Pickwell v Ku-Ring-Gai Council

Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54; City West Housing Pty Ltd v Council of the City of Sydney [2002] NSWLEC 30; N&S Olivieri Pty Ltd v Fairfield City Council [2002] NSWLEC 35 ; Newbury District Council v Secretary for the Environment [1981] AC 578; [1980] 1 All ER 731; CASES CITED: Parramatta City Council v Peterson (1987) 61 LGRA 286; Richmond River Shire Council v Ramsey (1988) 66 LGRA 210 at 213; Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261; Waverley Municipal Council v. P.E. Bakers Pty Ltd (1985) 54 LGRA 309

APPLICANT: Ms J M Jagot (barrister) SOLICITORS: Hones Lawyers LEGAL REPRESENTATIVES:

RESPONDENT: Mr R K Graham (solicitor) SOLICITORS: Abbott Tout

JUDGMENT:

• 9 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

SEAN Ronald PICKWELL v KU-RING-GAI MUNICIPAL COUNCIL [2005] NSWLEC 59

Judgment Background 1 This is an appeal under s 97(3) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the deemed refusal to make a determination in relation to compliance with a deferred commencement condition of a development consent. 2 On the 25 February 2004, the respondent, Ku-ring-gai Council, granted the applicant, Mr Sean Ronald Pickwell, development consent to subdivide the property No. 48 Fairlawn Avenue, Turramurra, into two Torrens title allotments. The consent was granted subject to five deferred commencement conditions under s 80(3) of the EP&A Act. 3 The deferred commencement condition A2, which is the subject of the appeal, is as follows: Schedule A … 2. Submission of a formal written request for Council approval to amend the terms of the easements over its drainage systems. This requires the payment of a $504 fee for a report to Council prepared by Council's Technical Services Department. Approval is not guaranteed. 4 However, in order to understand condition A2, it is also necessary to have regard to condition A1: Schedule A 1. Submission to Council of written consent from the owners of the downstream properties as far as the public drainage system (i.e. the Chase Road) to amend the terms of the easement on their titles, or to register an easement where none exists. 5 As the applicant submits, these conditions were imposed to rectify an anomaly "whereby an existing drainage easement, used by a number of property owners for inter-allotment drainage…only authorised the conveyance of water from the public road". In addition, there was no easement over the existing pipe work benefiting any person insofar as the pipe extends over the two properties at the "end of the line" - Nos. 63 and 65 The Chase Road, Turramurra. 6 Subsequent to the commencement of these proceedings, on the 14 December 2004, the Council determined that it was satisfied by the evidence submitted by the applicant that he had met the requirements of the deferred commencement conditions. It resolved "that the proposal be approved subject to conditions A to D noted in recommendations". 7 Conditions A to D are as follows: A. That Council grants approval to alter the terms of the Council Easement (LD 1510 and LD 1812) burdening No 1 Karloo Street 52 and 52A Fairlawn Avenue, 59A, 59B, 61 and 67 The Chase Road, Turramurra. B. That Council grants approval for the creation of new easement known as "Easement to Drain Water" in favour of Council within No 63 and 65 The Chase Road, Turramurra. C. That authority be given to affix the Common seal of the Council to the appropriate instrument for release and creation of the easements. D. That altering the terms of the Easement to Drain Water be carried out by the Applicant's Solicitors including payment of Council's legal costs and disbursements for the checking of associated documentation. Issue 8 The matter the subject of the appeal is the applicant's dissatisfaction with the purported conditions on the Council's state of satisfaction that deferred commencement condition 2 has been fulfilled. 9 As such, the issue in these proceedings is whether the Council could lawfully impose conditions B and D upon its state of satisfaction as to the relevant deferred commencement condition. Applicant's Submissions 10 The applicant relied on the following statutory provisions: · Section 97(3) of the EP&A Act: 97 Appeal by an applicant - development applications … (3) An applicant who is dissatisfied with a decision that a consent authority is not satisfied as to a matter, being a matter as to which it must be satisfied before a "deferred commencement" consent under section 80 (3) can operate, may appeal to the Court within 12 months after the consent authority notifies the applicant of its decision. · Section 80(3) of the EP&A Act: 80 Determination … (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

