Land and Environment Court New South Wales Medium Neutral Citation: Conroy v Yass Valley Council [2020] NSWLEC 1221 Hearing dates: Conciliation conference 15 May 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Class 1 Before: Gray C Decision: Refer to orders at [7] Catchwords: APPEAL – modification application – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Category: Principal judgment Parties: Brett Conroy (Applicant) Yass Valley Council (Respondent) Representation: Counsel: G Mansfield (Solicitor) (Applicant) A Bradbury (Solicitor) (Respondent) Solicitors: O'Connor Harris (Applicant) Bradley Allen Love Lawyers (Respondent) File Number(s): 2019/297978 Publication restriction: No Judgment 1. COMMISSIONER: This appeal concerns the grant of an application to modify a development consent for the establishment of a truck depot, truck parking area, horse arena and storage shed at 46 Carrington Road, Wallaroo. The modification application was lodged with Yass Valley Council on 5 November 2018 and sought changes to conditions 10, 14 and 15, as well as to remove the horse arena from the description of the development. The application was determined on 27 March 2019, modifying condition 15 and the description of the development. However, the modification sought to condition 10 and 14 was not granted. The appeal against that determination is lodged pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In these appeal proceedings, the applicant seeks an order that condition 14 of the consent, which imposes a restriction on heavy vehicle road movements on Carrington Road during the Spring Range Road school bus drop off and pick up times, be removed. 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 [7] below, amend condition 14 to reduce the hours of the restriction, and are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. 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 May 2020. 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 decision agreed upon is for the grant of the modification application to amend the condition by shortening the window during which heavy vehicles are restricted from moving past the bus stop on Carrington Road to 20min. The parties agree that the school bus is quite punctual and that school children, who are generally dropped off at and picked up from the bus stop by car, do not congregate or linger at the bus stop which is consequently cleared within minutes of arrival and well within 10 minutes of either side of the pick-up and drop-off times. 4. The modification is made pursuant to s 4.55(1A) of the EPA Act. 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 modification to the condition is of minimal environmental impact, in satisfaction of s 4.55(1A)(a), as it continues to avoid potential conflict between the school bus stop and heavy vehicles and therefore does not create any increased impact on safety. I am also satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted, as it merely changes the hours of the restriction on vehicle movements. Further, pursuant to s 4.55(1A)(c) and (d), the modification application was publicly notified and the submissions received have been considered. 5. 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)). 6. 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 s 4.55(3) of the EPA Act. 7. The Court orders that: 1. The appeal is upheld. 2. Development Consent DA155133E (formerly described as Development Consent No. 5.2015.133.1) granted by the Respondent on 3 November 2015 for the establishment of a truck depot, truck parking area, and storage shed in relation to lot 1 DP 550872, known as 46 Carrington Road Wallaroo NSW, is amended by replacing condition 14 with the following condition: "14. Heavy vehicle movements along Carrington Road associated with this development shall not occur between 7:30am to 8:15am 7.40am and 8.00am or between 3:45 to 4:45pm 4.05pm and 4.25pm on school days unless otherwise approved by Council in writing. In the event that the school bus timetable changes, the 20 minute period in which heavy vehicle movements along Carrington Road are prohibited is varied so that heavy vehicle movements along Carrington Road associated with the development are not to occur within 10 minutes before and 10 minutes after the time specified in the timetable for the arrival of the bus at the Carrington Road School Bus Stop." ……………………… J Gray Commissioner of the Court ********** Amendments 20 May 2020 - Administrative error 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: 20 May 2020