Rogers v Inner West Council

The site and the development consent

1. The land to which the consent relates is known as 9 Thornley Street, Leichhardt, and comprises two lots identified as Lot 1 in DP 121624 and Lot 35 Sec 8 in DP 612. The two lots together have frontage of 12.805 metres to Thornley Street and depth of 31.99 metres, providing a total site area of 409.6sqm. The site currently comprises a single, detached dwelling house, swimming pool and onsite parking, including a driveway. The evidence of Mr James Rogers (husband of Mr Rogers, the applicant) is that together with their children, they currently benefit from resident parking permits as occupants and owners of the site.
2. The site is zoned R1 General Residential pursuant to the Leichhardt Local Environmental Plan 2013 ("LLEP 2013"). It is not listed as an item of environmental heritage but is located within the Excelsior Subdivision Heritage Conservation Area pursuant to Part 2 of Schedule 5 of the LLEP 2013.
3. The development consent (as amended by further orders made on 6 December 2017) grants development consent for:

• The demolition of the existing improvements on the site,
• The subdivision of land by changing the location of the boundary between the two lots to create two lots of 204.8m2, and
• The construction of a semi-detached dwelling on each of the two lots (and therefore use of the land for the purpose of dwelling houses pursuant to s 4.19 of the EPA Act).

1. I note that each of these aspects of the consent fall within different types of "development" as defined in the EPA Act (at s 1.5(1)) and consent could have been sought separately for each aspect. However, s 4.12(2) of the EPA Act allows a single application to be made, as follows: "A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)-(f) of the definition of development in section 1.4(1)."
2. The design of the dwelling houses does not incorporate off street, or on-site, parking. The reasons why Mr Rogers pursued a design that did not incorporate any off street parking arise from the advice received from the Council and outlined in the Statement of Facts and Contentions, which was not contradicted by the Council. Those facts were supported by the oral evidence of Mr James Rogers, which was not questioned in cross-examination. The evidence, as set out in the Statement of Facts and Contentions, is as follows [emphasis added]: "29. On 15 June 2016, the Respondent issued written advice to the Applicant in response to pre-development application number PREDA/2016/95. In that advice, the Respondent stated that two proposed on-site parking spaces (one per dwelling) would not be supported on grounds of loss of street parking, heritage and visual impact. The advice did not refer to ineligibility to participate in a resident parking scheme. 30. On 23 August 2016, the Respondent issued written advice to the Applicant in response to further pre-development application number PREDA/2016/134. In that advice, the Respondent stated that a proposed on-site parking space for one of the dwellings would not be supported on grounds of street presentation, heritage and visual impact. The advice did not refer to ineligibility to participate in a resident parking scheme."

