Donnellan v Armidale Regional Council

Land and Environment Court (NSW)|2018-07-09|Before: Community Association DP

Judgment

An area on the north-western residential fringe of Armidale, about 2km from its commercial core and on the north-western side of the corner of Madgwick Drive and Cluny Road, has recently been zoned R1 General Residential. Ms Donnellan seeks a two lot subdivision of one of the lots that benefit from that rezoning, Lot 2 of DP1238849. She lodged a development application with Armidale Regional Council ("the Council") on 5 January 2018, although at that time the lot that is now sought to be subdivided had not yet been registered and created. Following the expiry of the period after which a development application is deemed to have been refused, Ms Donnellan lodged an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 ("EPA Act").
The application seeks to subdivide Lot 2 of DP1238849, an irregular L-shaped lot which, as presently configured, wraps around the rear of Lot 1 of DP1238849. It seeks to create one narrow lot to the east (proposed Lot 7) and one battle-axe block to the west comprising the area to the rear of Lot 1 (proposed Lot 6), as pictured in Figure 1.
The Council opposes the grant of development consent for the subdivision, for the following reasons:

The proposed lot layout is unacceptable and contrary to the subdivision development controls in Chapter 3.1 of the Armidale Dumaresq Development Control Plan 2012 ("ADDCP 2012"),
The proposed subdivision is unacceptable as it is not proposed to provide kerb and guttering, contrary to the ADDCP 2012, and
The proposed subdivision will create an undesirable precedent for the subdivision of land to create irregular shaped lots which rely on existing roads and do not propose any additional internal roads or kerb and guttering.

The hearing of the appeal did not conclude in the single day allocated to it on 27 June 2018. Whilst I initially made directions for the filing of written submissions in order to complete the hearing, Ms Donnellan was unable to comply with those directions. As a result, the matter was brought back for the hearing to be completed by the making of closing submissions in open court. Ms Donnellan, who represents herself, used that opportunity to make comprehensive and lengthy oral submissions, which are summarised in my consideration below. As a result of those submissions and the Council's position, the matters for my determination can be summarised as follows:

The site and the locality

The site the subject of the application is a lot of 1333m2 in size, recently created on 7 March 2018 by the registration of a Torrens title subdivision of a larger parcel within 13-17 Madgwick Drive, Armidale. It has frontage to Madgwick Drive to the south, and wraps around the rear of the adjoining lot known as Lot 1 DP1238849.
The site is open grassland, and is vacant other than a metal shed located in the area of the site behind the rear of the adjoining property at Lot 1. It has a fall to the west towards the watercourse located on the far west of the site. A small portion of the site is below the flood planning level.
The surrounding area is characterised by residential development comprising dual occupancies and single dwellings, on a mix of lot sizes varying from 500m2 lots south of Madgwick Drive to 4000m2 lots to the immediate north of the site. Immediately to the east of the site are the recently created Lots 3 and 4 of DP1238849, which are 500m2 and 1450m2 respectively and remain vacant. Lot 4, the 1450m2 lot, is a battle-axe block and also adjoins the site to the rear. Further east are two 4000m2 lots which each contain a dual occupancy.
To the north of the site beyond the battle-axe of Lot 4 are five 4,000m2 lots fronting Cluny Road, of which 3 are vacant and 2 contain residential dwellings.
The site forms part of a larger area of 32,350m2 bounded by Madgwick Drive and Cluny Road that was the subject of a change in zoning from R2 - Low Density Residential to R1 - General Residential as a result of an amendment to the Armidale Dumaresq Local Environmental Plan 2012 ("ADLEP 2012") on 16 September 2016.
However, the area around the watercourse remained zoned E4 - Environmental Living, as pictured in Figure 3.
The areas to the west, north and south west of the rezoned area have lower density zonings or are zoned for environmental management, educational establishments or primary production. The areas to the south, east and south east are zoned R1 General Residential. The site is therefore at the furthest north western fringe of the R1 General Residential area of Armidale.
Madgwick Drive is a distributor road connecting Armidale to the University of New England. It currently does not have kerb or gutter.

The history of the site

The site has a history, together with the other lots that now comprise DP1238849, of forming part of a registered community title scheme comprising three lots plus a common property lot.
Relevantly, on 5 December 2017, the Council approved DA-95-2017/B, the second application to modify an earlier consent identified as DA-95-2017. The result of the approval was that consent was granted to a four lot Torrens title subdivision of the land previously known as Lot 1 of DP 1147739 and which comprised the whole of the community title scheme. It was this consent that caused the registration of DP 1238849 and the creation of Lot 2, the site the subject of this application.
Prior to the registration of DP 1238849, Ms Donnellan was required to, and successfully did, obtain orders from the Supreme Court to terminate the community title scheme (see Community Association DP 270982 v Registrar-General for New South Wales [2018] NSWSC 225). Had there been no new subdivision plan for the land that comprised the whole of the community title scheme, on the termination of the scheme s 70(4) of the Community Land Development Act 1989 would have the effect of reinstating Lot 1 of DP 1147739.

Planning Controls

Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
As demonstrated by Figure 3, the site is zoned partly R1 General Residential and partly E4 Environmental Living under the ADLEP 2012. The proportion of the site which is the R1 zone is approximately 1125m2 and that which is zoned E4 is approximately 208m2. Clause 2.3(2) requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone".
The objectives of the R1 General Residential zone are as follows: "• To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents."
The objectives of the E4 Environmental Living zone are: "• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. • To ensure that residential development does not have an adverse effect on those values. • To provide for a limited range of uses that does not adversely affect the special environmental values or residential amenity of the area."
Clause 2.6 of the ADLEP 2012 provides that subdivision is permissible with development consent. However, cl 4.1 establishes a minimum lot size for the subdivision of land, and provides at (3) that: "(3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land."
The minimum lot size applicable to the site that is now zoned R1 changed with the amendment to the ADLEP 2012 on 16 September 2016 and is now 500m2. The minimum lot size applicable to the E4 zone is 1 hectare.
As the original lot comprises both R1 and E4 zoned land, cl 4.1D applies to permit subdivision despite the non-compliance with the minimum lot size for that part of the land that is zoned E4. It provides: "(2) This clause applies to each lot (an original lot) that contains: (a) land in a residential, business or industrial zone, and (b) land in Zone RU1 Primary Production, Zone RU4 Primary Production Small Lots, Zone E3 Environmental Management or Zone E4 Environmental Living. (3) Despite clause 4.1, development consent may be granted to subdivide an original lot to create other lots (the resulting lots) if: (a) one of the resulting lots will contain: (i) land in a residential, business or industrial zone that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land, and (ii) all of the land in Zone RU1 Primary Production, Zone RU4 Primary Production Small Lots, Zone E3 Environmental Management or Zone E4 Environmental Living that was in the original lot, and (b) all other resulting lots will contain land that has an area that is not less than the minimum size shown on the Lot Size Map in relation to that land."
The proposed subdivision complies with cl 4.1D(3), as (a) is satisfied by proposed lot 6 comprising around 623m2 of land in the R1 zone and the entirety of the E4 land in the original lot, and (b) is satisfied by the compliance of proposed lot 7 with the minimum lot size of 500m2. The subdivision of the land is therefore permissible with consent.
Chapter 3.1 of the ADDCP 2012 applies to the development application and sets out the controls with respect to urban residential subdivision. Part 1 of this chapter contains the general provisions, with the following objectives: "O.1 To encourage well thought out design at the subdivision stage. O.2 To ensure consideration of site opportunities and constraints, including layouts that allow future development to maximise solar access to primary living/working areas. O.3 To ensure that large subdivision design provides for a range and mix of lot sizes and shapes. O.4 To ensure that the layout design of the subdivision provides for the maximum retention of existing trees and native vegetation. O.5 To ensure that subdivision design provides for adequate and well designed road, stormwater drainage, and utility infrastructure in a logical position on the land. O.6 To ensure that street and pedestrian networks provide for safe and efficient travel for vehicles, bicycles and pedestrians."
Part 2 of Chapter 3.1 concerns lot design, layout and dimensions. The first four objectives of this part (of 9 objectives in total) are as follows: "O.1 To provide a range of lot sizes to suit a mix of housing types and sizes. O.2 To ensure that lot shape, orientation and dimensions provide for adequate separation between adjoining residential developments for privacy and to maximise solar access for future dwellings. O.3 To provide for lots of a regular shape for maximum lot yield. O.4 To ensure that all new lots are provided with adequate frontage to a public road and long, narrow lots and battleaxe lots are avoided."
The specific controls that are set out by the ADDCP 2012 to meet these stated objectives include the following: "S.3 All new lots must have a 4 star rating or higher in accordance with Solar Access for Lots - Guidelines for Solar Efficient Residential Subdivision in Armidale (Appendix 1). S.4 Lot design ensures that each lot: a) will not be overshadowed by neighbouring houses to the north. b) can have a sufficiently long north facade to receive winter sun. S.5 Streets are aligned in a north-south or east-west direction. S.6 East-West Streets - suitable for small lots, with narrow lots on the north side and wide lots on the south side of the street. … S.8 A new lot created as a result of a subdivision shall be of a regular shape where possible. S.9 The depth of the lot should not exceed the width of the lot by more than 4:1, unless it can be justified based on the site analysis that there are no viable alternative solutions. S.10 Wedge shaped lots are to be kept to a minimum, and will generally only be supported at the head of a cul-de-sac. … S.12 Battleaxe blocks are not permitted in the R1 General Residential, R2 Low Density Residential and R5 Large Lot Residential zones except where it can be demonstrated that no alternative solution is possible. S.13 Where the creation of a battleaxe block is justified (above) and is acceptable to Council, the minimum width of the driveway handle is to be 4m wide in the R1 zone, and 20m wide in the R2 and R5 zones. … S.15 No battleaxe handles are to be directly adjoining. S.16 Subdivisions creating multiple battleaxe lots will not be allowed."
Part 6 of Chapter 3.1 of the ADDCP 2012 concerns vehicle access for urban residential subdivision, and has the following objectives: "O.1 To ensure all development has legal and properly constructed access. O.2 To prevent private access arrangements over adjoining land (rights-of-carriageway) for new lots. O.3 To ensure that the standard of public roads is sufficient for traffic likely to be generated by a development. O.4 To minimise future costs to the community associated with road improvement. O.5 To ensure property access is located with safe sight distances on public roads."
The relevant standards to achieve these objectives include the following: "S.1 All new lots created by a subdivision must have legal and properly constructed access. Depending on the circumstances, the following options are available for providing access: a) Public Road as defined under the Roads Act 1993 b) Construction and dedication of a Crown Road as a Council public road. S.2 Where a road is to be constructed or upgraded it shall be constructed to the minimum road standard as shown in Tables 1 & 2 (below). S.3 Each new lot created by a subdivision shall have public road access to the minimum road standard specified in Tables 1 & 2. … S.11 Where subdivisions will have frontage to an existing Public or Crown Road that is unconstructed or is not maintained by Council, the full cost of upgrading that road to Council's specification is to be borne by the developer. … Part 6.6 S.28 All kerb and guttering is to be provided as required by Table 2: Standards for Street Types (above) and the Engineering Code."
Table 1 within Part 6 makes it clear that kerb and gutter is required for roads within the R1 zone, but not for roads within the R2 zone. Table 2 shows that Madgwick Drive is a major distributor road, and that therefore a site specific design for the road is required.
Part 6.6 (S28) refers to the Engineering Code, the current version of which is the Engineering Design Code Specification D1 Geometric Design, which specifies at Table D1.6 that distributor roads in the R1 zone are required to have SA barrier kerb.
In considering the objectives and the controls of Chapter 3.1 of the ADDCP 2012, s 4.15(3A)(a) of the EPA Act prevents more onerous standards being imposed where the standards are met and s 4.15(3A)(b) of the EPA Act requires flexibility where the standards are not met. Specifically, s 4.15(3A) provides: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria."

