Mirvac Projects Pty Limited v Council of the City of Sydney

Land and Environment Court (NSW)|2003-09-16|Before: Mr J

CITATION : Mirvac Projects Pty Limited v Council of the City of Sydney [2003] NSWLEC 219 Applicant: Mirvac Projects Pty Limited PARTIES : Respondent: Council of the City of Sydney FILE NUMBER(S) : 10380 of 2003 CORAM: Moore C KEY ISSUES: Development Consent - Planning Instruments - Subdivision :- Appropriateness of condition requiring s88B instrument Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Central Sydney Local Environmental Plan 1996 Central Sydney Development Control Plan 1996 Fortunate Investments v North Sydney Council [2001] 114 LGERA 1; Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75; Hutchison 3G Australia Pty Limited v Waverley Council [2002] NSWLEC 151 ; CASES CITED: Shaddock v Parramatta City Council (No 1) 150 CLR 225; Newbury District Council v Secretary of State for the Environment [1981] AC 578; J James and Anastasia Markakis v Mosman Municipal Council [1998] NSWLEC 223; Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199 DATES OF HEARING: 16 September 2003 DATE OF JUDGMENT: 10/31/2003

Ms S Duggan, barrister instructed by Coudert Bros LEGAL REPRESENTATIVES: Mr J Robson, barrister instructed by Abbott Tout

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10380 of 2003 Moore C 31 October 2003 Mirvac Projects Pty Limited Applicant v Council of the City of Sydney Respondent Judgment Introduction 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the imposition by the Council of the City of Sydney (the council) of a particular condition as part of its approval of Development Application D/02/00815 ("the development application") being a development application for subdivision. The condition requires the creation of instrument pursuant to s 88B of the Conveyancing Act 1919 ("the Conveyancing Act") which would purport to limit the floor space ratio available to one of the allotments created as a result of the proposed subdivision. It was also agreed by the parties that the appeal should be determined on the basis that any issues which might arise as to whether or not an instrument pursuant to s 88B of the Conveyancing Act could be created, validly, to give effect to the condition (if the condition were to be confirmed) were not matters appropriate to be canvassed or determined in this appeal.

2 A site inspection was taken in company with the parties on 16 September 2003. The land

3 The land proposed to be subdivided presently comprises an unnamed private laneway located at the rear of 210-214 George Street, Sydney. The laneway is a single allotment known as Lot 3 DP 913005. It runs in a westerly direction from Underwood Street at the point where that street turns to the south. The laneway, itself, also turns to the south part way along its length to run parallel to the southern portion of Underwood Street. The laneway concludes in a dead end from which the underground parking of the building at 210-214 George Street is accessed.

4 The laneway is presently burdened by a variety of easements and covenants which are not affected by the proposed subdivision and are not in contention in this appeal.

5 The laneway has a total area of 241 m2. The subdivision will divide it into two separate allotments.

6 The allotment immediately to the rear of the building at 210-214 George Street will be known as Lot 21. It has a substantial overhanging portion of this building above what is approximately the western half of this portion of the laneway. Condition 3 of the subdivision consent requires this allotment to be consolidated with the two allotments upon which the footprint of the building is located thus resulting in a single consolidated allotment for this building and its driveway access.

7 The second allotment, which is L shaped, will have an area of 171.4 m2. This allotment will be known as Lot 20 ("the site"). Eight other separate allotments (including the consolidated site of 210-214 George Street) will have common boundaries with this allotment.

8 No physical changes to the laneway or construction works are proposed to be undertaken as part of the subdivision. Conduct of the hearing

9 On behalf of the applicant, a statement of evidence by Mr Robert Chambers, consultant town planner, was tendered.

10 On behalf of the respondent council, a statement of evidence by Mr Stephen Longhurst, who is employed by the council as a Specialist Surveyor, was tendered.

