Applicant v BYRON SHIRE COUNCIL

Land and Environment Court (NSW)|1999-03-26|Before: Lloyd J

The application seeks the erection of two-storey mixed commercial/residential development with basement carparking.

Clause 45 of Byron Local Environmental Plan 1988 (LEP 1988) states:- The Council shall not consent to the carrying out of development on any land to which this plan applies unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land. 3. The site discharges to the West Byron Sewerage Treatment Plant where the current loads significantly exceed its design capacity, particularly in peak times.

The existing residential flat building on the site has an existing loading of 3.8 ET (Equivalent Tenements).

The applicant calculates the proposal as having a loading of 6.254 ET while the respondent calculates the loading of 6.73ET. I find the difference to be of no significance and either calculation may be accepted as a fact.

The applicant contends that a 90% reduction on hydraulic load can be achieved through using water efficient appliances and practices. I find that while a 90% reduction may not be achieved, a sufficient saving can be made to reduce the load to an acceptable level.

I accept the applicant's case that the pre-treatment process proposed will reduce the biological load of the sewage, prior to disposal into the sewage system.

I accept the applicant's case that the pre-treatment process does not need to be accredited by the Director-General of the Department of Health by way of sub-clause 2(c) of cl 95B of the Local Government (Approvals) Amendment (Sewage Management) Regulation 1998 .

I accept the applicant's case that the nett effect of the reduced hydrological and biological load is to achieve a level lower than currently exists from the site or to a level that will have little or no impact.

The applicant has made no arrangements for the provision of sewerage services to the land but relies upon the existing services provided for the existing development in Finding 4.

The questions of law as stated by the Commissioner are:-

On the facts as found, does cl 45 of LEP 1988 have any application?

If Question 1 is answered in the affirmative, is the question of the adequacy and capacity of the treatment plant, referred to in Finding 3, relevant to cl 45 of LEP 1988?

If either Question 1 or 2 is answered in the affirmative does the Court have power to grant consent to the application in the absence of any prior adequate arrangements with the Council as referred to in cl 45 of LEP 1988?

The short answer to question 1 is clearly yes . Clause 45 applies to all development on land to which the Local Environmental Plan applies. The subject land is land to which the Local Environmental Plan applies. But that answer does not resolve anything for the parties. The real question, I think, is whether the facts found by the Commissioner satisfy clause 45 when that clause is applied to those facts . It also seems to me that what I have called the real question is really a question of fact rather than a question of law. Neither party contended, however, that the question was one of fact. They approached it as if it were a question of law. And having argued it, irrespective of whether the question is one of law or of fact I am prepared to answer it.

Mr J J Webster, who appears for the applicant, submits that clause 45 only requires the arrangements referred to therein to have been made where there is no provision of sewerage, drainage and water services to the land. That, he submits, is the plain meaning of the clause. As I understood his submission, the decision-maker must ask the questions: Is sewerage, drainage and water provided to the land? If not, have adequate arrangements been made for such services to be provided?

In Mr Webster's submission, the Commissioner made a finding of fact that there is an existing service to the land (finding 10) so that there is a prior adequate provision of sewerage services to the land as required by clause 25. Moreover, Findings 6, 7 and 9 meant that the applicant had in place prior adequate arrangements for the provision of sewerage to the land.

Mr P C Tomasetti, who appears for the respondent, submits that clause 45 has a wider application. It requires that there be in place prior adequate arrangements for the provision of the particular services. A sewerage service is not just the provision of a sewerage main to the land. A sewerage service comprises also the sewerage treatment plant and its capacity, pumping stations and their capacity and sewerage mains and their capacity. If any such component is inadequate then the clause requires that adequate arrangements be in place for the provision of such service.

I agree with Mr Tomasetti's submissions. The position is illustrated by his example of a sewerage main to the land which may be of insufficient capacity. In such a case it would be necessary to increase the size of the sewerage main before any further connection could be made thereto.

