Residents Against Intermodal Developments Moorebank Incorporated v Independent Planning Commission (No 2) [2021] NSWLEC 1501

Residents Against Intermodal Developments Moorebank Incorporated v Independent Planning Commission (No 2) [2021] NSWLEC 1501

The Court upheld the appeal only to facilitate the imposition of the respondents' consolidated conditions and granted development consent because the judicial review-style challenges to the modifications, Concept Plan consistency, EIS validity and VPA/certification were not matters the Court should entertain in this Class 1 objector appeal, and in any event the evidence showed the development as modified was substantially the same, consistent with the Concept Plan Approval, supported by a substantially compliant EIS and satisfactory infrastructure certification, and that traffic, air quality, visual and acoustic impacts could be adequately mitigated or managed by the consolidated conditions.

Jurisdiction
Australia
Judgment Date
24 December 2021
Procedural Posture
Class 1 Objector Appeal Under S 8.8 of the Environmental Planning and Assessment Act 1979 Concerning State Significant Development Application SSD 7709 / Principal Judgment After Hearing; Appeal Upheld and Development Consent Granted Subject to Conditions
Outcome
Appeal upheld; development consent granted subject to conditions.
Legal Topics
['state Significant Development' 'objector Appeal' 'development Consent' 'modification of Development Consent' 'environmental Impact Statement' 'voluntary Planning Agreement' 'traffic Impacts' 'air Quality Impacts' 'visual Impact' 'acoustic Impacts' 'conditions of Consent']
['environmental Planning and Assessment' 'land and Environment' 'administrative Law'] ['state Significant Development' 'objector Appeal' 'development Consent' 'modification of Development Consent' 'environmental Impact Statement' 'voluntary Planning Agreement' 'traffic Impacts' 'air Quality Impacts' 'visual Impact' 'acoustic Impacts' 'conditions of Consent']

Case Brief

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Procedural Posture

Class 1 Objector Appeal Under S 8.8 of the Environmental Planning and Assessment Act 1979 Concerning State Significant Development Application SSD 7709 / Principal Judgment After Hearing; Appeal Upheld and Development Consent Granted Subject to Conditions

Legal Issues

  1. 1 ['Whether the Court had jurisdiction in a Class 1 objector appeal to review an alleged breach of s 4.55(2) of the Environmental Planning and Assessment Act 1979 concerning MOD 1.' 'Whether, if s 4.55(2) was engaged, the modified development was substantially the same development as originally approved.' 'Whether the MPW Stage 2 Consent as modified was inconsistent with the MPW Concept Plan Approval under s 4.24(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the Court could interrogate the acceptability or legality of the certification and voluntary planning agreement under cl 7.36 of the Liverpool Local Environmental Plan 2008.' 'Whether the environmental impact statement was invalid because of the form of the declaration and alleged absence of traffic modelling information.' 'Whether traffic impacts and cumulative traffic impacts were adequately assessed and mitigated.' 'Whether air quality, visual and acoustic impacts were acceptable subject to conditions.' 'Whether the consolidated conditions proposed by the respondents should be imposed.']

Ratio Decidendi

The Court upheld the appeal only to facilitate the imposition of the respondents' consolidated conditions and granted development consent because the judicial review-style challenges to the modifications, Concept Plan consistency, EIS validity and VPA/certification were not matters the Court should entertain in this Class 1 objector appeal, and in any event the evidence showed the development as modified was substantially the same, consistent with the Concept Plan Approval, supported by a substantially compliant EIS and satisfactory infrastructure certification, and that traffic, air quality, visual and acoustic impacts could be adequately mitigated or managed by the consolidated conditions.

Court Disposition

Appeal upheld; development consent granted subject to conditions.

Orders

  • ['The appeal is upheld.' 'Development consent is granted to State Significant Development Application No. 7709, for the Moorebank Precinct West Stage 2 (MPW Stage 2) at Moorebank Avenue, Moorebank (Lot 1 DP 1197707, Lot 2 DP 1197707, Lot 100 DP 1049508, Lot 101 DP 1049508, Part Lot 3 DP 1197707 and Part Anzac Road...