72 Diamond Drive Blackmans Bay - Stormwater disposal - policy - reasonable as a condition - condition requiring application - finality

This was the hearing of an appeal against a conditional permit for a subdivision at 72 Diamond Drive Blackmans Bay. The appeal was heard at Hobart on 19 April 2005.

C Scott of Counsel appeared on behalf of the appellants.

D Morris of Counsel appeared on behalf of the Kingborough Council.

1. Application was made for a permit for the subdivision of land, into a single lot and a balance lot, at 72 Diamond Drive Blackmans Bay. Council granted the permit upon a number of conditions, and the appeal was lodged against the following conditions.

2. Condition 4 required payment of cash in lieu of the provision of public open space, and included "the subdivider is to obtain a valuation from a registered Valuer for the purposes of determining the unimproved value of the gross area of the subdivision."

3. Condition 5 provided: "The building envelope on the subject title CT118967/69 is to be removed by way of an application to amend a sealed plan prior to the titles of the proposed lot 1 and balance being sealed by Council." That was a reference to a building envelope which had been shown on the sealed plan of the parent lot.

4. Condition 12 required the developer to provide a 225mm diameter stormwater pipe from one of two specified locations, to the boundary of the proposed lot 1, and the provision of piped connections to the new stormwater drain, with associated works.

5. The issues raised by the grounds of the appeal, as it ultimately proceeded, are considered in the reasons for this decision.

6. The site lies within the area controlled by the Kingborough Planning Scheme 2000, and is zoned Residential.

7. The Tribunal finds, as it was uncontested between the parties, that the proposed lots each meet the requirements of clause 5.4.2.1 of the Planning Scheme as to subdivision. Council is therefore required by the provisions of that clause, to approve the proposed subdivision. In consequence, under the provisions of the Planning Scheme, the application is one pursuant to section 58 of the Land Use Planning and Approvals Act 1993.

8. It was however contended for Council that the application was discretionary by reason of section 85(f) of the Local Government (Building and Miscellaneous Provisions) Act 1993, which provides that Council may refuse to approve a plan of subdivision if it is of the opinion:

"(f) that one or more of the lots is by reason of its shape in relation to its size or its contours unsuitable for building on."

9. The evidence relied upon by Council for the application of s85(f) was the opinion of Council's expert planning witness that as a result of an existing building envelope limitation shown upon the sealed plan for the parent lot, it would be impossible to construct a residence complying with all requirements of the Planning Scheme as to setbacks, privacy, and solar exposure.

10. The effect of a building envelope limitation shown upon a sealed plan is to limit the area within which building may occur. It is a legal limitation. It does not fall within the description in the above subsection, of unsuitability "by reason of its shape in relation to its size or contours".

11. Even if subsection 85(f) did apply, the issue would then arise whether the lot was unsuitable for building upon by reason of the building envelope limitation. It was contended on behalf of Council, and evidence was given to that effect by Ms Gray, that the existing building envelope the subject of condition 5 made construction of a residence complying with all of the Scheme provisions, impossible or at least more difficult. This was conceded by Mr Shephard, although his evidence was that it would be possible to construct a complying building within the existing building envelope. The Tribunal considers upon all of the expert planning evidence, that the building envelope which condition 5 sought to remove, created a limitation upon building which was undesirable in the circumstances which existed at the time of the hearing; but that did not extend so far as to make the lot "unsuitable" for building within the meaning of the above subsection..

12. The Tribunal accordingly finds that the proposed subdivision is permitted, not discretionary, by reference to the above considerations. In any event, irrespective of whether the proposed subdivision is discretionary or permitted, it is uncontested that the Planning Scheme provides the planning authority with the power to impose appropriate conditions upon any resulting permit.

13. The appeal against condition 5 above was pursued upon a number of grounds. The first issue raised on behalf of the appellants was the proposition that the subdivision being permitted under the Planning Scheme, the imposition of a condition of which one outcome would make the subdivision impossible, was tantamount to a refusal, and therefore inconsistent with the permitted status of the subdivision under the Planning Scheme. Such a refusal would be permissible, if it was referable to a separate statutory head of power; however the only separate potential head of power relied upon by Council was subsection 85(f) above, which for the previously stated reasons is inapplicable. On that basis, condition 5 is inconsistent with the permitted status of the subdivision under the Planning Scheme, and invalid.

14. The next issue raised was that because of the inclusion of condition 5, the approval was not final and certain. The condition necessarily required the making of a successful application to the Council for removal of the building envelope which existed on the sealed plan as a result of the previous subdivision creating the present parent title. The appellants could make the application; they could not however make the decision removing the existing building envelope, something which could only be done by the Council. Depending upon the decision of the Council, the condition would or would not be fulfilled and the permit would or would not become effective.

15. The principal authorities upon the principle that a development approval decision must be final are: Mison v Randwick (1991) 23 NSWLR 734; Winn v Director General of National Parks and Wildlife {2001] NSW CA 17; Randwick v Pacific Seven (1989) 69 LGERA 13. In Randwick at p15 citing Wells J in City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332: " . . it is essential to bear in mind that the granting of a consent is an act in law that is final in the disposition of the application; the consent must be either refused, or granted unconditionally, or granted subject to conditions. A condition which imparts to a consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act. A condition so annexed ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the authority or tribunal has given its consent, which would otherwise be unlimited in its generality and effect.."

