Adamo v Central Coast Council

Land and Environment Court (NSW)|2024-08-23

JUDGMENT

COMMISSIONER: Nicholas Adamo appeals to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of development application number DA/3519/2022 at 96 Barnes Road, Kulnura (Lot 2, Lot 3 and Lot 4 in DP 833467). During the proceedings the development application has been amended with the consent of Central Coast Council, the Respondent in the proceedings. Further, by consent of the parties, leave was granted by the Court at the commencement of the hearing for the Applicant to rely on a further amended proposal.
As amended, the development application seeks consent for the following works: 1. Demolition of existing machinery shed. 2. Earthworks to provide level areas for proposed structures and landscaped areas. 3. Construction of a new metal machinery and storage shed. 4. Construction of a new metal outdoor storage shed. 5. Construction of a new observation tower. 6. Construction of a new swimming pool. 7. Construction of open pergolas adjacent to the existing garage. 8. New driveways and pathways connecting new structures, and 9. Landscaping including new retained terrace area adjacent to the existing dwelling.
The appeal was subject to mandatory conciliation on 22 August 2024, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached during the conciliation conference, it was terminated, and a hearing held forthwith pursuant to s 34AA(2)(b)(i) of the LEC Act.

Outcome

Having considered the evidence and submissions in the proceedings I have concluded that the amended development application, DA/3519/2002, should be determined by way of approval subject to conditions. For the reasons that are detailed in the body of the judgment, I decline to impose conditions of consent on the development application sought by the Respondent. Those conditions focus on two issues. Firstly, restricting the use of the existing approved private recreation facility on the site to a single individual and their family, and secondly proposed restrictions on the ongoing use of the site. I decline to impose the conditions sought by the Respondent as I have found that they are not reasonable, for the reasons detailed at [39], and that the conditions proposed by the Applicant are sufficient to address and acceptably manage any likely impacts of the proposed development the subject of this development application.

Site and locality

The site benefits from a previous development consent (DA/898/96) which permitted the erection of a dwelling and a private recreation facility consisting of a roadway for driving prestige cars (the existing consent). The particulars of this consent are detailed commencing at [18].
The subject site is located in Kulnura, a semi-rural suburb, along a private driveway from Barnes Road. The site adjoins the Jilliby Conservation Area to the east and the closest dwelling is on an adjoining site (458 George Downs Drive), approximately 670m away to the southwest. At its closest, the existing private recreation facility (the roadway track for private use) is approximately 360m away by direct line to this dwelling.
These relationships are demonstrated in the following aerial photo:

The existing consent

In addition to permitting the construction of the existing dwelling on the site, the existing consent permitted the erection of a dwelling and a private recreation facility, consisting of a roadway for driving prestige cars (limited to no more than 4 at any one time).
This development application does not seek to amend this development existing consent.
The existing consent was tendered in the proceedings. To the extent it is relevant to the determination of the development application before the Court, the existing consent contains the following conditions that were referenced by the parties in their evidence and submissions: … 8. The private recreation facility is only to be used strictly in accordance with the details contained within the approved Statement of Environmental Effects (Revision B) reference No 54H104A and dated October 1996, except as modified by conditions of this consent. 9. The use of the private road is to be limited to private use by the owner of the land and is not to be used in conjunction with any commercial activity. 10. The use of the road is to be in daylight hours and specifically between the hours of 9am and 6pm only. 11. A maximum of four cars are permitted on the track at any one time. … 15. Lots 2, 3 and 4 in DP 833467 are to be consolidated into one lot by registered subdivision prior to the use of the recreation facility commencement. … 17. The submission of a plan of management for site works, and other associated works to be approved by Council prior to commencement of works. All work is to be carried out by appropriately trained and qualified contractors in a competent manner in accordance with the approved Management Plan. Monthly reports certified by the consultant shall be submitted to council for the duration of the construction period to include all restoration works. …
Ms Rose for the Respondent relies on the following sections of the Statement of Environmental Effects which formed part of the existing consent. 3. Proposed development … The applicant, Mr Dean Willis, AO, is owner of a number of prestigious and expensive motor vehicles which are currently garaged at his principle residence in Belrose. The vehicles are totally road worthy and are registered for use on public roads. Unregistered vehicles would not use the road. … The road would be for private use and would not be open to the public nor would it involve any commercial undertaking. Indeed strict precautions will be undertaken to avoid unauthorised entry and use of the site. … The dwelling, and the road in particular, would only be used on an intermittent basis during daylight hours only, (possibly up to 2-3 days per week), and operation would occur for a period of up to 4 hours per day, however two hours per day would generally occur. The road would be used in daylight hours only, typically between 9am and 6pm. Typically, a maximum of 2 vehicles would be on the road at any one time. On a limited number of occasions per year up to 5 vehicles may use the road at any one time. No "racing" of vehicles would be allowed and overtaking would be strictly controlled. (Exhibit 1)

