Farah v Warringah Council & Others

Farah v Warringah Council & Others - [2006] NSWLEC 191 - NSWLEC 1996 case summary — Zoe

[19]

A change of use of the applicants' land requiring development consent.
In the absence of the consent of the applicants, as owners of Lots 401 and 402, the development application was made contrary to cl 1(i) in Part 1 of Schedule 1 to the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulation") and that the failure to include a statement of owners' consent means that the development application was not made in accordance with cl 50(1)(a) of the EPA Regulation. 4 The Further Further Amended Points of Claim particularise the use of the applicants' land that is complained of as follows:- (i) Fundamental to the development application and development consent was the use of the driveway on the Applicant land for the purpose of access to the Respondent land. (ii) Pursuant to the Traffic Management Plan proposed for the development, and as part of the development consent, the proposed use of the Applicant land driveway, including the painting of a directional arrow and the use of a give way sign, was to create a 'swap over' effect so that the two existing driveways would in effect become a system of two one-way driveways. (iii) That the Applicant will be restrained from using the driveway on the Applicant's land for the purpose of egress. 5 A further issue is that a report prepared by a traffic consultant retained by the council was not referred to in the report prepared by officers of the council for the purposes of the council's assessment of the development application. Furthermore, the consultant's report was not referred to the Independent Hearing and Assessment Panel ("IHAP"). The alleged consequence is the absence of the consideration of the report by the council was a failure to take into account a relevant consideration under s 79C of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). Moreover, the failure of the council to advertise or notify the applicants of the report was a denial of procedural fairness to the applicants.

[20]

6 Furthermore, as the development consent was granted subject to a deferred commencement condition requiring that a Traffic Management Plan ("TMP") be prepared and submitted to the council; an issue of fundamental importance to the development application was not determined by the first respondent when it purported to grant development consent. 7 Moreover, in purported compliance with the deferred commencement condition the second respondent lodged additional material, including the TMP, in response to the deferred commencement condition. The applicants' complaint is that they were not notified that the TMP had been lodged and, as they were not given an opportunity to consider it, there was a further denial of procedural fairness to the applicants. The failure by the council to notify the applicants or to advertise the TMP is also claimed to be in breach of Public Exhibition and Notification Development Control Plan No. 1 ("DCP 1"). 8 It is asserted further, or in the alternative, that the proposed system of two one-way driveways involving the applicants' land is inconsistent with the registered rights of carriage and footway affecting the land of the applicants and the third respondents under the Real Property Act 1900 ("the RP Act") and accordingly the development consent was granted ultra vires the powers of the council under the EPA Act as follows:- (i) The First Respondent did not and does not have power to restrict or restrain the rights of carriage and footway appurtenant to the Applicant and Respondent land under the RP Act; (ii) The First Respondent did not and does not have power to restrain the Applicant in and about its lawful use of the Applicant's land. (iii) The First Respondent applied the wrong test or considered a wrong issue in the grant of development consent in that the First Respondent considered it was empowered under cl 32 of the LEP to avoid the effect of Registered Dealing G113984. (iv) The First Respondent failed to take into account the relevant consideration in granting development consent that such consent would purport to restrict rights of carriage and footway appurtenant to the Applicant and Respondent land. The development application 9 Documents lodged in support of the development application included a Statement of Environmental Effects ("SEE") which refers to the proposal to provide give way signs and directional arrows to direct traffic accordingly along the existing carriageway to provide vehicular access to the site. An Assessment of the Potential Traffic and Parking Impacts prepared by Traffic Environmental and Forensic Engineers Consulting ("TEF Consulting") on behalf of the second respondent and lodged in support of the development application describe the access arrangements as follows:- Access to the proposed development will be gained via the existing driveway. There is a second driveway immediately adjacent to the driveway of the proposed development. This driveway services residential dwellings at No. 721. Both properties at Nos. 721 and 723 have a Right of Way over their own driveway and the adjacent driveway belonging to the neighbouring property. There is an opportunity therefore to create a system of two one-way driveways used by both properties. A section of these combined driveways near the entries to the properties would need to be dedicated to the lane changing manoeuvres. The required length of this section was determined to be 12 metres. Appropriate signposting and linemarking would need to be provided. 10 A diagram included in the assessment demonstrates that access from Warringah Road will be along the left hand carriageway within No.s 721 (Lot 402) and 721A (Lot 401) Warringah Road and egress from the right hand carriageway within No. 723 Warringah Road. 11 The development application form dated 10 July 2003 identified land to be developed as 723 Warringah Road Forestville Lot 3 DP 25050. The Description of Proposed Work in respect of the Proposed Development was described as "Proposed Childcare Centre & associated building works." The Proposed Use was described as "Childcare Centre". The development application form indicated that Required Attachments comprised six copies of the plan for the purposes of cl 48B of the EPA Regulation.

