Morgan v Lane Cove Council

Land and Environment Court (NSW)|2018-06-15|Before: Dr J

Judgment

On 9 May 2018, in accord with the joint application of the parties, I gave a judgment setting aside the Court orders made in March 2018 and December 2017 (ex tempore judgment - Morgan v Lane Cove Council (No 2) [2018] NSWLEC 1472) pursuant to r 36.15(2) of the Uniform Civil Procedure Rules 2005 in Appeal No. 17/211667 (in relation to a subdivision proposal) and Appeal No. 17/63578 (in relation to a proposal to construct a three storey dwelling and an associated driveway).
I did this because the applicant, June Morgan, wanted to address me about the final terms of the conditions of consent in each case. The Council agreed. The appeals had earlier been heard concurrently at the direction of the Registrar in the residential stream of the Court's Class 1 jurisdiction pursuant to s 34AA of the Land and Environment Court Act 1979 (Court Act).
My judgment dated 1 December 2017 Morgan v Lane Cove Council (No 1) [2017] NSWLEC 1687 (December 2017 judgment) accurately records my reasons for findings which support a conditional approval of both appeals except for one matter which I correct now.

Correction of the record of the evidence of town planners about front building setback

At paragraphs [52]-[53] of my December 2017 judgment, I recorded that the planners agreed that the front setback issue was resolved by a condition requiring the registration of the subdivision before the construction certificate is issued for the dwelling at [52]. This agreed position had supported my finding at [53] that registration of the subdivision before the construction of the dwelling was appropriate.

Approval of the dwelling house and subdivision applications

Subject to the further reasons just outlined, I remain satisfied that my earlier reasons and findings in my December 2017 judgment, which support a conditional approval of the subdivision and dwelling house applications, are appropriate.

The Conditions further hearing on 15 June 2018

At the further hearing on 15 June 2018, Ms Morgan elected to represent herself rather than continue to be represented by her counsel, Mr Matthew Frazer. As an experienced and qualified engineer, she told me that she was familiar with matters of construction and subdivision and did not wish to engage legal representation or obtain further legal advice - despite my offers to adjourn the proceedings to allow her that opportunity. Instead, she asked me to proceed to finalise the judgment based on the parties' evidence and submissions. Dr Smith, the Council's barrister continued to represent the Council in both appeals.

