Gadallen Pty Limited v Pittwater Council

Background 3The consent for the affordable housing development was granted by the Court on 29 November 2011, see Allen v Pittwater Council [2011] NSWLEC 1342. That consent authorised the construction of a residential flat building pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPPARH). The development contains a total of 22 dwellings comprising 14 x 2 bedroom, 4 x 1 bedroom and 4 x studio units with associated parking for 29 vehicles. In accordance with the provisions of SEPPARH, 11 of those units will be used for the purposes of affordable housing for a period of 10 years, managed by a registered community housing provider. 4The development subject of the consent is nearing completion and, according to advice from Mr McKee for the applicant, an interim occupation certificate has been issued with the development having been partly occupied. The outstanding works involve the undergrounding of the wires as required by condition B6 (i) of the consent. Condition B6 states: B6 Matters to be incorporated into the development and maintained over the life of the development: (i)All utility services including overhead power supply and communication cables located in the adjacent road verge are to be placed and/or relocated underground for the total frontage of the development site to any public road at the full cost of the developer. (ii)The adjustment of all public utilities and services is to be at the full cost of the developer. (iii)Street lighting facilities to the development street frontage of the site in the existing Public Road reserve are to be provided at the full cost of the developer and in accordance with the requirements of Energy Australia. 5On 13 August 2013 Gadallen lodged an application with the council under s 96AA of the Environmental Planning and Assessment Act 1979 (Act) to delete condition B6. It was noted by the Court at the site view that there is a streetlight adjacent to the pedestrian entry to the site and the council is seeking to ensure that the light is maintained in that position. There is no dispute that conditions b 6(ii) and (ii) have not been met. 6The application is seeking deletion of the condition to require the undergrounding of the electrical and communication towers on the basis that the condition is overly onerous, unreasonable and serves no proper planning purpose and relies on the variation provisions contained in Clause C1.20 of Pittwater 21 Development Control Plan (DCP). That clause states: C1.20 Undergrounding of Utility Services Land to which this control applies · All Land Uses to which this control applies · Group Building · Multi-Unit Housing · Residential Flat Building (2 storey) · Residential Flat Building (3 storey) · Seniors Housing - SEPP (Housing for Seniors or People with a Disability) 2004 Outcomes Visual pollution by aerial cables is reduced (En, S) Improved safety by removal of visual clutter (En, S) Opportunities for street tree planting is enhanced (En) Safety of building occupants is maintained and enhanced. (S) Security of utility services is improved. (S) Design and construction of undergrounding is funded by the developer. (Ec) Controls All existing and proposed utility services within the site are to be placed underground or encapsulated within the building. All existing and proposed utility services to the site, or adjacent to the site within a public road reserve, are to be placed underground for the total frontage of the site to any public road. Design and construction of the undergrounding of utility services is to be at full cost to the developer. Variations Based on technical practicalities and advice from the energy supplier the merit for not proceeding with undergrounding of utility services will be considered for the following circumstances subject to achieving the outcomes of this control: · electricity wires carrying 16,000 volts, 33,000 volts or more, and/or · short lengths of overheads of two spans or less. 7The matter commenced as a conciliation conference under the provisions of s 34AA of the LEC Act. That conference did not lead to resolution of the issues in dispute so the conference was terminated and a hearing held forthwith, as required under s 34AA(2)(b)(i). 8The issues in dispute between the parties are whether the proposal is consistent with the provisions of the DCP and is in the public interest. A contention of the applicant that clause 1.20 of the DCP did not apply because the development was affordable housing was not pressed.

