Grand United Friendly Society v Parramatta City Council

A significant issue before the Chief Judge was asked to make consent orders had related to the prospect that a large number of trees would necessarily be removed as a consequence of the subdivision works and construction of the SEPP 5 development. The Court was told that concerns expressed by the public mainly related to the effect of the development on substantial vegetation seen from aerial photographs produced to Her Honour.

Condition 48 of the consent in proceedings No 10799 of 1994 specified as follows:- Prior to the removal of any trees detailed tree removal plans and planting schedules are to be submitted, including guidelines for retention and management of identified trees and other vegetation.

Condition 10 of the consent granted in proceedings No 10798 of 1994 specified as follows:- The Council and the Applicant shall comply with the Bushland Management Plan to be approved by the Council, which shall be generally in accordance with the terms of the Bushland Management Plan dated 22 July 1996 submitted by the Applicant and the Council acknowledges it is responsible for the cost and implementation of the works program set out therein.

On 16 December 1996 the council resolved to approve "the Bushland Plan of Management Part A for both Lot 1 and Lot 2 of 87A Hammers Road, Toongabbie dated 3 December 1996, prepared by Anne Clements & Associates Pty Limited".

On 17 December 1996 I modified condition 10 in proceedings No 10798 of 1994 pursuant to s 102 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), as it then was, as follows:- The Council and the Applicant shall comply with the Bushland Management Plan which shall be generally in accordance with the terms of the Bushland Management Plan Part A dated 3 December 1996 submitted by the Applicant and the Council acknowledges it is responsible for the costs and implementation of the work program set out therein.

The Bushland Plan of Management Part A dated 3 December 1996 provides as follows:- Removals of trees from the site will be in accordance with Council's Tree Preservation Order. The recommendations for tree removals are given in Appendix 5.

Prior to 9 December 1996 the council had adopted a Tree Preservation Order (TPO). On 9 December 1996 the council resolved under the Parramatta City Tree Management Policy to make a further TPO in certain specified terms.

An approval to remove identified trees was issued by the council on 5 January 1998, 9 October 1998, 27 January 2000 and 17 April 2000 in response to applications made in that respect by the applicant.

On 21 December 1999 the Chief Judge modified the development consent in proceedings No 10799 of 1994 and 10798 of 1994 pursuant to a set of plans indicating the built form of the proposed SEPP 5 development on Lot 1 and the residential development on Lot 2.

The catalyst for the present proceedings is an advice by the council to the applicant on 20 June 2000 that "following receipt of legal advice, Council wishes to advise that the removal of a tree constitutes development under the provisions of the Environmental Planning & Assessment Act 1979".

At the commencement of the hearing Mr Tobias QC announced on behalf of the council that on the basis of advice received, the council's view is that the legal effect of the development consents granted by the Chief Judge is that no further development consent is required to remove the trees on the site given that the issue of the removal of trees was before Her Honour when she determined the development applications and that she granted development consent notwithstanding the consequence that trees would be removed.

However, although it is not necessary to obtain a further development consent, the council claims it is nonetheless necessary to obtain approval under the TPO for the removal of trees.

The applicant contends that not only is a further development consent not required but no further approval is necessary by virtue of the TPO.

Mr Robertson, who appears for the applicant, asks incredulously how it could be that following grants of development consent by the Chief Judge which contemplated and acknowledged the removal of trees, the applicant is required to make a further application to the council for permission to remove those trees, particularly where an unfavourable decision by the council would be unappealable. Mr Robertson says that the law cannot require his client to obtain a further consent where it is already authorised to carry out work under existing development consents.

Secondly, in relation to subdivision works, Mr Robertson relies upon the provisions of s 81A(3) of the EP&A Act as follows:- (3) A development consent that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.

In matter No 10799 of 1994 conditions 4, 5, 6 and 13 expressly recognise the construction of a drainage system for the site. In addition, conditions 9 and 27 refer to roadworks and road design and conditions 10 and 12 speak of engineering works required in association with the subdivision. Condition 15 provides for the installation of street lighting. Provision of 391 car parking spaces and spaces for service vehicles is stipulated in condition 40.

