Turland v Wingercarribee Shire Council

Issues

1. The Council submitted that following the amendments made to the application in Exhibit A, no contentions as particularised in the Statement of Facts and Contentions (Exhibit 1) were pressed, because the amendments made to the application together with the conditions of consent (Exhibit 5) satisfactorily addressed the contentions raised by the Council.
2. The parties disagreed on whether three conditions of consent should be imposed on the development consent as deferred conditions of consent pursuant to s 4.16(3) of the EPA Act or s operative conditions of consent, as follows (Exhibit 5):

• A3 Design amendments and additional documents
• A4 Flood behaviour
• A5 Stormwater drainage

The site and its context

1. The site includes five parcels of land and is located on the eastern side of Mittagong Road, Bowral, on the northern corner of Mittagong Road and Victoria Street, to the north of the township of Bowral.
2. The site contains an existing cottage on the corner of Mittagong Road and Victoria Street.
3. The site is to the south of a creek known as Mittagong Rivulet or Mittagong Creek, which feeds into the Wingecarribee River, and the site falls to the north, towards the creek. There is a low masonry wall constructed on Council's land immediately to the north of the site, which runs parallel to the northern boundary. There is landfill on the northern side of the low wall, close to Mittagong Road, which results in an unnatural rise in the land on the southern bank of the creek, close to the Mittagong Road bridge over the creek.
4. Development to the east along Victoria Street includes single storey period dwellings and a contemporary two storey terrace style mixed use development on the opposite corner of Mittagong Road and Victoria Street known as "Floria".
5. The railway runs north-south on the opposite side of Mittagong Road.

The proposal

1. The proposal is for a 47 unit residential flat building of three storeys over basement parking for 83 cars, including 16 visitor car parking spaces and 1 accessible car parking space.
2. The basement carpark is accessed from a driveway near the south-east corner of the site, from Victoria Street.

Public submissions

1. Three resident objectors provided evidence at the commencement of the hearing on site. Their concerns regarding the proposal can be summarised as:

• The site is unsuitable for the development because it is flood prone.
• The existing cottage contributes to the heritage character of Bowral and should be retained.
• The height of the proposal is excessive and the development should be no greater than two storeys high, so that it is consistent with development in the immediate locality.
• The additional traffic generated by the proposal in Victoria Street will require treatment to the intersection at Victoria Street and Mittagong Road because it is already difficult to turn right onto Mittagong Road from Victoria Street.

1. In response to a submission made by a resident objector that the position and gradient of the driveway of the proposal will result in car headlights disturbing their amenity at night; the planning and urban design experts agreed to the inclusion of a gate across the driveway exit from the basement, at a position that intercept the headlight path at the point at which it would disturb the occupants of the terrace houses on the opposite side of Victoria Street. The amendment is shown and noted on the plans (Exhibit A, DA04 Am 21).

Expert evidence

1. The applicant relied on the expert evidence of Paul Grech (planning), Martin McGrane (architecture and urban design) and Drew Bewsher (hydrology engineering).
2. The Council relied on the expert evidence of Deborah Laidlaw (planning), Paul Walter (urban design) and Dr Daniel Martens (hydrology engineering).