Further evidence and submissions

To facilitate the further hearing about the conditions of consent for the dwelling house consent and the subdivision consent, I directed an agreed timetable for the filing of any additional evidence and written submissions.
On 21 May 2018, the applicant filed and served a large paginated document entitled "Motion + Affidavit" that identifies which of the Council's without prejudice conditions for DA 213/2016 and DA 170/2016 (at Annexures A and B, respectively, of the orders made by me on 9 May 2018) are objected to, and the basis of such objections. On the cover sheet of the document, it references the hearing on 15 June 2018 and states against the heading "Hearing" the following text: "15 June 2018 Hearing is to rule on my Motion filed on 2 May 2018 + to allow me be heard on Respondents' Without Prejudge Conditions of Consent which were entered into the file on 9 May 2018 as Annexures A and B; + Approval of Subdivision of my property and Approval of a dwelling on the old tens (sic) court and rule the Conditions of Consent for both Approvals".
The document then sets out the "Orders Sought" by the applicant in the following terms: "My development applications were approved on 1 December 2017. I ask their approval be confirmed and Development Conditions of Consent as in my Affidavits filed 2 May 2018 and today".
At the hearing, the applicant tendered her version of conditions in each case. They were marked Exhibit AA for the subdivision appeal and Exhibit BB for the dwelling. As it transpired, the applicant's affidavits dated 2 May 2018 with attachments A to R and 21 May 2018 with attachments were read without objection from the Council.
The Council initially relied upon the conditions attached to a document dated 28 May 2018 entitled "written submissions". Annexure A was an updated version of the Council's conditions of consent for DA213/2016 (for the dwelling house) which identified those changes proposed by the applicant that were agreed to by the Council and tracked in red. Annexure B to the written submissions was an updated version of the Council's draft conditions of consent for DA170/2016 (the subdivision consent). It also identified in red track changes those changes proposed by the applicant that were agreed to by the respondent.
According to Dr Smith, the Council's written submissions at that time set out the Council's complete position but for one further matter namely: - whether the driveway should be built before the subdivision development as provided by the Council's proposed condition 2 in Annexure B to the Council's written submissions. It was agreed that the Council could speak to this issue and Ms Morgan could respond. (I will deal with this matter shortly).
The hearing about the conditions in each appeal lasted all day with the Court sitting until about 5pm. Over that time, the Council's conditions were further refined in an attempt to accommodate the applicant's concerns. A hand written copy of the changes was marked up on a version of the Council's conditions in each case and handed to the applicant at the conclusion of the day (transcript of the hearing at T15/6, p153, Ll 4, 5). It was agreed that the Council would file and serve a typed up version of these final conditions of consent by the following Tuesday (T15/6, p153, Ll 11-30). The final typed version of the conditions was to be exactly the same as the versions handed to the applicant at the end of the hearing.
This happened, as directed, on 19 June 2018 when the Council filed and served two annexures under a cover letter of that date. Annexure A is the updated final conditions in relation to DA213/2016 for construction of a dwelling house. Annexure B is the updated conditions in relation to DA170/2016 for subdivision of the land into two lots. For clarity, I note that these conditions filed and served under cover letter 19 June 2018 represent the Council's final conditions for the purposes of this judgment. Although I appreciate that the applicant does not accept that the Council's conditions filed and served on 19 June 2018 are the same as the marked up conditions of consent handed to her at the conclusion of the hearing on 15 June 2018. To address this, she has filed further documentation identifying the discrepancies in respect of which I have read and considered.
Following a consideration of all of the evidence and the parties' submissions about Condition 2 (requiring the driveway construction as part of the subdivision consent) on July 2018, I invited the Council to advise me of any alternate condition in the event that I did not accept the condition as proposed. The Council's solicitor did not receive the Court's letter in respect of this invitation until 2 August 2018. The Council's solicitor responded by email and advised that the Council did not suggest any alternative subdivision conditions other than the APEX Engineering plan which was discussed at the hearing. It also indicated that, in the event that the Court decided not to require the made driveway as proposed by the Council, then it submitted that it was essential that Conditions 37, 41 and 42 were still imposed as drafted in the updated conditions filed with the Court and served on Ms Morgan on 19 June 2018. It was also submitted that the applicant's abbreviated short form of conditions discussed at the hearing on 15 June 2018 in Exhibit FF should not be preferred. The letter also referred to some case law in respect of consents running with the land for the benefit of future owners or occupiers and the necessity for clarity.
Ms Morgan was provided with the Council's correspondence and asked to respond if she wished by 16 August 2018. Ms Morgan filed an affidavit in response on 10 August 2018. She then requested and was provided with a copy of the transcript of the hearing on 15 June 2018. Ms Morgan then updated her 10 August 2018 affidavit. I have read that material. In essence, the applicant contends that the final conditions of 19 June 2018 are not reflective of agreed changes and, to that end she has drawn the Court's attention to the relevant transcript references. Again, I have considered all these matters in my weighted assessment of the appropriate conditions in each case. Generally speaking, Ms Morgan believes that many of the conditions proposed by the Council in each case are redundant because the works identified in them have already been completed and /or picked up in the approved plans set out in the schedule of the dwelling house consent. If, in fact, Ms Morgan is correct and the conditions she complains about are already satisfied, nothing really turns on this - they will have been satisfied - there is no suggestion that the Council needs to be satisfied twice. Their inclusion in that circumstance does no more than clarify the terms of the development approval granted which is useful in this case, in my view.

Final conditions for the dwelling house consent - Annexure A

Part A - Deferred commencement consent Condition 1

I have already outlined my reasons for the imposition of the Council's proposed PART A - Deferred Commencement Consent: Condition 1 of Annexure A requiring that the subdivision be registered before the dwelling can be built (as set out in the version of the Council's conditions in Annexure A dated 19 June 2018).