11 Each of these witnesses prepared a statement in reply to the evidence of the other and these statements in reply were also tendered. Neither of these witnesses was required for cross-examination. Thus the appeal is to be determined on the basis of this written evidence; what was observed on the view and the submissions made by counsel on behalf of each of the parties. The present development at 210-214 George Street

12 On 19 February 1987, the (then) Minister for Planning and Environment granted approval to Development Application 44/86/1282. The resulting development became the present building known as 210-214 George Street. The land which was encompassed within this development application comprised three allotments. Two of these allotments fronted George Street and the third allotment was the private laneway which is the subject of the subdivision application whose disputed condition 8 is the subject of these proceedings.

13 The floor space ratio of the approved development, after a number of modification applications, would appear to have been 9.904: 1 as a consequence of the Minister's approval on 17 July 1987 of the final relevant variation to the original consent. The floor space ratio of 9.81:1 in the proposed condition 8 would appear to be derived from a proposed total floor space in an earlier relevant modification application. Nothing turns on this in the present proceedings.

14 What is critically relevant to the present proceedings (and, indeed, provides the foundation for the council's imposition of condition 8) is the fact that the whole of the area of the private laneway was utilised to establish a notional site area of 622.83 m2. This site area enabled a building containing a total developed floor space of excess of ~ 6100 m2 to be erected and become 210-214 George Street.

15 During the course of the approval process by the Minister, the council requested the addition to the consent of a condition dealing with floor space ratio matters. The Minister agreed and this condition was added to the modified consent. It was in the following terms: The maximum floor space ratio shall not exceed 9.90:1 as calculated by the Sydney City Council in accordance with its Development Control and Floor Space Ratio Code and shall include: (a) base floor space ratio of 4.34:1; (b) additional floor space ratio of 1.25:1 to be obtained on the basis of the Applicant's contribution to Council Parking Stations Fund; (c) additional floor space ratio of 2:1 to be obtained for the provision shops; (d) additional floor space ratio of 2.31:1 to be obtained from transferred historic floor space of 1439 square metres or alternatively on the basis of Council's resolution of 26 May 1987 16 For the purposes of the present proceedings, this condition had the effect of recording the basis of each of the elements comprising the resultant total floor space ratio.

17 With respect to the element of the additional floor space ratio of 2.31:1 noted in (d) of the condition set out above, it is Mr Chambers evidence that the resolution referred to was: …… a resolution of Council made on 26 May 1987 that where a development consent has already been granted subject today condition that transferable heritage floor space ratio be acquired and such floor space cannot be obtained the Council may accept the lodgement of a security bond to acquire the floor space within 12 months and that the bond rate be at $250.00 per square metre of floor space to be acquired

18 His evidence continued to describe the process which followed, culminating in the then developer forfeiting its security bond of $359,750.00 to the council in about June 1989. His evidence also notes: Additionally, the method by which that FSR was calculated in 1987 has long been superseded. Furthermore, not only has the definition of floor space area changed but also the availability of "bonuses" above a base floor space ratio.

19 The 1987 development consent did not contain a condition requiring consolidation of the three allotments. No such consolidation subsequently occurred thus leaving open the option for the present subdivision application. Relevant planning controls Central Sydney Local Environmental Plan 1996

20 The land is zoned City Centre under the provisions of the Central Sydney Local Environmental Plan 1996 ("the LEP"). The proposed subdivision is permissible with consent. Central Sydney Development Control Plan 1996 21 The only relevant provisions of the Central Sydney Development Control Plan 1996 which apply are those contained in Part 3 Pedestrian Amenity of this Plan. Section 3.1 deals with Lanes and provides, in 3.1.1, that existing public and privately owned lanes in Central Sydney are to be retained. The subject site is identified as a lane on Figure 3.1 of the Plan and links to a midblock connection which is also depicted on Figure 3.1. This joins the laneway to George Street. Section 3.2 Midblock Connections provides, in 3.2.1, that existing midblock connections in Central Sydney are to be retained. There is nothing in the present subdivision proposal which is contrary to these provisions. The council's decision

22 The subdivision development application was lodged with the council on 12 November 2002.

23 By notice dated 19 February 2003, the application was granted under delegated authority. The Notice of Determination contained a number of conditions in two schedules. The first of these schedules included, at condition 8, a condition which is, effectively, the genesis of this appeal - although not in the form finally before the Court for determination.

