Lo Brothers Company Pty Limited v Inner West Council

Land and Environment Court (NSW)|2021-12-17

Judgment

COMMISSIONER: These proceedings are an appeal under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application DA20210182 (DA) by Inner West Council (Council).
The DA proposes to demolish the existing improvements and erect a three-storey mixed use development at 34-36 Lackey Street Summer Hill, legally described as Lot 3 DP 225131 (site).

Proceedings

Proceedings commenced with an on-site inspection but otherwise were conducted virtually, using the Microsoft Teams platform.

Proposal

The application before the Court at the commencement of proceedings proposed a one-way traffic movement, ingressing via Lackey Street and egressing via the rear. Removal of a tree located upon 32 Lackey Street, for which owners consent had been provided, was also proposed.

Amendments

Early in proceedings, the Applicant foreshadowed an intention to seek to amend the application before the Court. Some aspects of the intended amendments followed recommendations forthcoming from joint expert reporting. Notably, revised architectural drawings had been prepared (Revision E plans, tendered into Evidence as Ex F). The intended changes reduced the number of residential units from twelve to eight, and provided for various other design improvements, which according to the urban design and planning experts, had the result of addressing merits issues relating to: design and amenity, desired future character, apartment mix, overshadowing, heritage and inadequate information (relating to the aforementioned topics). Here I refer to the Joint Expert Report by planning and urban design experts, tendered as Ex 7 at p 2. The intended amendments also included: (1) a revised "written request" pursuant to cl 4.6 of Ashfield Local Environmental Plan 2013 (ALEP), (2) additional information in relation to flooding (Flood Assessment Report by Telford December 2021 tendered as Ex L), (3) a supplementary statement of environmental effects (prepared by ABC Planning December 2021 tendered into evidence as Ex M), (4) a revised BASIX certificate and (5) a substitute Design Verification Statement prepared by Ross Howieson Architects of relevance to State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (filed on 10 January 2022).
The issue of access arrangements for the proposal and related matters concerned with tree removal, as a factor in the proposed amendments and referenced in Ex M, involves an attempt to address a deficiency identified in the application. It requires some detailed explanation.
The application before the Court at the commencement of proceedings involved one-way access into the site from the east via Lackey Street, using an existing driveway between the building on the site and a building to the immediate south (38 Lackey Street).The driveway is shared between the site and 38 Lackey Street under a form of reciprocal rights, with both properties enjoying a right-of-way (ROW). This driveway will be described forthwith as the Reciprocal ROW. Egress was intended to be provided via an existing ROW to the west of the site (benefitting the site and burdening a property described as SP 60881, with street address 91 Smith Street). This ROW presents as a laneway and is also enjoyed by a number of other properties. What I will call the Lane ROW meets the public road system at Smith Street, a little to the south and east of the site.
The Lane ROW is used for rear vehicle access to the site at present. The site's existing internal accessway intersects with the Lane ROW more to the north of the site's eastern property boundary. At present there is clear and open access for vehicles between the site and the Lane ROW in this northern location. The proposal would shift the positioning of the access (and its intersection with the Lane ROW) more to the south of the site's eastern property boundary. This new access alignment would be used for site egress, as part of the new one-way traffic movement arrangement. The problem which arose (and which came to the Court only at commencement of proceedings) was that there are some trees near the boundary line, but within the area of Lane ROW, which would block this proposed new access configuration. These trees would need to be removed were the proposed access configuration to be effected. There was no owner's consent available from the owners of SP 60881 to allow removal of the existing vegetation. It followed that to grant approval for site vehicular egress, and necessarily this tree removal, would be outside power.
The Applicant sought to amend the application so that consent would not be needed for the removal of the vegetation on land in SP 60881. It followed that the amending plans did not provide for site egress. Exhibit M notes that there will be a need, ultimately, for the vegetation's removal, but that their removal is not sought as part of this application. A deferred commencement condition could provide that the consent not operate until tree removal occurs and site egress is provided.
The power to amend development applications sits at cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). The agreement of the consent authority is a pre-requisite. In this instance, Council contested the amendment. The Court would have power to agree to the amendment of the application under s 39(2) of the Land and Environment Court Act 1979 (LEC Act), were it so disposed. In this instance, I indicated to the parties that a decision on whether the Court agrees to the amendment would be made after considering submissions from the parties. In this instance, the parties relied, at least in part, on written submissions filed following the conclusion of in-Court (albeit virtual) proceedings.
It is convenient here to introduce the closing submissions (and their abbreviations). The Applicant's closing submissions were made orally. Council's Outline of Closing Submissions were emailed to Court on 19 December 2021 (CCS). The Applicant's Submissions in Reply were filed on 23 December 2021 (ARS).