Mandatory preconditions and matters for consideration

There are a number of statutory preconditions to the grant of consent to the development application. It is necessary to demonstrate that the preconditions to the Court having the power to grant consent to the proposed development have been met. These considerations are detailed in the following. The parties have identified no jurisdictional preconditions that preclude the grant of consent, which I accept.
The site comprises land zoned RU1 Primary Production and C3 Environmental Management under the provisions of the Central Coast Local Environmental Plan 2022 (LEP 2022). The works proposed in this development application are located in the portion of the site zoned RU1 Primary Production. In determining the development application, I have given consideration to the objectives of the zone, with which I find the development application is compatible.
The development application was made by the owner of the land, 70North Pty Ltd, which has provided consent to Nicholas Adamo for the making of the application. (Exhibit C)
The development application was notified by Central Coast Council between 9 December 2022 and 30 January 2023. No objections to the application were received.
Clause 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) precludes the granting of development consent unless the consent authority has considered relevantly whether the land is contaminated or potentially contaminated land and, if it is, that it is satisfied that the land is suitable (or will be suitable after undergoing remediation) for the proposed use of the proposed development. The land is not identified as a contaminated site on the NSW Environmental Protection Authority's list of notified sites, nor it is in the vicinity of any listed sites. The works proposed do not involve any material excavation or disturbance of the land. Based on the information contained within the Statement of Environmental Effects, I accept that the subject site has been historically used for residential purposes and there is no evidence of any potentially contaminating activities. I subsequently accept that the site is suitable for the intended, continued, residential and private recreation use.
The site is within the Central Coast Plateau Area as detailed in Chapter 3 of State Environmental Planning Policy (Primary Production) 2021 (SEPP Primary Production). Due to its limited scale and footprint, the proposal has no impact on primary production and as such is considered to be consistent with the objectives of SEPP Primary Production.
The development application is accompanied by a BASIX certificate that relates to the development as amended, pursuant to s 27 of the Environmental Planning and Assessment Regulation 2021. Compliance with, and fulfilment of the commitments within this certificate, is further required through conditions of consent.
Part of the land is identified as being prone to bushfire as shown on the Bushfire Prone Land map established under s 10.3 of the EPA Act. Consistent with the requirements of s 4.14 of the EPA Act, the development application is accompanied by a Bushfire Assessment which includes a certificate by a qualified consultant which states that the development conforms with the relevant specifications and requires of Planning for Bushfire Protection. The annexed conditions includes the requirement for compliance with this certificate and the nominated Asset Protection Zones and construction standards.
Central Coast Development Control Plan 2022 (DCP 2022) applies to the site. The statement of environmental impacts filed with the application details the compliance of the proposed development with DCP 2022. In determining the development application, I have considered the provisions of the development control plan s 4.15(1) of the EPA Act.

The disputed conditions of consent.

