Judgment
1On 24 December 2008 development consent was granted by the Court for the subdivision of Lot 101, DP 863828, Hampton Crescent, Prospect into twenty-six residential lots, a community title lot for roads and a further lot for conservation and dedication to council (BTG Planning v Blacktown City Council [2008] NSWLEC 1500).
2Condition 65 (b) of the consent provides:
Post construction of the subdivision the trees, identified in Condition 75 (a) [sic] above and as finally preserved on site shall be the subject of a s 88B (Restriction as to user) instrument under the Conveyancing Act 1919 identifying the trees that must be retained on each of the individual allotments that are created.
3By an application made on 7 November 2011 the applicant, Fitzgerald Investments Pty Ltd, sought to modify that consent by deletion of condition 65(b). That application having been refused by the council on 28 March 2012,the applicant now appeals seeking approval from the Court for the deletion of that condition.
4The applicant contends that condition 65(b) is unnecessary and inappropriate. It places a burden on the developer and future purchasers of the lots. It serves no planning purpose.
5Council in its amended statement of facts and contentions dated 30 April 2012 contends that the requirement for a s 88B instrument in the terms outlined in condition 65(b) in respect of each lot serves the public interest because - when read with condition 65(a) - it ensures the protection and maintenance of identified trees on the individual lots; the s 88B instrument notifies potential purchasers of the requirement to retain and maintain certain trees; and the condition internalizes the costs of vegetation conservation and management within development rather than shifting those costs onto the Council and ultimately the community.
6I must determine in accordance with s96AA of the Environmental Planning and Assessment Act 1979 (EP&A Act) whether it is appropriate in the circumstances of this case to delete condition 65(b) of the development consent.
7The land is zoned 2(a) Residential pursuant to the Blacktown Local Environmental Plan, 1998 (BLEP). Clause 25 of the BLEP contains the provisions for Tree Preservation:
Tree Preservation
"(1) A person shall not ring bark, cut down, lop, top, remove, injure or willfully destroy any tree, or cause any tree to be ring barked, cut down, topped, lopped, removed, injured or willfully destroyed; except with the consent of the Council.
(2) In any proceedings for an offense arising under this clause, it shall be sufficient defence to prove that the tree ring barked, cut down, topped, lopped, removed, injured or willfully destroyed was dying or dead or had become dangerous.
(3) This clause does not apply to trees in a state forest or on land reserved as a timber reserve within the meaning of the Forestry Act 1916, or to trees required to be lopped in accordance with the Regulation 38 or 39 of the Overhead Line Construction and Maintenance Regulations 1962, or to any trees which are under the control or management of the Sydney Water Corporation.
(4)This clause does not operate so as to require a consent to be given pursuant to this clause for the carrying out of development at a plant nursery if the development could lawfully be carried out at the plant nursery in the absence of this clause."
8Blacktown Development Control Plan 2006 (BDCP) - Part A Introduction and General Guidelines; and, Part C, Development in the Residential Zone control residential development of the land.
9Tree removal on any land within the Blacktown Local Government area requires the council's consent. It must be approved either via the approval of a Development Application or a Tree Removal Application if there is no development proposed, or a Complying Development Certificate to be determined either by council or a private certifier.
10The Council's Planning and Development Assessment Report No SD320015 supports the deletion of condition 65(b). It states:
This section 96AA application does not seek to amend the formation, layout, the number of lots, lot sizes or roads in the subdivision which was approved by the LEC. The application does not seek approval to remove any trees from the site. Rather it seeks to enable the normal channels of development assessment to apply to the proposed lots as they apply elsewhere in the city.
Council's Regulatory Planning Unit who dealt with the appeal in the LEC advised that the trees within the proposed residential lots were not the focus of the appeal, rather the LEC focused on the development holistically and whether the form of development was appropriate. The overriding issue with the proposal was the conservation of habitat. In particular the matter centered on the question of whether the site should be developed at all, and if it is found that it should be developed, whether adequate provision was made for the retention of trees and habitat outside the residential lots.
The applicant is in the process of dedicating and contributing to the regeneration of more than one-third of the subject site (1.54 ha) to council to be amalgamated into the adjoining Timbertop Reserve, and will be required to bush regenerate 12 ha of bushland within the Western Sydney Parklands as an offset to the loss of the Cumberland Plain Woodland within the subject site. The Court found that these measures were adequate to facilitate the conservation of habitat and that the remainder of the site could be subdivided for residential development.
Condition 65(b) was imposed when the draft Development Consent was prepared for the Court. The Applicant did not object to the condition at that time and it was duly imposed by the Court when the appeal was upheld.
...
...The use of a s 88B in this instance is considered to be an unnecessary burden on the future residential owners, especially where this is already policed by existing council policy regulating tree removal but also given their genuine compensatory offsets for the future development of the residential lots in the form of a substantial land dedication to add to the Timbertop Reserve as well as bushland regeneration in the WSP in accordance with the requirements of the Parkland Trust " (folio 61 of tab 2 exhibit 2).
11Referrals to the council's Development Engineers, Building Surveyors, Regulatory Planning Unit and Land Projects Committee have not raised any objection to the deletion of condition 65(b) from the development consent.
12The s 96AA modification application was notified and the council received three written submissions. In council's assessment report, however the submissions do not justify the refusal of this application. The planning assessment report states that the council's Tree Preservation provisions in the BLEP 1988, which regulate the development application and tree removal process, address the issues raised by the objectors to the application. The deletion of the condition will not interfere with the usual development process that "... All assessments for the removal of trees will be undertaken on a merits based approach, upon application, to determine whether or not it is suitable to allow the removal of any tree on any lot" (at folio 59-61 at tab 2 exhibit 2).
13I have also had regard to the oral evidence of Mr O'Reilly and Mr Olling and the written submissions tendered in council's bundle (exhibit 2).
Applicant's evidence and submissions
14As detailed at the outset of this judgment the applicant's primary position is that there is no planning reason to justify the imposition of condition 65(b) on the facts of this case. It contends that the requirement for a s88B restriction as to user on the land places an unnecessary burden on the applicant and subsequent purchasers.
15Based on the latest survey there will be a need to apply to the council for consent to remove certain trees on the lots, particularly within the asset protection zones.
16The deletion of this condition will allow future owners the ability to develop their residential lot in the usual way subject to the council's tree preservation provisions and development controls. It will avoid the time, cost and delay associated with seeking a variation or modification or release of the s 88B covenant on their land.
17The Courts have for some time recognised that restrictions imposed under the Conveyancing Act 1919 should not be used to enforce planning provisions where adequate controls are in place: Rodgers v Blacktown City Council [2008] NSWLEC 1502; Carr v Goulburn City Council per Cripps J (unreported) 21 June 1983. The council's assessment report concludes that there are adequate planning controls under the TPO and the BLEP.
18Therefore, the condition is unnecessary and inappropriate in this case. The decision of the High Court in Hillpalm Pty Limited v Heaven's Door Pty Limited (204) 220 CLR 472 does not displace the need for an owner of land in this subdivision to obtain the council's consent to the removal of any tree.
19The applicant relies on the council' s planning assessment report in support of the deletion of the condition and Mr App's oral evidence that the s88B restriction on title merely "...adds another layer" to the planning controls which already require the council's consent for the removal of a tree. It submits that Mr Apps in cross-examination conceded that the imposition of a s88B restriction on use would do no more than remind the purchaser of obligations under the BLEP or the TPO.
20The applicant submits that ultimately, Mr Apps' evidence was consistent with the conclusions in Council's staff's planning assessment report at folios 53 and 54 of exhibit 2.