Cherrybrook Victory Christian Church Inc v Hornsby Shire Council

Finding in Relation to Ground 1 15 Order 2 made by the Senior Commissioner clearly refers only to the land the subject of the development consent. As the development application was confined to that land and did not extend to the Council controlled footpath or New Line Road, that order suggests that the development consent only applies to the Applicant's land and cannot therefore be considered to grant development consent to the works to be carried out on the footpath or the pedestrian refuge to be located in New Line Road. If the consent was constituted only by that order that would be the end of the Applicant's claim. However, on their face, conditions A and B do appear to state that development consent was given for works beyond the Applicant's land being the footpath and pedestrian refuge and they are clearly part of the consent.

16 Condition A refers to the granting of deferred consent in accordance with specified plans, which includes the plan referred to at subparagraph (d) for a pedestrian refuge on New Line Road. Condition A is open to the interpretation that it purports to grant development consent to works to be carried out on land which the Applicant does not own, namely the Council controlled public road where the pedestrian refuge would be located. Condition 103 appears to support this interpretation.

17 Condition B states that the consent shall not be operational until the Applicant has submitted a number of plans, identified in Schedule A, to the Council and the Council has approved these as satisfactory. Category (a) in Schedule A refers to plans and engineering details of all works to the footpath and public road, together with any necessary Roads and Traffic Authority approvals for the works in New Line Road. The intention of condition B is not clear given the wording in Order 2 and condition A. On one view it does suggest that development consent has been granted to the works referred to in category (a) of Schedule A to condition B.

18 As conditions A and B can clearly be interpreted as granting consent to the footpath and pedestrian refuge works it could be argued that the Senior Commissioner has fallen into legal error in the drafting of these conditions.

19 I accept the Council's submission that, in the absence of a valid development application seeking consent for the works in the footpath and the roadway, it was not open to the Senior Commissioner to grant development consent to these works. It does not appear from either the Senior Commissioner's judgment or the Applicant's development application that development consent was sought by the Applicant for any works to be located other than on the Applicant's land and no submission to the contrary was made by the parties.

20 The scheme governing the regulation of development contained in Pt 4 of the EP&A Act is driven by development applications. Section 76A(1) of the EP&A Act provides that "If an environmental planning instrument provides that specified development may not be carried out except with development consent…". Section 78A of the EP&A Act permits a person, subject to the Environmental Planning and Assessment Regulation 2000 ("the EP&A Regulations"), to make a development application for consent to carry out an activity. Clause 49(1) of the EP&A Regulations provides that a development application may only be made by the owner of the land to which the application relates or by any other person who has the land owner's consent in writing.

21 The Applicant argued that it was open to the Senior Commissioner to grant development consent for the works on the footpath and the roadway by virtue of s 39(2) of the Land and Environment Court Act 1979. It is clear that s 39(2) gives the Court on appeal all the functions and discretions which the Council as consent authority would have had in relation to the development application. This section does not empower the Court to grant consent to works which are not the subject of a valid development application. A development application for these works could have been lodged by the Applicant and consent granted by the Court under s 39(2) of the Land and Environment Court Act 1979: Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181. In Gibson v Mosman Municipal Council (2001) 114 LGERA 416 Talbot J held that where a development application had been lodged for works on a public road the Court has jurisdiction to grant consent to the works pursuant to s 138 of the Roads Act 1993 pursuant to its powers under s 39(2) of the Land and Environment Court Act 1979. No such application was made. However, presumably an amendment to the development application at the hearing could have corrected this matter.

22 I also agree with the Applicant that these matters could clearly be dealt with under s 80A(1)(f) of the EP&A Act in any event. Section 80A(1)(f) provides that a condition of development consent may be imposed if: it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent.

While s 80A(1)(f) does not give the Court the power to issue development consent in relation to works which are not the subject of a development application it clearly contemplates that the Court may require the carrying out of such works subject to a condition that any necessary consent must be obtained.

