The applicant, Welsh Property Consulting Pty Ltd, has development approval to construct a new road (Mt Carmel Road). The road provides a direct link between the precinct of Old Pitt Town Road and Windsor Road to service future development.
The road is identified in the strategic framework and aims for the Box Hill and Box Hill Industrial Precincts set by The Hills Growth Centre Precinct Plan (being Appendix 11 to the SEPP (Sydney Region Growth Centres) 2006 (SEPP) and the Box Hill Industrial Precincts Development Control Plan 2014 (DCP).
It is also shown on the Indicative Layout Plan (ILP) in Figure 2 referred to in cl2.2 of the DCP. As the clause states the ILP "…illustrates the broad level outcomes for the Box Hill and Box Hill Industrial Precincts. It outlines the development footprint, land uses, open space, heritage items, major transport linkages and the location of community facilities and schools" and Control 2 of cl2.2 provides that "All development is to be undertaken in accordance with the ILP at Figure 2 subject to compliance with the objectives and development controls set out in the DCP".
The road is also shown on the following maps of SEPP2006:
• Land Zoning Map;
• Native Vegetation Protection Map;
• Riparian Protection Area Map;
• Floor Space Ratio Map;
• Height of Buildings Map;
• Land Reservation Acquisition Map;
• Lot size Map.
The applicant has applied to the Hills Shire Council to relocate the road 300m west of its approved location from Windsor Road to a point just north of a proposed bridge crossing over Killarney Chain of Ponds. The proposed position is shown as a red dashed line on the coloured plan entitled Attachment 1 - prepared by the Council (exhibit 3).
The detail of the development is set out in the application documentation (DA 1328/2014Z) submitted to Council on 2 May 2014. The works are proposed in two stages and include: the construction of a revised bridge, signalisation of the Windsor Road/Mount Carmel Road intersection and a roundabout mid-way between the two.
The applicant has approval for the relocated road from all external authorities. It holds GTAs from; the NSW Office of Water; NSW Office of the Environment and Heritage; and, NSW Roads and Maritime Services and Transgrid.
However, the Council has refused its consent to the development because the proposed road is inconsistent with the location identified in the current strategic framework for the Precinct. It contends that until the current strategic framework is amended by the Minister the DA should not be approved.
The applicant has appealed the Council's decision to the Court pursuant to s97 of the Environmental Planning & Assessment Act 1979 (the EP&A Act).
[3]
The applicant's position
The applicant concedes that the proposed location of the road is inconsistent with the current strategic framework for the Precinct.
It does not propose a variation of the location of the road under cl 2.2 (2) of the DCP. Instead, it has lodged a submission with the Minister for the amendment of the SEPP and DCP to allow for the proposed development. The applicant's submission was prepared in consultation with the Council and the Department of Planning and Environment. However, it has not yet been placed on public exhibition or formally endorsed by the Council.
It is fair to say that the formal amendment process is at an early stage.
Despite that, the applicant submits, that in circumstances where the application achieves the objectives of cl3.1 of the DCP; - in respect of providing a new main road for safe and convenient access to the arterial road network - there is no reason why the development ought, in the exercise of the Court's discretion, be refused on the basis that the proposal is inconsistent with the current SEPP and DCP.
The applicant proposes the grant of a development consent subject to a deferred commencement condition in the following terms:
Deferred commencement consent
This condition is imposed pursuant to s80 (3) of the Environmental Planning & assessment Act (and cl95 of the Environmental Planning & Assessment Regulations). This development consent is not to operate until the Council is satisfied that:
(1) The location of the Mount Carmel Road, as identified by the Hills Growth Centre Precinct plan (being Appendix 11 to the SEPP (Sydney Region Growth Centres) 2006) has been varied to be in the location generally in accordance with the plans identified in condition (1) of the operative conditions of this development consent.
[4]
Council's position
The Council submits that this application is premature and it should not be approved because the development is inconsistent with the current SEPP and the DCP which are mandatory considerations under ss79C (1) (a) (i) and (iii) the EP&A Act.
It invites the Court to give significant weight to the current strategic framework with a central focus on the provisions of the publically exhibited DCP.
Of particular relevance, it submits is the objective in cl2.2 (a) of the DCP which provides: "To ensure development of the Precincts is undertaken in a co - ordinated manner consistent with the North West Sector Structure Plan and the Box Hill Industrial Indicative Layout Plan".
The Council submits that the proposal does not achieve this objective. However, it is the Council's view that the location of the proposed road is significantly different to that provided for in the planning controls, and the strategic framework documentation and maps detailed in the Council's amended statement of facts and contentions (exhibit 3) and included in the Council's bundle (exhibit 1).
As the proposed amendments to the SEPP are in the process of being reviewed by the Department and, placed on public exhibition, the Council contends that the proposed amendments to the SEPP and the DCP are of little relevance in my assessment of this application. It submits that they may be further amended following a consideration of any submissions received after notification and before any formal endorsement by the Council.