The evidence 9The matter commenced on the site of the development with evidence heard from two objectors to the proposal. The issues raised are summarised as being:

• The proposal would be inconsistent with the council's planning controls;
• Development has been completed and now the applicant is seeking to delete a condition that was imposed and known and accepted when the development commenced;
• Undergrounding of wires was expected by the local community in accordance with the consent and will be a benefit. 10At the site view, it was noted that all of the street trees that were in place at the time of the original view that I had conducted at the commencement of the hearing in Allen had been removed. It would appear that this had been approved by the council to facilitate the construction of the footpath works. At the time the original application was considered, four large trees were located within the road reserve adjacent to the site. Three trees have been retained within the setback of the development and one significant tree adjacent to the eastern boundary of the site and the right-of-way that serves the site. In addition, 5 advanced Eucalyptus haemastoma have been planted within the setback in accordance with the approved landscape plan tendered by the council as exhibit 7. 11Expert electrical engineering evidence was heard from Mr P Henderson for the applicant and Mr G Beaton for the council. Town planning evidence was heard from Mr G Boston for the applicant and Mr J Shillito for the council. 12The electrical engineering experts agreed that:
• Removal of only the overhead mains across the frontage be undertaken.
• Overhead services to the residential dwellings on the opposite side of the road to remain.
• No additional street lighting to be provided adjacent to the development. 13They had prepared a plan that indicated the extent of works recommended in [12]. That plan provides for the retention of the existing pole to the east of the site, provision of underground cabling across the frontage of the site and continuing partly across the adjoining site to the west to connect to the existing pole adjacent to that site. The total length of cabling is shown as involving a length of 81m. 14The experts advise that whilst it is physically possible to provide additional poles at the eastern and western extremities of the site and only run the cables underground across the immediate site frontage, Ausgrid would not approve such a proposal as it would add to the number of poles within the street and result in short cable lengths between those poles. They agree that the most appropriate option would be to utilise the existing poles within the street and that the street light could be maintained in its current position with that pole also used to maintain overhead electrical connections to the dwelling house opposite the site. 15The experts agree that Ausgrid requires a minimum 1.5m clearance around its wires so that any planting below those wires could only achieve a maximum height of 4m if the wires were at the 5.5m so as to accord with the regulatory standard. There is no evidence of the height of the existing wires. The experts had considered a costing obtained by the applicant for the works (Exhibit A) and agreed that it was based on industry costings. Mr Beaton described the works as a "doable day to day project". They also agreed that the likely cost of the works to extend the project to the west so as to connect to the existing pole would be in vicinity of $10-15,000 of the estimated total costs (excluding contingencies) of the $152,000 estimate. 16The planning experts had prepared their joint report prior to the engineering report being available and therefore they did not have the opportunity to consider its recommendations. They agree that additional tree plantings within the road reserve adjacent to the development site would enhance the streetscape and that, regardless of the outcome of these proceedings, additional street trees should be provided adjacent to the frontage of the site. They also agree that either the existing power pole adjacent or a new pole, generally in the same location immediately adjacent to the site, will be needed to support a street light. 17It is agreed that clause C1.20 requires undergrounding of utility services for the frontage of a site, the wires adjacent to the frontage do not carry 16,000 volts, 30,000 volts or more, that there are only 2 spans of wires adjacent to the site and that the streetscape would be improved by placing the overhead wires underground. The planning experts do not agree whether the spans of wires adjacent to the frontage are "short lengths", the objectives of clause C1.20 are satisfied notwithstanding the deletion of the condition requiring undergrounding of utility services and whether clause C1.20 only requires that undergrounding across the frontage of the site. 18Mr Boston says that it would be an unreasonable imposition to require undergrounding of the wires the additional 19m beyond the immediate site frontage where the control is explicit in terms of expected outcomes, that additional poles would be required and that is contrary to the objectives of the clause which is to reduce visual pollution. He says that because there is no real prospect that the utility services in the balance of the street will be undergrounded, the variation provisions should apply. Mr Shillito disagrees and says no additional poles are required and that the undergrounding of the wires will reduce the visual pollution created by the cables and mitigate the adverse impacts of the development in a zone which would not otherwise allow development of this bulk and scale. He says it is not unreasonable to require the works to extend beyond the boundary of the site, as this would enhance the streetscape. In addition, the undergrounding of the cables will assist in providing more advanced street tree plantings, a listed outcome of the control. 19Mr Boston says that the opportunity for street tree plantings would not be significantly enhanced due to the height of existing power lines and utility services and the ability to introduce appropriate street tree plantings in accordance with a plan attached to the joint report prepared for the applicant. That plan provides for the planting of three 45 litre Callistemon Citrinus species evenly spaced across the site frontage. According to that plan, these species have a mature height of 3.5m and spread of 3m. Mr Boston says that screening the development is not the issue in the case, it is the streetscape character in the road reserve and because the development presents as a 1-1.5 storey building planting of 3-3.5m trees on the street supplemented by the onsite canopy planting achieves the desired future character (DFC) described in the DCP. He says that such planting needs to extend along the whole length of St Andrews Gate. 20Mr Shillito says that that more advanced trees are required and the undergrounding of cables would allow them to grow without pruning to avoid those cables. He cites the Elanora Heights Master Plan which has a key initiative to improve landscaping within the road reserve in this location. 21The experts disagree as to whether the existing cables are "short lengths" as described in the DCP. Mr Boston says they are whereas Mr Sillito says that they are not because in urban areas the nominal standard for low voltage span lengths is 35m so they are not short (33m and 48m).

