COMMISSIONER: South Coast Retirement Unit Company Pty Ltd (the Applicant) has appealed the deemed refusal by Parkes Shire Council (the Respondent) of its development application DA 2019/0096 seeking consent for the subdivision of five lots into 34 residential lots and one lot for the purpose of a public drainage reserve (the Proposed Development") at the corner of Coleman Road and Hardwood Road, Parkes also identified as lots 205, 484, 485, 486 and 487 in DP 750152, and Lot 1 in in DP 820910 (the Subject Site).
The Applicant also proposes certain road construction works and subsurface stormwater drainage and sewerage infrastructure to service the proposed future residential lots.
There are no existing buildings on the Subject Site. The Applicant proposes that future access to the subdivide land would be via a new cul-de-sac driveway off Coleman Road. Additional upgrading of both Coleman Road and Harwood Street to facilitate access to the Subject Site is proposed by the Applicant.
The Applicant's development application had been notified as required under cl 77 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation).
The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court's jurisdiction. The hearing is conducted pursuant to s 34C of the Land and Environment Court Act 1979 (the LEC Act),
The Subject Site is zoned R1 General Residential under the provisions of cl 2.3 of Parkes Local Environmental Plan 2012 (PLEP) and the Proposed Development is permissible with consent in that zone.
Due to the COVID-19 pandemic, and consistent with the Court's COVID-19 Arrangements Policy no inspection was undertaken of the Subject Site and the hearing was conducted by Microsoft Teams. There were no objectors who sought to make submissions in relation to the appeal.
At the commencement of the hearing the Applicant sought to rely on amended plans that were said to be responsive to contentions raised by the Respondent, as a consequence of which:
1. the Court noted that the Respondent, being the consent authority for the purposes of cl 55(1) of the EP&A Regulation, agreed to the Applicant amending the development application, to the extent that this is required in relation to its reliance on the following further or amended plans:
1. site plan dated 17 May 2020;
2. Sewer and Stormwater Plan C dated 26 October 2021: Plan 6 Amended Indicative Sewer and Stormwater Plan;
3. Sewer and Stormwater Plan A: Copy of existing Parkes Shire Council Sewer Diagram;
4. Sewer and Stormwater Plan B dated 8 June 2021: Parkes Shire Council Sewer Diagram with new proposed sewer line marked-up; and
5. attachments D and E to the joint report of the contamination experts filed 13 October 2021, being the preliminary site investigation prepared by Foundation Earth Sciences dated 9 August 2021 and the remediation action plan prepared by Foundation Earth Sciences dated 9 August 2021;
1. the Court further noted the advice of the Parties that the NSW Department of Planning had amended the NSW Planning Portal to facilitate the uploading of amendments to development applications by Applicants in proceedings before the Land and Environment Court, and consequently;
2. the Court directed that:
1. the Applicant is to lodge the amendment of its development application in the NSW Planning Portal within 7 days of the date of this direction made at the hearing and is notify the Respondent after it has been lodged;
2. the Applicant is to file a copy of the amended application within 7 days after the amendment has been lodged on the NSW Planning Portal;
3. in the event that the Applicant is unable to lodge the amended application on the NSW Planning Portal as directed at (a) above, the Applicant is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the direction made at the hearing and is to request the matter to be relisted for further directions.
The Applicant advised that it would accept an order requiring it to pay the Respondent's costs thrown away in dealing the amended plans in the amount of $1,000, pursuant to s 8.15(3) of the EP&A Act.
As a consequence of the Applicant's proposed amendments to its development application and its other amended plans:
1. the Respondent confirmed that contentions concerning the provision of owners consent and the requirement for a site plan were no longer pressed;
2. the Parties advised that as a consequence of a proposed condition of consent (proposed condition 26) a contention concerning the provision of essential services was resolved; and
3. the Parties confirmed that the remaining contentions in the appeal concerned the following:
1. whether the Applicant had satisfied the provisions of cl 7 of State Environmental Planning Policy No 55 - Remediation of Land (SEPP55), relying on:
1. a Preliminary Site Investigation (PSI) report prepared by Foundation Earth Sciences and dated August 2021; and
2. a Remediation Action Plan, also prepared by Foundation Earth Sciences and dated August 2021;
1. whether the Respondent's proposal for the imposition of a deferred commencement condition requiring completion of a Detailed Site Investigation (DSI) report and an amended RAP, should be adopted.
