D L Newport Pty Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2016-12-01

The Applicant's position - substantially the same issue

In response to the Council's assertion that the development is not substantially the same at CWS at [48] to [69] - (dealing with the modification power under s 96(2) (a)) - the Applicant outlines a number of submissions at [60] - [73] AWS, and at [5] - [6] AWSR.
First, the applicant accepts that the legal principles to be applied when undertaking the comparative exercise mandated by s 96(2) (a) of the EPA Act are conveniently summarized in Agricultural Equity Investments at [176]; and, that the starting point is the original DA not the CC plans.
The applicant also submits, quite properly that the comparative exercise does not invite a counting of the number of changes in order to determine whether the modified development is substantially the same as that approved by the Court (AWS at [71]). Rather, the comparative test is both qualitative and quantitative: Moto [52]. In undertaking the comparison of the before and after it agrees with the Council that I must consider the impacts of the before and after from both a qualitative and quantitative perspective in order to determine if they are substantially the same development.

Consideration - substantially the same development - flooding

As the Council submits this application began largely as one to move the driveway and vehicular access from Barrenjoey Road to the Boulevard. The 140 other modifications detailed in Exhibits C and 17 - now caught up in the amended application, are an attempt to address the as built structure and the Council's concerns in respect of the development.
For the purpose of carrying out the comparative exercise mandated by s 96(2) (a) I am not concerned (in this instance) by the number of changes proposed to the development Moto: at [52]. Rather, I need to compare holistically the development as modified with the Court approved development in order to determine whether there is a material or essential change to the development such that the development is no longer substantially the same. In saying this I accept that a comparison of the use before and after ("shop top housing" and "shop top housing") does not get me very far. If approved, the modified version of the development has an extra shop and a driveway in a new street. On one view the development remains shop top housing. However, such a description of the development does not incorporate the required qualitative comparison of the Court approved development with the development after modification. When I consider the before and after from both perspectives (a qualitative and quantitative assessment) on the flooding evidence alone it is my view that there will be a material change to the essence of the development.
For the reasons outlined by Ms Colliers I am of the opinion that the development as approved by the Court is a much safer development then the development after modification. The evidence is that the relocation of the driveway into a higher hazard flood area does present a greater risk to life for the visitors, tenants and occupiers of the development than that approved by the Court. Given the limitations of the applicant's investigations of the impact of the two bridges on the drainage channel, and the other matters raised by Ms Collier I cannot accept Mr Bewsher's assessment that the development as proposed adequately addresses the increased risk to life associated with the higher hazard flood area. I simply do not know the extent of the impacts on the available evidence.
Ms Collier is of the opinion that the inclusion of a boom gate at the top of the driveway linked to the flood alarm warning system together with a sign stating "do not leave site when water is on the road" together with the draft flood emergency plan (version 8) does not ensure the same level of safety for the vehicles and people as the development approved by the Court. I accept her expert assessment given her intimate understanding of the flood impacts for site and the LGA based on her involvement with the flood study which underpins the risk to life hazard classifications for the LGA. While I appreciate Mr Bewsher's extensive flood experience and expertise he was not involved in this LGA flood study and therefore cannot be expected to have as intimate knowledge of the flood impacts for this site.
In reaching the conclusion that the before and after are not substantially the same I have taken into account the agreed position of the flood experts that the Boulevard presents risk to life immediately upon driving into the Boulevard, whereas it is possible to drive into Barrenjoey Road without immediate risk. And, that in a 1 in 5 year flood the water level on the Boulevard with is ½ a metre higher than Barrenjoey Road water level.
Mr Bewsher believes that the Boulevard is safer because people will perceive the higher water and stay on the site. However, I do not accept Mr Bewsher's evidence as reasonable. While I understand that a vehicle leaving the site from either driveway location will inevitable end up in a H6 and H5 hazard classification there is no guarantee that a person standing at or about to drive out from the development (particularly visitors to the site) from the edge of the flood waters on the Boulevard will be able to appreciate the depth and velocity of the flood water - which on the evidence will be deeper and faster - any better than they could on Barrenjoey Road. As Ms Collier states Mr Bewsher's view of human behaviour in a flood environment is contrary to recent studies and the identified risk that people drive into floodwaters regardless - including that signage is ineffective (Exhibit 10).
The evidence is that the flood hazard classifications assume a probable maximum flood, whereas in much more likely floods Barrenjoey Road may not present any flood hazard when compared to the Boulevard. In a 1 in 100 year flood, Barrenjoey Road is only in low hazard area. Whereas in a 1 in 100 year flood the Boulevard is high hazard (as per the mapping in the Floodplain Risk Management Study and Plan, SMEC 2004). And, where the water rises in a more extreme event Ms Collier is also concerned that the proposed bridge (which is lower than the PMF) will form an obstruction to the flood flows from all events where the flood levels exceed the level of the underside of the bridge (Exhibit E p5). She is concerned that here has been no explicit consideration of the two bridges in the 2002 Flood Study and therefore an assessment of the impact of the application has not been adequate. Mr Bewsher dismisses the need for an assessment of the impact of the proposed bridge and the existing southern bridge deck on the basis that they are minor structures which the Council's studies to date have ignored and they were not recommended for removal within the Newport Beach Floodplain Risk Management Study and Plan (SMEC, February 2004).
While that may be the fact the Court approved consent condition required the removal of the concrete access ramps across the drainage channel. Presumably, as Ms Collier states in the joint report "to reduce potential obstructions across the drainage channel which can block and cause localised elevations of floodwaters" (Exhibit E p6 2f). As it presently stands the application retains the southern bridge deck and introducers a wider new bridge over the drainage channel. I have no satisfactory evidence about the extent of the impact, if any, by this modification to the Court approved design in the event of a flood. It may be negligible but I simply do not know. Ms Collier is also concerned that the draft flood emergency response plan has not been finalised for the purposes of assessing this application - I share her concern and think that it is entirely reasonable to have the final flood emergency plan available at the time of assessment in circumstances where there is an increased risk to life.