[26]

19 IHAP noted:- The application proposes the use of the whole driveway, presumably with the removal of the median strip and some works to take place in the driveway to manage the traffic and possible conflict between pedestrians of the residences and the kindergarten, traffic for the residences in the battleaxes to the east and the increased traffic to the kindergarten site. 20 The panel disagreed with a draft from of deferred commencement conditions suggested by council and preferred the following instead:- A Deferred Commencement Consent is granted and consent shall not operate until a Traffic Management Plan dealing with the manner in which the rights of way will be used, what works should take place in the right of way for adequate access and egress to the kindergarten site, whether it is necessary to obtain owners consent from the battleaxe owners at the rear to any of the proposed works, setting out of possible pedestrian path, removal of vegetation and to what extent that removal should take place, and the Traffic Management Plan should also deal with the question of instructions to be given to parents of children at the kindergarten centre for the way in which they will access the site and egress from it and what hours that activity will take place. The Council is to be furnished with relevant documentation confirming this Traffic Management Plan and its operation and once Council is satisfied that the Traffic Management Plan will work appropriately Council will advise in writing the consent is able to operate. 21 Further submissions were made by the applicants and other objectors following the IHAP panel meeting. These were reinforced by a formal letter from the applicants' solicitors dated 4 February 2004. The principal concerns relating to the use of the access driveway were maintained. The owner of the subject land also made a representation to council regarding the use of the right of way asserting that no relevant work would be required on the right of way.

[27]

22 The development application was the subject of a resolution to grant deferred commencement consent at a meeting of council on 10 February 2004. Notice of the determination was issued on 1 March 2004. 23 Relevantly to these proceedings the following deferred commencement condition was made:-

CONDITIONS OF DEFERRED COMMENCEMENT REQUIRED TO BE SATISFIED PRIOR TO THE CONSENT OPERATING The Deferred Commencement Consent is granted under Section 80(3) of the Environmental Planning and Assessment Act, 1979, and consent shall not operate until the following matters have been provided (i) Traffic Management Plan dealing with; (a) the manner in which the rights of way will be used; (b) what works should take place in the right of way for adequate access and egress to the kindergarten site, including pedestrian path; (c) removal of vegetation and to what extent that removal should take place for the pathway; (d) instructions to be given to the parents of children at the kindergarten centre for the way in which they will access the site and egress from it and what hours that activity will take place. ... (iii) Owners written consent is provided for works required within the right of way. The Council is to be furnished with relevant documentation confirming the Traffic Management Plan and the design details of the works required in the right of way for access, and the acoustic treatment work on the western boundary. Council upon receipt of relevant documentation and following a review by Council that they are acceptable Council will advise in writing the consent is able to operate. 24 The following operational conditions were imposed:-
In order to clarify traffic movements, painted directional arrows are to be provided on the right of way at the start of the dividing kerb to designate the entry and exit driveways. A combined straight and right turn arrow should be provided immediately north of the proposed give way sign on the entry driveway and a straight arrow on the existing driveway adjacent to the give way sign. A plan detailing the proposed marking of the directional arrows must be submitted and approved prior to the issue of the Construction Certificate.
A suitable "Childcare Centre" sign, which is clearly visible from the proposed Give Way sign is to be provided at the end of the right of way on the subject property. A plan detailing the proposed location of the sign must be submitted and approved prior to the issue of the Construction Certificate. Response to the deferred commencement condition 25 On 7 July 2004 the second respondent provided what purported to be detailed information in response to deferred commencement conditions (i) and (iii). The response included a comprehensive traffic management arrangement and a diagrammatical representation of the arrangement showing how the "rights of way" will be used. The diagrammatical representation replicated the arrangements foreshadowed in the TEF assessment of the potential traffic and parking impacts provided with the development application.