Condition 1A subparagraph (i)

PART B of Annexure A deals with the conditions of consent once the consent is operative. Ms Morgan has raised issue with several conditions proposed by the Council in various documents including her response to conditions document filed on 25 June 2018, and her various affidavits sworn on 3 August and 10 August 2018.
The schedule in Condition 1A lists the approved plans (including version C of the Steven Water LMW Deign Group Revision C Drawing plan1160.16, sheets D1, D2, D3 and D3A) which have been agreed.
The applicant has requested that subpar (i) of Condition 1A be deleted because it is unnecessary.
Subparagraph (i) refers to the requirement for a 150mm lift above adjacent finished floor level. The applicant submits that this has already been accommodated in the revision C plan prepared by Steven Waters Design nominated in the Schedule of plans in Condition 1A. By not deleting subpar (i), the applicant is concerned that she will need to lift the slab an additional 150mm in circumstances, where it is already accommodated in the amended approved plan.
Noting that the Schedule includes the amended plan (revision C) which lifts the slab 150mm above adjacent finished floor level, I agree with the applicant and direct that Condition 1A is amended to delete subpar (i).

Condition 19

Ms Morgan raises concern about the imposition of Condition 19 of Annexure A dated 19 June 2018. According to the Council, Condition 19 deals with the materials and colour of the dwelling house roof and intended to address sun reflection and glare to protect the amenity of the surrounding residents. Ms Morgan believes that these matters are already addressed by the Kaleidotecture drawing referred to in the schedule of plans approved by Condition 1A of the consent. The Council submits that Drawing DA 006 titled "External Finishes" Revision B does nominate Zincalume Steel Kilplok for all roof areas, but does not include details such as the colour, profile or finish for the roof.
The colour and reflectivity of the roof of the dwelling, particularly when viewed from the water and surrounding residents, is clearly an important aspect of the acceptability of the dwelling in this environmentally scenic and sensitive area. As these matters of colour, profile and roof finish have not been adequately addressed in the Kaleidotecture drawing relied upon by the applicant, I find that Condition 19 is necessary and appropriate.

Condition 25

Condition 25 concerns a waste management plan. The Council submits that the applicant's document entitled "Motion and affidavit" filed on 21 May 2016 did not contain an acceptable Attachment R. Therefore, an updated waste management plan which addresses construction and demolition related waste is required to be submitted. The applicant submits that, at the hearing, the Council acknowledged receipt of an acceptable waste management plan and that the schedule of plans was to include a reference to that plan. As it stands, the Schedule does not refer to such a plan, so Condition 25 needs to be imposed.

Condition 28

Condition 28 concerns a BASIX certificate. The applicant submits that the BASIX certificate is referenced in the schedule of approved plans and documents in the consent and it does not need to be repeated in Condition 28. The Council believes that the condition should be included to confirm this requirement. I agree with the Council. Condition 28 does no more than underline the requirement for a BASIX certificate and is not at odds with the inclusion of the reference in the Schedule. Condition 28 is to be retained.

