Defence Housing Australia v Randwick City Council

Land and Environment Court (NSW)|2012-04-27|Before: Mr P

Judgment 1The applicant, Defence Housing Australia, is a Commonwealth authority within the meaning of s 88(1) of the Environmental Planning and Assessment Act 1979 (the Act). On 3 March 2011 it lodged a Crown development application (DA/315/2011) with Randwick City Council for the subdivision of land at 4R Argyle Crescent, Randwick and the construction of eight semi-detached dwellings, garages and associated works. 2Division 4 of Part 4 of the Act specifies the determination process for Crown development applications. Section 89 states: Determination of Crown development applications 89 Determination of Crown development applications (1) A consent authority (other than the Minister) must not: (a) refuse its consent to a Crown development application, except with the approval of the Minister, or (b) impose a condition on its consent to a Crown development application, except with the approval of the applicant or the Minister. (2) If the consent authority fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the consent authority may refer the application: (a) to the Minister, if the consent authority is not a council, or (b) to the applicable regional panel, if the consent authority is a council. (2A) A Crown development application for which the consent authority is a council must not be referred to the Minister unless it is first referred to the applicable regional panel. (3) An applicable regional panel to which a Crown development application is referred may exercise the functions of the council as a consent authority (subject to subsection (1)) with respect to the application. (4) A decision by a regional panel in determining a Crown development application is taken for all purposes to be the decision of the council. (5) If an applicable regional panel fails to determine a Crown development application within the period prescribed by the regulations, the applicant or the panel may refer the application to the Minister. (6) The party that refers an application under this section must notify the other party in writing that the application has been referred. (7) When an application is referred under this section to an applicable regional panel or the Minister, the consent authority must, as soon as practicable, submit to the panel or the Minister: (a) a copy of the development application, and (b) details of its proposed determination of the development application, and (c) the reasons for the proposed determination, and (d) any relevant reports of another public authority. (8) An application may be referred by a consent authority or applicable regional panel before the end of a relevant period referred to in subsection (2) or (5). 3The prescribed periods referred to in s 89 are defined in cl 113B of the Environmental Planning and Assessment Regulation 2000. It states: 113B Period after which Crown development applications may be referred to Minister or regional panel (1) For the purposes of section 89 (2) of the Act, the prescribed period is 70 days after the Crown development application is lodged with the consent authority. (2) For the purposes of section 89 (5) of the Act, the prescribed period is 50 days after the Crown development application is referred to the applicable regional panel under section 89 (2) (b) of the Act. 4In this case, the Crown development application has not been referred to the regional panel or the Minister. Instead, after the prescribed period had lapsed, on 1 November 2011 the applicant lodged a development appeal with the Court under s 97(1) of the Act against the Council's deemed refusal of the Crown development application. 5After the Class 1 appeal had been filed, the Council resolved on 1 November 2011, to refuse the Crown development application. It notified the applicant of its determination on 8 November 2011.

Does the Court have Jurisdiction to determine the Crown development application? 6The Council contends that the Court has no jurisdiction to determine the Crown development application under s 97(1) of the Act. 7It concedes that its determination to refuse the application in the absence of the Minister's approval was contrary to s 89(1)(a) of the Act and; therefore unlawful and of no legal effect. It is not a determination within the meaning of s 97(1) of the Act. 8As there has been no lawful determination of the Crown development application under s 89(1)(a), the Council maintains that it remains open to either party to refer the Crown development application under s 89(2)(b) to the regional panel for a decision. In fact, the Council is required to do this under s 89(2A) before referring it to the Minister. 9Despite accepting the unlawfulness of the Council's determination to refuse the Crown development application the applicant contends that the decision stands until it is declared to be invalid by the Court in Class 4 proceedings or displaced under s 97(1) of the Act. The applicant submits that in refusing the Crown development application the Council has acted contrary to s 89(1)(a) of the Act and being dissatisfied with the Council's determination it can appeal that determination under s 97(1) of the Act. 10The applicant argues that the Court has jurisdiction to determine the Crown development application under s 97(1) of the Act because s 39(2) of the Land and Environment Court Act 1979 (LEC Act) vests the Court with the functions, discretions and powers of the Council in the assessment and determination of the Crown development application. It submits that the Court can cure the breach of s 89(1) by giving effect to the Act and granting consent to the application. In support of this submission the applicant refers the Court to the following authorities: MLC Properties v Camden Council (1997) 96 LGERA 52; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J; R v Marks; Ex parte Australian Building, Construction Employees Builders Labourers' Federation (1981) 147 CLR at 484-485. 11In the alternative, it submits if the Court determined to refuse the application or approve it subject to conditions, which were unacceptable to the applicant, then it would be obliged to comply with the limitations within s 89 of the Act. 12The Council rejects the applicant's submissions and contends that they frustrate the legislatures intent that s 89 operate as a self-contained and discrete provision for the determination of Crown development applications. The Council maintains it has dealt with the Crown development application, as it should under ss 88 and 89 of the Act, albeit incorrectly, by not referring it to the Minister. In those circumstances, it submits that the Court should dismiss the appeal and allow the statutory process for the determination of the application set out in s 89 to be completed.