Planning framework and the proposal

1. As the site is within 40m of a water course, works on the site require a controlled activity approval within the meaning of s 91(2) of the Water Management Act 2000. The General Terms of Approval for the development provided by the Department of Primary Industries (Water) are incorporated into the conditions of consent (Exhibit 5, B5).
2. As the site is within 25m of a rail corridor and the proposal involves excavation to a depth greater than 2m, the concurrence of the rail authority for the rail corridor is required, pursuant to cl 86(3) of the State Environmental Planning Policy (Infrastructure) 2007. The Council submitted that the concurrence of the rail authority was provided in January 2018.
3. The proposal includes acoustic amelioration to meet the relevant standards and the Council submitted that appropriate acoustical standards will be achieved by the implementation of the recommendations in the acoustical report, Noise Assessment Report by Benbow Environmental Consulting April 2017, which are imposed on the consent by condition (Exhibit 5, B31 and B77). The units on the western side of the development are to be provided with additional attenuation, including double glazing of windows, and will only achieve the appropriate standards with windows closed and with the use of mechanical ventilation.
4. Clause 101(2) of the State Environmental Planning Policy (Infrastructure) 2007 requires that consent must not be granted to a development on land that has a frontage to a classified road unless the consent authority is satisfied of the following: (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and (b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of: (i) the design of the vehicular access to the land, or (ii) the emission of smoke or dust from the development, or (iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and (c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.
5. The vehicular access to the site is from Victoria Street, consistent with cl 101(2)(a) of State Environmental Planning Policy (Infrastructure) 2007.
6. The Roads and Maritime Services (RMS) provided its concurrence on 29 June 2017 subject to conditions relating to the excavation of the site and required support services for works adjacent to the western boundary adjacent to the Mittagong Road reserve (Exhibit 5, B24).
7. Clause 10(1) of the State Environmental Planning Policy (Sydney Drinking Water Catchment) 2011 requires the following: 10 Development consent cannot be granted unless neutral or beneficial effect on water quality (1) A consent authority must not grant consent to the carrying out of development under Part 4 of the Act on land in the Sydney drinking water catchment unless it is satisfied that the carrying out of the proposed development would have a neutral or beneficial effect on water quality...
8. I accept the agreement of the engineering experts agreed that the proposal will not materially contribute to the discharge of stormwater and therefore will have a neutral effect on water quality within the catchment.
9. The site is zoned B4 Mixed Use pursuant to the Wingecarribee Local Environmental Plan 2010 (LEP 2010). Residential flat building is a sub-set of residential accommodation and it is a permissible use with consent as an innominate land use in the B4 zone. The objectives of the B4 zone, to which regard must be had, are: • To provide a mixture of compatible land uses. • To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling. • To ensure that new development has regard to the character and amenity of adjacent and nearby residential areas.
10. The height of buildings development standard for the site is 10m (Height of Buildings Map - Sheet HOB_007C of LEP 2010). The objectives for the height of buildings development standard are: (a) to identify maximum heights of buildings, (b) to ensure that the heights of buildings are compatible with the character of the existing development within the surrounding area.
11. The Council submitted that the proposal has a floor space ratio (FSR) of no greater than 0.88:1 which is compliant with the FSR development standard of 1.1:1 in LEP 2010 (Floor Space Ratio Map FSR_007D).
12. The site is within the Bowral Heritage Conservation Area (Bowral HCA). The consent authority must, before granting development consent in respect of a HCA, consider the effect of the proposed development on the heritage significance of the item or area concerned, pursuant to cl 5.10(4) of LEP 2010. I accept the Council's submission that the effect of the proposal on the heritage significance of the Bowral HCA is acceptable and the conclusions of the Heritage Impact Statement (Exhibit D).
13. The proposal includes ancillary earthworks, including the excavation of the northern portion of the site to create a flood basin. As the excavation exceeds 600mm, development consent is required for those earthworks, pursuant to cl 7.3(2)(a) of LEP 2010. The relevant objective of cl 7.3 is: (a) to ensure that any earthworks will not have a detrimental impact on environmental functions and processes, neighbouring uses or heritage items and features surrounding land,
14. Before granting development consent for earthworks, the consent authority must consider the matters under cl 7.3(3) of LEP 2010, as follows: (a) the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality, (b) the effect of the proposed development on the likely future use or redevelopment of the land, (c) the quality of the fill or of the soil to be excavated, or both, (d) the effect of the proposed development on the existing and likely amenity of adjoining properties, (e) the source of any fill material or the destination of any excavated material, (f) the likelihood of disturbing Aboriginal objects or other relics, (g) proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.
15. I accept the agreement of the engineering experts that the proposed flood basin is acceptable subject to the agreed conditions of consent.
16. Clause 7.5 'Natural resources sensitivity - water' applies to the proposal because the site is within 30m of the top of a bank of a category 2 stream, pursuant to cl 7.5(5)(b) of LEP 2010. The objectives of the clause are: (1) The objective of this clause is to maintain the hydrological functions of riparian land waterways and aquifers, including: (a) protecting water quality, and (b) protecting natural water flows, and (c) protecting stability of the bed and banks of waterways, and (d) protecting groundwater systems.
17. Before granting development consent for development on land to which cl 7.5 applies, the consent authority must consider any potential adverse impact of the proposal on the following, at cl 7.5(3) of LEP 2010: (a) the natural flow regime, (b) the water quality of receiving waters, (c) the waterway's natural flow paths, (d) the stability of the waterway's bed, shore and banks, (e) the flow, capacity and quality of groundwater systems.
18. I accept the agreement of the engineering experts that the impacts of the proposal on the matters listed at cl 7.5(3) of LEP 2010 are acceptable subject to the agreed conditions of consent.
19. The majority of the site is identified as a 'flood planning area' 100yr + 0.5m Flood Extent (Flood Planning Area Map FLD_007D LEP 2010). The objectives of cl 7.9 'Flood planning' are: (a) to minimise the flood risk to life and property associated with the use of land, (b) to allow development on land that is compatible with the land's flood hazard, taking into account projected climate change, (c) to avoid significant adverse impacts on flood behaviour and the environment.
20. Development consent must not be granted to development on land to which cl 7.9 of LEP 2010 applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) will not be likely to result in unsustainable social and economic costs to the community as a consequence of flooding.
21. I accept the agreement of the engineering experts that the proposal is compatible with the flood hazard of the land and it will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties.