Legal questions in regard to the proposed amendments to application concerned with removing site egress

Council raised a number of points in regard to both the acceptability of this aspect of the Applicant's proposed amendments, and were it found to be acceptable, the legal implications arising in the evaluation of the amended application. Council's concerns can be summarised as follows: 1. That the proposed amendment concerned with removing site egress, should not be agreed because: 1. The amendments so change the nature and characteristics of the development as to render it an original or new application (rather than an amended application). 2. The amendments involve an inappropriate artificial construct to avoid a jurisdictional requirement and make a mockery of the planning process. 1. If the amendment concerned with removing site egress is agreed, then the evaluation of the application would lead to the conclusion that the "land to which the development relates" still includes the Lane ROW (and the associated tree removal on it), and thus owner's consent is required. The development is still intended to be carried out on the Lane ROW. This follows from the review of various other statements or assumptions in documentation accompanying the amendment application (eg Ex M, Transport Impact Assessment Report dated 17/2/2021, and other material cited). There is no owner's consent for the Lane ROW works. 2. There is a procedural failing in the required evaluation and consideration of conditions, in particular in regard to the intended deferred commencement condition.

Whether proposed amendment should be agreed

There was agreement between the parties that Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; [2006] NSWLEC 155 ('Radray') established the principles which apply to deciding whether the power to permit an amendment under cl 55(1) of the EPA Regulation exists. The Applicant summarised as follows (ARS par 7): "The Court has no jurisdiction to entertain an original development application (at [6]); A broad approach to both the scope and application of cl 55 is appropriate (at [8]); The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision and cl 55 ought to be construed as to give "the widest interpretation which its language will permit" (at [9])."
Council submits that the amendment would be properly construed as an original application (CCS par 9): "In the present case, the proposed amendment so changes the nature and characteristics of the development as to render it an original application - it seeks to amend the proposed development from "shop top housing with driveways for access to and egress from carparking", to an application for development of "shop top housing with no egress from its carparking".
On the other hand, the Applicant argued as follows (ARS par 9): "The supplementary SEE makes clear that egress is proposed via the rear laneway; the removal of trees to facilitate that access is simply not included as part of this application. The agreed conditions provide that the consent will not operate until the trees are removed. If a separate development consent or permit is required for their removal, it will need to be obtained before the consent to this application operates. The deletion of the reference to the removal of the two trees does not transform the amendment into a fresh application."
I prefer the Applicant's arguments in regard to whether the amendments are of such significance as to require the application to be considered as a new or original application. My reasoning can perhaps best be understood when considering the Applicant's point describing the application as an "artificial construct", one that "makes a mockery" of the Court. I believe the amendment is certainly a "construct" of sorts, but that does not mean it is inappropriate to the circumstances. The approach is a construct developed by the Applicant to address a problem which has arisen. The Court's Practice Note makes clear that parties are "to be prepared" for proceedings. In this instance, it is no credit to the Applicant that this matter of tree removal has only come before the Court late. But in the circumstances of this case, the process proposed seems to allow the opportunity for the listed appeal proceedings to make the best of the time made available to it, and for an adjudication to be made.
By "circumstances of this case", I have a mind to Council's reference to Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; [2006] NSWCA 300 at [5], and that one should do one's best to ensure "that consent authorities are not troubled by applications that are pointless because title requirements for carrying them out will not be satisfied". While this question is only indirect here, I do not see this application (were it to be amended), as "pointless" in that sense. It is still the Applicant's intention to provide for site vehicular egress. This is agreed by the parties. It is also agreed that the site enjoys legal rights of access along the Lane ROW. Rather, I am persuaded by the Applicant's argument that the EPA Act does not place "constraints on an applicant's ability to decide what parts of a proposed development they propose to seek consent for, or when". I also note the Applicant's reference to Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245, where Preston CJ (at [94]) found that documents accompanying a development application (along with describing the land to which the application relates) can also "confine" the land to which the development application relates.
Before a final conclusion is drawn on whether I agree to the Applicant's proposed amendments, including those which have the effect of removing the otherwise intended site egress, it is practical for me to consider the other questions posed by Council.

