Water Administration Ministerial Corporation v Auburn Council & Ors

Water Administration Ministerial Corporation v Auburn Council & Ors - [2000] NSWLEC 76 - NSWLEC 2000 case summary — Zoe

[40]

91A Local development that is integrated development (1) This section applies to the determination of a development application for local development that is integrated development. (2) Before granting development consent to an application for consent to carry out the development, the consent authority must , in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent. (3) A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval. (4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application. (5) If the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval: (a) the consent authority may determine the development application, and (b) if the consent authority determines the development application by granting consent: (i) the approval body cannot refuse to grant approval to an application for approval in respect of the development, and (ii) an approval granted by the approval body must not be inconsistent with the development consent, and (iii) section 93 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority, despite any other Act or law. (6) If a development application is determined, whether or not by the granting of development consent, the consent authority must notify all relevant approval bodies of the determination. [emphasis added to s 91A(2), (3), (4)]

[92]

The other conditions of the consent are important to these proceedings and the following of them are set out, (mostly without explanatory notes or " reason s"), as particularly relevant to the subject matter of these proceedings: 1. Approved Plans The development is to be carried out in accordance with the approved documentation prepared by JBA & Berkhart [sic] titled 'Subdivision into 31 Lots - BP Auburn Terminal, Silverwater' dated December 1998 and the approved stamped plans prepared by Rose Consulting Group numbered No. 54-104-B (Dick No: 54104Y01012) dated February 1999, and mitigation measures proposed by Dames and Moore except as otherwise provided by the conditions of this determination (Note:- modifications to the approved plans will require the lodgment and consideration by Council of a modification pursuant to Section 96 of the Environmental Planning and Assessment Act). 2. That the plan of subdivision shall be modified to indicate a 30 metre foreshore building line to lots adjacent to Duck River. 3. That the applicant shall submit a management plan aimed at developing an appropriate strategy to protect the important mangrove/saltmarsh wetland eco system located within residual Lot 131 and adjacent to the land generally, including as a primary objective the restoration of sustainable riparian vegetation communities, particularly as they relate to the boundary between the proposed industrial lots 107 to 114 and residual Lot 131, either side of the mangrove line channel on the south-eastern side of the subject land and the north-western side of the subject land adjacent to the Duck River. Such a plan shall be submitted for the approval of the Director, Service Planning, Auburn Council and the Manager, Resource Assessment and Planning - Sydney South Coast Region of the Department of Land and Water Conservation prior to the release of any linen subdivision plans and shall demonstrate a similar environmental outcome to that of the riparian zones recommended by the Department of Land and Water Conservation. As part of the management plan the applicant shall provide full details of the proposed new security fence. … 6. Approval required prior to the issue of construction certificate The following documentation is to be submitted to Council or the accredited certifier, prior to the granting of the construction certificate: (a) detailed engineering plans and specifications relating to the subdivision work. (b) detailed soil erosion and sedimentation control plan that includes details of revegetation of disturbed ground. … 19. Submission of full stormwater disposal details Prior to the issue of a subdivision certificate, full stormwater drainage details showing the proposed method of stormwater collection and disposal are to be submitted to Council. … Receipt of such submission does not imply automatic approval. In the event that amplification of the existing or provision of new drainage lines is required, the applicant shall bear the cost of the provision of such facility and all works outside the property boundary. 20. Inter Lot drainage system The proposed inter lot drainage systems shall be in accordance with the plan 54-104-A dated March 1999 prepared by the Rose Consulting Group. All the construction of pits and pipes shall be in accordance with Council's standards and specifications. All associated costs are to be borne by the applicant. … 23. Capacity of the existing trunk drainage The capacity of the existing trunk drainage channel adjacent to the eastern boundary of the subject property shall be analysed for 1 in 20 year storm event and for the additional inflow from the proposed new line adjacent to Derby Street and the other inlets from the proposed easements. Any necessary amplification shall be carried out at the expense of the applicant. Environmental considerations shall be given to this amplification. 24. Drainage easement A 5.0m wide drainage easement shall be created adjacent to the eastern boundary of the subject property for possible future amplification and de-channelisation of the drainage channel. Such easement and appropriate 88B instrument shall be registered with the land titles office prior to the issue of the subdivision certificate. All associated costs are to be borne by the applicant. 25. Deviation of existing trunk drainage at lot 129 and 130 A detailed flood study of the proposed deviation shall be submitted to the Council analysing the flood impact on upstream properties. 26. Overflow route A depression shall be formed over the full width and length of the drainage easement to provide a stormwater escape route. The escape route shall be designed to have capacity to carry the difference between a 1 in 100 year overflow and the flow and the flow (sic) in the pipe. … 29. Sedimentation control and site management plan An Erosion and Sediment Control and Site Management Plan shall be submitted to Council in conjunction with the Construction Certificate. The plan shall be in accordance with 'Managing Urban Water' 3rd edition August 1998 published by Department of Housing.