Contravention of the height of buildings development standard in LEP 2010

The applicant's written request

1. The applicant bears the onus to demonstrate that the matters in cl 4.6(3) of LEP 2010 have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action v Woollahra Municipal Council [2018] NSWLEC 118 [25] "Initial Action"). The applicant's written request seeking to justify the contravention of the development standard must adequately address both:

• that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a));
• that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)).

1. The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51] and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]):

• The objectives of the development standard are achieved notwithstanding non-compliance with the standard;
• The underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
• Underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
• The development standard has been abandoned by the council; or
• The zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

1. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).
2. The environmental planning grounds relied on in the written request under cl 4.6 must be sufficient to justify contravening the development standard. The focus is on the aspect of the development that contravenes the development standard, not the development as a whole. Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action [24]).
3. The applicant provided an updated written request seeking to justify the contravention of the height of buildings development standard (Exhibit 3). The maximum contravention of the height of buildings development standard is approximately 1.55m at the ridge of the north-west wing in the north-western corner of the development. The planning and urban design experts agreed that the contravention of the height of buildings development standard was acceptable in all the circumstances of the case. The applicant's written request justifies the contravention of the development standard on the following bases:

• The contravention of the 10m height of buildings development standard occurs at the lower portion of the site and includes the top of the lift overrun, the three chimneys and roof and parapet elements;
• The flood planning level requires the development to be elevated above existing ground level at the northern end and this results in an exceedance of the 10m height of buildings development standard by the roof element of the proposal, which is at the maximum height above existing ground level at the north-western corner of the development;
• The site falls approximately 2m from Victoria Street to the northern end of the site near the Council's park. Although it would be possible to step the proposed development down to correspond with the fall of the existing ground level, the ground floor level is maintained from the entry at Victoria Street to the north of the site so that the ground floor level is above the flood planning level set by Council;
• The third, uppermost level of the proposal is setback from the western and northern façades of the building and the setback to the Mittagong Road boundary is generous for a B4 zone setback with landscaping along the western setback;
• The objectives of the height of buildings development standard are met by the proposal; and
• There are no amenity impacts on adjoining development caused by the exceedance of the height of buildings development standard.

1. I am satisfied that the written request has adequately addressed that compliance with the height of buildings development standard in LEP 2010 is unnecessary in the circumstances of this proposal for the reasons provided by the applicant in justification of the contravention of the height of buildings development standard.

