RG Property Eleven Pty Ltd v Fairfield City Council

Land and Environment Court (NSW)|2017-12-08

Judgment

COMMISSIONER: This is an appeal by RG Property Eleven Pty Ltd ('the Applicant') against the deemed refusal of Development Application (DA) No. 825.1/2016 by Fairfield City Council ('the Respondent') for a proposed service station development with food premises at Lot 12D DP407273 and Lot 1 DP514013, also known as 240 Hume Highway, Lansvale ('the site').
The Applicant also seeks consent under the Roads Act 1993 No 33 ('Roads Act') for stormwater drainage works in the road reserve along Cutler Lane.
The site is bounded to the north by the Hume Highway, the southeast by Dan Reserve/Park and southwest by a residential dwelling. The eastern and western boundaries are shared with existing light industrial developments.
Stormwater drainage from the site is proposed to be connected to Cutler Lane from Dan Reserve, located immediately adjacent to the southern site boundary. The stormwater drainage will traverse Cutler Lane to the Council network, located in Cutler Road. The area of proposed easement is owned by Council.
Cutler Lane is a road reserve currently used for pedestrian access between Dan Reserve and Cutler Road. There is no proposed future change in use of Cutler Lane from its current use as a pedestrian access between Dan Reserve and Cutler Road.
The need for an easement over Dan Reserve is subject to separate proceedings (File No: 2017/356729) under s 40 of the Land and Environment Court Act 1979 ('Court Act'). The need for an easement over Cutler Lane (if consent is granted under the Roads Act) is subject to a deferred commencement condition in this appeal.

Issues and points of agreement

The outstanding contention that is the focus of this appeal relates: to the proposed stormwater drainage works along Cutler Lane: and the registration on title of the stormwater drainage easement from the site at 240 Hume Highway to Cutler Road.
The Respondent contends that the Applicant has not applied for consideration of consent to undertake stormwater drainage works within the road reserve along Cutler Lane.
The Respondent also contends that an easement for stormwater drainage works from the site to Cutler Road is required to be registered on the land title, as a deferred commencement condition.
The parties agree that there is no other suitable alternative location for the proposed stormwater drainage from the site, and that the easement is reasonably necessary.
However, the parties disagree on the application process and the timing for registration of the required stormwater drainage easement.
The parties did not seek to rely on any expert evidence and therefore relied on evidence tendered in exhibits and submissions of counsel. The parties were asked directly by the Court if they wished to call planning experts in evidence, which was deemed not necessary.

Stormwater drainage works consent

Pursuant to s 138 of the Roads Act, Council, as roads authority for the road reserve in Cutler Lane, is required to provide consent for any stormwater drainage works in this area. "138 Works and Structures (1) A person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Maximum penalty: 10 penalty units. (2) A consent may not be given with respect to a classified road except with the concurrence of RMS. (3) If the applicant is a public authority, the roads authority and, in the case of a classified road, RMS must consult with the applicant before deciding whether or not to grant consent or concurrence. (4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person. (5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section.
Application for consent of works within a road reserve is required pursuant to s 139 of the Roads Act. "139 Nature of Consent (1) A consent under this Division: (a) may be granted on the roads authority's initiative or on the application of any person, and (b) may be granted generally or for a particular case, and (c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and (c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 , is subject to Division 5 of Part 4 of that Act, and (d) may be granted on such conditions as the appropriate roads authority thinks fit. (2) In particular, a consent under this Division with respect to the construction of a utility service in, on or over a public road may require the service to be located: (a) in such position as may be indicated in that regard in a plan of subdivision or other plan registered in the office of the Registrar-General with respect to the road, or (b) in such other position as the roads authority may direct. (3) In particular, a consent under this Division with respect to the erection of a structure may be granted subject to a condition that permits or prohibits the use of the structure for a specified purpose or purposes."
Pursuant to s 39 of the Court Act, the Court can assume the function of the roads authority to consider granting consent for the proposed stormwater drainage works in Cutler Lane. "39 Powers of Court on Appeals (1) In this section, "appeal" means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (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. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly."