24 The applicant exercised its right to seek a review pursuant to s 82A of the EP&A Act. Whilst this review process was being undertaken, negotiations took place between representatives of the applicant and the council to see if the issues relating to proposed condition 8 in Schedule 1 to the consent could be resolved. However, this was not able to be achieved prior to the review being undertaken by the council's Small Permits Appeals Panel. The panel's deliberations resulted in a new Notice of Determination being issued to the applicant by facsimile on 15 August 2003. This new Notice of Determination also contained a number of conditions in two schedules. The first of these schedules included, at condition 8, the condition which is the subject of this appeal.

25 This condition reads: 8. A restrictive covenant must be placed on the title of Lot 20 in the subdivision, recording that the site was part of a development site known as 210-214 George Street, Sydney, and has been utilised in calculating the Floor Space Ratio of that site and building of 9.81:1. As such, the site of Lot 20 has essentially been developed to 9.81:1, notwithstanding that it is currently vacant. Accordingly, a restrictive covenant must stipulate a Gross Floor Area of 1681.4 square metres (being 9.81:1 multiplied by the site area of Lot 20) must be deducted from the Floor Space Ratio calculations for Lot 20, should it be part of a future development application. The restrictive covenant must be created pursuant to Section 88B of the Conveyancing Act 1919, at the applicant's full expense and to Council's satisfaction. Note: The covenant will be noted on the Section 149 Certificates for lot 20 so burdened by this condition. 26 During the course of the hearing, the Court was advised that the proposed note to the condition was not pressed. As a consequence, if the condition were to be sustained, it should be so sustained with the deletion of this note. Scope of the appeal

27 It is agreed by the parties that the sole matter to be determined in this appeal is whether or not condition 8 in Schedule 1 to the August consent should remain. As consequence of this agreement, if the appeal were to be upheld, the orders of the Court would merely delete that condition and, if the appeal were to be dismissed, the orders of the Court would confirm the August consent (with the note to condition 8 in Schedule 1 being deleted - as discussed above). The issues in the appeal

28 The two issues which require determination in this appeal are: - does a consent authority have a statutory foundation upon which to base a condition requiring the creation of instrument pursuant to s 88B of the Conveyancing Act 1919 purporting to limit the floor space ratio available to an allotment created as a result of the subdivision? and - if there is such a statutory foundation, is imposition of such a condition an appropriate exercise of such power in the present circumstances? Consideration of the issues

29 It is clear that the Court has a general power to require the creation of a s 88B instrument in appropriate circumstances: see Fortunate Investments v North Sydney Council [2001] 114 LGERA 1. What is in issue in this case is whether there is any basis to found the exercise of that power. The foundation to impose such a condition in the present instance

30 The relevant general head of power under the EP&A Act to impose conditions comes from s 80A(1) which reads: a) 80A Imposition of conditions (1) Conditions - generally A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or 31 S 79C of the EP&A Act relevantly reads: a) 79C Evaluation (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) …, and (iii) any development control plan, and (iv) …, that apply to the land to which the development application relates, (b) …, (c) …. (d) …., (e) the public interest. 32 The LEP establishes, in cl 4, inter alia, the requirement that the consent authority must have regard to the aims and objectives of the LEP in considering any development application. It is the council's case that the relevant aim of the LEP in the present instance is that contained in cl 11(e) and which reads: (e) to encourage the orderly development of land and resources within Central Sydney 33 Mr Longhurst's statement of evidence said, in this regard, that proposed condition 8 was necessary to ensure compliance with this aim. His evidence was: As part of orderly development, it is appropriate to accord absorption of FSR (either by the physical presence of a building or by way of annotation on title). It is quite probable that in the absence of condition 8, an applicant would seek to strip FSR off an adjoining site and transfer it in an uncontrolled manner, without regard to the characteristics of an existing development site, or its history. The development therefore would not be orderly. 34 In response to this proposition, after noting the provisions of cl 53 of the LEP which deal with subdivision and the absence of any specific or implied reference to such a condition in that cl, it was Mr Chambers evidence that: ….. there is no proposal to erect a building or to make any change to any existing building through the addition of floor space. The proposal is simply for subdivision, and as such no consent for any additional floor space, and thus any increase in floor space ratio, is sought as part of the application. To suggest that the subdivision of one existing lot into two separate lots which does not involve the erection of any building or structure is somehow inconsistent with encouraging the orderly development of land and resources within Central Sydney is, in my opinion, inappropriate and ill-founded.

