Satmell Holdings Pty Ltd v Blacktown City Council

Land and Environment Court (NSW)|2018-04-30

Background

On the 21 August 2012 the then Minister for Planning gave a direction under the then s. 94E of the Act. At (6) of the direction it states: 6. Maximum amount of monetary contributions under s94 (1) This clause applies to a development consent to the extent that it authorises one or more dwellings or the subdivision of land into residential lots. … (3) A council (or planning panel) must not grant development consent for development of any land identified in Schedule 2 subject to a condition under s94 (1) or (3) of the Environmental Planning and Assessment Act 1979 requiring the payment of a monetary contribution that: (a) In the case of a development consent that authorises one or more dwellings, exceeds $30,000 for each dwelling authorised by the consent, or (b) in the case of development consent that authorises subdivision into residential lots, exceeds $30,000 for each residential lot authorised to be created by the development consent. (4) A council (or planning panel) may, in a particular case, require, as a condition on the grant of development consent, the payment of a monetary contribution that exceeds the maximum amount of the contribution calculated in accordance with subclause (2) or (3), but only with both the written agreement of the applicant for the consent and the written approval of the Minister, given before the condition is imposed.
It is agreed between the parties that the subject site falls within land identified in Schedule 2 of the direction and that the provisions of 6(4) of the Direction do not apply.
The above direction was amended on the 17 July 2017 (the Amended Direction). Relevantly the Amended Direction inserted cl. 6(5) which states: (5) this clause does not apply to the imposition (after the 2017 directive takes affect) of a condition in accordance with an IPART reviewed contribution plan.
This new clause has the effect of lifting the restriction on the maximum amount if the condition is imposed in accordance with a contribution plan "reviewed" by IPART.

Submissions

Mr Galasso argues that the primary source of power for the levying of contributions arises from s. 7.11(1) of the Act and that a fair reading of the legislative scheme requires the following conditions to be met prior to a condition being applied to the subject development: 1. the tests at s. 7.11(2) of the Act need to be satisfied 2. contributions need to be of a kind allowed by a contributions plan that has been prepared subjection to any direction of the Minister (s7.13(1)) 3. that the relevant direction by the Minister is the Amended Direction of 17 July 2017. 4. that s. 7.18(1) requires the contributions plan to be prepared in accordance with the Regulations (s. 7.18(3)), which then refers to the Practice Note - which is the Practice Note: 'Local Infrastructure Contributions, January 2018 (Exhibit Y) (2018 Practice Note).
It is Mr Galasso's submission that the contributions proposed by the Council in the draft conditions of consent arise from a contribution plan that has not been prepared, adopted or approved in accordance with the planning regime and therefore should not be applied. He argues that the condition seeks to impose a rate of $35,000/lot (or dwelling) in a circumstance where the relevant contribution plan has not been assessed by IPART or approved by the Minister.
Mr Galasso argues that to be the "approved" contributions plans (s7.18 of the Act), the reviewed contributions plans (No. 22 L - Rouse Hill Land and 22 W - Rouse Hill Works) have to be prepared in accordance with the Amended Direction and the Regulations.
It is Mr Galasso's submission that this approval process was acknowledged by the Council in the wording of its resolution (refer [Exhibit Y]) which required the submission of "both plans to IPART and the Minister for Planning for assessment and approval" (Exhibit Y). This has not been completed. Mr Galasso argues this failure results in the contributions in the reviewed plans being unable to be imposed.
Mr Galasso submits that only the pre-existing contributions plan (prior to the review) has the power to levy contributions. He notes that this pre-existing plan provides a rate per lot that is lower than the maximum amount of $35,000 provided for in the Amended Direction of 17 July 2017.
In the alternative Mr White argues that draft condition itself (Exhibit 6) complies with the Amended Direction by reducing the amount able to be levied by the Council under the contribution plan to $35,000 per lot.
Relying on the wording of s. 7.18(1) that a Council may "approve a contributions plan" Mr White argues that once adopted by Council a contribution plan is 'in force' and therefore the contributions plans (No. 22 L - Rouse Hill Land and 22 W - Rouse Hill Works) have applied since the 7 March 2018. It is Mr White's submission that this was the effect of the Council's resolution.
Mr White draws support for this position from cl. 31 of the Regulations which states: 31 Approval of contributions plan by council (cf clause 30 of EP&A Regulation 1994) (1) After considering any submissions about the draft contributions plan that have been duly made, the council: (a) may approve the plan in the form in which it was publicly exhibited, or (b) may approve the plan with such alterations as the council thinks fit, or (c) may decide not to proceed with the plan. (2) The council must give public notice of its decision in a local newspaper within 28 days after the decision is made. (3) Notice of a decision not to proceed with a contributions plan must include the council's reasons for the decision. (4) A contributions plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice
Further Mr White argues that the framing of the condition sought to be imposed is consistent with s. 7.17(1)(ii), (2) and (3) as it seeks only the maximum amount.
On this basis Mr White argues that the approved contribution plan is that "approved" by Council and that therefore applying the Amended Direction (refer paragraph [90]) the consent should include a contribution of $35,000 per lot as detailed in Councils draft consent conditions (Exhibit 6).
Mr White submits that in determining the application the Court must consider the effect of s. 7.20 of the Act as follows: 7.20 Contributions Plans--Judicial Notice, Validity etc (cf previous s 94EB) (1) Judicial notice is to be taken of a contributions plan and of the date on which the plan came into effect. (2) It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed. (3) The validity of any procedure required to be followed in making or approving a contributions plan is not to be questioned in any legal proceedings except those commenced in the Court by any person within 3 months after the date on which the plan came into effect. (4) The amendment or repeal, whether in whole or in part, of a contributions plan does not affect the previous operation of the plan or anything duly done under the plan.
Mr White argues in the proceedings under Class 1 of the Court's jurisdiction there is, pursuant to s. 7.20 of the Act, a presumption of regularity in relation to the contributions plan. It is his submission that a determination of the validity of the plan is a matter for judicial review (Class 4 of the Court's jurisdiction) which is outside the scope of the current proceedings.