At its highest - the proposed amendments are but a circumstance in the case which should be given little weight in the evaluation of this application. They are not equivalent to a draft instrument because they have not been publically exhibited. They are neither certain or imminent.
[5]
Consideration
The applicant invites the Court to evaluate the application under s79C (1) of the EP&A Act on the basis that the proposed realignment of the road will be accepted by the Minister and the requisite changes to the SEPP and DCP will be effected.
And, after a 'proper consideration' of all relevant matters raised by the application - as discussed by the Court in Weal v Bathurst City Council [2000] NSWCA 88, 111 LGERA 187 at [80], approve of the development subject to a deferred commencement condition to allow the relevant planning regime to be amended to reflect my decision.
The applicant's approach is problematic.
Firstly, it assumes that the application before the Court is able to be properly assessed under s79C (1) of the EP & A Act. The section comprehensively lists the matter which I must evaluate. It provides:
79C Evaluation
(1) Matters for consideration-general
In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iii) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and
(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979 ),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
…
(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards-is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards-is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
In order to do that I must have a real understanding of the impacts of the proposal.
As it stands I have little real understanding from the evidence of the proposal's impacts for the Precincts and the significance of the decision to be made about them. It is no comfort to be told that all external authorities have approved of the relocation of the road when in the same breathe I am told it is inconsistent with the current the SEPP and DCP and the local authority has identified several unresolved issues with the application (exhibit 2).
The SEPP and DCP collectively co-ordinate the development of the Precincts. In circumstances where the DCP is consistent with and was developed in accordance with the SEPP I consider that it should be given significant weight in my evaluation of the proposal under s79C (1) (a)(iii).
The DCP, and in particular the ILP are based upon the construction of the road in its approved location. The proposed change in location of the road 300m west of its current location is a significant change in my assessment.
The DCP has been publically notified and those who may be affected by any development have been given an opportunity to appreciate the likely future development in the area: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at [85]. I need to evaluate the competing interests of the public and the private interests of the applicant having regard to all relevant matters under s79C. At this time I do not know what submissions will flow from any public exhibition of the proposed amendments to the SEPP and DCP or the final terms of any amendment approved by the Minister, even assuming that it is approved. Therefore, I do not know all of the flow- on consequences on adjacent zones and road hierarchy.
I cannot accept, as submitted by the applicant, that the development achieves the relevant objectives in cl 3.3.1 of the DCP. The evidence does not support such a finding. The Council's letter (exhibit 2) discusses a range of outstanding issues or flow-on strategic planning amendments associated with the proposed realignment including: proposed new creek crossings, the establishment of a suitable local road network; and amended infrastructure requirements (including proposed new roundabouts and bridges).
The Council's planners have consistently been of the opinion that an approval of this application before the amendment to the SEPP and DCP is inappropriate. The original planning assessment report dated 2 May 2014 (exhibit 1 Tab 4 p7), states that the proposal
"…is inconsistent with the current strategic framework for the precinct and requires precinct wide consideration of flow-on consequences on adjacent zones and road hierarchy. Specifically, Mt Carmel Road no longer provides a direct link through the precinct between Old Pitt Town Road and Windsor Road, the relocation reduces the size of a proposed reserve zoned RE1 Public Recreation and the road is no longer adjacent to the B2 Local Centre zoned land adjacent to Windsor Road, potentially impacting upon the viability of the village centre which was planned on the basis of active street frontages".
The Council's staff have not really changed their position. The Council's letter dated 21 July 2015 from Stewart Seale (Manager Forward Planner) to the Department of Planning and Environment identifies the current unresolved issues with the proposal. It states:
"On 18 February 2015, Council officers met with the Department of Planning and Environment to discuss a range of outstanding matter with respect to the proposed SEPP amendments for the realignment of the Mt Carmel Road within the Box hill Precinct. It was established that in addition to the amendments directly relating to the alignment of the Mt Carmel Road, the SEPP amendments must also address all other strategic planning amendments associated with the proposed realignment. These included:
Proposed new creek crossings required;
• The relocation of two (2) local centres ('Box Hill Inn Village' and 'Mt Carmel Village');
• The relocation of medium density land surrounding 't Camel Village 'in the north;
• The relocation of the 'proposed 'school site in the north identified within the DCP; The relocation and resizing of a number of playing fields and local open spaces;
• The establishment of a suitable local network; and
• Amended infrastructure requirements (including proposed new roundabouts and bridges).
The applicant has now submitted documentation outlining the full range of proposed SEPP amendments. These proposed amendments have not been publicly exhibited or reported to Council and as such, this letter does not represent formal endorsement of the proposed amendment by the Council. Rather it is the opinion of the Council staff that the SEPP amendment is now suitable for submission to the Department of planning and Environment for the formal SEPP amendment process to commence. Should the Department of Planning and Environment seek formal comments from Council during the public exhibition period; the matter will be reported to Council for consideration".