[29]

28 On 25 November 2004 the council advised the second respondent that it raised no objection to the details provided in relation to the submitted TMP and considered that Part A(i) of the deferred commencement consent No. 2003/0909DA had been satisfied subject to the following being provided:- "The proposed pedestrian rail along the side of the driveway should start at the front boundary and continue to the car parking area." 29 The council received the following advice from the applicant for development consent on 9 November 2004 in regards to condition A(iii):- "We confirm that we will only remove that part of the median strip that sits wholly within our land and will not remove the portion (being 0.5 metres in length) at the southern end which sits on the boundary." 30 Finally on 23 December 2004 the council advised the applicant for development consent as follows:- A(i) Traffic Management Plan Council's letter dated 25th November 2004, advises that the submitted Traffic Management Plan satisfies the provisions of Part A(i) of Deferred Commencement Consent No. 2003/0909 DA subject to the following being provided: "The proposed pedestrian rail along the side of the driveway should start at the front boundary and continue to the car parking area." A(iii) Owners written consent provided for works required within the right of way Council's letter dated 25th November 2004, advises that the submitted survey information illustrates that the kerb is nearly entirely upon No. 723 Warringah Road except a small portion of 0.5 metres. No owners consent is required for removal of that part of the median strip that sits wholly on No. 723 Warringah Road, Forestville. It is considered that the traffic management plan submitted in response to Condition A(i) is satisfactory without the removal of the respective 0.5 metre median strip. 31 The council thereafter expressed its satisfaction that the relevant matters contained in the deferred commencement condition had been addressed and accordingly the consent would become "operable" from the date of the letter. 32 The applicants have given evidence that they were not made aware that the TMP had been submitted and that they were not given an opportunity to comment on its contents. The second applicant confirms that no consent to use the applicants' driveway for the child care centre has been given. 33 Steven Schlederer, a director of the second respondent, has given evidence that in February 2004 he lodged a request for mediation with the first respondent in relation to the development. The mediation was arranged for 29 April 2004. The second applicant confirms that the applicants did not respond to the opportunity for mediation. The applicants' case 34 In summary the applicants challenge the grant of the deferred commencement consent on the basis that:-

[30]

The development consent was not issued in compliance with the Environmental Planning and Assessment Act 1979 as it required both the use, and the constraint of the use, of the applicants' land;
The council failed to properly consider the impact of traffic assessed by Mr Dowsett;
As the deferral of the operation of the consent until a Traffic Management Plan was prepared and submitted to the council related to an issue of fundamental importance to the development application, the council failed to determine the development application with finality;
Procedural fairness was denied to the applicants by the Council in its consideration of the development application in that the applicants were not afforded an opportunity to be heard on the purported fulfilment of the deferred commencement conditions;
The consent purports to cut down and intrude upon the applicants' dominion over their land and is repugnant to proprietary rights conferred under the Real Property Act 1901. The use of the applicants' land 35 Clause 49 of the EPA Regulation provides that a development application may be made by "the owner of the land to which the development application relates" or by "any other person, with the consent in writing of the owner of that land." In this case the development application clearly, in its terms, relates to Lot 3 in DP 25050 known as 723 Warringah Road, Forestville. The consent of the third respondents as the owners of that land was provided in writing. 36 The issue is whether the development application relates to the land of the applicants. 37 Where an environmental planning instrument states that development may not be carried out except with development consent, s 76A of the Environmental Planning and Assessment Act 1979 ("the EPA Act") provides that development may not be carried out unless such a consent has been obtained and is in force. In North Sydney Council v Ligon 302 Pty Limited (1996) 185 CLR 470 the High Court dealt with a factual circumstance similar to the present where an application was made for development consent to erect a building on a particular parcel of land which was dependent upon the benefit of a right of carriageway over adjoining land to provide access to the land the subject of the development application. The High Court dealt with the legislation as it then stood. Amendments have since been made to the legislative framework but the relevant provisions currently applying are to the same effect. 38 The following passages from the judgment of the High Court in Ligon are apposite to this case:- Thus the prohibition is against the carrying out of a specific development on a particular parcel. When a development application is made for consent to a specified development, the land to which the application "relates" must therefore be the land on which the specified development is proposed to be carried out. p 476

