Squadron Pty Ltd AFT Garrison Unity Trust v Wyong Shire Council

MacDonald v Mosman Council [1999] 105 LGERA ; CASES CITED: Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70; PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney [2005] NSWLEC 41; ATL Australia Ltd v Willoughby Council [2000] NSWLEC 244

APPLICANT Mr M. Frazer, barrister instructed by P J Donnellan & Co LEGAL REPRESENTATIVES:

RESPONDENT Mr Brown, solicitor of Home Wilkinson Lowry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11230 of 2006 Squadron Pty Ltd AFT Garrison Unity Trust 11231 of 2006 v Wyong Shire Council

JUDGMENT Background. 1 The proceedings comprise the following two appeals relative to development applications for subdivision and dual occupancy development at 2 - 4 Geoffrey Road, Chittaway Point.

2 The subject site is known as Lot 2 in DP 602823 and it has a total area of approximately 2194 sq m. It is situated on the southern side of Geoffrey Road at the corner of Wyong Road and it backs onto Ourimbah Creek, where it has a frontage of approximately 35 m. There is a services/corridor easement along part of its Wyong Road frontage.

3 The site is level for the first part from Geoffrey Road and then falls towards Ourimbah Creek. The rear part of the site is subject to flooding. A foreshore building line applies to this frontage of the site.

4 An older style single story dwelling is erected on the higher part of the site.

The Proposals. 5 The overall proposal involves: i) The subdivision of the land to create a new rear hatchet-shaped allotment (Lot B) with a total effective area of approximately 1430 sq m, connected to Geoffrey Road via access handle 5.79 m wide. Also, the creation of a new Geoffrey Road frontage Lot A, with an effective area of 760 sq m. This 2-lot subdivision was granted conditional consent by Council on 22 December 2005. The conditions of consent designated a building footprint area on the higher part of Lot B, restricting building within the more susceptible lower, flood prone area of the site and required the imposition of restrictive covenants confirming this requirement. ii) The construction of a detached dual occupancy development on the new Lot A, designated Units 2A and 2B. Also, the construction of an attached dual occupancy development on the new Lot B designated Units 4A and 4B. This application was refused by Council for a number of reasons including inadequate detailing of the proposal, unsatisfactory design elements, flooding liability and unsatisfactory noise impact arising from traffic on Wyong Road. The applicant subsequently addressed a number of these concerns by way of amended plans, which provided for the finished floor levels (FFL) to be 500 mm above the design planning level (1% AEP flood level), together with the structure being elevated to allow floodwater passage under the structure in major flood events. The Appeals. 6 The appeals then concern: i) Appeal No 11231/06 (Subdivision ); a s96 appeal against council's refusal to modify the following conditions: 30. The registration of the necessary restrictions as user. 31. The plan of subdivision and s 88B instrument shall establish the following restrictive covenants; with Council having the benefit of these covenants and having sole authority to release vary or modify these covenants. Wherever possible the extent of the land affected by these covenants shall be defined by bearings and distances shown on the plan of subdivision. o Prohibiting the erection of any dwelling except within the nominated building envelope as shown on the Approved Development Plan for proposed Lot B. o Prohibiting direct access to and from Wyong Road. o Any future development on Lot B shall ensure that: i. The underside of the building is to be open with a minimum of obstructions in the direction of flow. ii. The provision to Council of a satisfactory structural certificate from a qualified engineer as to building stability in relation to horizontal loadings from flowing water and debris, buoyancy, overturning and sliding. iii. The location of all electrical fixtures and gas outlets are to be a minimum height of 500 mm above the designated 1% AEP flood levels. iv. Compliance with "Planning for Bushfire Protection" issued by NSW Rural Fire Service. ii) Appeal No 11230 of 2006 (Dual Occupancy); this appeal was lodged against council's refusal of the development application. Planning Controls. o State Environmental Planning Policy No 71. o Wyong Local Environmental Plan 1991; under which the land is zoned ' Residential Zone' 2(a) and the development is a permissible with consent. o Wyong Development Control Plan No 2005 - from which the following controls were identified as relevant in this matter; dual occupancy, car parking, subdivision, engineering requirements, flood prone land development and landscaping. The evidence. 7 For the appeal, the applicant undertook a number of amendments to the dual occupancy proposal in response to the reasons for refusal and issues identified. The amended plans were accepted into evidence. The various plans for the proposal have been assessed by council planners Ms D Dickson, Ms Beattie and Mr L Marquet (consulting town planner), resulting in a joint planning report - Exhibit C.