Precondition: demand:

Pursuant to s. 7.11(1) of the Act I satisfied that the proposed development will, or is likely to, require or increase demand for amenities and public services within the area.

Is the proposed condition in accordance with a "contributions plan" (s. 7.13(1) of the Act)?

In Hammersmith Management Pty Limited ACN 084 393 644 v Lake Macquarie City Council (124 LGERA 63) Lloyd J clarified the separation of issues between Class 1 and Class 4 of the Court's jurisdiction as follows: 1 This is a case about monetary contributions sought by the respondent, Lake Macquarie City Council ("the council") under s 94 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). There are two applications before the Court: (1) a challenge to the validity of a contributions plan adopted by the council under s 94B of the EP&A Act (such challenge falling within Class 4 of the Court's jurisdiction); and (2) an appeal against a condition of a development consent granted by the council which requires the payment of a monetary contribution in accordance with the contributions plan (such appeal being within class 1 of the Court's jurisdiction). … 25 The conclusion confirming the validity of the contributions plan does not necessarily also determine the appeal against the imposition of the particular condition of consent in this case. Whilst the contributions plan may validly include contributions for the public amenity of a conservation corridor, the questions remain as to whether the particular development "will or is likely to require" the provision of such a corridor, or "increase the demand" for such a corridor, as required by s 94(1) of the EP&A Act.
The current proceedings are an appeal under s. 8.7 and the applicant seeks to overturn the Council's refusal of development consent, of which one issue in contention is the acceptability of conditions of such a determination.
By reference to the originating process, the applicant does not seek a declaration that the contributions plans are invalid (which would fall within judicial review). Rather the Class 1 Application seeks for the Court to remake the Council's determination of the application under s. 4.16 of the Act.
Applying the proceeding I am satisfied that in determining an application it is relevant to consider the question of the relevant contributions plan from which a condition (under s. 4.17 of the Act) is able to be levied.
The definition of a contributions plan is made clear in the Act. It states a "contributions plan" means a contributions plan approved under s. 7.18.
The power to "approve" a contribution plan is limited by the conditions detailed in the Act and the Regulations. At s. 7.18(3) it states: The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.
I accept the submissions of Mr Galasso (at paragraphs [98] to [100]) that Contributions Plans No. 22 L - Rouse Hill Land and 22 W - Rouse Hill Works are not "contributions plans" as defined by the Act. My reasoning is as follows: 1. the definition of contributions plan is one approved under s. 7.18. 2. s. 7.18(1) provides that such a plan is to be made "subject to and in accordance with the Regulations" 3. cl. 26 of the Regulations requires a contributions plan to be made in accordance with the relevant Practice Note and that such a plan cannot be inconsistent with a direction under s. 7.17 of the Act. 4. cl 6A of the 2017 Amended Direction applies as the Contributions Plan 22- Area 20 Precinct is a specified contributions plan, therefore a maximum of $35,000 applies for each dwelling or each residential lot. 5. The relevant Practice Note is the 2018 Practice Note. 6. The Contributions Plans No. 22 L - Rouse Hill Land and 22 W do not satisfy the requirements of the Regulations and the Amended Direction: 1. the Amended Direction requires Councils to submit any contributions plan that proposes to charge a contribution rate above the cap to IPART for assessment, reporting and referral to the Minister as detailed in cl. 5(3) of the Amended Direction. 