Landseair v North Sydney Council

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Occupational Health and Safety Act 2000

Progress & Securities v North Sydney Council 66 LGRA CASES CITED: Walton v Blacktown City Council [2006] NSWLEC 451 Newbury District Council v Secretary of State for the Environment [1981] AC 578

DATES OF HEARING: 28 July 2008, 29 July 2008, 30 July 2008 & 31 July 2008

Applicant: LEGAL REPRESENTATIVES: Mr T Robertson SC and Mr J Johnson, barrister Respondent: Ms S Duggan, barrister

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10996 of 2007 Landseair Pty Ltd v North Sydney Council 11164 of 2007 11165 of 2007

Senior Commissioner : These are three appeals against decisions of North Sydney Council (the council) in respect of applications under s96 of the Environmental Planning and Assessment Act 1979 (the Act) to amend conditions attached to development consent DA 1348/81 issued on 4 July 1983 (the first development consent) and DA25/02 issued on 18 December 2002 (the second development consent). · Appeal No 10996 of 2007 is against the council's refusal of a s96 application to delete Condition D37 of the first development consent and change Condition G3 of the second development consent. · Appeal No 11164 of 2007 is against the council's deemed refusal of a s96 application to delete Condition D37 from the first development consent and Conditions G3 and G4 from the second development consent. · Appeal No 11165 of 2007 is against the council's deemed refusal of a s96 application to delete Condition D37 from the first development consent.

The Kirribilli Marina 1 The Kirribilli Marina has existed since the early 1900s. In 1983 the council granted development consent 1348/81 for a refurbishment of the marina. The use was prohibited at the time; however, the applicant and the council relied on existing use rights. The uses permitted by the consent were all marine-related. In its Statement of Environmental Effects the applicant offered to provide public access. In response, the council imposed Condition D37: Unrestricted public access is to be provided over the wharf during daylight hours. A sign is to be erected in the full view of the public indicating unrestricted public access from dawn to dusk. 2 There has been public access since 1983. There is a sign as required by the condition. There is no record of any incident arising out of public access. 3 In 2002 the applicant lodged a second application requesting a change in the list of approved uses. The council issued consent 25/02 allowing a wider range of uses, some of which have no connection to the water. In its Statement of Effects, the applicant again offered public access to the wharf, stating that …public and private use of the marina has co-existed for many years without conflict." 4 The second consent continued all the conditions attached to the first one, and imposed some new conditions, notably Conditions G3 and G4. 5 Condition G3 states: A right-of-way to be created in accordance with s88K of the Conveyancing Act over the area of the wharf/boardwalk, which is located on the south side of the porperty with appropriate easement/restriction as to user, to enable public walkway access to the wharf/boardwalk between dawn and dusk. Such right-of-way to be created on the tile prior to occupation of the approved uses. 6 Condition G4 states: The applicant shall prepare a plan of management to close the wharf area to the public only at those times when dangerous activities are taking place.

Relevant planning controls and policies 7 Local Environmental Plan 2002 zones the site partly Waterfront and partly Open Space. Before 2003 the land was zoned Open Space. 8 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the land. The parties took me to different objectives and principles in the regional plan: the applicant to those that promote a working harbour, and the council to those that aim for enhancing public access. For example, among the aims of the plan is cl 2(1)(d), "to ensure a prosperous working harbour and an effective transport corridor"; and also cl 2(1)(f), "to ensure accessibility to and along Sydney Harbour and its foreshores". I note that cl 2(2)(b) actually gives preference to the public interest, presumably in cases of conflict with private interest: "The public good has precedence over the private good whenever and whatever change is proposed to Sydney harbour and its foreshores." 9 Occupational Health and Safety Act 2000 (the OH&S Act), while it does not directly relate to the application, provides the basis for the applicant's claim that circumstances have changed since the disputed conditions were imposed. The OH&S Act defines risk to health and safety. Where an employer does not provide a safe working environment, it is liable even without an accident occurring.

The objectors' concerns 10 The Court heard the evidence of Mr Russell Debney, who lives at 133 High Street. Mr Debney pointed out that the council approved the marina on the basis of public access. He saw the retention of the access as a matter of planning principle. Mr Warren Burdon, who lives at 143 High Street, supported Mr Debney's evidence. Mr Stephen Grenville, who lives at 31 Doris Street, said that he frequently walks out on the wharf as part of his evening walk. He finds the wharf as safe as the park.

