Andrews v Botany Bay City Council

DATES OF HEARING: 20 September 2007 and 11 October 2007

APPLICANT Mr P. Rigg, solicitor of Deacons LEGAL REPRESENTATIVES:

RESPONDENT Mr T. Hale, barrister Instructed by Houston Dearn O'Connor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10622 of 2007 George Andrews v Botany Bay City Council

JUDGMENT Introduction 1 On 14 April 2004 Development Consent No 2003/598 was issued by the Botany Bay City Council ("the council" and "the consent") for the demolition of existing industrial buildings and the construction of a mixed residential and commercial development on land bounded by Coward Street, O'Riordan Street and John Street, Mascot (Lot 123 DP 1103399) ("the site"). The proposed building contains one commercial/retail space and 95 dwellings over seven storeys plus three basements that provide parking for 192 vehicles ("the development"). The development has now been substantially completed in accordance with the consent.

2 The consent has been modified on several occasions, including on 12 October 2006 when a consolidated consent incorporating previously approved modifications was issued.

3 On 3 October 2006 the applicant lodged an application with the council under s 96(1A) of the Environmental Planning and Assessment Act 1979 ("the Act") seeking to modify this consent by deleting condition 38 (condition 38 was referred to as condition 39 in the original consent) and condition 60. Condition 60 of the consent requires the applicant to enter into an agreement for the lodgement of a landscaping bond. This condition is no longer pressed given the Court's approach to such bonds (see Charalambous v Ku-ring-gai Council [2007] NSWLEC 510).

4 This judgement concludes that the appeal be upheld and condition 60 is to be deleted from the consent. Also, on its merits, condition 38 is to be amended in accordance with the alternative condition proffered by the applicant. Planning controls 5 The site is included in the 10(a) Mixed Uses - Commercial/Residential Zone under Botany Local Environmental Plan 1995 ("the LEP") and in this zone the approved development continues to be permissible with development consent.

6 Also applicable to the site is the Mascot Station Precinct Development Control Plan that came into effect on 22 July 2002 ("the DCP") and the Mascot Station Precinct Section 94 Contributions Plan 2005 - 2010 ("the Contributions Plan").

7 Relevantly the DCP identifies the Mascot Station Precinct, as an important gateway to the city of Botany Bay and seeks to promote high-quality urban design, including urban facilities within the public domain, these being important aspects of the vision and principles for this precinct. High-quality public spaces, including streets and parks are sought to be provided. Under the DCP the site is included in Sub-precinct 1 - O'Riordan Street within the Mascot Station precinct.

8 In dealing with urban facilities the DCP identifies as being important the objective of connectivity of streets and the open space network. Of particular relevance to this matter is the requirement that street lighting be co-ordinated and standardised throughout the precinct and all aboveground power lines and other similar services, telephone cables etc are required to be located below ground. Section 6.9 of the DCP deals with the provision of services and in particular control C98 deals with underground cabling requiring that: At the full cost of the developer, all service cables in the street, adjacent to and within the confines of any development site within the Mascot Station Precinct, are required to be placed underground.

9 The rationale for this requirement is explained in the DCP as: Overhead cabling has the potential to detract from the high-quality appearance of new development within the precinct, accordingly, all service cables are required to be located underground both within and adjacent to each redevelopment site.

10 The Contributions Plan, whilst setting contributions rates for open space, road and footpath works, does not make provision for the undergrounding of existing overhead service cables.

The condition sought to be amended 11 The original development application was accompanied by a statement of environmental effects that by reference to the proposed development's compliance with applicable planning controls that enables the inference to be drawn as to the applicant's intention to provide for the undergrounding of overhead cables. This was noted in the council officer's report that together with the provisions of the DCP led to the inclusion in the consent of condition 38.

12 Condition 38 ("the existing condition") of the consent provides that: Existing above-ground power cables in the street adjoining the site shall be replaced at the applicant's expense by underground cables to the standards of Energy Australia. The applicant shall be responsible for the replacement of existing street lights with new light standards in accordance with Council's Guidelines and the cost of power and additional maintenance to such lights. 13 During the hearing I made a number of observations about condition 38 including that it is limited to overhead power cables and not to telecommunications cables and requires the applicant to pay for the ongoing maintenance and power supply of a public utility. Following discussions between the parties the respondent has now proffered an alternative condition 38 ("the alternative condition") as follows:

14 It is a condition of consent that: (a) Existing streetlights located within the footpath reserve along the entire three frontages of the site shall be replaced with new streetlights in accordance with the requirements of Australian/New Zealand Standard As/NZS 1158-1997 'Public Lighting Code'; and (b) The existing overhead service cables in the street adjacent to and within the bounds of the public places that adjoin the development site shall be placed underground at the cost of the applicant in the following manner: (i) Service cables including power lines, telecommunication cables and the like a long O'Riordan Street frontage to be underground starting from the existing power pole 'A' to the existing power pole 'C'. Refer to site plan drawing No. 04010 - CC - 01

(ii) Service cables including power lines, telecommunication cables and the like along John Street frontage to be underground starting from the existing power pole 'D' to the existing power pole 'E'. Refer to site plan drawing No. 04010 - CC - 01.