The Court was assisted in its consideration of these questions by the Parties land contamination experts, Mr Jason Clay, for the Respondent, and Mr Ben Buckley, for the Applicant.
The Applicant noted that within the joint report of the contaminated land experts, the Respondent's expert, Mr Clay, had:
1. observed that a former brick pit on the Subject Site had not been fully characterised and its 'areal" (sic) extent had not been delineated nor its depth determined, which it did not dispute; but
2. objected to the inclusion of certain further commentary that it said was imprecise and/or speculative and sought to have this commentary struck through.
Following the provisions of submissions from both Parties in relation to this matter, I determined that, for reasons provided by the Respondent, which I adopted, the commentary to which the Applicant objected should indeed not be read, and it was struck through in the joint expert report that formed Exhibit 2.
[2]
Environmental Planning and Assessment Act 1979
The objects of the EP&A Act are as follows:
(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources,
(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,
(c) to promote the orderly and economic use and development of land,
(d) to promote the delivery and maintenance of affordable housing,
(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,
(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),
(g) to promote good design and amenity of the built environment,
(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,
(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,
(j) to provide increased opportunity for community participation in environmental planning and assessment.
[3]
State Environmental Planning Policy No 55 - Remediation of Land
Clause 7 of SEPP55 provides as follows:
(1) A consent authority must not consent to the carrying out of any development on land unless -
(a) it has considered whether the land is contaminated, and
(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and
(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.
(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.
(4) The land concerned is -
(a) land that is within an investigation area,
(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,
(c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital - land -
(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and
(ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).
[4]
Parkes Local Environmental Plan 2012
The following provisions of PLEP are of relevance in this appeal:
1. Clause 2.3 concerning zone objectives and land use table, and in relation to which:
1. subcl 2.3(2) requires that the consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone; and
2. the Subject Site is zoned R1 General Residential, the objectives of which are:
To provide for the housing needs of the community.
To provide for a variety of housing types and densities.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
To provide attractive, affordable, well located and market-responsive residential land.
To ensure that any non-residential land uses permitted within the zone are compatible with the amenity of the area.
To ensure that housing densities are broadly concentrated in locations accessible to public transport, employment, services and facilities.
1. Clause 2.6, which confirms that land to which PLEP applies may be subdivided with consent;
2. Clause 4.1, which establishes minimum lot size development standards, and with which the Proposed Development complies;
3. Clause 6.7, which concerns the provision of essential services, and:
1. which provides that development consent must not be granted to development unless the consent authority is satisfied that the services identified in the clause are available or that adequate arrangements have been made to make them available when required;
2. the Applicant's Proposed Development, as amended, satisfies the provisions of this clause.
[5]
Managing Land - Contamination Planning Guidelines SEPP 55-Remediation of Land
The Contaminated Planning Guidelines referred to within the provisions of cl 7(2) of SEPP55, are those produced by the NSW Department of Urban Affairs and Planning with the NSW Environmental Planning Authority (EPA), and in relation to the preparation of a PSI:
1. section 3.4 states that the objectives of a PSI are as follows:
"The main objectives of a preliminary investigation are to identify any past or present potentially contaminating activities, provide a preliminary assessment of any site contamination and, if required, provide a basis for a more detailed investigation. A preliminary investigation is not necessary where contamination is not an issue."
1. Section 3.5 states that the information to be provided within a PSI is as follows:
"The preliminary investigation contains a detailed appraisal of the site's history and a report based on a visual site inspection and assessment. It is important that all relevant information about the site is assessed to determine the potential for site contamination. Where contaminating activities are suspected to have had an impact on the land, sampling and analysis will be required to confirm and support any conclusion reached from the site history appraisal. Through the assessment of sampling results, an assessment of contamination can be established."
[6]
Contentions
The remaining contentions in the appeal were identified above (at [10]) and are of narrow compass. They require the resolution of two questions:
1. has the Applicant satisfied the provisions of cl 7 of SEPP55?
2. should the Respondent's proposed imposition of a deferred commencement condition be adopted?
The Parties also provided proposed differing conditions of consent, along with submissions, that required resolution should the Court be minded to grant consent to the Applicant's Proposed Development, and these maters will also be considered following my consideration of the questions requiring resolution in the appeal.
[7]
Has the Applicant satisfied the provisions of cl 7 of SEPP55?
The Respondent had contended that the Applicant had not provided sufficient information to enable the consent authority, or the Court on appeal, to confirm that the matters in cl 7(1) of SEPP55 have been satisfied.