The resident parking scheme policy

1. The Leichhardt Council policy for Resident Parking Schemes ("RPS Policy") is a brief, 3 page document that seeks to manage the demand for on-street parking by setting out the requirements for consideration of a resident parking scheme ("RPS"). The RPS Policy was approved by Leichhardt Council on 30 October 2007 and amended by them on 29 April 2014. By reason of the Local Government (Council Amalgamations) Proclamation 2016, the former Leichhardt Council was dissolved on 12 May 2016 and the area for which the former Leichhardt Council was responsible formed part of the new Inner West Council area. The Council is therefore responsible for administering the RPS Policy.
2. The RPS Policy precludes dual occupancies, multi-dwelling housing, residential flat buildings, subdivisions and strata subdivision of residential flat buildings, approved after January 2001 from participating in a RPS. Specifically, it provides at paragraph 2(i) that: "Dual occupancies, multi dwelling housing and residential flat buildings, subdivisions into two or more lots and the strata subdivision of residential flat buildings, approved after January 2001 are not allowed to participate in a RPS as off-street parking should be provided in accordance with Council's DCP - Parking".
3. The parking provisions of the Leichhardt Development Control Plan 2013 ("LDCP 2013") are set out in Part C.11. At C.11.1 the general vehicle parking rates are (insofar as they relate to dwelling houses):
4. The objectives of Part C.11 of the LDCP 2013 are exhaustive, with the first 11 objectives concerning car dependency and urban design. Those 11 objectives are as follows: "Reduce Car Dependency O1 In order to reduce reliance on the car, residents and workers should be within walking distance of facilities and public transport. O2 Priority is to be given to the needs of pedestrians, disabled people and cyclists above the needs of the car. This must be taken into consideration in the location and design of any parking facilities. O3 To set and provide acceptable levels of on-site vehicle and bicycle parking spaces. O4 To integrate bicycle parking & facilities (such as showers and lockers) into developments so that cycling is a viable transport alternative. O5 To implement best practice management of parking and promote walkable, cycle-able mixed use neighbourhoods. Urban Design O6 To accommodate on-site parking that is safe, accessible, well laid out and appropriately lit. O7 To provide parking that can meet the needs of building or facility users for all modes of transport. O8 The impact of car parking areas on the urban fabric of the neighbourhood should be minimised. O9 To design parking for all appropriate transport modes on private properties so that it will reinforce the quality and integrity of streetscapes, the layout, siting and use of neighbouring buildings, as well as the subject site and building design and will not detract from the amenity of adjoining areas. O10 To ensure the design and construction of vehicle parking, service and delivery areas and loading facilities minimises visual and amenity impacts that can be caused by traffic movements and parked vehicles. O11 To provide on-site parking for a range of vehicles, including very small cars, hybrid cars and fully electric cars in multi space car parks. Spaces allocated to environmental vehicles should be marked and managed according to the specific vehicle type targeted."
5. There is no reference in the LDCP 2013 to the RPS Policy or its existence. Nor is there any mention of how parking might be managed through a RPS. The only mention is in a notation following the table in C.11.1, which provides: "Occupants of new developments in existing Parking Permit Areas will not be eligible for resident or business parking permits."

Relevant statutory framework for conditions of consent

1. Section 4.16(1)(a) of the EPA Act allows an application for development consent to be granted subject to conditions. Section 4.17(1) then sets out what conditions can be imposed. The only relevant provision concerning the power to impose condition 64 is at s 4.17(1)(a), which provides: "(1) Conditions - generally A condition of development consent may be imposed if: (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, …"
2. Section 4.15(1) requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. It also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
3. The RPS Policy is neither an environmental planning instrument nor a development control plan. It does not purport to be a policy for the control of new development. Notwithstanding this, such a policy may be considered relevant to the public interest, consistent with the decision of McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, however no submissions were made by the Council in this regard.