Evidence

Expert opinion evidence was given on the town planning issues by Mr Ian Glendinning, engaged by Ms Donnellan, and Mr John Goodall, an employee of the Council. Mr Glendinning and Mr Goodall participated in a joint conference by telephone and produced a joint report, and gave concurrent evidence at the hearing.
Expert opinion evidence with respect to the requirement for kerb and guttering was given by Mr Steve McElroy, an engineer engaged by the Council, and Mr Alan Denniss, an engineer engaged by Ms Donnellan. Whilst both Mr McElroy and Mr Denniss participated in a joint conference by telephone and produced a joint report signed by them both, Mr Denniss did not attend the hearing to give evidence despite an order of the Court requiring him to so attend. Mr McElroy gave evidence at the hearing.

The role of the Court on the appeal

In considering the appeal, the Court re-exercises the functions of the Council in determining the application for development consent (s 39 of the Land and Environment Court Act 1979). The Court's role is therefore to assess and determine the application on its merits, based on the evidence in the proceedings and in accordance with s 4.15 of the EPA Act.
The Council's position is that a better lot layout could be configured using adjoining land also owned by Ms Donnellan, and Mr Goodall's opinion is that a better lot layout and design would be achieved by Ms Donnellan consolidating other lots in her ownership and creating a better overall scheme for the subdivision of the rezoned land. Similarly, Ms Donnellan suggested in her closing submissions that if I was to find against her on the subdivision as presently sought, I ought to consider whether a more favourable outcome would be the strata subdivision of Lot 2 DP1238849 into two lots, or a Torrens title subdivision of the larger area comprising DP 1238849.
However, it is not the role of the Court to consider whether a better, alternative proposal should be pursued in lieu of the present application. Rather, my role is to consider the merits of the present development application for the subdivision of Lot 2 DP1238849 into two lots. Without there being any policy by the Council as to how the rezoned area is to be planned and subdivided, I can only consider the merits of the application against the controls in the ADDCP 2012 and the provisions of the ADLEP 2012, and how those provisions should be applied in the circumstances of the present application, together with any other relevant matters that arise in the context of consideration under s 4.15. Whilst the question of whether there is another lot layout that could be pursued for Lot 2 of DP1238849 may arise for consideration insofar as it is relevant to the application of the relevant controls and provisions, whether there is a better alternative subdivision that should be proposed for the larger area does not.

The weight to be given to the ADDCP 2012

Ms Donnellan submits that the ADDCP 2012 should not be given any weight, as it is not a statutory instrument. She refers to s 3.42 of the EPA Act, which states the purpose of a development control plan and makes it clear that the provisions of a development control plan are not statutory requirements. Section 3.42 provides: "(1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development: (a) giving effect to the aims of any environmental planning instrument that applies to the development, (b) facilitating development that is permissible under any such instrument, (c) achieving the objectives of land zones under any such instrument. The provisions of a development control plan made for that purpose are not statutory requirements."
Ms Donnellan also submits that no weight should be given to the ADDCP 2012 because it has been delegitimised by state policy in the form of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("SEPP ECDC"). Ms Donnellan relies on cl 3.1 of the SEPP ECDC, which allows the erection of a new 1 or 2 storey dwelling if certain lot requirements are met. Ms Donnellan points out that the lot requirements at cl 3.1(3)(c), which requires a width of 6m for the lot at the building line, and cl 3.1(3)(f), which requires a battle-axe lot to be at least 12m by 12m with an access laneway of 3m width, are inconsistent with the provisions of the ADDCP 2012 with respect to the minimum frontage and access handle width, which are 12m and 6m respectively. She submits that if the lots were created, they would easily comply with the lot requirements of cl 3.1 of the SEPP ECDC and be adequate for the construction of a dwelling house, contrary to the requirements of the ADDCP 2012 with respect to lot design and layout.
Ms Donnellan submits that, as a result of recent changes to the SEPP ECDC, which allow Torrens title subdivision of multi-dwelling housing and dual occupancies for which a complying development certificate has been issued as complying development (see cl 6.3), there arise similar inconsistencies with the subdivision requirements of the ADDCP 2012. She submits, therefore, that once the changes apply to land in the Armidale Regional Council area, she could proceed to erect dual occupancies and multi-dwelling housing on the lots as complying development, with Torrens title subdivision. In those circumstances, she says she would not be required to meet the requirements of the ADDCP 2012 for lot layout and design, or for kerb and guttering.
Ms Donnellan submits that these inconsistencies render the provisions of the ADDCP 2012 irrelevant, and also points to the general presumption that a State environmental planning policy prevails over other instruments, pursuant to s 3.28 of the EPA Act.
In support of the submission that the ADDCP 2012 is rendered irrelevant by the provisions of the SEPP ECDC, she relies on the decision of the McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472. After considering the authorities on the weight to be given to a DCP, McClellan J summarises the principles as follows (at [87]): "• A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan. • A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. • A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. • A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies. • Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property."
Ms Donnellan submits that, consistent with the words of McClellan J, due to the inconsistencies with the SEPP ECDC, the ADDCP 2012 is inconsistent with policy outcomes adopted at a State level and therefore should be given little weight.
Ms Donnellan also submits that with respect to kerb and gutter, the Council has consistently departed from its asserted requirement, in the ADDCP 2012, for it to be provided. This departure is evidenced in the development consents for the site and adjoining land known as DA-207-2016, DA-3-2018 and DA-95-2017, all of which did not impose a condition of consent requiring the construction of kerb and gutter. Ms Donnellan submits that the fact that DA-207-2016 and DA-3-2018 related to the community title scheme is irrelevant. Ms Donnellan submits that this inconsistent approach is relevant because of the statement by McClellan J in Stockland Development Pty Ltd v Manly Council that (at [87]) a "development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied."
Finally, Ms Donnellan submits that the ADDCP 2012 is not an environmental planning instrument and its provisions are not development standards, by reference to the definition of the same terms in the EPA Act and by reference to the State Environmental Planning Policy No 1 - Development Standards ("SEPP 1"). She submits that this reflects the view of the State that a DCP is of such low priority that no request to vary its standards is required. She submits that the Council's reliance on the ADDCP 2012 is such that it seeks to inappropriately elevate it to the status of an environmental planning instrument. Further, she submits that objections to the provisions of the ADDCP 2012 should be considered in the same way objections made under SEPP 1 can be made concerning development standards.
The Council acknowledges that the ADDCP 2012 is not an environmental planning instrument, and that neither the requirements of SEPP 1 nor of cl 4.6 of the ADLEP 2012 (which replaced the operation of SEPP 1) need to be satisfied. The Council nonetheless submits that the ADDCP 2012 is required to be a focal point of the Court's consideration, consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167, in which Spigelman CJ determined at [75] that, as a result of s 79C (now renumbered s 4.15): "DCP 23 had to be considered as a "fundamental element" in or a "focal point" of the decision making process. A provision so directly pertinent to the application for consent before the Council as was cl 4.0 of DCP 23 was entitled to significant weight in the decision making process but was not, of course, determinative."
As such, the Council acknowledges that the provisions of the ADDCP 2012 are not determinative, but submits that they are required pursuant to s 4.15(1) to be a focal point for the exercise of the Court's discretion in carrying out the functions of the consent authority.
The Council submits that the provisions of the SEPP ECDC are not relevant to the present application, and do not operate to create any inconsistency with the ADDCP 2012.