2. the plans seek to impose a rate higher than the cap, as detailed in Exhibit 2. The process detailed at Figure 1 of the 2018 Practice Note details steps of both IPART assessment and Ministerial advice prior to the adoption of final contribution plans (Exhibit Y). This process has not been concluded. 3. The Regulation addresses the review of Contributions Plans at cl. 32, as follows: (3) A council may make the following kinds of amendments to a contributions plan without the need to prepare a new contributions plan: (a) minor typographical corrections, (b) changes to the rates of section 7.11 monetary contributions set out in the plan to reflect quarterly or annual variations to: (i) readily accessible index figures adopted by the plan (such as a Consumer Price Index), or (ii) index figures prepared by or on behalf of the council from time to time that are specifically adopted by the plan, (c) the omission of details concerning works that have been completed 1. I am satisfied the review undertaken by Council is outside this remit of this clause and is a 'new contributions plan' (cl. 3.2(3) of the Regulation. Therefore the plan is required to be made in accordance with the regime outlined in the Act. Importantly s. 7.18(1) of the Act provides that such a plan is to be made "subject to and in accordance with the Regulations" and the Amended Direction (s. 7117(2) of the Act). 2. Further whilst the 2018 Practice Note provides the following explanation of the process to undertake amendments to IPART assessed contributions plans, the review undertaken by Council is outside this exemption as the plans seek an increase in contributions: If a Council has an existing contributions plan that has been assessed by IPART and the plan is being amended as under cl.32(3) of the EP&A Regulation, then the Direction does not require the Council to resubmit the plan to IPART to continue to charge contributions in accordance with the IPART assessed plan.
I have considered the submission of Mr White on the effect of s7.20 of the Act. I note at (1) the section requires 'judicial notice to be taken of a contributions plan and the date on which the plan came into effect'. I am not persuaded that the effect of this clause is that within Class 1 proceedings, where a dispute as to which plan is the correct contributions plan arises, it is inappropriate for the Court to satisfy itself that the plan from which contributions are proposed to be levied is one that has been "approved under section 7.18" as required by the definition and is consistent with a direction of the Minister. I note that s. 7.17(3) of the Act states: (3) A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan.
On the basis of the above I am satisfied that a condition requiring payment of a contribution arising from Contributions Plans No. 22 L - Rouse Hill Land and 22 W - Rouse Hill Works cannot be levied under s. 4.17 of the Act.
Contributions Plan 22- Area 20 Precinct (In force as at 24 February 2016) has not been repealed in accordance with cl. 32(2) of the Regulation and remains in place. No evidence or submissions have been made to the Court to indicate that this contributions plan is not consistent with the definition of an approved plan under s. 7.18 of the Act.
The 2017 Ministerial Direction applies to the imposition of contributions in accordance with Contributions Plan 22- Area 20 Precinct which provides a maximum rate of contributions of $35,000/ dwelling or residential lot (refer paragraph [90].
I note Mr Galasso's submission that Contributions Plan 22- Area 20 Precinct provides a rate per lot that is lower than the maximum amount of $35,000 able to be levied in accordance the Amended Direction.
I am satisfied it is appropriate for the Court to make directions to allow the Respondent's draft consent conditions be updated to reflect my findings in the preceding and for the Applicant to file an updated set of plans in accordance with my earlier findings in relation to the stormwater conveyance.

