Commonwealth of Australia v Randwick City Council

(4) Whether pursuant to s 39(2) of the Land and Environment Court Act 1979 the Court can vary the adopted master plans or consider and adopt any further master plan submitted.

The issues and questions are not set out in full but the above summary in the Court's opinion properly represents the subject matters of the arguments presented by the parties at the preliminary hearing. I hope that no disservice or disrespect to the position of either party has occurred in the process of seeking to reformulate the position in the interests of expediency.

The hearing of the preliminary issue has taken place in the vacation in an attempt to accommodate the efficient and meaningful preparation of evidence for the substantive hearing to take place in February 2001. The parties are required to serve and file expert statements of evidence during January.

Accordingly, it has not been possible to give full reasons which deal with the subject matter comprehensively. Again, there is no disrespect intended to either party by the truncated form of judgment which follows.

The council, represented by Mr Davison SC and Mr Parry and the applicant, represented by Mr Hale SC and Mr M Wright each presented full detailed oral argument and analysis supported by written submissions. This has enabled the Court to determine the questions as far as practicable at this stage within such a short period of time.

Irrespective of whether cl 40A was inserted in the LEP pursuant to s 70C(1)(iv) or s 80(11) it is to be given effect as an instrument which makes more detailed provisions relating to the permissible development of land in respect of the matters the consent authority is to take into consideration and those matters of a procedural nature that are to be complied with in determining a development application.

Clause 40A is to be construed on the understanding that it is not the role of a master plan to prohibit any particular form of development but rather that larger sites with an area in excess of 4000 m² are to be the subject of comprehensive site specific strategic planning in order to outline long term proposals for the development of the land and establish design principles after a detailed site analysis.

Following the adoption of a master plan any development in respect of the land the subject of the plan, unless it is of a minor nature or the consent authority is satisfied that adequate guidelines and controls are already in place, is not to be inconsistent with the provisions of the master plan. I agree with the applicant that satisfaction in this regard will always be a matter of fact and degree. It will not be necessary in any particular case for the development to be consistent in every detail with the provisions of the master plan. The consent authority must be satisfied that the development as proposed will not be antipathetic to, and that it pays due regard and respect to, the adopted design and planning principles envisaged by the master plan.

The council quite rightly asserts that before a master plan is prepared it is necessary to identify the site which is to be the subject of the more detailed provisions. In this case it is contended that the whole of the land held by the applicant should be the subject of a master plan because the site is the whole of the adjacent land held in common ownership.

It is common ground that there is no currently identified intention to use a large part of the applicant's land beyond its present use for defence purposes. Other parts of the land outside the land the subject of the development applications are nominated for use as part of the drainage scheme for the proposed development and for the provision of public open space.

The council argues that the "site area" includes the land the subject of the development application but is not necessarily confined to it. It may include a wider area of land than the land the subject of the development application. This literal interpretation would, in the council's opinion, conform to the legislative intent to ensure that large sites in Randwick over 4000 m² in site area are the subject of comprehensive site specific strategic planning in the form of a master plan which addresses all the matters referred to in cl 40A(5) of the LEP. Otherwise, says the council, a developer could avoid the necessity to address the relevant issues demanded by cl 40A in a master plan by limiting each development application to 4000 m² in area.

The council also relies on the reference to the entire site in cl 40A(3)(a) as confirmation of the correctness of its construction of the term "site area" because it contemplates parts which could be developed separately. Otherwise, the separate development of such component parts in potentially disparate ways and without the benefit of the comprehensive planning for the entire site provided by an overall master plan would be contrary to and indeed, so the council says, would undermine the purpose and intent of the legislation.

In summary, therefore, on the construction advocated by the council, the term "site area" means the whole of the land in common ownership. As the master plans presented do not encompass this they cannot constitute valid master plans under the legislation.

The applicant on the other hand notes that master plans are not expressly defined or provided for in the EP&A Act and do not fit neatly into the definition of any existing species of planning control. Regulation 110AA and later reg 92A in subcl (2) make it plain that the requirement for a master plan is primarily only a procedural matter under s 80(11) of the EP&A Act.

A master plan is defined by cl 40A(3). Clause 40A contemplates that a master plan will be in place before a development application is made. Apart from the reference to the "entire site" there is no direct guidance in respect of the subject of the master plan.

The Shorter Oxford Dictionary defines a site as the place or positions occupied by some specified thing or alternatively, the ground or area upon which a building, town, etc has been built or which is set apart for some purpose and further, a plot, or number of plots of land intended or suitable for building. The Macquarie Dictionary refers to the area on which anything, as a building, is, has been or is to be situated.

Clause 40A(3)(a) specifies that a master plan outlines long term proposals for development of the "entire site for which the master plan is required" . The only requirement for a master plan arises out of cl 40A(1)(a) when a development application is made in respect of a "site area" consisting of more than 4000 m². Clause 40A(4) recognises that the preparation of a plan may be initiated by the owner following consultation with the council.

Clause 40A(1)(a) refers to a master plan for the development of "that land" . The only land otherwise referred to in cl 40A(1) is "a site area consisting of more than 4000 m² of land" . Site area is defined by the dictionary in the LEP as follows:- site area , in relation to development, means the area of land to which an application for consent to carry out development relates, but does not include any part of that land on which the development is not permitted by or under this plan or any other environmental planning instrument.