[234]

From the above factual analysis I have come to the conclusion that the following ten propositions emerge as at least arguable by the Corporation in support of the interlocutory and consequential relief it has sought from the court at this stage:
1. Properly construed, the " integrated development " provisions of the EP&A Act, and the related amendment made to the Rivers Act, mean that any development consent, modification approval, or Part 3A permit, issued outside of the integrated development scheme, when the proposals involved should properly have been dealt with under that scheme, will be void or invalid.
2. Properly viewed, the development application, even as amended prior to consent being granted on 27 April 1999, consisted of " integrated development ", and should have been dealt with in accordance with those provisions of the EP&A Act.
3. Properly viewed, the modification application, even as amended in about October 1999, consisted of " integrated development " and should have been dealt with in accordance with those provisions of the EP&A Act.
4. The various works included in the applications for Part 3A permits are also appropriately characterised as " integrated development " and, as such, at least those included in the application dated 25 January 2000, should have been dealt with in accordance with those provisions of the EP&A Act.
5. In the absence of a consent for integrated development, works done on the site of 83 Derby Street, Silverwater are unlawful, having been carried out in breach of the EP&A Act.
6. Even though Williams conceded in cross-examination that a lot of detail was not provided, either at all, or in a timely way, to the Council, the Companies knew , and say that they provided to the Council, information which, the Corporation submits, made, or should have made, clear to the Council , at all material times, that works proposed for the site would necessarily be carried out partly in/on/ under protected lands, such as to enliven the provisions of Part 3A of the Rivers Act. Accordingly, Council's decision to accept advice that the proposal was not " integrated development " was an error of such nature and magnitude as to render void both its consent, and its approval of a modification thereof.
7. The Corporation has no statutory power to issue an oral permit under par 3A of the Rivers Act, even in emergency circumstances.
8. Some of the conditions attached to the consent, the approval, and some attached to the Part 3A permit(s), infringe the principles in Mison , in that they defer substantial matters for later determination, and/or are too uncertain .
9. In attempting to accommodate comments made by the Corporation, the Council, in reaching its decisions and imposing its conditions, usurped the Corporation's statutory role in determining, particularly as a participant in the integrated development processes now provided in the EP&A Act, how best to protect the river and associated tidal features.
10. Had the appropriate processes been followed, the subdivision which resulted would probably be quite different from that which is now under construction.
I have, therefore, concluded that there is a range of serious issues to be tried in matter 40055, such that there is at least a prima facie case made out for interlocutory relief to be granted.

Parties

Applicant/Plaintiff:

Water Administration Ministerial Corporation

Respondent/Defendant:

Auburn Council & Ors

Legislation Cited (7)

Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 1994

Foreshores Improvement Act 1948

Fisheries Management Act 1904

Water Administration Act 1986

Management Act 1994

Environment Operations Act 1997

Cases Cited (12)

CITATION : Water Administration Ministerial Corporation v Auburn Council & Ors [2000] NSWLEC 76 Matter 40055 of 2000 APPLICANT Water Administration Ministerial Corporation FIRST RESPONDENT Auburn Council SECOND RESPONDENT Silverwater Estate Pty Ltd (ACN 085 042 664) THIRD RESPONDENT Trafalgar Corporate Pty Ltd (ACN 080 518 243)

Matter 10276 of 2000 APPLICANT Silverwater Estate Pty Ltd RESPONDENT Auburn Council FILE NUMBER(S) : 40055, 40033, 10074, 10250, 10276 of 2000 CORAM: Sheahan J Construction & Interpretation - Development Consent - Interlocutory Relief - Judicial Review :- Interlocutory Relief: Injunction - substantial issues to be tried - balance of convenience - undertaking as to damages - discretion KEY ISSUES: Construction & Interpretation: integrated development - approval body - adverse environmental impact Development Consent: validity - finality and uncertainty - Mison - modification of application - integrated development Judicial Review: separate grant of consent and permit under the Rivers & Foreshores Improvement Act - sensitive environmental features Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1994 LEGISLATION CITED: Rivers & Foreshores Improvement Act 1948 Fisheries Management Act 1904 Water Administration Act 1986 Attorney General for Ontario v Hamilton Street Railway Company & Ors [1903] AC 524; Blacktown Municipal Council v Friend & Ors (1974) 29 LGRA 192; Corportion of the City of Unley v Claude Neon Ltd (1983) 49 LGRA 65 at 68; Helman v Byron Shire Council & Anor (19950 87 LGERA 349; Klefend Pty Ltd v Santom Pty Ltd & Anor (1994) 88 LGERA 307 at 310-314; Mison & Ors v Randwick Council (1991) 73 LGRA 349; North Coast Environment Council v National Parks & Wildlife Service & Ors [1999] NSWLEC 1 ; Orison Pty Ltd v Strategic Minerals Corporation NL & Ors (1987) 77 ALR 141; Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council & Ors (1980) 44 LGRA 346; CASES CITED: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 842, 860-861; Remath Investments No.6 Pty Ltd v Botany Bay City Council (No.2) (10649 of 1996, 11 December 1996); Ross v State Rail Authority & Ors (1987) 70 LGRA 91; Sanderson Computers Pty Ltd v Urica Library Systems BV (1998) 44 NSWLR 73; Scott & Ors v Wollongong City Council & Anor (1992) 75 LGRA 112; Silktone Pty Ltd v Devreal Pty Ltd & Ors (1990) 21 NSWLR 317; Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368 at 369; Tasker v Fulwood [1978] 1 NSWLR 20; Tier Consulting Group Pty Ltd v Blue Mountains City Council (1998) 99 LGERA 31; Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 102 LGERA 52; Vanmeld Pty Ltd v Fairfield City Council (10081 and 40077 of 1997, 29 May 1998) DATES OF HEARING: 6/4/00, 7/4/00, 12/4/00-14/4/00 DATE OF JUDGMENT: 04/18/2000

(1994) 88 LGERA 307

(1987) 77 ALR 141

(1998) 72 ALJR 841

(1998) 44 NSWLR 73

(1990) 21 NSWLR 317

(1998) 99 LGERA 31

(1999) 102 LGERA 52

(1986) 161 CLR 148

(1995) 87 LGERA 349

[1999] NSWLEC 1