David Road Pty Ltd v Hornsby SC

Fairfield Council v Olivieri Pty Ltd [2003] NSWCA 41; Fitch v Shoalhaven CC [1987] 67 LGRA 165; CASES CITED: Henbury Pty Ltd v Parramatta CC ; St George Building Society v Manly C [1982] 3 APA 370; Maitland CC v Anambah Homes Pty Ltd [2005] NSWCA 455

APPLICANT Mr C. McEwen, sc Instructed by Mr Hones of Hones Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A. Galasso, barrister Instructed by Mr Woodwood of Storey & Gough

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11231 of 2005 David Road Pty Ltd v Hornsby Shire Council

1 COMMISSIONER: This is an appeal against the deemed refusal by Hornsby Shire Council (the council) of an application under s96 (the application) of the Environmental Planning and Assessment Act 1979 (the Act). The application seeks to modify development consent (DA 1345/04) by the deletion of condition 33 (the development application). Consent to the development application was granted subject to conditions on 11 April 2005 for the subdivision of one allotment into seven allotments with a community title road at 173 - 177 David Road, Castle Hill (the site). 2 Condition 33 states:

33 A 3m wide strip of land along the property frontage required for road widening shall be dedicated to council at no cost on the Final Plan of Subdivision. 3 Conditions 17 and 18 are related to condition 33. These conditions state:

17. The design and construction of kerb, gutter and pavement along the full frontage of the proposed development in David Road to match the existing kerb and gutter alignment, together with footpath formation, necessary drainage and sealing of road pavement between the existing pavement and lip of the gutter. The existing road pavement is to be saw cut a minimum of 300 millimetres from the existing edge of the bitumen and reconstructed. The work is to be completed prior to the issue of the subdivision certificate.

18. Design and construction of footpath along full frontage in David Road. 4 The application does not seek to amend these conditions but the applicant recognises that if condition 33 were to be deleted the wording of conditions 17 and 18 would need to be amended. The site and its context 5 The site is located on the southern side of David Road with a frontage of 79.3m and an area of 6,172.76sqm. It is developed with a heritage building known as "Glenowen", a one to two storey Victorian Georgian cottage. The cottage is setback about 14m from the front boundary and is screened by vegetation. The house and part of its garden are to be conserved in the consent for the development application. 6 The surrounding area is generally new development. Adjoining the site is one and two storey residential development. Development on the opposite side of David Road is the Castle Hill Anglican Retirement Village. 7 David Road is a local road and is a bus route. To the north and south of the site, the road reserve is 13.06m wide with a constructed vehicular carriage way of 11m (measured kerb to kerb) and a footpath on both sides of the road. 8 At the frontage of the site, David Road narrows and the road reserve is 10.058m wide with a vehicular carriage way of 9.63m. Road widening has not been undertaken in front of the site and there is no footpath on this side of David Road, but there is on the other side of the road. Planning Framework 9 The site is zoned Residential A (Low Density) under Hornsby Shire Local Environmental Plan 1994 (LEP 1994). The subdivision is permissible with consent. Glenowen and its garden are listed as a heritage item under LEP 1994. 10 Cherrybrook Precinct Development Control Plan (Cherrybrook DCP) includes the Cherrybrook Precinct Masterplan (the Masterplan). The Masterplan Objective is:

To ensure the orderly development of the Cherrybrook area. 11 The Performance Criteria include:

Pedestrian networks in the Precinct should provide a high level of safety. 12 The Prescriptive Measures include:

Pedestrian thoroughfares should be provided in accordance with the Masterplan. 13 The Transport Strategy in the Cherrybrook DCP includes the Prescriptive Measures:

Roads should be designed in accordance with the principles of the Masterplan.

