North Manilla Petroleum Pty Limited v Greater Hume Shire Council [2023] NSWLEC 1269

Land and Environment Court New South Wales

Medium Neutral Citation: North Manilla Petroleum Pty Limited v Greater Hume Shire Council [2023] NSWLEC 1269 Hearing dates: Conciliation conference on 18 May 2023 Date of orders: 02 June 2023 Decision date: 02 June 2023 Jurisdiction: Class 1 Before: Peatman AC Decision: The Court orders: (1) The appeal is upheld. (2) Development Consent No 10.2021.72.1 is modified in the terms in Annexure A. (3) The consolidated Development Consent No 10.2021.72.2 as modified by the Court is Annexure B. Catchwords: MODIFICATION APPLICATION – amenity (noise impact) – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, Div 4.8, ss 4,5, 4.55, 4.16, 4.17, 8.9 Environmental Planning and Assessment Regulation 2021, ss 23, 113 Greater Hume Local Environmental Plan 2012, Pt 2, cl 2.3 Land and Environment Court Act 1979, ss 17, 34, 39 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Arrage v Inner West Council [2019] NSWLEC 85 Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 Texts Cited: Greater Hume Council Community Participation Plan 2019 Greater Hume Development Control Plan 2013 Category: Principal judgment Parties: North Manilla Petroleum Pty Limited (Applicant) Greater Hume Shire Council (Respondent) Representation: Counsel: J Reid (Applicant) T Johnson (Solicitor) (Respondent)

Solicitors: Rostron Carlyle Rojas Lawyers (Applicant) Kell Moore Lawyers (Respondent) File Number(s): 2022/362380 Publication restriction: Nil