15 Importantly, it is to be noted that the alternative condition now provides for the undergrounding of all overhead cables including power and telecommunications cables.

16 Whilst it is possible that the existing condition was formulated in error, taking into consideration the then (and now) applicable planning controls, I can only assume for the purposes of this case, given that the condition is abundantly clear, that it means what it says and that there is no present requirement for the applicant to place underground the overhead telecommunications cables.

17 The applicant nevertheless now accepts alternative conditions 38(a) (the provision of streetlights along all three frontages) and 38(b)(ii) (the undergrounding of certain overhead cables in John Street) but objects to the alternative condition 38(b)(i) (the undergrounding of all overhead cables in O'Riordan Street).

18 In lieu of condition 38(b)(i), the applicant offers the following conditions to be incorporated into council's alternative condition 38: (c) Along the O'Riordan Street frontage of the site the applicant shall provide below ground conduits to the requirements of the relevant network operator and telecommunications carriers to be available for use for existing service cables. (d) Notwithstanding condition 1 of this consent, this condition details the extent of the applicant's obligations under Control C98 of the Mascot Station Precinct Development Control Plan.

19 The suggested condition 38(d) is to be incorporated into the consent so as to ensure that there is no confusion arising from condition 1 of the consent that refers to the original plans and associated documentation.

The residual issue 20 In essence the applicant now accepts the council's requirements in relation to the provision of new streetlights and the undergrounding of certain cables in the John Street. However in relation to O'Riordan Street the applicant is prepared to provide all necessary underground conduits, but not the actual underground installation of the cables, this now being the remaining issue in the case.

The evidence 21 A joint experts' conference report was prepared by the two town planning experts - Mr A Bas for the council and Mr L. Fletcher for the applicant ("the experts"). In their report they address the matters in contention at length.

22 There was no disagreement between them as to the applicability and effect of the DCP in so far as, in the interests of streetscape and amenity, that existing overhead service cables should be removed and placed underground.

23 The experts agreed that the undergrounding of service cables in accordance with the DCP has been consistently required by the council in conditions of consent for development applications in the Mascot Station Precinct. They also agreed that the primary beneficiary of underground cabling is the general public through aesthetic improvements to the public domain as well as potential savings through road safety improvements and that any private benefit is essentially limited to improved aesthetics in the outlook from the apartments directly affected. The desirability of undergrounding the cables is not in dispute rather it is a question of how this work should be funded.

24 According to Mr Fletcher the significant cost ($573,461 based on actual quotes for the work from Enerserve and Optus) for the undergrounding of the cables is unreasonable in circumstances where the development does not generate a need for underground cabling or new street lighting. Moreover it is onerous for the applicant to pay for these matters on three street frontages in addition to the agreed dedication of land for road widening although he acknowledged the bonus floor space ratio that accrued as a result of this dedication. The burden for this applicant is disproportionate by comparison with that of adjacent sites. In his opinion these enhanced public infrastructure services should be funded on an equitable basis pursuant to s 94 of the Act, (i.e. under the contributions plan) taking into account the benefits that will accrue to the public and the site opposite.

25 Mr Bas considered that the undergrounding requirement is reasonable taking into account that the siting of the development takes into account that the overhead cables will be placed underground thus providing a benefit to it. Were the overhead cables to be retained the proposed building would have been required to be setback further from its frontages. The undergrounding of the cables achieves a high-quality Street presentation for the building and improves the amenity outlook and safety for its residents. Requiring the applicant to be responsible for all of the works as provided for in the condition is reasonable considering that other developments in the locality have complied with the requirements of the DCP in this regard and as a consequence each development receives reciprocal benefits from each other's undergrounding of cables.

26 Mr Bas applied the three-part test for the validity of a condition of development consent (as identified in Newbury District Council v Secretary of State for the Environment [1981] AC 578 ("the Newbury tests") and as subsequently applied in Temwood Holdings Pty Ltd v Western Australian Planning Commission [2004] HCA 63) ("Temwood")). In essence those tests require that for a condition of consent to be valid it must be for a planning purpose and must reasonably and fairly relate to the development permitted. It must not be so unreasonable that no reasonable planning authority could have imposed it.