· Clause 95(4) of the Environmental Planning and Assessment Regulation 1979 ("the EP&A Regulation"): 95 Deferred commencement consent … (cf clause 67 of EP&A Regulation 1994 ) (4) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period. · Section 39(2) of the Land and Environment Court Act 1979 ("the Court Act"): 39 Powers of Court on appeals … (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. 11 The applicant maintains there has been full compliance with the deferred commencement conditions A1 and A2. Ms J M Jagot, counsel for the applicant, submits that "[t]he applicant [has] obtained written consent from the owners of the downstream properties to amend the easements to permit … the discharge of the inter-allotment drainage water from the applicant's land". Further, "[t]he applicant also negotiated an easement for the discharge of water from its land through the pipes at the "end of the line" crossing 63 and 65 The Chase Road where no such easement existed". 12 Most pertinently, Ms Jagot also submits that "[t]he applicant does not accept [conditions B and D] purported to be imposed by the Council on its state of satisfaction". She claims, "…it is plain that the conditions are either not conditions at all or are extraneous to the function or are unreasonable". 13 The applicant relies on the right of appeal provided in s 97(3) of the EP&A Act, being an applicant who is dissatisfied with the Council's decision as to the completion of the deferred commencement condition A2. Ms Jagot also relies upon the Court's jurisdiction under s 39(2) of the Court Act in such appeals, and submits that the Court now stands "in the shoes of the Council" and may decide that it is satisfied that deferred commencement condition 2 has been met by the applicant absent any conditions being imposed on that state of satisfaction. 14 The applicant contends that condition B of the Council's resolution is extraneous to the Council's function under clause 95(4) of the EP&A Regulation. Condition B imposes an obligation on the applicant to obtain an "Easement to Drain Water" in favour of the Council to drain water across the "end of line" properties at Nos. 63 and 65 The Chase Road. Ms Jagot argues that the "Council's desire to obtain its own drainage easement over those properties" is not connected to the requirement imposed upon the applicant under deferred commencement condition A2 to negotiate an easement with the owners of the "end of line" properties at Nos. 63 and 65 The Chase Road and is beyond the Council's power to impose. 15 The applicant also submits that condition D is unreasonable. Ms Jagot submits, "the applicant is not prepared…to accept an open-ended obligation to pay the Council's legal costs of checking the documentation to amend the existing easements". She claims that the existing terms of the easements are "perfectly straightforward and ought not require "checking" of any kind let alone at the applicant's cost". Further, she argues the imposition of condition D was "only imposed because it was overlooked on the original deferred commencement condition". 16 In summary, Ms Jagot submits that conditions B and D are extraneous and unreasonable and requests the court to stand "in the shoes of the Council" and decide that it is satisfied that deferred commencement conditions 2 has been met absent any conditions being imposed on that state of satisfaction. Respondent's Submissions 17 The respondent concedes that the applicant has complied with the deferred commencement conditions A1 and A2, and thus to that extent, the deferred commencement consent is operative. 18 However, the respondent also submits that the Council was entitled to impose conditions A to D of the Council's resolution on 14 December. Furthermore, the respondent also argues that consideration of conditions A to D cannot be the subject of these proceedings. 19 Firstly, Mr R K Graham, appearing for the respondent, contends that the application of the applicant to the Council under deferred commencement condition A2 is a separate and different application to that of the original development application and the subsequent deferred commencement approval. He submits the Court may not review the conditions as they only reflect the decision of the Council on a formal request from the applicant to determine whether to approve the amendment of the terms of the easements over its drainage system. 20 Secondly, Mr Graham submits that, as the current Class 1 application was filed on the 21 October 2004, prior to the Council's resolution on the 14 December 2004, it cannot be the subject of these proceedings. Mr Graham submits that "[t]his is a determination of the Council that followed from the grant of development consent, relevant conditions of which had been satisfied, and it can't be imported into the Class 1 application which is before the Court to enable the applicant to agitate the resolution of 14 December". 21 Finally, Mr Graham also submits that the Court does not have jurisdiction to consider the Council's resolutions in these proceedings, as they are not the subject of an appeal, objection or application under ss 95A, 96, 96AA, 96A, 97, 98, 98A, 109K, 121ZK, 121ZM and 149F of the EP&A Act as required by s 17 of the Court Act. That section relevantly states:

17 Class 1 - environmental planning and protection appeals The Court has jurisdiction (referred to in this Act as "Class 1" of its jurisdiction) to hear and dispose of: … (d) appeals, objections and applications under sections 95A, 96, 96AA, 96A, 97, 98, 98A, 109K, 121ZK, 121ZM and 149F of the Environmental Planning and Assessment Act 1979. 22 Ultimately, the respondent submits that the applicant has complied with deferred commencement condition A2 and that the Council is lawfully entitled to impose conditions A to D, but the Court has no jurisdiction to consider these conditions in these proceedings. Validity of Conditions B and D: The Newbury Test 23 In my opinion, the Court does have jurisdiction to consider conditions A to D, and as such, the issue in these proceedings remains whether the Council could lawfully impose conditions B and D upon its state of satisfaction as to the relevant deferred commencement condition. The jurisdiction arises from the fact that this is an appeal under s 97(3) of the EP&A Act, by an applicant who is dissatisfied with a decision of the consent authority, which is only conditionally satisfied as to the matter specified in the deferred commencement condition, and is thus within s 17 of the Court Act. 24 Conditions B and D must satisfy the common law test of validity to be lawfully imposed by the Council. The leading authority for the common law test of validity is the House of Lords decision of Newbury District Council v Secretary for the Environment [1981] AC 578; [1980] 1 All ER 731. 25 The Land and Environment Court adopted the Newbury test and held that it is the accepted test for determining the validity of consent conditions in New South Wales: see, for example, Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54 at 68 per Cripps J, Waverley Municipal Council v. P.E. Bakers Pty Ltd (1985) 54 LGRA 309, Parramatta City Council v Peterson (1987) 61 LGRA 286, Richmond River Shire Council v Ramsey (1988) 66 LGRA 210 at 213, Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261, City West Housing Pty Ltd v Council of the City of Sydney [2002] NSWLEC 30 per Talbot J, and N&S Olivieri Pty Ltd v Fairfield City Council [2002] NSWLEC 35 per Cowdroy J. 26 In order to be valid under the Newbury test, a condition must: · be imposed for a planning purpose; · fairly and reasonably relate to the development for which permission is given; and · be reasonable in the sense that it must be a condition which a reasonable local authority properly advised might impose. 27 Condition B clearly has a planning purpose in that it requires the applicant to obtain an "Easement to Drain Water" in favour of the Council to drain water across the "end of line" properties at Nos. 63 and 65 The Chase. However, as Ms Jagot submitted, it does not relate to the applicant's development, nor to the applicant's obligations under deferred commencement condition A2, and thus is not fairly and reasonably related to the applicant's deferred development consent. Condition B is clearly extraneous to the applicant's deferred development consent and therefore does not satisfy the Newbury test of validity. 28 In applying the Newbury test to condition D, it is similarly clear that the condition has a planning purpose. However, condition D is also extraneous as it relates to alteration of the easement in favour of the Council proposed under condition B. Moreover, condition D is unreasonable, and is not a condition which a reasonable local authority properly advised, might impose. As Ms Jagot submits, the condition is unreasonable, as it requires the applicant "to accept an open-ended obligation to pay the Council's legal costs of checking the documentation to amend the existing easements". For this reason also, condition B does not satisfy the Newbury test and is not a valid condition. 29 Conditions B and D are clearly extraneous and unreasonable and do not meet the requirements of the Newbury test. Consequently, the conditions are invalid and cannot be lawfully impose by the Council. Conclusion 30 The applicant's appeal against the Council's deemed refusal to grant approval in relation to compliance with deferred commencement condition A2 is upheld. The applicant has satisfied deferred commencement condition A2 and to that extent the deferred commencement consent is operative. Conditions B and D of the Council's resolution of 14 December 2004 are invalid and the Council cannot lawfully impose the conditions upon its state of satisfaction as to deferred commencement condition A2. Orders 31 The Court orders that: (1) The appeal is allowed. (2) Conditions B and D of the respondent's determination of 14 December 2004 are set aside. The Court declares that: (3) Deferred commencement conditions A1 and A2 of the development consent granted by the respondent to the applicant on 21 February 2004 are now satisfied. I hereby certify that the preceding 31 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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