Directions:

The applicant is to file and serve a full set of updated plans, ensuring that the documentation is internally consistent, reflecting the findings of this judgment on stormwater design at paragraph [68 - 70].
The applicant is to file and serve the amended plans, with updated revision numbers, no later than 22 June 2018.
The Council is to amend the Conditions of Consent (Exhibit 6) to include the updated revision numbers in condition A1 and the findings of this judgement at [117].
The respondent is to file and serve settled conditions of consent by 6 July 2018.
The matter is listed for mention before me at 9am on 10 July 2018. If directions (paragraph [124]) and [125]) are complied with, I will make orders in chambers to dispose of the proceedings in accordance with this decision and vacate the mention.

Addendum made on 19 July 2018:

In accordance with the terms of directions in paragraph [124-128] of my judgment of 31 May 2018, the Applicant filed a set of amended plans on 19 June 2018.
The parties were unable to agree a settled set of consent conditions in accordance with the Directions at [127]. As a result the matter was listed for mention on 17 July 2018 and the parties were provided an opportunity to make submissions in relation to the contested conditions. A number of conditions were agreed between the parties at the mention. The following conditions remain in dispute:

Deferred commencement conditions

Condition 1.1(c): Temporary pipeline 1. The Council proposes the following wording for Condition 1.1(c). The words in contention are highlighted: The creation of a minimum 2.5m wide temporary drainage easement with a Restriction to User over the centreline of the proposed stormwater pipe from T.1 to E.2B over 2/1033564 and any tail out and swale works in favour of 3/135890 as per the Engineering Guide for Development. The Restriction to User and drainage easement must be registered with NSW Land Registry Services. The easement to contain a sunset clause enabling the easement to be extinguished upon the registration of the subdivision over 184/208203 and removal of the pipeline from T.1 to E 2.B. The Council does not agree to the pipeline remaining in the land zoned RE1: Public Recreation (Lot 2 DP 1033564) on the basis that it 'will restrict the full and effective use of the future RE1 land and the pipe retained in the roadway even when filled with concrete creates a degree of uncertainty for the future installation of services and works within the roadway.' (Council's submissions 16 July 2018) 1. The Applicant seeks the deletion of the following words from Condition 1.1(c) - 'and removal of the pipeline from T.1 to E.2B' on the grounds that the matter was previously determined in the judgement (refer paragraph [57]). The Applicant indicates they would accept a condition that mandates that no pipework is to be retained in the RE1 land as none is intended.
Having considered the submissions of the parties I find that it is appropriate to accept the Applicants position in relation to Condition 1.1(c) for the reasons they provide. I am satisfied it is appropriate to also include a new condition, Condition 18.10 as follows to provide certainty to the Council: "At the completion of the development no pipework is to be retained in the portion of Lot 2 DP 1033564 zoned RE1:Public Recreation "
Condition 1.2: timeframe for satisfaction of conditions. The draft condition states: Evidence that will enable the Council to be satisfied of the matters above must be provided to Council within 36 months of this determination. If it is not provided by this time, the consent will lapse under section 4.53(6) of the Act. 1. The Council proposes a timeframe of 36 months for the satisfaction of the deferred commencement condition. Their reasoning as to the determination of this timeframe was not provided. 2. The applicant seeks to delete this condition and rely on the provisions of s 4.35(6) of the Act which state: (6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses is the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of consent, or if a shorter period is specified by the consent authority, within the period so specified. The Applicant's reasoning is that the 'the timeframe required in this condition for completion of the deferred commencement conditions does not allow for circumstances whereby obtaining the easements is a difficult, lengthy process which the Applicant cannot control for example Supreme Court proceedings' (Applicant's submissions 16 July 2018).
I am satisfied that there is no evidence in this matter to warrant the imposition of a reduced timeframe that is less than the timeframe provided by the Act at s4.35(6). I accept the Applicant's submission that the condition should be amended to state a timeframe of five years from the grant of consent to enable the applicant to obtain the necessary easements to implement the development.
Condition 1.3: Timeframe for assessment by Council. 1. The Council proposes the following wording for this condition: The consent will not become operative until the Council gives written notification to the applicant that the requirements of Condition 1.1 have been satisfied and thereafter, the consent will become operative from the date of that notification subject to the conditions set out below. 1. The applicant seeks to insert a two timeframe for the Council to assess and respond to the material filed with the Council under Condition 1.1.
This condition was discussed at the mention and the parties propose an agreed timeframe of four weeks. I accept the agreement of the parties. The amended condition will read: The consent will not become operative until the Council gives written notification within four weeks of receiving all of the above information to the applicant that the requirements of Condition 1.1 have been satisfied and thereafter, the consent will become operative from the date of that notification subject to the conditions set out below.