23 In my view, given that s 80A(1)(f) can apply, the issue can be easily corrected by the amendment of the existing condition B or by the imposition of a new condition. 24 It is unlikely that development consent is required under the relevant local environmental plan for works in the public road and on the footpath although I did not receive specific submissions on this matter. It is clear that the consent of the Council, as landowner, will be necessary. While s 138 of the Roads Act 1993 requires consent to be obtained from the relevant roads authority for works of this kind, I would expect that the Council is the relevant roads authority and is therefore able to authorise certain works to be done on public roads. The wording of any condition imposed under s 80A(1)(f) of the EP&A Act requiring the carrying out of the works should state that it is subject to the Applicant obtaining the Council's consent as landowner and any necessary consent under the Roads Act 1993. Such a condition could also require the Applicant to pay the Council the cost of the Council carrying out such works as an alternative to the Applicant itself doing the works. The final wording of the condition can be determined by the Senior Commissioner with input from the parties if required. An amended condition 103 may well be acceptable in relation to the pedestrian refuge.

25 Alternatively, if the Senior Commissioner intends that the commencement of the development consent is to be conditional on these works being done, redrafted deferred commencement conditions to this effect can also be considered. The drafting must make clear that development consent is not given for these works in any deferred commencement condition.

26 I consider that the Council has essentially argued a "technical" legal point in regard to the pedestrian refuge and footpath. I agree with the Applicant's submissions that the Council's complaints on this ground are largely a matter of form over substance. I will uphold this ground of the appeal and I am requiring amendment of the development consent conditions because it is a legally binding document, but I do not anticipate that compliance with this judgment will affect the ability of the Applicant to obtain its development consent from this Court. Had this been the only issue where error was found it would not have been sufficient to warrant the matter being returned to the Senior Commissioner. As it is not entirely clear to me what the Senior Commissioner intended, I am of the view that the following options are available to him and the parties when the matter comes back before him: (a) amend condition A(d) and condition 1(c) to remove any reference to the grant of development consent for the footpath and pedestrian refuge, and draft conditions pursuant to s 80(1)(f) of the EP&A Act . If condition 103 is to remain it needs to be amended to recognise that the Council's consent as landowner and any necessary approval under the Roads Act 1993 must be obtained prior to the carrying out of the works; or (b) redraft the deferred commencement conditions to make it clear that the development consent is conditional on not only the obtaining of any requisite consent for the construction of the footpath and pedestrian refuge but also the completion of these works if that is what is intended. 2. The Inadequate Consideration Ground The Council's Submissions 27 The Council relied on Weal v Bathurst City Council & Anor (2000) 111 LGERA 181 to argue that by issuing a development consent subject to deferred commencement condition B, the Senior Commissioner failed to give proper consideration to the impacts of the works in respect of which condition B requires further plans to be provided. In particular, the Council argued that the Senior Commissioner had: (a) no plans of the proposed lift system to be installed on the footpath between the Applicant's land, which is elevated above the street, and New Line Road, and that accordingly he was not in a position to assess the adequacy and safety of the lift or its visual impacts; (b) no plans of the other works to be carried out on the footpath and roadway; and (c) no knowledge of the position of the Roads and Traffic Authority in relation to the works proposed to be carried out in New Line Road so that he was unable to assess the traffic impacts of these works. 28 The Council argued that the finalisation of the details of the above works was fundamental to the proposal as the proposal could not be adequately assessed without the requisite information and it was not therefore a matter which should be dealt with by way of deferred commencement consent conditions.

The Applicant's Submissions 29 The Applicant argued that: (a) in relation to the lift Mr Relf and Mr Beardsmore, the access consultants retained by the parties, had agreed on the location of the lift and on various other details such as its minimum platform size and the heights it must cover and it was open to the Senior Commissioner to conclude, on the basis of this agreement, that the outstanding matters could be dealt with by way of deferred commencement conditions; (b) in relation to the footpath, Mr Relf and Mr Beardsmore had agreed on the details of the works to be carried out on the footpath during the hearing before the Senior Commissioner and it was open to the Senior Commissioner to conclude, on the basis of this agreement, that the outstanding matters could be dealt with by way of deferred commencement conditions; and (c) in relation to the works to be carried out in New Line Road it is not to the point that the views of the Roads and Traffic Authority were unknown as, if the approval of the Roads and Traffic Authority is required in relation to the works then the Roads and Traffic Authority will have an opportunity to make their views clear and, if no such consent is required then the views of the Roads and Traffic Authority are not a mandatory relevant consideration in the context of whether the proposed development should be approved. Finding in Relation to Ground 2 30 There is no reference in the Senior Commissioner's judgment to the pedestrian refuge to be located within New Line Road. It is referred to as a plan only in conditions A and B, set out above.