Conditions 37, 38, 39, 40, 41 and 42

The applicant next submits that Conditions 37, 41 and 42 in the Council's Annexure A conditions are also unnecessary on the basis that the Council has agreed at the hearing that the work referred to in these conditions is completed and can be recorded by adding the design details in its Conditions of Consent number "Annexure A Part B (1A)" - the schedule of plans.
However, these separate conditions are pressed by the Council in circumstances where Condition 2 of the subdivision consent (for the construction of the dwelling house driveway as part of the subdivision) is not imposed in order to ensure clarity. In my assessment, there is no prejudice to the applicant if these conditions are included in the consent as they simply clarify the terms of the approval of the development. In that regard, Condition 37 requires all parking and associated facilities to be designed and constructed in accordance with the relevant Australian standards. While the applicant does not object to the requirement that all parking and associated facilities be constructed in accordance with the relevant Australian standards, the Council's position is that, first, they must be designed in that way, as construction takes place in accordance with plans and specifications.
The applicant submits that the Council has accepted the Kaleidotecture drawings and APEX Engineering Driveway profile as being compliant with AS 2890 series. Even if that is the case, I still consider that the proposed wording of Condition 37 is appropriate. As the Council submits, the condition seeks to ensure that the design as well as the construction is compliant with the relevant AS. There is no prejudice to the applicant for the inclusion of the condition as opposed by the Council. Condition 37 should be retained.
The applicant objects to the imposition of Conditions 38, 39 and 40 because she believes that the plans accepted by the Council and identified in the schedule to the consent have satisfactorily addressed these matters. In those circumstances, in her response document dated 22 June at p 6, she submits that the imposition of Conditions 38, 39 and 40 "…incorrectly requires/implies Applicant had to redo the JOINT EXPERT AGREED Design by Steven Water, LMW Design Group, Job 1160.16 Sheets D1-D3, Rev C 22 June 2017" . Moreover, Ms Morgan contends that by the inclusion of these conditions, she will be required to add another 10,000kl water tank to the site, and resubmit the stormwater design. If that is the case, then Ms Morgan complains that she has been denied opportunity to address these matters or provide any evidence at the hearing that the stormwater design has been prepared by a suitably qualified engineer or complies with AS-3500 or the Council's DCP.
The Council submits that Conditions 38 and 39 seek to ensure compliance with cl 4.5 of Parts O and H of the DCP, to encourage the reuse of rainwater, minimise quantity of stormwater to bushland and reduce the burden on the proposed dispersal trench. Moreover, their inclusion in the consent avoids any ambiguity. The fact that they may be already complied with, by the plans referred to in the schedule, does not mean that the requirements should not be spelt out in terms in the consent or that the applicant will need to add a further water tank or further justify compliance with AS-3500, if the Council has accepted that to be the fact by including the plans in the schedule.
Condition 40 is in a different category. It requires certification prior to the issue of the Construction Certificate that the drainage plan dated 22 June by Steven Waters is compliant with AS-3500. This is not unreasonable, particularly when the applicant asserts that the plan is compliant. All that the Council requires is conformation of this fact. In my assessment, Condition 40 is entirely reasonable and should be retained for the reasons articulated by the Council.
Condition 41 and 42 deal with the footpath crossing and street levels. Again, the applicant believes the plans referred to in the schedule satisfy these matters and she is being asked to redo the engineering design plans. However, I do not understand that to be the case. Condition 42 requires that the design for all structures on site need to have regard to the levels of the street alignment. These need to be checked prior to the issue of any Construction Certificate. This condition is not unreasonable. Moreover, it is entirely appropriate for the Council to require the applicant to lodge a "Construction of Residential Vehicular Footpath Crossing" application with the Council prior to the issue of the Construction Certificate as required by Condition 41. It is also appropriate that the works associated with the construction of the crossing for the battle axe dwelling shall be completed prior to the issue of the Occupation Certificate.
In circumstances where I am not imposing the Council's draft Condition 2 on the subdivision consent, I accept that the wording of these conditions should be included in their complete form in the dwelling house consent instead of the abbreviated version proposed by the applicant in Exhibit FF (tendered at the hearing on 15 June). In my assessment, the Council's wording is clear and avoids any future ambiguity. If, in fact, the work has been done to the Council's satisfaction, the conditions will be satisfied but that is a matter for the Council in due course if, and when, the consent is activated.
Conditions 59, 60, 61 and 62 require the construction of a 1.8m fence during construction. The applicant contends the fence is too tall and should be off the boundary with the E2 land on the site. Ms Morgan also submits that these conditions are premature; they seek to address erosion and sediment control and these matters cannot be determined at this time. Rather, as anticipated by Condition 44A, an erosion and sediment control plan is to be submitted to, and approved by, the council or Principal Certifying Authority prior to the issue of a construction certificate.
The Council disagrees and submits that the 1.8m fence condition needs to be in place, to prevent the entry onto E2 land by construction workers and prevent the storage of materials on the land that would degrade the environment. The Council submits that Conditions 60 and 61 and 62 are standard conditions of consent and only required during the construction phase of the development to protect the E2 land. Given the proximity of the works to the E2 land and the more sensitive bushland and water below, I am satisfied on the evidence for the reason submitted by the Council that the conditions should be imposed to protect the E2 land. The applicant may well say that the fence is too high and that the E2 land is private land and at a different level to the public E2 land and that building material will not be stored in that area, but the fence as conditioned will ensure that to be the case. She may well have that intention but the consent runs with the land and these conditions like many of the other conditions complained about by the applicant are necessary so that anyone reading the consent into the future understands that the development has been approved on specific terms, some of which seek to endure the protection of the environmentally E2 land on the site.
In all other respects, I am satisfied that the conditions proposed by the Council for the dwelling house appeal in the version of the conditions Annexure A dated 19 June 2018 are appropriate and should be imposed. A copy of the final Annexure A conditions is attached to this judgment and referred to in the final orders.

