Yu v Ku-Ring-Gai Council

HIS HONOUR A. INTRODUCTION 1 The Council has raised a question of law in pending class 1 proceeding, being an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the Council's determination refusing development consent to the Applicant's development application for the construction of a single storey dwelling in a manner so as to constitute a detached dual-occupancy development on land known as No 29 Ada Avenue, Wahroonga, comprising lot 7 in Deposited Plan 285554 (the development site) being an existing "neighbourhood lot" within an existing "neighbourhood scheme" created pursuant to the Community Land Development Act 1989. 2 The reasons for the Council's refusal of the development application as stated in its Notice of Determination dated 5 December 2003 were as follows: 1. The proposed development is inconsistent with Development Consent No 4878 of 1996 and obligations imposed pursuant to that consent. 2. The proposed development is inconsistent with the section 88B instruments, the Neighbourhood Plan, the Neighbourhood Management Statement and the Neighbourhood Development Contract entered into pursuant to Development Consent No 4878 of 1996. 3. For those reasons, granting consent to DA No 352/03 would constitute a breach of the Environmental Planning and Assessment Act 1979. 3 It is these reasons which found the essential elements of the question of law raised by the Council which is to the effect (and I have slightly reformulated the question in order to capture the true intent of the question and in order to avoid merely propounding a legal truism) whether development consent must be refused on account of the proposed development being inconsistent with (i) conditions of an existing development consent granted and implemented in respect of the development site (and other adjoining lots); (ii) the registered s 88B Instrument; and (iii) the registered Neighbourhood Scheme where the relevant inconsistency is of such a nature as would result in a direct contravention of the EP&A Act, if the proposed development were approved and carried out. 4 It is necessary to emphasise that the proper formulation of the question in the present case is not whether the grant of development consent would constitute a breach of the EP&A Act but whether the carrying out of the development (if approved) would produce that result. B. THE RELEVANT FACTS 5 The parties tendered a Statement of Agreed Facts (Exhibit B) which establishes the following: 1. On 11 July 1997 the Ku-ring-gai Council ("Council") granted development consent to DA 4878/96 for a community title subdivision creating a neighbourhood scheme consisting of 6 lots and 1 community title lot for the proposed access to Lots 2-6 at 29 Ada Avenue Wahroonga being Lot B DP 101944, Lot B DP 101945 and Lot 13 DP 29580 ("the Consent"). The relevant conditions include:

(a) Condition 1 (b) Condition 4d (c) Condition 5 (d) Condition 20 (e) Condition 22 (f) Condition 23

2. The site the subject of these proceedings, 29 Ada Avenue, Wahroonga is Lot 7 in the Neighbourhood Plan DP 285554. 3. A Section 88B instrument was registered pursuant to Condition 20 of the Consent and applies to the subject deposited plan (being DP 285554). The Section 88B instrument creates various easements, restrictions and positive covenants on the lots within that deposited plan. The relevant clauses of the s88B instrument are:

(a) Clause 6-Restriction on the use of the land (burdening Lot 7 and benefiting Council); (b) Clause 7-Positive Covenant (burdening Lot 7, benefiting Council); (c) Council is named as the Authority empowered to release, vary or modify the above restrictions on the use of land and Covenant.

4. The Neighbourhood Plan 99/8 for DP 285554 was registered on 17 February 1999 (sheets 1-4). 5. A Development Contract was created pursuant to the Consent and Community Land Development Act 1989. Council approved the Contract on 9 February 1998, and it was registered on 17 February 1999. The Contract contains details of the neighbourhood scheme developed for the land in neighbourhood plan DP285554. Relevant clauses of the development contract are:

6. The Neighbourhood Management Statement was registered on 17 February 1999 pursuant to condition 22b of the Consent and the Community Land Development Act 1989 . The Statement creates terms, which are binding on the Neighbourhood Association within the Neighbourhood Scheme. The By Laws relate to the control and preservation of the Neighbourhood Scheme. The relevant clause of the Neighbourhood Management Statement is By Law 13.1. 7. On 31 March 2003, the Applicant lodged DA 353/03 with the Council for the erection of a single storey dwelling on Lot 7 in the Neighbourhood Plan ("the Subject Site"), on the site of the detention pond (tennis court) ("the Development Application"). On 14 October 2003 Council considered a town planning assessment report in relation to the Development Application. The report recommended deferred commencement approval subject to conditions. Council resolved to defer the matter pending a site inspection. 8. On 25 November 2003 the Council considered a further report in relation to the Development Application. Council resolved to refuse the development consent as follows:

(a) The proposed development is inconsistent with Development Consent No 4878 of 1996 and obligations imposed pursuant to that consent. (b) The proposed development is inconsistent with the section 88B instruments, the Neighbourhood Plan, the Neighbourhood Management Statement and the Neighbourhood Development Contract entered into pursuant to Development Consent No 4878 of 1996. (c) For those reasons, granting consent to DA 352/03 would constitute a breach of the Environmental Planning and Assessment Act 1979.