The ADDCP 2012 should be a "focal point"

Whilst it is acknowledged by the Council, and readily appreciated by the Court, that the ADDCP 2012 does not fall within the definition of an environmental planning instrument, I do not accept the submission of Ms Donnellan that it ought not be given any weight. Instead, for the following reasons I am of the view that the ADDCP 2012 should be a fundamental consideration and a focal point in the exercise of the discretionary power of the Court, in carrying out the role of the consent authority, to determine whether development consent should be granted, and if so on what conditions.
Firstly, the Court, in carrying out the functions of the consent authority, is bound by the provisions of s 4.15 of the EPA Act and therefore required pursuant to s 4.15(1)(a)(iii) to give the ADDCP 2012 consideration. In accordance with the decision of Spigelman CJ in Zhang v Canterbury City Council, this means it must be a "fundamental element" in or a "focal point" of the exercise of the Court's discretion in determining whether to grant development consent.
Secondly, that it is not a statutory instrument or an environmental planning instrument does preclude it from being given weight. What it instead means is that a development control plan cannot mandate refusal of an application. Instead, it is an instrument that guides the consent authority in the exercise of their discretion. That is, a development application can be refused on the basis of failure to comply with the objects and controls of a development control plan, not because the development control plan mandates its refusal but because the discretion of the consent authority can be exercised in accordance with the development control plan to do so. It is this exercise of discretion in accordance with the plan that achieves the consistency in decision-making referred to by McClellan J in Stockland Development Pty Ltd v Manly Council (at [87]).
The only restriction on the exercise of discretion in accordance with the development control plan is in s 4.15(3A), which prevents the consent authority from requiring something more onerous than what is in the development control plan (subs 3A(a)), requires that it be applied flexibly to look at other solutions that meet the objectives (subs 3A(b)), and can only be considered insofar as it is in connection with the development application (subs 3A(c)).
Thirdly, there is no inconsistency with the SEPP ECDC as the manner in which the SEPP ECDC operates is different to the consideration of a development application. The SEPP ECDC prescribes certain development to be either 'complying' or 'exempt' development for the purpose of the SEPP ECDC, and only if it meets specified criteria can it be 'complying' or 'exempt' development. If those criteria are met, you do not have to apply to the Council for development consent and therefore s 4.15(1)(a) of the EPA Act does not apply to require the ADDCP 2012 to be considered. SEPP ECDC provides, therefore, a separate avenue for carrying out certain types of development if certain criteria are met. Differences between those criteria and standards in a ADDCP 2012 might result in differences in outcomes, but they do not create an inconsistency that invalidates the ADDCP 2012 when it applies through s 4.15(1)(a).
Finally, contrary to the submission made by Ms Donnellan, there is no attempt by the Council or by the Court, in exercising the functions of the consent authority, to elevate the status of the ADDCP 2012 to that of an environmental planning instrument. The Council indicated its agreement with Ms Donnellan that the standards in the ADDCP 2012 are not development standards, and I accept the same. Contrary to Ms Donnellan's submission that the consent authority should take the same approach as a SEPP 1 objection, SEPP 1 and cl 4.6 of the ADLEP 2012 (which replaced the operation of SEPP 1) have far more onerous requirements than what is required to satisfy s 4.15(3A) of the EPA Act. In any event, neither SEPP 1 nor cl 4.6 applies.
As a result, whilst the ADDCP 2012 must remain a focal point, I am required pursuant to s 4.15(3A)(b) to take a flexible approach to the provisions of the ADDCP 2012 and allow alternative solutions for meeting the objectives of those provisions.
The submissions of Ms Donnellan with respect to her contention that an inconsistent approach has been taken concerning the requirement for kerb and gutter are dealt with below in my consideration of the merits of whether such a condition should be imposed. They do not assist in determining the weight that should be given to the ADDCP 2012 as a whole, but are relevant to the question of whether such a requirement should be imposed if the present application is granted.