The conditions of consent in matter No 10798 of 1994 work to the same effect for a stormwater drainage system and the loop roads servicing the conventionally subdivided lots.

Hence, Mr Robertson says, this enables the applicant to carry out any physical activity in connection with subdivision, in particular, drainage and roadworks. The issues raised by the applications determined by Her Honour clearly included the question of tree loss as a consequence of the physical activity associated with building not only the subdivisions, but also the retirement village.

The issue having been resolved by the judgments of the Chief Judge, the council cannot now impede the implementation of the approved works by a "sidewind" . Indeed, says Mr Robertson, s 81A(3) is an enabling section designed to overcome the prospect of a "claytons consent", that is, one which is largely illusory or exists in name only.

Clause 8(2) of the Model Provisions 1980 applies to Parramatta Local Environmental Plan 1990 (Toongabbie Ward) and has the effect of requiring a consent by virtue of a TPO.

Mr Robertson contends that the findings by Lloyd J in Meriton Apartments Pty Ltd v Ryde City Council (Lloyd J, NSWLEC, 30 April 1998, unreported) and Cameron v Lake Macquarie City Council (2000) 107 LGERA 308 where His Honour found that the destruction or harming of a tree is an act, matter or thing "controlled by an environmental planning instrument" and is thus within the definition of development in the EP&A Act have no bearing on the present argument where the applicant is already in possession of the relevant consent. The decision by Bignold J in Dames and Moore Pty Ltd v Byron Council [2000] NSWLEC 46, to the same effect as that of Lloyd J, is similarly of no assistance to the respondent.

It is the applicant's claim that such consent was given when the Court granted development consent. Mr Robertson points out that the one development consent often covers the obligation to obtain a consent for development required by different provisions in an LEP. For example, consent may be required by the Land Use Table as well as a separate clause controlling consent for subdivision or a specific clause requiring consent where the subject of the application is in a special category, such as an heritage item. He says that in those instances it is always open for an applicant to make one development application, notwithstanding that more than one obligation to obtain consent is prescribed by the relevant planning instruments.

The issues for the applicant here are whether it is entitled to remove the trees relying on a construction of the consent granted by the Court and by dint of s 81A(3).

Thus, the applicant's case is that even if development consent is necessary as a requirement of the TPO, that consent was obtained in 1996 when the Court granted development consent. Furthermore, s 81A(3) gives the requisite authority to implement the consent irrespective of whether it has been granted under the TPO or any other instrument.

Finally, in reply, Mr Robertson relied upon the provisions of s 109B of the EP&A Act to submit that irrespective of the effect of s 81A(3), s 109B expressly provides that nothing in the TPO requires a further development consent to authorise the carrying out of the removal of trees in accordance with the consents already granted by the Court, and in force.

In summary, therefore, the applicant says that on a proper construction of the consents granted by the Chief Judge they were sufficient authority to remove those trees. The argument is reinforced by reliance on the provisions of s 109B as well as s 81A(3).

Mr Robertson also submits, as a matter of construction, that condition 48 is clearly inconsistent with the later application of the TPO provisions because it requires that detailed tree removal plans and planting schedules are to be "submitted" prior to removal of any trees in connection with the three lot subdivision and village construction.

Furthermore, he says the express obligation imposed on council and the applicant by condition 10 does not reincorporate an obligation to obtain further consent before proceeding with the resubdivision of Lot 2. The requirement in the Bushland Plan of Management Part A for the removal of trees "in accordance with Council's Tree Preservation Order" refers only to the absolute obligations imposed by the TPO rather than a requirement to obtain a further consent. According to Mr Robertson, it is not possible to recognise an intention to require a further development consent or other approval within the provisions in condition 10 or the incorporated terms of the Bushland Management Plan.

Mr Tobias insists at the outset that there must be a proper understanding of what works have been approved. In the council's view, these can only be the works expressly approved by the development consent or any other works approved pursuant to a condition of consent or for which approval is facilitated by the terms of a condition to that effect.