Clause 4.6(4) of LEP 2010

1. Clause 4.6(4) establishes preconditions that must be satisfied before a consent authority (or the court exercising the functions of a consent authority) can exercise the power to grant development consent (Initial Action [13]). The consent authority must form two positive opinions of satisfactions under cl 4.6(4)(a). As these preconditions are expressed in terms of the opinion or satisfaction of a decision-maker, they are a "jurisdictional fact of a special kind", because the formation of the opinion of satisfaction enlivens the power of the consent authority to grant development consent (Initial Action [14]).
2. The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) (Initial Action [26]).
3. The second opinion of satisfaction in cl 4.6(4)(a)(ii) is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action [27]).
4. I accept the agreement of the planning and urban design experts as follows (Exhibit 3):

• The 10m height of buildings development standard allows for three residential storeys. The uppermost storey is setback and configured in such a way so as to be compatible with the predominately two storey character of Bowral;
• The height and massing of the amended proposal shown in Exhibit A maintains a predominately two storey street façade which is consistent with the predominant building height and character within Bowral;
• The south western building element, being three storeys at the street edge, is considered acceptable for a gateway building transitioning towards the main street environment. The height of this element, irrespective of the number of storeys, is not markedly greater than "Floria" opposite when expressed as a RL, with the slightly greater height arising from the expression of the parapet marking the corner;
• The ground floor of the proposal is required to be at a minimum level of the 100 year flood level plus freeboard and this is a circumstance that results in a minor exceedance of the height of buildings development standard where the existing ground level falls to the north of the site;
• The extension of a pitched roof form over the building footprint enables the third storey to be expressed as habitable rooms within a roofscape;
• The written request to vary the height of buildings development standard is well founded, having regard to all the relevant matters required to be considered under cl 4.6.

1. I am satisfied that the proposal is in the public interest because it is consistent with the objectives of the height of buildings development standard to ensure that the heights of buildings are compatible with the character of existing development within the surrounding area.

Whether three conditions should be imposed as deferred conditions of consent

1. Following the amendments made to the proposal in Exhibit A, the only remaining dispute between the parties concerned the nature of three conditions of consent. The Council submitted that the three conditions of consent, A3, A4 and A5, should be deferred conditions of consent pursuant to s 4.16(3) of the EPA Act and the applicant submitted that the three conditions of consent should be operative conditions of consent. There was no dispute as to the terms of the three conditions of consent.
2. There was no dispute regarding deferred commencement conditions A1 requiring the applicant to obtain an easement over the Council's Reserve for stormwater drainage and A2 requiring ground water monitoring for a minimum of three months and the provision of a groundwater report to Council including whether or not a licence for ground water abstraction is required and any groundwater management requirements to be incorporated into the management of the site. I accept the agreement of the parties that these two deferred commencement conditions are appropriately imposed on the consent as deferred commencement conditions, because A1 is a substantive matter to create rights and obligations between the parties and it is a matter that should be fulfilled before the consent is enlivened; and A2 requires the collection of further relevant data prior to the commencement of works on site and the monitoring and management of relevant impacts of the development.
3. The Council submits that the three conditions A3, A4 and A5 should be deferred commencement conditions simply because that is "the Council's preferred position". The applicant submits that there is no utility in having the three conditions as deferred commencement conditions, as they are matters that can be complied with prior to the issue of a Construction Certificate. I prefer the applicant's submission that the three conditions of consent, A3, A4 and A5, should be operative conditions of consent and not deferred conditions of consent.
4. A consent authority, or the Court exercising the functions of the consent authority, may determine a development application for development by granting consent, either unconditionally or subject to conditions, or refusing consent to the application: s 4.16(1) of the EPA Act. A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition: s 4.16(3) of the EPA Act. The development consent lapses at the expiration of the specified period if the deferred commencement condition is not satisfied: s 4.53(6) of the EPA Act. Section 4.16(3) of the EPA Act is in the following terms: (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.
5. Clause 95 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) is in the following terms: 95 Deferred commencement consent (cf clause 67 of EP&A Regulation 1994) (1) A "deferred commencement" consent must be clearly identified as a "deferred commencement" consent (whether by the use of that expression or by reference to section 4.16 (3) of the Act or otherwise). (2) A "deferred commencement" consent must clearly distinguish conditions concerning matters as to which the consent authority must be satisfied before the consent can operate from any other conditions. (3) A consent authority may specify the period within which the applicant must produce evidence to the consent authority sufficient enough to enable it to be satisfied as to those matters. (4) The applicant may produce evidence to the consent authority sufficient to enable it to be satisfied as to those matters and, if the consent authority has specified a period for the purpose, the evidence must be produced within that period. (5) If the applicant produces evidence in accordance with this clause, the consent authority must notify the applicant whether or not it is satisfied as to the relevant matters. (6) If the consent authority has not notified the applicant within the period of 28 days after the applicant's evidence is produced to it, the consent authority is, for the purposes only of section 8.7 of the Act, taken to have notified the applicant that it is not satisfied as to those matters on the date on which that period expires.
6. The conditions of consent (Exhibit 5) do not include a specified period within which the proponent has to satisfy the Council as to the matters specified in the deferred commencement conditions; so the consent will lapse five years following the date of orders: s 4.53(6) of the EPA Act: (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 if the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of the consent or, if a shorter period is specified by the consent authority, within the period so specified.
7. The three conditions, A3, A4 and A5, concern the following requirements:

