Dogild Pty Ltd v Warringah Council

Dogild Pty Ltd v Warringah Council - [2008] NSWLEC 53 - NSWLEC 2008 case summary — Zoe

[20]

10 On or about 19 December 2006, pursuant to s 96 of the EPA Act, the applicant lodged with the council an application to modify the consent by effecting changes to the built-form of the development and, in addition, the deletion of Condition 89. There was a deemed refusal of the application. 11 The applicant appealed on the merits to this Court. The merit matters were considered by the Court pursuant to s 34 of the Land and Environment Court Act 1979 and are the subject of a negotiated agreement between the parties. The only remaining issue is whether the disputed condition is invalid. 12 The council's Statement of Facts and Contentions filed in the proceedings (p 10) states: Right of Way Laneway (Condition 89) - The applicant was also advised that Council would be unlikely to support the deletion of Condition 89 for the following reasons: (i) The creation of a right of way over the 6m wide laneway is consistent with the requirements imposed on the other properties between Howard Avenue and Oaks Avenue, (ii) The consent for the development was contingent upon the creation of the right of way, (ii) The requirement represents a reasonable and appropriate means of ensuring and [sic] orderly development of land fronting The Strand, (iv) No legal advice or planning advice was submitted with the current application to justify the deletion of Condition 89. COUNCIL'S LONG STANDING INTENTION 13 It has been the council's intention since 1969 that there be a vehicular lane some six metres wide at the rear of the Strand Properties running between Oaks Avenue and Howard Avenue. On or about 21 September 1982, the council prepared and registered DP629261 which contained the description "Plan of proposed right of carriageway within Lots 10, 13, 14, in section B of DP 6953, Lots A and B in DP 412474, Lots A and B in DP 306167 and Lots 1 and 2 in DP 392259" for the purpose of acquisition of a 6.095 metre wide right of carriageway at the rear of the Strand Properties. The right of carriageway would give reciprocal rights of carriageway to owners of Strand Properties so that legal access could be obtained to the rear of those properties.

[27]

evidence of planners 18 The written evidence of Mr Steve Findlay, the council town planner who assessed both the original development application and the modification of consent application, included the following: 2.6 I have reviewed the relevant policies of Council and it is clear from those and my experience that Council's intention was to establish a laneway at the rear of the properties fronting The Strand, between Oaks Avenue to the south and Howard Avenue to the north has been a long term planning and traffic management goal for this commercial precinct. The sensitive interface of this commercial strip with The Strand and the adjoining parklands and ocean reserve of Dee Why Beach to the east precipitated a desire to separate the pedestrian environment and active street front to The Strand from cars, delivery trucks and garbage trucks which service the commercial uses. … 2.30 The provision of a laneway has been a town planning, urban design and traffic planning objective for the orderly development of land along The Strand since at least 1986. Over the years individual landowners have, as part of obtaining development consent from Council, entered into Deeds of Agreement to grant reciprocal rights of carriageway over their properties to facilitate the creation of the laneway from Oaks Avenue to Howard Avenue. 2.31 The requirement for the establishment of a laneway is a crucial part of the desired future character outcomes underpinning theE18 Locality Statement of Warringah Local Environmental Plan 2000. 2.32 In planning and urban design terms, the provision of access from the rear of premises fronting The Strand is better, as it provides for a more consistent and unified streetscape which is not dominated by driveways to access to individual buildings and avoids the need for service vehicles to park on The Strand. Such an outcome is positive from an urban design perspective, as it creates more active street fronts for building facades and promotes and encourages life on the sidewalk, with higher levels of amenity for patrons of cafes and restaurants, most of which have open interfaces with the pedestrian zone. Further, the absence of driveways and kerbside parking for service vehicles minimises the scenic impact of development on the sensitive parklands and ocean beach reserve opposite the site. 2.33 The rear access to properties fronting The Strand is an effective means of managing traffic associated with these developments, as it minimises commercial and residential vehicle movements on The Strand and reduces pedestrian conflict along The Strand. By allowing service vehicles to access loading docks, garbage trucks to collect residential and commercial garbage and resident's cars to access basement carparking, all of that vehicular activity is largely removed from the public domain. In my opinion, based on my experience in dealing with similar developments within the locality and more generally within Warringah and elsewhere, the provision of rear access is important for the orderly, practical and convenient functioning of these developments. 2.34 The consequences of not opening up the laneway are continued conflict, congestion and chaos in that part of the laneway north of the subject site to Howard Avenue. Documented and anecdotal evidence from the property owners between No 12 and No 18/19 The Strand (as summarised in the Statement of Facts and Contentions) confirms that the existing situation is chaotic, confusing and causing confrontation. Delivery vehicles currently enter the laneway form Howard Avenue and must exit the laneway form the same end. Once a truck is unable to turn and exit in a forward direction, subsequent trucks are prevented from entering the laneway. The full 6 metre width is required for trucks to pass and as a number of properties do not have provision for onsite turning, the flow through that would be created by opening up the laneway would be highly beneficial and significantly reduce vehicular conflict within the laneway. 2.35 There is a fundamental need for a through-way laneway to be created to alleviate these problems, which inevitably results in a negative impact on residential properties adjoining the laneway to the west and for residents occupying the upper levels of developments fronting The Strand in terms of noise, including the sounding of horns, greater number of truck movements, abusive drivers and the like.