Conclusion and findings 22In determination of the Allen matter, the issue of whether the proposed development was compatible with the character of the local area arose as a result of the provisions of clause 54A(3) of SEPPARH. Consideration of that matter was made against the existing and future character of the area, see [65]. The DFC for the Elanora Heights locality is described at [23] of that judgment. At the time of assessing that application, the four large street trees adjacent to the site were to be retained. That factor was considered an important element of the application where, at [69] I state: The development will sit at a height below the tree canopy and has been designed to minimise the bulk and scale when viewed from a public place, however, by its nature ad as anticipated by SEPPARH, will be larger than other dwellings in the local area however, smaller in scale to those buildings within the neighbourhood centre. Existing and new native vegetation, including canopy trees will be integrated with the development and the building is of contemporary design. With the changes made to the façade by the applicant and those further changes required by condition C13 together with the colour palette proposed (Exhibit F), I am satisfied the built form will be consistent with that espoused in the character statement and will be visually compatible with its context. 23At [66] I determined the character of the area is defined by the extent of landscaping, large allotments and buildings in a landscaped setting. 24The condition the subject of the appeal was a disputed condition in Allen. At [74] of that judgment I state: I also consider that the requirement to underground the electricity and communication lines at the frontage of the site is reasonable given the importance of the street tree planting and plantings within the site necessary to maintain the character of the area. All services to the site should also be underground to ensure that there is no need to prune trees within or adjacent to the site. For that reason, it is appropriate to impose all of the conditions proposed by the council. 25The applicant now seeks deletion of the requirement to underground the wires and relies on the variation provisions of clause C1.20. For that consideration to apply, the preamble to the clause states: Based on technical practicalities and advice from the energy supplier the merit for not proceeding with undergrounding of utility services will be considered for the following circumstances subject to achieving the outcomes of the control. 26Firstly, I am satisfied that the clause applies to the development as, the provisions of SEPPARH as applied in Allen provide for consent to be granted for the purposes of a residential flat building. Whilst some of the units within the building are required to be used for the purposes of affordable housing the building is a residential flat building and the provisions of clause C1.20 apply to the application. 27I have no evidence that there are any technical practicalities that prevent the undergrounding works. To the contrary, the evidence of the electrical experts is that the works are a "doable day to day project". There is no advice from the energy supplier that objects to the works, says it is impractical or would not be approved. Accordingly, I do not consider that it is appropriate to evoke the variation clause. 28The evidence of the electrical experts is that the works can be achieved by utilising the existing poles and therefore, no additional poles would be required. The perceived visual impact from any additional poles as described by Mr Boston would not arise. The benefits of undergrounding the wires would provide for the planting of tree species within the road reserve that grow to heights similar to that of the trees opposite the site. The experts agree that street tree planting must occur for the completion of the development, it is the form that planting is to take that is in dispute. I consider that it is desirable and important to replace those trees lost arising from the footpath construction with trees that will achieve a height considerably greater than 3.5m. Such planting would also form an important transition from the neighbourhood centre to the adjacent residential area and compliment the plantings on the opposite side of St Andrews Gate and the character identified in the description of DFC for the Elanora Heights locality contained in the DCP. The fact that the planting may not continue the entire length of the street is not an important consideration. 