CBD Prestige Property Holdings Pty Limited v Hornsby Shire Council

Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404; CASES CITED: Lizzio v Ryde Municipal Council (1983) 155 CLR 211; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376; Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323

APPLICANT/APPELLANT: M G Craig QC and D P Wilson (barrister) SOLICITORS: Webster O'Halloran & Associates LEGAL REPRESENTATIVES: RESPONDENT: P C Tomasetti (barrister) SOLICITORS: Storey & Gough

JUDGMENT:

• 9 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

CBD PRESTIGE PROPERTY HOLDINGS PTY LIMITED v HORNSBY SHIRE COUNCIL [2007] NSWLEC 93

JUDGMENT 1 HIS HONOUR: On 6 May 2004 the applicant applied to Hornsby Shire Council for development consent to subdivide area of 13.36 hectares into 53 allotments. On 28 January 2005 the applicant filed an appeal to the Court against the deemed refusal of the application. The appeal was heard by Commissioner Moore on 3 and 4 October 2006. The parties agreed that the commissioner should determine as a preliminary matter the question of whether the operation of cl 6 of State Environmental Planning Policy No. 19 - Bushland in Urban Area ("the Policy") renders the proposal impermissible. In an ex tempore judgment delivered on 4 October 2006 the commissioner found against the applicant on the preliminary question and dismissed the appeal. 2 The applicant now appeals against the commissioner's decision. The appeal may only be made on a question of law: s 56A, Land and Environment Court Act 1979. The applicant alleges that the commissioner erred in law as follows:

(i) the commissioner made a misdirection in categorising the whole development as a subdivision;

(ii) as a consequence it was unnecessary for him to proceed to consider cl 6(4) of the Policy ;

(iii) the commissioner considered the application of cl 6(4) of the Policy in the absence of evidence.

The proposed development 3 As I understand it, the development application that was sought was for: Subdivision of one lot into 53 lots, lot 1 being community property under community title and a separate lot for public open space. 4 The plan of subdivision which was in evidence shows, in addition to the residential lots, a community lot being lot 1 (comprising the access ways or roads) and a residue lot on which there is shown a large water quality control pond, the identification of trees to be retained, "trees to be pruned in asset protection zone", tree protection zones and a "bush preservation area". 5 The land is subject to Hornsby Local Environment Plan 1994, under which it is partly zoned Residential A (Low Density) and partly zoned Open Space A (Public Recreation - Local). The residential lots and the community lot are within the residential zone and the residue lot is within the open space zone.