9. State Environmental Planning Policy 53, Ku-ring-gai Planning Scheme Ordinance and Development Control Plans 40 and 43 apply to the land. 6 It is necessary to amplify some of the agreed facts by reference to the documentary evidence (Exhibit A). 7 The development consent (the 1997 development consent) that was granted to development application No 4878/96 was for a community title subdivision of land known as No 29 Ada Avenue, Wahroonga into six residential lots and one community lot (providing access to five of the six residential lots which were located at the rear of the remaining residential lot which fronted Ada Avenue (which lot was then nominated as lot 1 but which later became lot 7 being the land that currently comprises the development site). 8 The development consent was granted subject to a number of conditions, including the following: 1. The development to generally comply with Development Application No 4878/96 and plans prepared by G J Monaghan & Associates Pty Ltd No 96005b - Version 2 and A2/95/5 received by Council on 9 May 1997 as amended by conditions contained within the consent. 4d. A Stormwater Detention System for the existing residence having a maximum outflow of 18 litres per second and a minimum pondage of 45 cubic metres (based on 35% site cover) or to the satisfaction of Council's Director Development Control and Health Services. An overflow is to be provided that will direct any excess flow to the downstream drainage system. 5. The construction of on-site stormwater detention, common access road, interallotment drainage system and water pollution control facility prior to the issue of Council's Certificate of subdivision. 20. The creation of a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening lot 1 with the requirement to maintain the on-site stormwater detention facilities on the property. The terms of the instruments are to be generally in accordance with the Council's draft terms of Section 88B instrument for protection of on-site detention facilities and to the satisfaction of Council. 22. The submission for endorsement by Council's General Manager: a. A Film Neighbourhood Plan plus five (5) copies prepared in accordance with Section 18(2) and Schedule 1 of the Community Land Development Act 1989. b. The original plus five (5) copies of the Neighbourhood Management Statement prepared in accordance with Section 18(4)(a) and Schedule 4 of the Community Land Development Act 1989. c. The original plus five (5) copies of the Development Contract prepared in accordance with Section 19(4)(b) of Schedule 2 of the Community Land Development Act 1989. d. The 88B Instrument in accordance with the Council's draft terms of Section 88B Instrument for protection of on-site detention facilities ". e. The Engineer's Certification of the on-site Stormwater detention facility. f. Any Surveyor's Certification required by other conditions in this consent. 23. The satisfactory completion of all works referred to in the Neighbourhood Development Contract in accordance with Section 26(3) of the Community Land Development Act 1989 prior to the release of Council's Certificate of Subdivision. 9 On 17 February 1999 Deposited Plan 285554 was registered showing the community title subdivision that was the subject of the 1997 development consent. That Deposited Plan included a notation that pursuant to the Conveyancing Act 1919, s 88B it was intended to create "a number of easements, restrictions on use and positive covenant". 10 The Deposited Plan included a Neighbourhood Plan showing lot 1 as the relevant neighbourhood property with a notation that each of the six residential lots had equal shares of unit entitlement in that neighbourhood property. A copy of sheet 2 of the Deposited Plan is annexed hereto and marked "A". It depicts on lot 7 the precise location and the precise dimensions, of the "stormwater drainage detention system". 11 The registered s 88B Instrument includes the following content described respectively as the sixth and seventh items in relation to the development site (being lot 7 in the Deposited Plan) burdening that lot and benefiting the Council:- 6. TERMS OF RESTRICTIONS ON USE OF LAND SIXTHLY REFERRED TO IN ABOVEMENTIONED PLAN 6.1 The proprietor of the land hereby burdened shall in respect of the land hereby burdened identified on the abovementioned Plan as stormwater drainage detention system. (a) not allow any obstruction or interference of any kind to be erected, placed, created or performed so as to inhibit the flow of stormwater to and from the system; (b) except in accordance with the written approval of the Council not allow any building, erection or structure to be constructed or allowed to remain constructed or placed on the system; (c) not carry or allow to be carried out any change of land profile or earthworks on the system; (d) not carry out or allow to be carried out any alterations to the system including surface levels, controlled outflows, grates, pipes, orifice plate, mesh screen or any other materials or elements thereof outside those normally required for the formation, maintenance and proper function of the system. 