Matters in contentions 11 The Applicant's Second Further Amended Statement of Facts and Contentions is repetitious and requires simplification. The Statement lists ten points, of which the first three require the deletion of Condition D37 from the first development consent, and Conditions G3 and G4 from the second. The remaining seven points provide the reasons for the deletion. · First, the conditions are in conflict, uncertain and unreasonable, because public access to the wharf, which is a place where marine industry is carried out lawfully, puts the public at risk, impacts adversely on the applicant's business and places a blot on the title. · Second, the requirement for public access to the wharf creates an unresolvable conflict with the commercial operations of the marine facility, places a heavy economic burden on the applicant and reduces the value of the property. · Third, the first development consent allows the carrying out of marine light industrial activities on the wharf as well as within the building. · Fourth, both the first and the second development consent permit the use of the wharf for marine industrial activity, either because they do not constrain such use, or because the use of the wharf is ancillary, or because the use of the wharf is permissible as a continuing use protected by s109 of the Act. · Fifth, the conditions are unreasonable because part of the wharf is under the mean high water mark and leased from NSW Maritime under terms that are inconsistent with Conditions D37 and G3. They are also unreasonable because they have an adverse economic impact on the property, create a blot on the title, will reduce rentals, thus placing too large a burden on the applicant. · Sixth, the conditions are beyond power. The conditions, which require the dedication of land, may be created only in accordance with a Contribution Plan and no such Plan exists. · Seventh, the conditions are beyond power because they do not fairly relate to the development. 12 In its submission the council raised an additional contention, namely that the Court should use its discretion, inherent in the consideration of a s96 application, to refuse the application irrespective of its merits because nothing has changed since the conditions were imposed and re-considering them is tantamount to a re-hearing of the first and second development applications. 13 The contentions raised by the parties may be expressed by the following questions: · Should the Court exercise its discretion and refuse the s96 applications because circumstances have not changed sufficiently to justify a re-considerations of the original consents? · Is the carrying out of maritime light industrial activity on the wharf lawful? · Is there unacceptable risk to the public if it has access to the wharf? · Can Condition D37 be imposed without a Contribution Plan? · Are the conditions inconsistent with the lease of the land below Mean High Water Mark from NSW Maritime? · Do the three conditions in dispute meet the test of being for a planning purpose, relating to the development and being reasonable?

Discretion to refuse the s96 applications 14 Several judgments of this Court have held that the Court holds a discretion to refuse a s96 application regardless of its merits, among them Progress and Securities v North Sydney Council 66 LGRA and Walton v Blacktown City Council [2006] NSWLEC 451. The more relevant of these is Walton, in which Preston J held that it is inappropriate to use a s96 application to revisit a development consent where there has been no material change in circumstances since the consent was granted. The council's advocate, Ms S Duggan, submits that this situation applies to these s96 applications, as the applicant has not demonstrated that circumstances have changed to justify an amendment of the original consents. 15 The applicant's advocates, Mr T Robertson SC and Mr J Johnson, submit that there has been a change in circumstances, in particular in the requirements of OH&S legislation, perceptions of public safety and the difficulty to obtain public liability insurance. 16 In my opinion, the date from which a material change has to be demonstrated is 2002, since it was in 2002 that the applicant last asserted that it intended to continue to provide public access to the wharf. The OH&S Act dates from 2000, so the requirements of that Act and its regulations were in force in 2002. There was no evidence before me on perceptions of public safety or what the applicant's advocates called the "changing climate" affecting public risk and public liability. Despite the lack of evidence, I am inclined to accept that there is a growing reluctance by society to accept risk, that this reluctance manifests itself in the increasing cost of public liability insurance, and that this trend constitutes sufficient change in the last six years to justify a re-consideration of the three conditions that relate to public access to the wharf. 17 I do not propose to exercise my discretion to refuse the s96 applications irrespective of merit.