31 Paragraph 10 of the judgment refers to the works to be carried out on the footpath as follows: Mr Relf and Mr Beardsmore agreed that the footpath on New Line Road to the bus stop needs upgrading to allow wheelchairs to pass easily. While they agreed on the details of the upgrading, the details are not part of the application.

32 It is clear however from the Applicant's submissions that there was material placed before the Senior Commissioner by both parties through their respective experts, and in the experts' joint reports, which would have enabled him to assess the impacts of these works and their role in facilitating access to the site. I also agree with the Applicant's submissions that it was not necessary for the Senior Commissioner to be aware of the views of the Roads and Traffic Authority, if any, at the time he made his decision.

33 It is desirable that all relevant matters considered by the Senior Commissioner, in this case the pedestrian refuge, be referred to in a judgment so that the Court's reasoning is clear. Whether any lack of reasoning amounts to an error of law will depend on the circumstances. As Lloyd J noted in Segal & Anor v Waverley Council [2004] NSWLEC 363 at par 8: Although the duty to give reasons does not extend to every matter of fact or law which was or might have been raised in the proceeding (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386), the duty to give reasons clearly applies to findings on the principal contested issues, or any issue that is central or critical to the case.

34 While there is no reference made in the judgment to the pedestrian refuge, it is not a matter about which there was controversy at the hearing or the experts before the Court disagreed. I do not consider, therefore, that this can be regarded as central or critical to the case. It is clear that the Senior Commissioner considered that the matter was sufficiently clear to him in that the consent conditions required the work to be done. In the context of this particular development application, and avoiding a "fine tooth comb" approach to the appeal, I do not consider that an error of law has been demonstrated.

35 In relation to the lift, which is to be located on the Applicant's land, I consider that the Senior Commissioner's consideration of this matter was not inadequate. I do note that good practice suggests that a plan of the lift from a vertical perspective is desirable but the absence of such a plan in this case does not constitute an error of law. The Council must fail in relation to this ground.

3. The Lack of Finality and Certainty Ground 36 This ground is essentially a continuation of the arguments in ground 2.

The Council's Submissions 37 The Council relied on a number of cases, including Helman v Byron Shire Council and Anor (1995) 87 LGERA 349, Mison v Randwick Municipal Council (1991) 23 NSWLR 734, Scott and Ors v Wollongong City Council and Anor (1992) 75 LGERA 112, Designlink International v Baulkham Hills Shire Council (1999) 105 LGERA 299 and Proprietors of SP 13318 v Lavender View (1997) 97 LGERA 337, to argue that the lack of detail in condition B of the development consent regarding the provision of: (a) further details as to the lift and works to be carried out on the footpath; (b) further details as to the pedestrian refuge to be constructed in New Line Road; and (c) a " consistent and accurate set of architectural drawings and landscape plans " in relation to the proposed development; rendered the consent uncertain. The Council argued that this uncertainty results as condition B provides that the consent is not to become operative until the Council has approved these further details and plans, allowing the work covered by these details and plans to be fundamentally or significantly altered from that which the Court had envisaged in requiring these works to be carried out as a condition of the grant of consent.