The erection of any building or structure must be the subject of a future DA. If such a future DA is lodged then the documentation accompanying that DA will need to address the floor space ratio provisions which apply at the time and the extent to which the proposed complies with those provisions.

35 Mr Longhurst speculates what a future applicant owning the subject site and some unspecified adjoining site might seek to do. However, what a future applicant might seek to do does not constitute present disorderly development. Any such application would require consideration by the relevant consent authority and the satisfaction of that body that any such proposal complied with the aims and objectives of the LEP. If that body were not so satisfied and considered that the proposal would result in disorderly development, it could reject the proposal on that ground. If it did not so reject a proposal, perforce it would have considered it to constitute orderly development.

36 In this instance, in addition to seeking subdivision, the applicant has agreed to consolidate the site with the allotments which currently compromise the existing building at 210-214 George Street that portion of the laneway which is the access way to and is overhung by portion of that building. This would appear to constitute a contribution to orderly development rather than an inhibition of it. I have therefore concluded that cl 11(e) does not provide any basis to sustain the imposition of proposed condition 8.

37 Mr Longhurst was also of the view that, if condition 8 were not imposed, cl 34 of the LEP would also be breached in three respects. The first breach which he saw occurring was to objective (a) which provides: To ensure a degree of equity in relation to development potential for sites of different sizes and for sites located in different parts of Central Sydney

38 Mr Longhurst expressed the view that it is inequitable to fail to record the absorption of FSR, and leave open the possibility that it is in effect stripped for an adjoining site, artificially increasing its FSR.

39 Mr Chambers response to this proposition is that, as the proposal is solely for subdivision, no floor space ratio is stripped from any site, adjoining or otherwise.

40 The second objective of cl 34 of the LEP which Mr Longhurst considers to be breached is objective (b) which provides: to ensure the proposals for new buildings are assessed with due regard to the development plan, design excellence, urban design and built form provisions of this Plan.

41 He expressed the view that excessive FSR would adversely impact upon the items in this objective.

42 In response, Mr Chambers considered that this objection did not make sense as the objective relates specifically the proposals for new buildings and that no new building was proposed in the present application.

43 The third objective of cl 34 of the LEP which Mr Longhurst considers to be breached is objective (g) which provides: to regulate the density of development and generation of vehicular and pedestrian traffic.

44 He expressed the view that: The density of development would not be regulated as intended in the LEP, as buildings approved at a certain FSR would have no meaning part of the site was stripped for inclusion in another future development. There would then be adverse flow on effects or the generation of vehicular and pedestrian traffic.

45 In response, Mr Chambers considered that this objection did not make sense as the subdivision would generate no additional vehicular or pedestrian traffic nor would it have any impact on the density of any existing or future development.

46 The first of these concerns could only arise if a consent authority considered some future application which included attribution of FSR derived from the relevant subdivided allotment and made a decision which was both inequitable and such inequity was based on a lack of knowledge of the prior FSR utilisation of the site. As the council is the consent authority at the first instance, it is its responsibility in the ordinary course of its record-keeping to ensure that it maintains details of matters such as the utilised FSR of the site. Mr Longhurst has not given any evidence explaining how a s 88B instrument (as envisaged by condition 8) would assist in such a process and, absent such evidence, there is no reason based on this control objective for its imposition.