8 The drainage issue has been assessed by Ms S Pennisi (councils drainage engineer) and Mr R Staniland (consulting engineer), resulting in the joint engineering reports - Exhibits A and B.

9 From the evidence presented at the hearing, it appears that the applicant desires a degree of flexibility to undertake this overall development. In a practical sense, the buildings would be undertaken initially and then a services and access handle constructed finally, to avoid damage by construction vehicles. However, the council has concerns about whether this represents orderly development of the site, particularly whether the 4 dwellings should be allowed on the one lot, prior to completion of the subdivision. Accordingly, the council proposes a deferred commencement condition, which requires the registration of the subdivision, if the 4 buildings are proposed concurrently. The applicant objects to this form of condition.

Subdivision . 10 The subdivision appeal is against conditions 30 and 31, which the applicant submits should be deleted in accordance with the line of authority adopted by the Court, that is to avoid 88B instruments in normal circumstances, where the conditions of consent are imposed for a reasonable planning purpose. However in this case, the council argues that detailed flood investigation assessment has been undertaken, which has identified a reasonable building footprint above the nominated flood design level, and this restriction is appropriately brought to the attention future purchasers and users of the property, when identified on a s 88B instrument.

11 For the resolution of these competing positions, I have considered the evidence on the flooding impacts, in the context of any extraordinary circumstances that may apply to this site. As noted, the site backs onto Ourimbah Creek, near the Wyong Road bridge and it is subject to the 1% AEP, with the lower part of the site in major flood events being subject to high velocities in the order of 3m/s. This contributed to part of Lot B being classified as 'High Hazard', under the provisions of the Floodplain Development Manual.

12 However, on review of the proposals access arrangements for Lot B, whereby a relatively 'safe' exit route is provided via the access handle directly to Geoffrey Road, the engineers consider that a 'Low Hazard' classification is appropriate.

13 In respect of the proposed development, the engineers agreed that all habitable buildings should be restricted to the designated building footprint area, generally on the higher part of Lot B. Although, other elevated decks adjacent to the building footprint area would be acceptable provided they allow passage of flood-waters in major storm events. Accordingly, they agreed that the proposed buildings 4A and 4B could be erected on Lot B subject to the following conditions:

1. The buildings are within the approved Lot B building envelope. 2. The decks at the southern elevation do not encroach on the 20 m foreshore building line. 3. The habitable floor levels are RL 4.50m AHD. 4. The driveway should be suitably shaped and graded away from the garages to direct surface runoff to the stormwater system and surcharge paths. 5. The proposed buildings depicted on the plan satisfy requirements relating collating to flooding issues. 14 From the evidence presented, I rely on the engineers agreement that the proposal represents a reasonable development in the context of the flood liability of the site, subject to compliance with the aforementioned conditions.

15 With respect then to the submissions on conditions 30 and 31, I have considered Mr Frazers submissions that it is inappropriate to maintain these conditions because of the previous determinations by the Court in respect of these types of restrictions and also because of the obvious nature of flooding liability of part of the site, which would be identified in s 149 Certificates, for any prudent purchaser.