Although s 81A(3) may apply to the consent granted in matter No 10798 of 1994, Mr Tobias points out that it can have no application to the consent granted in matter No 10799 of 1994 in so far as it related to the construction of the retirement village. He asserts, and Mr Robertson was not heard to state to the contrary, that no works involving the removal of trees are necessary as a consequence of the development consent granted in respect of the three lot subdivision in matter No 10799 of 1994.

The trees to be removed therefore are those contemplated in the application for resubdivision of Lot 2 (No 10798 of 1994) and construction of the retirement village (No 10799 of 1994).

The council accepts that the development consent granted in matter No 10798 of 1994 authorises physical works including roadworks and drainage together with the removal of trees for the purpose of the resubdivision.

Mr Tobias contends, however, that the combined effect of condition 10 and the terms of the Bushland Plan of Management is that council simply reserved its position in respect of the TPO and the requirement to comply with it. If, on the other hand, Mr Robertson is correct when he says that the Chief Judge gave approval to the removal of specific trees when she granted consent to the resubdivision, then Mr Tobias claims it is plain that the words in the Bushland Plan of Management will have no work to do.

As a matter of construction, the council says the applicant cannot rely on the Bushland Plan of Management to authorise the removal of trees in connection with the construction of the SEPP 5 development pursuant to the consent granted in proceedings No 10799 of 1994. This is because the conditions of consent do incorporate the Bushland Plan of Management.

Although the applicant already has the benefit of approval for the removal of 144 trees in connection with the construction of the retirement village, and the Court is informed they form the bulk of the trees to be removed for that purpose, the council claims further approvals are required to remove the balance.

In summary, therefore, the council says that s 81A can have no application to the construction of the SEPP 5 development, which does not involve subdivision, and that in so far as the resubdivision of Lot 2 is concerned, condition 10 expressly reserves the requirement to comply with the TPO and thus s 81A(3) cannot assist the applicant.

Mr Tobias surmises that the Chief Judge would have been surprised to be told that when she granted consent in 1996 she was authorising the removal of trees by virtue of the application of the provisions of the TPO. Whether or not that is so, the nature and scope of approved development must be ascertained by construing the consent document together with any plans or other documents it incorporates. The Bushland Management Plan is one such incorporated document.

Mr Tobias does not say that a consent required by a TPO cannot be granted concurrently with the determination of a development consent. The council's case here is that when the Chief Judge granted development consent she gave no indication that it was to be regarded concurrently as a consent granted pursuant to the TPO. The council relies on the alleged absence of any conditions of development consent that reflect a consideration of the requirements of the TPO.

For the purposes of the respondent's argument it does not matter that the removal of trees must also be regarded as development. The question is whether, when the consent was granted by the Court, it covered both aspects of the proposed development.

Mr Tobias asserts that it is not relevant for the Court to consider the alleged inconvenience of depriving the applicant of any right of appeal against the decision of council to refuse consent to an application made pursuant to the TPO. Although he suggests that if that arose, as a matter of practicality, an application to modify the conditions of consent pursuant to s 96 of the EP&A Act might be appropriate.

It is fundamental to the applicant's case that either or both of the development consents be construed in such a way that they can be accepted as a consent given pursuant to the TPO. Otherwise the latter consent is still outstanding.

In the narrow context of the TPO the Court recognises that a consent to removal of trees can be distinct to a development consent granted in respect of the overall works.

The plans disclose that the application to resubdivide Lot 2 was supported by a set of plans showing the lots to be created and indicative house platforms. However, no specific dwelling houses were approved.

It is the Court's view that when consent was granted in matter No 10799 of 1994 for the construction of a SEPP 5 retirement village, it was intended to be a consent for all relevant purposes under the provisions of the EP&A Act to the carrying out of the development proposed in the application and identified by the plans.

Condition 48 of the consent in proceedings No 10799 of 1994 expressly contemplates that trees will be removed. The condition requires only that detailed tree removal plans and planting schedules be submitted to the council prior to the removal of any trees. If there had been any intention to require a submission as a precursor to the grant of further consent it might reasonably be expected that condition 48 would have contained a statement to that effect.