Registration of easement

The requirements and relevance of a deferred commencement condition imposed on a development consent are provided for in s 80(3) of the EP&A Act. "80 Determination (1) General. A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development. (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. (4) Total or partial consent. A development consent may be granted: (a) for the development for which the consent is sought, or (b) for that development, except for a specified part or aspect of that development, or (c) for a specified part or aspect of that development. (5) The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under subsection (4), but development consent may subsequently be granted for that part or aspect of the development. Note: See also Division 2A for special procedures concerning concept development applications."
Registration of an easement on the land title is made pursuant to ss 41 and 42 of the Real Property Act 1900 No 25 ('RP Act'). "41 Dealings not Effectual until Recorded in Register (1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature. 42 Estate of Registered Proprietor Paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except: (a) the estate or interest recorded in a prior folio of the Register by reason of which another proprietor claims the same land, (a1) in the case of the omission or misdescription of an easement subsisting immediately before the land was brought under the provisions of this Act or validly created at or after that time under this or any other Act or a Commonwealth Act, (b) in the case of the omission or misdescription of any profit à prendre created in or existing upon any land, (c) as to any portion of land that may by wrong description of parcels or of boundaries be included in the folio of the Register or registered dealing evidencing the title of such registered proprietor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value, and (d) a tenancy whereunder the tenant is in possession or entitled to immediate possession, and an agreement or option for the acquisition by such a tenant of a further term to commence at the expiration of such a tenancy, of which in either case the registered proprietor before he or she became registered as proprietor had notice against which he or she was not protected: Provided that: (i) The term for which the tenancy was created does not exceed three years, and (ii) in the case of such an agreement or option, the additional term for which it provides would not, when added to the original term, exceed three years. (2) In subsection (1), a reference to an estate or interest in land recorded in a folio of the Register includes a reference to an estate or interest recorded in a registered mortgage, charge or lease that may be directly or indirectly identified from a distinctive reference in that folio. (3) This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section."

The development consent

Pursuant to s 39 of the Court Act, the Court has discretion to grant development consent.
The site is zoned B5, Business Development, under the Fairfield Local Environment Plan 2013 ('FLEP'). The proposed easement over Dan Reserve and Cutler Lane are zoned RE1 (public recreation) and R2 (low density residential), respectively.
Pursuant to cl 2.3(2) of the FLEP, the proposed development is consistent with the objectives of the B5 Business Development zone, as follows: "•To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres. •To encourage the establishment of light industrial uses that are compatible with nearby residential areas, generate employment and contribute to the economic development of Fairfield."
The proposed development, being a service station with food services is permissible within the B5 zone of the FLEP, regarded as an activity that is 'Any other development not specified in item 2 or 4'.
The proposed stormwater drainage works and easement are permissible within the RE2 and R2 zones of the FLEP, being activity that is related to 'Flood mitigation works'. The proposed easement is not inconsistent with the objectives of these zones.
The requirement for establishing essential services associated with a development, particularly stormwater drainage, is provided for in cl 6.9(d) of the FLEP, as follows: "6.9 Essential services Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required: (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable vehicular access."
The Fairfield Development Control Plan 2013 ('FDCP') supports the development application process, with relevant sections for consideration in this DA being: "2.5.4 Drainage Concept Plan Drainage Concept Plans are required for all proposed Developments not located within Flood Prone Land. For developments in Flood Prone Land, see Clause 2.5.9 Flood Risk Management Report. In assessing a Development Application, Council needs to be aware of the impact the development will have on adjoining properties. In terms of stormwater, the following issues will be considered: � Changes in site levels shall not cause ponding/backwater effects on upstream properties � Diversion of flows from one drainage catchment to another will not be permitted in most circumstances � Any development shall not concentrate the overland flow of stormwater onto an adjoining property � A person has a common law obligation not to carry out any work on their property that will adversely affect adjoining properties. As such, a development application needs to include a drainage concept plan (except for developments that are change of use or occupations) to demonstrate that runoff from the site is not increased for all storm events up to a 100 year flood event. Refer to Council's Stormwater Drainage Policy - September 2002 for advice on how to prepare a drainage concept plan. Note: As a general rule, where a development site does fall/slope towards the street and there is no drainage outlet for the property, the drainage concept plan will need to demonstrate how stormwater will be drained. If drainage involves the installation of a pipeline across adjoining or nearby properties an "Easement to Drain Water" will be required to be submitted to Council prior to the release of the construction certificate. 2.6 Step 4 - Complete the Application Form and associated checklists When completing the development application please ensure that you: 1. Obtain all owners' consent through a signature on the Development Application Form. Where a company owns the property to be developed and/or if the application is submitted on behalf of a company, a list of all partners/directors names are required. 2. Describe the proposed development in detail as per requirements specified within the Development Application form and associated checklist/s. 3. Property details - Provide correct property details, including the Lot numbers and Deposited Plan. 4. Cost of Development - Fees are calculated on a scale, based on the estimated cost of the development. Council may use a published guide to check cost of development estimates. 5. Identify approvals by other agencies needed under Integrated Development - Under the planning laws, you must indicate on the application form whether you need an approval from another Government agency specified in the legislation. The following is a general guide to determining which approval body (and which statutory approval) is relevant to your proposal: Roads Act 1993, s.138 Water Management Act 2000, s89, 91, 90, If you are unsure whether you need approval in relation to the above requirements, speak with a Council duty officer or make enquiries with the relevant government agency. 8A.6.3 Drainage and Stormwater DetentionControls a) Drainage a. Where the development site does not fall/slope towards the street and there is no drainage outlet for the property, a concept plan demonstrating how the development will be drained must be submitted. b. If drainage involves the installation of a pipeline across adjoining or nearby properties, an "Easement to Drain Water" will be required to be created prior to release of an operational Development Consent."

