Bungendore Residents Group Inc v Palerang Council & Anor

Bungendore Residents Group Inc v Palerang Council & Anor - [2007] NSWLEC 536 - NSWLEC 2007 case summary — Zoe

[21]

15 Fourthly, there is no adverse environmental impact arising from the grant of development consents and the grant of consent remains and was consistent with the objects of the YLEP and the 2(v) Village Zone. 16 Fifthly, there is no hardship to the Applicant or any other person if the development consents are not set aside. The Applicant is a private association rather than a local council or planning authority. 17 Sixthly, the Second Respondent has expended a significant amount of money in carrying out the subdivision works. If the development consents are declared void it will suffer considerable financial disadvantage through no fault of its own. There has been no fault on its part, the errors found by the Court are those of the Council. 18 Seventhly, the Applicant stood by knowing that substantial work was occurring and did not seek interlocutory injunctive relief in these proceedings commenced by Class 4 Application dated 21 April 2005. The Applicant was entitled to act on the valid development consents that it held. 19 The primary submission is that no relief should be granted to the Applicant. Alternatively, an order under s 25B of the EP&A Act ought be made. Section 25B is not confined to "preliminary and truly procedural" steps. See Tobias JA in Kindimindi v Lane Cove Council (2007) 150 LGERA 333 at [31]. The section confers a broad discretion not confined to a breach of preliminary requirements (at [34]) and allows the imposition of terms, compliance with which will validate the consent, requiring both the carrying out of steps not already carried out, as well as terms requiring acts, matters or things to be done that are different from acts, matters or things required to be done or omitted to be done under the EP&A Act (or other Acts). See also McColl JA at [45] and Hodgson JA at [21] - [25]. Applicant's evidence and submissions 20 The Applicant relied on affidavit evidence already before the Court in the substantive hearing. It also tendered a Council Ordinary Report dated 25 May 2006 which concerned the amendment to YLEP to add cl 21A gazetted on 18 August 2006. That clause states: Despite any other provision of this plan, consent must not be granted to the subdivision of so much of the land within Zone No 2(v) as is in the local government area of Palerang unless the consent authority is satisfied that the lots created by the subdivision will be connected to a reticulated sewerage system that is owned and operated by Palerang Council.

[27]

30 There are a number of matters raised by the parties' submissions to which I should apply these broad principles in deciding how I should exercise my discretion. Substantial or technical breaches 31 The issues in relation to which I found a breach of the YLEP and the EP&A Act are substantial and I would not characterise them as technical. Under cl 22(3) of the YLEP the minimum lot size for unsewered land is 2,000m2 in the Village zone. Only if the Council has regard to a detailed analysis can that area be reduced. Subdivision is permissible development in the Village zone. In Bungendore No 3 I held at [61] that cl 22(3) is a "condition precedent" which must be met by the Council before it can undertake a merits review as required by s 79C of the EP&A Act relying on Currey v Sutherland Shire Council & Ors (1998) 100 LGERA 365, Franklins Ltd v Penrith City Council & Anor [1999] NSWCA 134 and Manly Council v Hortis (2001) 113 LGERA 321. 32 In relation to cl 16(2)(h), which requires that the consent authority must consider whether each allotment in a subdivision has a practical building precinct before consenting to development of land, I held at [126] that there was a failure to consider that matter. I noted that there was extensive information available to the Council but did not provide any view as to whether that was sufficient for the Council to have determined this matter as it was not an issue I had to decide at that stage of the proceedings. I also stated in relation to expert evidence at [124] that: I have set out above at par 87 the limited role that expert evidence can play in judicial review proceedings such as this matter. In terms of the categories identified there, category 5 (to explain what was before the Council where there is a challenge to the reasonableness of the Council's decision) is possibly applicable. Ms Ketelby has given her evidence as an expert that more information had to be available in order for the Council to determine whether there was a practical building precinct. Mr Hynes' evidence was that the matter was self-evident. Dr Martens' evidence that he, an expert, was able to easily undertake an exercise to work out the practical building precinct for a single lot does not assist in this exercise because it is the Council's consideration that is relevant. This evidence is inconclusive at best. 33 I also held that, in accordance with RAID, the development was designated development as it came within Sch 3 of the EP&A Act. Due to amendments in March 2007 to Sch 3 the development consents would not be designated development now if applied for because the category for development with sewerage works of a certain size within 500m of a residential zone was removed from Sch 3. This circumstance is irrelevant however as amendment of the YLEP to add cl 21A now prohibits subdivision development unless connected to the Council's reticulated sewerage system. No merits review by Court 34 It is correct to state that there was extensive information before the Council about the intended water management system for each subdivision lot, which is summarised in my earlier judgment in relation to Dr Martens and Mr Hynes, inter alia, see summary of evidence and Second Respondent's submissions at [26], [28]-[32] of Bungendore No 3. 35 I agree with the Applicant's submission that it is not appropriate that I undertake an assessment of whether there was sufficient information before the Council to have enabled it to make a decision in conformity with cl 22(3) and cl 16(h). The Second Respondent sought to tender far too late in the hearing on the exercise of discretion a subdivision plan showing each lot and various features identified in the evidence located on it. This was an attempt to show that there was sufficient information before the Council. I did not allow the tender due to its lateness. Whether that would have been sufficient to have supported the Second Respondent's submissions about the adequacy of material before the Court is impossible to say.

[30]

Hardship to Second Respondent 38 There were competing submissions from the parties on the appropriate weight to be given to the carrying out of work by the Second Respondent in reliance on the development consents after the commencement of proceedings. The Second Respondent submitted that it was entitled to rely on the consents in the absence of the Applicant obtaining an interlocutory injunction preventing work being carried out. The Applicant submitted that the Second Respondent undertook the work well aware of the commercial risk in doing so. It relied on Biscoe J in GPT Re Ltd v Wollongong City Council (No 2) (2006) 151 LGERA 158 at [33] where his Honour gave less weight to the fact that work had been done in reliance on development consents during the three month statutory period in which court proceedings could be commenced because the developer was aware that the appeal period was open. The situation here is that the work has been done after the commencement of proceedings. Knowledge of the commercial risk is a relevant consideration but not decisive given that the development consents are valid until declared otherwise. 39 Further, the financial disadvantage resulting from the Applicant commencing physical work and incurring costs (in August 2006) well after the commencement of proceedings (April 2005) in reliance on its valid development consent is substantially reduced by the recent grant of development consents DEV.2006.0230 and DEV.2006.0231 by the Council. On Mr Gremmo's evidence actual construction costs now "thrown away" are approximately $180,000, a relatively small amount in the overall scheme of this development. All of the existing work done on roads and lot layout can be utilised for the most recently granted development consents. 40 Substantial costs which are not actual construction costs are also relied on by the Second Respondent as evidence of financial disadvantage. The main expenditure identified by Mr Gremmo, without any specificity of the amount spent, was on legal fees incurred for 24 Class 1 proceedings, one Class 2 appeal lodged in 2005 and these Class 4 proceedings. The costs of obtaining the development consents and other certificates were also identified. I do not consider that the costs of the Class 1 and Class 2 legal proceedings undertaken voluntarily by the Second Respondent or the costs of these proceedings are relevant in the factors I must weigh up in exercising my discretion. Further, while I accept that there will be costs "thrown away" I do not have any evidence before me that these will cause hardship to the Second Respondent. In the particular circumstances of this case, the financial disadvantage to the Second Respondent is a less significant matter in the exercise of discretion.

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Judgment (33 paragraphs)

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