The provisions of cl 7 of SEPP55 were provided above (at [15]), and require that a consent authority or the Court on appeal must not grant consent unless the provisions of cl 7(1) are addressed, and:
1. the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines have been considered in circumstances where a change of land use is proposed, in circumstances identified within cl 7(2) of SEPP55; and
2. as provided within cl 7(3) of SEPP55, the preliminary investigation must be carried out by the Applicant and a copy of the investigation report must be provided to the consent authority or the Court on appeal.
The lots constituting the Subject Site had historically been owned by private individuals, the public trustee or had been crown land prior to their purchase by the Applicant in 2016. The Applicant's PSI had concluded that prior to its purchase by the Applicant the Subject site had been largely vacant from 1993 to 2016 and prior to that and between 1973 and 1993 had occasionally been used for the storage of equipment and cars.
The Respondent had also contended that a portion of the Subject Site was being used as a quarry, and was subsequently filled, and it said that its proposed future use for residential purposes constituted a change of land use of the type referred to in in cl 7(4)(b) of SEPP55.
Consistent with the provisions of cl 7(2) of SEPP55, the Applicant had commissioned a PSI, prepared by Foundation Earth Sciences, and this report had been provided to the Respondent and it was tabled as evidence at the hearing.
The author of the PSI report, Mr Ben Buckley, who was also the Applicant's contaminated land expert in the appeal, had confirmed that the report was prepared in accordance with the NSW EPA Consultants Reporting on Contaminated Land: Contaminated Land Guidelines (2020).
The PSI report includes a detailed appraisal of the Subject Site's history, including for each of its constituent lots, and had been prepared based on a visual inspection of the Subject Site by Mr Buckley,
The PSI report also included within its section 13 an assessment of contamination of the Subject Site, including in relation to testing results in the area identified by the respondent as having been the site of a potential quarry and subsequent unidentified fill material.
The report's section 14 provided a discussion of the assessment findings, and its section 15 provided the author's conclusions and recommendations. These included that the Subject Site can be made suitable for the Proposed Development, which is for subdivision for residential purposes along with road construction and the provisions of certain infrastructure to support its intended residential use, subject to:
1. the preparation of a RAP to manage identified environmental concerns and data gaps; and
2. any soil requiring removal from the Subject Site as part of future site works should be classified in accordance with the "Waste Classification Guidelines, Part 1: Classifying Waste" produced by the NSW EPA in 2014.
The Applicant had also commissioned Foundation Earth Sciences to prepare a RAP, and this document was also tendered into evidence at the hearing. The RAP concluded that the Subject Site will be made suitable for its intended future use under the Proposed Development subject to completion of the detailed remediation and validation works recommended in the RAP.
The conclusions of the Applicant's PSI and RAP were confirmed by the Parties' contaminated land experts, who agreed within their joint expert report tendered into evidence during the hearing, that the Subject Site can be made suitable for its intended use as proposed by the Applicant.
The Respondent submitted that, in light of the Applicant's PSI and RAP, and the agreement of the experts that the Subject Site can be made suitable for its intended use as proposed by the Applicant, it no longer pressed its contention that the Proposed Development should be refused on the grounds of contamination. Rather, the Respondent said that the Applicant's development application may be approved subject to:
1. the Court being satisfied as to the jurisdictional and merits considerations; and
2. the imposition of its proposed conditions of consent.
Having considered the submissions of the Parties and the evidence of the Parties' contaminated land experts:
1. I am satisfied that the Applicant's PSI has been prepared in accordance with the contaminated land planning guidelines, as required under cl 7(2) of SEP55 because:
1. the PSI contained a detailed appraisal of the site's history;
2. the PSI report was based on a visual inspection of the Subject Site and included an assessment as required by the guidelines;
3. as contaminating activities were suspected to have had an impact on the Subject Site, the Applicant's expert had undertaken sampling and analysis to confirm and support conclusions reached from the appraisal of the Subject Site's history;
4. the PSI provides an assessment of contamination on the Subject Site that, in my assessment, is sufficient for the purposes of a PSI;
1. the Applicant's PSI has been provided to the Respondent, and to the Court on appeal, in satisfaction of the provisions of cl 7(3) of SEPP55;
2. having considered the Applicant's PSI report, including its findings, conclusions and recommendations, and noting that a RAP has been prepared by the Applicant, I am satisfied that he provisions of cl 7(1) of SEPP55 are met and that:
1. the Subject Site will be suitable after remediation for the Proposed Development to be carried out; and
2. the land will be remediated before its intended residential and other uses as proposed within the Proposed Development.
