Robertson and anor v Ryde City Council

Mr M Cottom Kells the Lawyers (Respondent) File Number(s): 10344 of 2011

EXTEMPORE Judgment 1In January 2008, Bewsher Consulting Pty Limited completed the preparation of a flood study known as the Eastwood and Terrys Creek Floodplain Draft Flood Risk Study and Plan (the Flood Study). It is the common position, as I understand it in these proceedings, that that plan has subsequently been adopted by Ryde City Council (the council). 2The flood study shows, amongst other things, significant flood affectation of a number of properties that are located on the southern side of Vimiera Road Eastwood, including a property known as 26B Vimiera Road and a property owned by the applicants that had, prior to its subdivision, been known as 32 Vimiera Road. 3The applicants applied for approval to subdivide their property and to erect, at the rear of the subdivided property, a new dwelling (in which they now reside). That subdivision has taken effect and has resulted in two allotments that have been created - Lots 1 and 2 in a deposited plan registered with the Land Titles Office. A number of conditions of registration of the plan of subdivision were contained in the council's conditions of consent. These comprised Conditions 14, 15 and 16, which were originally imposed in August 2001 and which were, with respect to Condition 15, amended by a modification application in August 2003. 4The effect of the three conditions, taken together, were to impose a number of restrictions on user and a positive covenant in favour of the council, with respect to both Lot 1, the front allotment at street frontage, and Lot 2, the rear battleaxe allotment. 5The application originally sought an amendment to the three conditions of consent that would have removed any restrictions to user or positive covenant with respect to either of the allotments. As a consequence of leave to amend being granted to the applicants, it is now accepted by them that Condition 16, which has been given effect to and has imposed a positive covenant in favour of the council concerning the location of the building envelope on the real allotment, should be maintained. It is now their application however, that the restrictions on user should not be applied to the front allotment, upon which an existing modest brick residence is located. 6The applicants' Statement of Facts and Contentions deals with a number of matters relating to a development application lodged in 2009 for house additions on the adjoining property at 26B Vimiera Road. These are in the following terms: 1.The application for modification of the development consent (MOD 2010/0049) was lodged by the applicants following the respondent's consent to the development of an adjoining property located downstream in the same overland flow path as part of the applicant's property. 2.On 15 October 2009, the respondent advised the applicants that an application for development of the adjoining property had been lodged (LDA 2009/0546). That development, described as "alterations and additions", proposed to increase the total floor area of the existing house from 106 square metres to 328 square metres. 3.On 25 October 2009, the applicants objected to the proposed development under LDA 2009/0946 because it did not comply with the conditions that the respondent had imposed for development of the applicant's property in the form of restrictions as to user and a positive covenant, which are the subject of this application. 4.On 11 December 2009, the respondent advised that the development on the adjoining property (LDA 2009/0546) had been approved subject to conditions. 5.The conditions of consent for LDA 2009/0546 did not include any restrictions regarding minimum floor height levels or location of the building envelope, unlike the conditions that were imposed for development on the applicant's property. 6.No restrictions as to user or positive covenants were imposed on the title of the adjoining property as part of the consent under LDA 2009/0546. 7The consequence of that in these proceedings is that I should have regard to whether or not it is appropriate to and consistent with the council's past practices to maintain the restrictions on user for Lot 1. 8First, I observe that, although I raised with Mr Cottom, solicitor for the council, a preliminary concern that I had that the necessary amendment to Conditions 15 and 16 (which would merely be to delete the word "both lots" in the second line of each condition and replace it with the words "Lot 1", would be ineffectual, given that the restrictions on user had already been registered, Mr Cottom expressed the view, which I adopt with some hesitation, that I have the power pursuant to s 39(2) of the Land and Environment Court Act 1979 (the Court Act), to modify the two conditions of consent and then to order the council to give effect to such modification. It is on that basis that I continue to consider the merits of the application. 