Do the consents permit work on the wharf? 18 Condition D28 of the first development consent gives approval to the use of the land in accordance with specified plans. Those plans indicate various maritime industrial activities only within the building and not on the wharf. Condition D29 restricts the uses permitted by the consent to those shown on a specified plan and a letter, dated 11 May 1983, which lists the uses. Condition D42 prohibits loading and unloading of vehicles on the wharf. It can be seen, therefore, that the first development consent · does not, in terms, permit the use of the wharf for industrial activities; · does not, in terms, prohibit the use of the wharf for industrial activities; · prohibits loading and unloading on the wharf. 19 The second consent changes the list of uses, but does not change anything in relation to the wharf. 20 The evidence indicates that the wharf is being used for marine industrial activities, such as spar finishing and painting, skiff finishing and painting and working on masts. During the Court's inspection of the site, a boat occupied some of the space on the wharf. 21 The council's planning expert was Mr I Pickles, a council planner, while the applicant's was Mr G Smith, a planning consultant. Mr Pickles said that since neither the first nor the second consent permit maritime industrial activity to be carried out on the wharf, such activity is prohibited. Mr Smith took issue; in his opinion the consents permit the use of the wharf. I understand his reasoning to be that, since the consents do not specifically prohibit the use of the wharf for industrial purposes, they should be construed as permitting it. 22 It seems to me that the difference between Mr Pickles and Mr Smith is that the former places a strict interpretation on the consents, while the latter interprets them liberally. In my opinion, there are many reasons for preferring a liberal interpretation, one of which is that a strict interpretation would make the functioning of the marina unnecessarily difficult. For example, if a spar were worked on within the building but protruded half a metre on the wharf, a strict interpretation would render this unlawful. It is likely that those concerned with obtaining and granting consent in 1983 and 2002 did not think of the possibility of a future dispute about the use of the wharf and did not pay particular attention to what may be done on the wharf. I note that the council agrees that the wharf may be used for carrying across it boat parts and materials to the jetties, even though this activity is not shown on the drawings. 23 In my opinion, a liberal interpretation of the consents means that the wharf may be used for industrial activities that are best described as ancillary to the activities carried out within the building. However, I do not think that the consents can be construed so liberally that they permit the use of the wharf for industrial activities that are incompatible with public access and are therefore a reason for denying public access. It is a legal principle that a development consent must be read as a whole. The first consent includes Condition D37 requiring unrestricted public access in daylight hours. The second consent does not change this. Whatever activity may be carried out on the wharf, that activity must be compatible with Condition D37. This means that any ancillary industrial activity on the wharf that a liberally construed consent allows must be carried out so as not to endanger the public.

Do continuing use rights permit work on the wharf? 24 Section 109(1) of the Act states: Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. 25 The applicant submits that, even if the consents do not permit marine industrial activities on the wharf, the continuing rights conferred by s109(1) of the Act permit such activities. This is because marine industrial activities were carried out on the land from the early 1900s until 1983 when the first consent was granted. The consents do not require that the applicant surrender any of its existing or continuing use rights. 26 The council submits to the contrary. Section 109(1) does not operate in relation to the facts of this case. The applicant does not rely on continuing use rights for carrying out the lawful use of the land. The applicant has taken up two consents, and the consents authorise certain uses to be carried out within the building but not on the wharf. 27 To the extent that I can understand the applicant's argument (and I do not fully understand it), it is that the maritime industrial activities that it has carried out since time immemorial on the land allow it to continue to carry out those activities on all parts of the land including on the wharf. 28 Given that there is two-way split among three eminent counsels on the application of s109(1) to the facts of this case, it is not easy for a 29 legally untrained commissioner to resolve the issue. My reading of s109(1) is that it does not apply to the circumstances of this case. The section enables a person to continue, without the need to obtain consent, a lawful use that has become prohibited by a new planning instrument. Maritime industrial activity is now not prohibited on the land. The use of the land is permissible by virtue of two consents, which the applicant has taken up. There would be no point in the consents specifying a list of uses if that list were supplemented by further uses that are claimed to have been carried out before the date of the consents. It is the two consents that make the use of the land for marine industry lawful, not continuing use rights under s109(1).

Risk to the public 30 The council's risk expert was Mr Jon Agnew, the council's risk manager, while the applicant's was Mr Jeffrey Puckeridge, a consultant risk management specialist. Mr Agnew's opinion was that the wharf was like a public street where the users of the street and the persons who carried out industrial uses alongside had the same rights. He had not always held this view: before he was persuaded that the use of the wharf for maritime industrial use was prohibited, he had believed that there should be no public access to the wharf. 31 The Court requested Mr Agnew to produce a plan of management similar to the one required by Condition G4. After searching the council's records, the most relevant plan of management he found was one for Luna Park. Given the difference of scale, Ms Duggan did not tender the plan of management. 32 Mr Puckeridge took the view that the wharf was a dangerous place and the public should be kept out of it. Mr Puckeridge had been instructed that the use of the wharf for maritime industry was permissible. In cross-examination Mr Puckeridge agreed that the layout of the premises required that visitors to those tenancies that were not related to maritime uses, who would be uninitiated to the site, must walk along the wharf. He therefore agreed that, even if public access were denied, visitors who are unfamiliar with the site had to use the wharf. The danger was the same as if there were public access; however, the more people were on the wharf, the greater would be the consequences of the danger. 33 Mr John Currie, who is the director of the Mosman Bay Marina, where there is no public access to the wharf, said that working on boats and public access are not compatible. 34 It is not necessary that I prefer the evidence of Mr Agnew or Mr Puckeridge. Their disagreement is based on different assumptions about what is permissible on the wharf. Mr Puckeridge conceded that there were visitors to the site who were like members of the public from the risk point of view. Some care, therefore, has to be taken by those who work on the wharf. 35 Two conclusions arise from the evidence of the risk experts: · Unrestricted maritime industrial activity on the wharf is in conflict with unrestricted public access to it. · The layout and tenancies of the facility require that visitors traverse the wharf. It is therefore not possible to restrict access to the wharf to people who are familiar with the site.