1. I am satisfied that jurisdictional prerequisites within cl 7 of SEPP55 are met, and the Court's powers to determine the appeal are enlivened.
[8]
Should the Respondent's proposed imposition of a deferred commencement condition be adopted?
The Respondent had proposed that if the Court were minded to grant consent to the Applicant's Proposed Development, a deferred commencement condition should be imposed requiring the completion and approval of a DSI and updated RAP prior to the consent becoming operational.
The Respondent submitted that the imposition of a deferred commencement condition was justified on the following grounds:
1. the conditions recommended by the Parties' contamination land experts at paragraph 6 of the Joint Report included a deferred commencement condition in similar terms to those proposed by the Respondent;
2. the imposition of the deferred commencement condition will give the Court a greater degree of confidence that the site will be suitable for the proposed development following remediation for the purposes of cl 7(1)(b) of SEPP55 and s 4.15(1)(c) of the EPA Act as:
1. the imposition of a deferred commencement condition will best ensure that the soils on the site are not disturbed or moved until such time as the additional testing recommended in the RAP to delineate the former quarry area has been carried out, noting that the Applicant's expert, Mr Buckley agreed in cross-examination that it would be preferable for the delineation testing to be carried out before works commence on the site;
2. earthworks which have the effect of moving soils around may make delineating the former quarry area more difficult and have the potential to undermine the sampling and findings of the DSI and updated RAP, as potentially contaminated fill material may be inadvertently moved around the site during such works;
3. under the Applicant's proposed conditions such earthworks would be permitted pursuant to the issue of a subdivision works certificate prior to, and potentially concurrent with, the further DSI and RAP investigations required;
4. when considering the suitability of a site for development, the risk to health and the environment from contamination during the construction and operation of the development must be considered;
5. the Applicant's PSI had stated that "there is a risk to excavation/construction/maintenance workers conducting activities at the site, who may potentially be exposed to [contaminants of potential concern] through direct contact with impacted soils, vapour intrusion and/or groundwater present within excavations and/or inhalation of dusts/fibres associated with impacted soils"; and
6. the extent of that risk should be adequately investigated before the consent becomes operational and works carried out on Subject Site. This will ensure that appropriate measures can be implemented during construction to protect workers from the risks of exposure to potentially harmful contaminants and to reduce the risk of environmental harm from the inadvertent movement of potentially contaminated materials on and from the Subject Site.
1. imposing a deferred commencement condition best aligns with the precautionary approach advocated within the guidelines in the publication Managing Contaminated Land because:
1. the guidelines state that planning authorities should adopt a cautionary approach when exercising a planning function and the object of this approach is to "enable any land contamination issues to be identified and dealt with at an early stage in the planning process in order to prevent harm and reduce delays and costs";
2. requiring the preparation of a DSI and updated RAP before the consent becomes operational will ensure that contamination issues are identified and a remediation strategy to deal with them developed at the earliest possible stage of the development;
3. this approach would avoid potential delays to the development as a result of "unexpected finds";
4. the Applicant's expert had agreed in cross-examination that carrying out a DSI would reduce the risks of unexpected finds, and therefore reduce delays during the construction period;
1. where documents are submitted in support of a development application are inadequate or incomplete, it is open to, and reasonable for, the consent authority to impose a deferred commencement condition to remedy the inadequacy: SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [14] - [16], and [82];
2. there are numerous instances where the Court has imposed deferred commencement conditions requiring the provision of additional information regarding contamination where the information available at the time of determination is inadequate: see for example Leice Pty Ltd v City of Canada Bay Council [2021] NSWLEC 1627 and 215 - 231 Kingsgrove Road Pty Ltd v Hurstville City Council [2009] NSWLEC 1236;
3. depending on the findings of any DSI and updated RAP, there is a risk that the costs and practicalities associated with remediation will make the development impractical or uneconomical, which would prevent a person with the benefit of the consent from acting on it;
4. a deferred commencement condition would ensure that, if the remediation of the site is uneconomical or impractical, the consent will eventually lapse rather than sitting in abeyance (assuming it is physically commenced); and
5. as part of the Proposed Development, the Council will ultimately take ownership of the land forming part of the road to be constructed by the Applicant as well as the proposed drainage reserve (Lot 35). In circumstances where the former quarry area may extend over this area, it is reasonable for the Council to require the applicant to properly investigate the potential contamination of this area and provide a suitable remediation strategy for Council approval before the consent becomes operative.