Whether owner's consent is still required for Lane ROW

Clause 49(1) of the EPA Regulation provides as follows (my emphasis): A development application may be made - (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent of the owner of that land.
Council argues that the common and repeated references to the use of the Lane ROW for site egress (eg in the original statement of environmental effects, the traffic report accompanying the application, the joint expert traffic and parking report (Ex 4) and Ex M (CCS pars 20-27)) mean that the Lane ROW is "inextricably part of the land to which the DA relates". Council observes as follows: "(Ex M) states that "the applicant does not seek consent for development outside the development Site, except for the removal of a Port Jackson Fig", but also acknowledges that "the proposal is for vehicles to enter from Lackey Street", and that "two further trees . . . will ultimately need to be removed in order to facilitate egress from the development . . .".
The application plans and Ex M make clear that the intended "land to which the development application relates" does not include the Lane ROW. By way of its documentation (embodied in the proposed amendments), the Applicant seeks consent solely for development on 34-36 Lackey Street, along with tree removal at the neighbouring 32 Lackey Street. The land to which the application relates has purposively been confined in the accompanying documentation to exclude the Lane ROW.
The Applicant's intention is reasonably clear. The Council's concern, as I perceive it, is whether the Lane ROW by its very nature (as the sole means of future egress) is "inextricably" part of the land to which the application relates, notwithstanding these purposive efforts on the part of the Applicant.
I believe the Applicant's submissions address this query. A somewhat parallel case was cited in Community Association DP270447 v ATB Morton Pty Ltd (2019) 240 LGERA 32; [2019] NSWCA 83, where no invalidity was found in an instance where development consent was issued to ATB Morton, reliant on the securing of owner's consent for access into the future over land owned by Community Association DP270447. The community association had appealed in part, on the basis that ATB Morton had failed to obtain owner's consent for all of the land, to which its application related.
I do not agree that there is a need for owner's consent in regard to Lane ROW.
I would also note that as there is no proposal before the Court to carry out work on the neighbouring land forming part of the Reciprocal ROW, there is no owner's consent required from 38 Lackey Street (Stokes v Waverley Council (No 2) (2019) 242 LGERA 392; [2019] NSWLEC 174 (at [84]).