Has the Applicant made application for works in the Road Reserve over Cutler Lane for the purposes of stormwater drainage that the Court can consider for granting consent?

Submissions

Mr Seton contends that the Applicant has not made application for the proposed stormwater drainage works beneath Cutler Lane pursuant to s139 of the Roads Act that the Court can consider to grant consent.
Mr Seton confirmed that the Applicant has completed and submitted the Council's relevant development application form for this type of development and ticked the appropriate boxes, including Roads Act compliance required. However, he contends that the completed form and associated documentation were not sufficiently specific to identify the requirement for stormwater drainage works beneath Cutler Lane. He considers that the part of the application requiring Roads Act approval was principally related to works along the Hume Highway (northern site boundary).
Mr White's position is that the 'Application for Approval' and 'Statement of Environmental Effects' ('SEE'), provided in Exhibit A contains the required information and documentation for consideration, including stormwater drainage plans for proposed works within the easement and specifically along Cutler Lane, as requested and required by Council in the FDCP, 'Drainage Concept Plan'.

Finding

As confirmed by Mr Seton, the completed development application form is the only form available for the Applicant to complete for consideration of the proposed stormwater drainage works within the road reserve of Cutler Lane. The Applicant was not required on the form to specify which area of the development that the Road Act approval was being sought. The Applicant therefore relied on its SEE to provide further detail of works required.
The confusion lies within the DA form that does not specially provide opportunity for detail on which areas that the Roads Act approval is sort, and also that the plans provided by the Applicant showing the stormwater drainage system do not specifically refer to Cutler Lane, nor as a road reserve but only as an easement or 'pathway' (shown in Plan 16982_DA_C100, Exhibit A).
After assessing the SEE together with the development application form submitted by the Applicant, I find that the application form and associated documentation, correctly selected Roads Act approval, and that the completed application for Roads Act approval intended it to apply to the proposed stormwater drainage works in the road reserve along Cutler Lane. The area marked on the plans by D + R Architects in Appendix D of the SEE for the stormwater drainage system must be read in conjunction with p23 of the SEE, which states 'As requested by Council the proposed stormwater design will utilise a connection at Cutler Road and will require the creation of an easement along the existing pedestrian footway at the rear of the site'. The reference to the 'pedestrian walkway' is a clear reference to Cutler Lane, which is currently used for this purpose.
I also note that Section 3.6 and cl 9 (Stormwater Management System or Works) of the SEE, specifically refers to the need for stormwater drainage work in the area 'via the public lane at the rear of 1 Cutler Road'. The SEE states on p14 and 15 that 'It is noted that piping in this direction, to the rear of the site, as opposed to the front of the site to the Hume Highway, was a request from Council at the pre-DA meeting'.
The application for stormwater drainage works along Cutlet Lane has therefore been made and submitted to Council as the relevant roads authority for consent, consistent with the requirements established in the FCDP, specifically section 2.6, step 4.
I find that the Court, pursuant to s 39 of the Court Act, as roads authority on appeal of this DA is therefore able to consider whether consent can be granted based on the application made for works in the road reserve beneath Cutler Lane for the purpose of managing stormwater drainage.
I find that the application is valid and consent is therefore granted under s 138(1) of the Roads Act for stormwater drainage works within the road reserve of Cutler Lane for the proposed development, DA 825.1/2016.
Consent is granted pursuant to s 139 of the Roads Act, relying on the application made for these works and conditions for consent, as detailed below.