The Applicant submitted that the imposition of a deferred commencement condition was not necessary to achieve the outcomes identified by the Respondent in its submissions and it was normal practice within the Court that conditions requiring the completion and approval of a DSI and an updated RAP were imposed as operational conditions.
The Applicant further submitted that it would accept the imposition of a condition requiring the completion and approval of a DSI and updated RAP prior to the issue of an subdivision works certificate, and that this would ensure that the plan for remediation of the Subject Site would be available and approved prior to any work commencing on the Subject Site.
Having considered the submissions of the Parties in relation to the imposition of a condition concerning the preparation and approval of a DSI and updated RAP, I am satisfied that the Applicant's proposal that such a condition be imposed as requiring completion prior to the issue of any subdivision works certificate should be adopted for the reasons it provided, which I adopt.
I agree with the Applicant that matters relating to the management of potential timing and financial risks associated with any remediation are matters for the Applicant in the proceedings, and the Applicant has confirmed that it accepts that the DSI and amended RAP should be completed and approved prior to the issue of a subdivision works certificate.
Further, I am satisfied that the imposition of a condition requiring that these works be completed prior to the issue of a subdivision works certificate would achieve the outcomes sought by the Respondent including that:
1. the soils on the site would not be disturbed or moved until such time as the additional testing recommended in the RAP to delineate the former quarry area has been carried out;
2. the risk to health and the environment from contamination during the construction and operation of the development will be considered prior to works commencing;
3. imposing the condition as requiring completion prior to the issue of a subdivision works certificate would ensure that it enables any land contamination issues to be identified and dealt with at an early stage in the planning process in order to prevent harm and reduce delays and costs which in my assessment is consistent with the precautionary approach advocated within the guidelines in "Managing Land Contamination"; and
4. requiring that the Applicant properly investigate the potential contamination of the Subject Site, including the potential quarry site, would provide for a suitable remediation strategy to be approved before any risk arises to those who may need to undertake work on the Subject Site.
[9]
Conditions of consent
The Respondent provided its proposed conditions of consent following the hearing at the conclusion of which I provided findings in relation to the above two questions requiring resolution in the appeal, and reserved my reasons for those findings.
The Parties did not agree in relation to the wording and notations associated with proposed conditions 5, 21 and 38, and my consideration of these matters assisted by the Parties' submissions, is provided below.
[10]
Proposed Condition 5
The Respondent's proposed condition 5 would require that:
"5. The site auditor's certification, in accordance with condition 4, is to be submitted with the DSI report and the Amended RAP to Parkes Shire Council's Director, Planning and Community for approval. Written notice of the approval is to be obtained prior to the issue of the subdivision works certificate.
Note: The approval required by condition 5 cannot be given by a private certifier under clause 161(1) of the Environmental Planning and Assessment Regulation 2000.."
The Applicant submitted that:
1. this note was also not proposed in the conditions that were tendered during the hearing;
2. the new note to condition 5:
1. is not appropriate as it seeks to redraft the terms of s 161(1) of the EP&A Regulation and a condition of consent cannot purport to change what a Regulation requires;
2. is not appropriate because either the conditions are an operative part of the consent imposed pursuant to the provisions of s 4.17 of the EP&A Act, or they are not, and if they are not they have no place within the grant of consent;
3. would be beyond power and inappropriate for the Court to include;
4. is not properly part of conditions of consent and should be deleted.
The Respondent submitted that:
1. the proposed amendments to proposed condition 5 were flagged at the hearing and provided to avoid any misapprehension that the Detailed Site Investigation Report, the Amended Remedial Action Plan and Site Auditor's Certification required under proposed condition 4 can be provided to a private certifier in satisfaction of that condition, rather than the Council, in reliance on cl 161 of the EP&A Regulation.
2. in the Council's view the proposed note will reduce the risk that a subdivision works certificate will be invalidly issued on the mistaken understanding that cl 161 applies in the circumstances, noting that contamination investigation work and remediation work are not matters identified in cl 161(1) in respect of which a certifier, rather than the council, can be satisfied in accordance with cl 161(2).
3. in this regard it is noted that similar notes have been included in conditions previously imposed by the Court, see for example Zaki v Ku-ring-gai Council [2019] NSWLEC 1614 (Conditions 32A(h) and 75), and hereafter referred to as "Zaki".