[37]

28 I agree generally with the following analysis of the benefits and disbenefits of the proposed right of carriageway for the Land in the statement of evidence of Mr G W Smith, planning and development consultant, called in the applicant's case: 4.11 The benefit which the Applicant would receive is that its tenants or future occupiers may have the choice of being able to drive their cars out onto Howard Avenue as well as to Oaks Avenue which is scarcely of much consequence. That is the more so when Mr Varga (in his Statement of Evidence to which I will turn later) suggests the " lane " would need to operate with one way traffic flow. 4.12 To consider the disbenefits that the Applicant would confront, it is necessary to appreciate that - at present and after the proposed redevelopment if Condition 89 is deleted - its tenants (or future owners) can and would enter a private yard to reach their parking; trucks servicing the property (including garbage trucks) can and would enter and manoeuvre on the property; and there is no flow of vehicles or pedestrians across the property. If the so-called laneway is opened, not only may vehicles going to and from the properties to the north drive across the rear of No 9-11 but vehicles driven by members of the public at large could use it as a bypass for the congestion on The Strand. Similarly, members of the public on foot may wander through the lane. Whereas, at present, it is possible to identify unauthorised persons at the rear of No 9-11, that would not be the case if the laneway was opened. Some members of the public may elect to park along the lane. Apart from reducing the privacy, safety and amenity of No 9-11, who is going to control any illegal use of the lane or of parking along it? Who will be responsible for its upkeep and lighting? Who will be liable if someone has an accident in the laneway? Will the Traffic and other Acts apply? … 6.3.2 As I see it, Condition 89 provides no benefit to the Applicant. It may solve the traffic problems allegedly faced by the land owners to the north. On the other hand, Condition 89 would bring disbenefits of other kinds to the Applicant and the other land owners. It is not a condition which is necessary for the construction or use of the proposed development… RELEVANT LEGISLATION 29 Section 80A of the EPA Act authorises a consent authority to impose conditions of development consent in a range of specified circumstances including, relevantly, the following: 80A Imposition of conditions

[47]

36 It is permissible for an environmental planning instrument to make provision with respect to the reservation of land for a public purpose. Where it does so, it must make provision for the acquisition of the land, whereupon compensation is payable under the Land Acquisition (Just Terms Compensation) Act 1991: see EPA Act ss 26(1)(c), 27. Consequently, provision could have been incorporated in council's local environmental plan for a public carriageway over the Land to overcome the traffic difficulties on the rear of the Strand Properties to the north. Compensation would then have become payable. TESTing VALIDITY OF A CONDITION 37 The "Newbury tests" or principles were formulated by the House of Lords to test the validity of an apparently unlimited statutory power to impose planning conditions. In Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 607G Lord Fraser held that the power was nevertheless subject to certain limitations: In order to be valid, a condition must satisfy three tests. First, it must have a planning purpose. It may have other purposes as well as its planning purpose. But if it is imposed solely for some other purpose or purposes, such as furtherance of the housing policy of the local authority, it will not be valid as a planning condition: see Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd. [1974] Q.B. 720. Second, it must relate to the permitted development to which it is annexed. The best known statement of these two tests is that by Lord Denning in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1958] 1 Q.B. 554 which has been followed and applied in many later cases. Lord Denning said. at p. 572: Although the planning authorities are given very wide powers to impose such conditions as they think fit , nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest. One reason, relevant to the instant case, why it would be wrong to secure removal of buildings by the use of a condition unrelated to the permitted development is that it would enable the planning authority to evade its liability to pay compensation for removal under section 51 of the Act of 1971. Thirdly, the condition must be reasonable in the rather special sense of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 229. Thus it will be invalid if it is so clearly unreasonable that no reasonable planning authority could have imposed it… 38 The decision that these were the three tests was unanimous: Viscount Dilhorne at 599H, Lord Edmund Davies at 601G, Lord Scarman at 618H-619A, Lord Lane at 627B. It was acknowledged that there was overlap between the second and third tests: at 608D, 618H-619A. Lord Scarman said that "it is possible, though unusual, that a condition could in an exceptional case satisfy the first two tests but fail the third": at 619A. Lord Lane indicated that even if the first two tests were satisfied, nevertheless the third would be failed "if the effect of the condition would be to impose an obviously unreasonable burden upon the appellant" at 627D.