6.2 Unless inconsistent with the context, words used in this restriction have the same meaning as those ascribed to them in the Positive Covenant seventhly referred to in the abovementioned plan 6.3 No garage shall be erected in the north western corner of the lot burdened unless it is constructed in a design and façade similar to the residence existing on the lot burdened. 7. TERMS OF POSITIVE COVENANT SEVENTHLY REFERRED TO IN ABOVEMENTIONED PLAN 7.1 The proprietors of the lot hereby burdened shall at all times in respect of the land hereby burdened identified on the abovementioned plan as stormwater drainage detention system and in respect of any part of the lot hereby burdened on which any part of the system is constructed or located: a) permit stormwater to be temporarily detained by the system; b) regularly keep the system clean and free from grass clippings, silt, rubbish and the like; c) maintain the system to ensure a maximum outflow of 18 litres per second from the system and a minimum pondage of 45 cubic metres; d) ensure that the system at all times includes an overflow to direct any excess flow to the downstream drainage system; e) maintain, repair, and replace the system or any part of it due to deterioration or damage without delay so that it functions in a safe and efficient manner. f) comply with the terms of any written notice issued by the Council in respect of the requirements of this Positive Covenant within the time stated in the notice; g) permit the Council to enter upon the lot burdened or any part of it with all necessary materials and equipment at all reasonable times and on reasonable notice (but at any time and without notice in the case of an emergency) to: (i) view the state of repair of the system; (ii) ascertain whether or not there has been a breach of the terms of the positive covenant; (iii) execute works on the burdened lot for compliance with the requirements of this Positive Covenant; h) indemnify and keep indemnified the Council from and against all claims, demands, actions, suits, causes of action, sum or sums of money, compensation, damages, costs and expenses which the Council or any other person may suffer as a result of any malfunction or non-operation of the system or any failure of the proprietor to comply with the terms of this Positive Covenant; 7.2 The Council shall have the following additional powers: a) In the event that the proprietor fails to comply with the terms of any written notice issued by the Council as set out above or in the event of an emergency, the Council or its authorised agent may enter the burdened lot with all necessary materials and equipment at all reasonable times an don reasonable notice (but any time and without notice in the case of an emergency) and carry out any work which the Council in its discretion considers reasonable to comply with the said notice referred to in Par 1(f) above or the alleviate the emergency. b) The Council may recover from the proprietor as a liquidated debt in a court of competent jurisdiction: (i) any expense reasonably incurred by its exercising of its powers under sub-paragraph (a) hereof; (ii) Legal costs on an indemnity basis of issue of the said notices and the recovery of the said costs and expenses together with the costs and expenses of registration of a covenant charge pursuant to Section 88F of the Conveyancing Act, 1919 or providing any certificate required pursuant to Section 88G of the Act or obtaining any injunction pursuant to Section 88H of the Act. 7.3 In this Positive Covenant unless inconsistent with the context: System means in relation to the lot burdened, the stormwater drainage detention basin or tank constructed or to be constructed on the lot burdened including all ancillary gutters, downpipes, pipes, drains, orifice plates, trench barriers, walls, earth banks, kerbs, pits, grates, tanks, basins and other surfaces designed to temporarily detain and control stormwater located on that part of the lot burdened identified on the abovementioned Plan as stormwater drainage detention system or used as part of that system. Proprietor includes the registered proprietor of the lot burdened from time to time and all the heirs, executors, assigns and successors in title to the lot burdened and where there are two or more registered proprietors of the burdened lot the terms of this positive covenant shall bind all those registered proprietors jointly and severally. Council means the Ku-ring-gai Municipal Council or its successor 12 The s 88B Instrument nominates the Council as the person "empowered to release, vary or modify" (i) the Restrictions on the use of land; and (ii) the Positive Covenant - each of which burdens the development site. 13 The relevant provisions of the Neighbourhood Development Contract having force under the Community Land Development Act 1989 and the Community Land Management Act 1989 include cll 1, 4 and 5.4 and 5.7 which respectively provide as follows: 1. This contract contains details of a neighbourhood scheme which is proposed to be development on the land described in it. Interested persons are advised that the proposed scheme may be varied, but only in accordance with Section 16 of The Community Land Management Act 1989. (if the scheme forms part of a staged development, interested persons are advised of the possibility that the scheme may not be completed and may be terminated by order of the Supreme Court.)

