Scape Constructions Pty. Limited v Central Coast Council [2019] NSWLEC 1399

Land and Environment Court New South Wales

Medium Neutral Citation: Scape Constructions Pty. Limited v Central Coast Council [2019] NSWLEC 1399 Hearing dates: Conciliation conference on 13 August 2019 Date of orders: 27 August 2019 Decision date: 27 August 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: See orders at [19] below Catchwords: MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders Legislation Cited: Coal Mine Subsidence Compensation Act 2017 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy No 44 - Koala Habitat Protection State Environmental Planning Policy No 55 – Remediation of Land Wyong Local Environmental Plan 2013 Texts Cited: Wyong Development Control Plan 2013 Category: Principal judgment Parties: Scape Constructions Pty. Limited (Applicant) Central Coast Council (Respondent) Representation: Counsel: N Simmons (Solicitor) (Applicant) M Everingham (Solicitor) (Respondent) Solicitors: Sparke Helmore Lawyers (Applicant) Central Coast Council (Respondent) File Number(s): 2018/381596 Publication restriction: No

Judgment 1. COMMISSIONER: The applicant, Scape Constructions Pty Ltd seeks approval pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EPA Act) to amend the timing for the construction of the Pacific Highway / Kanangra Drive intersection upgrade required by Roads and Maritime Services (RMS) under DA 967/2013 (original consent). 2. The original consent approved the staged development of a 405 lot residential subdivision at 85-95 Kanangra Drive, Crangan Bay being Lot 111 DP 1234514, Lot 112 DP 1234514 (site). Conditions 19, 57, 58 and 59 of the consent require an intersection upgrade at Stage 2. This application seeks to defer these works to Stage 4. 3. In accordance with the Court's usual practice, a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) was arranged between the parties on 13 August 2019. I presided over the conciliation conference. At that time, the President of the Gwandalan and Summerland Point Peninsular Improvement Group gave evidence outlining the Group's objections to the modification. The oral evidence reflected the concerns raised in the written objections lodged with the Council in response its notification of the modification application. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting consent to the modification application subject to conditions. 4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under function s 4.16 of the EPA Act. In this case there are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified these jurisdictional prerequisites and explained how the jurisdictional prerequisites have been satisfied. 5. After a consideration of the parties' submissions and the evidence, I am satisfied that the following jurisdictional prerequisites have in fact been met in this case. 6. With respect to s 4.55(1A)(a), I am satisfied that the proposed modification is of minimal environmental impact. I accept the traffic experts agreed position that deferring the timing of the upgrade works to the intersection of Kanangra Drive and the Pacific Highway will have minimal environmental impact because the intersection will have the capacity to cater for the development up until the agreed timing for delivery of the intersection (prior to the issue of any subdivision certificate for Stage 4 of the development). 7. With respect to s 4.55(1)(b), I am satisfied that the development to which the consent 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. 8. I have reached this view because no changes to the originally approved development are sought or have been sought. The proposed development remains a 405 lot residential subdivision on the land. Previous modifications have affected the staging of the subdivision and the location of nest boxes to be installed. The proposed amendment seeks only to defer the timing of proposed intersection works. 9. With respect to s 4.55(1)(c), I am satisfied that the application in accordance with the regulations or a relevant development control plan has been publicly notified. 10. In this case, the modification application was placed on public exhibition and notified to adjoining neighbours and advertised in the local newspaper by the Council during the period 24 May 2018 to 15 June 2018. Notification was in accordance with Chapter 1.2 of the Wyong Development Control Plan 2013. 11. Furthermore, as required by s 4.55(1)(d), I have considered the submissions made concerning the proposed modification. And, as earlier stated, I note that the sole objector (representing Gwandalan and Summerland Point Peninsula Improvement Group) was given an opportunity to make further oral submissions during the s34 conference. 12. As required by s 4.55(4), I have also taken into account the reasons given by the consent authority for the grant of the consent that is sought to be modified. 13. In this case, no specific reasons are provided in the development consent for the imposition of conditions requiring the intersection works. However, the parties agree that the conditions were imposed for the purpose of ensuring that the proposed development (and the increase in population as a result of the development) did not have an unacceptable impact on traffic flow at the intersection. The proposed modification also achieves this outcome based on the evidence before me. 14. Furthermore, I am satisfied in accordance with cl 115 of the Environmental Planning and Assessment Regulation 2000 that the land is owned by Scape Constructions Pty. Limited. The modification application was made with the consent of the owner of the land. And, notwithstanding that cl 7 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) does not apply to this modification application, I am told that the parties agree that the proposed modification does not affect the original assessment undertaken against SEPP 55 and therefore no further assessment is required. 