Operational conditions

Condition 2.9.3.1: Subdivision 1. The Council proposes the following wording for this condition: 2.9.3.1 Principal Certifying Authority - Blacktown City Council shall be the Principal Certifying Authority for the proposed subdivision and shall issue the Subdivision Certificate upon compliance with all relevant conditions of this consent. 1. The applicant seeks to clarify the condition by the insertion of the following words: 2.9.3.1 Principal Certifying Authority - Blacktown City Council shall be the Principal Certifying Authority for the proposed subdivision and shall issue the Subdivision Certificate upon compliance with all relevant subdivision conditions of this consent. The Applicant argues that the subdivision certificate should be issued once all the conditions listed under the section within the consent titled "Prior to Subdivision Certificate. The Council disagrees with the insertion, arguing that "There are other conditions in the consent that need to be satisfied in addition to the subdivision conditions" (Council's submissions 16 July 2018). At the mention Council was unable to particularise the relevant conditions to which they refer.
I accept the submission of the Applicant that the scope of the condition should be clarified. I find that within the draft consent it is the subdivision works that would trigger the requirement for the implementation of a number of conditions. I am satisfied that Blacktown City Council, as the PCA will be able to adequately ensure those conditions are identified and satisfied as part of their certification role. The amended condition will read: 2.9.3.1 Principal Certifying Authority - Blacktown City Council shall be the Principal Certifying Authority for the proposed subdivision and shall issue the Subdivision Certificate upon compliance with all conditions of this consent relevant to the subdivision works.
Condition 3.2.2(e): internal ground floor levels 1. The Council seeks to impose the following condition: The internal ground levels and building floor levels are to be raised as required to match the finished road levels.
The matter of the appropriate finished floor level of the townhouses within the development was considered in the preceding judgement. This condition proposed by Council is inconsistent with the Clause 4.6 variation request, and the evidence of the expert planners. I am satisfied that the outcome proposed by the Applicant balances the height standard, the stormwater design for the site and the amenity of the future development. As such the condition is deleted.
The parties agree to the appropriate consent conditions to be applied in relation to development contributions to implement the findings in the judgement. That condition is incorporated in the conditions at 3.10 (Annexure A).
The Council proposes the following condition (6.1.8) seeking the removal of the temporary stormwater pipes. Provide a Temporary Pipe Removal Estimate using Cordells or similar for the removal of temporary from A2 to T5 and T1 to E2B. Costs are to include excavations and disposal of waste to a registered tip, removal of any headwalls or scour protection, restoration of any disturbed vegetation, making good any pit connections, backfilling with clean compacted fill and restoration of all damaged footpaths, kerbs and pavements. This is inconsistent with the findings of the Court which accepts the evidence of Mr Harris at paragraph 62(4). As such the condition is deleted.
Condition 6.1.9: Raising of Road levels in North West Corner 1. The Council proposes the following condition: 6.1.9 Provide a north west road adjustment estimate for the adjustment of the northwest road on MC.01 to match the Council road design level for Paris Avenue up to Jeffery Circuit including pavement course, hotmix and kerb and gutter. The applicant argues that the effect of this condition is that the road levels would be required to be lowered, and therefore be inconsistent with the approved temporary drainage solution depicted in the amended civil plans filed on 19 June 2018. Council states they require this condition to be retained "as the Road Adjustment Estimate is required" (Council's submissions 16 July 2018).