Final conditions for the subdivision consent - Annexure B dated 19 June 2018

The first matter I wish to address concerns the Council's draft Condition 2 of Annexure B of the Council's conditions for the subdivision consent set out in the version of the conditions dated 19 June 2018.
Condition 2 requires the construction of a standalone driveway to be built providing access to the rear lot before the dwelling is built. At the hearing, the Council nominated the level of access to that depicted on the APEX engineering driveway plan entitled "Driveway/Profile and Turning Bay Design Review" dated August 2017, which had been lodged with the dwelling house DA (T 15/6, p7 at Ll3-5).
The Council contends for the imposition of this condition on several grounds. First, it presses it as a matter of necessity based on the topography of the land. It submits that, in order to build the APEX driveway, you would need access over the adjoining front lot. Therefore, in order to avoid any dispute at the time when someone goes to build the house at the rear of the property, if the driveway is already instated at the time of the subdivision, then this removes any potential for conflict or difficulties for someone to go and build the house. It was also submitted that it is not appropriate nor in the public interest for new lots to be created without appropriate vehicular access being available. In that regard, the Council asserts that physical and legal access to both lots is required, particularly in the circumstances of this development, as the existing site topography and rock shelf makes vehicular access to the development, and particularly the lower lot, not possible.
As an access driveway will be approved pursuant to the dwelling house consent, the Council requires by Condition 2 of the subdivision consent that construction of the driveway be completed prior to the issue of a subdivision certificate. Also, because a construction certificate is required in order to construct the driveway, the Council requires the imposition of a condition requiring an occupation certificate to be obtained for the driveway prior to the issue of a subdivision certificate (Condition 7 of the final conditions dated 19 June 2018).
The applicant rejects proposed Conditions 2 and 7 of the subdivision consent on the basis that the subdivision application was for a simple subdivision approval - with no works or driveway design included. A straight change of title only. In her affidavit of 3 August 2018 Ms Morgan emphasises this in the following terms: "4.The ONLY law or building code detailing battlelot access is Land Cover Development Control plan (DCP) part C4, "Residential Subdivision", clause "e": Each battleaxe lot must have direct access to a dedicated public road through the provision of an access handle attached to that lot, or via an access corridor shared by such lots. 5. There is no requirement for me to detail prior to the subdivision registration, the design of the final access driveway. There is no requirement for me to construct prior to subdivision registration, the design of the final access driveway. … 7. Driveway access is not required for any Council service or maintenance such as garbage collection. 8. Respondent has not evidenced any law or code which requires Rear Lot access be restricted to only one of many access designs and materials. … 11. The Lane Cove Environmental Plan is silent. The wording in the DCP us access "provision ", NOT "construction". 12 The approved subdivision plans give law and code compliant Rear Lot access. … 16 The Respondent told the Court there was NO law or code which detailed the quality of, or construction of, the "access" to the approved Rear Lot before they signed the Subdivision Certificate. 17. APEX Engineers driveway profile is specific for the DISCRETE, approved dwelling LEC matter no 2017/63578. …."
According to the applicant, the area, where the access handle is proposed, is generally sandstone based and as such, provides an adequate access to the rear lot. It is not steep in this area and, if necessary, it can be reshaped to further level the ground to allow equipment to travel to the rear lot. It is submitted that the DCP does not require anything more than pedestrian/machinery access to the street and that is what is provided. Ms Morgan objects strenuously to the legality of imposing the APEX engineering driveway plan dated August 2017 lodged in the separate dwelling DA as a requirement in her subdivision DA. The applicant strenuously objects to Condition 2 on the basis that the proposed subdivision creates an access handle down the side of the lot to access the rear lot and the proposed dwelling, and thereby provides direct access to a dedicated public road. This is all the DCP requires. To require the driveway to be made to the final design in the APEX engineering plan prior to subdivision registration is not supported by any Council planning control. The wording of the DCP is for access to a public road and not construction of a driveway.