When should the stormwater drainage easement be registered on title?

Submission

The parties agree that registration of the entire length of the stormwater drainage easement on title will require the decision of the Class 3 appeal for Dan Reserve to be determined, and that an easement for Cutler Lane cannot function without the easement granted over Dan Reserve.
The timing of the registration on title of the proposed easements for both Dan Reserve and Cutler Lane is however contested by the parties.
Mr White explained that the signed lease agreement for development at the site requires the Applicant to have the DA approved prior to 1 January 2018 (sunrise date), and to have commenced the 'first significant concrete pour for the building' by 1 March 2018. Therefore, the Applicant is seeking to expedite the construction process in order to satisfy the requirements of the lease.
The Applicant submits an amendment to the proposed deferred commencement Condition A, Schedule A, relating to registration on title of the easements for stormwater drainage to Cutler Road (including both Dan Reserve and Cutler Lane easements) as follows: "Condition A, Schedule A: Drainage Easement to be Created 'An easement of sufficient dimensions to drain water from 240 Hume Highway, Lansvale through a downstream property to the existing stormwater drainage system in Cutler Road shall be obtained. Where the easement is over private land, evidence of the easement from Land Registry Services must be submitted to the Council. Where the easement is granted over Council owned land, evidence of the grant of that easement must be submitted to Council."
Further to this, the Applicant suggests a Condition 20D, be added to the "Prior to Occupation of the Development' section, in recognition that the easements are required to be registered on title. "Condition 20D: 'Site Stormwater. Evidence of registration of an easement to drain water over a downstream property from Land Registry Services must be submitted to the Council prior to the issue of an Occupation Certificate."
The parties are not in agreement with regards to proposed Condition 20D, and the Respondent considers that this condition is not necessary, as registration on title should be made be a deferred commencement condition.
Mr White contends that the Court can be reasonably confident that there are 'adequate arrangements' in place, namely that the application for easement over Dan Reserve (subject to a Class 3 appeal) has been made, and is consistent with cl 6.9 of the FLEP.
Mr Seton however contends that the required easement to manage stormwater drainage from the site must be registered on the title of that land and the land burdened prior to 'operation' of this consent, consistent with the requirements of s 41 of the RP Act.
Mr Seton considers that there is a high level of uncertainty as to the success of the Class 3 application for the easement over Dan Reserve and that the requirements of s 42 of the RP Act require registration on title for the easement to have legal effect. He further argues that the Court cannot be certain that the easement for Dan Reserve will be granted in the time frame required for the Applicants lease on the site.
Mr Seton refers the Court to cl 6.9(d) of the FLEP that requires the consent authority to be satisfied stormwater requirements are met before consent is granted. He argues that the easement is required to allow the DA to function as proposed.
Mr Seton seeks that the Court to consider the common law test based on the Newbury Principles, being the reasonableness of imposing deferred commencement conditions on the consent. He described the three limbs of the Newbury test and its application to this DA, as follows: 1. Must be imposed for a planning purpose - the deferred commencement condition for the easements satisfies: s 79C(1) and s 80A(1) of the EP&A Act; and cl 6.9 of the FLEP. 2. Must fairly and reasonably relate to the development for which permission is being given - it is recognised by both parties that the easements are necessary for the proposed development to function. 3. Must be reasonable - there are previous and relevant authorities that rely on deferred commencement conditions to register stormwater drainage easements.
Further to this, Mr Seton took the Court to the relevant Caselaw matters of: Mauro Polleti v Inner West Council [2017] NSWLEC 1325; Wren Investments Pty Ltd v Willoughby City Council [2011] NSWLEC 1167; and Tawfils v Hurstville City Council [2012] NSWLEC 1300. He referred to these matters to provide the Court guidance on the adoption of deferred commencement conditions related to stormwater drainage easements.