4. The terms of this contract are binding on the original proprietor and any purchaser, Lessee or occupier of a Lot in the scheme. In addition, the original proprietor covenants with the neighbourhood Association and with the subsequent proprietors jointly and with each of them severally to develop the land the subject of the Neighbourhood Scheme in accordance with the Development Consent as modified or amended with the Consent Authority Approval from time to time. 5.4 The theme of the scheme shall be that of a private Low Density Development taking into account the natural beauty and heritage of the existing dwelling on lot 7. 5.7 Under the Agreement included by Section 15 in the development contract lodged with a neighbourhood plan the original proprietor of the land the subject of the Neighbourhood's Scheme covenants -

(a) with the Neighbourhood Association; and (b) with the subsequent proprietors jointly and with each of them severally that the land will be developed in accordance with the Development Contract and the Development Consent. 14 The relevant provisions of the Neighbourhood Management Statement having force under the Community Land Development Act 1989 and the Community Land Management Act 1989 include By-laws 1.1, 2, 3.8 and 13.1 which respectively provide as follows: 1.1 A proprietor or occupier of a Lot shall not alter the structure of the Lot or the buildings thereon unless such alterations are in accordance with the Plans approved by the Council or as presented in the Development Contract or in any way detract from the theme of the development. 2. Architectural and Landscape Standards bind: (a) The Neighbourhood Association; (b) each proprietor or occupier of a Lot; (c) each mortgagee in possession of a Lot; (d) each lessee of a lot. 3.8 The proprietor or occupier of a Lot must not except with the approval of the Neighbourhood Association construct install or maintain on or in a Lot anything which can be seen from outside the Lot and which in the reasonable opinion of the Neighbourhood Association is not in keeping with the building on or the landscaped areas of the Lot. 13.1 The Proprietor of Lot 7 in the Neighbourhood Scheme shall maintain the onsite stormwater detention facilities within Lot 7 in accordance with the obligations imposed upon Lot 7 by the restrictions as to user created pursuant to the registration of the plan of subdivision creating the Neighbourhood Plan. 15 An additional fact to be noted is that the Applicant has filed in the proceedings an amended site plan of the proposed dwelling-house showing the location of two separate on-site stormwater detention tanks (Exhibit 1) and a document (Exhibit 2) containing engineering/mathematical calculations for on-site stormwater detention in respect of the existing house on the development site and in respect of the proposed dwelling-house. It is agreed by the Council that the location of the two detention tanks and the engineering/mathematical calculations indicate a satisfactory conceptual design for on-site stormwater detention needs generated by the existing dwelling-house and by the proposed dwelling-house. The locations of these two proposed tanks is not the same (nor are the relevant dimensions) as the location of the existing on-site stormwater detention system which is located on the site of the former grass tennis court in the position shown in precise survey detail on Deposited Plan 285554 which is to be the site of the proposed new dwelling-house. C. THE COMPETING ARGUMENTS 16 The Council's argument is founded upon the inconsistency of the proposed development with the ongoing operation of the 1997 development consent manifested in the registered s 88B Instrument and the registered Neighbourhood Scheme in respect of the obligations to maintain the on-site stormwater detention facility that has been installed in a particular place on the development site as required by conditions of the 1997 development consent. The inconsistency is created by virtue of the proposal to physically locate the proposed additional dwelling-house on that part of the development site which includes the physical placement of the installations comprising the on-site stormwater detention facility. 17 It is not in dispute that the proposed development and the existing stormwater detention facility cannot physically co-exist on the same portion of the development site. If the new dwelling is erected on that part of the development site it will necessarily terminate the presence on that part of the development site of the existing stormwater facility. In this sense, there is obvious inconsistency between the proposed development and the ongoing obligations imposed by the registered s 88B Instrument and the registered Neighbourhood Scheme to maintain the existing on-site stormwater detention system. 18 However, the Applicant's competing case is that this identified inconsistency between the proposed development and the existing stormwater facility is not the end of the matter because it is physically possible for an alternative location to be found on the development site for the existing stormwater facility serving the existing dwelling-house and also for a separate stormwater facility to be provided for the proposed additional dwelling-house. 19 It is the Applicant's case that the creation of these physical outcomes on the development site will satisfactorily provide for all the needs for on-site stormwater detention both in respect of the existing dwelling-house and the proposed additional dwelling-house. The Council accepts that this physical outcome is achievable, and has already been demonstrated (at least at the conceptual design level) by Exhibits 1 and 2. It is in this sense that the Applicant asserts that there will be no relevant inconsistency between the proposed development and the obligation in respect of the existing on-site stormwater detention system (by virtue of the substitution for the existing installation of the proposed installations in different locations on the development site). 20 The surviving question that appears to remain in dispute is how the outcome concerning on-site stormwater detention that has been outlined by the Applicant (and which is not disputed by the Council as being physically feasible) can be legally achieved or implemented in the context of the present proceeding. This is to give the question of law a distinctly procedural flavour rather than raising a true question of legal power. Nonetheless, the Council submits that the present proceeding is not legally sufficient of itself but requires supplementation by additional proceedings - namely (i) a modification application pursuant to the EP&A Act, s 96 to modify the conditions of the 1997 development consent; and (ii) an application under the Community Land Management Act 1989, s 107 to amend the development contract which forms an intrinsic part of the Neighbourhood Scheme. In respect of the need for these supplementary proceedings, the Council does not oppose the Applicant's ultimate fall-back position of seeking an adjournment of the present proceedings in order for the Applicant to have the opportunity to initiate the supplementary proceedings if they are held to be necessary (contrary to the Applicant's principal submission which is to the effect that they are not necessary). 