an Agreed Jurisdictional Statement. I have considered the contents of the Statement, together with the documents referred to therein, the Class 1 Application and its attachments, and the documents that are referred to in condition 1, Attachment B of Annexure A. Based on those documents, I have considered the matters required to be considered pursuant to s 4.15(1) of the EPA Act. 6. As the presiding Commissioner, I am satisfied that the decision to grant development consent to the amended application subject to conditions of consent is a decision that the Court could have made in the proper exercise of its functions, this being the test applied by s 34(3) of the LEC Act. This test is concerned with there being no jurisdictional constraints that preclude the making of orders in accordance with the decision that the parties' have agreed upon (see McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [4], [51]). I formed this state of satisfaction as each of the jurisdictional preconditions identified by the parties is met, for the following reasons: * The development application was accompanied by the consent of the landowners. * The site is zoned E3 Productivity Support under the Griffith Local Environmental Plan 2014 (GLEP), and the works are for the purpose of the vehicle repair station and specialised retail premises that are permissible on the site and already the subject of a development consent. * The site is located in the flood planning area, and as such, cl 5.21 of the GLEP applies. However, based on the Statement of Environmental Effects dated March 2024, and as the development is confined to changing the vehicular access driveways to the site, I am satisfied of the matters in cl 5.21(2) and I have considered the matters in cl 5.21(3). * Minor earthworks are required, such that cl 7.1 of the GLEP applies. Based on the Statement of Environmental Effects dated March 2024, I have considered the matters in cl 7.1(3) of the GLEP. * I am satisfied that the services essential for the proposed development are available, as required by cl 7.10 of the GLEP. The site is already serviced by water, electricity, and sewage disposal, and there is already vehicular access to the site. * The site has frontage to Kidman Way, portions of which are a classified road, although it is unclear whether it is a classified road in the portion that fronts the site. If s 2.119 of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP T&I) applies, I would be satisfied that, consistent with s 2.119(2), access is achieved by a road other than the classified road as access is from Thorne Road, and that, based on the joint report of the traffic engineers dated 29 October 2024, the proposal will not adversely compromise the ongoing operation of Kidman Way or the intersection of Kidman Way and Thorne Road. * Consideration has been given as to whether the subject site is contaminated as required by s 4.6 of the State Environmental Planning Policy (Resilience and Hazards) 2021. Based on the Agreed Statement and the Statement of Environmental Effects dated March 2024, the site contamination issues were dealt with through the two consents that currently apply to the site (DA1/2022(2) and DA189/2018(3)), and there is no expected change as a result of the proposed development. * The agreed conditions of consent modify the conditions of two development consents that apply to the site, which is within the ambit of the conditions permitted to be imposed on a consent, pursuant to s 4.17(1)(b) and 4.17(5) of the EPA Act. Based on the facts outlined in the Agreed Statement, the applicant has complied with the requirements of s 67(2) of the EPA Regulation. Written notice to the respondent was provided in a Statement of Environmental Effects dated 15 October 2024, and the consent of the owner of the site to the modification of DA1/2022(2) and DA189/2018(3) was included in the development application. * The development application was notified between 11 October 2024 and 25 October 2024, and no submissions were received. 1. The site is burdened by a restriction on title, under DP 1247659, which includes the following terms: "No accessway off Thorne Road shall be constructed within 150 metres of the intersection of the centrelines of The Kidman Way and Thorne Road." 1. The existence of the restriction on title is not a barrier to the grant of development consent, as it concerns private property rights between the landowner and the respondent, who has the power to release, vary or modify the restriction. The respondent agrees to release this restriction on title. I have noted its agreement to lodge the appropriate documentation for the release or extinguishment of the restriction on the use of land pursuant to s 88E(7) of the Conveyancing Act 1919 within 7 days of the judgment being delivered. 2. Having reached the state of satisfaction that the decision is one that the Court could have made 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)). 3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any evaluative judgment on the matters that were originally in dispute between the parties, or any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 4. The Court notes: 1. The Respondent has agreed, under s 38 of the Environmental Planning and Assessment Regulation 2021 (NSW), to the Applicant amending the development application to rely upon the following amended plans: DATE DOCUMENT Proposed Access Arrangements Drawing No. 2024 -0016-00G Issue G 13 November 2024 Plan of Management incorporating the Traffic Management Plan and Driver Code of Conduct, revision G 14 November 2024 1. The Respondent's agreement to release the Restriction on the Use of the Land secondly referred to in DP 1247659, relating to the 150m setback for accessway from the centreline of the Kidman Way. The Respondent will execute Form 13RRE, for release or extinguishment of the restriction on the use of land pursuant to s 88E(7) of the Conveyancing Act 1919, within 7 days of judgment being delivered. 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted to Development Application DA39/2024.1 as amended, for alterations to approved driveway access to light industrial and commercial premises on land known as 759 Thorne Road, Griffith NSW 2680, being Lot 1 in DP 1247659 subject to the conditions of consent in Annexure A. 3. As a consequence of the development consent to Development Application DA39/2024.1 as amended, DA189/2018(3) is subject to the consolidated, modified conditions of consent set out in Appendix 1. 4. As a consequence of the development consent to Development Application DA39/2024.1 as amended, DA1/2022(2) is subject to the consolidated, modified conditions of consent set out in Appendix 2. 5. Pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 the Applicant is to pay Respondent's costs thrown away by the amendment of the application for the development consent, as agreed or assessed. ………………………. J Gray Commissioner of the Court Annexure A Appendix 1 Appendix 2 ********** 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 November 2024