As noted at paragraph [54] of the judgement, prior to the proceedings the Applicant prepared an amended scheme that raised the road level. This design was accepted by the Council and the judgement notes at paragraph [5] the remaining issues between the parties. The level of the road was not an issue contested by the Council. No submission to the contrary was made by Mr White in closing. As such the condition is deleted.
I accept the submission of the Applicant that the imposition of the condition would be inconsistent with the development that was determined by the Court to be satisfactory.
I number of other consequential changes were made to the conditions to be consistent with the preceding findings.
6.13.4 Stormwater devices 1. The Applicant seeks to allow for brand substitution of the stormwater quality devices proposed. This was accepted by the Council subject to achievement of the same performance.
The amended condition will read: The 200 micron Enviropods and/or Jellyfish Units 1 x JF3250-17-3 and 1x JF-2250-8-2 and 1 x JF 2250-7-2 are to be supplied by Stormwater 360 (or equivalent brand approved by Council that is capable of achieving the same performance specification) as detailed on the approved drainage plan.
Council seeks, at Condition 16.11.4.6 and 16.11.4.7 a bond for the maintenance and removal of the temporary Enviropods. The Council seeks a bond of 200% of the estimated cost of removal and 150% of the estimated cost of maintenance. Council's reasoning is that the Enviropods may be in place for an uncertain duration (up to 10 years). The Applicant seeks for these amounts to be reduced to 100% on the basis that the estimate prepared us already required to include a contingency allowance.
The power to apply a bond in these cases arises from s 4.17 (6) (a) and s 4.17 (6) (b) of the Act respectively. At s 4.17 the Act states: (7) The security is to be for such reasonable amount as is determined by the consent authority.
I am satisfied it is reasonable to set both bond amounts at 150% of the respective estimates, on the basis argued by the Council at [149].
Condition 17.20.5.1: Kerb and gutter to Windsor Road 1. The applicant seeks to insert the following words in the condition provided by the Roads and Maritime Service (RMS): The redundant driveway on the Windsor Road boundary shall be removed and replaced with a temporary kerb and gutter to match existing. The design and construction of the temporary kerb and gutter on Windsor Road shall be in accordance with the Roads and Maritime requirements. Details of these requirements should be obtained from Roads and Maritime Services, Manager Developer Works, Statewide Delivery, Paramatta. Detailed design plans of the proposed gutter crossing are to be submitted to the Roads and Maritime for approval prior to the issue of a Construction Certificate for the residential flat building and commencement of the temporary kerb and gutter road works. … The Applicant's reasoning for the amendment is that 'the design and construction of the kerb and gutter on Windsor Road cannot be completed until the Applicant has removed the temporary deceleration lane and has created the separate, permanent entrance to the site off Windsor Road' (Applicant's submissions 16 July 2018). The Council disagrees with the Applicant's amendments and argues that consultation is required with the RMS to ensure that their requirements for safety are satisfied during the staged development of the site.
I find that I have insufficient justification to uphold the amendment to the condition sought by the Applicant. I accept the condition was likely drafted by the RMS prior to the most recent amendments to the Applicants plans, I am not satisfied that the approach sought by the Applicant is adequately justified in the absence of consideration by the engineering experts engaged in the appeal. The amended to the condition is declined.
Finally I am satisfied that consent to the application should be granted, as the appeal is an appeal under s8.7 of the Environmental Planning and Assessment Act 1979, the amended plans and that the conditions of consent as amended accord with my findings.