Having determined that the Court has power to grant development consent, as the preconditions to consent have been met, it is necessary to determine the disputed conditions that will apply to the consent.

Proposed Condition 1.6 & 2.7: should the use of the site be restricted to an individual and their immediate family?

The Respondent proposes the following conditions. The underlined portion of the conditions is opposed by the Applicant: 1.6 For the avoidance of doubt, nothing in this consent alters the use of the private recreation facility, approved pursuant to Development Consent 898/96. However, in the event that the property is owned by a company, trust or group of individuals, the use of the private recreation facility is limited to one individual (and their immediate family). … 2.7 The Plan of Management referenced in Condition 1.2 is to be amended, as follows: … e) The inclusion of an additional paragraph to read as follows: In the event that the property is owned by a company, trust or group of individuals, the use of the private recreation facility is limited to one individual (and their immediate family).

Conditions proposed to manage the ongoing use of the land.

The proposed conditions of consent for the development application include the reproduction of conditions 8, 9, 10 and 15 from the existing consent (see [12]). This is agreed between the parties.
However, the Applicant resists the imposition of the following conditions on the development consent for the current development application: PARAMETERS OF THIS CONSENT 1.1 Development must be carried out in accordance with the following approved plans and supporting documents, except where conditions of this consent expressly require otherwise: … Document Title Version No. Prepared by Dated Plan of Management 3 July 2024

… PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE … 2.7 The Plan of Management referenced in Condition 1.1 is to be amended as follows: a) to include a reference to Condition 8 of Development Consent 898/96, which reads as follows: 8. The private recreation facility is to be strictly in accordance with the details contained within the approved Statement of Environmental Effects (Revision B) reference No 54h104A dated October 1996 except as modified by conditions of consent. b) To include the relevant provisions from the approved Statement of Environmental Effects (Revision B reference No 54h104A dated October 1996), including: i. The road is only to be used intermittently, possibly up to 2-3 days per week and operation would only occur for a period of up to 2-3 hours per day. Operation for up to two hours per day would generally occur. ii. All vehicles are to be fully road registerable and comply with Australian Design Rules. iii. Unregistered vehicles are not allowed to use the road. iv. Racing of vehicles is not allowed, and overtaking is to be strictly controlled. c) Deletion of paragraphs 2.4 and 2.5. d) Deletion of reference to "guests" in paragraphs 2.2 and 2.3. … ONGOING … 6.5 The use of the premises shall operate in accordance with the Plan of Management, referenced in Condition 1.1, as updated in accordance with Condition 2.7 at all times.

In response to the Respondent's conditions the Applicant proposes the following conditions be imposed on the consent, in lieu of the preceding: 6.5 The use of the new storage shed and shade structure is to be limited to private use by the owner of the land for the purposes of parking vehicles and/ or machinery and other equipment associated with the land maintenance of the site and is not be used in conjunction with any commercial activity. 6.6 The existing carport is to be limited to private use by the owner of the land for the purposes of the parking of vehicles. 6.7 The use of the observation tower is for the purpose of viewing the road and property and is not to be used for gatherings. The capacity of this structure is limited to 6 people. 6.8 The observation tower shall not have any amplified equipment, speakers or lighting shall be erected around the private recreation facility, being the road. 6.9 No permanent amplified equipment, speakers or lighting shall be erected around the private recreation facility, being the road. 6.10 No advertising is to occur on the property including the erection of advertising structures.