47 Mr Longhurst did express the belief, at 4.2.8 of his statement of evidence, that it would be reasonable for a purchaser to inspect the land, and infer that the land was merely vacant land, capable of being developed in accordance with the controls set out in the Central Sydney LEP 1996 (or other controls applicable at that time). Putting third parties on notice of FSR utilisation by a s 88B instrument might arguably be a consumer protection measure arising out of the public interest provisions in s 79C(1)(e) and this is dealt with below. However, it does not arise from the objective discussed immediately above.

48 Objectives (b) and (g) would only come into play if there were a development application seeking to utilise the site for FSR calculation purposes. There is no such application at the present time. This is sufficient reason, in itself, not to provide a foundation for requiring a s 88B instrument to be created in terms proposed. However, if there were such a future application, information forming the basis of assessment would be expected, as discussed above, to be derived from the records of the council. Again, absent any evidence as to how a s 88B instrument might cure any defects in this regard, these objectives do not provide any appropriate foundation for such instrument.

49 Mr Longhurst also suggests that cl 35(1) of the LEP would be breached because the FSR proposed to be attributed to the site is in excess of the floor space ratio of 8:1 for the site as shown on the Floor Space Ratio Map. Accepting there is such an exceedance as contended by the council, it is already in existence. Consideration of what is the present FSR of the site will arise in the context of any future application seeking to utilise the site for FSR purposes. There is no such application at the present time. However, if there were, the creation or otherwise of a s 88B instrument will not alter the factual FSR position. It follows, therefore, that this provision of the LEP does not provide any basis for the requirement for the creation of such an instrument.

50 Mr Longhurst then suggests that a s 88B instrument as sought would, in some way, assist with the exercise of the discretion of a consent authority contained in cl 43A of the LEP to exclude a parcel of land from a site area if its inclusion would cause the resulting development to be excessive. He said that: If an inappropriate amount of FSR is attributed to the laneway, the resulting development would be excessive, and therefore that parcel may be excluded from an amalgamated site.

51 Mr Chambers points out in his statement of evidence that this cl only come into play when a development application relates to more than one parcel of land and that this is not the case in the present application. However, the implication of Mr Longhurst's evidence in this regard is that consideration should be had of possible future applications which might involve this site and some other adjacent property. Accepting, for the sake of argument, that this is appropriate, the weakness in Mr Longhurst's position is that he provides no evidence establishing any causal link between a s 88B instrument and the necessary exercise of the discretion. If some future consent authority were required to exercise the discretion, it is not clear how that discretion would miscarry if no s 88B instrument were in existence. Again, it is the responsibility of the council to keep an appropriate record of the development history of sites within its boundaries.

52 Mr Longhurst finally proposes, with respect of the LEP, that cl 45 could not be enforced unless condition 8 were imposed and a s 88 instrument created. Clause 45 is entitled Award and allocation of heritage floor space. It deals exclusively with a process whereby floor space may be transferred from the site of heritage building within Central Sydney to another site within Central Sydney in certain designated areas where the particular application will include the conservation of the heritage building. Mr Chamber's response to this proposition is that, as the present application is for subdivision only, issues of floor space ratio do not arise and no increase is sought for the floor space ratio of the building on 210-214 George Street or any other building.

53 Mr Longhurst does not provide any basis for his assertion that cl 45 could not be enforced absence the existence of a s 88 instrument as proposed. As noted on several earlier occasions, the proper repository for knowledge of prior FSR attribution is the records of the respondent council. In addition, there is no invocation of cl 45 of the LEP associated with the present application. I have, therefore, concluded that there is no basis associated with cl 45 which would support the imposition of condition 8. The issue of precedent

54 Mr Longhurst said, at 4.2.10 of his statement of evidence, that the non-imposition of condition 8 would create an undesirable precedent for the transfer of floor space between properties. He continued: The potential FSR of the site would be stripped and used in an amalgamated site. This unregulated stripping and "double dipping" would obviously create a precedent that would be used elsewhere in the City and beyond.