Whether a procedural failing with deferred commencement approach

Council argues that the proposed amended application, were it agreed, brings about evaluation and determination stage problems. Two points were made. The first point is as follows (CCS par 39): "In the present case, the suggestion in the applicant's proposed amendment for a deferred commencement condition (if necessary), does not get considered until the Court has concluded to determine the development consent by granting it subject to conditions."
I did not note any authorities in support of the point made by Council here. Suffice to say, in my view, considerations in regard to ss 4.15, 4.16 and 4.17 of the EPA Act (ie evaluation, determination and imposition of conditions of consent in regard to development applications) can reasonably involve some iterative components. I do not see a concern with the proposed approach in regard to the first point made by Council here.
The second point is concerned with the failure to consider something required to be considered (CCS par 40): "If the Court were minded to grant development consent to the amended proposal and then consider what conditions might be imposed upon such consent, leaving the potential of egress from the development's carparking to be resolved by means of a deferred commencement condition is a deferral of the consideration of a major component of the likely impact of the development required to be considered pursuant to s 4.15(1)(b) of the EP&A Act."
Cameron v Nambucca Shire Council (1997) 95 LGERA 268 [at 275-276] was cited by Council in regard to this concern (the underlined text was highlighted by Council in its submission - it is also noted that "s 90" and "s 91AA" are references to earlier versions of the EPA Act, concerned with: (1) matters for consideration in DA evaluation and (2) deferred commencement consents, respectively): "The deferring of consideration of a matter which a consent authority is required to consider pursuant to s 90 of the EPA Act is not something which is authorised by s 91AA. Section 91AA contemplates that some act must be performed before the consent operates. Specific works may be required as a prerequisite to the commencement of development. Those works may be on or off the Site and either carried out by the applicant for development consent or a third party. The consent authority may require concurrence or confirmation from another authority or person, with the appropriate expertise or power, that the council's assessment of a particular aspect of the development is the correct one. Section 91AA is not, in my opinion, a panacea to overcome the necessity to consider a requisite matter pursuant to s 90 or the requirement to finally determine the development application pursuant to s 91. A condition that the consent is not to operate until the consent authority is satisfied as to any matter does not mean that the consent is not a final one. A deferred commencement consent is a final consent when it is granted, even though the date from which the consent operates must not be endorsed on a notice, as required by s 92(3)(a), until the applicant satisfies the consent authority as to the matters specified in the condition."
Section 4.15(1)(b) of the EPA Act requires a consent authority, when determining an application, to take into consideration: the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality
I am mindful of the Court's obligation to consider likely impacts of works which are likely to impact on the environment, but are not the subject of the application, a matter considered by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 ('Palm Lake'), (citing from [18]): "… the fact that works, which are likely to impact on the environment, are not the subject of the development application is not dispositive of the question of whether the likely impacts of the works need to be considered in the determination of the development application. The likely impacts of the works can be considered to be likely impacts of the development the subject of the development application where there is a real and sufficient connection between the works and their impacts and the proposed development."
In this instance, and despite its exclusion from the amended proposal, there is a real and sufficient connection between the proposed future vehicular egress and associated proposed future removal of trees in the Lane ROW, and the actual application before the Court, to require consideration of the impacts of the relevant works. My evaluation in regard to this question will be provided, along with other merits considerations when the appeal judgment is handed down.

Conclusion

Having regard to the beneficial and facultative nature of the provision at cl 55(1) of the EPA Regulation (Radray at [9]), and in accordance with the powers available to it under s 39(2) of the LEC Act, I agree to the Applicant's proposed amendments to the application, including those which have the effect of removing, from the application before the Court, the otherwise intended site egress.
Under cl 55(1) of the EPA Regulation, an application is not amended until the amendment is lodged on the NSW Planning Portal. It will be seen that directions are also given that this be undertaken and that the parties advise the Court when the amended application has been so uploaded.
After advice on this is received, judgement and final orders in regard to the Class 1 appeal will be handed down.

Orders

The Court orders and directs: 1. The Court, exercising its functions under s 39(2) of the Land and Environment Court Act 1979, the function of Inner West Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending the development application DA20210182 filed with the Court on 9 June 2021 (as amended) as follows: 1. Substitute for architectural plans, relevantly, the revised architectural plans of Ross Howieson Architects numbered 202, 203, 204, 205, 301, 302, 401 and 402 all dated 16 December 2021 revision E. 2. Include the cl 4.6 request (Height variation) prepared by ABC Planning Pty Ltd dated December 2021. 3. Include the Flood Assessment Report of Telford Civil dated December 2021. 4. Include the Supplementary Statement of Environmental Effects of ABC Planning Pty Ltd dated December 2021. 5. Substitute for the original BASIX certificate the revised BASIX certificate of Ross Howieson Pty Ltd dated 21 December 2021. 6. Substitute for the Original Design Verification Statement an Amended Design Verification Statement of Ross Howieson Architects, filed with the Court 10 January 2022. 1. The Court directs that the amendment of the development application is to be lodged on the NSW planning portal, by the most appropriate party, within 7 days of the date of this order and the Court and other party is to be notified as soon as practical after it has been lodged. 2. The parties are granted leave to restore in two working days.

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: 23 February 2022

(2006) 145 LGERA 292

(2019) 242 LGERA 392

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