Gebran & Raad Developments Pty Ltd v Wollongong City Council

The requirement to consider the impacts of the development

1. Section 4.15(1)(b) of the EPA Act requires the consideration of "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality".
2. In Ballina Shire Council v Palm Lake Works Pty Ltd, Preston CJ considered the relevant authorities and explained that this involves consideration of impacts from works that are off-site that have a "real and sufficient link" to the proposed development. His Honour states (at [6], citing Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at 101 and Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 at 534-535): "The phrase 'the likely impacts of that development' embraces not only site specific impacts, being impacts of the proposed development on the development site, but also off-site impacts. Off-site impacts can be caused not only by the proposed development impacting adjoining or other land in an area of influence but also by some other development provided that the impacts of that other development have 'a real and sufficient link' with the proposed development, such as where the impacts are caused by "some further undertaking that is 'inextricably involved' with the proposed development'"
3. In the appeal before his Honour, there was a need to carry out works in the road reserve to provide access to and service the proposed development. The development application did not seek consent to carry out those works, and, in the decision the subject of the appeal before his Honour, the Commissioner imposed a deferred commencement condition requiring their approval.
4. His Honour considered that the fact that works required for the proposed development do not form part of the development for which consent is sought, "is not a reason justifying not considering the likely impact of the works" (Ballina Shire Council v Palm Lake Works Pty Ltd at [33]).
5. Additionally, his Honour found that the Commissioner misdirected herself in thinking that the imposition of a deferred commencement condition that entailed environmental assessment of the off-site works required for the proposed development "justified her not taking into consideration the likely impacts of the works in determining to grant consent to the development application." Specifically, his Honour considered that (at [37]): "The power in s 4.16(3) of the EPA Act to grant consent to a development application subject to a deferred commencement condition does not relieve a consent authority from the obligation to take into consideration all matters of relevance to the development the subject of the development application under s 4.15(1) of the EPA Act."
6. Therefore, the assessment of impacts required by s 4.15(1)(b) of the EPA Act extends to an assessment of impacts from works that are required off-site that are inextricably involved in the carrying out of the proposed development, even if those works off-site are not proposed in the development application the subject of the s 4.15 assessment.
7. Applying these principles to the present application, the assessment of impacts required by s 4.15(1)(b) extends to the impacts of the stormwater drainage works that are required on 118 Avondale Road to drain the stormwater from the site to the watercourse. I consider that those works are inextricably involved in the carrying out of the proposed development, and have a "real and sufficient link" to the proposed development. That is because it is common ground that the proposed development cannot be carried out without the disposal of stormwater off-site, and the evidence is that this can be done through 118 Avondale Road. It is clear from the decision of the Chief Judge in Ballina Shire Council v Palm Lake Works Pty Ltd that the mere fact that those works are not proposed in the development application does not allow me to avoid an assessment of their impacts. Nor does the imposition of a deferred commencement condition for their approval justify not considering their impacts.

There is insufficient information to assess the impacts of the development

1. In light of the applicable principles, without a design for the drainage across 118 Avondale Road to the watercourse, I accept the Council's submission that there is insufficient information to assess the impacts of the proposed development. Those impacts potentially extend to built form and trees located on 118 Avondale Road, as well as trees located on other properties that adjoin 118 Avondale Road. There are two reasons why there is insufficient information to assess those impacts.
2. Firstly, there is no stormwater plan for the disposal of stormwater off-site that forms part of the proposed development on which an assessment of impacts could be founded. Without knowing the route of the stormwater drainage, the necessary infrastructure, the width of the pipes and the required width of the easement, the impacts on that built form on 118 Avondale Road or on the trees is not known.
3. Secondly, whilst there is a potential route for the stormwater drainage identified in Ex E, the agreed evidence of Mr Carden and Mr Ahal is that there are established trees within the vicinity of this route, which requires that the "full extent of the conflict between proposed stormwater works and existing trees need to be assessed and identified by an arborist." Without an assessment by an arborist, there is insufficient information before the Court as to the impacts of the potential route in Ex E on the trees within the vicinity of the proposed pipes.
4. The consequence of there being insufficient information before the Court to adequately assess the impacts of the proposed development is that the Court cannot be satisfied that consent ought to be granted. The applicant bears the persuasive burden of so satisfying the Court. As described by Preston CJ in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]: "an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed."
5. As an assessment of the impacts is a mandatory consideration pursuant to s 4.15(1)(b), and this extends to the impacts of off-site works where those works are inextricably linked to the proposed development, Gebran bears the persuasive burden to provide information to persuade the Court that any impacts resulting from those off-site works on 118 Avondale Road can be satisfactorily addressed. The absence of sufficient information means that this burden has not been discharged, and I cannot be satisfied that impacts from the proposed development can be satisfactorily addressed and managed.
6. Further, this lacuna cannot be satisfied by the imposition of deferred commencement conditions. This is because, firstly, it defers a mandatory relevant matter for later consideration, contrary to the well-established principle that you cannot defer for consideration a matter which is required to be considered by s 4.15(1) (see Weal v Bathurst City Council & Anor (2000) 111 LGERA 181; [2000] NSWCA 88). Secondly, I accept the evidence of Mr Carden that the stormwater plans for the off-site works might ultimately result in changes to the stormwater concept for the site, which can result in larger onsite detention tanks, which can require changes to the built form layout on the site. This means that there is a lack of finality in the development consent, as it leaves open the possibility that the development will be different to the proposed development to an extent that is not known, and means that there is no "final disposal" of the application, contrary to the principles espoused in the decision of Clarke JA in Mison v Randwick Municipal Council.
7. For these reasons, on the evidence I cannot be satisfied that the impacts of the proposed development are satisfactory or can be satisfactorily managed. Development consent must be refused on that basis.