The valuation evidence 36 The Court heard the evidence of Mr Terry Davies, a valuer retained by the council, and Mr Michael Paris, a valuer retained by the applicant. Both experts valued the cost of Condition G3, namely the provision of an easement for public access on the title. Both experts assumed that Condition D37 would remain; they valued only the cost of an easement. Mr Paris valued the cost at $1.5 million on the assumption of maritime industrial activity being allowed on the wharf, and 10% less (ie $1.35 million) on the assumption of no maritime industrial activity being allowed on the wharf. Mr Davies valued the cost of an easement on title at $25,000, whatever the assumption about the wharf. 37 The experts had no convincing explanation for the huge difference in valuation based on the same assumption. For this reason, the evidence is of little help to the Court. It seems to me that the answer lies somewhere between their valuations; however, I have no basis to assume that it is half-way between.

The conditions without a Contribution Plan 38 The applicant contends that Condition D37 may be imposed only if it is authorised by a Contribution Plan. I do not understand the argument. Contribution Plans are made under s94 of the Environmental Planning and Assessment Act 1979 and deal either with dedication of land or monetary contributions. Condition D37 requires public access, not dedication. A condition requiring public access does not need to be authorised by a Contribution Plan.

Are the conditions inconsistent with the lease? 39 Part of the land under the wharf is under the Mean High Water Mark and is leased from NSW Maritime. The lease has expired and continues on a holding-over period basis. The council referred the s96 applications to NSW Maritime for comment. NSW Maritime submitted them to the Foreshores and Waterways Planning and Development Advisory Committee for comment. At a meeting held on 22 April 2005, the Committee recommended that the applications seeking a deletion of the requirement for public access over the wharf be refused for the following reasons: · The requirement for public access along the existing deck has been a long-standing requirement dating from an approval to a 1981 application for the site. It is noted that this approval continues to apply and continues to require public access. · The Committee considers that insufficient justification has been provided to exclude the public from this area from dawn to dusk and will not unreasonably interfere with existing maritime operations. · The proposed modification is contrary to the aims and principle of the Sydney Regional Environmental Plan 23 and SEPP 56 applying to Sydney Harbour, which require public access to be maintained and enhanced, wherever possible. · The proposed modification is contrary to principle 12(e) of the draft Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2004; and · It is contrary to the public interest. 40 In a letter dated 6 May 2005 NSW Maritime wrote to the council informing them of the Committee's recommendations. The letter refers to the fact that the lease expires on 30 June 2006 and adds that "…as land owner NSW Maritime reaffirms its willingness to condition any subsequent lease to enable public walkway access between dawn and dusk along the subject wharf." 41 I conclude from the above that, far from being incompatible with the lease from NSW Maritime, public access to the wharf will be a requirement of a renewed lease. 42 It is of interest to note that the NSW Maritime letter also comments on Condition G3, as follows: It is NSW Maritime's position that a right of way for public access over its land is unnecessary because land vested in NSW Maritime is publicly owned land. 43 The council's requirement for an easement in Condition G3 is over private land. Despite this, in my opinion, it is just as unnecessary as if it were over public land. After all, public access has been available without it for 25 years.