It is illogical and impracticable to regard the development consent in matter No 10799 of 1994 as permitting the applicant to carry out the initial subdivision and construction of the SEPP 5 retirement village development without recognising that an integral and necessary consequence of acting on the consent would be the loss of trees.

In light of the provisions of condition 48 in particular, and the inherent nature of the approved development generally it is unlikely that the council, and hence the Court, failed to take into account the provisions of the TPO. There is no direct proof one way or the other.

I am not convinced that s 81A(3) goes so far as Mr Robertson contends. The use of the word "may" is permissive. It enables the consent authority to authorise the carrying out of the physical activity referred to in the subsection even though it is only subdivision which is designated as the permissible development. The purpose of the section is to enable the consent authority to authorise the applicant to carry out works which flow from the grant of an otherwise bare development consent for subdivision. The wording of subsection (3) is to be contrasted to subsection (1). The latter operates so that a development consent solely for the erection of a building is "sufficient to authorise" the use of the building when erected.

Subsection (1) extends the ambit of the effect of a development consent. Subsection (3) extends the ambit of the power of the consent authority.

However, in this instance there is in both cases specific mention of proposed drainage and roadworks. For present purposes in proceedings No 10799 of 1994 the conditions are sufficient by virtue of s 81A(3) to allow the applicant to carry out those works, such as they may be. If the completion of the works necessitates the removal of a tree then the consent authorises the removal of that tree.

The effect of s 81A(3) is not critical for the purpose of the development consent granted in matter No 10799 of 1994 as the three lot subdivision contemplated only minimal works, if any, in respect of the subdivision itself. Nevertheless, the consent contained conditions relating to drainage and roadworks and accordingly any of those works expressly incorporated in the consent by reference to the approved plans can be carried out without a further approval in so far as the removal of vegetation is concerned.

The effect of the determination in proceedings No 10798 of 1994 is to be distinguished. There is no equivalent of condition 48. There is also the additional and distinct requirement to comply with the Bushland Management Plan.

The Bushland Management Plan assesses the impact on trees in three categories as "keep; possible loss and loss" . The list of trees in Appendix 5 adopts these categories and applies them across the site.

There is also specific mention of proposed stormwater drainage systems and roads. It is significant to bear in mind that a development consent should be construed to give it a practical effect and not to construe it strictly as if it is a statutory enactment.

For present purposes therefore, in proceedings No 10798 of 1994 the conditions of consent are sufficient by virtue of s 81A(3) to allow the applicant to construct the proposed stormwater drainage system and roads in connection with the resubdivision of Lot 2. If the completion of the proposed stormwater drainage system and the roads necessitates the removal of trees nominated as a "possible loss" or a "loss" in Appendix 5 to the Bushland Management Plan, then in the Court's view the consent authorises the removal of those trees.

In summary, the Court is of the opinion that:- (1) The removal of trees for the purpose of or in connection with construction of the three lot subdivision in accordance with the approved plans is authorised by the development consent granted in proceedings No 10799 of 1994 by dint of s 81A(3) of the EP&A Act.

(2) The removal of trees for the purpose of or in connection with construction of the SEPP 5 retirement village in accordance with the approved plans in proceedings No 10799 of 1994 is authorised by the development consent.

(3) The removal of trees identified as a "possible loss" or a "loss" in the Bushland Management Plan for the purpose of or in connection with the construction of the subdivision of proposed Lot 2 in accordance with the approved plans is authorised by the development consent granted in proceedings No 10798 of 1994 by dint of s 81A(3) of the EP&A Act.

(4) It follows from the same reasoning that no further and separate consent will be required for the removal of vegetation which must of necessity be removed to enable the erection of a dwelling house upon each of the lots created by the resubdivision of the proposed Lot 2 provided the council first consents to the erection of the individual dwelling house.

Both parties have submitted an alternative form of declaration which could be made depending upon the Court's determination of the effect of the TPO. The Court in general terms has agreed with the applicant's submissions that no further consent is required, notwithstanding the TPO provisions.

It is appropriate, nevertheless, that after reading these reasons, the parties bring in minutes of appropriate declarations so that any possible misunderstanding is avoided.

64. Either party has liberty to apply on seven (7) days notice.

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