(Emphasis added)
The Council's letter makes clear the fact that:
"…the proposed SEPP amendment will generate the need for associated amendment to the planning framework for the Box Hill Precinct including substantial amendments to the DCP. The applicant has submitted a draft DCP which details amendments required to reflect the proposed SEPP amendments. With the exception of the draft Indicative Layout Plan for the Box Hill Inn Village (on the Corner of Mt Carmel Road), Council staff are satisfied that the proposed Development Control Plan amendments could be placed on exhibition to allow public comments".
With respect to the "Box Hill Inn Village " it is considered that the draft indicative Layout Plan submitted by the applicant , requires further design to ensure that it provides the most appropriate outcome for the broader Box Hill Precinct ".
The letter then proceeds to list the further design matters that need to be addressed by the applicant.
The Council's position is that the amendments are neither certain or imminent and should be given little weight in the Court's assessment of the application. At its highest the proposed amendments are a circumstance in the case and relevant as part of the public interest.
The town planning evidence from the Council's Mr Hawkins and the applicant's town planner Peter Lee lends little support to an approval of the application on the terms sought be the applicant at this time.
The experts joint report (exhibit 5) records that they agree that :
The proposal before the Court is reliant upon the amendments to the SEPP 2006 - the Hills Growth Centre Precincts Plan 2013 and Box Hill and Box Hill Industrial Precincts Development Control Plan.
The location of the Mount Carmel Road (which is 300m west of the identified location in the SEPP) is an appropriate location for the main access road onto Windsor Road.
Mr Hawkins is of the opinion that the SEPP amendment should progress to reflect the amended location for the Mount Carmel Road through the precinct.
Mr Lee accepts that the SEPP amendments as drafted and proposed to be exhibited will address the formal process of amendments to the SEPP planning controls.
There are no merit issues if the SEPP amendments as proposed are adopted by the Department of Planning.
Their evidence assumes the amendments will be made as proposed and if that occurs then there will be no merit issues. What happens if the Minister approves something different to that submitted? What if exhibition raises a new merit issues? As I said their evidence is of little assistance.
The aims in Appendix 11 to the SEPP include;
(a) To rezone land to allow for development to occur in the manner envisaged by the growth centre structure plan for the Box Hill and Box Hill Industrial Precincts; and
(b) To identify land within the precincts that is proposed to be brought into public ownership for the purposes of roads, parks drainage and schools.
The aims of the SEPP are not achieved by an approval of this development because the proposed road is not currently envisaged by the growth centre structure plan for the Box Hill and Box Hill Industrial Precincts.
The Minister's response to the proposed relocation of this main road and any consequent amendments to the SEPP and DCP require a consideration of any submissions received following public notification. It is impossible to appreciate what the final amendments to the SEPP and DCP might be when the process is complete.
It is inconsistent with the objects of the EP&A Act to approve of this development prematurely where there has been no public consultation about the proposed amendments to the SEPP and DCP. It does not encourage s5 (a) "(ii) the promotion and co-ordination of the orderly and economic use and development of land" to conditionally approve of a development that might never be operative because the amendments are not made.
While s80 (3) of the EP&A Act empowers the Court to impose a deferred commencement condition I so not believe that such a condition should be imposed in this case. The section provides:
Section 80 - Determination
(1) General A consent authority is to determine a development application by:
(a) granting consent to the application, either unconditionally or subject to conditions, or
(b) refusing consent to the application.
(2) Despite subsection (1), the consent authority must refuse an application for development, being the subdivision of land, that would, if carried out, result in a contravention of this Act, an environmental planning instrument or the regulations, whether arising in relation to that or any other development.
(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.
The EP&A Act does not authorise the imposition of a deferred commencement condition in order to stall the operation of an otherwise unauthorised development until it may become authorised by amendments to the current SEPP and DCP. The imposition of a condition for this reason is not a proper planning purpose.
Section 80 (3) of the EP&A Act should not be used to approve of a development that is inconsistent with the current controls no matter how meritorious the application. A deferred commencement consent is a final consent when it is granted. It is not designed to overcome unresolved issues, the determination of which could lead to unidentified changes to the concept of the development which may in turn give rise to impacts that require consideration under s79C of the Act: Weal at [93] citing Remath Investments No 6 .Pty Ltd v Botany Bay Council (No2) (LEC, Talbot J,11 December1996 unreported). The deferring of a matter which a consent authority is required to consider under s79C is not something that s80 (3) authorises. As I said, I cannot presently understand the full impacts of the proposal on the current evidence.
[6]
Conclusion
For the reasons stated I am of the opinion that there are too many unresolved matters to enable me to carry out any proper assessment of this application under s79C. As the Court made plain in the case of Weal at [93] the EP&A Act was not intended to allow me to leave unresolved and for future determination issues known and unknown, in respect of the impact of the development.
The development is inconsistent with the current SEPP and the DCP and this fact is significant and in my assessment determinative.
Accordingly, for the reasons stated the Court orders:
1. The appeal is dismissed.
2. Development consent is refused for the relocation of the Mt Carmel Road and associated works as detailed in development application DA 1328/2014Z lodged with the Hills Shire Council on 2 May 2014.
3. The exhibits are returned except exhibit A.
Susan Dixon
Commissioner of the Court
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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 July 2015