Land and Environment Court New South Wales Medium Neutral Citation: Kathryn Sciberras v Mid Coast Council [2017] NSWLEC 1295 Hearing dates: 5 & 6 December 2016 Date of orders: 13 June 2017 Decision date: 13 June 2017 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is dismissed. (2) The application to modify development consent DA-76/2015, issued by Mid Coast Council on 17 September 2015, is refused. (3) The exhibits are returned, with the exception of Exhibits 1, A and B. Catchwords: Application to modify development consent: appeal under s96(1A) of EPA Act; whether the consent as modified would be for substantially the same development as the development for which the consent was originally granted. Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Great Lakes Local Environment Plan 2014 Land and Environment Court Act 1979 Cases Cited: nil Texts Cited: nil Category: Principal judgment Parties: Kathryn Sciberras (Applicant) Mid Coast Council (Respondent) Representation: Counsel: M. Seymour (Applicant) H. Irish (Respondent) Solicitors: D. Dunn, Stacks Lawyers (Applicant) Local Government Legal (Respondent) File Number(s): 2016/246705 Publication restriction: Nil Judgment Background 1. COMMISSIONER: This is an appeal by Ms Kathryn Sciberras (the Applicant) against the refusal by Mid Coast Council (the Respondent) of application to modify 14 conditions of consent for the subdivision of land (development consent DA-76/2015). 2. The original consent was issued on on 17 September 2015 and was for the subdivision of one lot (Lot 8 DP 1156631, Pacific Highway, Failford) (the Subject Site) into two lots (proposed lots 81 and 82). 3. The Subject Site is located approximately 17 km north of Tuncurry and is zoned R2 (Rural landscape) under Great Lakes Local Environment Plan 2014 (GLLEP 2014) . It is bounded to the west by the Pacific Highway, to the south by Greys Road, and to the east and north by adjoining private lands. 4. The modification application was made under s96(1A) of EPA Act. The appeal is lodged under s97AA of the Environmental Planning and Assessment Act 1979 (EPA Act and was subject to mandatory conciliation on 5 December 2016 under s34AA of the Land and Environment Court Act 1979 (LEC Act). 5. A site inspection was undertaken as part of the s.34AA conciliation conference. No objectors sought to make submissions to the Court in relation to this appeal. 6. Leave was granted for the Applicant to rely on the following outcomes from the s.34AA conciliation conference: 1. a proposed access handle from Greys Rd to proposed lot 82 was deleted from the proposal; 2. a new access to proposed lot 82 was added to the proposal. This was to be located to the north of the deleted access handle, and at a location towards, but short of, the proposed conservation area. 3. the Applicant agreed to prepare a new plan of subdivision to reflect these changes. 4. the requirements for an electricity supply certificate (Condition 20) and telephone supply certificate (Condition 21) were not pressed by the Respondent, and it was agreed could be deleted from the conditions of consent. 1. At the hearing the remaining contentions between the Parties concerned conditions requiring the Applicant to: 1. undertake certain upgrade works to Greys Rd; 2. make certain contributions under s.94 of the EPA Act;. 3. set aside certain lands for the purposes of environmental protection and for the Applicant to take steps to ensure restrictions as to use, to be established under s88B of the Conveyancing Act 1919, were recorded in support of this outcome. Planning context 1. The modification application that is the subject of this appeal was made under Section 96(1A) of the EPA Act. That section which reads: '(1A) Modifications involving minimal environmental impact. A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be'. 1. Clauses (a) through (d) of s.96(1A) are preconditions that must be satisfied before the Court can determine the merits of the appeal to modify the conditions of consent as sought by the Applicant. 2. Should those preconditions be satisfied, s96 of the EPA Act further requires that: 1. for an application for modification of a consent that meets the preconditions set out in s96(1A), under s.96: subsections (1), (2) and (5) do not apply to such a modification. 1. the following two additional subsections of s.96 do apply to such a modification: '(3) 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 79C (1) as are of relevance to the development the subject of the application.' '(4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified'. 1. In the first instance, I must find that the modification application can be dealt with under s.96(1A), and meet the requirements of its preconditions as set out in clauses (a) through (d) of that section. Does the appeal meet the preconditions of s.96(1A)? Is the proposed modification of minimal environmental impact? 1. The application seeks the modification of conditions consent requiring the Applicant to: 1. undertake works to upgrade Greys Rd, so that there is a minimum 5m wide gravel carriageway and table drains, and related conditions concerning the management of the upgrade works; 2. make s.94 contributions to Great Lakes Council; 3. set aside certain lands for the purposes of environmental protection . 