A sewerage service is, as Mr Tomasetti submits, not just the provision of a sewerage pipe to the land. A sewerage service comprises the various elements which make up that service, such as the capacity of pumping stations and the capacity of the sewerage treatment plant. In the present case it is the capacity of the sewerage treatment plant which is inadequate. It thus cannot be said in the present case that adequate arrangements have been made for the provision of sewerage services to the land.

These conclusions mean that the answers to Questions 1 and 2 as framed by the Commissioner and set out in paragraph 3 above must be answered in the affirmative.

The third question as framed raises for consideration findings 4-9 inclusive. The pre-treatment process which is proposed is, I understand, a system which pre-treats domestic effluent prior to the discharge of such effluent into the Council's sewerage system. Such a pre-treatment process is a prescribed activity for the purposes of Part F, Item 10 of the table to s 68 of the Local Government Act 1993 (see Local Government (Approvals) Regulation 1993, clause 95D). That is to say, the installation of the pre-treatment process requires the prior approval of the Council under s 68 of the Local Government Act .

Mr Webster submits that the fact that the installation of the pre-treatment process requires the prior approval of the Council is not a relevant matter in considering the application of clause 45 of the local environmental plan. That clause, as noted above, refers to the provision of sewerage, drainage and water services to the land. The pre-treatment process is to be installed within the land. Accordingly, if a sewerage service is provided to the land, any inquiry as to the services upon the land is irrelevant, provided that the latter do not adversely impact upon the capacity of the treatment plant.

I am unable to agree with this submission. The adequacy of the arrangements made for the provision of sewerage services to the land must depend at least in part upon what it is that is proposed to be discharged into the sewerage service. The adequacy of the sewerage service cannot be answered in isolation. If the effect of what is proposed is a reduced hydrological and biological load upon the sewerage service, then that in turn bears upon the question of the adequacy of that service.

Mr Webster further submits that this Court on an appeal under s 97 of the Land & Environment Court Act has the power to itself approve the pre-treatment process as required by s 68 of the Local Government Act and thus satisfy the requirement of a prior adequate arrangement under clause 45 of the local environmental plan. Mr Webster relies for this submission on the Land & Environment Court Act , s 39(2), which is as follows:

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal .

15, In further support of this submission Mr Webster relies upon Ewen v Wyong Shire Council (1983) 49 LGRA 293 and on Canterbury Municipal Council v Philip Morris Ltd (1985) 58 LGRA 178. In Ewen v Wyong Shire Council Cripps J had to construe a clause in a local environmental plan which required an agreement between an applicant for the subdivision of land and the council as to the contribution of an amount of money to the council for certain specified purposes. Although the reaching of such an agreement was a condition precedent to the granting of approval for the subdivision of land, Cripps J held (at 296) that the words the person agrees where appearing in the relevant clause do not require a binding agreement to have been entered into between the council and the developer. According to Cripps J, the words the person agrees means the person is willing . As I understand Mr Webster's submission, in the present case the applicant is willing to make the prior adequate arrangements and this Court may, on the hearing of the appeal, accept the applicant's offer to do so.

In Canterbury Municipal Council v Philip Morris Ltd , Bignold J (distinguishing the decision of the Court of Appeal in Strathfield Municipal Council v Drew (1985) 1 NSWLR 338, 55 LGRA 310) held that s 39(2) extended the Court's powers in determining an appeal under s 510 of the Local Government Act 1919 to include the relevant powers under Ordinance 30 made under the Local Government Act . According to Mr Webster's submission, so likewise can the Court in this appeal approve the pre-treatment process under s 68 of the Local Government Act and thus satisfy the requirement of prior adequate arrangements under clause 45 of the local environmental plan .