The other matters raised by the Council

1. The Council raises a number of other contentions as a basis upon which the development application should be refused.
2. It is contended that the design of the principal communal room, its location, and the overall site planning and paths of travel through the site, result in a poor design outcome for the proposed development. Ms Saunders' evidence in this regard, upon which the Council relies, considers each of the aspects and reaches conclusions on an alternative that would be "more appropriate" (Ex 5 p 20) or on what a better design might be (Ex 5 pp 7, 17, 20). However, the assessment required by s 4.15 of the EPA Act does not include consideration of whether there is a better, alternative design that could be achieved. Instead, the Court's role is to assess the acceptability of the proposed development in light of its impacts and compliance with the relevant controls. Where there is a departure from the controls within the WDCP 2009, s 4.15(3A)(b) of the EPA Act requires flexibility to "allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development".
3. In considering the Council's contention concerning the design issues, I am therefore required to consider whether the proposed development is acceptable on its merits and, where there are non-compliances with the WDCP 2009, whether it provides alternative solutions to achieve the objectives of those controls. However, there is little utility in undertaking that consideration in circumstances where I have determined that development consent must be refused on the basis that there is insufficient information to satisfy me that the impacts of the proposed development are satisfactory or can be satisfactorily managed.
4. The Council also contends that the proposed development provides a number of boarding rooms that exceeds the number that is now limited by cl 30AA of the SEPP ARH. However, cl 30AA does not apply to the proposed development and it is therefore not determinative of the application. What is instead required is a consideration of what weight ought to be placed on cl 30AA in the exercise of the Court's discretion in determining the development application. Nevertheless, this exercise is not required given my determination above that, as a result of insufficient information, I am not persuaded that the impacts of the proposed development are satisfactory or can be satisfactorily managed.
5. Further, a number of submissions were made by resident objectors, which are required to be considered by s 4.15(1)(d). Given that I have determined that consent should be refused, there is no utility in considering those submissions.

The outcome of the appeal

1. As set out above, s 4.15(1)(b) of the EPA Act requires an assessment of the impacts of the proposed development. This extends to the impacts of off-site works where those works have a "real and sufficient link" to the proposed development (see Ballina Shire Council v Palm Lake Works Pty Ltd), and therefore includes the impacts from the works off-site for the drainage system for the disposal of the stormwater from the site to an appropriate location, such as the watercourse. Gebran bears the persuasive burden to provide information to persuade the Court that any impacts resulting from those off-site works can be satisfactorily addressed. For the reasons set out above, the absence of sufficient information means that this burden has not been discharged, and I cannot be satisfied that impacts from the proposed development are acceptable or can be satisfactorily addressed and managed. Accordingly, the development application must be refused.
2. The Court orders that: 1. The appeal is dismissed. 2. The development application for the demolition of the existing dwelling house and the construction of a boarding house comprising 15 boarding rooms at 124 Avondale Road, Avondale, is refused. 3. The exhibits are returned, except for Exhibits A, B and 8.

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