Lot Layout and Design

The Council's position is primarily that the proposed subdivision does not comply with O4 of Chapter 3.1 of the ADDCP 2012 to ensure that "all new lots are provided with adequate frontage to a public road and long, narrow lots and battleaxe lots are avoided."
There are five controls in furtherance of this objective that the Council says are not met by the proposal. They are: "S.8 A new lot created as a result of a subdivision shall be of a regular shape where possible. S.9 The depth of the lot should not exceed the width of the lot by more than 4:1, unless it can be justified based on the site analysis that there are no viable alternative solutions. S.10 Wedge shaped lots are to be kept to a minimum, and will generally only be supported at the head of a cul-de-sac. … S.12 Battleaxe blocks are not permitted in the R1 General Residential, R2 Low Density Residential and R5 Large Lot Residential zones except where it can be demonstrated that no alternative solution is possible. ... S.16 Subdivisions creating multiple battleaxe lots will not be allowed."
As such, there are four aspects of the lot layout and design which the Council says results in this objective not being met. The first is that the two proposed subdivided lots are not of a regular shape. The second is that the lot to the east, proposed lot 7, does not comply with the 4:1 ratio in that the depth of the proposed lot is more than four times its width. The third is that proposed lot 7 is a wedge shaped lot with a frontage greater than the length of the rear boundary. The Council says that consistent with S.10, wedge shaped lots are not supported. The fourth is that a battle-axe is created in circumstances where they are not permitted, and where there is an existing battle-axe block to the east of the site.
The Council submits that the result of this lot layout and design is that S3 of Part 2 of Chapter 3.1 of the ADDCP 2012, which requires new lots to have a 4 star rating or higher in accordance with Solar Access for Lots - Guidelines for Solar Efficient Residential Subdivision in Armidale (Appendix 1), would not be met.
The Council submits that in considering the lot design, I can take into account Ms Donnellan's ownership of adjacent land and that she has taken an incremental approach to the development of the land as a whole. The Council submits that the result is that there are already some irregular lots, and they don't want this to be repeated further by the proposed subdivision of Lot 2. The Council says that whilst there is no issue with creating additional lots, a two-lot subdivision of Lot 2 is unlikely to be able to be done in a manner acceptable to the Council.
The Council's position is supported by the evidence of Mr Goodall, who opines that, in a greenfield development site such as this, compliance with the ADDCP 2012 should be achieved. His view is that the lots should be developed to maximise solar orientation and achieve this compliance. Mr Goodall's opinion is that the intensity of the development should not be increased without such compliance, and that the piece-meal approach utilised by Ms Donnellan causes the breaches of the ADDCP 2012.
Mr Goodall's evidence was that although a similar configuration was considered acceptable in the community title scheme, considerations regarding lot size, lot layout and configuration do not arise in considering a community title scheme and the provisions of the ADDCP 2012 with respect to the same do not arise.
Ms Donnellan submits that the proposed lots are the only viable shapes to be able to subdivide Lot 2 given its existing approved shape and dimensions, and in particular, its frontage width. To that end, she says that the existing Lot 2 as approved by the Council is already an irregular shape in its current form and the application proposes to create Lot 6 in a very similar shape with a narrower frontage for the access handle, and Lot 7 as a regular shape identical in size and configuration to the existing adjacent parcel of land at Lot 3.
Ms Donnellan submits that the application satisfies S6 of Part 2 of Chapter 3.1 of the ADDCP 2012, which states that East-West Streets are suitable for small lots with narrow lots on the north side. Lot 2 is on the north side of Madgwick Drive, an East-West street.
Ms Donnellan submits that the application only proposes 1 battle-axe lot, which is acceptable pursuant to S12 of Part 2 of Chapter 3.1 of the ADDCP 2012 if there is no other reasonable alternative. She submits that due to the narrow frontage of the site and its existing irregular shape, there would be no other reasonable alternative layout for the subdivision of the site. She submits, therefore, that the shape of the proposed lots provides for maximum lot yield of the site and therefore meets part of the objective O3. Ms Donnellan points out that there is no evidence to support any alternative lot shapes within the proposed subdivision site.
Ms Donnellan contends that earlier development consents have already approved similar shaped lots to Lot 7 in the prior community title scheme within which the site was located, as well as in the consent for the Torrens title subdivision that created the existing Lot 3, which is the exact same shape as proposed Lot 7.
Similarly, Ms Donnellan contends that earlier development consents have also approved a battle-axe lot of similar shape to proposed Lot 6, such as those approved in the community title scheme and existing Lot 4 created by the consent for the Torrens title subdivision.
She therefore submits that the Council has already approved lots that depart from the 4:1 depth to width ratio, and that proposed Lot 7 is exactly the same shape as the existing Lot 3 which was previously approved for creation as a lot in a Torrens title subdivision.
Further, Ms Donnellan submits that the proposed lots both satisfy S13, the Part 2 of Chapter 3.1 of the ADDCP 2012 minimum frontage requirements, which are 12m for proposed Lot 7, and 4m for proposed Lot 6 as a battle-axe lot. In fact, she says that the frontage for proposed Lot 6 is actually 5.27m wide, or 32% wider than the minimum width required for a battle-axe driveway handle in the R1 zone. This meets objective O4 in Part 2 of Chapter 3.1 of the ADDCP 2012, which requires subdivided lots to be provided with adequate frontage to a public road.
Ms Donnellan also submits that it is unreasonable to require a 4:1 ratio for proposed Lot 7 given that there is a 500m2 minimum lot size and a 12m minimum frontage. To achieve all three requirements, Ms Donnellan says that a lot size of 576m2 would be required. Further, a minimum frontage of 12m could not be achieved if 4:1 was complied with and the lot size was only around 500m2. She also points out that the ratio of a lot that is 500m2 and has 12m frontage would be 3.46:1, whereas her proposed Lot 7 has a ratio of 3.77:1. She submits that this is a minor non-compliance with something that is an 'absurd' requirement. She also relies on the evidence of Mr Glendinning, who opines that it is a minor non-compliance.
In relation to the battle-axe block, Ms Donnellan contends that the proposal satisfies the restriction of only one battle-axe block permissible per development (ADDCP 2012 Chapter 3.1 Part 2 S16), the access handle is less than 50 metres long so no provision for passing is required (ADDCP 2012 Chapter 3.1 Part 2 S14), and no battle-axe handles are directly adjoining (ADDCP 2012 Chapter 3.1 Part 2 S15).
Ms Donnellan also contends that, as with existing adjoining Lot 3, solar access could be reasonably achieved from the rear of a future dwelling on Lot 7. Also, with a 34.6m wide northern boundary, proposed Lot 6 will have more than enough width and ability to achieve good northern solar access. She also asserts that on either of the proposed lots a dwelling could be built in accordance with the SEPP ECDC, which demonstrates that the proposed lots are capable of accommodating a dwelling.
Ms Donnellan's submissions are supported by the evidence of Mr Glendinning, who opines that future dwellings on the lot will have sufficient opportunity to achieve adequate solar access, and that the lot layout is not ideal but nonetheless acceptable and consistent with objectives of the zone. He prepared indicative building outlines to establish that dwellings could be erected on the proposed lots.
As a result, Ms Donnellan submits that the proposed subdivision achieves the objectives of Part 2 of Chapter 3.1 of the ADCP 2012.
Ms Donnellan questioned the veracity of the evidence of Mr Goodall and the opinions given by him. She points to the fact that he is an employee of the Council, and that she has had a difficult history with him regarding the subdivision of her land, whereas no such difficulty arose with a prior employee. Due to his employment relationship with the Council, Ms Donnellan questions whether his opinions are indeed independent and submits that I ought to prefer the evidence of Mr Glendinning.

The configuration of the lots in the previous community title scheme is irrelevant

The configuration of the lots within the previous community title scheme is irrelevant to the present application. The controls with respect to the urban subdivision of land relate to Torrens title subdivision. Community title subdivision occurs within a Torrens title lot, and creates a community title scheme within that Torrens title lot with both common property and lots that can be individually owned. The lots created by a community title subdivision are dissolved on the termination of the scheme and the Torrens title lot on which it was created is reinstated as a lot in a current plan. On the other hand, a lot created by a Torrens title subdivision endures in perpetuity unless consolidated or further subdivided. As such, I accept the evidence of Mr Goodall that different considerations apply to community title subdivision.

The lot layout and design is acceptable in the circumstances

In determining whether the objectives of the ADCP 2012 are met through the proposal, and in adopting the approach required of me in s 4.15(3A)(b), it is necessary to consider how those standards and objectives apply in the circumstances of the present application. Contrary to the opinion of Mr Goodall, the application for the subdivision of Lot 2 is not strictly a "Greenfields" development that is unconstrained by surrounding development and therefore expected to achieve all the relevant controls. Rather, the Council has already approved a Torrens title subdivision of the area into four lots, of which Lot 2 is one such lot. I accept the opinion of Mr Glendinning that the comments of Mr Goodall with respect to it being a Greenfields development relate to an earlier form of the application that had been considered as relating to the whole of DP 1233849.
Similarly, I do not accept the Council's submission that I can consider Ms Donnellan's ownership of adjoining land to determine whether there is an alternative, better solution to meet the objectives of the ADDCP 2012 in accordance with s 4.15(3A)(b). Nor do I accept the submission that there should be an expectation that Ms Donnellan should use her ownership of adjoining land to create a more regular lot configuration for the proposed sub-division. There is no requirement in the ADDCP 2012 for the consolidation of sites to achieve a better lot layout and design. The existing subdivision that created Lot 2, approved by the Council in DA-95-2017/B, has established a lot design and layout for the immediate locality, and the present application must be considered in that context. The question is simply whether the present application is acceptable when considered against the objectives of the ADDCP 2012, applying a flexible approach to the application of the provisions.
In light of this, I accept that the lot layout and design is acceptable for the two lot subdivision of Lot 2 in DP 1233849 and, in the circumstances of the application, sufficiently achieves the objectives in Part 2 of Chapter 3.1 of the ADCP 2012.
Firstly, I accept the submission of Ms Donnellan that the configuration of the proposed lots is a product of the existing irregularly shaped lot. The Council granted approval to DA-95-2017/B, the second application to modify an earlier consent identified as DA-95-2017, which created a four lot Torrens title subdivision including the irregularly shaped Lot 2. The result of that irregular shape of Lot 2 is that there is no other configuration for a two lot subdivision of Lot 2 that would create subdivided lots with adequate road frontage and of adequate size. The Council has not contended that another configuration within Lot 2 exists, but that adjoining land would be required to create a better lot layout. As such, I accept the evidence of Mr Glendinning that the layout is acceptable albeit not ideal. I am therefore of the view that in the circumstances, the proposed two lots that are sought to be created are as best configured as they could possibly be.
Secondly, I do not accept that the numerical non-compliance of proposed Lot 7 with the 4.1 ratio is a reason for refusal of the application in circumstances where the proposed lot meets the 12m frontage requirement and the minimum lot size. Both Mr Glendinning and Mr Goodall agree that the non-compliance with the 4:1 ratio is minor. In fact, Ms Donnellan could achieve compliance with the 4:1 ratio if she shortened the proposed lot 7 to a depth of around 41m, but such an outcome would orphan a parcel of land at the rear of the site that is better included in lot 7, and it would also result in the land not meeting the minimum lot size of 500m2. I accept the submission of Ms Donnellan that it is unreasonable to require compliance with the 4:1 ratio in circumstances where a minimum lot size of 587m2 would be required to do so, where the minimum frontage is met and where the proposed Lot 7 is identical to the adjacent existing Lot 3.
Thirdly, I do not accept that the battle-axe shape of proposed Lot 6 is a reason for refusal given that there is no other configuration for a two lot subdivision of Lot 2 DP 1233849 that would avoid a battle-axe lot. I accept the submission of Ms Donnellan in that regard. It is therefore acceptable pursuant to S12 of Part 2 of Chapter 3.1 of the ADDCP 2012 as there is no other reasonable alternative. As contended by Ms Donnellan, the proposed battle-axe lot complies with the controls for the minimum frontage for the access handle, and there are no adjoining access handles for neighbouring battle-axe lots.
Fourthly, I do not accept that proposed Lot 7 is sufficiently of a 'wedge' shape to warrant refusal. It meets the minimum frontage for a regular shaped lot, there is only a small difference in the lengths of the frontage and of the rear boundary, the shorter rear boundary is the result of the irregular shape of Lot 2, and there exists a lot of exactly the same dimensions in the existing Lot 3 adjacent to proposed Lot 7.
Fifthly, I do not accept that there will be issues with solar access as submitted by the Council and in accordance with the evidence of Mr Goodall. Instead, I prefer the evidence of Mr Glendinning that the proposed lots are of adequate size and shape to design dwellings that will achieve adequate solar access. This follows from the long northern boundary of proposed Lot 6, and the fact that Lot 7 is consistent with the design envisaged by the ADDCP 2012 for east-west streets to have narrow lots on their northern side.
Finally, the two lot subdivision sought makes the best use of the irregular shaped lot created by previous consent, sub-dividing the irregular lot into a single regular lot identical to the adjacent existing lot and a battle-axe block, whilst maintaining adequate frontage to Madgwick Drive for the battle-axe handle and the regular lot frontage. I am therefore satisfied that, in the circumstances, the subdivision seeks a lot layout and design that achieves the objectives of creating regular lot shapes and maximising lot yield. Whilst the objectives of the ADDCP 2012 also include avoiding narrow lots and battle-axe lots, they are an appropriate solution to the present shape of Lot 2 and therefore reasonable in the unique circumstances of the present application.
Given that I have found in favour of Ms Donnellan with respect to the lot layout and design, there is no need for me to determine the issues raised by her regarding the veracity of Mr Goodall's expert opinion evidence arising from his employment by the Council and his prior dealings with Ms Donnellan.