16. It was acknowledged in Winn at p515 that Mison did not "stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of a development is prohibited", and that a permit might validly leave matters of detail to later decision. The court in Winn was dealing with a permit for large-scale sand mining, which included a large number of conditions to the effect inter alia that the sand mining operations were subject to Ministerial and other approval. Spigelman J observed, at p519 and following, that where the form of development was such as to require conditions permitting adaptation of the development to the environmental implications as they unfolded, it was appropriate for the permit to make provision for further approvals to the development. It was held that the nature of the development was frequently determinative in that regard. There was no suggestion in that case that the imposition of a condition which it was not necessarily within the developer's power to satisfy, of itself resulted in invalidity.

17. Condition 5 in the present case however is not of the character of a matter of detail left for further decision, but is rather of the nature of a precondition without satisfaction of which the approval will not become operative. What is required to satisfy the condition is the removal of the existing building envelope. A favourable decision by the Council is required to enable satisfaction of the condition; however the Council's decision would be not as to a matter which is ordinarily dealt with as part of the subdivision approval process, as it involves the amendment of a sealed plan, but rather would be the exercise of a power external to and subsequent to the subdivision approval process. The Tribunal considers that it is therefore correct, as submitted on behalf of Council, that condition 5 does not deprive the permit appealed against of finality.

18. It was also contended on behalf of the appellants that any conditions imposed under 51(3A) of the Land Use Planning and Approvals Act 1993 must be referable to the provisions of the Local Government (Building and Miscellaneous Provisions) Act 1993 and/or of the Planning Scheme. Ss51(3A) and 51(4) respectively confer the condition making power with respect to decisions on discretionary developments under section 57, and on permitted development under section 58.

(3A) A permit to which section 57 applies may be subject to such conditions or restrictions as the planning authority may impose.

(4) A permit to which section 58 applies may be granted subject to such conditions or restrictions as the planning authority may impose with respect to any matter specified in the relevant planning scheme or special planning order."

19. It can be seen from subsection (3A) that a discretionary subdivision permit may be subject to such conditions or restrictions as the planning authority may impose, and no reference is made to any limitation to the power; whereas under subsection (4) a permit to which section 58 applies may be subject to conditions which the planning authority may impose with respect to any matter specified in the relevant Planning Scheme or order. Given the Tribunal's previous finding that section 58 applies, the applicable subsection is 51(4). It was not established that any matter specified in the relevant Planning Scheme justified the imposition of condition 5.

20. For the above reasons, condition 5 is beyond power.

21. Condition 12 required the provision of, in essence, a piped stormwater service from a relatively distant point, to the proposed lot. It was uncontested that this would be difficult and very expensive, and the Tribunal finds accordingly. Expert evidence was given on behalf of the appellants that an adequate stormwater disposal system to the kerb and gutter and thence to the piped Council stormwater system existed on the adjoining and subject lots; and that connection to that system complied with all relevant Australian standards and current proper practice. That evidence was not contested on behalf of Council and the Tribunal finds according to it.

22. The reason for Council's imposition of condition 12, according to the evidence, was that Council had determined upon a policy requiring piped stormwater services to all lots, that it had acted upon that policy for some time, and that application of the policy to the present instance required piped stormwater connections. The existence of the policy and Council's application of it was uncontested, but it was contended for the appellants that the application of the policy in the present instance was unreasonable. Given the Tribunal's findings in the previous paragraph, the Tribunal finds that the application of the policy in the present instance is unreasonable. Accordingly, a condition requiring connection to the existing kerb and gutter system should be substituted for condition 12.

23. The appeal against condition 4 was upon the ground that it was unreasonable for Council to require the provision of a valuation from a registered valuer rather than using the current government valuation. In the absence of agreement between the parties, the Tribunal would have held that requirement to be appropriate, due to the potential for significant increase in value which may occur between the date of the last government valuation and the relevant planning permit. Notwithstanding that however, the parties agreed, for reasons which may be valid but not before the Tribunal, that the current government valuation is appropriate. The Tribunal is prepared to order accordingly.

24. The Tribunal accordingly orders as follows.

• Condition 4 is amended by deleting the words "The subdivider is to obtain a valuation from a registered Valuer for the purpose of determining the unimproved value of the gross area of the subdivision." and inserting in lieu thereof the words "The unimproved value of the gross area of the subdivision is to be determined by the government valuation current at the date of this decision."

• Condition 5 is deleted.

• Condition 12 is deleted and in lieu thereof the following substituted:

"12. Each lot in the subdivision is to utilise its existing connection to the external stormwater drainage network."

25. The Tribunal will entertain any application for an order for costs in this appeal, if made to the Tribunal in writing with supporting submissions within the next fourteen days. If appropriate the Tribunal will reconvene to hear any evidence in respect of any matter bearing on an order for costs.

26. In the absence of any such application for an order for costs the order of the Tribunal is that each party bear its own costs.

Dated 3 May 2005