9I observe that with respect to the development on 26B Vimiera Road, the evidence that I have is confined to the two plans that are extracted from the Flood Study, that which we observed over the fence during the course of the site inspection that took place as part of the unsuccessful conciliation process, pursuant to section 34AA of the Court Act and those paragraphs of the applicants' Statements of Facts, to which I have earlier adverted. The relevant tendered map extract is reproduced below: 10An application by Mr and Ms Robertson to reopen proceedings, to enable the tendering of or all part of the development application file associated with the additions and alterations on 26B Vimiera Road, was resisted, successfully, by Mr Cottom in these proceedings and, as a consequence, the evidentiary limitation on my knowledge of that application is confined as I have just described. 11I am, in these proceedings, dealing with controls that are set out in the relevant provision of the council's Development Control Plan, contained in ch 7 dealing with stormwater inundation, particularly those that are set out in the descriptor for that part of the Development Control Plan and the controls that apply to it. 12The relevant descriptor relied upon by Mr Cottom is the second paragraph which reads: Where overland flow enters a property, due consideration must be given to the effects of stormwater discharges upon persons and property with a view to ensuring there is no increase in hazard or private and public losses resulting from stormwater inundation, the development must also be compatible with any mitigation strategies of the council. 13Under the controls, the relevant matters, in my view, are those contained in 7.1(b) Building Over Flow Paths and in 7.2(a), dealing with additions and alterations to existing buildings, that being the nature of the development in broad terms, observable over the fence on 26B Vimiera Road. 14The control with respect to development over flow paths is in the following terms; " building over a flow path will generally not be permitted due to the potential for blockage ." 15There is then a description in essence that deals with the inclusion of areas under buildings for various calculation purposes not presently relevant. 7.1(b) is a provision that applies to new development. 7.2(a) makes it clear that additions to existing buildings on properties affected by significant overland stormwater flow will be assessed using the same criteria as for new buildings - therefore 7.1(b) is equally applicable to additions and alterations and therefore was applicable to the redevelopment of 26B Vimiera Road. 16It is the uncontested evidence in these proceedings (see 6[6] above) that no restrictions as to user or positive covenants were imposed on the title of the adjoining property as part of the consent under the development application for the redevelopment of 26B Vimiera Road. That gives rise to my consideration of matters of consistency of application of the Development Control Plan, as discussed by McClellan CJ in Stockland Development v Manly Council [2004] NSWLEC 472. 17I am taken to two propositions why, on the previous decisions of the Court, it would be appropriate for me to maintain the restrictions as to user as are presently imposed. They are the planning principle enunciated by Roseth SC in Parrott v Kiama Council [2004] NSWLEC 77 at para 17 and the decision of Pearlman CJ in Fortunate Investments Pty Limited v North Sydney Council [2001] NSWLEC 70; (2001) 114 LGERA 1. 18There are two matters that arise for my consideration, with regard to both of those decisions, in light of the development on 26B Vimiera Road and the nature of the restrictions on user that have been imposed on Lot 1 in the present subdivision. 19First, I observe that the existence of restrictions or potential restrictions on development of Lot 1, as a consequence of the flood study map, are ones that would be drawn to the attention of any purchaser of Lot 1, as a consequence of the ordinary conveyancing practice, reasonably to be expected for any such transaction, that would incorporate, as part of the document supplied with a contract for sale of that lot, of a s 149(2) certificate, pursuant to the Environmental Planning and Assessment Act 1979. Such a certificate would draw attention to the prospective purchaser of the existence of restrictions on use as a consequence of potential flood affectation. 20In my view, that would disclose the existence of restrictions on use, arising from the flooding, rather than arising from the terms of the restrictions on user, applied pursuant to the Conveyancing Act 1919. Registered restrictions would constitute a separate element of notice of different restrictions, but nonetheless, restrictions on development. 21In my view, the existence of a s 149(2) certificate, as part of the ordinary conveyancing practice of the State, is an adequate and entire answer to the propositions raised by Mr Cottom from the judgment of the former Chief Judge in Fortunate Investments . It is clear from para 15, that the reason why Her Honour permitted the imposition of the restriction, in that case, is that it was critical that notice be given to potential purchasers of the existence of a Plan of Management for the boarding house that formed part of the subdivision elements dealt with in those proceedings. Indeed, Her Honour says, in (15), as follows: However, I also think Ms Townsend's submission that it is important that notice be given to purchasers is critical in this case. For that purpose it is appropriate to impose a condition requiring a restrictive covenant. 