Whether there is power to require the construction of kerb and gutter in a condition of consent

The Council seeks the imposition of a condition of development consent requiring the construction of kerb and gutter along the development frontage in Madgwick Drive, and submits that consent should not be granted without such a condition.
Ms Donnellan submits that such a condition would not be lawful as it does not meet the test set out in Newbury District Council v Secretary of State for the Environment [1981] AC 578 and stated by McHugh J in Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57] as follows: "A condition attached to a grant of planning permission will not be valid therefore unless: 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. "
She submits that it is not reasonable because it would require her to upgrade a road for which the Council is responsible.
Further, she submits that the condition does not relate to the development because it does not benefit the development. In support of this submission, she relies on the principles summarised by Craig J in Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65. At [26], His Honour said that "the condition under challenge must be shown to be both fair and reasonable as it relates to a matter identified in s 79C(1). It must also be shown to be "of relevance" to the development the subject of the consent." In exploring this further, Craig J quotes Biscoe J's discussion of the principles concerning the phrase "fairly and reasonably relate" in Dogild Pty Ltd v Warringah Council 158 LGERA 429; [2008] NSWLEC 53. At [52] of Dogild v Warringah Council, Biscoe J states as follows: "In Parramatta City Council v Peterson (above) Stein J held that "fairly and reasonably relate" means that the development is "benefited" by the public amenity provided. He said at 296 "In my opinion the second test of whether the condition fairly and reasonably relates to the permitted development is not answered simply by geographical proximity but rather whether the development is benefited by the public amenity provided. There is no doubt that it must benefit, (as indeed will the Parramatta CBD as a whole), even though the benefit may not be a direct one (in terms of geographical proximity)". A narrower and more rigid test of an "identifiable nexus" and a "direct connection" was rejected: at 295. Peterson, a s 94 condition case, was approved in the context of a non-s 94 condition in this Court in McGregor v Bathurst City Council [1995] NSWLEC 71 by Pearlman J who said: "The second of the Newbury tests was considered by Stein J in Parramatta v Peterson at 296-7 in which his Honour stated the Court's approach to this test should be a broad rather than a narrow approach and that the test is whether the permitted development is benefited by the condition imposed."
She relies on these authorities to support her position that the condition must benefit the development. Ms Donnellan submits that the provision of kerb and gutter will not benefit the development because water will adequately drain to the rear of the property. In support of this submission, she relies on a statement of Mr Denniss made in a letter attached to the Statement of Environmental Effects, which refers to land fronting Cluny Road and says that: "As the land falls away from Cluny Road, any proposed dwellings are not likely to drain to any new kerb & gutter in Cluny Road. The dwellings will drain to the rear of the property like the existing houses at 15 and 17 do. Any requirement to provide kerb and gutter in a development consent condition would not fairly and reasonably benefit this land."
Ms Donnellan also submits that the only power pursuant to which the condition could be imposed is s 4.17(1)(h) of the EPA Act, which allows a condition to be authorised to be imposed under s 7.11. She submits that requiring the installation of kerb and gutter is works that are "in kind" with the contribution toward provision or improvement of amenities or services authorised pursuant to s 7.11 of the EPA Act. Section 7.11(1) provides: "(1) If a consent authority is satisfied that development for which development consent is sought will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant the development consent subject to a condition requiring: (a) the dedication of land free of cost, or (b) the payment of a monetary contribution, or both."
Notwithstanding that the condition sought by the Council does not require the dedication of land or the payment of a monetary contribution, Ms Donnellan relies on subs (3)(b) and (5)(b) to support her position that the condition requiring kerb and gutter is "in kind" to the requirement for the payment of a monetary contribution. Those subsections provide as follows (emphasis added): "(3) If: (a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and (b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services, the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations). (4) A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned. (5) The consent authority may accept: (a) the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or (b) the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3)."
Ms Donnellan submits that as there is no contributions plan requiring the payment of a contribution, there is no power to impose a condition that is in kind with a condition requiring a contribution. To this end, she relies on s 13(1) of the EPA Act, which provides: "(1) A consent authority may impose a condition under section 7.11 or 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division). … (3) A condition under section 7.11 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction."
Ms Donnellan therefore submits that as there is no contributions plan, the Council, and therefore the Court, is not authorised to require or compel the construction of road and related infrastructure through a condition of development consent as such a condition is in kind with a condition for payment of a contribution.
Further, Ms Donnellan submits that there is no power to impose the condition on a technicality, as the ADDCP 2012 does not specify the requirement for kerb and gutter, and the Statement of Facts and Contentions relied upon by the Council only specifies Part 6.6 of the ADDCP 2012. Part 6.6 makes it clear that "All kerb and guttering is to be provided as required by Table 2: Standards for Street Types (above) and the Engineering Code." Ms Donnellan submits that Table 2 does not specify that kerb and gutter is required for development in the R1 zone.
Finally, Ms Donnellan refers to the Engineering Code at D1.44, paragraph 2, which states that "Where it is considered impractical to construct an isolated section of kerb and gutter and road pavement, Council may require the developer to pay a Contribution in lieu of construction, based on the estimated full cost of the works calculated by Council." She submits that firstly, the engineering code cannot be considered a development control plan or an environmental planning instrument, and that secondly, it cannot give authority to compel a contribution pursuant to s 7.11.
The Council submits that the power pursuant to which the condition is sought to be imposed is s 4.17(1)(f) of the EPA Act, which allows the imposition of a condition of consent that "requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15 (1) applicable to the development the subject of the consent". As section 4.15(1) refers to the development control plan, the Council submits that s 4.17(1)(f) allows a condition of development consent to be imposed requiring the construction of kerb and gutter where the development control plan requires it.
In support of this submission, the Council refers to the decision of Court of Appeal in Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308. In that decision, the Court of Appeal was considering the validity of a condition of development consent requiring the developers to place underground the electricity and telecommunication cables adjacent to the development site. The condition gave effect to the development control plan, which provided "all service cables in the street adjacent to… any development site… are required to be placed underground". Tobias AJA considered that the condition was valid on the basis of the statutory authority found in s 80A(1)(a) and (f) (now s 4.17(1)(a) and (f)), and stated at [88] that "the outer boundaries of the statutory power exercised by the Council in the present case to impose Condition 32 is to be found in that provision of the DCP". Further, in considering the application of the Newbury principles, Basten JA found that (at [20]) "Improvement to the amenity of the area immediately adjacent to the development is a proper subject of an approval; it is not advanced by restricting the obligation to cables providing services to the development itself". He refers also to the decision of the High Court in Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; 58 ALJR 386, in which Gibbs CJ found that a condition requiring the upgrading of a road and bridge away from the development site could properly be the subject of a condition attaching to the development consent.
The Council submits, therefore, that if there is a development control plan requiring the carrying out of works, then there is authority for the consent authority to impose a condition of consent requiring those works to be carried out. The Council submits that such a requirement is established in Part 6 of Chapter 3.1 of the ADDCP 2012, specifically in Table 1, Table 2 and Part 6.6.
The Council also submits that caution should be taken in applying the principles described as the "Newbury principles", consistent with the comments made by Basten JA in Botany Bay City Council v Saab Corp Pty Ltd. Basten JA states that "the validity of a condition imposed on a development approval under the EP&A Act falls to be considered within the terms of s80A of the Act" (at [9]), and that the test "may be described as objective, in the sense that the reviewing court, having regard to the statutory regime and the circumstances of the case, will identify the outer bounds of the limits of the power" (at [10]). The Council therefore submits that as condition requiring the construction of kerb and gutter falls within s 4.17(1)(f), it is within the terms of s 4.17 (formerly s 80A) and therefore within the bounds of the power under that section.
Further, the Council submits that none of the authorities relied upon by Ms Donnellan as requiring that the site "benefit" from the condition are relevant to the imposition of a condition of consent pursuant to s 4.17(1)(f). The Council says that each of those authorities relate to the imposition of conditions of consent requiring the payment of contributions. As such, the Council submits that there is no requirement for the site or the development to benefit from the works required in order for the condition to be imposed.
The Council also submits, contrary to the submission of Ms Donnellan, that s 7.11 of the EPA Act does not authorise the imposition of a condition of development consent to carry out works on public land. It says that the reliance of Ms Donnellan on s 7.11(5)(b) is misguided, as this allows a consent authority to accept public works in lieu of a contribution. The Council agrees with Ms Donnellan that there is no authority to impose a condition requiring the payment of a contribution pursuant to s 7.11 of the EPA Act, but states that the condition requiring works is sought pursuant to s 4.17(1)(f) and is not "in kind" with a condition requiring a contribution.
Ms Donnellan, in response, submits that it is not reasonable for the Council to impose any condition flowing from a development control plan, as that would open the door for the Council to impose unreasonable conditions arising from a document that is not an environmental planning instrument.