Submissions

The Respondent's contentions argue that the amended development application seeks to facilitate the use of the site in a manner that is inconsistent with the existing consent. Specifically, the Respondent argues that the existing consent limits, among other things, the use of the private recreation facility to private use by the owner of the land. Ms Rose argues that as the owner of the land is currently a company, that use is intensified. Ms Rose submits that the imposition of proposed condition 1.6 seeks to address that potential for intensification of impacts arising from ownership of the land by a company.
Ms Rose submits that it is appropriate, and within power, for conditions to be imposed on the use of the private recreation facility in circumstances where the proposed structures in the current development application (the observation tower, the outdoor shade structure and the increased storage provided) are directed to and associated with that use.
Ms Rose submits that there are relevant likely impacts arising from the additional people attending the site to view the cars that will be utilising the track. She argues that the power at 4.17(1) of the EPA Act is met the proposed conditions relate to the development and its likely impacts. She reasons that, notwithstanding, the limit of four vehicles on the track and the provision of additional facilities increases the capacity of the site to accommodate people. She argues that the development application will expand the use of the private recreation facility given the increase in support facilities. Ms Rose identifies those impacts as being an increase in the use of the access to the site, increased demand on the on-site sewer management system (OSSM) and an increase in noise generation.
In particular Ms Rose notes that the Applicants assessment of the capacity of the OSSM, which forms part of the development application, concludes that the capacity of the system is as follows: Design daily wastewater flow allowance (q) 600L/day - 3-bedroom dwelling (Water NSW, 2019) 240L/day - Assume an average of 4 guests at 60L/day (Standards Australia. 2012) Total = 840L/day (Exhibit B)
Ms Rose concludes that there is a risk that the capacity of the OSSM may be exceeded. She maintains this concern, notwithstanding that the Plan of Management (POM) which forms part of the development application includes the following statement: 2.5 To the extent that not-for-profit events exceed the capacity of the OSSM, portable toilets will be used in accordance with the consent. (Exhibit B)
She argues the capacity of the OSSM remains are concerns as the planning expert's report agree that the preceding provision of the POM should be deleted. That agreement is reflected in the agreed conditions. The relevant expert evidence is as follows: "The experts agree that the concerns regarding the intensification of use can be resolved by removing reference to use of the private road for not for profit purposes by the owner and invited participants, including training for first responders and charitable and benevolent purposes under the Plan of Management, and in particular paragraphs 2.4 and 2.5 should be removed from the Plan of Management." (Exhibit 3)
In conclusion Ms Rose submits that the conditions sought to be imposed have a planning purpose as the development application before the Court will change the use of the land when it is construed in the context of the existing consent. Further, the impacts raised by the Respondent do not need to be established by evidence as they are inherent to the structures themselves when they are used in conjunction with the private recreation facility. For example, the elevated tower and the large terrace both have a capacity to accommodate significant observers which are likely to generate adverse impacts on the OSSM and the amenity of neighbours (noise). On the preceding basis Ms Rose argues that the Respondent's proposed conditions extracted at [16] should be imposed by the Court.
In the alternative, Mr Ireland for the Applicant makes submission that broadly argues that the imposition of the conditions sought by the Respondent are not within the bounds of s 4.17 of the EPA Act and are unreasonable in the terms outlined in the decision of the Court in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury). His submissions are summarised in the following.
Firstly, that there is no matter referred to in s 4.17(1) to authorises the imposition of the proposed restriction in condition 2.7 as the development application before the Court does not "relate to" the private recreation facility. He argues that the use was approved by the existing consent and regulated by those conditions. He disagrees with Ms Rose's submission that the works for which consent is sought under the current development application involve the intensification of the use of the private recreation facility. He submits that the restriction is outside the scope of s 4.17(1)(a) which authorises the imposition of a condition of consent only where they relate to any matter "referred to in section 4.15(1) of relevance to the development the subject of the consent". He argues that argues the works for which consent is sought are for physical structures that are ancillary to the approved residential and private recreation use of the site, noting the use of the private recreation facility is not sought to be altered by the current development application. Therefore, any restriction sought to be imposed on that use is not relevant to the development for which consent is sought. Further, he notes that the Applicant has agreed to the imposition of conditions on the current development application that mandate no commercial activity on the land.
Secondly, Mr Ireland argues that seeking to impose additional restrictions arising from the change of ownership of the land is unreasonable. He submits that the second sentence in proposed condition 1.6 and condition 2.7(e), that seeks to restrict the use of the land to an individual owner and their immediate family, is beyond power. He argues this on two grounds. Firstly, similar to the preceding, he argues that such a restriction is not related to the development for which consent is sought. Secondly, that the condition is unreasonable on the following bases. Citing Newbury: 1. the condition is not imposed for a planning purpose and does not relate to the development for which consent is sought. 2. the condition is manifestly unreasonable as the current DA seeks new and additional works. It does not seek to affect the existing consent. 3. The Respondent's concerns about the impacts arising from the proposed development are not supported by any evidence in the proceedings. In fact, Mr Ireland notes that the Respondent accepts that there is no pattern of complaints arising from the site and that the current use has not had any adverse impacts. Further, there is no analysis or evidence of the type asserted impacts arising from the works that are the subject of the development application. He concludes that there is no basis for the Court to impose the conditions proposed by the Council. 4. Applying conditions directed to the personal characteristics of the owner of the land is inconsistent with the reasoning and the decision of the Court in Gray v Sutherland Shire Council [2016] NSWLEC 64. That decision held that to do contravenes the first limb of Newbury unless there is a separate planning purpose for such a condition (such as a provision in a planning instrument). Applying Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308 at [9], Mr Ireland argues it is relevant to consider how remote or indirect the relationship is between the development and the likely impacts on the environment. In this matter Mr Ireland submits there is no expert evidence before the Court that establishes a likely impact that would support the Respondent's request to further restrict the use approved in the existing consent.
Finally, Mr Ireland emphasises that the Applicant is seeking consent only for alternations and additions to the dwelling and the construction of external structures ancillary to the residential use of the land. The development application does not "cut across" the existing consent, rather that approval remains intact. The development for which consent is sought is not the use of the land for private recreation (the track) and therefore there is no power for the Respondent to impose conditions which seek to restrict that use. The circumstance of the type of ownership of the land does not provide a basis for such a condition, and factually the land was owned by a company at the time of the grant of the existing consent.