Finding on Jurisdiction 13After a consideration of the evidence and the parties' written and oral submissions we are of the opinion that there is no right of appeal under s 97(1) of the Act in the circumstances of this case. 14We accept the Council's submission that s 89 operates as a self-contained and discrete provision that specifies the statutory framework for the determination of Crown development applications. 15It was never open to the Council to lawfully refuse the application without the Minister's approval. Therefore, the Council's decision to refuse the Crown development application, without the Minister's approval, is contrary to s 89(1)(a) and is not a determination for the purposes of s 97(1) of the Act. Therefore, the Council's determination is not a legal impediment to the determination process continuing as prescribed under s 89. 16The Council's failure to deal with the application within the prescribed period did not create a right of appeal on "a deemed refusal basis" in circumstances where s 89(2) of the Act specifies that either party may refer the application to the regional panel for a decision. Nor did the Council's decision to refuse the application, without the approval of the Minister, enliven an appeal right under s 97(1) of the Act. The applicant and/or the Council may refer the Crown development application to the regional panel at any time after or before the end of the prescribed period. 17The applicant's submission that the determination of the council stands until it is declared to be invalid in Class 4 proceedings or displaced under s 97(1) is not made out on the facts or evidence. The authorities cited to support that submission concern different statutory provisions and very different factual circumstances. 18Accordingly, for the reasons stated we have decided that the Court does not have jurisdiction to deal with this appeal and, therefore, the appeal must be dismissed. However, if we are wrong in our interpretation of the legal issue, we have also dealt with the discrete merit issues raised by the law and the evidence.

The Merits of the application 19While the council opposes the development on the basis of an unacceptable loss of street trees and subsequent adverse impact on the streetscape and neighbourhood character, we find the application on the evidence before us acceptable on its merits for the following reasons.

The site and its locality 20The site is an irregularly shaped allotment on the western side of Argyle Crescent near the entrance to what is locally known as Moverly Green. 21Randwick Environmental Park adjoins the site to the west and north. This park is zoned Environmental Protection under the Randwick Local Environmental Plan 1998 (RLEP) and contains the endangered ecological community Eastern Suburbs Banksia Scrub and the endangered species Acacia terminalis sub sp. terminalis; both of which are listed under the NSW Threatened Species Conservation Act 1995 and the Commonwealth Environment Protection and Biodiversity Conservation Act 1999. 22The vacant site is covered by reasonably dense vegetation including a strip of closely planted Melaleuca armillaris (Bracelet Honey Myrtle) along the north-western or rear boundary. None of the vegetation is identified as being a rare or threatened species under the relevant legislation. 23The south-eastern side of Argyle Crescent comprises part one and part twostorey dwellings with attached garages and driveways off Argyle Crescent. 24Relevantly, the section of Argyle Crescent in question is planted on both sides with Eucalyptus microcorys (Tallowwood) at relatively close spacings. The interlocking canopies of these trees create an avenue effect. There are nineteen to twenty trees on the north-western side and eleven on the south-eastern side of Argyle Crescent.

Objections to the proposal 25The council's bundle of material contains submissions from a number of nearby residents and others who oppose the proposal. The concerns can be summarised as follows:

Additional traffic and on-street parking on a narrow and sometimes congested street; safety issues;
Removal of street trees will destroy the symmetry of the avenue and is contrary to the aims of the RLEP;
Loss of open space; potential detrimental impacts on the water quality/ native vegetation/biodiversity within Randwick Environmental Park associated with increased urban run-off, weeds, possible contaminants etc; and
Inadequate setbacks; unacceptable visual impact near the entrance to the park and street.

Planning controls 26The site is zoned Zone No 5 (Special Uses Zone) under RLEP. The objectives of the zone are found in cl 17(1). Relevantly, cl 17(1)(a) states: (1)The objectives of Zone No 5 are: (a)to accommodate development by public authorities on publicly owned land, Dwelling houses are permissible with consent. 27Clause 28 Tree preservation orders. (7)Before granting a consent or permit referred to in subclause (5) [removal etc of trees] or (6), the Council must make an assessment of the importance of the tree or trees concerned in relation to: (a)soil stability and prevention of land degradation, and (b)scenic or environmental amenity, and (c)vegetation systems and natural wildlife habitats.