There is power to impose a condition requiring kerb and gutter

I accept the submission of the Council that there is power to impose a condition requiring the construction of kerb and gutter. Firstly, the power arises pursuant to s 4.17(1)(a) and (f) of the EPA Act. The ADDCP 2012 and its provisions are a relevant matter pursuant to s 4.15(1) of the EPA Act. Section 4.17(1)(a) authorises the imposition of a condition of consent that relates to any matter "referred to in section 4.15(1) of relevance to the development the subject of the consent", and s 4.17(1)(f) authorises a condition that "requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent".
I am satisfied that Part 6 of Chapter 3.1 of the ADDCP 2012, at S1, S2, S3, table 1, table 2 and Part 6.6 (S28) taken together, establishes a requirement for kerb and gutter to be provided for development for the subdivision of land in the R1 zone. I note that the terms of those provisions are not unequivocally prescriptive in their imposition of the obligation on a developer. However, when they are considered in light of the objectives of Chapter 3.1 and of Part 6, which are "to provide guidance to developers on planning and design principles at the subdivision stage of the design process" (Part 1.1) and "To ensure that subdivision design provides for adequate and well designed road, stormwater drainage, and utility infrastructure…" (Part 1.2 O5) it is clear that the requirements referred to at S1, S2, S3, table 1, table 2 and Part 6.6 (S28) are requirements for the developer carrying out a subdivision. As such, pursuant to s 4.17(1)(a) and (f) there is power to impose a condition requiring the same with respect to a two-lot subdivision in the R1 zone.
If I was to apply what Ms Donnellan has referred to as the Newbury principles, that the condition arises pursuant to the provisions of the ADDCP 2012 and in accordance with s 4.17(1)(a) and (f) satisfies the first of the principles that the condition must have a planning purpose. That planning purpose aligns with the objectives of Part 6 of Chapter 3.1 of the ADDCP 2012.
I do not accept the submission of Ms Donnellan that the fact that the Statement of Facts and Contentions confines its reference to Part 6.6 estops the Council from relying on other provisions in Part 6 to authorise a condition requiring the construction of kerb and gutter. Those provisions and their application by the Council to require kerb and gutter for subdivision in the R1 zone have been known by Ms Donnellan for some time, and were the subject of a detailed request in the Statement of Environmental Effects lodged by her in support of the development application.
Secondly, there is no requirement under the principles derived from Newbury District Council v Secretary of State for the Environment or from any other authority of the Court of Appeal that the condition of consent must "benefit" the development in some way. Instead, all that is required for the second Newbury test is that it "fairly and reasonably" relates to the development. This can be seen from the remainder of the discussion by Biscoe J at [52] of Dogild v Warringah Council, in which His Honour states that: "Although this line of authority indicates that such a benefit is sufficient to satisfy the second Newbury test, it may not be inconsistent to envisage cases where a condition is fair and reasonable in the circumstances of a particular case (to use Callinan J's description) even if it does not benefit the permitted development."
The principle that the condition must "fairly and reasonably" relate to the development also flows from the wording of s 4.17(1)(f), which requires that the works relate "to any matter referred to in section 4.15(1) applicable to the development the subject of the consent" (emphasis added).
I am satisfied that the requirement for kerb and gutter on the development frontage "fairly and reasonably" relates to the development, as it upgrades the road access to meet the standards required for the R1 zone, therefore improving the road access to the development. As set out in Botany Bay City Council v Saab Corp Pty Ltd, "[i]mprovement to the amenity of the area immediately adjacent to the development is a proper subject of an approval" (Basten JA at [20]).
Thirdly, there is nothing about the condition that meets the test that it is "so unreasonable" that no reasonable consent authority would have imposed it. I do not accept that it is "in kind" with a condition imposed for a contribution pursuant to s 7.11, as s 7.11 does not authorise the imposition of a condition requiring works to be carried out on the public road. I do not accept that the fact that it requires works on public road means that it is unreasonable in any way, given that this is precisely what is envisaged by the inclusion of the words "whether or not being works on land to which the application relates" in s 4.17(1)(f).
As such, I am satisfied that there is power to impose a condition of consent requiring the installation of kerb and gutter.

Whether gutter and kerb is required

I now turn to whether such a condition of consent should be imposed in the circumstances of the present application.

The Council submits that a condition for construction of kerb and gutter should be imposed