Judgment 1. COMMISSIONER: Development Consent No 10.2021.72.1 was granted by Greater Hume Shire Council (Council) on 16 February 2022 (Consent) which authorised the construction of a new service station at the corner of Railway Parade and Station Street East, Henty NSW being land comprising Lots 1, 2 and 3 in Deposited Plan 12560 having a total area of 2,178m2 (Land). 2. The Land is an irregular polygon in shape and has the following boundaries: "(a) Railway Parade (Olympic Highway) to the [west] [sic]– approximately 45.69m; (b) Sladen Street to the north – approximately 42.02m; (c) Laneway to the south – approximately 45.02m; and (d) Residential property to the east – approximately 47.24m." (Council's Statement of Facts and Contentions (SOFAC) filed 19 January 2023, p2 par (2.2)). 1. The Olympic Highway is controlled by Roads and Maritime Services, and is the highway linking Albury in the south, through Henty to Wagga Wagga in the north. 2. The Land is opposite Henty Railway Station, at the corner of Sladen Street with a passing speed zone of 50 kph applicable in that area (SOFAC p 2 par (2.4) and (3.2)). 3. On 13 May 2022, a modification application was lodged with the Council pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act), filed on the NSW Planning Portal reference No PAN-219064 (and accepted by Council on 18 May 2022 reference No 10.2021.72.2), and that sought to amend condition 55 of the Consent (the Modification Application) to include a 6-month trial period for extended operating hours of Monday to Sunday 5am to 12am Midnight. The extension represents a one hour extension of time in the morning and a two hour extension of time in the evening. 4. The Modification Application was made by Richard Sinclair of RJ Designs as agent for the owners of the Land which, at the date of lodgement, included North Manilla Petroleum Pty Ltd (the Applicant), see application form attached to Class 1 Application) pursuant to s 23(1)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). At the date of the Conciliation Conference, the Applicant was the owner of all the Land. 5. The Modification Application was treated as an application pursuant to s 4.55(2) of the EPA Act by Council and was notified and advertised from 18 May 2022 to 6 June 2022 in accordance with the Council's Community Participation Plan 2019 adopted by Council on 23 October 2019 (SOFAC par (5.4)). Four submissions were received opposing the Modification Application (SOFAC par (5.6)). 6. The Applicant (as principal) has standing to commence these proceedings under s 8.9 of the EPA Act (see Betohuwisa Investments Pty Ltd v Kiama Municipal Council (2010) 177 LGERA 312; [2010] NSWLEC 223 at [43]). 7. The Respondent in these proceedings is Greater Hume Shire Council which is the consent authority for the determination of the Modification Application pursuant to s 4.5(d) of the EPA Act. 8. The Applicant appealed these proceedings pursuant to s 8.9 of the EPA Act. 9. These proceedings fall within Class 1 of the Court's jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act). 10. The statutory power or function to be exercised by the Court is s 4.55(2) of the EPA Act, and s 39(1), (2), and s 34 (3) of the LEC Act. 11. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 18 May 2023. I presided over the conciliation conference. 12. 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 approving the Modification Application subject to the condition in Annexure A. 13. 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 s 4.55(2) of the EPA Act, and ss 39(1) (2), and s 34(3) of the LEC Act. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings, and explained how the jurisdiction prerequisites have been satisfied, as set out below: 1. Section 4.55(2) of the EPA Act provides that a consent authority may modify the consent if it meets the preconditions in subss (a)-(d) which are addressed as follows: (a) It is 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 and before that consent as originally granted was modified (if at all), and 1. The Consent has not been modified prior to this Modification Application. The Modification Application does not amend the built development in any way, and it proposes to modify the hours of operation provided for in condition 55 of the Consent. Condition 55, as originally imposed, provided: "55. Hours of operation The approved hours of operation are as follows Monday to Sunday, 6am – 10pm." 1. The parties have agreed that condition 55 of the Consent could be amended to provide: "(a) The approved hours of operation for the first six months (taken from the date of the Occupation Certificate) of the development are as follows: Monday to Sunday, 5am – 12 am (b) If during the initial six month period of operation Council receives any complaint about noise and vibration emanating from the Site between the hours of 5am to 6am or 10pm to 12am, then the operator of the business premises shall, within a period of 4 weeks (or any other period agreed to by Council in writing) of being notified of the complaint by Council, undertake an onsite acoustic noise logging investigation by an appropriately qualified acoustic consultant. Upon the completion of the on-site noise logging, the operating hours are to revert to Monday to Sunday 6am to 10pm pending the outcome of the acoustic investigation. The methodology for the acoustic investigation is to be approved by Council and the results of the investigation are to be submitted to Council. If no complaint is received during the 6-month period, the permanent hours of operation are: Monday to Sunday, 5am – 12am. If the acoustic investigation reveals that the noise and/or vibration from the premises exceed the Project Specific Noise Goals contained in the "Environmental Noise Impact Assessment New Service Station Reference 2105013E-R" prepared by Harwood Acoustics dated 2 September 2021 ('the Harwood report') between the hours of 5am to 6am or 10pm to 12am, then: Any ameliorative measures to correct the exceedance shall be implemented and re-testing completed, within 30 days (or any other period agreed to by Council in writing); If the acoustic investigation, and subsequent re-testing, reveals that the noise and/or vibration from the premises exceed the Project Specific Noise Goals contained in the Harwood Report, then the hours of operation shall be: Monday to Friday 6am to 10pm. (d) If the acoustic investigation carried out pursuant to condition 55(b) and/or (c), reveals that the noise and/or vibration from the premises do not exceed the Project Specific Noise Goals contained in the Harwood Report, then the hours of operation shall revert to: Monday to Sunday, 5am to 12am as the permanent trading hours." 1. The principles regarding s 4.55 of the EPA Act (which is in the same form as the previously numbered s 96) were summarised by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [173]: "… (1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); (2) the modification power is beneficial and facultative (Michael Standley at 440); (3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); (4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); (5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); (6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); (7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); (8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); (9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and (10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52])." 1. In Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280, Bignold J observed: "54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). … 58. Qualitatively appreciated, that difference is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified." 