Findings

The Court's power to impose conditions on development consent in certain circumstances is contained at s 4.17(1) of the EPA Act. That provision states: (1) Conditions - generally A condition of development consent may be imposed if - (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under the following - (i) section 4.16(3) or (5), (ii) subsections (5)-(9) of this section, (iii) section 7.11 or 7.12, (iv) Division 7.1, Subdivision 4, (v) section 7.32.
The three Newbury principles relied on by the Applicant can be simplified as being that the power to impose conditions is subject to certain limitations, being:

The condition must have a planning purpose,
The condition must relate to the permitted development to which it is annexed, and
The condition is so clearly unreasonable that no reasonable planning authority could have imposed it.

Proposed Condition 1.6 & 2.7(e): should the use of the site be restricted to an individual and their immediate family?

For the reasons that follow I find that it is not appropriate to impose the conditions sought by the Respondent in their Condition 1.6 and 2.7(e), namely that the use of the approved private recreation facility is restricted to one individual or their immediate family. My reasoning follows: 1. I accept the submission of Mr Ireland at [39] that the current development application does not seek to amend or 'cut across' the existing consent and that the existing use of the private recreation facility on the site is unchanged by it: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 at [233]. 2. Further, I accept the submission of Mr Ireland that the proposed condition does not sufficiently relate to the development for which consent is sought in this development application. For this reason, I find the conditions do not fall within s 4.17(1) of the EPA Act. 3. The change of ownership of the land is a fact that is not linked to the development application. 4. The evidence in the Respondent's bundle for these proceedings is that at the time of the grant of the existing consent the land was owned by a company (Castlecray Pty Ltd).
For the preceding reasons these conditions do not form part of the conditions of consent at Annexure A.

Conditions proposed to manage the ongoing use of the land.