State Environment Planning Policy No. 19 - Bushland in Urban Areas 6 The Policy applies in Hornsby (cl 3(1)) and prevails over any other environmental planning instrument to the extent of any inconsistency (cl 5(1)). 7 The relevant provisions of cl 6 of the Policy are as follows: 6 Consent to disturb bushland zoned or reserved for public open space (1) A person shall not disturb bushland zoned or reserved for public open space purposes without the consent of the council. (2) Nothing in subclause (1) requires development consent for the disturbance of bushland where it is being disturbed: (a) for the purposes of bushfire hazard reduction, … (4) A consent authority shall not consent to the carrying out of development referred to in subclause (1) unless: (a) it has made an assessment of the need to protect and preserve the bushland having regard to the aims of this Policy, (b) it is satisfied that the disturbance of the bushland is essential for a purpose in the public interest and no reasonable alternative is available to the disturbance of that bushland, and … The commissioner's decision 8 The hearing took place on site, where the commissioner heard informal evidence from both expert witnesses and resident objectors. In an ex tempore decision the commissioner held that "the totality of the activities is a subdivision" and that the activities of bushfire hazard reduction and the water quality control pond "are merely subsumed elements of a development application for subdivision of the residentially zoned land" (at pars [38]-[39]) . Further as to the water quality control pond the commissioner held that it was "an essential, somewhat minor and merely ancillary activity of the proposed subdivision application" (at par [43]). 9 The commissioner's finding that none of the proposed activities were for the purposes of bushfire hazard reduction, to which cl 6(2)(a) of the Policy refers, meant that development consent was required. The commissioner then said that consent can only be granted if the provisions of cl 6(4) are satisfied. The commissioner focused on cl 6(4)(b) and said (at par [65]): [65] ….That provision requires that I must be satisfied that a disturbance of the bushland meets a number of discrete criteria. They are: · that the disturbance is essential, · that it is for a purpose in the public interest; and · that no reasonable alternative is available to that disturbance. 10 The commissioner then continued (at pars [67]-]69]): [67] I am satisfied, as a consequence of the conclusions I have reached, from the evidence of Messrs Rose and Swain, that there is no public interest in the bushfire hazard reduction activities proposed to be undertaken at the eastern end of the site. I have so concluded as a consequence of their evidence about no significant benefit for the protection of existing structures or habitation arising out of these bushfire hazard reduction activities. [68] I am satisfied that the disturbance of the bushland is only essential for the purpose of subdivision of the land; a purpose which will not be frustrated, in a more limited sense, if the subdivision and any activities associated with it, if there were to be a subdivision, were required to be confined in their entirety to the land which is presently zoned for residential purposes. I am satisfied that there is no present public interest of any relevant significance in that bushfire hazard reduction. [69] If I be wrong about that, I am not satisfied, and could not be satisfied, that some development taking place on the land which is presently zoned for residential purposes would not have available to it a reasonable alternative which would not involve disturbance of the bushland in the area zoned for public open space. 11 The commissioner next referred to the water quality control structure. After referring to the evidence of Mr Young and Dr Smith the commissioner held that he was "not able to be satisfied that it is essential , in the public interest, that the structure [would] be used to obtain the benefit that would flow from it" (at par [72]). The commissioner also held that there was another area "where alternative and less intrusive structures might be able to be constructed - but options about which I have no evidence" (at par [73)]. The commissioner finally expressed the view that the provisions of cl 6(4) have always been a fatal impediment to the proposal (at par [76]). 12 A reading of the commissioner's reasons leaves the impression that it is an impeccable application of cl 6 of the Policy to the development application that he was considering. The applicant nevertheless bravely and boldly contends that it is infested with legal error. I now consider each of the applicant's contentions in turn.