22It is clear from the terms of (8) of Her Honour's decision, that the covenant would simply draw attention to the existence of the provisions of a Plan of Management that were imposed as part of the conditions of development consent and would not have set out the terms of those restrictions. That, in my view, is analogous with the position that arises here, given that it is clearly within the power of the council on any future development application for Lot 1 to amend, vary, relax or indeed enforce appropriate controls and restrictions on development on Lot 1. 23With respect to the planning principle enunciated by Roseth SC in Parrot v Kiama , it was in response to a rhetorical question posed namely, When should a subdivision application include information on the buildings to be built on the resulting allotments ? 24The Senior Commissioner's response in that case was that it would be appropriate if there existed one of a number of conditions potentially applicable - one of which was environmental sensitivity. 25I am satisfied that consistent with that planning principle, as has been conceded effectively by the applicants by their amendment to the application, that it is appropriate to include such information on buildings to be built on the allotment. 26The only buildings proposed to be built as a result of the subdivision, excluding the minor element of consent for demolition of an existing garage and the erection of a carport at the rear of the existing dwelling on Lot 1, was the entirely new dwelling on Lot 2. The relevant restrictions on the building location, floor levels and the like of the proposed dwelling (now erected) on Lot 2 are not resisted by the applicants. 27The existing dwelling on Lot 1 existed at the time of the subdivision - it being, from the site inspection, obviously a building of many decades in age and its location does not require to be identified or defined for consistency with the decision in Parrot v Kiama . 28Although the council has determined in this case that it should impose the restrictions and covenant requirements contained in Conditions 14 to 16 of the Development Consent was granted to the applicants, such a position is inconsistent with the position adopted for the development on 26B Vimiera Road. 29I am not persuaded, as Mr Cottom has put to me, that the imposition of such a condition on additions and alterations to 26B Vimiera Road might fail the Newbury test hurdles ( Newbury District Council v Secretary of State for the Environment [1981] AC 578), because the Development Control Plan requires that there be consistency between new developments and additions and alterations. 30As I have no evidence as to the assessment process for the downstream application, I am merely left with the fact that there is a prima facie fundamental inconsistency of approach between the two applications and that that would cause me, in the exercising of my discretion in these proceedings, to set aside any presumption of consistency or desirability of consistency of decision-making in the council's favour. 31I am satisfied, overall, that the nature of the restrictions that have been imposed on Lot1 (as earlier demonstrated in the flood map reproduced in this judgment, it is conceded that the pink high-risk flood area is effectively on the outer edge of Lot 1, whereas the effective high-risk flood areas comprise a significant portion of the private rear open space of number 26B Vimiera Road with no restriction being imposed on that private open space), renders it inappropriate, as a matter of discretion, to require such restrictions to be imposed on the private open space at the rear of the existing house on Lot 1, the nature of the hazard for those private open spaces being significantly higher for 26B Vimiera Road than for 32 Vimiera Road. 32As a consequence, I have concluded that the application as amended should be approved. The consequence of that and the proposition put to me by Mr Cottom earlier that the appropriate way to do so would be to direct the Court to correct or alter the restrictions at the Land Titles Office, the orders of the Court are as follows: (1)The appeal is upheld; (1)Condition 14 of Development Consent 2000/242 is amended by the deletion of the words in the second line "both lots" and the substitution in lieu thereof of the words "Lot 1"; (2)Condition 15 of Development Consent 2000/242 is amended by the deletion of the words "both lots" in line 2 and in lieu there the words "Lot 1" are to be substituted; (3)Pursuant to s 39(2) of the Land and Environment Court Act 1979, the respondent is directed to take such steps as are necessary to amend the records of the Land Titles Office to give effect to the amendments that have been made to conditions 14 and 15 of the conditions of Development Consent 2000/242; and (4)The exhibits, other than Exhibits A, B, 1 and 6, are returned. Tim Moore Senior Commissioner 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: 20 July 2011