The Council submits that it is appropriate to impose a condition requiring the construction of kerb and gutter in circumstances where the proposed subdivision results in an intensification of development and land use, and where the land is now zoned R1 General Residential. No such kerb and gutter is required for land zoned R2.
The Council submits that the requirement to install kerb and gutter in subdivision in the R1 zone is reflected in tables 1 and 2 of the ADDCP 2012 Chapter 3.1, as well as in Part 6.6 of Chapter 3.1. The Council submits that it has consistently applied this requirement to impose a condition requiring the construction of kerb and gutter on development consents granted for subdivision in the R1 zone. The Council says that any development consents that depart from that requirement did so in circumstances in which it was appropriate, such as where the subdivision did not result in any intensification. In support of this submission, the Council relies on the evidence of Mr McElroy and Mr Denniss in the joint report, which includes details of 16 development consents in the outlying residential R1 zoned area of Armidale with a condition requiring kerb and gutter to be constructed.
The Council says that for the three development consents granted following the rezoning and concerning the area now comprised of DP 1238849, kerb and gutter was not required as a result of the particular circumstances of each consent. The first consent, DA 207-2016 related to the community title land and did not result in an increase in or intensification of the number of building lots. The second, 95-2017/A, added an additional building lot but maintained the community title scheme. In both of these circumstances, the Council did not consider it sufficient intensification to warrant a requirement for the construction of kerb and gutter, despite their view that it was a requirement in the ADDCP 2012 for it to be constructed. The third approval, of modification application 95-2017/B resulted in consent for the creation of the Torrens title subdivision with the same number of lots as in 95-2017/A.
The Council submits that although kerb and gutter was not considered as a requirement for these previous development consents, they can be distinguished from the present application as they either concerned community title subdivision or did not result in intensification. Further, they submit that this present application can be distinguished as it is the first application that increases the intensity of the land comprising DP 1238849 to include five building lots.
The Council relies on the evidence of Mr Goodall that Ms Donnellan's approach to the development of DP 1238849 and her surrounding land has had an incremental effect of increasing the intensity of development of the area, which the Council now says should only continue on the condition that kerb and gutter be constructed. Mr Goodall's evidence is that there have been around 15 development applications concerning the land that now comprises DP 1238849, and around 40 concerning the whole of the land that has been rezoned. Whilst not all of the development consents granted have been commenced, the Council submits that the incremental approach taken by Ms Donnellan could, if kerb and gutter is not required, perpetuate a bad precedent for the intensification of development in the R1 zone in which kerb and gutter is expected. As such, the Council submits that it has come to a point at which it is not reasonable to continue the intensification without the requirement for kerb and gutter.
The Council submits that there is no evidence of the unreasonableness of the condition requiring the construction of kerb and gutter, and that it is therefore merely speculation that such a condition is onerous.
The Council points out that one of the two areas of disagreement between Mr McElroy and Mr Denniss relates to the effect of constructing the kerb and gutter in circumstances where there is no other kerb and gutter on Madgwick Drive. Mr Denniss' opinion is that any new kerb and gutter would be left isolated. The Council points out that Mr Denniss was not made available for cross-examination, and that when Mr Glendinning was cross-examined regarding the effect of the construction of kerb and gutter, he agreed that any such isolation was limited to a point in time before future development occurred or the Council upgraded the road. The Council therefore submits that any isolation would be limited to a point in time, and relies on the evidence of Mr McElroy that it would be unlikely to be left isolated.
The Council relies on the evidence of Mr McElroy, which is that the development would benefit from the provision of kerb and gutter across its Madgwick Drive frontage "for the purpose of improved drainage, a safer and better graded driveway entrance to the site and improved presentation to the front of the property." His evidence is also that the provision of kerb and gutter "would prevent the edge break currently occurring in Madgwick Drive and will negate the current [scour] problem in this section of the drain". He opines that kerb and gutter will "help to improve and sustain good stormwater drainage, particularly when intensification occurs as a result of rezoning."
Finally, the Council submits that in the circumstances of the rezoning of the area to R1 General Residential, the intensity of development is going to continue to increase and it is therefore appropriate for kerb and gutter to be constructed to reflect the requirements for roads in the R1 zoned area. The Council submits that this increase in intensity will occur whether or not Ms Donnellan stays in ownership of the land in the rezoned area, and that the scope for further development does not depend on her retaining ownership of the adjoining land.

Ms Donnellan submits that a condition for construction of kerb and gutter should not be imposed

Ms Donnellan opposes the imposition of the condition on a number of grounds. She submits that with respect to the land the subject of the application, as demonstrated in DA 207-2016, DA 95-2017/A, and 95-2017/B, the Council has consistently decided to depart from the provisions of the ADDCP 2012 that require kerb and gutter. She submits that it is not now open to the Council to take a different approach. She submits that Stockland Development Pty Ltd v Manly Council is authority for the proposition that it is a fundamental right of a landowner to know what is open to them for development, and that future decisions should be consistent with earlier development consents. As a result, Ms Donnellan submits that development consent for the subdivision of Lot 2 into 2 lots should follow the precedent of earlier consents for the land that is now contained in DP1238849, and not require the construction of kerb and gutter. She submits that no reliance should be placed on development consent number 155/2017, which was granted subject to the requirement to construct kerb and gutter, but was surrendered to the Council prior to these proceedings.
Ms Donnellan also points out that the construction of kerb and gutter will result in isolated kerb and gutter. She relies on the evidence of Mr Denniss and Mr Glendinning, who both opined that it was not desirable to have an isolated section of kerb and gutter. She submits that the land along Madgwick Drive should be considered "fully developed", and that therefore no further kerb and gutter would be required as a condition of development consent for other development along Madgwick Drive.
Ms Donnellan submits further that it is unviable and unreasonable to require works to be carried out that do not benefit the development. She points out that Mr McElroy acknowledged that the requirement for maintenance of the swale drain and the road is the responsibility of the Council, and submits that it is not her responsibility to provide kerb and gutter for an asset that should be maintained by the Council. In her Statement of Facts and Contentions in Reply, she contends that it is economically unviable to install kerb and gutter for a two lot subdivision, which will result in the development not proceeding.
Also, she points to the fact that if development for the subdivision of land is pursued pursuant to the SEPP ECDC, kerb and gutter will not be required.
Ms Donnellan submits that the swale drain currently in existence along Madgwick Drive functions "perfectly well", and relies on the evidence of Mr Denniss that there is no improvement to the drainage in Madgwick Road with the provision of kerb and gutter. She submits that in this context, there is such little intensification in a two lot subdivision that a condition requiring kerb and gutter is unreasonable. In her Statement of Facts and Contentions in Reply, Ms Donnellan contends that the isolated kerb and gutter "will destroy the rural landscape; will affect the current perfectly functioning and environmentally friendly swale drains; will cause ponding and uncaptured stormwater runoff in the immediate area which might potentially affect adjoining Lots 1, 2 and 3 and/or the Duplex Lots as well as the safety of motorists". Her Statement of Facts and Contentions in Reply then elaborates on each of those points.
Ms Donnellan also contends, in the Statement of Facts and Contentions in Reply, that the construction of kerb and gutter will require earthworks that would result in a "significant decline" in the access to the site, will have a negative aesthetic impact, and will interfere with the existing cycleway. She also contends that the 'no parking' signs provide the necessary protection of the road verge.
Ms Donnellan submits that no reliance can be placed on the evidence of Mr McElroy in circumstances where she has identified a number of errors in the joint report. In particular, she places emphasis on the error made in describing DA-155-2017 as applying to Lot 2 and requiring kerb and gutter to be constructed across the frontage of Lot 2. Ms Donnellan says that this is a fundamental error, and submits that this shows that there may be other such errors. Similarly, she submits that Mr McElroy has omitted to refer to other development consents in the R1 zone that did not require the imposition of a condition requiring kerb and gutter, including DA 207-2016, DA 95-2017/A, and 95-2017/B, which demonstrates that he has selectively chosen consents with such a condition in order to demonstrate a precedent in favour of such a condition. Ms Donnellan is aware of two other consents in the R1 zone that did not require kerb and gutter, DA195-2016 and DA29-2017, and says therefore that Mr McElroy's omission of them demonstrates that there may be many more examples that have been omitted from his evidence. Ms Donnellan therefore submits that Mr McElroy has failed in his duty to the Court as an expert witness to make all relevant enquiries and provide all relevant information.