The arguments in support of the modification

1. The submissions made on behalf of Mr Rogers were argued on two fronts - the first that the condition is invalid, and the second that it should not be imposed on the merits of the overall development and in what was considered in granting development consent for the proposal.
2. Mr Rogers submits that the condition is invalid as it does not serve a town planning purpose and does not meet the test set out in Newbury District Council v Secretary of State for the Environment [1981] AC 578 and stated by McHugh J in Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [57] as follows: "A condition attached to a grant of planning permission will not be valid therefore unless: 1. The condition is for a planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the authority, not by reference to some preconceived general notion of what constitutes planning. 2. The condition reasonably and fairly relates to the development permitted. 3. The condition is not so unreasonable that no reasonable planning authority could have imposed it. "
3. Mr Rogers submits that the condition is not for a planning purpose, that none of the matters in s 4.15(1) warrant its imposition, and that it serves an ulterior purpose of applying the RPS Policy in a certain way to preclude future occupants or owners from obtaining a resident parking permit. Mr Rogers also submits that the condition is unreasonable in that it binds the Council and restricts the user not just on the current RPS Policy, but also in perpetuity, and therefore fetters the discretion of the Council both in its application of the current policy and any future policy. In doing so, Mr Rogers submits that the condition is so unreasonable that no reasonable planning authority could have imposed it.
4. In support of his submission that the condition is not for a planning purpose, Mr Rogers points out that the RPS Policy is not a planning instrument and is at conflict with the LDCP 2013. Whereas the RPS Policy is being applied in the present development to exclude the subdivision from participating in a resident parking scheme as "off-street parking should be provided in accordance with Council's DCP - Parking", Table C4 of C1.11.1 of the LDCP 2013 does not require any parking to be provided for dwelling houses.
5. Mr Rogers also submits that insofar as the condition requires notification to prospective owners, tenants and occupiers of the exclusion, it similarly cannot be for a planning purpose. In support of that submission, Mr Rogers relies on the decision of the Court in City West Housing Pty Limited v Council of the City of Sydney [2002] NSWLEC 30, in which Talbot J held that a condition imposing similar requirements to give notice of exclusion from a resident parking scheme (albeit in different circumstances) was not for a planning purpose and granted an application for its deletion.
6. Mr Rogers also submits that condition 64 does not reasonably relate to the development for which consent was granted, as the condition does not reflect a proper application of the RPS Policy to the development. That is, Mr Rogers says that the Council is in error in treating the consent as one for subdivision "into two or more lots", as the site was already comprised of two lots and the subdivision simply resulted in moving the boundary between the two lots. As such, clause 2(i) of the RPS Policy does not apply and the condition therefore does not relate to the development.
7. Mr Rogers also submits that condition 64 is unreasonable as the Council has not consistently imposed the condition for developments of this nature. In support of this submission, Mr Rogers tendered 8 development consents for comparable development in the former Leichhardt Council area that were granted in the last two years. Each of those consents is for the demolition of a single dwelling and the construction of two new dwellings with torrens title subdivision. None of these consents were the subject of a condition in the nature of condition 64.
8. In support of Mr Rogers' argument that the condition should not be imposed based on the merits of the development itself, he makes three points. First, Mr Rogers says that he forewent the opportunity to provide on-site parking that could otherwise have been achievable for at least one of the approved dwellings in order to provide an in-fill development which is of an appropriate scale and form and which complements the heritage conservation area settling in which it is located.
9. Second, Mr Rogers submits that the condition penalises him for providing an otherwise desirable built form outcome and one that complies with the LDCP 2013 with respect to parking. He says that the development for which consent is granted is a better outcome for complementing the heritage conservation area than the retention of the current dwelling. Mr Rogers says that the imposition of the condition penalises Mr Rogers for carrying out development that is compliant with the controls and sympathetic to the heritage conservation area, and that the condition cannot therefore be said to be based on a fundamental planning objective. For the same reason, Mr Rogers submits that to impose the condition where the parking requirements of the LDCP 2013 are met is contrary to s 4.15(3A)(a) of the EPA Act, which prevents the Council requiring more onerous standards than that required by the LDCP where those standards are met.
10. Third, the current owners and occupants currently benefit from two resident parking permits under the RPS Policy. In relinquishing the existing driveway crossing, he will return at least one parking space to the street. In this regard, Mr Rogers submits that there is no merit to imposing the condition as the approved development improves current street parking conditions.

