Abernethy Developments P/L v Cessnock City Council

Land and Environment Court (NSW)|2011-04-18|Before: Abernethy Developments P

Background 1This appeal arises from council's refusal to support a s96 application to modify a consent granted by the Court in Appeal No 10679 of 2008 for an 11 lot subdivision (Refer to Attachment A) at Munn Street Abernethy. The consent was granted on 13 March 2009 (consent) and allowed the creation Lot 1 with an area of 6.32ha, which effectively excised the rural component of the site. The subdivision of the remaining land in the village zone is to create 10 lots with areas in the order of 2000sq m. The conditions of consent require the provision of a range of infrastructure, including road upgrading, stormwater drainage improvements and contributions towards the extension of the town water supply. 2The modification now is to undertake the subdivision in the following phases: The first phase (subject application) is to create two lots, with Lot 1 effectively excising the portion zoned Rural A from the area approved in the Village 2(b) portion for the 10 residential lots. This first phase effectively consolidates the ten residential lots into a residue Lot 2. Access to Lot 1 is to be via a 5m right of access over Lot 2. Presumably the second phase or subsequent phases will result in the subdivision of the residue Lot 2 into the initially approved ten lot configuration. 3The subject land contains an existing dwelling and ancillary buildings (racing kennels) that have been in existence for about 40 years. The original consent required the removal of this dwelling, partly because it encroached on the proposed new lot boundaries. 4Subsequent to the granting of the original consent, a further development application was made. This resulted in consent being granted for the erection of a new dwelling within the proposed Lot 1. A condition of this consent also required the demolition of the existing dwelling within 90 days of the issue of an occupation certificate, so that there would not be two dwellings on the one (original) lot. 5The applicant now submits that there has been a change of circumstances, particularly the GFC, which now necessitates the subdivision being undertaken on a 'phased basis' to achieve the ultimate eleven lot outcome. Accordingly, the applicant has provided a separation of the overall conditions for the two phases. 6However, council opposes this modification of the development on the basis of a number of contentions, which are summarised as follows: Whether it is appropriate to allow the modification to undertake the development in 2 phases when this effective staging of the subdivision was not pursued in the initial development application stage. Suitability of the proposed interim access arrangements. Removal of the existing dwelling in terms of the adequacy of the existing structure, wastewater disposal arrangements and bushfire risk. Public interest matters raised by residents, including water supply provision, increased runoff impacts and access road upgrading. 7The matter commenced by way of a s34 Conference and there being no agreement reached, the parties consented to Hussey C determining the matter.

The site 8The site is described as Lot 2 in DP 840845 and has an area of 9.09 ha. It is irregular in shape and is situated near the intersection of Munn and Munro Streets, Abernethy.

Planning controls 9The planners agree that the statutory controls specified in the original judgement are still relevant, except for a minor change to the Waste and Minimisation chapter of the Cessnock DCP 2006. 10The only additional control relates to the exhibition of a draft Cessnock LEP 2010. This draft LEP proposes to place the whole of the subject land into the RU2 Rural Landscape Zone, which if adopted would have a minimum area of 40 ha. However the draft LEP contains a savings clause that would allow the subject application to be considered under the current controls. Accordingly, this would not prevent the approval of the s 96 application and the future development of suitable dwellings on the approved smaller lots.

The evidence 11Detailed evidence was submitted by:

Mr P Giannopoulos, Senior planning assessment officer.
Mr C Noble; Council's project officer
Mr D Layt; Council's building surveyor
Mr D Kettle; Applicant's consulting planner
Mr G Goodwin; Applicant's building inspector
Mr D McMonnies; Applicant's bushfire consultant
A number of residents submitted objections to the application. 12The threshold issue in this matter concerns the appropriateness of allowing this development to be undertaken in the two proposed phases, particularly in the light of the s 96 considerations regarding whether the development relates to substantially the same development. Also, the application's compliance with the relevant s 79C considerations, matters raised by the objectors and compliance with the objects of the EP&A Act, particularly those dealing with economic and orderly development. 13In this context, one of the matters discussed in detail concerned the effects of retaining the existing dwelling, because both of the consents required its removal. The main concern is that the approval of Phase 1 would effectively create the new Lot 2, thereby allowing the retention of the existing dwelling to remain on this separate lot. 14The applicant confirmed this intention and submitted a building report from Mr Goodwin, which concluded that if some 23 items were rectified, then the dwelling would reasonably satisfy the current building requirements to enable its retention. Mr Layt agreed that if these items were completed then the building would be acceptable for retention. 15The applicant also submitted Mr McMonnie's bushfire risk report, which confirmed that the retention of the two dwellings on Lots 1 and 2 would be acceptable, subject to the compliance with conditions of consent. 16Another issue concerned the adequacy of the existing on-site wastewater system for the existing dwelling. Mr Noble checked the applicant's claim of satisfactory performance. He found that whilst the on-site sewage management system did not correspond with its original approval in 1979, nevertheless the visual inspection did not reveal any significant operational problems. Consequently, he concluded this wastewater system would be satisfactory, subject to compliance with conditions requiring some resealing of the septic tank and maintenance of the transpiration area. 17From this, it appears to me that the existing dwelling could be conditioned requiring certain upgrading to an acceptable condition to enable its retention. 18Apart from this, concerns were also expressed about the legal access to the 'approved' new dwelling on Lot 1. The applicant sought to address this by the imposition of a 5 m wide right of access over the proposed Lot 2, from Ferguson Street. This alignment is different from the existing approval and would require the consent of the owner of Lot 2 for its future extinguishment.

Findings 19Having considered the evidence, the submissions and undertaken a view, it is apparent that the Court's determination of this appeal under s 96(8) is subject to the following provisions: 96(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (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 20The primary requirement then is for the applicant to initially demonstrate that the modified consent relates to substantially the same development as originally approved. By comparison with the original consent, I do not consider the modification application satisfies this primary requirement for the following reasons. 21The original consent allowed the subdivision of Lot 2 DP 840845 into eleven lots, which on completion of the conditions of consent would result in the creation of a new DP. Satisfaction of the conditions would result in:

The removal of the existing dwelling (note; that it encroaches on the common boundary of lots 9 and 10).
The upgrading of the road surfaces in Munro, Munn and Ferguson Streets, including the bitumen sealing of some sections.
The construction of a new internal subdivision road to provide access to the new lots, including emergency access to Lot 1.
The provision of new landscaping. 22However the approval of the modification would result in:
The initial creation of two lots in a new DP, with the subsequent subdivision of the residue Lot 2 into the ten residential lots being in another future DP.
The retention of the existing dwelling on the proposed lot 2 on the basis that the twenty-three building upgrading items have been completed.
The creation of an alternative access to Lot 1 via an "angled" 5 m wide 'right of access' from Fergusson Street over the proposed Lot 2, which would be over part of the designated building area for the originally approved Lot 6 and need to be extinguished to allow building on Lot 6.
The delay in the perimeter road upgrading.
The delay in extension of the water service.
The delay in the drainage upgrading in the area.
Likely delay in implementing the approved site and street landscaping requirements for the overall development.
An uncertain timeframe for the completion of Phase 2. 23Notwithstanding the submissions for the applicant that it is intended to undertake the second phase subdivision in the foreseeable future, it still seems to me that there is an unacceptable level of uncertainty about the completion of the overall development. In this regard I note that the applicant conceded that a condition could be imposed requiring the completion of Phase 2 within a specified period, probably five years. 24Apart from the appropriateness of imposing such a condition, it appears to me that this is another fundamental difference from the original consent. I also have some practical concerns that the costs of undertaking the twenty-three remedial works to enable the retention of the original dwelling would seem to indicate its likely retention for a period greater than the suggested five years. This would be a substantially different outcome from the original consent. I therefore find this level of uncertainty undesirable as compared to the relative certain outcome for the approved eleven lot subdivision. 25Insofar as reference was made to other authorities dealing with modification applications, I note that in the matter of Davi Developments Pty Ltd v Leichhardt Council [2007] NSWLEC 106 Talbot J summarised findings on this question as follows: 56 In Moto Projects (No.2) v North Sydney Council (1999) 106 LGERA 298 Bignold J made some observations that still apply notwithstanding some clarification of other principles relating to applications for modification of development consents since that date. His Honour noted that the comparative task does not merely involve a comparison of the physical features or components of the original development where that comparative exercise is undertaken in some type of sterile vacuum. Rather, he said 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 was granted). 57 To modify is to alter without radical transformation so that it is essentially or materially the same or having the same essence. (North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468 and Vacik v Penrith City Council (1992) LEC No. 10242 of 1991 24 February 1992 Stein J unreported).... 26In my assessment based on the aforementioned differences, I consider the modification represents a materially different development outcome with the modified development differing both quantitatively and qualitatively. Therefore it does not satisfy the requirement of relating to substantially the same development. Accordingly, I consider this application should fail. 27If however the application was otherwise considered to be substantially the same, it then must satisfy the relevant s 79C considerations and objects of the EP&A Act. In this case a number of public interest considerations were raised. One concern is the implementation of the approval should result in the timely and orderly provision of services. This includes the arrangements for the extension of the water main, the upgrading of the adjacent road and drainage systems, which provide positive public benefits. 28However the phasing of the development introduces a higher degree of uncertainty in the timely provision of these services, which I consider would be a negative impact for community. As such the phasing of the development would represent an unreasonable balance in favour of the applicant as compared to the overall public interest in achieving the orderly implementation of the current planning controls. 29Notwithstanding this, the s 79C matters include consideration of the relevant planning instruments. It seems to me that this modification application is to achieve a staged development of the land and the following s 83B of the EP&A Act provides for this type of development: 83B Staged development applications (1) For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development. (2) A development application is not to be treated as a staged development application unless the applicant requests it to be treated as a staged development application. (3) If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless: (a) consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or (b) the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. (4) The terms of a consent granted on the determination of a staged development application are to reflect the operation of subsection (3). 30Accordingly, any 'staged development' application should be made initially so that the implications of such staging can be fully assessed to ensure the suitability of this type of development. Consequently, I do not consider that s 83B(2) allows the development to be undertaken in stages unless this was identified in the original application. 31As I then find no mention of the concept of 'phasing' a development, which in this case would likely have the same effect as a 'staged development', I do not consider it appropriate to allow a modification application on this basis. If the development is to be undertaken in phases or stages, the relative merits of this approach should be considered in a separate application. Therefore I do not consider satisfies the provisions of s 83B(2) of the EP&A Act. 32Another consideration concerns the weight to be given to the draft Cessnock LEP. I understand that this has been exhibited and the intention is to 'back-zone' the land to rural. In these circumstances the residential subdivision would not be permitted. But there is a savings clause that allows the subject application to be considered on the basis of the current controls. I give this determining weight and do not consider the provisions of the draft LEP support the modification application. 33In determining this s 96 modification application, I have also considered the detailed objections, which have been addressed in the various expert reports. 34In summary then, I consider this modification application represents a materially different application to the original approval and as such, I do not consider relates to substantially the same development. Furthermore, I do not consider the 'phasing' proposal is consistent with the provisions of the EP&A Act, thereby resulting in the refusal of the application.

Court orders 35The Court orders that: (1)The appeal is dismissed. (2)The s96 application to modify the 11- lot subdivision approval of Lot 2 DP 840845 Ferguson Street, Abernethy is refused. (3)The exhibits may be returned except for A and 6. R Hussey Commissioner of the Court 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: 23 May 2011

(1999) 106 LGERA 298

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