Removal of street trees 28The key merit issue contested by the parties is whether the removal of at least seven Tallowwoods adjoining the site would have a detrimental impact on the streetscape and neighbourhood character. 29The parties' arborists and planners prepared a consolidated joint report. The arborists, Mr Martin Peacock for the applicant and Mr Hugh Taylor for the council, agree that trees 4, 5, 10, 11, 14, 15 and 18 would need to be removed to allow for the proposed development. In addition, they agree that tree 9 should be removed because of its poor condition and trees 2 and 6 should be removed to enhance the growth of the remaining trees. Both arborists consider that tree management and maintenance, including tree removal, would be of benefit to the avenue in the medium and long term. Under cross-examination, both agreed that the canopies of the remaining trees would be expected to grow and occupy at least most of the space freed up by the removal of the nominated trees. 30Two additional trees were the subjects of further discussion. Trees 3 and 17 were identified as being at potential risk from the construction of driveways, as the calculated encroachment into root protection zone exceeds the 10% limit for minimum impact as specified in AS 4970 - 2009: Protection of Trees on Development Sites. The calculated incursions are 22% and 36% respectively. 31In accordance with AS4970, Mr Peacock undertook further investigations and hand dug two trenches to the north of both trees along the closest edge of the proposed driveways. The trenches were dug to a depth of 400 mm; a depth Mr Peacock determined would be more than sufficient for the installation of a driveway. Trenching revealed two woody roots of 20 mm in diameter and one root 15 mm in diameter near tree 3 and two roots, one of 30 mm and the other 25 mm in diameter, near tree 17. Numerous fine non-woody roots were found in the trench. The soil is sandy. 32In Mr Peacock's opinion, the installation of driveways near trees 3 and 17 will have no adverse impact on their health or structure. Mr Taylor initially considered the risk to be unacceptable, particularly as the pruned roots may be susceptible to (non-specific) fungal diseases; however, he later conceded that the risk was relatively low. 33The planners, Mr Lindsay Fletcher for the applicant and Mr Thomas Mithen for the council, agree that the 'avenue effect' is the significant element in the streetscape rather than the individual trees. Mr Mithen considers the removal of eight to ten trees would have a significant impact on that avenue effect; Mr Fletcher takes the evidence of the arborists that removal of some trees may be beneficial and that the overall impact would not be significant. 34Both planners agree that even if the removal of trees had a negative impact on the streetscape and the 'avenue effect', on balance, this alone would not be sufficient reason to refuse the development.

Findings - street tree removal 35The internal report to council dated 6 December 2011 includes the following comments from the landscape/tree officer: Given the large size this species can attain at maturity, which in ideal conditions would be two to three times their current dimensions, Council concedes that overcrowding exists in this group, which is also an issue throughout the rest of the estate, with several of these trees already displaying signs of stress and suppression as a result of extreme competition for space both above and below ground. The parties' arborists also note the close spacing and resulting impacts on the form of some of the trees; hence the recommendations for tree removal other than the minimum required for the driveway crossings. 36The records show that on advice from council, the applicant modified the design and location of the proposed driveways to reduce the impact on the trees. The report to council supports the removal of the trees and the protection of the remaining trees at the applicant's expense. 37On the evidence before us, we accept the arborists' conclusions that trees 2, 4, 5, 6, 9, 10, 11, 14, 15 and 18 can be removed. On the basis of the root mapping exercise undertaken by Mr Peacock, we agree with his opinion that subject to the installation and supervision of appropriate tree protection measures during the period of construction that trees 3 and 17 are capable of being retained. It was agreed by the arborists that the sandy nature of the soil should facilitate future root growth. We note that while only trees 4, 5, 10, 11, 14, 15 and 18 are to be removed for the driveways, we accept the arborists' recommendations for the additional removal of trees 2, 6 and 9 as a management tool to enhance the future performance of the remaining trees. 38In regards to some of the submissions made by nearby residents, given the presence of driveways and the irregular spacing of the trees on the south-eastern side of the street, the existing planting is not symmetrical. 39We are satisfied that the loss of ten trees, while numerically high, will not have an adverse impact on the streetscape in the medium to long term. In the short term, there will inevitably be a change in the streetscape, however we are confident that the reduced competition will enable the remaining trees to re-establish the avenue effect. When assessed against the provisions of cl 28(7) of RLEP, we are satisfied that approval can be given for the removal of the nominated street trees. 40The Orders of the Court are: (1)The appeal is dismissed. (2)The exhibits are returned. Susan Dixon Commissioner of the Court J Fakes 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. Decision last updated: 09 July 2012

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