[35]

46 Although the TMP was conditionally approved by the council following its submission in response to the deferred commencement condition the expression of satisfaction by the council is not of itself authority to use Lots 401 and 402 in the manner prescribed by the TMP. If as a consequence of complying with condition 29 of the development consent, or implementing the arrangements under the TMP, activities or works are required on Lots 401 and 402 and those works or activities are such that development consent is necessary, that raises a separate issue to the issue raised in these proceedings. The denial of procedural fairness 47 The complaint by the applicants is that the TMP was not notified to them or advertised by the council and that accordingly the failure to do so was a denial of procedural fairness in breach of DCP 1. 48 Mr Galasso, on behalf of the council, correctly identifies the following opportunities given to the applicants following the lodgement of the development application:- (a) The applicants were notified of the development application by letter dated 18 August 2003. In that letter, the Council suggested that in addition to lodging a submission, mediation is available; (b) The Council notified objectors of the draft Notice of Determination of the DA dated 15 December 2003;+ (c) The applicants attended the IHAP meeting on 28 January 2004; (d) The applicants wrote to the Council by letter dated 29 January 2004 following the IHAP meeting; (e) The solicitors for the applicants wrote to the council by letter dated 4 February 2004 stating that their client objected to the application; (f) The applicants again wrote to the council by letter dated 5 February 2004. 49 Accordingly by the time the council made a determination to grant deferred commencement consent on 10 February 2004 the applicants had been afforded a number of opportunities to make submissions and had responded extensively to the point that their objections were fully notified and explained to the council. 50 Under DCP 1 the council was required to place the development application on public exhibition and to notify the applicants as being persons within the category of parties entitled to a written notice. Mr McEwen SC, who appears for the applicants, relies upon the statement made by the then Chief Justice in Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 at foot p 109:-

[56]

70 Although in a sense the consent appears to create circumstances that could be repugnant to the rights of the applicants under the mutual rights of carriageway I have rejected any argument that asserts that the first respondent or any successor will be in a position to enforce a change in use of the adjoining land as a consequence of the grant of the subject development consent. 71 In the event that a change of use does occur or works are ultimately shown to be required in the applicants' land questions will arise as to whether that development requires consent or is exempt development. At present the consent which the council purported to grant has no effect on the applicants' land. Accordingly the questions raised by the applicants do not arise. That the consent is invalid and thus unenforceable is even more emphatic that the issue raised by the applicants in this respect does not require determination in these proceedings. Orders 72 The parties requested that I defer any questions of costs until they have an opportunity to consider these reasons for judgment. It is pertinent to observe that the only issue upon which the applicants have been successful is the one relating to a lack of finality which was not raised until Mr McEwen was addressing the Court in the course of his opening. The applicants have not established entitlement to relief on any other ground. That will be a relevant matter to be taken into account before the Court exercises its discretion to make any costs order. 73 I make the following orders:-

A declaration that the development consent granted by the first respondent for the property known as 723 Warringah Road, Forestville in relation to Development Application Number 2003/09/09 ("the consent") is void and of no effect.
An order that the second and third respondents, their servants, agents or invitees be restrained from the use of the applicants' land in the manner contemplated by the consent otherwise than in accordance with the provisions of the Environmental Planning and Assessment Act 1979.
Costs reserved.
Exhibits may be returned.

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Judgment (57 paragraphs)

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Cases Cited (9)