15. Similarly, the modification does not affect the original assessment undertaken against State Environmental Planning Policy No 44 - Koala Habitat Protection (SEPP 44) and therefore no further assessment is required. 16. The originally approved development was integrated development, requiring an approval under the now Coal Mine Subsidence Compensation Act 2017. The parties agree the proposed modification will not affect the way in which the original application was assessed by the Mine Subsidence Board. The location and footprint of the development is unchanged and no modifications are proposed that warrant further separate consideration of mine subsidence impacts. I am also satisfied of that fact. 17. Lastly, I note that the approved development remains permissible with consent in the R2 Low Density Residential and R1 General Residential zones under the Wyong Local Environmental Plan 2013 (LEP) and there are no other relevant provisions of the LEP which I must address relating to my jurisdiction to approve of the modification. In summary, the evidence is that the proposed modification will have no additional impact on the local environment given that the approved development footprint and number of lots within each stage of the subdivision will remain unchanged. The parties are satisfied that, based on the traffic analysis undertaken that the saturation point mandated by the RMS for the intersection of the Pacific Highway and Kanangra Drive will not be exceeded prior to Stage 4 of the subdivision approved under the DA. I note the agreed position of the parties in that regard. 18. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 19. The Court orders: 1. The Appeal is upheld. 2. Modification Application No. DA/967/2013/B to modify Development Consent No. DA/967/2013/C is determined by amending conditions 2, 19, 57, 58 and 59 to read as follows [with amendments shown in strikethrough for deletions and underline for insertions]: "2. Approval is granted for six stages of subdivision release in the following manner: (a) Stage 1 – 2 large development lots in accordance with the Concept Plan hamlets. (b) Stage 2 – 93 residential lots, two drainage reserves & residue. (c) Stage 3 – 91 residential lots plus one drainage reserve & residue (d) Stage 4 – 83 residential lots plus the upgrade of the intersection of the Pacific Highway and Kanangra Drive (e) Stage 5 – 61 residential lots plus one drainage reserve (f) Stage 6 - 71 residential lots, 6 super lots and a drainage reserve Works and contributions are to be finalised appropriate for each stage prior to the release of the Subdivision Certificate. … 19. Stage 2: Prior to issuing a construction certificate the issue of any subdivision certificate for Stage 2, the developer shall enter into a Works Authorisation Deed (WAD) with the Roads and Maritime for all required works at the intersection of Kanangra Drive and the Pacific Highway. … 57. Stage 2 Stage 4: Prior to the issue of a any Subdivision Certificate for Stage 2 Stage 4, the issue of a subdivision certificate for the 185th lot, or the issue of an occupation certificate for any dwelling on land in Stage 4, the Pacific Highway / Kanangra Drive signalised intersection shall be upgraded in accordance with the Austroads Guide to Road Design 2010 (with Roads and Maritime supplements) and to Roads and Maritime / Council requirements. Where the developer chooses to construct works in kind in lieu of a monetary contribution the following requirements will apply to the intersection: • A 50 metre left turn high angle slip lane (exclusive of taper) shall be provided on Kanangra Drive for northbound traffic turning left onto the Pacific Highway (travelling north). • An additional 100 metre dedicated right turn lane (exclusive of taper) shall be provided on Kanangra Drive for southbound traffic turning right onto the Pacific Highway. • Installation of a raised central median and island on the northern side at the western leg of the intersection (Kanangra Drive), or as determined by Roads and Maritime. • The intersection shall be designed to accommodate the turning path of the largest design vehicle. • Provision for on-road cyclists shall be made at the intersection and along the full length of the works. • All lanes shall be a minimum 3.5 metres in width, or as determined by the Roads and Maritime. • Street lighting shall be provided in accordance with Australian Standard AS1158, or as determined by the Roads and Maritime. • Kerb and gutter shall be provided at the intersection and along the length of the works, or as determined by the Roads and Maritime. • Relocation of the existing bus bay and reinstatement of the bus bay shelter, seating and footpaths. The footpath is to be extended and connected to the signalised pedestrian crossing, or as determined by Roads and Maritime. 58. Stage 2 Stage 4: Where works are undertaken at the intersection of Kanangra Road and the Pacific Highway, Roads and Maritime will require the developer to enter into a Works Authorisation Deed (WAD) with Roads and Maritime. Roads and Maritime will exercise its powers under Section 87 of the Roads Act 1993 (the Act) and the functions of the roads authority, to undertake traffic signal works in accordance with Sections 64, 71, 72 and 73 of the Act, as applicable, for all works under the WAD 59. Stage 2 Stage 4: Prior to issuing the issue of any subdivision certificate for Stage 2 Stage 4, the issue of a subdivision certificate for the 185th lot, or the issue of an occupation certificate for any dwelling in Stage 4, and where the developer has chosen to undertake works in kind, the developer shall complete intersection upgrade and traffic control signals works under the WAD to practical completion, as determined by Roads and Maritime. • All works shall be undertaken at full cost to the developer to the satisfaction of Roads and Maritime." 1. As a consequence of Order (2), Development Consent No. DA/967/2013 is now subject to the modified conditions of development consent set out in Annexure "A".