27 There was no dispute between the experts that the now proposed condition was for a planning purpose and has a relationship to the subject development. However Mr Fletcher did not agree with Mr Bas that this relationship met the reasonable and fairness test. This is because the applicant is required to carry the entire burden of the undergrounding of the cables in circumstances where the development doesn't generate a need for this and the public generally gains the greatest benefit. For similar reasons he also disagreed with Mr Bas' contention that, in relation to the third test, the proposed condition is not unreasonable taking into account the importance of the streetscape as identified in the DCP.

Submissions 28 In his submissions on behalf of the applicant, Mr Rigg emphasised that this is, subject to the provisions of s 96 of the Act and s 39(3) of the Land and Environment Court Act 1979, a hearing de novo and there is no need to consider whether or not the existing condition is valid. Instead the question to be answered is whether the applicant's proposed condition or the council's proposed condition is reasonable. He submitted that whilst it is possible to impose a condition requiring the undergrounding of existing overhead telecommunications cables (in addition to overhead electricity cables), by including this as a modification to condition 38 as now sought by the council, this needs to be considered on its merits under s 79C(1) of the Act. Also, there is no legal impediment to the deletion of the original condition and the imposition of another condition relating to the same matter. (See1643 Pittwater Road Pty Ltd & Ors v Pittwater Council [2004] NSWLEC 685 at 51)

29 Notwithstanding the provisions of the DCP, to impose the total responsibility for the undergrounding of all overhead cables in O'Riordan Street on the applicant is inappropriate and not supported on its merits. The applicant accepts that benefits will accrue to the development as a result of the undergrounding of cables, but argues that it is unreasonable on the basis of fairness and equity, given that most of the benefits accrue to the community. Also to be taken into account is the considerable cost involved and the three site frontages if the applicant is to be responsible for all of the works.

30 The applicant nevertheless agrees to the provision of undergrounding of certain electricity and telecommuncations cables in John Street, the provision of street lights along all three frontages to the site (as sought by the council) and the provision of conduits in O'Riordan Street for all existing overhead cables (as described above), but not the installation of the cables in these conduits. This would he submits be a fair and reasonable outcome for the applicant and the council.

31 On behalf of the respondent council, Mr Hale submitted that, in relation to a modification application the applicant carries the onus of making the case for the modification. Also in dealing with an application to modify a development consent, the Court as the consent authority needs to consider whether anything relevant has occurred since the granting of that consent to justify the modification, especially where a condition of consent imposing a burden on an applicant is sought to be removed. More particularly the use of s 96 of the Act is limited to situations where there has been some material change in circumstances or where something has been revealed which was not known at the time. (See Progress and Securities v North Sydney Municipal Council [66 LGRA] ("progress and securities") and Walton v Blacktown City Council [2006] NSWLEC 451 ("Walton")). In this case nothing relevant has changed, nothing new has been revealed and the applicant has not made out a case for modification. 32 He did not submit that Walton and Progress and Securities would prevent the application from being dealt with on its merits. However because, there is no new information and there has been no relevant change in the circumstances of this development, this will count strongly against the applicant.

33 Also, in dealing with the matter on its merits he submitted that because the DCP was: adopted after wide consultation; was made for the development of land in that Mascot Station Precinct; and control C98 has been consistently applied since the DCP's adoption, that almost overriding weight would be given to control C98. (See Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 ("Stockland")), In this regard he submitted that to accede to the modification application would undermine the DCP and that future applicants would be likely to rely on the Court's decision as a precedent and seek dispensation from control C98.

34 Mr Hale also submitted that significant negative weight should be applied to this application because the applicant having accepted the benefit of the development consent is now seeking to be relieved of one of the burdens of the conditions. (See Arkibuilt Pty Ltd v Ku-ring-gai Council (2006) 148 LGRA 85 ("Arkibuilt"))

Conclusions 35 In my opinion the imposition of the respondent's alternative condition reflecting the requirement in the DCP that: at the full cost of the developer, all service cables in the street adjacent to … the … development site … would, in the circumstances of this development consent, be unreasonable. In applying the three Newbury tests to this condition I agree with Mr Fletcher that at least one of the tests is not met.

36 Plainly the undergrounding of service cables is for a planning purpose that purpose being described in the DCP as including high-quality urban design. Despite this, one might question whether the identification of whoever should pay for the work as distinct from the actual undergrounding of the cables is of itself, a planning purpose.