1. I am satisfied, that no adverse environmental impacts would arise if the conditions related to these matters were modified in the manner sought by the Applicant because: 1. in relation to the Greys Road upgrades, if these were not undertaken the road would remain unaltered and in its current condition; 2. in the case of the s.94 contributions, the non-payment of these contributions would not create any adverse environmental impact; 3. in the case of the protection of environmental lands, there are no actions proposed under the application, nor permitted under the original consent, that would alter the current state of those lands or give rise to actions likely to cause adverse environmental impacts. 1. Consequently, I am satisfied that the application to modify the conditions of consent is of minimal environmental impact. Will the consent as modified be substantially the same development for which the consent was originally granted. 1. The Respondent said that the original development application had been assessed by Great lakes Council as an application for the subdivision of one lot with a dwelling entitlement into two lots, each with a dwelling entitlement. 2. The Respondent further noted that the Applicant had submitted a plan of subdivision showing the location of possible house sites on each of the resultant lots 81 and 82, and that this supported the Council's basis for assessment, and subsequent consent, of the subdivision development application. 3. In response, the Applicant said that the appeal was based a challenge that the application should not have been assessed as a residential subdivision as there was nothing in the application that sought approval for the constructuion of a dwelling. 4. During the hearing the Applicant noted that the intended and continuing use of the land was for the purposes of extensive agriculture, which is a use of the Subject Site permitted without consent under its R2 zoning. 5. In written submissions made after the hearing, and consistent with this intent, the Applicant said that: 1. the appeal relies on the its claim that the only development proposed to be carried out in respect of the subject site is its subdivision into two proposed lots with a dividing fence erected between them; 2. the 'issue was a simple one: that subdivision of the subject site into two lots creates no basis for the imposition of conditions concerning upgrading of services or access and no basis for the creation of an area of conservation significance'; 3. the subdivision would not lead to an increase in public demand for services and therefore contributions under s.94 of the EPA Act were not payable. 1. The Applicant further said that the development to which the consent as modified would relate would be substantially the same development as the development for which the consent was originally granted, as both consents would be only for the subdivision of land. 2. However, the Respondent contended that the consent as modified would not be for substantially the same development as the development for which the original consent had been granted because the original consent had been for a subdivision that complied with minimum lot size requirements so as to permit a dwelling to be erected on each resultant lot as provided under GLLEP 2104 Clauses 4.1 and 4.2. 3. The Respondent said that the conditions of consent granted to the development reflected requirements under GLLEP2014 clause 7.21 that consent must not be granted to a development, in this case the subdivision of land into lots each with dwelling entitlements, unless the consent authority were satisfied that a range of services, including suitable vehicular access, are available or that adequate arrangements have been made to make them available. 4. Having considered the above matters, I agree with the position of the Respondent that the original consent was granted in response to an application for the subdivision of land with dwelling entitlements, and was in response to the development application made by the Applicant that included supporting documentation consistent with this purpose. Conclusion 1. I am satisfied that the development to which the consent as modified would relate, while responsive to the applicant's intended future use of the land for extensive agriculture, would not be substantially the same development for which the consent was originally granted, being the subdivision of land with dwelling entitlement. 2. Based on this, I conclude that I am unable to determine the application to modify development consent DA75/2015, as that application does not satisfy the requirements of Section 96(1A) of the EPA Act requiring that the development to which the consent as modified relates be substantially the same development as the development for which the consent was originally granted. Orders 1. The Court orders that: 1. The appeal is dismissed. 2. The application to modify development consent DA75/2015, issued by Mid Coast Council 17 September 2016, is refused. 3. The exhibits are returned with the exception of Exhibits 1, A and B. …………………………. Michael Chilcott Commissioner ********** 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: 14 June 2017