Orders:

Accordingly I make orders in chambers as follows: 1. The applicant is granted leave to rely on the amended plans filed with the Court on 19 June 2018; 2. The objection pursuant to cl 4.6 for a variation to the maximum building height standard under cl.4.3 of the Growth Centres SEPP is upheld; 3. The appeal is upheld; 4. Consent is granted to Development Application No. SPP-17-00012 at Lot 3, DP 135890, 876 Windsor Road, Rouse Hill, subject to conditions in Annexure A 5. The exhibits are returned with the exception of 5, E, the Class 1 Application and the plan listed in Condition 2.1.1 of Annexure A ……………. D M Dickson Commissioner of the Court Annexure A

Amendments 17 July 2018 - Correction to Hearing dates. 20 July 2018 - Addendum (including final orders) added to Judgment with Conditions of Consent attached as Annexure 'A' 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 2018

Is it established that compliance is unreasonable or unnecessary and there sufficient environmental planning grounds to justify the variation?

Wehbe v Pittwater Council [2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl. 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.
In this appeal the applicant primarily relies on Wehbe test 1 and seeks to establish that the objectives of the standard are achieved notwithstanding the variation.
The written request argues that strict compliance with the building height control is unreasonable and unnecessary in the circumstances for the following reasons:

the height variation is in part due to the manipulated land form on the existing site and strict compliance with the height control, when measured from this variable ground line, would result in an unintended planning outcome.
When considered against a more regularised ground line the proposed variations in height for the flat building are minor and balanced by areas which are under the height plane.
The height variation for the western townhouses is only the result of the need to fill the site to increase the level of some roads to achieve a satisfactory stormwater solution.
The townhouses will appear to be compliant in height against the new ground level and 'therefore the height variation will not result in any differing outcome when compared to that which is envisaged by the height control' (Exhibit E).
The proposed development is below the density control for the subject site.
The distribution of height across the site provides for a gradual increase in scale towards Windsor Road 'and achieves an appropriate visual transition to the higher density mixed use and commercial centre to the east of the site on the opposite side of Windsor Road' (Exhibit E).
A reduction in the height of the development to achieve a compliant building height would likely necessitate additional excavation and a lowering of the dwellings. The request argues that this would have a detrimental impact on relationship between the finished level of the public domain and the ground floor level of the apartments, which would be at least partly subterranean.
The solar analysis prepared illustrates that the proposed development will result in buildings and open space receiving solar access in accordance with the ADG,
'There are no unreasonable impacts in terms of overshadowing, views, visual and acoustic privacy to adjacent sites resulting from the proposed variation to the height control which would warrant strict compliance' (Exhibit E).
The proposed variations to height will have no impact upon views from Rouse Hill House and Farm as such views are obstructed by protected trees in Rouse Hill Regional Park.

The written request argues that there are sufficient environmental planning grounds to justify the variation: There is a significant variation to the existing landform on the site in the location of the proposed residential flat building due to the existence of a dam on the site which has been created by a significant manipulation of the original landform, such that there is a circa 3 metre high batter of soil to create the dam wall and conversely a circa 3 metre drop in level inside the dam The height variation is primarily due to this manipulated land form and strict compliance with a height control measured from this landform would result in an unintended planning outcome. In addition, it is noted that a 3 storey townhouse is capable of having floor to ceiling heights of less than 2 7 metres which means that it is easier to achieve compliance with the height control when compared with a 3 storey residential flat building which must have 2 7 metres floor to ceiling height for every level as well as the need for a lift overrun Accordingly, strict compliance with the height control would preclude the delivery of a 3 storey residential flat building and only allow townhouses to be erected on the site This is considered a sub-optimal outcome compared to the proposed development which seeks to deliver a diversity of housing product across the site comprising both townhouse and apartment dwelling typologies. When considered against an interpolated height plane, the proposed variation to height for the flat building is minor and the result of the cross fall across the site as well as the need to achieve minimum floor to ceiling heights for the apartments and an appropriate ground floor plane without subterranean apartments. The height variation for the western townhouses is only the result of the need to fill the site to increase the level of some of the roads to achieve a satisfactory stormwater solution These townhouses appear as compliant when considered against the new ground level and therefore the height variation will not result in any differing outcome when compared to that which is envisaged by the height control. The variation does not result in adverse overshadowing impacts and the solar analysis prepared by Rothelowman Architects demonstrates that the proposed development will result in buildings and open space areas receiving solar access in accordance with minimum requirements of the Apartment Design Guide and Blacktown City Council Growth Centres Precinct Development Control Plan 2010. (Exhibit E)
The preceding arguments in support of the variation are not contended by the Council.
Whilst the Court is not bound to accept the agreed position of the parties I find that I can be satisfied that the applicant's written request adequately demonstrates the matters in cl. 4.6(3)(a)(i). I accept the reasoning of Mr Sutherland that the objectives of the standard are achieved notwithstanding the noncompliance and I accept his reasoning at paragraph [39]. I am satisfied on the basis of the evidence that it is unnecessary for the development to be compliant with the height standard for these objectives to be achieved.

(2009) 169 LGERA 153

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)

Cited By (3)