16 In this regard, particular reference was made to a number of cases dealing with restrictive covenants, particularly MacDonald v Mosman Council [1999] 105 LGERA where Lloyd J considered case law and said at par 14: 14 I am prepared in this case to follow and apply the principles explained in the abovementioned case. I am not satisfied that the power of the Council to either grant or withhold development consent for the erection of any further or additional structure on the southern side of the applicant's dwelling house needs to be reinforced in the manner contended by the Council. The Court has not, in the past, been favourably disposed towards conditions requiring registered restrictions as to user. In particular, Cripps J in Carr v Goulbourn City Council held that it was not appropriate to impose such a condition. I agree. In the present case, on a consideration of the merits, there is nothing in the present case that takes the matter outside those principles. The condition will not be imposed. 17 Against this, I have also considered the council's submissions in respect of Her Honour Chief Judge Pearlmans determination in Fortunate Investments Pty Ltd v North Sydney Council [2001] NSWLEC 70, wherein she cited the MacDonald matter and said at par 12: "There is a line of authority … which supports the proposition that it is unnecessary and inappropriate to impose a condition requiring a restrictive covenant." 18 Nevertheless, she acknowledged at par 11 that: "there is power for the Court [to impose a condition requiring a restrictive covenant], if the circumstances are appropriate." 19 Then she said at par 13 that: "The question is whether it is appropriate to do so in [the] circumstances" , and ultimately found at par 19: "I infer, because of the circumstances are unusual, that prospective purchasers might not readily know that this is a boarding house and that it must be used as such, subject to the restrictions that are imposed because of that use. I conclude, in all the circumstances, that it is appropriate that there be a restrictive covenant."

20 The question of imposition of covenants was also dealt with in PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney [2005] NSWLEC 41, where Talbot J said at par 40: "The Court will not as a matter of policy impose [a condition requiring the creation of a registered restrictive covenant] where the law adequately provides for the enforcement of the provisions of the Environmental Planning and Assessment Act 1979." 21 From these lines of authority, I do not consider the Court was informed of any extraordinary circumstances, which justify the retention of conditions 30 and 31. Presumably any persons interested in proposed Lot B would make the relevant planning enquiries and establish the planning basis on which the lot was approved. However, taking into consideration the engineering investigation, I consider the public interest would be well served by the inclusion of an advisory note on the consent, identify the building restrions.

22 Another matter raised during the proceeding concerns the applicants preference for the access corridor for Lot B to be part of Lot A to make it a larger allotment, with rights of way in favour of Lot B. The Council opposes this change from the approved subdivision plan. From the submissions it seems to me that the interests of the property owners of Lot B are better protected by retention of the approved subdivision layout.

Dual Occupancy. 23 As I have noted previously, the development application for the detached dual occupancy comprising Units 2A and 2B on Lot A and Lots 4A and 4B on Lot B was refused for a number of reasons. However the amendments substantially addressed the design & amenity issues raised and the outstanding concerns at the appeal related to the proposed conditions of consent.

24 Before dealing with these conditions of consent, I again refer to the evidence of the flooding experts. Insofar as the rear part of the site is located adjacent to Ourimbah Creek and subject to flooding, the amended design maintains comfortable compliance with the foreshore building line, all habitable rooms are compliant with the designated building footprint restriction and all habitable floor levels are elevated above the flood planning level of the 1% AEP, plus 500mm freeboard. Also, the access corridor to Geoffrey Road is considered satisfactory to place the site within a 'Low Hazard' flooding category.

25 Notwithstanding this, the proposal incorporates elevated decks on units 4A and 4B, which extend beyond the designated building footprint by approximately 5m. However these decks are also elevated to allow the passage of floodwaters under, which is considered acceptable by the engineers, subject to the agreed conditions. On the basis of the provision of the exit arrangements from the higher part of Lot B to Geoffrey Street, I rely on the engineers evidence that the flooding concerns can be adequately covered by conditions of consent and do not consider the application warrants refusal on this issue. 26 Likewise the original issue of noise disamenity, particularly that from traffic on Wyong Road can be covered by conditions requiring amelioration features in the building design, as recommended by Day Design Pty Ltd Acoustic Engineers.

27 The outstanding matters then concern the Council's requirement that the aforementioned plan of subdivision be registered prior to the second set of dual occupancy units being commenced. This is to avoid the situation of 4 units on the one title, which is not permitted.

28 I understand from the applicants submissions that a degree of flexibility is sought to enable coordination of the building of the 4 units, together with the provision of services and construction of the accessways to units 4A and 4B, after building works have substantially be completed so as to avoid damage to this infrastructure.

