Renaldo Plus 3 Pty Limited v Hurstville City Council

Renaldo Plus 3 Pty Limited v Hurstville City Council - [2005] NSWLEC 590 - NSWLEC 2005 case summary — Zoe

[12]

6 Brown C determined the appeal in favour of the Applicant and made the following orders dated 12 July 2005:

The appeal is upheld.
DA No. 204 0454 by Hurstville City Council for the demolition of all existing structures and the erection of a mixed commercial/retail and residential development at 47 - 67 Mulga Rd., Oatley is approved subject to the conditions in Annexure A.
…
Liberty to restore with 48 hours notice if no agreement is reached on the amended Operation Management Plan. Issue 1 - Failure to consider essential matter/lack of finality 7 The relevant sections of Brown C's judgment relating to the OMP are contained at [53] and [58]. At [53] of his judgment the Commissioner states: Management Plans (or similarly named documents) provide further details on the operation of a particular use that may not necessarily be appropriate as conditions of consent. Management Plans are a well known concept in environmental law ( Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196 at par 122) and can be used in a range of different circumstances. Often, and is the case in this application, the contents of a Management Plan are critical to the decision of whether a development application should be approved or refused. 8 At [58] of his judgment Brown C states: In my view, these requirements do not place an unreasonable obligation on the truck drivers or the Stockroom Manager or the Store Manager. While the need to contact the supermarket prior to the delivery is likely to be an additional task for truck drivers, I have little doubt that it will become simply second nature over time for drivers delivering to the site. In the event that deliveries cannot may [sic] be made at a specific time, I accept that the Operation Management Plan can adequately deal with this event although I am of the view that the Operation Management Plan should be amended to provide for suitable locations where trucks may park in situations where the rescheduling of the delivery is not appropriate or unnecessary. These locations should not potentially impact on the amenity of any residential area.

[25]

Council's submissions 20 The Council argued that Brown C erred in law by failing to give proper, genuine and realistic consideration to resident submissions pursuant to s 79C of the EP&A Act in determining the character of the area and the impact of the proposal on the character of the area. The Applicant argued that in considering the issue at [105] - [108] of his judgment, the Commissioner limited himself simply to the existing LEP and the objectives of the existing zone. Having found that the development was consistent with the objectives of the zone, the Commissioner then found, in considering the adverse impact on the character of the area as set out in the zoning, that the impact was acceptable. The Council submitted that accordingly the Commissioner erred by failing to consider the impact of the development on the character of the area generally as required by s 79C(1)(b) of the EP&A Act. Applicant's submissions 21 The Applicant submitted that the Commissioner's judgment disclosed an objective and reasoned approach to the merit assessment of a potential impact on character. The Applicant argued that in [105] - [108] it was clear that the Commissioner sought to address the impact on character by reference to the character envisaged by the Council's own planning instruments. After carrying out that assessment the Commissioner found, on the merits, that the impact was acceptable because the change caused by the proposal was consistent with the change anticipated in the Council's instruments. Finding 22 The likely impact of development on the surrounding locality is a matter that is required to be taken into account by a consent authority. Section 79C of the EP&A Act states: (1) 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: … (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality … 23 In Weal v Bathurst City Council (2000) 111 LGERA 181, Giles JA at 200 - 201 considered the relevant task for a consent authority under s 90(1) of the EP&A Act (now s 79C of the EP&A Act) and the Court's role in reviewing a determination: Under the Environmental Planning and Assessment Act 1979 ("the EPA Act") as it then stood, in determining a development application the consent authority was required to take into consideration such of a number of specified matters as were of relevance to the development the subject of the application (s 90(1))…

[26]

The terms of s 90(1) were mandatory: the Council was obliged to take into consideration relevant matters from the catalogue of matters in s 90(1), and to weigh them up in determining the development application. It had to inform itself sufficiently to be able to take into consideration the matters of relevance to the determination of the development application. With particular reference to para (b) of s 90(1), it had to be aware not only of the impact and the likely harm but also of available protective or mitigating means: so the conditions to be included in the consent were an integral part of the consideration ( Parramatta City Council v Hale (1982) 47 LGRA 319 at 338-9, 340,342; King v Great Lakes Shire Council (1986) 58 LGRA 336 at 384). Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration ( Parramatta City Council v Hale at 335-6, 339; King v Great Lakes Shire Council at 384; Currey v Sutherland Shire Council (1998) 100 LGERA 365 at 374-5)… 24 The standard of assessment referred to in Weal by Giles JA was made in the context of judicial review proceedings. Section 79C(1) is necessarily broad in its description of the matters which must be taken into account by the Court in a s 97 appeal. The scope of the issues to be considered in the context of that section must be informed by the case as presented to the Court by the parties, confirmed most recently in Segal & Anor v Waverley Council [2005] NSWCA 310 at [43] - [44], and [93]. 25 Brown C has explicitly identified as an issue in [105] - [108] of his judgment the impact of the development on the character of the area. He has chosen to answer it in the context of the Council's current LEP without giving significant weight to draft Amendment 66, as he is entitled to do in exercising his discretion as to which factors ought be given weight. The judgment is criticised on the basis that it fails to properly consider submissions on the character of the area and the impact on the character of the surrounding residential areas. 26 It has been established that a "fine-tooth comb" approach should not be employed when examining s 56A appeals for errors of law (see Brimbella Pty Limited v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Coles v Woollahra Municipal Council (1986) 59 LGRA 133 at 138; Randwick Municipal Council v Crawley (1986) 60 LGRA 277 at 283). The judgment when viewed as a whole clearly suggests the Commissioner was aware of the character of the area and gave it proper consideration. The Commissioner's judgment identified the nature of the area surrounding the proposed development, the number of resident views received and the general nature of their concerns and the Commissioner took a view of the site and immediate locality. The Commissioner has adopted an accepted approach of considering the particular zone where the site is proposed to see if it conforms and has concluded that it does. Given the detailed treatment by the Commissioner of specific issues raised such as traffic, parking, noise and amenity impacts on the immediate neighbours, all of which issues reflect the issues raised by the parties, there is no error of law disclosed in his reasoning.

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Judgment (36 paragraphs)

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Cases Cited (13)