• A revised finishes schedule, including requirements for natural earthy colours, natural stone facing to exposed basement walls and wall surfaces shown as faced in stone;
• Amendments to the architectural plans including the introduction of a planter and the consequent lowering of the basement roof slab below the planter to accommodate the necessary soil depth; height of a balustrade wall; and the finished floor level over the water treatment system.
• A detailed landscape plan and requirements for the landscaping of the site;
• Evidence of a contact entered into with a private waste contractor;
• An updated access report;
• An updated traffic and parking report and verification of the design of the vehicular access and car park layout;
• Preparation and provision of a 'Move In' plan to manage removalists' vehicles.
• Preparation and provision of detailed earthworks plan of the compensatory flood storage and maintenance regime.
• Preparation and provision of stormwater drainage plans.
• An updated Flood Warning and Emergency Response Plan, to the satisfaction of Council.

1. A deferred commencement condition is imposed upon a development consent when a substantial matter, as specified in the condition, has a necessary consequence that must be addressed to the satisfaction of the consent authority, prior to the consent being enlivened. A deferred commencement condition should not defer consideration of a relevant matter to a later time. The matter specified in the condition must be sufficiently certain so as to not leave open the possibility that the development carried out in accordance with the consent and the condition will be significantly different from the development for which application was made, otherwise the purported consent is not a consent to the development application (Mison and Ors v Randwick Municipal Council (1991) 73 LGRA 349).
2. Where possible, the matter dealt with by a deferred commencement condition should be addressed prior to the granting of development consent, so that the consent authority, or the Court exercising the functions of the consent authority, can be satisfied that the development is certain and capable of proceeding. When it is not feasible to have the matter dealt with prior to the granting of consent and the matter specified in the condition is sufficiently certain; the proponent should be given sufficient time, pursuant to s 4.53(6) of the EPA Act and cl 95(3) of the Regulation, to provide the requisite information to the satisfaction of the consent authority.
3. A condition should only be imposed on a development consent as a deferred commencement condition when it is absolutely necessary to do so, because a deferred commencement condition can be burdensome and may provide a new opportunity for the consent authority to frustrate the process, particularly when the Court has exercised the functions of the consent authority in granting development consent, as was the case in Dennes v Port Macquarie-Hastings Council [2018] NSWLEC 95 [68]-[69].
4. The matters dealt with in conditions A3, A4 and A5 of the conditions of consent (Exhibit 5) are matters of detail or matters that concern the future management of the development, that do not need be addressed prior to the consent being enlivened. I am satisfied that these conditions can be appropriately imposed on the development consent as operative conditions of consent.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development Application No. 16/1079 for the demolition of existing structures and construction of a three storey residential flat building over a basement is approved, subject to the conditions of consent at Annexure A. 3. The exhibits, other than exhibits 1 and A, are returned.

Susan O'Neill Commissioner of the Court Annexure A (488 KB, pdf)

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