The Council's position that the condition should remain

1. The Council advanced a number of grounds on which it says that the condition should remain. It does so by addressing the tests set out in Newbury District Council v Secretary of State for the Environment and stated by McHugh J in Planning Commission (WA) v Temwood Holdings Pty Ltd. Principally, the Council is fixed in its view that paragraph (2)(i) of the RPS Policy applies to preclude future owners and residents of the development from participating in a RPS. Its position is that the condition allows future owners and residents to have their attention drawn to the RPS Policy and the fact that the development is so precluded. It says that the condition only limits participation in schemes under the current RPS Policy, and is limited to the currency of that policy.
2. The first ground that the Council relies upon is that the condition has a proper planning purpose because it fulfils the objective of the LDCP 2013 to reduce car dependency. Specifically, the Council relies on O1, which states that "In order to reduce reliance on the car, residents and workers should be within walking distance of facilities and public transport." The Council submits that the application of the RPS Policy to preclude participation of the current development in a RPS is consistent with this objective, and no inconsistency arises with the parking provisions in Table C4.
3. The second ground that the Council relies upon is that the property is already the subject of a RPS, and that notice of that fact is given by the condition of development consent.
4. The third ground that the Council relies upon is that the condition is reasonable in circumstances where it is clearly the application of the RPS Policy to the development. The Council says that if Mr Rogers has chosen, consistently with the LDCP 2013, to have no parking, this is to discourage car dependency. It says that the obvious practical consequence is that there will be fewer cars, and submits that Mr Rogers cannot seek both reduced car usage for the site and then complain that it can't have car usage due to ineligibility to participate in the RPS.
5. The fourth ground is that the condition should remain to enable future occupants or owners to be put on notice of this restriction, which the Council describes as "a normal restriction on the use of this land".
6. The Council disputes that the condition has been imposed inconsistently, and provided examples of cases in which orders were made by the Court in accordance with agreements reached at or after a conciliation conference. In each of those cases (only one of which concerned the construction of a dwelling house) the condition was imposed by a Commissioner of the Court in granting consent pursuant to the orders. The Council submits that pursuant to s 34(3)(a) of the Court Act the Commissioners could have only made orders in accordance with those agreements if they were lawful, and that therefore the condition must have been lawfully imposed.
7. The Council relied on a number of decisions of the Court or of Commissioners in support of its submissions that the condition is lawfully and appropriately imposed. One such decision is Rosen v City of Sydney Council [2012] NSWLEC 1124, in which Tuor C granted consent for a boarding house in relation to which concerns regarding the impact of the development on the availability of on-street parking were resolved by a number of factors (at [31]), including inter alia that future residents would not be eligible to take part in the residents parking scheme. Similarly, in Affordable Housing NSW Pty Ltd v Sydney City Council [2012] NSWLEC 1314, Morris C granted development consent to a boarding house with a Plan of Management that prevented boarders from applying for residential parking permits.
8. Another decision relied upon by the Council was that of the then Senior Commissioner Moore (as His Honour then was) in Osborne v Woollahra Municipal Council [2013] NSWLEC 1264, in which he noted the agreement of the applicants to relinquish any resident parking permits and stated that "[t]he question of whether or not such permits should be issued in the future is a matter for the Council's permit policy and not for my consideration."
9. The Council also referred to some discussion by Murrell C in Savage v Council of the City of Sydney [2011] NSWLEC 1291, in which the Commissioner refused an application for a driveway and basement car parking on a combination of reasons including the existence of a pedestrian crossing that she considered ought not be removed, and "the configuration of a driveway and the existence of the street tree which does provide for amenity to the conservation area and is a significant tree in the streetscape" (at [42]). In making this decision, the Commissioner made a number of comments about how on street parking is appropriately managed through a resident parking scheme and (at [46]) that "parking will be and/or will be, and into the future at a premium in inner city areas, and the decision or the choice to live in these areas must have regard to such circumstances. Clearly, people live in these areas for the benefits of the proximity to infrastructure including public transport and the city itself." The Council submits that this supports its position that car use should be discouraged and that Mr Rogers cannot expect to be provided with parking permits in areas where parking is at a premium.
10. Finally, the Council relies on the decision of the Court in Fortunate Investments Pty Limited v North Sydney Council [2001] NSWLEC 70, in which it was considered appropriate by Pearlman CJ of LEC to impose a restriction as to user on the title to put the world on notice about planning restrictions. The Council submits that the same principles with respect to the provision of notice apply to the present circumstances.

