Adrem Nominees Pty Limited v Auburn City Council [2012] NSWLEC 1043 | Case summary

The evidence 10A detailed joint planning and traffic report was submitted by:

Mr G Francis; Manager Development Assessments at council
Mr B Sudarson; Development and Traffic Engineer at council
Mr M Brown; Consulting planner for applicant
Mr M Bridgman; Traffic consultant for applicant. 11As previously noted, most of the original issues raised were agreed by the parties following the provision of additional information and I summarise them subsequently. 12The main contested issues concern the creation of the easement for foreshore access along the northern boundary and the material placement condition. Easement 13This issue concerns council's requirement for an easement for public access to be created over a strip of land approximately 5m wide along the northern boundary within the riparian zone adjacent to Duck River. The primary basis for this requirement arises from the ALEP, (which was adopted after exhibition and came into force 29 October 2010). Under the ALEP the site is subject to the s6.4 Foreshore Building Line (FBL) provisions. Relevantly, 6.4(4) states that development consent must not be granted under subclause (3) unless the consent authority is satisfied that: (a) ... (e) opportunities to provide continuous public access along the foreshore and to the waterway will not be compromised, and ... 14Council's policy for realising the public access opportunities is contained in the Auburn DCP 10 (which was adopted after concurrent exhibition with the LEP on 29 October 2010.). Associated controls are contained in the Lower Duck River - Riparian Management Plan (RMP). In June 2003 the council resolved to adopt the draft RMP and invited landowners, government authorities and stakeholders to comment on the plan. Whilst no formal resolution of the RMP has occurred, apparently it is currently under review. 15The DCP contains Section 3 - Streetscape and urban character , which has the following: Objectives a To ensure all new development is compatible with the existing and intended future character of the locality in which it is located. b To promote industrial development which is both functional and attractive in the context of its local environment through appropriate design... 16Section 3.3 Side and rear setbacks provides: Performance criteria P2 New development facilitates foreshore access to Duck River... Development controls D3 Development adjacent to Duck River shall provide a 5m easement for public access within the foreshore building line area along Duck River. This easement shall be established under a Section 88B instrument and shall be registered with the NSW Land and Property Management Authority. 17More detailed planning and management controls for the riparian zone are contained within the ' Lower Duck River - Riparian Management Plan' (RMP), which states that: A key element of the riparian zone is natural vegetation which provides bank stability and natural filtration, in addition to its biodiversity role. The conservation of existing indigenous vegetation and revegetation of degraded areas are key objectives for those authorities involved in waterways management. 18The RMP also provides that: 1.2 Who is responsible for the Riparian Zone Private land holdings along the Lower Duck River generally extend to the "Mean High Water Mark" (as defined on land title), and thus incorporate the river bank and vegetation adjoining the watercourse. As such land holders are responsible for the maintenance of the riparian zone under the requirements Rivers and Foreshores Improvement Act, which for the Duck River is administered by the Department of Land & Water Conservation. For any proposed development within 40 metres of the top of the river bank the preparation of a Vegetation Management Plan outlining the proposed protection, enhancement and ongoing management of the Riparian zone and receipt of a Section 3A Permit is required. 1.3 The Lower Duck River Riparian Management Plan Since the earliest days of European settlement, Duck River has been a focus for a range of human activities from agriculture to industry. Most recently the flood prone flats of the lower Duck River became the site of landfill activities which provided the flatter elevated riverside lands on which todays industrial and commercial activities are located. Many of these activities have had ongoing impacts on water quality, the river banks, and on foreshore vegetation which land filling has in most cases permanently altered. The Riparian Management Plan prepared by Auburn Council for the foreshores north of the Clyde Weir, aims to define a coordinated approach to the long term improvement of the riparian zone of the Lower Duck River. A focus upon the provision of an adequate development setback to the foreshores that enables a "functional" riparian zone to be rehabilitated and maintained is developed. Within this framework, strategies for revegetation and vegetation management are provided. The Plan also addresses the integration of public foreshore access to the foreshores, as identified by a range of strategic documents as an important potential value of the river corridor (emphasis added). 19The objectives of the RMP are: The Lower Duck River Riparian Management Plan presents the case for an "open space" setback to the river frontage that addresses the multiple objectives of: enhanced riparian zone vegetation quality; enhanced bank stability, potential for enhanced visual and recreational amenity for riverfront properties. foreshore public access ( emphasis added) . This aims to fulfil the requirements of the River and Foreshores Act for protection and enhancement of the riparian zone, whilst also integrating the provision of regional public access along the Duck River as identified in a range of State Government and authority strategic and policy documents. 20The associated riparian management controls are stated as follows: 2.3 The Lower Duck River Masterplan Principles that reflect the key visions of the Lower Duck River Riparian Masterplan Plan and provide a reference for a coordinated masterplan include:

Riparian vegetation Work within the constraints of previous site filling to provide ongoing enhancement of natural vegetation of corridor
Access Facilitate sustainable foreshore access linking to strategic open space connections. Incorporate staging where required to optimise long term quality of access and related landscape / visual experience
Riverfront development amenity Integrate the enhancement of riverfront amenity for private landholders as a complimentary and inter related goal for improvement works, in particular in redevelopment of sites
Security Deter vandalism and theft from private developments through a coordinated approach to fencing and improved levels of passive surveillance
Public safety Minimise risk to accessway users through the provision of adequate sight lines along pathways and the provision of fencing to restrict public access to unsafe areas (such as steep river banks). 21Furthermore, the RMP contains the following reference to improvement works: 2.3 The Lower Duck River Masterplan 17 Passive recreation area The development setback in this area provides potential for riparian zone improvement works including revegetation maintained grass passive recreation area for use by employees of the industrial developments and to maintain sight lines of access path users shared pathway provision to define extent of maintained grass area 18 Access path link Proposed riparian zone improvements including revegetation and the continuation of the shared pathway with a maintained grass curtilage for sight lines / security. 22According to Mr Francis, the recent LEP 2010 now contains more specific opportunities for the continuous public access strip along Duck River. He says that the condition requiring the creation of the easement is in accordance with the ALEP and ADCP and that this type of condition has been consistently imposed on other similar developments along Duck River. 23In support of this proposition, he presented a map - " Existing Duck River easements for Public Access ", which shows the significant extent of the easement creation. It also shows the connection of the 5m wide easement strip with council controlled community land. Following Mr Francis' evidence, it is apparent that most of the adjoining and other adjacent and larger developments have created the easement in accordance with the ADCP. 24Whilst the applicant is apparently prepared to consider other arrangements for making the 5m strip of land available, Mr Briggs submits that there is little, if any, particular relevance and benefit to the subject development because any increased public access is likely reduce security and there would not be any material amenity benefit arising.