Subdivisions should be designed to incorporate the pedestrian and cycle linkages in the Masterplan. 14 Figure 1 in the Cherrybrook DCP provides the Masterplan. This designates the David Road frontage of the site as Local Road Widening. The key to the Masterplan does not identify pedestrian thoroughfares or cycle linkages. The evidence before the Court is that the road widening is required primarily to accommodate a pedestrian pathway. 15 Hornsby Shire Residential Subdivision Development Control Plan (Subdivision DCP) includes a control element relating to road design. The Prescriptive Measures of this control include:

Bus routes should be identified in new residential subdivision areas. Minimum carriageway widths for bus routes should be 11 metres. 16 Part 6.3.1 of the Hornsby Development Contributions Plan 2004 - 2010 (s94 Plan) identifies works for which contributions are levied and the amount to be levied for land acquisition. It was common ground between the parties that the proposed widening of David Road is not a work or acquisition to be funded by the s94 Plan. Section 2.3 of the s94 Plan permits in certain circumstances that "in kind" contributions, including land dedication, may be made in lieu of the s94 contribution. If this has not been identified under the plan the applicant must state why the in lieu contribution "is of equivalent or greater benefit to the community compared to what has been identified under the plan." Background 17 The development application was lodged on 16 July 2004. The application sought approval to subdivide one allotment into eight allotments and a community title road. The application was accompanied by a subdivision plan prepared by CSA Architects dated 15-07-04 (the subdivision plan) and a Statement of Environmental Effects prepared by UrbisJHD dated 21 July 2004 (SEE). The SEE was accompanied by a Statement of Heritage Impact prepared by Historyworks dated June 2004 (HIS), a Landscape Heritage Assessment prepared by Musecape dated July 2004 (Landscape Heritage Assessment) and an Arborist Report prepared by Australian Tree Consultants Pty Ltd dated 28 April 2004 (Arborist Report). 18 During the assessment of the application, the applicant sought clarification on a number of occasions regarding the road widening requirement and the s149 certificate and requested that the dedication be offset against the s94 contribution or some other means, such as floor space bonus. 19 The applicant was advised by letter dated 10 March 2005 from Mr J Farrington, Manager Town Planning Services that:

The land is affected by 'local road widening' under the Cherrybrook Development Control Plan (DCP). The DCP is listed under clause 1(1)(c) of your existing Planning Certificate dated 19 September 2003. In addition to the above notation, on further investigation it has been found that the land is affected by road widening and road realignment by a resolution of Council.

Please find attached a revised Planning Certificate in which clause 6 is amended to reflect the new information on road widening. 20 The Council officer's report of 11 April 2005 (council report) assessment of the application under the Cherrybrook DCP states:

The frontage of the site is identified in the Cherrybrook Precinct Masterplan as being affected by 'Local Road Widening'. The applicant has agreed to the dedication of the required land subject to approval of the application, although had earlier sought compensation for the reduction in proposed lot sizes through a reduction in Section 94 Contributions, which was not supported by Council. 21 The council report assessment of the application under the Residential DCP does not refer to the 11m carriageway requirement for bus routes. 22 In addressing traffic the council report states that:

A pedestrian footpath will be required along the site's frontage. Council's Subdivision Engineer has recommended that the verge adjoining the site be kerbed and guttered as well.

In relation to traffic generation, the Roads and Traffic Authority, in its publication "A Guide to Traffic Engineering Practice 1993" Section 3, Land Use Traffic Generations, suggests traffic generation rates for dwelling houses as 9.0 daily vehicle trips per dwelling. The proposed development as amended will increase the daily residential vehicle traffic by 54 trips and will not adversely impact on the traffic capacity of David Road. The proposed vehicular access is satisfactory and Council's Engineer and Traffic Engineer raised no objections. 23 The application was approved subject to conditions under delegation on 11 April 2005 for a total of seven allotments, not the eight for which consent was sought. The reason for the reduction in the number of allotments was stated in the Council Officer's report of 11 April 2005 as being to amalgamate two proposed allotments into one to protect two trees. 24 A s96 application was approved on 29 June 2005 (s96 approval). This approval amended the description of the development to be the subdivision of one allotment into eight allotments on the basis that the two trees could be retained. The s96 application was accompanied by revision B to the subdivision plan (s96 subdivision plan). Conditions 33, 17 and 18 remained unchanged. The s94 contribution (condition 80) was increased to reflect the additional allotment. Other conditions of no relevance to this appeal were amended. 25 The s96 application that is the subject of this Appeal was lodged on 6 September 2005. In accordance with the provisions of the Hornsby Notification and Exhibition Development Control Plan council did not advertise the application. At the time of the appeal council had not determined the application. The issues 26 The Statement of Issues before the Court contained the following two issues:

1. Is the imposition of condition 33 of Development Consent No. 1345/04 reasonable in the circumstances.

2. Does the imposition of condition 33 of the Development Consent meet the Applicant's representations made in the Statement of Environmental Effects which accompanied the Development Application, namely:- i) that the potentially dangerous break in the pedestrian thoroughfare along David Road would be overcome by dedicating to the Council the land to be used as a continuation of pedestrian access (at page 9); and ii) the dedication of land to the Council for the purposes of a pedestrian pathway would provide for a safer and more convenient movement of people than currently exists (at page 10) The evidence 27 Mr P David, Subdivision Manager at Hornsby Council, Mr G Goodyer, town planner for the Applicant and Mr A Gallagher, Director of David Road Pty Ltd, the Applicant in the appeal, provided evidence. 28 In Mr David's opinion, the dedication of land was required to meet the requirements in the Cherrybrook DCP and the Subdivision DCP, particularly to provide safe pedestrian access. In his opinion, the proposed subdivision creates the need for the land to be dedicated for the footpath to provide safe access to for the residents of the site. He stated that similar requirements had been imposed on other developments. 29 Mr Goodyer held the contrary view that the need for the road widening and footpath already existed and was not generated by the development. He considered that the requirements of condition 33 as well as conditions 17 and 18 to be unreasonable in the particular circumstances of the case because: · The heritage significance of the buildings and curtilage of the property are enhanced and protected by the land not being dedicated for road widening purposes · The land contains a number of trees which are significant in themselves and as part of the curtilage of the heritage item. Dedication of the relevant part of the land for road widening purposes and construction of the kerb, gutter, pavement and footpath may result in the removal of those trees. 30 Mr Goodyer considered that a footpath could be provided without the road widening by narrowing the carriageway in front of the site in a similar manner to what had occurred in David Road, south of Treetops Road. 31 Mr Goodyer and Mr David agreed that it was feasible to provide a footpath between the edge of the existing bitumen and the property boundary as this distance is 2.5m for the majority of the property's frontage. The provision of a footpath would require a minimum width of 2m, whether the footpath adjoins the kerb, as occurs on the opposite side of the street, or if there is a nature strip. 32 The experts disagreed whether this was acceptable given the use of David Road as a bus route. Both experts qualified their opinions by the fact that they were not traffic experts. Mr David considered that the narrow carriageway south of Treetops Road was acceptable because it was not used as a bus route and was a cul de sac at Castle Hill Road, but it would not be acceptable in this location. He recognised that it is an existing bus route and there was not conflict. He stated this was because there is no kerb and guttering and cars could park on the grass verge therby providing a wider carriageway. 33 Mr Goodyer stated that the use of David Road by buses occurred now with no problem and retention of its current carriageway width or a slight narrowing would emphasise it role as a local road and discourage its use as a collector road. If necessary, parking could be restricted along the frontage of the site. 34 It was common ground between the parties that the only mechanism to impose a condition requiring dedication of land is through s94 not under s 80A of the Act ( previously s91). Both Mr Galasso, for the Council and Mr McEwen SC, for the Applicant, referred to the judgment of Stein J in Fitch v Shoalhaven City Council (1987) 67 LGRA 165, where his honour agreed with the statutory interpretation of Bignold J in Henbury Pty Ltd v Parramatta City Council (unreported) and St George Building Society v Manly Council [1982] 3 APA 370. Stein J stated:

I think the Bignold J's interpretation in St George and Henbury is the correct one and I adopt it. It is difficult to know why subs (3)(h) of s 91 is present if it was not the intention of the Parliament that dedication of land free of cost under the Environmental Planning and Assessment Act must satisfy the criteria set forth in s 94. Section 91(3)(h) does not merely permit the lawful imposition of a condition under s 94, it points to s 94 as the exclusive source of power for contributions or dedications to the public amenities. It consciously provides for special (and additional) requirements for the validity of such conditions over and above those applicable conditions under s 91 (other and than, of course, subs (3)(h)). If a council could require (by condition) a dedication of land under section 91 as an alternative to s 94 it would lead to the special requirements of section 94 to be circumvented. Section 94 would tend to be avoided if a council felt it was unable to comply with it but could satisfy the Newbury tests alone (under section 91). 35 Mr McEwen submitted that the requirement for an easement would equate to dedication of land and therefore was also not provided for. 36 In accepting that s94 was the only mechanism to require dedication, Mr Galasso's submission was that condition 33 did not "require" dedication as the applicant had offered to dedicate the land to provide a footpath as part of the development application. The application had been assessed and approved on this basis and the dedication of the land was fundamental to the development of the whole site. He submitted that the applicant had taken the benefits of the consent and now sought to avoid the burden. 37 Mr Galasso supported this submission by reference to the SEE which formed part of the development application. Section 5.3 of the SEE addresses the requirements of the Cherrybrook DCP, namely the Cherrybrook Masterplan (s5.3.1) and the Transport Strategy (s5.3.4). Section 5.3.1 states that:

Pedestrian networks have been improved by rectifying the potentially dangerous break in pedestrian thoroughfare along David Road. The strip of land that currently extends into the road reserve is proposed to be dedicated to Council to be used as a continuation of pedestrian access. 38 Section 5.2.4 states that:

The boundary of the land that currently extends into the road reserve is proposed to be dedicated to Council for the purposes of a pedestrian pathway. This will provide for a safer and more convenient movement of people than currently exists. 39 Section 5.1 and Appendix 1 of the SEE address the Residential Subdivision DCP. I note that these do not mention the requirement for a 11m carriageway width for bus routes. 40 Mr McEwen's submitted that the applicant had agreed to dedicate the land for the pathway to council but never intended that this be at no cost. The correspondence between Council and Mr Gallagher confirmed that the applicant had sought confirmation that the land was reserved for road widening (as it was not specifically identified on the 149 certificate) and to have the dedication offset against the s94 contribution prior to the determination of the development application. 41 Mr McEwen submitted that the applicant did not object to the requirements in condition 17 and 18 to undertake the works or to the dedication of the land, but only to the dedication being at no cost to council. Condition 17 and 18 are consistent with the distinction between works and dedication expressed in Fairfield Council v Olivieri P/L [2003] NSWCA 41 where Cripps AJA found at paras 75 and 76:

I do not read the decision of Stein J denying a Council the power to impose a condition of consent that a developer undertake work off site at its own expense for the reason that the work might or it would benefit the public.