Conclusion

For the reasons stated I am not satisfied that the development after modification will be substantially the same as required by s 96(2) (a) of the EPA Act. I have formed this view following a qualitative and quantitative analysis of the original consent before and after modification. In short I am of the opinion that the essence of the development will be radically transformed. While it will remain a shop top housing development with an attached dual occupancy as originally approved albeit with a different driveway entry, an additional shop and a reconfiguration of the car parking the essence will change from a safe development to a less safe development for the reasons expressed by Ms Collier as summarised above.
Given my determination that the development is not substantially the same I have no jurisdiction to deal with this application.

Approval of the balance of the application

The applicant has made the following submission: " If the Court accepts the Council's contentions on flooding issue in contention 2 , it may be that the driveway cannot be relocated anyway, so probably not much turns on this ( as the balance of the application could otherwise be approved). In other words, the applicant doesn't need to accept or reject the proposition that if the proposal did in fact create an unacceptable risk to life, as to whether it is, or is not, substantially the same. It is not conceivable that the Court would determine that there was an unacceptable risk to life, but approve it anyway, provided the test in s96 was met.
It appears that the applicant believes that it is open to me to approve of a part of its modification application by excising the Boulevard driveway. However, I must disagree. Having determined that the development is not substantially the same under s 96(2) (a) I do not have jurisdiction to deal with any part of the application. The flexibility afforded by s 80(4) (b) of the EPA Act to allow for the approval of part of a development application in my opinion does not extend to the approving of a part of this modification application filed under s 96(2) of the EPA Act.
In order to determine the jurisdictional issue raised by s 96(2) (a) the parties agreed in this case that it was necessary that the Court receive all of the evidence about flooding and planning. This happened and I have decided on the flooding evidence alone that the application does not meet the jurisdictional test in s 96(2) (a). Therefore, despite having heard all of the other evidence I cannot express any view as to the merits of the balance of the application as filed.
Accordingly, the Court orders that the appeal is dismissed and the exhibits are returned. Commissioner S Dixon

Amendments 21 November 2017 - Cover sheet amended - "Northern Beaches Council' inserted to replace 'Newport City Council'.