The Applicant's Submissions 38 In relation to: (a) the lift and works to be carried out on the footpath the Applicant repeated the arguments which it made in relation to Ground 2 to the effect that, as the experts had agreed in relation to the requirements for these works, a condition requiring further details and plans in relation to these agreed requirements does not render the consent uncertain; (b) the works to be carried out in New Line Road, the Applicant argued that the experts had agreed on the changes required and the only outstanding matters related to the provision of "engineering details" of those works; and (c) the requirement for a "consistent and accurate" set of plans for the proposal, the Applicant argued that comments made by the Senior Commissioner at par 22 of his judgment make it clear that the poor quality of the plans accompanying the initial development application was overcome during the hearing and that, were it not for his desire to ensure that the task of the certifier was made easier, the Senior Commissioner would have consented on the basis of the amended plans filed during the hearing: During the hearing the applicant tendered amended drawings and its experts provided evidence that clarified inconsistencies to the effect that, by the end of the hearing, the Court (and anyone else who attended the hearing) could understand exactly what was proposed. There is thus no legal barrier to approving the proposal on the basis of the drawings before the Court. The reason why revised drawings would be preferable is that the Principal Certifier, who will approve the construction certificate drawings, was not present during the hearing. A clear set of drawings would make the task of the Principal Certifier easier and reduce the chance of inconsistency between construction certificate drawings and the development consent. The receipt of a revised set of drawings would be a suitable matter for a deferred commencement condition. 39 The Applicant relied on Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 to argue that, given the above, the fact that condition B requires certain further technical information to be provided by the Applicant and agreed to by the Council prior to the consent becoming operative does not invalidate the development consent.

Finding in Relation to Ground 3 40 I dealt with the lift and pedestrian refuge in ground 2 where I found that there was no lack of consideration in relation to these works. I consider that, given my earlier finding, there is also no lack of finality in condition B, provided that the basis on which the plans referred to in categories (a) and (b) of Schedule A to condition B are required is made clearer in the manner referred to in my finding on ground 1.

41 The key matter in relation to this ground is whether there is an error of law because the Senior Commissioner has granted consent to a development yet required the submission of a complete set of plans to the Council for its satisfaction under categories (c) of Schedule A to condition B before the operational conditions in the development consent commence.

42 In Designlink International v Baulkham Hills Shire Council Talbot J considered whether a deferred commencement condition requiring, amongst other things, that certain "minor corrections to be made to the drawings" to the satisfaction of the relevant council before the parties could approach the Court and have the consent confirmed was invalid on the basis of uncertainty. Talbot J held at par 17 and 18 that: It is a question of fact and degree in each case whether a consent can be granted conditionally in accordance with the judgment of the Court of Appeal in Scott. Where changes within the ambit recognised by the Court of Appeal are allowed, it is only after the parameters of the development have been set and the impacts determined. Otherwise the consent authority has the option to refuse consent or to postpone its final decision to allow an opportunity for the applicant to amend the plans, if that is permissible in the circumstances of the case. Either way, the Court will be called upon to give further consideration to the application before the consent can be acted on. The Court should not be dissuaded from dealing with the issue raised by the appellant simply because there is a perceived lack of utility arising out of the facts of this matter.

The Commissioner has, in effect, elected to postpone his final decision. The Court is not a consent authority as defined in s 5 of the EP&A Act. It was not open for the Commissioner to grant a deferred commencement consent subject to a condition that the consent is not to operate until the applicant satisfied the council as to the matter specified in the condition and then for the development consent to be confirmed by the Court. A lawful deferred commencement consent will operate following the consent authority's satisfaction, without any further confirmation.

43 Here the grant of development consent has not been deferred awaiting the deliberation of Council before coming back to the Court as in Designlink. Rather the final plans are not to be brought back before the Senior Commissioner at all.

44 I accept that matters of detail could be the subject of a deferred condition in accordance with s 80A(3) of the EP&A Act. However, I consider that generally, as a matter of law and practice, this Court should itself approve the substantive plans which comprise a development, rather than leaving it up to the council, from whose original decision the Applicant is appealing, to approve to its satisfaction an entire set of plans which will become the development consent plans. I can see from the Senior Commissioner's decision that he considered the amendment of the plans largely as a "formality" in that there could be no disagreement in his view with the revised plans before the Council. Such a practice does however pose a challenge in formulating conditions of consent which are final.

45 I agree with the Council's submission that this consent lacks certainty and finality as a result of the current conditions. This is because the central matter on which the development consent is based, namely the plans of the development, are not approved by the Court under the development consent as currently drafted. Further, the current drafting of condition A does not sit well with condition 1, the first operational condition. Condition A refers to the grant of deferred commencement consent by reference to the plans identified in subparagraph (b) but as condition B requires a new set of these plans to be lodged with and approved by the Council, it is these plans once prepared to the satisfaction of the Council which are given consent in operational condition 1. In my view the way in which the development consent conditions are currently expressed means that the development consent does not give consent to final plans. I therefore uphold the Council's challenge on this ground.