Having considered the submissions of the Parties:
1. I accept that words similar to those contained within the Respondent's proposed note to condition 5 have been included in conditions previously imposed by the Court, including in conditions associated with the consent granted in Zaki. However, in these instances the wording was not contained in a note but formed part of the condition.
2. the wording of conditions in Zaki identified that the reason that a private certifier was unable to the provide the approval to the documents referenced in the condition was because cl 161(1) of the EP&A Regulation stated that:
1. the approval by a private certifier could only be provided for specific plans and specifications for certain kinds of work to be carried out in connection with the erection of a building or the subdivision of land; and
2. the plans and specifications identified in the condition did not relate to the list of works identified in cl 161(1) of the EP&A Regulation;
1. contrary to the submission of the Applicant, I am satisfied that the intent of the note proposed by the Respondent in relation to its proposed condition 5 is not to change the intent of the provisions of cl 161 of the EP&A Regulation but rather is to alert the Applicant to the fact the plans and specifications required to be prepared under proposed condition 4 to which proposed condition 5 relates, are not included in the list of items in cl 161(1) that can be approved by a private certifier;
2. consistent with my observation (at [(3)]), and also consistent with the form of conditions of consent to which the Respondent drew the Court's attention in Zaki, I have determined that the form of condition 5 to be imposed with the grant of consent in this appeal should read:
"5. The site auditor's certification, in accordance with condition 4, is to be submitted with the DSI report and the Amended RAP to Parkes Shire Council's Director, Planning and Community for approval. Written notice of the approval is to be obtained prior to the issue of the subdivision works certificate. The approval required by this condition is unable to be provided by a private certifier under clause 161 of the Environmental Planning and Assessment Regulation 2000 as neither a detailed site investigation nor a remediation action plan prepared for the purposes of the remediation of contaminated land is a matter listed in cl 161(1) as being capable being satisfied by a certifier pursuant to cl 1651(2) of the EP&A Regulation."
[11]
Proposed condition 21
The Respondent's proposed condition 21 would require that:
"21. On completion of the approved remediation works and prior to the issue of a subdivision certificate, a Section A Site Audit Statement must be obtained from an NSW Environment Protection Authority accredited Site Auditor and submitted to the Council's Director Planning and Community. The Site Audit Statement must confirm that the site has been remediated in accordance with the approved Amended RAP and that the site is suitable for the development."
In its submissions, the Applicant stated that:
1. the Respondent had modified proposed condition 21 of the version of the conditions that was before the Court at the hearing to replace the originally drafted phrase "suitable for its approved use" with "suitable for the development";
2. it is not clear why the change has been made or what "the development" is referring to, when "suitable for its approved use" was already clear.
In its submissions, the Respondent said that:
1. contrary to the assertion by the Applicant in their correspondence of today's date, Condition 21 of the Respondents conditions of consent tendered at the hearing (Exhibit 4) did use the words "suitable for the development";
2. the practical effect of condition 21 will remain the same regardless of whether the words "suitable for the development" and "suitable for the approved use" are used, however, in the Council's submission the use of the words "suitable for the development" is more appropriate and accurate as:
1. the words "suitable for the development" are more consistent with the language of s 4.15(1)(c) of the EP&A Act and cl 7 of SEPP55 which requires the consent authority to consider the suitability of the site for the development and to be satisfied that the site will be suitable for the purpose for which the development is proposed to be carried out; and
2. there is a long line of authority which provides that subdivision does not constitute a use of land: see Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [28].
Notwithstanding these submissions, the Parties subsequently confirmed that they had reached agreement in relation the wording of proposed condition 21 as follows:
"On completion of the approved remediation works and prior to the issue of a subdivision certificate, a Section A Site Audit Statement must be obtained from a NSW Environment Protection Authority accredited Site Auditor and submitted to the Council's Director Planning and Community. The Site Audit Statement must confirm that the site has been remediated in accordance with the approved Amended RAP and that:
i. the 34 residential lots are suitable for residential use;
ii. the drainage reserve lot is suitable for use as a drainage reserve;
iii. the road reserve within the subject site is suitable for use as a public road."
I am satisfied that the Parties proposed and agreed condition 21 should be imposed with the grant of consent to the Applicant's development application.