Conclusion 25Having considered evidence, the submissions and undertaken a view, I am satisfied that a considerable amount of strategic planning has been undertaken for the environmental management of the Duck River riparian zone and this is reflected in the relevant LEP, DCP and associated controls. 26Accordingly, I think that significant weight should be given to the ALEP and ADCP provisions, which specifically require the easement creation. In my assessment, less weight would be given to the RMP concerning the various implementation and management initiatives to achieve the desired outcomes. It seems to me that it would have the status of a policy that council has consistently applied. 27In my assessment, the LEP identifies the extent of the FBL on the subject property and requires consideration to the provision of access to the foreshore area. As this access is not currently available, I think it reasonable that it be provided as part of the development consent in accordance with the provisions of s3.3 of the DCP that require the easement creation in new development such as the subject application. 28In this regard, I have considered Mr Francis' evidence that this requirement has been consistently applied to other similar developments along Duck River. It is apparent from his reference to the consents for adjoining and neighbouring developments, which are shown on the 'Attachment 1 Existing Duck River easements for Public Access' plan that the acceptance of the condition by developers is significant. 29Furthermore, this plan shows the connection of the 5m strip with various council controlled lands so as to achieve the continuous foreshore access objective. 30Apart from this, the developer is responsible for the area of the riparian zone and this requires the provision of various landscaping work in the subject consent. In the circumstances it seems to me that the staged implementation of the RMP envisages long-term improvements to integrate the public access objectives with upgraded landscaping. 31Accordingly, the master plan indicates that the coordinated works will enhance the riverfront amenity, security and public safety. Based on my understanding of the anticipated outcomes from this set of controls, I consider the subject property is directly affected and the controls are relevant. Furthermore, my assessment is that the works, some of which will be paid for by council will benefit the subject property in terms of environmental amenity, security and public safety. It appears from the submissions that appropriate fencing can be erected to achieve this. I therefore do not accept Mr Briggs submissions that there is no relevance or benefit to the subject land. 32In reaching this position I have considered the references to other cases as follows. In the matter of Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65 Craig J dealt with the question of the validity of a condition requiring the condition requiring the creation of a right-of-way. 16 Section 80A(1) of the EPA Act relevantly provides as follows: " 80A imposition of conditions (1) Conditions - generally A condition of development consent may be imposed if: (a) it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent ... " (emphasis added) 17 Properly analysed, it seems to me that s 80A(1)(a) requires two matters to be addressed. The first is whether the condition relates to a matter referred to in s 79C(1) and the second requires a determination as to whether such matter is relevant to the particular development for which development consent has been or is proposed to be granted. Whilst I eschew a 'fine-tooth-comb' approach to the reasons for decision of the commissioner (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291), I am unable to discern from those reasons that these questions have been addressed by reference to the subsection. Nowhere is the "matter referred to in s 79C(1) of relevance to the development" identified. 33Following this authority, my assessment is on the basis that the s79C matters for consideration includes the aforementioned LEP and DCP provisions and this distinguishes the subject case from the facts in Cavasinni . 34Submissions were also made in respect of Botany Bay Council v Saab Corporation Pty Ltd [2011] NSWCA 308, which dealt with the validity of conditions and stated: 9 First, the validity of a condition imposed on a development approval under the EP&A Act falls to be considered within the terms of s 80A of the Act. (Other provisions may be relevant in specific circumstances: see, eg, s 83D in respect of staged developments.) Section 80A empowers the consent authority to impose a condition if "it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent": s 80A(1)(a). Section 79C(1) identifies general matters for consideration by the consent authority in determining a development application. Those matters include "the likely impacts of that development ... on both the natural and built environments and social and economic impacts in the locality": s 79C(1)(b). These will obviously involve matters of evaluative judgment for the consent authority. In respect of any specific condition, there may be a question as to how distant, remote or indirect the relationship may be between that development and the likely impacts on the environment. The limits of the authority's power will be determined, as explained by Gummow and Hayne JJ in Temwood at [93], referring to the judgment of Walsh J in Allen Commercial Constructions , in the following manner: "His Honour had pointed out that a power to attach conditions to development consents was to be understood as a power to impose conditions reasonably capable of being regarded as related to the purpose for which the functions of the responsible authority were being exercised; that purpose was to be ascertained from a consideration of the applicable legislation and town planning instruments rather than from 'some preconceived general notion of what constitutes planning'." 35As mentioned, I am satisfied the outcome of achieving opportunities for foreshore access is included in the s79C considerations and the provision of the easement over the subject property to connect with other similar easements whereby the council will subsequently provide complimentary funds for the implementation of the necessary works represents a reasonable balance between the competing private and public benefits. 36Insofar as reference was made to some other cases, I think the authority described in the aforementioned cases is most relevant in the subject matter. This results in my conclusion that the condition requiring the easement creation is valid and reasonable. Material placement - Condition 30 37Council's draft condition 30 provides that: The following items must not be placed on the footpath, roadway or nature strip at any time: a) Building materials, sand, waste materials or construction equipment; b) Bulk bins/waste skips/containers; or c) Other items that may cause a hazard to pedestrians. Reason :- to ensure the public is not inconvenienced, placed in danger and to prevent harm to the environment occurring. 38However the applicant prefers a less restrictive condition, which allows temporary placement of various building materials on the footpath/nature strip on parts of Short Street. 39Having considered the competing submissions, I consider imposition of the council's standard condition is reasonable in the circumstances because:

The subject development encompasses a relatively large irregular - shaped allotment, which has several access points. In these circumstances it seems that careful construction planning should mostly avoid the need for material placement anywhere within the road reserve.
The proposed placement in Short Street would be in proximity to one of the relatively busy entry points to Bunnings and any compromised traffic conditions should be avoided.
I do not consider any compelling reasons were submitted to vary council's standard practice to address public safety concerns. 40Notwithstanding this, I understand that the applicant can apply for a 'Road Occupancy Licence/Permit', whereby the particular circumstances of temporary use of the road area would be considered and determined. I consider this approach best satisfies the public interest considerations. 41Apart from this, I note that detailed expert reports were submitted and conferencing undertaken to deal with the original issues of site contamination, flooding and s94 contributions. This has resulted in agreed conditions to cover these matters and I rely on those agreements as satisfactory.

Adrem Nominees Pty Limited v Auburn City Council

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Judgment (9 paragraphs)

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