The question for determination on the modification application

1. The question on the modification application is not restricted to the lawfulness of the condition, or to the second limb of Mr Roger's argument, to whether the condition "should be" imposed on the grant of development consent based on the merits of the development application. Framing the question in either of these ways establishes a high threshold for removing a condition of consent by modification application, as it requires that I either find that the condition is unlawful or that the condition should not have been imposed. Whilst either of those findings would form a basis to grant the modification application, the question on the modification application is broader and simply concerns whether the power under s 4.55(8) should be exercised to remove the condition on principle, or on the merits of the application.
2. The reason for the breadth of this question is derived from the breadth of the power conferred on the Court in s 4.55(8) of the EPA Act. It allows all of the provisions of s 4.55 to extend to enable the Court to modify a consent granted by it.
3. This means that each of the powers in subss 4.55(1), (1A) and (2) are conferred on the Court. Section 4.55(1) allows the modification of development consent to correct a minor error, misdescription or miscalculation. Section 4.55(1A) allows the modification of development consent for a modification of "minimal environmental impact". Section 4.55(2) allows other modifications to development consent to be granted. The exercise of the powers in subss 4.55(1A) and (2) require the consent authority, in this case the Court, to be first satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted". No issue is raised concerning this pre-condition on the exercise of the power to modify the consent, and I am satisfied that the proposed modified development is substantially the same as that for which consent was granted as the removal of the condition will not alter the development itself. The powers in subss (1A) and (2) also require notification of the modification application and the consideration of any submissions received. I was not provided with any submissions received on the modification application.
4. The only other requirement in considering whether to exercise the power in s 4.55 is subs (3), which provides: "In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified."
5. The consequence of the breadth of this power is that, as stated by Talbot J in City West Housing Pty Limited v Council of the City of Sydney at [20], "Apart from the matters referred to in s 79C [now s 4.15], the exercise of the discretion is uncontrolled or fettered by any overriding principle except in the context of s 96 [now s 4.55] itself" [emphasis added]. On the basis of this broad discretion, Talbot J stated at [21] that: "The Court accepts that it is able to consider whether condition 37 should be retained either on the basis of merit or principle" and "the appropriateness and efficacy of maintaining a condition of consent is an open question on the hearing of a s 96 appeal."
6. For the same reasons, the question on the present application is whether condition 64 should be retained either on the basis of merit or principle. In that context, it is open for me to consider the appropriateness and efficacy of maintaining that condition.
7. The submissions made on the lawfulness and on the merits of imposing the condition on the development consent are nonetheless relevant to determining that question.

The condition should be removed from the development consent

1. Contrary to the assertion of the Council that the condition primarily concerns notification of future occupants and purchasers, a plain English reading of the condition reveals that it does four things:

• It prohibits the participation of owners, tenants and occupiers in any current RPS by stating that they are not eligible to so participate;
• It prohibits the participation of owners, tenants and occupiers in any future RPS by stating that they are not eligible to so participate;
• It states that all occupants and employees "will be ineligible" to obtain resident parking permits; and
• It requires notice in writing of "this prohibition" described in the first three points above to be given to "all intending owners, tenants and occupiers of the dwelling".