Finding

I agree with both parties that the proposed development at the site cannot function without the stormwater drainage easements over both Dan Reserve and Cutler Lane that connect to the Cutler Road drainage system.
In paragraph [39], I found in favour of the Applicant, granting consent to the stormwater drainage works in the road reserve along Cutler Lane.
The pending issue however, and beyond the authority of this Class 1 appeal, is the granting of the easement, particularly the part of the easement over Dan Reserve. The Court is not in a position to know whether this easement in Dan Reserve will be granted, as it is still to be heard on its merits in the Class 3 appeal.
I find that there is sufficient uncertainty with regards to the granting of an easement over Dan Reserve and should the easement in Dan Reserve not be granted, then the proposed development cannot proceed as planned. The full length of the proposed easement is required to ensure the proposed development can operate as proposed.
I agree with the parties that there is a need to be consistent with cl 6.9 of the FLEP, regarding the requirement for stormwater drainage must be 'available or that adequate arrangements have been made to make them available when required.'
I find in favour of the Respondent that 'adequate arrangements' are not sufficiently in place, and agree that the easement must be legally registered on title, pursuant to s 41 of the RP Act. Therefore to grant consent for this DA, a deferred commencement condition for the registration of stormwater drainage easement is required.
As to the request to delete the deferred commencement condition because construction commencement is contractually timebound, as posed by the Applicant, I do not find this should have any weight in my decision. I draw on the decision of Brown C in Wren Investments Pty Ltd v Willoughby City Council [2011] NSWLEC 1167, which also relates to the imposition of deferred commencement condition on a time-bounded consent. He found that: "The onus rests with the applicant to come to an arrangement including reasonable compensation. If no agreement can be reached, opportunities are available through the LEC Act and the Conveyancing Act 1919. The need for an easement was clearly known by the applicant long before the approval of the development application, based on the chronology of correspondence with downstream property owners.'
I accept, as posed by the Respondent, that the registration on title for the stormwater drainage easement, consistent with s 42 of the RP Act, is required to give legal effect to the burdened and benefitted land. Both easements are fundamental to the functioning of the site. The importance of having the easement registered on title has even greater significance for this development. The Applicant has explained that there is risk that the site lease may cease/expire if the conditions of the lease, such as the sunrise date, sunset date and substantial commencement date are not met. Future owners and Council will need surety that the site can be developed.
I uphold the appeal to grant consent for the development, with a requirement for a deferred commencement condition for the registration on title of the stormwater drainage easement. This is consistent with s 80 of the EP&A Act whereby '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...'
The decision to impose a deferred commencement condition for the registration on title of the easement is consistent with the FDCP, s 8A.6.3, that specifically requires 'If drainage involves the installation of a pipeline across adjoining or nearby properties, an "Easement to Drain Water" will be required to be created prior to release of an operational Development Consent.'
The deferred commencement in Condition A, Schedule A, as proposed by the Respondent is accepted as follows: "Condition A, Schedule A: Drainage Easement to be Created 'An easement of sufficient dimensions to drain water from 240 Hume Highway, Lansvale through a downstream property to the existing stormwater drainage system in Cutler Road shall be obtained and registered on the title to that land and the land burdened by the easement. Evidence of the easement from Land Registry Services must be submitted to the Council."
I find the Condition 20D suggested by the Applicant is therefore unnecessary, as the issue of registration is already addressed in Condition A, Schedule A, and proposed Condition 20C (described below). Proposed Condition 20D is therefore not accepted.
Upon granting of consent for work in the road reserve along Cutler Lane, I find that the Applicant has satisfied proposed deferred commencement Condition B, Schedule A, requiring Roads Act Consent for these works, which therefore should be deleted from the conditions of consent.