A condition requiring the construction of kerb and gutter should be imposed

I am satisfied that a condition requiring the construction of kerb and gutter should be imposed.
On the basis of the evidence that is before me I am satisfied that the ADDCP 2012 has been consistently applied to require the construction of kerb and gutter as a condition of consent for development within the R1 zone that involves an increase in intensity of land use. I accept that this is established by the development consents referred to in Attachment 4 of the joint report. Contrary to the submission of Ms Donnellan, the consideration of the Council's prior decisions should not be restricted to the rezoned land or to the land that is now comprised within DP1238849. In any event, the exceptions relied upon by Ms Donnellan, in DA 207-2016, DA 95-2017/A, and 95-2017/B, are departures from the ADDCP 2012 arising from the circumstances of those applications, circumstances that are not relevant to the present application as the applications either related to the community title scheme, or there was no intensification in land use. In that respect, I cannot accept the submission of Ms Donnellan that the Council has consistently departed from the ADDCP 2012.
I do not accept that an inference of any significance can be drawn from the omission from the joint report of other development consents not requiring kerb and gutter, such as DA195-2016 and DA29-2017 (as well as those discussed above concerning what is now DP1238849). I accept that this demonstrates that the report did not include all similar development consents, and omitted to include at least DA195-2016 and DA29-2017, which did not require kerb and gutter. For at least one of those, DA195-2016, Mr Goodall gave evidence that the reason why kerb and gutter was not required was because there was no increase in the number of lots and therefore no intensification. Both Mr McElroy and Mr Goodall gave evidence that they weren't aware of any other consents for subdivision in the R1 zone that did not have a condition requiring kerb and gutter. This evidence, together with the joint report, establishes that a consistent approach has been taken to require the construction of kerb and gutter as a condition of consent for development within the R1 zone where there is an increase in intensity of land use, with exceptions so limited that they are not known or can be justified by their circumstances. Of course, for each of the development consents upon which a condition was imposed to construct kerb and gutter, the requirement for that kerb and gutter would have also been considered on its merits on the specific application. The reasons that follow set out why I have determined that this consistent approach should be adopted in the present application.
Firstly, whilst the intensification brought about by a two lot subdivision is slight, it is nevertheless intensification. In circumstances where the land forms part of a larger area that has been rezoned to R1 General Residential with a smaller minimum lot size than many of the current existing lots, there is a likelihood that other lots within the rezoned area will be the subject of subdivision applications. As such, it is appropriate that the standards expected of a road in the R1 zone and the requirements for the construction of kerb and gutter to meet that standard be applied to the present subdivision application.
Similarly, I accept the evidence of Mr Goodall that there has been incremental intensification of the rezoned land, and I accept the Council's submission that in the circumstances it is appropriate that this incremental intensification only continue with the provision of kerb and gutter, allowing the road to be developed to the standard required for the R1 zone.
Secondly, there is no evidence that such a condition is unreasonable due to it being economically unviable to construct kerb and gutter. I have not been provided with any evidence of the cost involved.
Thirdly, there is no evidence to support the submission made by Ms Donnellan that the swale drain is functioning adequately. In fact, the evidence of Mr McElroy is to the contrary. His evidence is that the "table drain in Madgwick Drive immediately downstream of the last culvert servicing the existing development sites is badly scoured. In a situation such as this, lining of the drain would be a requirement if the open drain was to be continued." His evidence is also that "pavement on the adjacent intersection of Madgwick Drive, Cluny Road and Niagara Street shows the rigours of poor drainage typified by the absence of kerb and gutter and pavement edge protection." None of this evidence is contradicted by Mr Denniss. Further, Mr McElroy's evidence is that the reason why the 'no parking' signs have been erected is to prevent further damage causing along the pavement edge and road verge.
Fourthly, I am persuaded by the evidence of Mr McElroy that kerb and gutter along the development frontage will improve drainage, provide a safer and better graded driveway entrance to the site, prevent the edge break currently occurring in Madgwick Drive and negate the current scour problem in that section of the drain. Whilst he acknowledges that other solutions could be provided to improve drainage, he opines that the provision of kerb and gutter will help to improve and sustain good stormwater drainage. His opinion was formed following an inspection of the site, and his observations from that inspection informed much of the joint report and his oral evidence. Ms Donnellan thoroughly questioned Mr McElroy in cross-examination. These questions allowed him to correct factual errors in the joint report concerning previous development consents, but did not lead him to change or modify his expert opinion with respect to the kerb and gutter. Indeed, he used the opportunity in cross-examination to provide greater detail on how the kerb and gutter would integrate with the existing swale and table drain. As a result, with respect to the benefit of kerb and gutter, I prefer the opinion of Mr McElroy to that of Mr Denniss, who did not attend the site and whose evidence was not tested in cross-examination.
Fifthly, that kerb and gutter would not be required if a subdivision or other development is pursued under the SEPP ECDC is of concern, but it is not relevant to the present application which requires me to consider the ADDCP 2012 and its requirements.
Sixthly, I accept the submission of the Court that any isolation caused by the construction of kerb and gutter will only be limited to a point in time before future development occurs or the Council upgrades the road. Contrary to the submission of Ms Donnellan, I do not accept that any site can be described as being "fully developed" in perpetuity, but even if it was, it is open to the Council can carry out the remainder of the construction of kerb and guttering.
Seventhly, there is no evidence in support of the contentions asserted by Ms Donnellan that the kerb and gutter will affect the swale drains and cause ponding and uncaptured stormwater runoff in the immediate area, or that it will interfere with the safety of motorists. Similarly, there is no evidence that the construction and earthworks required for the kerb and gutter would result in a "significant decline" in the access to the site or will interfere with the existing cycleway. Mr McElroy's evidence was that it would be integrated with the current swale drain, and improve access to the site. There is no evidence from Mr Denniss in the joint report that supports Ms Donnellan's contentions in this regard.
Ms Donnellan pointed to a photograph of a poor example of isolated kerb at Niagara Road, which demonstrates some stripping of seal and sedimentation where the kerb ends. However, the evidence of Mr McElroy was that the particular design utilised for the end of the kerb was not a design that he would approve for the provision of kerb and gutter. The mere fact that there is one example of a poor design does not mean that every isolated kerb and gutter will have a poor design. Rather, I accept the evidence of Mr McElroy that it can be designed to integrate with the existing drains and can be designed to avoid sedimentation.
Further, I do not accept that the fact that the Council is responsible for the maintenance of the swale drain system means that Ms Donnellan is not responsible for constructing kerb and gutter. The purpose of that construction is to ensure that each lot created by the subdivision is accessed from a road that is upgraded along the development frontage to comply with the Council's requirements for distributor roads in the R1 zone. It does not create an expectation that she is required to then maintain the kerb and gutter once constructed.
For the above reasons, kerb and gutter should be constructed along the development frontage in order to upgrade that part of the road to comply with the Council's requirements for roads in the R1 zone and therefore to achieve the standards and objectives in Chapter 3.1 of the ADDCP 2012 for the subdivision of property. For the same reasons, I consider that there is no other flexible approach pursuant to s 4.15(3A)(b) of the EPA Act that would be appropriate as an alternative solution to the provision of kerb and gutter. As such, a condition requiring the same should be imposed on the grant of development consent for the two lot subdivision.

Does the proposal create an undesirable precedent?

The Council submits that the proposal should be refused as it would set an undesirable precedent in the locality. The Council directs the Court to the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. In this decision, Lloyd J refers to the concept of a consent operating as a precedent and says (at [28]): "…if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration."
The Council submits that there are a number of other sites within the immediate locality that could be the subject of future applications for subdivision. This arises from the recent rezoning, as well as due to there being a number of lots within the rezoned area that are much larger than the minimum lot size. The Council submits that the proposed subdivision, if approved, will continue an inappropriate form of lot layout and design, and also create a precedent for development to occur without kerb and gutter being provided to upgrade the road to the requisite standard. As such, the Council submits that the proposed development is objectionable for those reasons and that there is "a sufficient probability" that there will be similar applications of a like kind. The Council therefore says that the application should be refused on the basis that it will operate as a precedent for further objectionable development.
However, I have determined that the lot layout and design is appropriate in the circumstances of the case. That lot layout and design responds to the context of an existing irregularly shaped lot, complies with minimum frontage controls, and meets the minimum lot size development standard. As a result, the lot layout and design is not one that I consider to be "objectionable in itself". Therefore, I do not consider the two lot subdivision as one that would create an undesirable precedent on the basis of lot layout and design. Additionally, any precedent for irregularly shaped lots was already created by the approval of the Torrens title subdivision that created Lot 2, an irregular shape, as well as the adjacent Lot 3, with which proposed Lot 7 is identical. The present application makes the best use of Lot 2 to create one lot (proposed Lot 6) in a better battle-axe shape than the current shape of Lot 2, and another lot (proposed Lot 7) that is identical to the adjacent Lot 3.
Further, any future applications for the subdivision of land within the rezoned area will have to be considered on its merits to determine whether the lot layout and design is appropriate in the circumstances.
Nevertheless, I accept the submission of the Council that it would establish an undesirable precedent if kerb and guttering were not required as a condition of consent. It would be undesirable as it would result in future subdivision applications of a similar nature without the requirement for kerb and gutter, which would result in the intensification of the area consistent with the R1 zone yet without works to upgrade the road to the standards expected of a road in the R1 zone being carried out by the developer as that intensification occurs. For this reason also, I accept that it is appropriate to impose a condition of development consent requiring the construction of kerb and gutter.

Outcome of the appeal

Ms Donnellan requested, at the commencement of closing submissions, that if I was against her and required the imposition of a condition requiring the construction of kerb and gutter, the Court should refuse the development application. However, such an outcome would not reflect my finding that the subdivision design and layout is acceptable. Given my findings expressed above, I am satisfied that it is appropriate that development consent be granted to allow the two-lot subdivision as sought, subject to conditions including a condition requiring the construction of kerb and gutter along the development frontage.
The Court orders that: 1. The appeal is upheld, 2. Development consent is granted for the subdivision of Lot 2 DP 1238849 into two Torrens title lots, in accordance with the plan of subdivision dated 9 April 2018 and subject to the conditions in Annexure A. 3. The exhibits are returned, except for exhibits A, B, 1 and 5.

Commissioner Gray Annexure A

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: 20 July 2018

(2001) 115 LGERA 373

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