21 On the other hand, the Applicant submits that the identified outcome in respect of the on-site stormwater detention facility is legally achievable in the context of the present proceeding without the need for the identified supplementary proceedings for either of the following alternate reasons - (i) the capacity and competence for the registered s 88B Instrument to be varied by the Council (which is benefited by it) which power is vested in this Court by virtue of the Land and environment Court Act 1979 ( LEC Act ) , s 39(2) and the flow-on effect of such a variation to the Neighbourhood Scheme; and (ii) the effect of cl 8 of State Environmental Planning Policy No 53 - Metropolitan Residential Development (SEPP53) rendering " not applicable " the registered s 88B Instrument and the registered Neighbourhood Scheme to the extent necessary to enable the proposed development to be carried out in accordance with the State Policy or a development consent granted pursuant to it. 22 As I understand the Council's argument, it does not dispute that there is express power to release, vary or modify the registered s 88B Instrument and that that power is, by virtue of the LEC Act, s 39(2), available to this Court on the hearing of the present proceeding: see Rutland v Shoalhaven City Council (1997) 94 LGERA 370, Moss v Kiama Municipal Council (2003) 127 LGERA 83 and Chehab v City of Canada Bay Council (2002) 123 LGERA 431. 23 However, the Council's argument did not concede that any relevant variation of the registered s 88B Instrument would of itself, necessarily overcome any inconsistency with the registered Neighbourhood Scheme. Although the Council maintained its position that a supplementary proceeding by way of s 96 modification application was necessary, it did not attempt to assimilate within its argument the prospect of the Court exercising the express power to vary the registered s 88B Instrument in a manner that substituted for the existing stormwater facility the alternative systems outlined in Exhibits 1 and 2. (In fairness to the Council, the Applicant's case did not spell out in any particular detail the content of the requisite variation of the registered s 88B Instrument other than to postulate the availability of such a variation being effected). 24 Finally, the Council challenged the soundness of the Applicant's alternative argument founded on cl 8 of SEPP 53 by submitting that that provision did not apply to the registered s 88B Instrument or to the registered Neighbourhood Scheme both of which had directly emanated from the conditions imposed upon the 1997 development consent. The Council's written argument on this point proceeded as follows: · Section 28 of the Act and clause 8 of SEPP53 do not apply to public positive covenant or in particular to public positive covenants required in accordance with a consent granted under the EP&A Act. · The effect of section 28 of the Act is to permit a consent authority to displace private rights to the extent necessary to permit a development in circumstances where an environmental planning instrument contains a section 28 provision. However such provision does not operate against the terms of a public positive covenant or the terms and conditions of a development consent granted under the Act. · Section 28(2) of the Act provides that, to the extent necessary to enable development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under the Act, an environmental planning instrument may provide that a regulatory instrument specified therein shall not apply to such development. A regulatory instrument is defined as any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made. · Condition 20 of Development Consent No. 4878 of 1996 operated to create a public positive covenant relative to the provision of a stormwater drainage detention system. This stormwater detention system identified within Lot 7 in the Neighbourhood Plan DP 285554 is the site of the proposed detached dual occupancy development the subject of Appeal No. 10541 of 2004. Section 28 of the Act does not apply to regulatory instruments under the Environmental Planning and Assessment Act and as such is not subject of clause 8 of SEPP53. · Section 28 of the Act and Clause 8(1) of SEPP53 do not operate to overcome the obligations under Development Consent no. 4878 of 1996, the Neighbourhood Scheme of the Community Land Development Act 1989 and the Community Land Management Act 1989. 25 The EP&A Act, s 28 includes the following subsections - Suspension of laws etc by environmental planning instruments (1) In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made. (2) For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument. 26 Clause 8 of SEPP53 includes the following subclauses: Suspension of certain covenants etc (1) Any agreement, covenant or similar instrument imposing restrictions on the erection of buildings or the use of land, or otherwise affecting the development of land, does not apply to the extent necessary to enable development to be carried out in accordance with this Policy or a consent granted under the Act pursuant to this Policy, except as provided by subclause (2). (2) Subclause (1) does not apply to a covenant in favour of Sydney Water Corporation Limited or a water supply authority listed in Schedule 1 to the Water Supply Authorities Act 1987 . 27 Part 3 of SEPP53 is headed "Dual Occupancy" and includes the following provisions: 15 Objectives The objectives of this Part are: (a) to create opportunities for two dwellings to be developed on a single allotment of land, and (b) through the other provisions of this Policy, to ensure that dual occupancy development is: (i) designed and assessed with a full understanding of the opportunities and constraints of each site, and (ii) designed and assessed having adequate regard for the design principles contained in Part 5. 17 What this Part allows This Part allows development that results in two dwellings being located on the one allotment of land if the land is within a zone which, under another environmental planning instrument, permits the erection of dwelling houses and the development is carried out in accordance with this Part and Part 5.