In the present case, however, I consider that I am bound by the decisions of the Court of Appeal in Strathfield Municipal Council v Drew and McDougall v Warringah Shire Council (1993) 30 NSWLR 258. In Strathfield Municipal Council v Drew the question was whether, in the course of an appeal against the Council's refusal of consent for a crematory under the Environmental Planning & Assessment Act , it was not necessary to have the Council's consent under the Public Health Act 1902, s 51(2) or, if it was, that such consent could be given by the Land & Environment Court. It was held that the consent under the Public Health Act was necessary. It was also held that s 39(2) of the Land & Environment Court Act gave the Court no power to consider the question of consent under the Public Health Act . Samuels JA and McHugh JA held (at 344, 345) that the power to give an approval under s 51(2) of the Public Health Act was not a function in respect of the matter the subject of the development application. Mahoney JA (at 344) inclined to the view that s 39(2) did not go so far as to extend to a further and different approval under other legislation, but did not think that a concluded decision upon the question need be made for the purpose of disposing of the case. Mahoney JA held that an approval under s 51(2) of the Public Health Act involved considerations different from those relevant to the determination of a development application.

In McDougall v Warringah Shire Council , which was relied upon by Mr Tomasetti, the question was whether s 39(2) enabled the Land & Environment Court, in the hearing of an appeal against the refusal of a building application under Part 11 of the Local Government Act 1919 (for additions to a pigeon loft), to also exercise the power of the council under Part 10 (s 289(e)) of that Act to regulate the keeping of pigeons. It was held that the Court could do so. Kirby P held (at 266) that the council's functions under Part 10 of the Act were necessary to, essential for, or at the heart of the decision in question. Mahoney JA held (at 272) that the function of the council under s 289(e) of the Act was sufficiently analogous to the function to be performed in relation to a building or development application to warrant the conclusion that the function is in respect of the subject matter of the appeal . Cripps JA similarly held (at 278) that there was a relevant nexus between the subject matter of the appeal and the discretion or function proposed to be exercised.

The question in the present case for the purpose of s 39(2) is: what is the matter the subject of the appeal . The subject matter of the appeal is a development application for the erection of a mixed residential and commercial building under the Environmental Planning & Assessment Act . The subject matter of the prior adequate arrangements for the provision of sewerage to the land is an approval relating to management of waste under the Local Government (Approvals) Regulation 1993, Part 3, made under the Local Government Act 1993.

In McDougall v Warringah Shire Council Cripps J said (at 277):

As Mahoney JA pointed out in Strathfield Municipal Council v Drew the considerations relevant to the decision of the council under the Public Health Act 1902 were not the same as those under the Environmental Planning & Assessment Act 1979. He was of the opinion that there were considerations under the Public Health Act 1902 which would not have been relevant to an application under the Environmental Planning and Assessment Act 1979 .

In the present case the considerations relevant to the decision of the Council under the Local Government (Approvals) Regulation are not the same as those under the Environmental Planning & Assessment Act . Part 3 of the regulation relates to matters of public health and in particular to sewerage management facilities. The approval which was required under s 68 of the Local Government Act is a further and different approval under other legislation to that which is sought under the Environmental Planning & Assessment Act : it is a distinct and separate statutory regime with its own separate statutory right of appeal in the event of a refusal of an application under that section ( Local Government Act , s 176). Clause 45 of the Local Environmental Plan requires the prior approval of the sewerage management facility. There is no jurisdiction to entertain the present development application and thus no jurisdiction to entertain the present appeal in the absence of a prior approval of the sewerage management facility under s 68 of the Local Government Act .

It follows that the third question of law must be answered in the negative. The short answer to the question reformulated by me (in paragraph 4 above) namely whether the facts found by the Commissioner satisfy clause 45 when that clause is applied to those facts must also be answered in the negative.

I answer the specific questions of law as follows:

On the facts as found, does cl 45 of LEP 1988 have any application?

If Question 1 is answered in the affirmative, is the question of the adequacy and capacity of the treatment plant, referred to in Finding 3, relevant to cl 45 of LEP 1988? Answer: yes.

If either Question 1 or 2 is answered in the affirmative does the Court have power to grant consent to the application in the absence of any prior adequate arrangements with the Council as referred to in cl 45 of ELP 1988? Answer: no.

I certify that this and the preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

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.

Land and Environment Court of New South Wales CITATION: Michael Bald & Associates -v- Byron Council [1999] NSWLEC 78

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