1. The Modification Application does not seek to alter the essential nature of the use or the form of the development in the Consent. The extension to the operating hours (one hour in the morning and two hours in the evening) will result in a development that is essentially or materially the same as that originally approved by Council in the Consent. (b) It has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and 1. The application subject of the original Consent was referred to Roads and Maritime Services (now Transport for NSW) pursuant to Div 4.8 of the EPA Act. Condition 56 of the Consent was required to be imposed by Transport for NSW and is not affected by the Modification Application. Accordingly, the Modification Application was not referred to Transport for NSW (SOFAC par (5.5)). (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 1. The Modification Application was notified in accordance with par [7] above. (d) It has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan as the case may be. 1. The four submissions received in relation to the Modification Application have been considered. The submissions raised concern regarding acoustic impacts which might cause sleep disturbance and potential to increase the number of accidents as a result of extra traffic movements. 2. Council's officers have considered the acoustic report submitted in support of the Modification Application and the traffic impacts and are satisfied that the impacts are satisfactory subject to the detailed condition 55 being imposed which allows for a trial period of the extended hours subject to addressing acoustic impacts if they arise. 3. Section 4.55(3) of the EPA Act requires that the consent authority take into consideration such of the matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development subject of the application. Those matters are addressed below. 4. The Greater Hume Local Environmental Plan 2012 (GRLEP 2012) is the relevant environmental planning instrument that applies to the Land. 5. The Land is zoned RU5 Village Zone under the Land Use Table in Pt 2 of GRLEP 2012. The objectives of the zone are: • To provide for a range of land uses, services and facilities that are associated with a rural village • To protect the amenity of residents 1. Pursuant to s 4.15(1)(a)(i) of the EPA Act, it is relevant to have regard to the objectives of the zone pursuant to cl 2.3(2) of GRLEP 2012. The use of the Land as a service station is a nominated permissible use in the RU5 zone and will provide a service to the rural village. The Modification Application was submitted with an Environmental Noise Impact Assessment dated 2 September 2021 by Harwood Acoustics, and a supplementary Letter prepared by Harwood Acoustics dated 23 April 2022 which has been assessed by Council. The parties agree that the amenity of residents is protected by the assessed impacts and the trial period and testing regime provided for in the proposed modified condition 55 which require the implementation of noise amelioration measures if they are ultimately necessary. 2. There are no other clauses in the GRLEP 2012 relevant to the consideration of the Modification Application. 3. There are no specific provisions of the Greater Hume Development Control Plan 2013 relevant to the Modification Application. 4. The parties assessed the likely impacts of the development including environmental impacts on both the natural and built environments, and social and economic impacts in the locality to be: 1. The only relevant likely impact of the Modification Application is the acoustic impact on nearby residential properties. 2. The Letter from Harwood Acoustics dated 23 April 2022 submitted as part of the Modification Application notes that the truck noise from heavy vehicles attending the service station would be largely indistinguishable from passing trucks on Sladen Street East, Henty during the extended hours. 3. The acoustic assessment includes predicted noise levels from the extended hours and confirms that the predicted noise levels to avoid sleep disturbance can be met. The proposed condition is lawful, having regard to the provisions of ss 4.16 and 4.17 of the EPA Act and takes a conservative approach by imposing a trial period which requires investigation and action in the event of a complaint being received in relation to noise during the extended hours. If the impact is not able to be ameliorated, the hours revert to the original approved hours. The Council considers that the proposed condition adequately addresses the likely impacts of the development and provides for the reasonable development of the Land. 1. The parties consider that the approval of the Modification Application does not result in any contravention of the EPA Act, any environmental planning instrument or the EPA Regulation. As such the Court may exercise its function under s 4.55(2) of the EPA Act and approve the Modification Application. 2. Having regard to all of the above matters, the Parties consider that the jurisdictional prerequisites to the proper exercise of the power to approve the Modification Application have been met. 1. In relation to a consideration of the application of s 4.55(2)(a) of the EPA Act, I have had further regard the "substantially the same" test as set out in by Chief Justice Preston in Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) being the only "test" to be applied is that in the legislation and it is important not to substitute for the legislative test, one from case law: "[18] The first set of reasons is that Mr Arrage's argument on this ground is founded on an unsound basis. The "test" the Commissioner was obliged to apply was not some dicta of Bignold J in Moto Projects, but rather the statutory provision of s 4.55(2)(a) of the EPA Act. Judicial decisions interpreting similar or identical legislative provisions may guide, but cannot control, the meaning of the legislative provision to be construed and applied by the court. Judicial decisions are not substitutes for the text of the legislation, although by reason of the doctrine of precedent and the hierarchical nature of the court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31]. [19] Bignold J did suggest in Moto Projects that the comparative exercise required by the former s 96(2), now s 4.55(2), of the EPA Act involves a comparison of the proposed modified development and the originally approved development "in their proper contexts (including the circumstances in which the development consent was granted)", but this did not substitute a different or additional test for the test imposed by the statutory provision giving the power to modify a development consent. The test remained that stated in the statutory provision that the modified development "is substantially the same development" as the originally approved development. ... [26] The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EPA Act to mean "essentially or materially or having the same essence". That interpretation of the word "substantially" was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55]. [27] This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry." 1. In applying the statutory provision of s 4.55(2)(a) of the EPA Act, as per Arrage at [18], and the submissions by the parties in par [15 (4)-(6)] above, I agree that the appeal should be upheld. 2. I note that since the filing of the Modification Application the parties have agreed to amend the proposed condition 55, in the terms as set out above, and that in accordance with s 113(1) of the EPA Regulation the Council has consented to the amendment to condition 55. 3. For the reasons set out above, I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I shall uphold the appeal, and grant approval for the Modification in accordance with s 4.55(2) of the EPA Act and s 39(1) and (2) of the LEC Act. 4. 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. 5. The Court notes that Greater Hume Shire Council has agreed, under s 113(1) of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application No 10.2021.72.2 to modify the wording of condition 55 in accordance with the terms set out in Annexure A to this judgment. 6. The Court orders: 1. The appeal is upheld. 2. Development Consent No 10.2021.72.1 is modified in the terms in Annexure A. 3. The consolidated Development Consent No 10.2021.72.2 as modified by the Court is Annexure B.

M Peatman

Acting Commissioner of the Court 362380.22 Annexure A (118631, pdf) 362380.22 Annexure B (186534, pdf)

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