In my opinion s94 only restrains the power of councils to impose conditions requiring the dedication of land free of cost or a monetary contribution. In my opinion it has no application to a condition requiring a developer to undertake work at its own expense (although, of course, such a condition to be attached would have to be relevantly connected to the development and not unreasonable in the relevant sense) 42 Mr Galasso submitted that the works in condition 17 and 18 would not occur if condition 33 were deleted as council would not pay for the land or offset it against the s94 contribution in condition 80. Without the land the footpath could not be provided. Findings 43 The parties have agreed that s94 is the exclusive power for a Council to impose a condition requiring dedication of land free of cost. As I understand Mr Galasso's submission, the key issue is whether the dedication of land free of cost is fundamental to the development for which consent was granted and whether deletion of condition 33 would result in the balance of the consent operating in a manner different to that which the whole consent would have operated. This question was examined by the Court of Appeal Tobias JA presiding in Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455. 44 In answering this question it is necessary to examine: i. whether the dedication of the land for road widening, which is essentially required to provide a pedestrian footpath was part of the development application. ii. whether the development generates the need for the dedication for the road widening and footpath. iii. the merits of the proposed amendment. 45 I accept Mr Galasso's submission that the footpath and dedication of land formed part of the original application. Schedule 1 to the Environmental Planning and Assessment Regulation 2000 (EPA Regulations) states that a development application must be accompanied by a statement of environmental effects. The statement therefore forms part of the application and from the information contained in the SEE a reasonable interpretation would be that the frontage of the site would be dedicated for a footpath to comply with the road widening requirements of the Cherrybrook DCP. 46 While the correspondence between the Applicant and council supports the argument that the Applicant did not intend to dedicate the land free of cost and sought compensation for the dedication prior to the determination of the application it appears that the applicant accepted the condition. This is supported in that the s96 approval did not seek to delete condition 33, which clearly stated that the dedication was to be at no cost to council. Nor has the applicant sought to appeal against the imposition of the condition either on the basis of its validity or reasonableness but rather has sought to amend the application through the deletion of the condition. 47 While I accept that the dedication of the land formed part of the original application it is open to the Applicant to seek to amend its application. In seeking to delete condition 33 the Applicant is seeking to amend its application to remove the requirement to dedicate the land free of cost. The applicant is prepared to provide the footpath and to dedicate the land, but not free of cost. 48 The question then becomes one of whether the need for the footpath and the road widening is generated by the development. Mr David and Mr Goodyer held different opinions on this question. Mr David considering that the development generated the need for the footpath and road widening whereas Mr Goodyer considered that this need already existed. 49 I accept Mr Goodyer's opinion. The current situation is that the road is narrower in front of the property than adjoining and there is no footpath that connects to the adjoining footpaths. There is therefore currently a need which is identified in the Cherrybrook Masterplan. The development by increasing the number of allotments from one to eight will increase the demand on the road and footpath, but of itself does not solely generate the demand. 50 The council report is predicated on the road widening forming part of the application and therefore complying with the Cherrybrook DCP. The need or reasonableness of requiring the applicant to dedicate the land free of cost and provide the works is not discussed in the council report. Nor is the requirement under the residential DCP for the 11m width for bus routes mentioned. The council report addresses the increase in traffic generated by the development and states that

The proposed development as amended will increase the daily residential vehicle traffic by 54 trips and will not adversely impact on the traffic capacity of David Road. 51 While occupants of the development will use the footpath it will also be used by other people and I do not accept that its purpose is solely to enable residents of the subdivision to access other properties, streets and nearby community facilities. The development will contribute to this and therefore the requirement for works imposed by conditions 17 and 18 is appropriate. 52 In relation to the merits of the proposed widening and footpath the s96 subdivision plan indicates a straight continuous footpath with the annotation that the "footpath to meander around tree trunks". The applicant has agreed to provide the footpath but submits it can be provided without the dedication of land. The experts have agreed that it is feasible to provide a footpath within the area between the current carriage way and the site boundary but disagree as to whether this is appropriate as it does not provide a road and footpath in the same alignment as on either side of the property and retains the current narrow wide of the road adjoining the property. 53 The evidence before me is that retention of the current road alignment is preferable on heritage grounds and retains more significant trees in the front alignment of the property. 54 The Landscape Heritage Assessment states that:

The curtilage should include the entire David Road frontage, which projects further west into the carriageway than the properties on either side. Protection of this strip is considered necessary to conserve the significant mature trees growing just inside the front property boundary including the specimens of the Pinus sp., Brachychiton acerifolius and Eucalyptus paniculata. 55 The HIS included as part of its conservation policy that:

The David Road frontage should not be subject to road widening or creation of additional driveway points. On this last point, Hornsby Shire Council may need to vary its normal road engineering practice to have regard to the heritage significance of the property. 56 The further report by Historyworks, which accompanies the application identifies the "intact road frontage as part of the significance of the item" and that this significance should be recognised by "treating the road differently in this area". 57 The development application was referred to the Heritage Advisory Committee it recommended, inter alia that the Flame tree be retained. The council report stated that this tree is required to be removed by the road widening. 58 The Arborist Report recommended the retention of a number of trees on the site including tree Nos 2 (Pinus radiata), 3 (Brachychiton acerifolius) and 13 (Eucalyptus paniculate). These trees are within the area required for the footpath. The council report states that the protection of these trees is not achievable during the subdivision works due to proposed public or community road works. 59 In dealing with the road widening required under the Cherrybrook DCP the council report states that the Applicant had agreed to dedicate the land for local road widening. 60 In dealing with the requirements of the Subdivision DCP, the council report does not refer to the 11m requirement for bus routes. 61 The council report makes no assessment of the competing objectives of heritage, tree retention and road widening. Although it can be interpreted that the road widening was given greater weight than the other issues. 62 In assessing the merits of the application, the primary purpose of the dedication is to provide a footpath. The need to widen the road because it is for a bus route was not addressed in either the SEE or the council report. No traffic evidence was provided to the Court to support Mr David's contention that the road could not be treated in a similar manner to David Road south of Treetops Road purely because it is a bus route. While clearly in engineering and traffic terms it would be advantageous to have the road and the footpath in the same alignment I do not accept that the retention of its current alignment would result in an unworkable situation. 63 The Applicant is prepared for the road widening to occur and for the land to be dedicated but council has indicated it is not prepared to pay for it. The Cherrybrook DCP does not and could not state and that dedication is to be free of cost. The road widening is not part of the s94 plan and while other sites have dedicated land free of cost this does not mean that it is correct for them to have done so. 64 In considering the requirements of the Cherrybrook DCP for this site, the road widening needs to be balanced against heritage issues and concerns about tree retention. From the evidence the footpath can be provided without the dedication of the land, there is no evidence that the road will not function effectively, the width of the road and the lack of footpath currently exist and are not generated solely by this development. I therefore find that condition 33 can be deleted. The dedication, while forming part of the development application, is not fundamental to the development for which consent was granted and the deletion of condition 33 will not result in the balance of the consent operating in a manner different to that which the whole consent would have operated. I note that the issues before the Court did not include that the proposal was not substantially the same development which is a precondition to any amendment of a consent under s96 of the Act. 65 The deletion of condition 33 and the evidence in the case require that conditions 17 and 18 be amended. The proposed wording of 17 and 18 is:

17. The design and construction of kerb, gutter and pavement along the full frontage of the proposed development in David Road, together with footpath formation, necessary drainage and sealing of road pavement between the existing pavement and lip of the gutter. The existing road pavement is to be saw cut a minimum of 300 millimetres from the existing edge of the bitumen and reconstructed. The work is to be undertaken by the Applicant, at no cost to Council, in accordance with detailed engineering plans submitted to and approved by council. The work is to be completed prior to the issue of the subdivision certificate.

18. Design and construction of footpath along the full frontage in David Road. The work is to be undertaken by the Applicant, at no cost to Council, in accordance with detailed engineering plans, prepared in consultation with a heritage consultant and an arborist, submitted to and approved by council and completed prior to the issue of the subdivision certificate. 66 The consent does not include a condition which refers to the s96 subdivision plan. It is appropriate, with the agreement of the parties, that this be included as condition 1. As the amended wording to conditions 17 and 18 and the addition of condition 1 has not been discussed with the parties, I direct the parties to file, within 48 hours, an electronic version of the conditions of consent with any agreed changes to the wording of conditions 17 and 18. Following filing of the conditions, I intend to make the following orders in Chambers. Orders

2. The s96 application to modify development consent (DA 1345/04) for the subdivision of one allotment into eight allotments with a community title road at 173-177 David Road, Castle Hill, is approved. The consent is amended by the deletion of conditions 17, 18 and 33 and the addition of new conditions 1, 17 and 18 as set out in Annexure "A".

      Annelise Tuor
      Commissioner of the Court

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.