Finding - Conditions 2 and 7

As already noted, the parties' decision that the appeals be heard concurrently coincided with the applicant's amendment of her application for a dwelling on a subdivided lot configured in accordance with an amended plan filed with the Court on 3 August 2017 in (DA170/2016) in a separate subdivision appeal. The evidence was then filed and served on that basis.
The joining of both appeals was, in my view, necessary for the reasons expressed by Mr Apps. Therefore, as already stated, it logically follows that the subdivision must be created first. To do otherwise, would result in an inappropriate planning outcome with a new building setback some 53m from the street. This outcome cannot be surprising to the applicant, as it was always proposed that the proposed dwelling be located within the proposed Lot 2 under the subdivision. This was certainly the Council's case (Council's Written Submissions at p 2).
To that end, the Council has proposed a deferred commencement condition requiring that the applicant, within a 24 month timeframe, produce evidence to the Council of the registration of a plan of subdivision in accordance with subdivision consent DA170/2016. In that regard, it is submitted that the deferred commencement condition is intended to assist the applicant, so that the development consent for the dwelling (DA 213/2016) does not commence operation (and therefore, the five (5) year lapsing period for the consent will not start to run) until such time as the applicant is able to register the plan.
That said, there is no legal basis to require a made driveway in accordance with the plan attached to the dwelling DA. Whilst heard concurrently, the applicant submits that the appeals are separate and the approved dwelling may never be built. In that circumstance, it would be unreasonable to require the driveway access handle as designed by APEX Engineering submitted with the DA for the dwelling to be constructed as part of the subdivision consent.
Accepting as I do that Conditions 2 and 7 should not be imposed for the reasons outlined by the applicant (as summarised above) it follows, as the transcript records, that Conditions 3, 4, 6 - 27 (inclusive), and 29 - 33 (inclusive) should be deleted. Conditions 1, 5, 28, 34, 35 and 36 are to remain.
In all other respects, I accept the conditions as proposed by the Council in the subdivision consent set out in Annexure B of the version of the Council's conditions served on 19 June 2018 are appropriate for the reasons outlined by the Council.
Having dealt with the terms of the conditions all that is left now to do is to make final orders approving of the development on the terms as outlined in Annexures A and B.

ORDERS

The orders of the Court are: 1. Appeal No. 17/63578 is upheld; 2. Development Application No. DA213/2016 for the construction of a three storey dwelling and access driveway on Lot 2 at 7 Dettmann Avenue, Longueville is approved subject to the conditions in Annexure A; 3. Appeal No. 17/211667 is upheld; 4. Development Application No. DA170/2016 for the subdivision of land at 7 Dettmann Avenue, Longueville into two (2) Torrens title allotments is approved subject to the conditions in Annexure B; 5. The Exhibits are returned. …………………………… Susan Dixon Senior Commissioner of the Court Annexure A (111 KB, pdf) Annexure B (38.3 KB, pdf)

Amendments 06 September 2018 - Correction made to Catchwords on Cover Sheet - the word "if" from the words "... the subdivision if land ..." has been replaced with "of". It should now be read as "... the subdivision of land ...". 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: 06 September 2018

At a glance

Court

Decision date

Before

Source

Judgment (16 paragraphs)

Parties

Cases Cited (2)