37 The second of the Newbury tests is whether the respondent's alternative condition, in the circumstances of this modification application, reasonably and fairly relates to the development under consideration. In my opinion the requirement for the developer to be wholly responsible for all of the undergrounding of service cables in the streets adjacent to the site would be neither fair nor reasonable. I have reached this conclusion taking into account the agreement between the experts that the public is the primary beneficiary of underground cabling. I also understand that the electricity and telecommunications cables in O'Riordan Street are not directly utilised by the development. In addition the properties immediately opposite the site would obtain, at no cost, the aesthetic benefit of not looking out onto overhead cables. 38 Whilst the site itself will obtain a significant aesthetic benefit, and notwithstanding that it benefits from the undergrounding of cables that has occurred elsewhere, this is but a proportion of the combined benefits available to the community at large and the properties opposite. In the circumstances I cannot accept that the burden of carrying the entire responsibility associated with this site's frontages fairly and reasonably relates to the benefit that it receives, especially by comparison with the benefit received by the community at large, including that part of the community that will come to and pass through the Mascot Station Precinct.

39 I thus conclude that the burden associated with the responsibility of undergrounding all of the overhead cables would be disproportionate to the benefit that would accrue to the site and hence the condition does not reasonably and fairly relate to the development under consideration.

40 For similar reasons to those I have applied to the second Newbury test I accept that, in relation to the third test, that a condition to this effect would not be reasonable. Hence, on the basis of the Newbury tests I would not impose the respondent's alternative condition because, despite the requirement of the DCP and the weight that it attracts, the burden of requiring the applicant to carry out the all of the works at its expense would be unreasonable.

41 The evidence provided in these proceedings does not enable me to determine, on the basis of benefits accruing to the site, what would be a reasonable proportion of the costs of undergrounding the overhead cables that should be borne by the applicant. However taking into account the likely benefits accruing to the development by comparison with the benefits to the community at large and to the properties opposite it seems to me that in these circumstances, the applicant's proposed alternative condition would be reasonable and can be imposed as an amendment to the consent.

42 In Progress and Securities, Bignold J. in considering a modification application where an applicant had not taken up the opportunity to appeal under section 97 of the Act found that, in relation to such an application, the power to modify a development consent raises the question of whether anything relevant occurred subsequent to the granting of that consent which might justify or require some reconsideration of its terms. Similarly in Walton, Preston CJ in dealing with a case involving the modification of a development consent granted by the Court, held (at 64) that: An application under s 96 of the EPA Act is not the appropriate vehicle to seek a rehearing on the merits decision of the Court on a s 97 appeal, unless there has been some material change in circumstances or something has been revealed which was not known at the time of the hearing of that s 97 appeal…

43 In relation to the question of whether there has been some material change or some newly revealed relevant information, particularly in relation to the undergrounding of overhead cables the only new information now available relates to the cost of the works involved. These are, according to Mr Fletcher likely to be significant and I understand, more than what the applicant originally anticipated. Even if this is correct I do not accept that these are the kind of changes contemplated in Progress and Securities and Walton.

44 However, what has been revealed is the respondent's realisation that condition 38 in its present form does not fully achieve the undergrounding of all overhead cables as required by the DCP and now seeks to have it amended to achieve this. It also seems to have recognised that condition 38 its present form inappropriately requires the applicant to contribute to the cost of the maintenance of and power supply for public streetlights. I am satisfied that these circumstances are such that I am not prevented from considering on its merits an amendment to condition 38.

45 Also, in relation to the merits consideration of the application I was referred to the discretionary consideration that the acceptance of the benefits of a development consent can weigh heavily against a modification application that seeks to remove the burden of a particular condition. (See Arkibuilt ). Whilst there is little doubt that the applicant originally intended to underground existing overhead cables, in my opinion the burden of the applicant's alternative condition, considered in its entirety and accepting the differences, is not so different to that of the original condition as to warrant the rejection of the application.

46 Finally, I do not accept the respondent's concern that the upholding of this appeal would set an inappropriate precedent that might affect the integrity of the DCP because of the particular circumstances of this case. Any challenge to a condition of consent that relies on the provisions of the DCP would need to be assessed on its own merits.

47 In all of the circumstances I am satisfied that the applicant has established a case for the modification of the consent. I have therefore decided that the appeal should be upheld and the consent amended by the deletion of condition 60 and the deletion and replacement of condition 38 as sought by the applicant.

      T A Bly
      Commissioner of the Court
      ljr

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