1. The appropriateness of the aspect of the condition requiring written notice depends upon the appropriateness of those aspects of the condition described in the first three points.
2. I do not accept, as the Council submits, that the condition points to the current RPS Policy and is therefore limited to the currency of that policy. There is nothing in the condition that so limits it, and contrary to the submission of the Council the capitalisation of R, P and S in "Resident Parking Scheme" does not in some way link it to the current RPS policy or limit it to the length of its currency.
3. For the purpose of determining whether condition 64 is appropriate, little weight can be placed on the notation in the LDCP 2013 that refers to new development in areas with an existing RPS. This is because it is simply a notation rather than a control on development, and it is inconsistent with the RPS Policy, which forms the basis of the Council's position on condition 64.
4. I accept that it may be appropriate in certain circumstances to impose a condition that reduces the impact of a development on the availability of existing on-street parking. This is directly relevant to 4.15(1)(b) as it considers the impacts of the development. There may be circumstances in which this could be done through preventing participation of future residents in a residential parking scheme, such as was done for boarding house occupants in Rosen v City of Sydney Council and through a Plan of Management in Affordable Housing NSW Pty Ltd v Sydney City Council.
5. However, the question of the appropriateness of the condition must be considered against the circumstances of each case. In the circumstances of the present development consent, for the following reasons I am of the view that the condition is an unreasonable fetter on the discretion of the Council and ought to be removed on principle.
6. Firstly, the condition pre-judges how the current RPS Policy should be applied to the dwellings the subject of the consent. An administrative policy of this nature is a guideline in accordance with which discretionary power is exercised. Whilst the power is given by statute (see cl 94 of the Road Transport (General) Regulation 2013), the policy allows for consistency in deciding how to exercise that power but doesn't limit the power of the decision-maker. By pre-judging how the RPS Policy should be applied, the condition prevents the Council from exercising that discretionary power. I accept the submission of Mr Rogers that there is no reasonable basis upon which the exercise of the Council's power as a parking authority, which is a separate role to a consent authority, should be fettered in this way.
7. Secondly, the condition pre-judges how any future RPS system may be applied. As such, the condition prevents the Council from exercising its discretionary power in perpetuity. I accept the submission of Mr Rogers that there is no reasonable basis upon which its discretionary power should be fettered indefinitely and in perpetuity. This is made clear in the comment of Moore SC (as His Honour then was) in Osborne v Woollahra Municipal Council that "[t]he question of whether or not such permits should be issued in the future is a matter for the Council's permit policy and not for my consideration."
8. Thirdly, it is not appropriate to fetter that discretion where the question of whether 2(i) of the RPS Policy applies is reasonably open for consideration. There are three reasons why it is reasonably open for consideration. The first is that whilst the Council relies on the subdivision of land "into two or more lots" as a trigger for the application of 2(i), the development consent also includes the construction of dwelling houses, to which 2(i) does not apply. The subdivision is a separate aspect of the development to the erection of the two dwelling houses. They are clearly acknowledged as different types of development in s 1.5(1) of the EPA Act. It is therefore open to the Council to find that paragraph 2(i) does not apply to the approval of the dwelling houses. The second is that the subdivision of the site by consolidation and re-subdivision, or by moving the boundary to create two lots of equal size, is arguably not a subdivision "into two or more lots". The third is that paragraph 2(i) relies on the provision of off-street parking as a justification for the restriction. However, in the circumstances of the present consent, off-street parking was not required and was not considered appropriate. For these three reasons, it is reasonably open to the Council, in applying the RPS Policy, to consider that the restriction in paragraph 2(i) does not apply to the approval of the dwelling houses in the development consent.
9. Fourthly, even if the Council is correct in its application of paragraph 2(i) of the RPS Policy to the development, the condition is not necessary in order for a decision to be made accordingly. The RPS Policy, as a whole, continues to apply even in the absence of condition 64.
10. Fifthly, no evidence was furnished in support of the retention of the condition. There is no evidence of the impact of the development on on-street parking, for example. Instead, the evidence weighs in favour of removing the condition given that the current occupants benefit from resident parking permits and that the carrying out of the development will return one car parking space to the street.
11. Sixthly, the Council was unable to establish the planning purpose served by the condition. The Council's identification of the purpose of condition 64 as being in furtherance of the objective to reduce car dependency, consistent with O1 of Part C.11 of LDCP 2013, is inconsistent with s 4.15(3A)(a). I accept Mr Rogers' submission in that regard. Where the development meets the standards in Part C.11 for zero parking to be provided, the objectives are taken to be met and as such cannot be used to justify the imposition of a further, more restrictive condition. There was no other planning purpose identified by the Council for condition 64.
12. For all of the reasons expressed above and taken together, I am of the view that those aspects of condition 64 that preclude participation in a RPS, as well as the statement of ineligibility for a permit, are not appropriate as they unreasonably fetter the discretion of the Council and are not supported by a planning purpose. Accordingly, that part of the condition that requires notice to be given of these matters is not applicable. The modification application should therefore be granted and the condition removed.
13. The Court orders that: 1. The application to modify the development consent granted in proceedings 121723 of 2017 by deleting condition 64 is granted. 2. The development consent granted on 6 October 2017 and amended on 6 December 2017 in proceedings 121723 of 2017 for demolition of existing structures, Torrens title subdivision and construction of two dwellings at 9 Thornley Street, Leichhardt, is now subject to the consolidated and modified conditions of development consent at Annexure A. 3. The exhibits are returned, except for Exhibit A.

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Commissioner Gray Annexure A (181 KB, pdf)

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