[12]
Proposed condition 38
The Respondent has proposed condition 38 which requires that:
"38. The proposed pedestrian access marked "3.4 wide" and forming part of Lot 35 on the plan titled "Proposed Lot Layout" prepared by Casey Surveying and Design dated 28 October 2019 (the access) is to be removed. Prior to the issue of a subdivision certificate, an amended lot layout plan is to be provided to the Council for approval showing the area of land identified as forming the access incorporated into the site area of Lot 28 or 29, or a combination of both. An easement to drain sewage and an easement to drain water 3m wide is to be registered to support the provision of the proposed sewer and stormwater drainage infrastructure in lots 28 and 29 as shown in the amended sewer and stormwater plan prepared by Casey Surveying and Design dated 26 October 2021."
The Applicant has submitted that proposed condition 38 should be deleted because:
1. the condition is not the form of the condition that was filed and served two days before the hearing, or tendered during the hearing;
2. insofar as it purports to delete, by condition, a feature of the development applied for, the condition is inappropriate;
3. if issue was taken with the pedestrian access being approved it should have been the subject of a contention so that the Applicant could bring forward evidence as to why it remains appropriate, and not simply deleted through the imposition of a condition of consent.
The Respondent submitted that:
1. an objection to Condition 38 was raised during the hearing, and the Respondent was given leave to seek instructions as to whether that condition was pressed, and if it was, to provide short submissions in support of that condition, which remains pressed;
2. while the terms of proposed condition 38 have been amended to make the obligation imposed by the condition clearer, its practical effect has not changed since the version of the Respondent's conditions tendered at the hearing (Exhibit 4);
3. the condition is required to ensure consistency with the guidance on crime prevention through environmental design principles contained in the publication entitled "Crime prevention and the assessment of development applications: Guidelines under section 79C of the Environmental Planning and Assessment Act 1979" (the Crime Prevention Guidelines);
4. the intention of the condition is to remove the potential for an unlit corridor which would become dark with no obvious natural surveillance therefore, in the Respondent's submission, creating a potential security and harm risk;
5. the provision of boundary fencing on proposed Lots 29 and 28 would create a compromised public corridor and there is no control over access, casual use, and occupation of this area;
6. the access pathway would lead to a drainage reserve which can hold significant water and pose a safety risk in terms of potential drowning and generation of mosquitoes, pests and vermin; and
7. removal of the pedestrian access, and the creation of easements for drainage and sewer over Lots 28 and 29, will not impact the functioning of the proposed drainage reserve given that the position of the infrastructure will not change.
In reply to these submissions, the Applicant stated that there are reasons of merit requiring that there should be access and egress to/from the drainage reserve to be created in the south eastern corner of the proposed subdivision, as follows:
1. first, it is desirable that there be access to and from the reserve for residents of the subdivision. The owners of lots 28, 29, 32, 33 and 34 have rear fences adjoining the drainage reserve. The Applicant also noted that:
1. without the pathway, the only entrance or exit point would be by way of the narrow strip of land directly adjacent to Ken Payne Place (which is currently fenced, noting the Respondent's position that the extension of Ken Payne Place along the eastern boundary of the proposed reserve is not a road, but is a Crown Road, which is also currently fenced);
2. it is undesirable to have children living in the homes around the reserve walking around the block to enter the reserve of Ken Payne Place to retrieve toys, balls or the like;
3. it is also undesirable to only have a single small exit to the reserve to the south if anybody within the reserve needs to exit in an emergency. If the exit to the south is blocked, the pathway to the north provides an additional means of egress from the reserve (the other alternative would be to climb over fences and it is submitted this is not appropriate);
4. contrary to Respondent's submissions, is also desirable for residents of the subdivision to have access to the drainage reserve for the purpose of avoiding crime (a proper reading of the guidelines which Council refers suggest more access rather than less access to public spaces is a good thing to discourage crime);
1. secondly, the pathway maintains a natural overland flow path for any excess stormwater from the cul-de-sac, noting that the general grade of the Subject Site is from north-west dropping down to the south-east;
2. thirdly, while the area is to be a drainage reserve, the Applicant considers it would be desirable to plant some trees within it so that it provides an additional area of natural open-space and in relation to the drainage reserve, with the Applicant also stating that:
1. it rejected the Respondent's submission, for which it said there is no evidence, that the drainage reserve would pose safety risks in terms of potential drownings, generation of mosquitoes, pests and vermin because in the ordinary course water in the reserve will be absorbed and not remain stagnant in the reserve;