29Finally, I must consider whether it is reasonable in the circumstances of the case to require works beyond the immediate property boundary. The council does not oppose the retention of those wires that cross St Andrews gate from the existing light pole however submits that the costs associated with undergrounding of that section of wires that extend beyond the prolongation of the site boundary to the western pole should be the responsibility of the developer. Firstly, I am satisfied that the works are required under the DCP and are for the planning purpose of improving the amenity of the area. Secondly, I am satisfied that the requirement to underground the wires reasonably and fairly relates to the development. From the evidence available, the only way that Ausgrid would approve the works is to connect to the existing power poles and not add additional poles. 30Having regard to my determination of the importance of street tree plantings to heights in excess of 3.5m, the planning purpose of undergrounding the wires can only be achieved if the works are extended beyond the immediate site frontage. To achieve the objectives of the DCP, that work must, on evidence available to the Court, extend beyond that frontage. 31Ms Irish, for the council, submits that the works are not confined to that section of the roadway that extends from the immediate prolongation of the side boundaries and can extend beyond that point. She cites the Macquarie Dictionary definition of adjacent as being "lying near, close, or contiguous; adjoining; neighbouring". In Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308, Basten JA at [19-20] considered similar provisions and states: 19 It is apparent that the obligation imposed on the developer is to place underground "all service cables" in the street (or, in the language of the condition, road reserve - nothing was suggested as turning on this variation in language) "adjacent to" the site and thus not in the part of the street which is not so adjacent. There is no reason to limit the obligation to cables providing services to the development itself. First, the condition is not in terms so restricted. Secondly, it must cover cabling that predates the development. Thirdly, it is clear from the authorities, that no such constraint should be implied as a limitation on power. As explained by Gibbs CJ in Cardwell Shire Council (referred to at [15] above) at 388, a condition requiring the upgrading of a road and bridge away from the development site (and not exclusively used by residents of the development) could properly be the subject of a condition attaching to the development approval. 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. The condition requires that if the cables are in that part of the street adjacent to the site, they must go underground at the developer's expense. 32I consider that the location of the works as agreed by the electrical experts, whilst extending beyond the immediate boundary of the site, are works within the adjacent road verge and by necessity, are to be relocated underground across the total frontage of the development and, in the circumstances of the case beyond that frontage. I do not consider that this is unreasonable in the circumstances of the case and on the basis of the evidence before me, including the cost of that additional work as a proportion to the whole cost. 33For the reasons detailed above condition B6 should be retained however, as agreed by the council, it is appropriate to clarify the extent of that works to exclude the undergrounding of that cable that crosses the roadway to the dwelling opposite the site to that detailed by the electrical experts on the plans attached to their expert report. 34The Orders of the Court are: (1)The appeal is upheld in part. (2)Development consent N0749/10 is modified by amending condition B6 to read as follows: B6 Matters to be incorporated into the development and maintained over the life of the development: (i)All utility services including overhead power supply and communication cables located in the adjacent road verge, excluding the overhead wires that cross St Andrews Gate from the existing pole that supports the street light to the dwelling on the southern side of the roadway, are to be placed and/or relocated underground at the full cost of the developer. The extent of works shall be that detailed on Sheet 1 of1 Revision A dated 13 December 2013 drawn by G Beaton. (ii)The adjustment of all public utilities and services is to be at the full cost of the developer. (iii)Street lighting facilities to the development street frontage of the site in the existing Public Road reserve are to be provided at the full cost of the developer and in accordance with the requirements of Energy Australia. (3)The exhibits, other than exhibits 3 and 6, can be returned.

Sue Morris Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 January 2014