The word "comprise" deleted from [3]. 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. Decision last updated: 21 November 2017

Jurisdiction - Owner's consent

Owner's consent to the lodgement of this modification application is required by cl 115(1) (h) of the EPA Regulations (Regulations). In this case the clause operates as a jurisdictional prerequisite to a valid application: Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; 149 LGERA 329 at [34] as there is no pre-existing owner's consent: Moorebank Recyclers Pty Ltd v Liverpool Council [2009] NSWLEC 100 at [23] per Lloyd J.
The applicant submits that all of the owners of the land the subject of the development have provided consent to the making of this application as is expressly required by cl115. In that regard, I accept that the letter from the body corporate on behalf of the retail and residential owners of the land, and the correspondence from Ms Emma Pate dated 17 April 2017, as the owner of that part of the site the subject of the proceedings at 2 The Boulevard, satisfy the requirements in cl 115 (1) (h) of the Regulation. I also accept, contrary to the Council's view that the owner's consents relied upon by the applicant from the Crown and ASIC are adequate. My reasons for this follows.
However, before anything else I need first to explain how the ownership of the channel land ended up split between the Crown and ASIC.

Owner's consent from the Crown dated 30 June 2017

The Council contends that the correspondence from the Crown dated 30 June 2016 within Exhibit L, relied upon by the applicant as owner's consent, only "purports" to give owner's consent. The Council has formed this view because the correspondence from the Crown is conditional upon a number of matters, including matters that cannot be satisfied until after consent to the application the subject of the proceedings is granted.
According to the Council the letter lists 8 conditions which are in fact preconditions to consent. Consequently, the letter is qualified, and as such, this presents a jurisdictional impediment to my dealing with this matter. The Council submits that the Regulations require that an application for modification must have "a statement signed by the owner of the land to the effect that the owner consents to the making of the application". In this case the Council submits that a consent that is not operative until the happening of future events is not a consent at all: Mulyan Pty Ltd v Cowra Shire Council and Anor [1999] NSWLEC 212; (1999) 105 LGERA 26 at [33] per Lloyd J. In fact, the Council believes that the terms of the letter from the Crown in this case are not materially different from the conditional consent reviewed in Mulyan which was found to be inadequate at [17]. In this case, the Crown's letter is issued "subject to" the following conditions that include matters that will not be satisfied until sometime in the future, namely: 1. Consent is given without prejudice so that consideration of the proposed development may proceed under the EPA Act 1979 and any other relevant legislation; … 2. (3) Registration, within 12 months of the commencement date of the said Licence [which is stated to commence on 29 June 2016 in condition 2], of an easement for access over the Crown land concerned. The transaction of an easement will be subject to the payment of compensation, and such other conditions as may be determined; 3. (4) Preparation and subsequent registration of a plan of survey, to permit the creation of first title over the subject Crown land; 4. (5) A final Occupation Certificate is not to be issued for the building erected at 316 - 329 Barrenjoey Road until the requisite easement for access has been registered on the land title created in accordance with these conditions of landowner's consent; …
The Council submits that Conditions 3 and 4 of the Crown's letter (set out above) are likely to be satisfied only after consent is granted. And, while it concedes that there is no impediment to the conditions being satisfied before consent is granted, the Council submits that it is not apparent why these steps would be taken until this consent is assured. In any event, it submits that no evidence has been supplied that these conditions have been satisfied. Whereas, Condition 5 is one that can clearly only be satisfied after consent has been issue. If a final Occupation Certificate were issued before the specified easement is registered on title (regardless of what the conditions of consent might say - which are irrelevant to the "conditions" of owner's consent - the owner's consent conditions as drafted cannot be satisfied by inclusion of a condition in the modified approval) then the conditions of owners consent are not satisfied.
The Council also submits at paragraphs [43] - [47] of CWS: "What if the applicant does not satisfy the conditions described by the Minister in this case? On the proper construction of the letters in this case there is to be no owner's consent if those conditions are not satisfied - but whether those conditions are satisfied (likely in the case of condition 3 and 4, and definitely in the case of 5) that cannot be known until after the development consent is issued. The development consent cannot somehow be revoked after consent is granted if these conditions are not satisfied for want of owner's consent - the correct position (consistently with Lloyd J's reasoning) is that either there is owner's consent at the time the modification is approved or there is not - and if there are matters that are not to be satisfied into the future to which the consent is subject, there is no consent. The general admonition that "consent is given without prejudice so that consideration of the proposed development may proceed…"Does not change the proper construction of the letter that owners consent is subject to the stated conditions and so there is no owners consent until those conditions are not satisfied. For