55 Disregarding the hyperbole in this statement, the possibility of stripping an "double dipping" will only arise in the context of some future development application involving the present site and some neighbouring parcel of land.

56 In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 at 28, Lloyd J said: 28. ……… if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration. 57 As a consequence, the two questions to be addressed, therefore, are whether the proposal is, itself, objectionable and, secondly, whether there is a sufficient probability that further similar applications would result, if granted, in an "objectionable condition of affairs" occurring. For an application to be rejected on the grounds of precedent, both of these questions require an answer in the affirmative.

58 In the present instance, the proposed development which is the subject of these proceedings is a simple subdivision. It is not, in itself, objectionable as is evidenced by the fact that the respondent council does not object to the subdivision occurring. In the present proceedings, therefore, the first of the Goldin tests is failed if this approach is taken. However, it might be argued that what is proposed by the applicant is a subdivision without imposition of condition 8 and that this is what is objectionable in a Goldin sense. Accepting for the sake of argument that this is the correct, Mr Longhurst provides no evidence of the probability that further similar applications would arise. Therefore, even if the first of the Goldin tests might be accepted as being passed, there is no evidentiary basis to conclude that the second is satisfied. The public interest

59 It is clear that a consent authority cannot impose a condition founded on s 79C(1)(e) where the purported public interest is the protection of that authority from the potential of future litigation arising out of its decision: see Hutchison 3G Australia Pty Limited v Waverley Council [2002] NSWLEC 151 where Cowdroy J said:

The indemnity condition is not directed to the interests of the public safety or preservation or well being of the public. Instead it is directed solely to the issue of protecting the council from any liability in the event that a claim is made against it for damages relating to the effects of EMR. The sole beneficiary of the indemnity condition is the council, not the residents. Such condition could not be classified as one made in "the public interest" as referred to in s 79C(1)(e) of the EP&A Act since no protection whatsoever is provided to the public. It follows that the indemnity condition does not satisfy the test of validity, namely, that it relates to a "planning purpose". 60 It follows from Mr Longhurst's evidence, considering 4.2.8 and 4.2.12 of his statement of evidence in conjunction, that he is of the opinion that the purpose of condition 8 is to the public on notice of limitations that the council contends exist on the future potential of the land. Such notice by a s 88 instrument would certainly put any potential purchaser who searched the title of the site on notice of the council's position as to floor space ratio limitations on the site. It might also arguably have some effect in protecting the council from any exposure to damages for negligent advice of the kind dealt with in Shaddock v Parramatta City Council (No 1) 150 CLR 225. However, in the present instance, it is Mr Longhurst's uncontradicted evidence that the former purpose is the reason for the council's proposal for condition 8.

61 In light of Mr Longhurst's uncontradicted evidence in this regard, which I accept, I am satisfied that such a consumer protection warning to potential purchasers is a matter which is capable of being regarded as being in the public interest and therefore brought within the foundation provided by s 79C(1)(e). The appropriateness of such a condition 62 Having concluded that there is a potential foundation for such condition, it is then necessary to consider whether it is appropriate that such condition should be imposed.

63 Counsel for the applicant submitted that that power must be read down in the light of established judicial pronouncements on the scope of statutory power to impose conditions on the grant of development consent. In support of this submission, the applicant relies on principles deriving from the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599.

64 In Newbury, it was held that for a condition to come within the relevant statutory power it must fulfil three conditions: (i) it must be imposed for a planning purpose; (ii) it must fairly and reasonably relate to the development for which permission is being given; and (iii) it must be reasonable.

65 Lloyd J's decision in J James and Anastasia Markakis v Mosman Municipal Council ([1998] NSWLEC 223 at 14) notes the applicability of Newbury in proceedings in this Court and also makes it clear that: The threefold test described [in Newbury] is a cumulative one. It is not enough for one or two of the tests to be satisfied. All three tests must be satisfied for a condition to be valid. 66 With respect to the first Newbury test, it appears necessary that the planning purpose must at least be a significant purpose; that it is not required to be the sole purpose but that the position as to whether it should be the dominant purpose for the imposition of the condition is not yet settled: see Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199 at 75.

