Land and Environment Court of New South Wales CITATION: International Trucks Australia Pty Limited V Blacktown City Council [1999] NSWLEC 56 PARTIES Applicant International Trucks Australia Pty Limited Respondent Blacktown City Council NUMBER: 10718 of 1998 CORAM: Cowdroy AJ KEY ISSUES: :- Development consent - appeal - application under s102 for modification of consent conditions accompanied by SEPP 1 objection - SEPP 1 objection to be made only at time of application for development consent - s102 application not disqualified by reason of concurrent right of appeal under s97 - condition of consent sought relating to land not owned by applicant - court empowered to deal with application - discretion exercised against imposition of a condition incapable of fulfilment LEGISLATION CITED: Development consent - appeal - application under s102 for modification of consent conditions accompanied by SEPP 1 objection - SEPP 1 objection to be made only at time of application for development consent - s102 application not disqualified by reason of concurrent right of appeal under s97 - condition of consent sought relating to land not owned by applicant - court empowered to deal with application - discretion exercised against imposition of a condition incapable of fulfilment DATES OF HEARING: 02/22/1999 DATE OF JUDGMENT DELIVERY: 03/16/1999 Applicant Mr M Astill (Solicitor) Solicitors Blake Dawson Waldron LEGAL REPRESENTATIVES: Respondent Mr D Parry (Barrister) Solicitors Abbott Tout JUDGMENT: The Application 1. This is an appeal brought by International Trucks Australia Pty Limited ("the applicant") against a refusal by Blacktown City Council ("the council") to consent to an application under s102 of the unamended Environmental Planning and Assessment Act 1979, ("the Act"). The right to modify a development consent is now contained in s96 of the amended act. 2. The applicant is the owner of land at 598 Great Western Highway (the "highway"), Arndell Park ("the land") being Lot 14A in Deposited Plan 6796. On 14 February 1997 the Council issued a Notice of Determination ("the consent") pursuant to s92 of the Act in respect of development application No 96/349. The consent gave permission subject to conditions, for the development of the land as a truck service centre, spare parts store and associated offices. 3. The development application was accompanied by a site plan numbered D96/SYD/03. Such plan showed a truck display area along the frontage of the land to the highway. It also proposed an ingress lane on the eastern side of the land from the highway with an entry and exit at the rear of the land to enable access from Penelope Crescent. 4. Numerous conditions ("the conditions") were attached to the consent. Condition No 2 to the consent provided that development was to take place generally in accordance with, inter alia, the site plan, subject to the plan being amended as indicated in red ink. The red ink notation on the site plan reads "access not permitted" in relation to the entry from the highway and a series of red crosses was placed against the applicant's proposed ingress from that roadway. Minor amendments were made to the proposed layout of the entry and exit at the rear of the land where access was provided from Penelope Crescent. Condition 2 relating to access concluded with the following notation:- " NOTE: This involves a change to the Development Application plans as submitted to Council, and this change shall be reflected on the plans submitted to Council with the Building Application for the proposed development. The plans to be submitted with the Building Application shall delete the proposed driveway to the Great Western Highway and be amended to include landscaping within the 20m setback." 5. Conditions 27 and 28 provided:- "27. In order to ensure that pedestrian or vehicular access to this development is not gained from the Great Western Highway, a manproof fence, suitably "softened" with associated dense landscaping, is to be provided. Details of these requirements are to be submitted with the Building Application. 28. As Council is particularly concerned about the appearance of industrial development, especially such development near a busy road such as the Great Western Highway, the following additional information is required: (a) details of the materials and finishes to be used on the southern and western side of the building are to be submitted with the required Building Application; and (b) the required landscaping plans are to provide for dense landscaping within the building setback area to 20.0m. This landscaping is to include ground cover, shrubs and trees which, at maturity, would reach a height greater than the height of the proposed buildings." 6. In accordance with the consent, the applicant constructed its truck service centre and office upon the land without provision of any access from the highway. Such construction was completed in July 1997. No appeal was lodged in respect to any of the conditions attached to the consent. 