2. if the Respondent disagreed that there should be public access to the reserve because of an alleged risk, as asserted, it was open to Respondent to gate the northern pathway entry and the southern egress to Ken Payne Place such that emergency egress could still be achieved through the gates, if required, while maintaining the natural overland flow path;
3. it is not appropriate that the pathway be removed altogether;
1. fourthly, as to the crime prevention question:
1. the Applicant said that it understood that the Respondent's concerns were that:
1. the proposed access pathway would provide the potential for an unlit corridor which would become dark with no obvious natural surveillance and, in the Respondent's submission, this would create a potential security and harm risk; and
2. the provision of boundary fencing [with the pathway] on proposed Lots 29 and 28 would create a compromised public corridor, and there would be no control over access, casual use, and occupation of this area;
1. the Applicant noted that the proposed pathway is located in a suburb in the rural Central West town of Parkes and it submitted that no evidence had been tendered that this the pathway would become a "compromised…corridor" that would be susceptible to the risk of crime in the way the Respondent had suggested;
2. the Applicant also noted that its proposed drainage reserve was not proposed, by either the Respondent or the Applicant, to include lighting in response to the Respondent's concerns in relation to user safety;
3. as the drainage reserve will not be lit, the access way achieves the two other objectives set out in respect of "surveillance" at p 4 of the Crime Prevention Guidelines, being:
1. the accessway is proposed to be straight and so there is a direct sightline between the unnamed road and the drainage reserve along the accessway (it is not curved or otherwise designed with barriers that would enable people to hide); and
2. no landscaping is proposed along the accessway itself so that it will not create the opportunity for anybody to hide;
1. including the accessway (and its straight design without natural barriers) is desirable having regard to the "access control" and "territorial reinforcement" considerations at p 5 of the Crime Prevention Guidelines;
2. without the accessway, the drainage reserve could be perceived or used as a hostile area or "compound" in the way suggested by the access control part of the guidelines - whereas having access and egress to the reserve means this is more likely to be perceived as a public space for which people "feel some responsibility for its use and condition";
3. as proposed the accessway improves, rather than detracts, from the safety of the drainage reserve, in that it makes people accessing the drainage reserve more observable and provides more means of access to the public reserve. People can already access the rear fences of Lots 28, 29, 32, 33 and 34 from the drainage reserve and providing more (rather than less) access to the drainage reserve makes the drainage reserve safer in the way contemplated in the "access control" provision of the Crime Prevention guidelines.
Having considered the submissions of the Parties in relation to the form of proposed condition 38, I prefer the submissions of the Applicant in relation to the risk of crime and other risks associated with the proposed access way, and the desirability of its removal from the Proposed Development, for the reasons provided by the Applicant, which I adopt.
The Parties have confirmed that if the Court adopted the submissions of the Applicant in relation to proposed condition 38, and so did not require the removal of the proposed access pathway, then the entire condition, including requirements with respect to an easement over that land, should be deleted.
[13]
Conclusions
On the basis of my assessment and conclusions above, I am satisfied that the Applicant's development application should be the determined by the grant of consent because:
1. the Court's jurisdiction to determine the appeal has been confirmed, noting that, in relation to this appeal, the provisions of cl 7 of SEPP55 have been satisfied for reasons provided above (at [32]);
2. all other contentions in the appeal have been resolved through the Applicant's provision of amended plans and other documents;
All other jurisdictional matters that must be satisfied in order that the Court's powers to grant consent are enlivened have been so satisfied, including the provisions of PLEP, including those in:
1. cl 2.3 which requires that the consent authority, or the Court on appeal, should have regard to the objectives of the R1 General Residential zoning of the Subject Site (see above (at [16(1)]), and I have had regard to those objectives determining the Applicant's development application by the grant of consent, subject to conditions;
2. cl 6.7 concerning essential services, as discussed above (at [10(2)]).
The Parties have confirmed that the directions made above (at [8(3)]) have been completed. Further, the differences between the Parties' respective proposed conditions of consent have been resolved so that conditions can be imposed reflecting the findings in this judgment above (at [32], [37], [39], [45], [50] and [56]), and final orders can now be made to dispose of the appeal.
[14]
Orders
The Court orders:
1. the Applicant is pay the Respondent's costs in the amount of $1,000 pursuant to the provisions of s 8.15(3) of the EP&A Act;
2. the appeal is upheld;
3. the Applicant's development application 2019/0096 is determined by the grant of consent, subject to the conditions at Annexure 'A' to this judgment;
4. the exhibits are returned, except exhibits A, B, C and 1.
[15]
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Decision last updated: 24 November 2021