[53]

[54] So far as the first Newbury test is concerned, it would generally be satisfied if one or other of the limbs of the statutory phrase was satisfied. The same comment applies (at least in most cases) to the second Newbury test. As was submitted by the Council during argument, the reference in the statutory phrase to public amenities and public services is in general terms and not directed to any particular public amenity or public service. In other words, it refers to a type of amenity or service rather than a particular amenity or service. Thus, in Peterson the statutory phrase was satisfied because the development generated a need (in that it increased the demand) for the provision of an off-street car park. The only question in that case related to the particular off-street car park in respect of which the monetary contribution was sought. It was in that context that the second Newbury test became relevant. 42 The only High Court case in which Newbury appears to have been cited is Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 ("Temwood"). McHugh and Callinan JJ considered Newbury, Gummow and Hayne JJ cited it without more in a footnote (at [93] fn 131) while Heydon J did not refer to it. In that case a subdivision of land was approved under Western Australian town planning legislation subject to a condition that a portion of the land be vested in the Crown free of cost and without payment of compensation by the council. The condition was held to be valid on the basis that it had been bona fide imposed for a legitimate planning purpose and was reasonably related to the proposed development. McHugh J at [55] noted that the Full Court of the Supreme Court of Western Australia had applied the reasoning in Newbury. McHugh J adopted the Newbury test at [57]: [57] The Commission also does not dispute that a condition attached to a consent must reasonably and fairly relate to the development permitted. A condition attached to a grant of planning permission will not be valid therefore unless [This test was articulated by the House of Lords in Newbury District Council [1981] AC 578.]: 1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning. 2. The condition reasonably and fairly relates to the development permitted. 3. The condition is not so unreasonable that no reasonable planning authority could have imposed it.

[65]

53 An illustration of the application of the second and third Newbury tests is provided by St George Building Society v Manly Municipal Council (1981) 3 APA 370, on which the applicant placed some emphasis. St George proposed to rebuild its existing office building which had a frontage to the Corso, the main retail street in the Manly business centre. The existing building incorporated a pedestrian arcade leading from the Corso to Market Lane and a parking station. The rebuilding would eliminate the arcade. St George offered to provide free pedestrian access through its office during business hours Monday to Friday. It appealed against a condition of approval requiring the building to be redesigned "to provide unrestricted pedestrian access at all times between the Corso and Market Lane". Senior Assessor Bignold (as he then was) held that the condition did not satisfy the second and third Newbury tests: at 381, 384. He said at 384 that "the disputed condition does not fairly and reasonably relate to the permitted development. In reaching this conclusion the court places particular reliance on the undisputed fact that the proposed development does not itself create any need for the provision of the arcade access and that the question of that access is wholly extraneous to the proposed development". It was said at 387 that "the disputed condition clearly is directed to secure permanent public access in respect of the redevelopment site and would have the effect of requiring the equivalent of a public right of way at least for the life of the new development". The respondent argued that St George was distinguishable on the basis of the finding (at 376) that the condition would involve considerable private detriment to St George by virtue of denying it the opportunity to redevelop its existing premises in the manner it considered would best serve its business interests. Application of the Newbury tests in the present case is not dependent on forcing the facts into the confines of that dictum. Nevertheless, it may be said that in the present case the disputed condition also involves significant private detriment to the applicant by requiring it to endure over the Land new and potentially heavy vehicular traffic and pedestrian flows and their consequences.

[68]

(a) redevelopment of the Land is part of a redevelopment of the all the Strand Properties in an orderly and economic way and the quid pro quo for the desired character in the rear lane: see EPA Act s 5(a)(ii); Warringah Local Environmental Plan 2000 desired character statement for the Strand; (b) direct connection with the permitted development is not required by the second Newbury test. In any event, there is a direct nexus because the applicant has directly benefited from the condition because the height control in the local environmental plan could be, and was, relaxed in circumstances where there is otherwise consistency with the character statement in the locality: cl 20. The height control is for a three storey building. The permitted development is for a four storey building with a fifth storey element. That relaxation must have been because of the council's satisfaction concerning the consistency of the development with the character statement. This is supported by Mr Findlay's evidence. That character statement included the provision of the laneway. Thus the laneway, as manifested in the disputed condition, promoted and permitted the benefit derived by the applicant. I reject this submission. It is to the effect that council traded off an exceedance in height for that condition. Mr Findlay in cross-examination was asked whether that was so and he answered that it was not: see [24] above; (c) the evidence of Mr Findlay establishes that the Land will directly benefit from the creation of the laneway effected by condition 89. The benefits include (i) elimination of the situation which currently exists on the northern boundary of the Land and which would have a detrimental amenity impact on residences on the Land that fronts that boundary; (ii) reduction in the potential for traffic conflict that may arise from two-way traffic in the 3 metre section of the access handle to the Land; and (iii) improved access for garbage trucks to service the development; (d) section 94 is inapplicable. This is not a condition requiring dedication of land. First, the subject matter is not " land " in the sense used in the EPA Act i.e. as a topographical entity and not as a bundle of rights: North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470, 481. Second, it is not a " dedication " of land. 57 The council submitted that, for much the same reasons, the third limb of Newbury is satisfied.

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