29 In considering this preference, I note councils submissions that the deletion of this requirement is likely to prejudice the orderly development of the site. On the basis of the evidence before the Court, I am inclined to accept councils position that orderly development of the land is best achieved by allowing only one dual occupancy on an individual allotment. If there are other substantive reasons to delay the subdivision to facilitate construction, then the applicant could consider some form of development agreement with council. Under the circumstances, I consider it reasonable to maintain this deferred commencement condition, which is consistent with the format of the original applications that rely on the previously approved subdivision. 30 The applicant also objected to the imposition of draft condition 20, which requires the creation of a positive covenant and restriction of as to user of the land to ensure the maintenance and performance of the infiltration/retention drainage system. This objection is based on the previous submissions regarding the imposition of restrictive covenants.

31 However, Mr Brown referred the Court to ATL Australia Ltd v Willoughby Council [2000] NSWLEC 244, wherein Bignold J dealt with positive covenants as follows: 64. A little earlier, Cripps CJ had said: Negotiations during the proceedings resulted in agreement with respect to most of the conditions. Conditions will have to be drafted to give effect to the requirement that the owner of the land remain responsible for maintenance of the capped area which, as I have said, is to remain in private ownership. Although it is generally inappropriate for development consents to be conditioned by the imposition of public covenants, the present case is an exception. In my opinion, it is appropriate for the imposition of public positive covenants on the subject land to give effect to the conclusions and requirements of the Court.

Although the Applicant has not formally submitted that the disputed condition is beyond power, I would respectfully agree with the view expressed by Cripps CJ and would hold that the imposition of such a condition is within the power conferred by the EP&A Act s 80A(1).

Moreover, the Applicant's submission that the condition serves no planning purpose fails to appreciate that the purpose of the positive covenant is not simply to duplicate the obligations cast by the condition of planning consent in respect of the regime for on-site stormwater detention (if it merely did that, there would be a good case for holding that the creation of the positive covenant was neither necessary nor appropriate, conformably to the line of authority traced by Lloyd J in MacDonald) but is to maintain and to keep in repair the on-site detention infrastructure (see the draft s 88E covenant included in Exhibit 3 and of the Conveyancing Act 1919 s 88F).

Finally, concerning the fact that the Applicant is not the owner of the development site, it is to be noted that the Applicant has adduced no evidence as to the difficulty it would experience in seeking to obtain the owner's consent to enter into the positive covenant.

Secondly, it may be legitimately inferred that the Applicant has some substantial interest in the development (both existing and proposed) and in the development site.

In these circumstances the Applicant, having accepted all other aspects of the Council's condition imposing a comprehensive regime for on-site stormwater detention, has not, in my judgment, made out its case against imposing the condition which is apparently conformable to the> Council's practice in implementing its Local Policy for on-site stormwater detention.

Accordingly, the disputed condition will be imposed. 32 Accordingly Bignold J decided it was appropriate to impose a condition requiring maintenance of the stormwater detention system. Likewise in the subject matter, I am satisfied that the installation of the drainage infiltration retention system requires regular maintenance to operate efficiently and this can best be addressed by notification in the s 88B instrument, which runs with the land and binds all future owners.

33 For these reasons, I consider it appropriate to maintain the draft condition 20. Conclusion. 34 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the s96 application appeal should be allowed by deleting conditions 30 and 31.

35 With respect to the battle-axe handle, I consider this is primarily for the benefit of Lot B to provide access, servicing and allow for landscaping, which is to be maintained. Taking into account that it is likely there will be four property owners/individual occupants in the dual occupancies, who may have different expectations for privacy and amenity, I consider this is best achieved by maintenance of the existing, approved subdivision, rather than allowing the access handle to be part of Lot A, with rights-of- way for Lot B, whereby the owners of Lot A would have principal control of the common boundary interface.

36 For the reasons stated, I accept the submissions that the dual occupancy development satisfies the relevant s 79C considerations, to allow development consent, which includes the conditions agreed by the respective planning and drainage experts. This includes the maintenance of the deferred commercial condition.

1. The appeal is allowed. 2. The s96 modification to DA /1881/2005 for a 2 lot subdivision is allowed by deletion of conditions 30 and 31. 38 Appeal No 11230 of 2006. 1. The appeal is allowed 2. Development consent is granted to DA 1126/2006 for a 4 unit dual occupancy development at 2-4 Geoffrey Road, Chittaway Point subject to the conditions in Annexure A. 3. The exhibits may be returned except for 2, 3, 4, 6, A, B, C.

      R Hussey
      Commissioner of the Court
      ljr

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