Milestone (Australia) Pty Ltd v Wingecarribee Shire Council [2012] NSWLEC 1312

Milestone (Australia) Pty Ltd v Wingecarribee Shire Council [2012] NSWLEC 1312

The prohibition on right-hand turns into the site was not an essential or material feature of the approved development; it had been imposed to ensure safe traffic movements. With the agreed amendments to widen the carriageway and median, separate ingress and egress movements, provide a pedestrian refuge, and install a half-seagull arrangement preventing right turns out of the property, safe access could occur and the modified development remained substantially the same as the approved development. The proposal was lawful and consistent with relevant legislation, so the consent orders should be made.

Jurisdiction
Australia
Judgment Date
06 November 2012
Procedural Posture
Class 1 Appeal Concerning an Application Under S 96(2) of the Environmental Planning and Assessment Act 1979 to Modify Development Consent Conditions / Consent Orders Following Appeal Against Deemed Refusal
Outcome
Appeal upheld
Legal Topics
['modification of Development Consent Conditions' 'access From a Classified Road' 'right Hand Turn Into Development Site' 'road Safety and Traffic Management' 'substantially the Same Development' 'consent Orders']
['planning and Environment' 'roads and Traffic' 'local Government'] ['modification of Development Consent Conditions' 'access From a Classified Road' 'right Hand Turn Into Development Site' 'road Safety and Traffic Management' 'substantially the Same Development' 'consent Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 1 Appeal Concerning an Application Under S 96(2) of the Environmental Planning and Assessment Act 1979 to Modify Development Consent Conditions / Consent Orders Following Appeal Against Deemed Refusal

Legal Issues

  1. 1 ['Whether conditions of Development Consent No. DA07/0613 should be modified to permit vehicles travelling from the east along Old Hume Highway to turn right into the site driveway while preventing right turns out of the site.' 'Whether the proposed modification would result in development that is substantially the same as that approved under the original consent.' 'Whether the proposed roadworks and access arrangements would provide safe movements for motorists and pedestrians and be consistent with relevant legislation.']

Ratio Decidendi

The prohibition on right-hand turns into the site was not an essential or material feature of the approved development; it had been imposed to ensure safe traffic movements. With the agreed amendments to widen the carriageway and median, separate ingress and egress movements, provide a pedestrian refuge, and install a half-seagull arrangement preventing right turns out of the property, safe access could occur and the modified development remained substantially the same as the approved development. The proposal was lawful and consistent with relevant legislation, so the consent orders should be made.

Court Disposition

Appeal upheld

Orders

  • ['The appeal is upheld.' 'Development Consent No. DA 07/0613 granted by the Respondent on 18 December 2007 for a supermarket and associated car parking and passenger lift on the land at 181-183 Old Hume Highway, Mittagong, as modified on 15 August 2008 and 26 July 2010, is modified pursuant to Section 96(2) of the...