67 In the present instance, it follows, therefore, that I must be satisfied that the condition is proposed for a planning purpose and, at least, that that planning purpose is significant.

68 From consideration of the elements of the LEP dealt with earlier in this decision, it is clear that I am not satisfied that there is any specific identifiable foundation in the LEP for such a condition.

69 However, Mr Longhurst also expresses the opinion that the imposition of condition 8 is required to satisfy two objectives of the EP&A Act - namely s 5(a)(i) and (ii). It is not necessary to set these provisions out in full, as Mr Longhurst's opinion will suffice to extract the relevant words in this regard. He says, at 4.2.11 of his statement of evidence: The proposal without condition 8 will not result in the proper management and development of artificial resources, nor the promotion and coordination of the orderly and economic use and development of land.

70 Considering, in vacuo, the nature of the s 88 instrument which would be created as a consequence of condition 8, I satisfied that such a condition might be imposed, in appropriate circumstances, founded on these two objectives of the EP&A Act. I have reached this conclusion as I am satisfied that floor space ratio constitutes an artificial resource and that such a resource is appropriately regulated as part of the orderly and economic use and development of land. It therefore falls to consider whether or not the present circumstances satisfy the second and third Newbury tests.

71 The second of these tests requires that the condition must fairly and reasonably relate to the development for which permission is being given. It is on this test, in my view, that the respondent council's position founders. The present development application deals with subdivision simpliciter. There is no development application to build on the site or to utilise this site in conjunction with any adjacent site. The question of floor space ratio attribution to the subdivided element is only a matter appropriate to be considered if such a development application were lodged in the future. In the absence of such an application, I am unable to be satisfied that this test is met. For future applications, as noted above (at several places), knowledge of the FSR history for the purposes of assessment of such application is appropriate to be retained through the record-keeping processes of the council.

72 As the three Newbury tests are cumulative, failure at the second test renders it unnecessary to consider the third test. The option of notation on a planning certificate 73 Mr Longhurst said, in his statement of evidence: It is not the public interest to allow inappropriate stripping and transfer of FSR between sites. It is, however, appropriate to record clearly the impact of a consent on the future potential of the land. The application of that potential is then matter for the owner in accordance with the relevant planning instruments. In contrast to the zoning and other impacts, the absorption of FSR is not recorded under a Section 149 Certificate, unless such a condition is imposed as in this case.

74 With respect to the second and subsequent sentences of this extract from Mr Longhurst's evidence, the conclusion which he draws is correct with respect to the mandatory information required by s149(2) of the EP&A Act to be included on a planning certificate. However, s149(5) provides a discretion for the council issuing such a certificate to incorporate additional relevant material selected by that council. The provision reads: 149 Planning certificates (1) ….. (2) ….. (4) ….. (5) A council may, in a planning certificate, include advice on such other relevant matters affecting the land of which it may be aware.

75 Although not all potential purchasers may elect to obtain a s149(5) certificate, it is still clearly within the power of the council to seek to put intending purchasers on notice of matters of FSR utilisation by the site through such an annotation. Conclusion 76 For the reasons set out above, I satisfied that it would be possible, in an appropriate situation, for a consent authority to impose a condition requiring the creation of such a protective s 88 instrument. However, in the present instance, I am not satisfied that that it meets the second of the Newbury tests namely that it fairly and reasonably relates to the development for which permission is being given. It follows that condition 8 ought not be impose on the applicant. Orders 77 The orders of the Court are: 1. The appeal is upheld; 2. The conditions of consent contained in the Notice of Determination issued to the applicant by facsimile on 15 August 2003 for Development Application D/02/00815 for subdivision of Lot 3 DP 913005 are amended by the deletion of condition 8 in Schedule 1; and 3. The exhibits, other than Exhibit 1, may be returned.

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At a glance

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Before

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Judgment (69 paragraphs)

Parties

Cases Cited (4)

Cited By (1)