Although arguably the council might be able to initiate the making of a master plan it is nevertheless the owner who is identified as the primary mover in that respect under cl 40A.

Obviously there will be circumstances where a development application is made in respect of a site area which exceeds 4000 m² but is less in area than the entire site covered by the master plan. It is not practicable to impose an arbitrary requirement such as the council would have the Court do by nominating the whole of the land in common ownership. Any number of factors such as zoning, proposed future use, topography, present use and the nature of the imminent proposals could come into play to determine what is relevantly an appropriate site for the purpose of a master plan. There is nothing in the characteristics of the land included in the Northern Precinct or Southern Precinct which presently persuades the Court that the respective sites are not appropriate subjects for a master plan.

The respective development applications are clearly in respect of a site area consisting of more than 4000 m² and there is an adopted master plan "for the development of that land" .

The Court is not in a position at this stage of the proceedings to determine whether the development is not inconsistent with the provisions of the relevant master plan.

Furthermore, it is not appropriate at this point to determine whether the purported variations made by the council when it adopted the master plans amounted in effect to a rejection of the draft master plans presented by the owner.

These are matters that can be determined at the final hearing. The consequence of the rejection of the draft master plans pursuant to cl 40A(7) can only be that subcl (1) of cl 40A does not apply to the area of land to which the development applications relate and the Court will be required to have regard to the range of matters set out in subcl (5) in accordance with subcl (8).

The council will contend that if the master plans are found not to be master plans at all for the reason they have not satisfied the criteria for a master plan then there can only be one result under cl 40A(2). The proposed development is self evidently not of a minor nature and the only development standards applicable are floor space ratio controls under cl 32 of the LEP which clearly could not be regarded as adequate guidelines and controls.

Can s 39(2) of the Land and Environment Court Act 1979 be relied upon?

A close analysis of cl 40A shows the following responsibilities and powers are respectively imposed on the council as a consent authority, on the council as a planning authority and on the owner:- The consent authority:- (a) is to be satisfied under cl 40A(1)(b); (b) may waive the requirement for a master plan under cl 40A(2); (c) where subcl (1) does not apply is required to assess a development application having regard to matters in subcl (5) under cl 40A(8). The owner:- (a) may prepare a master plan pursuant to cl 40A(4). The council:- (a) is to be consulted before preparation of the master plan by virtue of cl 40A(4); (b) may adopt the master plan with or without variations by dint of cl 40A(7); (c) may reject the master plan by dint of cl 40A(7).

It is necessary to determine what function the council is performing when it consults pursuant to cl 40A(4) or adopts or rejects a master plan by dint of cl 40A(7).

The subject matter of the appeal to the Court for the purpose of s 39(2) of the Land and Environment Court Act 1979 ("the Court Act") is the deemed refusal of the development application.

The applicant contends that the council's decision under cl 40A(7) as to whether to adopt, adopt with variations or reject the draft master plan is a necessary incident and function basic to the council's exercise of power to grant development consent.

The applicant refers to Kogarah Municipal Council v Kent (1981) 46 LGRA 334; Sydney City Council v Claude Neon Limited (1989) 15 NSWLR 724; McDougall v Warringah Shire Council (1993) 30 NSWLR 258 and North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740.

Conversely, the council, relying on the judgments of Mahoney JA at 270 - 271 and Cripps JA at 278 in McDougall argues that by its very nature master planning, like any other form of strategic planning in respect of land, is a conceptually and temporally distinct process to the process of consideration and determination of a particular development application.

Stein JA in Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370 posed the question as "is the function of making the prior adequate arrangements (for the provisions of sewerage services) at the heart of the matter the subject of the appeal" . He held that making the prior arrangement was an exercise of a function and power being a condition precedent to approval.

It would not, in my opinion, be open for the Court to further vary the adopted master plans or to adopt any fresh draft master plan prepared in the meantime at the hearing of this appeal. The drafters of cl 40A also appear to have recognised the distinct functions when they distinguished between the council and the consent authority.

Firstly, the nature of the function in respect of the preparation, consideration, rejection or adoption of a master plan is a strategic planning process quite distinct from the determination of the development application itself. It is not at the heart of the matter the subject of the appeal. It would not be open for the Court to act in respect of the adoption or variation of a master plan any more than it could act in respect of the provisions of a development control plan.

The making of a master plan is directly analogous to the council function of the making of prior arrangements discussed by Stein JA in Codlea .

The applicant's contention that the Court can exercise the functions and discretions of the council under cl 40A(7) in respect of the adoption or variation of a master plan is rejected.

The formal answers to the preliminary questions are:- Question (1): Yes. Question (2): Not answered - reserved. Question (3): Not answered - reserved. Question (4): No.

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38. Firstly, the nature of the function in respect of the preparation, consideration, rejection or adoption of a master plan is a strategic planning process quite distinct from the determination of the development application itself. It is not at the heart of the matter the subject of the appeal. It would not be open for the Court to act in respect of the adoption or variation of a master plan any more than it could act in respect of the provisions of a development control plan.

39. The making of a master plan is directly analogous to the council function of the making of prior arrangements discussed by Stein JA in Codlea.

40. The applicant's contention that the Court can exercise the functions and discretions of the council under cl 40A(7) in respect of the adoption or variation of a master plan is rejected.

41. The formal answers to the preliminary questions are:-