7. On 4 July 1997 the applicant lodged an application to modify the conditions, as follows:- Modification to Conditions 2 and 27 as per Report of Nexus Environmental Planning Pty Ltd June 1997. The proposed modification would permit vehicular access to the land (ingress only) from the Highway, as described in the report of Nexus Environmental Planning Pty Limited. Such report also proposed construction of a deceleration lane upon the road reserve between the frontage of the applicant's land and the Highway to facilitate entry to the land. The reserve is vested in the Roads and Traffic Authority of New South Wales ("the RTA") which is not a party to these proceedings, and which opposes the creation of such a lane. The applicant concedes that the proposal is only viable if the deceleration lane is constructed. Planning Controls 8. The applicant's land is zoned 4(a) General Industrial Zone under Blacktown Local Environmental Plan 1988 ("the LEP"). The Highway is within Zone 5(b): Special Uses - Arterial Road and Arterial Road Widening Zone pursuant to the LEP. The applicant's land is affected by cl22 of the LEP which relevantly provides:- "22. (1) In this clause "designated road" means land within Zone 5(b) … (2) Subject to sub-clauses (3) and (4) a person shall not carry out development on land which adjoins a designated road unless vehicular access to that land from that road is made by way only of another road (not being a designated road). (3) … (4) Where, except for this clause, development may be carried out, the Council may, in relation to that development, allow permanent vehicular access to a designated road, if, in the opinion of the Council, alternative access to that development is neither practicable nor provided by another road or a proposed road identified in a development control plan. (5) Prior to determining any development application which provides for either temporary or permanent access to land within Zone 5(b), the Council shall consult with (the RTA), and shall not determine that application until 28 days after is has notified (the RTA) of its intention to do so." By letter dated 14 October 1997, council refused the applicant's s102 application and SEPP 1 objection. The council has raised several issues in opposition to the applicant's appeal. State Environmental Planning Policy No 1 ("SEPP 1") - Development Standards 9. The first issue is whether a SEPP 1 objection can be raised with a modification application. Section 6 of SEPP 1 provides:- "6. Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection." Section 102(1) of the Act relevantly provides:- "102. (1) Upon application being made in the prescribed form by the applicant or any other person entitled to act upon the consent, a consent authority which has granted development consent under this Division may modify the consent where: …" SEPP 1 gives a right to submit an objection when making a development application. Section 6 of SEPP 1 does not suggest the application can be made at any other stage. Section 102 operates only after development consent has been granted. This is made explicit by virtue of the provisions of s102(4) which provides:- "102. (4) Modification of a development consent in accordance with this section shall not be construed as the granting of development consent under this Division but a reference in this or any other Act to a development consent shall be a reference to the development consent so modified." 10. Accordingly the only opportunity for the application of SEPP 1 is upon the lodgement of a development application. Once a development consent has been granted, no occasion arises for the application of SEPP 1. Such conclusion is reinforced by the observations of Mason P in North Sydney Council v Michael Standley & Associates Pty Limited (1998) 97 LGERA 433 at 445 where His Honour said:- "Section 102(4) is emphatic in stipulating that modifications of a development consent in accordance with the section shall not be construed as the granting of development consent under the Division." Thus a clear distinction is recognised between an original consent and a consent which has been modified. The latter is not to be treated as a grant of development consent. Since SEPP 1 only applies in relation to applications for development consent, the present SEPP 1 objection is incompetent. Imposition of further conditions 11. The applicant seeks the revocation of two conditions of consent and the imposition of a new condition requiring the construction of a deceleration lane upon land which is vested in the RTA. The council submits that the court has no power to impose such condition. The applicant relies upon the provisions of s102(3A) which provides:- "102. (3A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 90 as are of relevance to the development the subject of the application." Such matters include traffic considerations and relationship of the development to other land. The applicant also relies upon the provisions of s91(3) which relevantly provides:- "91(3) A condition may be imposed for the purposes of subs. (1) if it: … (f) 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 90(1) applicable to the development the subject of the consent." 12. The new condition would form part of the development consent of the applicant's land rather than a condition pertaining to the development of the RTA's land. In accordance with the consideration of such issue by the High Court of Australia in North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 (especially at pp. 476-478), the court as consent authority has power to determine the application. It has been accepted in both Benalup Holdings Pty Limited v Lismore City Council (1993) 81 LGERA 257 and Progress & Securities Pty Limited v North Sydney Municipal Council (1988) 66 LGRA 236 that new conditions can be included with consent of the applicant upon a modification application. It remains a matter for the courts discretion to determine whether the condition should be imposed. 