46 Once again I consider this is a matter which can be easily corrected before the Senior Commissioner. I consider that this matter should be referred back to the Senior Commissioner so that he can consider the final plans the Applicant intends to rely on and decide if he does wish to approve these as the basis for the development consent. The consent conditions should then be redrafted, assuming the Court approves the amended plans, so that development consent is granted by the Court on the basis of those final plans, as seems likely. These plans will not then need to be the subject of a deferred commencement condition.

4. The Misapprehension of Jurisdiction Ground The Council's Submissions 47 The Senior Commissioner held at par 13 of his judgment that: I agree that the proposal includes more paving than necessary. While the amount of landscaped area is acceptable, with more skilful design, areas of paving could be replaced by soft landscaping, the visitor parking bays could be relocated and access roads reduced to the minimum necessary to allow efficient movement of vehicles. However, as the council is opposed to any changes to the proposal, the landscaped area shall remain at its acceptable current level, rather than the generous provision that would be possible with changes that the council opposes.

48 The Council argued that this passage shows that the Senior Commissioner had misunderstood his powers by wrongly assuming that, as the Council did not agree to the changes to the proposal referred to above, the Court was without the power to allow the Applicant to make these changes prior to the grant of consent condition.

The Applicant's Submissions 49 The Applicant argued that even if the Senior Commissioner had misconstrued his powers this was not material as the Senior Commissioner's judgment made it clear that, while the landscaping could have been improved by reducing the amount of hard paving, the design was "acceptable" even without these improvements.

Finding in Relation to Ground 4 50 I agree with the Council that the Senior Commissioner's judgment indicates that he may have been under a misapprehension as to his powers to allow the Applicant to amend plans without the Council's consent. However, I accept the Applicant's submission that, even if this amounts to an error of law, it was not one which was material to the Senior Commissioner's decision to grant the consent as he was of the view that the plans were acceptable even without further amendment. Accordingly, the Council is unsuccessful in relation to this ground.

Conclusion 51 The matter should be returned to the Senior Commissioner for further consideration of the new set of plans which are to form the basis of the development consent in relation to the Applicant's proposal. Assuming the Senior Commissioner approves these plans, the conditions of consent will need to be amended accordingly.

52 While I do not require it as I did not find that there was a relevant error of law, good practice suggests that an architectural drawing from the vertical perspective of the proposed lift in sufficient detail to enable assessment and approval by the Senior Commissioner should also be lodged for his consideration. This is, however, a matter for the Senior Commissioner and the parties.

53 I have set out generally at par 22 - 26 above the matters the Senior Commissioner and parties should consider in relation to ground 1. Assuming that when this matter is returned to the Senior Commissioner he gives development consent, when the requirements to comply with my findings in ground 1 (see par 22 to 26 above) and ground 3 (the new plans) are combined I consider it is likely that condition A and operating condition 1 can be merged/deleted as there will only need to be a single reference to the plans for which development consent has been granted, namely: (1) the new plans the Applicant will produce (currently referred to in condition A(b) and condition 1(b)); (2) the proposed plan of subdivision by Hammond Smeallie & Co Pty Ltd (currently referred to in condition A(a) and condition 1(a)); and (3) the Botanica Landscape Consent Plan (currently referred to in condition A(c)).

Condition A(d) will be deleted. The plan of the lift may also be able to be included if the Applicant lodges same and the Senior Commissioner approves it (currently referred to in condition 1(d)). Condition 1(b) and categories (a) and (b) of Schedule A to condition B will also require amendment, the nature of which depends on the basis on which the Senior Commissioner grants consent.

Orders 54 The Court orders that: 1. The orders made by the Senior Commissioner on 21 May 2004 in Cherrybrook Victory Christian Church v Hornsby Shire Council [2004] NSWLEC 178 be set aside; 2. The matter be remitted to the Senior Commissioner for further consideration in accordance with the findings in this appeal; 3. The question of costs be reserved; and 4. The exhibits may be returned.

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