Do the conditions in dispute meet the Newbury test? 44 It was common ground that a condition of consent had to meet the Newbury test (Newbury District Council v Secretary of State for the Environment [1981] AC 578), ie · it must be for a planning purpose; · it must relate to the development; and · it must be reasonable. 45 While the council contends that Condition D37 of the first consent should remain in substance, it accepts that it should be qualified to deny or restrict access at certain times. The new form of D37 suggested by the council is: Unrestricted public access is to be provided over the wharf from sunrise to sunset, except to the extent that access may be temporarily denied or restricted when the wharf is being repaired or when equipment associated with movement of boats and marine items results in potential danger to the public and in accordance with the plan of management approved by the council under Condition G4 of DA 25/02. A sign is to be erected in the full view of the public indicating unrestricted public access from sunrise to sunset. 46 The applicant accepts that the provision of public access is a proper planning purpose "in some circumstances". I presume that it accepts that it is a proper planning purpose in the circumstances of this case. 47 The applicant submits, however, that the provision of public access does not relate to the development. The reason is that "the actual development in 1983 did not deny public access where it had been previously available, nor did it create a problem which was to be rectified by the requirement to grant public access". I do not accept this submission. The wharf is partly over an area below the Mean High Water Mark. If it were not for the wharf, the public could walk over it in low tide. The provision of public access is to make up for the effect of the wharf in denying public access where it would otherwise exist. It is therefore directly related to the development. 48 The applicant also submits that the requirement for public access is unreasonable, because it makes it difficult to carry out the marine industrial activities, which are the raison d'etre of the marina. It also makes it difficult to obtain public liability insurance. To accept the submission on unreasonableness, I would have to find that the conditions are so unreasonable that no reasonable consent authority could have imposed them. I would have to reach this finding in spite of the fact that the applicant itself invited the condition in 2002, ie the applicant considered the condition reasonable in 2002. 49 I have no basis in the evidence to justify such a drastic conclusion. Circumstances may have changed since 2002 to justify re-considering public access in 2008, but not sufficiently to make public access, reasonable in 2002, unreasonable in 2008. 50 The three conditions in dispute all meet the Newbury test.

Conclusions 51 In my opinion, Condition D37 of the first consent should remain, albeit in the revised form suggested by council, which renders it less onerous for the applicant. My reasons are: · The applicant suggested the condition twice, first in 1983 and then in 2002. While there has been public concern with risk, and public liability insurance is more expensive now than it was in 2002, circumstances have not changed sufficiently to justify reversing a long-established planning principle of public access to Sydney Harbour. I note that 2002 was after the introduction of the OH&S legislation as well as after the 9/11 attacks. · The wharf prevents public access to the intertidal area in low tide that would otherwise exist. · There has been unrestricted public access to the wharf since 1983 without any incident. While I accept that the lack of past incidents is no guarantee of the future, it is a powerful factor in favour of retaining public access. 52 I do not think that the same rationale exists for justifying Conditions G3 and G4 of the second consent. In my opinion, condition G3 should be deleted for the following reasons: · Condition D37 has been sufficient to allow public access since 1983 without the existence of an easement on title. Condition G3 is therefore not necessary. · The council argues that the easement simply confirms what Condition D37 requires without adding anything. If that is the case, why impose it in the face of opposition by the applicant and some (admittedly inconclusive) evidence that it would reduce the value of the property? · The applicant did not ask for Condition G3 as it did for Condition D37. 53 The rationale for Condition G4, which requires a plan of management for the wharf, is even weaker than for G3. After searching through council's records, Mr Agnew was unable to produce a plan of management applicable to a similar situation. A plan of management would be a bureaucratic response to the management of daily life at the marina that appears to have been satisfactorily managed in the past 25 years without complaints. To use a colloquial expression, it would create a mountain out of a molehill. In my opinion Condition G4 should be deleted.

Orders Appeal No 10996 of 2007

1. The appeal is partly upheld.
2. Condition D37 of Consent No DA 1348/81 issued by North Sydney Council on 4 July 1983 is substituted with the following condition: Unrestricted public access is to be provided over the wharf from sunrise to sunset, except to the extent that access may be temporarily denied or restricted when the wharf is being repaired or when equipment associated with movement of boats and marine items results in potential danger to the public. A sign is to be erected in the full view of the public indicating unrestricted public access from sunrise to sunset.
3. Condition G3 of Consent No DA 25/02 issued by North Sydney Council on 18 December 2002 is deleted.

Appeal No 11164 of 2007

1. The appeal is partly upheld.
2. Condition D37 of Consent No DA 1348/81 issued by North Sydney Council on 4 July 1983 is substituted with the following condition: Unrestricted public access is to be provided over the wharf from sunrise to sunset, except to the extent that access may be temporarily denied or restricted when the wharf is being repaired or when equipment associated with movement of boats and marine items results in potential danger to the public. A sign is to be erected in the full view of the public indicating unrestricted public access from sunrise to sunset.
3. Conditions G3 and G4 of Consent DA 25/02 issued by North Sydney Council on 18 December 2002 are deleted.

Appeal No 11165 of 2007

1. The appeal is dismissed.
2. Condition D37 of Consent No DA 1348/81 issued by North Sydney Council on 4 July 1983 is substituted with the following condition: Unrestricted public access is to be provided over the wharf from sunrise to sunset, except to the extent that access may be temporarily denied or restricted when the wharf is being repaired or when equipment associated with movement of boats and marine items results in potential danger to the public. A sign is to be erected in the full view of the public indicating unrestricted public access from sunrise to sunset.

      Dr John Roseth
      Senior Commissioner

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