The development for which consent is sought in the development application is framed in the development application plans, the application form and the Statement of Environmental Effects: s 24 EPA Regulation. The terms of the development application do not seek to alter the use of the land for private recreation. A condition of consent needs to relate to the development for which consent is sought. I find that the conditions proposed by the Respondent at [27] do not to relate to the development for which consent is sought in these proceedings.
Further, for the reasons that follow I find that the conditions proposed by the Applicant are sufficient to address, and acceptably manage, any likely impacts of the proposed development the subject of this development application. 1. The conditions proposed by the Respondent are disproportionately restrictive when consideration is given to the scope of the development for which consent is sought. For example, the Respondent seeks apply condition 2.7 to amend the plan of management for three purposes. Firstly, to incorporate details which formed part of the Statement of Environmental Effects of the existing consent (at condition 2.7 sub cll (a), (b)), and secondly to remove any reference to use of the private recreation facility for charity purposes (at condition 2.7 sub cl (c)) and finally to delete a reference to use the use of existing ancillary residential structures by 'guests' (condition 2.7 at sub cl (d)). 2. I am satisfied that the Respondents condition 2.7 at sub cll (a) and (b) is adequately addressed by agreed condition 1.6, namely that nothing in the proposed consent will alter the use of the private recreation facility, approved pursuant to Development Consent 898/96. The existing consent contains a number of restrictions which are not sought to be amended by the current development application (including to be used in accordance with the details in the Statement of Environmental Effects). As such these existing conditions of consent will continue to apply. Further, I decline to impose the restrictions proposed in the Respondents condition 2.7 at sub cll (a) and (b) as they seek to control components of the existing consent which I am satisfied are not part of the current development application. 3. The second component, condition 2.7 sub cl (c) is agreed by the Applicant and supported by the agreed evidence of the planning experts in the proceedings. I accept that such a condition is consistent with the existing consent which includes this restriction at condition 9, which states: "The use of the private road is to be limited to private use by the owner of the land and is not to be used in conjunction with any commercial activity". 1. The annexed conditions include a condition that the private recreation facility may not be used for not-for-profit events. 2. I decline to impose the third component of condition 2.7 proposed by the Respondent at sub cl (d). If this condition was to be imposed and strictly interpreted, it would have the effect of not permitting a guest to park their vehicle in the existing carport that was approved under Consent 898/96. Such a condition, in my view, is unreasonable for three reasons. When the development the subject of the development application is considered, condition 2.7(d) does not relation to a matter in s 4.15(1) that is of relevance. Further it does not fall within the remaining sub sections of cl 4.17 of the EPA Act which govern the imposition of conditions. Secondly, in my view it is unreasonable in the Newbury sense as it does not fairly and reasonably relate to the development proposed in this application. I find that it is an onerous requirement to restrict the use of the existing residential structures in such a manner when the development the subject of the development application does not seek to intensify the use of the site beyond the scope of the private recreation facility for which the site has existing approval. The proposed condition of the Applicant's at 6.6 sufficiently limits the use of the carpark to private use by the owner of the land.
As a result of the above findings, I impose the conditions nominated by the Applicant, listed at [28] with the addition of the following condition: "The use of the private road is to be limited to private use by the owner of the land and is not to be used in conjunction with any commercial activity or for a not for profit event".
I am satisfied I have the power to impose these conditions pursuant to s 4.17(1) of the EPA Act. I am persuaded that these conditions can be imposed as they relate to the likely impact and have a planning purpose as they seek to manage any likely impacts of the development for which consent is sought in this development application.

Orders

The Court orders that: 1. The appeal is upheld. 2. Development application DA/3519/2022 for alterations and additions to the existing dwelling, construction of swimming pool, observation tower storage shed shade structure and landscape works at 96 Barnes Road, Kulnura (Lots 2,3 and 4 in DP 833467) is approved, subject to the conditions of consent in Annexure A.

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: 24 September 2024

At a glance

Court

Decision date

Source

Judgment (16 paragraphs)

Parties

Cases Cited (4)