A misdirection as to categorisation? 13 If the development is for the purpose of bushfire hazard reduction, then it does not require development consent (cl 6(2)(a) of the Policy). The applicant submits that the development does not cease to be an activity for the purpose of bushfire hazard reduction because it is to be carried out in association with, or as ancillary to, the subdivision of the land. Reliance is placed on Argyropoulos v Canterbury Municipal Council (1988) 66 LGRA 202 at 207-208 and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409. 14 The cases upon which the applicant relies are examples of where it was found, on the facts in those cases, that an ancillary use was not deprived of the quality of being an independent use because it was also ancillary to, or related to, or interdependent with, another use. 15 It is, however, a question of fact and degree in all the circumstances of the case whether a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use: O'Donnell at 409 per Meagher JA (Samuels AP and Clarke JA concurring). 16 In Penrith City Council v Waste Management Authority (1990) 71 LGRA 376, the Court of Appeal (Kirby P, Meagher and Handley JJA) observed (at 383) that the task of classification will inescapably result in decisions which are partly impressionistic upon which different minds may entertain genuine differences. The Court went on to state (at 384) that in part, the response to the task of categorisation will involve a judgment not always easily susceptible to full rationalisation: "This is because the task involves questions of fact and degree, as the High Court pointed out in analogous circumstances in Lizzio [Lizzio v Ryde Municipal Council (1983) 155 CLR 211]". The Court said (at 384) that "the very fact that questions of degree are inescapably involved in cases such as the present also provides a reason for exercising great care in the use of other cases, said to be analogous, where a task of characterising different facts has fallen for judicial consideration and analysis". 17 In an appeal such as the present, I am not conducting a full appeal on the facts as well as the law. It seems to me that the applicant's challenge to the commissioner's conclusion - that the totality of the activities is a subdivision - is a challenge to a finding of fact. 18 In Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323, the Court of Appeal considered the application of s 78A of the Environmental Planning and Assessment Act 1979: "A development application must be accompanied by: (a) if the application is in respect of designated development - an environmental impact statement…"(emphasis added). The Court (per Tobias JA, Giles JA and McClellan CJ at CL concurring) drew a distinction between the expression "in respect of" designated development and a development application "for" designated development (at [180]). That is, the expression "in respect of" is construed more widely than the preposition "for", so that if a development was one "involving" designated development then it was also an application "in respect of" designated development. 19 In the present case cl 6(2)(a) of the Policy uses the preposition "for" in the phrase "for the purposes of bushfire hazard reduction". The commissioner found that "the proposed bushfire hazard reduction must be regarded as virtually in its entirety, attaching to and being subsumed in the present subdivision application" (at par [61]). That is, the development application was for a subdivision and that the proposed works were not for the purposes of bushfire hazard reduction but were subsumed element of the application for subdivision. This conclusion was clearly open to the commissioner and, being a finding of fact, is unable to be disturbed on an appeal which is limited to a question of law. 20 Although the commissioner came to a similar conclusion about the water quality control pond, the applicant does not now contend that it is a bushfire hazard reduction work to which cl 6(2)(a) of the Policy refers. A dam is permissible with consent in the open space zone. The applicant accepts that cl 6(4) of the Policy applies and development must satisfy its provisions. 21 The applicant maintains the submission, however, that the water quality control pond is separate from the subdivision, that its benefit extends beyond the subdivision itself and the trigger - being the development application - should not colour its function. The commissioner, however, made a finding of fact that the water quality control pond is "an essential, somewhat minor or merely ancillary activity of the proposed subdivision application". Again, that is a finding of fact which was clearly open to the commissioner and which I an unable to disturb.

Failure to satisfy clause 6(4) of the Policy? 22 Having categorised the whole development application as one for the subdivision of land, thus requiring development consent, it became necessary for the commissioner to apply the provisions of cl 6(4) of the Policy. 23 The applicant submits that the commissioner's findings - that the development failed to satisfy the tests in cl 6(4) of the Policy - were made in the absence of evidence. Moreover, the applicant submits that the commissioner set out to determine the cl 6(4) consideration on a preliminary basis before evidence of any substance had been tendered, when there was such evidence available. The applicant further submits that by proceeding to determine the matter in the way in which he did, the commissioner was inconsistent with his preliminary determination on cl 6(2) namely, that the development and all its aspects were for the purpose of subdivision. 24 I am unable to agree with the applicant's submission. I have noted that this was an on-site hearing where the commissioner took informal evidence from both expert witnesses and resident objectors. The commissioner identified, in particular, the evidence of Messrs Rose and Swain in the context of the bushfire hazard reduction activities, and the evidence of Mr Young and Dr Smith in the context of the water quality control structure. Moreover, the view taken by the commissioner is itself evidence (cf s 54, Evidence Act 1995). Finally, the parties themselves asked the commissioner to determine the question of whether the operation of cl 6 of the Policy rendered the proposal impermissible. If they wished to call additional evidence on that question then they could have done so, but they were apparently content to let the commissioner decide the question on the evidence then available to him. 25 There is no error of law in the commissioner's determination of the issue which he was asked to determine. On the contrary, the commissioner delivered a faultless decision and did so ex tempore - a skill which I commend.

26 The formal orders are as follows: (1) The appeal is dismissed. (2) The applicant must pay the respondent's costs of the appeal. (3) The exhibits may be returned.

I hereby certify that the preceding 26 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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