13. As a further ground of objection, the council has submitted that the application involves the RTA's land and does not satisfy the requirements of s102(1)(a). It requires the consent authority be satisfied the development to which the consent as modified relates is substantially the same as that for which consent has been given. 14. The new condition suggested by the applicant would form part of the consent for development of the applicant's land and not the land of the RTA and therefore does not alter the character of the consent. Accordingly the court possesses the requisite power to deal with the application in accordance with the principles referred to by Mason P in North Sydney Council v Michael Standley & Associates Pty Limited (supra) at pp 438-440. Concurrent Right of Appeal 15. The council submits that the applicant ought to have lodged an appeal if it wished to challenge the conditions of the consent, and this application is therefore incompetent. This raises the question whether an applicant for development consent who possesses a current right of appeal pursuant to s97 of the Act is entitled simultaneously to make an application pursuant to s102 thereof. 16. In Progress & Securities Pty Limited v North Sydney Municipal Council (supra) Bignold J determined that a s102 application was competent, even though the relief claimed could have been the subject of an appeal. At the date of the s102 application, the appeal period had already expired. However in Security Storage Pty Limited v Leichart Municipal Council (1996) 93 LGERA 176 at p 181, the Chief Judge having considered Progress & Securities Pty Limited v North Sydney Municipal Council (supra) determined that even though the period for lodgement of an appeal under s97 had not expired, the court could grant relief where changed circumstances existed. 17. At the date of filing the present application, neither the appeal period had expired nor were there any changed circumstances. Two separate and distinct rights are provided by s97 and s102, and they are not to be regarded as an alternative to each other (see Bignold J in Progress & Securities Pty Limited v North Sydney Municipal Council (supra) at p 240). The court is empowered to deal with any such application but discretionary considerations remain. Discretionary Considerations 18. In the exercise of the court's discretion, numerous considerations arise. Firstly the applicant could have appealed against the imposition of Conditions 2 and 27. This application seeks to take the benefit of the consent, but not the burden; see Progress & Securities Pty Limited v North Sydney Municipal Council (supra) at p 245. The application is made solely upon economic considerations, namely the applicant finds that its retail trade of second hand trucks is allegedly suffering because potential customers cannot gain access from the highway. Such a consequence would have been obvious from the outset and in reality no changed circumstances exist. 19. Secondly, cl22 of the LEP has been applied by the council in the interest of road safety and in the orderly development of industrial land beside the highway. On the adjoining Brambles site, ingress and egress to the highway exists, but this approval has resulted solely from a Ministerial decision. In view of the evidence of the traffic engineers called by the applicant and of council such clause cannot be regarded as unreasonable and to grant an exception to the applicant would create a precedent having the potential to destroy the effectiveness of cl22 of the LEP. It would be tantamount to setting aside the development control, rather than granting flexibility (see Gergely & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400 at 412). 20. Thirdly the evidence of the RTA reveals that the land proposed for use as the deceleration lane may be required for future widening of the highway, and it will not consent to the proposal. Courts of equity have traditionally applied the principle of refusing the relief of specific performance where, for any reason, performance would be impossible: see Seawell v Webster (1859) 29 LJ 21; Ferguson v Wilson (1866) LR 2Ch 77. Similarly the court should not and will not impose conditions upon a consent (or modification thereof) if the conditions are incapable of fulfilment, for to do so would be futile. 21. The application is devoid of merit. The provision of an ingress lane had been included in the original development application and was specifically rejected by the terms of the consent only six months previously. This consideration, together with other matters set out above, warrants dismissal of the application. Orders 22. The Court therefore orders: (1) The application be dismissed. (2) The exhibits be returned. I HEREBY CERTIFY THAT THIS AND THE PRECEDING XX PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM ASSOCIATE 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.