Conditions of Consent

The appeal seeks, if development consent is granted, to amend and/or delete conditions of consent, which are proposed by the Respondent (in Exhibit 5) and amended by the Applicant (in Exhibit E).
The Parties agreed, and I accept to amend the conditions of consent as follows: 1. Approved Plans, to rely on updated plans and amended as, 1. Drawing No. 1.05, Roof Plan, Rev T, dated 07.12.2017 2. Drawing No. 16982-DA-C201, Roof Plan, Rev T, dated 07.12.2017 1. Amend Condition 20A, to be read as: "Condition 20A: Forecourt Management Plan 'Prior to the issue of any Occupation Certificate, a Forecourt Management Plan shall be prepared to the satisfaction of council. The Plan shall include details of daily operations and management of the forecourt area (including any policies, procedures and staff training). This plan is to be prepared in accordance with the Environment protection Authority (EOPA), (formerly known as Department of Environment & Climate Change) guideline 'Environmental Action for Service Stations." 1. Delete Condition 4, amend, and create as Condition 20B, below: "Condition 20B: Operational Plan of Management 'Prior to the issue of any Occupation Certificate, an updated Operational Plan of Management to include the approved operating hours of the take-away food and drink premises and measures for the management of loitering within the car parking areas, shall be submitted and approved by the Manager of Development Planning at Fairfield City Council." 1. Delete Condition 5, amend, and create as Condition 20C, below: "Condition 20C: Consolidation to be Finalised 'Prior to the issue of any Occupation Certificate, the consolidation of the subject lots shall be finalised and the linen plan registered by NSW Land Registry Services. A copy of the registered plan of consolidation shall be submitted to the Principal Certifying Authority." 1. Amend Condition 43 (c), to be read as: Condition 43(c): Deliveries 'A maximum of three(3) fuel deliveries shall be carried out on site per week, by a 19 metre articulated truck.' 1. Amend Condition 50, to be read as: "Condition 50: Access Control 'All transactions with customers of fast food outlet 1 after midnight each day shall be carried out through the drive-thru facility." 1. Delete Condition 82, as not relevant to proposed DA.
Consistent with the granting of Roads Act consent for the stormwater drainage works along Cutler lane, the proposed deferred commencement condition of Condition B, Schedule A is deleted.
The deferred commencement condition, Condition A, Schedule A, is as follows: "Condition A, Schedule A: Drainage Easement to be Created 'An easement of sufficient dimensions to drain water from 240 Hume Highway, Lansvale through a downstream property to the existing stormwater drainage system in Cutler Road shall be obtained. Where the easement is over private land, evidence of the easement from Land Registry Services must be submitted to the Council. Where the easement is granted over Council owned land, evidence of the grant of that easement must be submitted to Council."

Orders

Consequently, the orders of the Court are as follows: 1. Leave is granted to rely on amended plans in Affadivit dated 29 November 2017. 2. Consent is granted, pursuant to s138 of the Roads Act, for the proposed stormwater drainage works within the road reserve along Cutler Lane. 3. Regarding the development consent: 1. The appeal is upheld. 2. The conditions of consent for Development Application 825.1/2016, issued by the Respondent in Exhibit 5 are granted and amended as follows: 1. Condition A, Schedule A: Drainage Easement to be Created 'An easement of sufficient dimensions to drain water from 240 Hume Highway, Lansvale through a downstream property to the existing stormwater drainage system in Cutler Road shall be obtained. Where the easement is over private land, evidence of the easement from Land Registry Services must be submitted to the Council. Where the easement is granted over Council owned land, evidence of the grant of that easement must be submitted to Council.' 2. Condition B, Schedule A: Deleted 3. Approved Plans, to rely on updated plans and amended as, 4. Drawing No. 1.05, Roof Plan, Rev T, dated 07.12.2017 5. Drawing No. 16982-DA-C201, Roof Plan, Rev T, dated 07.12.2017 6. Condition 20A: Forecourt Management Plan 'Prior to the issue of any Occupation Certificate, a Forecourt Management Plan shall be prepared to the satisfaction of council. The Plan shall include details of daily operations and management of the forecourt area (including any policies, procedures and staff training). This plan is to be prepared in accordance with the Environment protection Authority (EOPA), (formerly known as Department of Environment & Climate Change) guideline 'Environmental Action for Service Stations.' 7. Delete Condition 4 and replace with Condition 20B: Operational Plan of Management 'Prior to the issue of any Occupation Certificate, an updated Operational Plan of Management to include the approved operating hours of the take-away food and drink premises and measures for the management of loitering within the car parking areas, shall be submitted and approved by the Manager of Development Planning at Fairfield City Council.' 8. Delete Condition 5 and replace with Condition 20C: Consolidation to be Finalised 'Prior to the issue of any Occupation Certificate, the consolidation of the subject lots shall be finalised and the linen plan registered by NSW Land Registry Services. A copy of the registered plan of consolidation shall be submitted to the Principal Certifying Authority.' 9. Condition 43(c): Deliveries 'A maximum of three (3) fuel deliveries shall be carried out on site per week, by a 19 metre articulated truck.' 10. Condition 50: Access Control 'All transactions with customers of fast food outlet 1 after midnight each day shall be carried out through the drive-thru facility.' 11. Condition 82: Deleted 1. Development consent is granted for DA 825.1/201, subject to the revised conditions, annexed hereto as Annexure 'A'. 1. The exhibits are returned with the exception of Exhibits 1, 5, B and E. ……………………. Sarah Bish Commissioner of the Court Annexure A (C) (352 KB, pdf)

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: 22 December 2017

At a glance

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Judgment (14 paragraphs)

Parties

Cases Cited (3)