there to be any consent at all, those conditions must be satisfied by the time the consent authority makes this decision. Moreover, by requiring owners consent the EPA Act and Regulation did not intend to give the owner a further measure of control, as a matter of title, over development, beyond that given by the law relating to trespass, leases, licences, contracts and estoppel. The EPA Act's objects are concerned with planning and not title to land. This is not to take away the fact that owners consent is an effective power of veto over development, as this is been recognised by the High Court (North Sydney Council v Ligon 302 Pty Ltd (1996)185 CLR 470 at 477) - but the Court in the same judgement also recognised that owners consent was not concerned with private property rights. The need for owners consent was not dependent on the proprietary or contractual rights of the proponent because the objects of the EPA Act involve the environment and amenity; it is intended to provide statutory powers to control planning that are not qualified by private rights (Ligon 302 at 475-476). In these respects, it is not apparent that an owner's consent was intended to be given subject to conditions the purpose of which was to give the landowner (the Crown in this case) controls concerning its ownership of the land, in any event. Plainly conditions 3, 4 and 5 to which owner's consent is made "subject" are conditions directed to property title issues. If there were property issues to resolve, they could have been resolved separately and not as qualifications to which owners consent was "subject".
For above reasons, the Council's case is that there is no proper application in accord with cl 115(1) (h) - no owner's consent from the Crown. Moreover, if no such consent is forthcoming before the Court's decision, the proposal must be refused for want of jurisdiction.
The applicant takes an entirely different view. It submits that the correspondence dated 30 June 2016 says that "consent is granted by the Minister … to modify Development Consent No 238/13 granted by the Land and Environment Court." Therefore, the correspondence clearly consents to lodgement of this application. Nothing could be clearer, particularly in circumstances where the correspondence also states on the following page that "this letter should be submitted to the Land and Environmental Court and any other authority in conjunction with the development application and /or such other approval as may be required".
While the scope of the correspondence from the Crown goes beyond the simple consent required by cl 115 (10 (h), the applicant submits that nonetheless at the very least it satisfies the Regulation. Moreover, the 8 conditions imposed on the consent clearly relate to the ability to use the land in the event that the Court grants the modification. In Muylan the statement provided by the proponent to the Council was a letter written by the owner (though not signed) to the proponent explaining that in the event that the Equity Court finds in favour of the proponent (which on its legal advice the owner did not expect) the owner hereby gives its consent to that DA only on the basis set out in this letter. In that context in dealing with a development application Lloyd J found as a matter of fact that the letter relied upon as owner's consent was simply not a statement that the owner consented to the making of the application (at [17]) - as required by s77 (1) of the EPA Act at that time. His Honour characterised the consent as being "conditional" in the sense of being a "condition precedent to the making of the development application". The applicant submits that Muylan does not authorise owners of land to create complex, conditional statements of owner's consent that require a consent authority to engage in analysing and construing them before proceeding to an environmental assessment of an application: at [17] AWS. The correct legal position, according to the applicant is as set out by Craig J in Rothwell (as applied in Botany Bay City Council v Minister for Planning and Infrastructure & Ors [2015] NSWLEC 12).
It is the case that aspects of the letter from the Crown in this case relate to property rights - as between the parties, and this quite clearly influences the applicant's ability to use the land if and when consent has been granted. However, cl115 (like cl 50 of the Regulations in respect of owner's consent for a development application) is not concerned with the legal relationship where landowners allow use of land by others. As Craig J said at [39] "the consequence would be that the terms in which a landowner's consent is given to the making of a development application impinge upon the exercise of the statutory discretion afforded by the EPA Act to a consent authority when determining that development application. This is a significant consequence. It is not one countenanced by the provisions of the Act" Rothwell at [40].

Legal Principles Governing the Power to Modify in s 96(2) of the EPAA

The applicable legal principles governing the exercise of the power contained in s 96(2)(a) of the EPAA may be stated as follows: 1. First, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd(1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); 2. the modification power is beneficial and facultative (Michael Standley at 440); 3. the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); 4. the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); 5. the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); 6. the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); 7. the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); 8. in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); 9. the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and 10. a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52]).

(1999) 106 LGERA 298

(2008) 166 LGERA 342

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