18 Development consent Development allowed by this Part may be carried out only with the consent of the relevant consent authority, unless another environmental planning instrument allows that development without consent.

21 Subdivision not permitted by this Part (1) Nothing in this Policy permits a subdivision of an allotment on which there are two dwellings as a result of development allowed by this Part. (2) However, nothing in this Policy prevents such a subdivision if it is permitted by another environmental planning instrument. 28 Part 5 of SEPP53 is headed "Design Requirements" and includes the following provisions: 27 Objective The objective of this Part is to establish a process and criteria that encourage good design in residential development that may be used in the design and assessment of development allowed by this Policy.

28 Development to which this Part applies This Part applies to development that is allowed to be carried out with development consent by this Policy.

29 When this Part applies This Part applies when a consent authority is determining an application for consent to the carrying out of development to which this Part applies.

30 What this Part does This Part requires certain design aspects to be taken into account when a consent authority considers an application for consent for the carrying out of development to which this Part applies.

32 Design of residential development Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles:

(d) Stormwater The proposed development should, where possible: (i) control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters, and (ii) include, where practical, on-site stormwater detention or re-use for second quality water uses, and (iii) be designed with regard to the scope for on-site infiltration of water. 29 The Applicant's competing written submissions on the effect of the EP&A Act, s 28 and cl 8 of SEPP53 proceeded as follows: · The positive covenant is not a public positive covenant. The Conveyancing Act 1919 sets out procedures for the registration of public positive covenants pursuant to s88E Conveyancing Act. The covenant in the s 88B instrument is not a S88E instrument. · Even if the positive covenant is a public positive covenant, it is within the ambit of cl 8 of SEPP53. · The purpose of s28 EP&A Act is a planning purpose, designed to facilitate development and overcome impediments (Coles Supermarkets Australia Pty Limited v Minister for Urban Affairs and Planning and Wagga Wagga City Council (1996) 90 LGERA 341; see also Challlister Ltd v Blacktown City Council at p.23 per Talbot J (1992) 76 LGERA 10). · The terms of the definition of regulatory instrument in s28 are broad, and are not limited to instruments giving rise to only private rights (as distinct from public rights). · The proper construction of section 28(1) EP&A Act is broad, and on its terms it applies to regulatory instruments by or under whatever authority made. · Whilst the s88B instrument created in satisfaction of Condition 20, it was made under the authority of the Conveyancing Act. · The words by or under whatever authority made in s28 are to be construed as howsoever created (Colshott v Ludwig unreported, Meagher JA, Giles AJA, Simos AJA, 13 February 1997, CA 40286/94; Edwina Doe v Cogente (1997) 94 LGERA 305 at par 17). 30 Additionally, the Applicant argued that the relevant Neighbourhood Scheme (comprising the Neighbourhood Plan, the Neighbourhood Management Statement and the Neighbourhood Contract) was relevantly a "regulatory instrument" within the meaning of s 28(1) of the EP&A Act and was relevantly "an agreement, covenant or similar instrument" within the meaning of cl 8 of SEPP53. Accordingly, it was submitted that by force of cl 8 of SEPP53, the Neighbourhood Scheme did not apply, to the extent necessary to enable the proposed development to be carried out in accordance with the Policy or a development consent granted under the EP&A Act pursuant to the Policy. 31 In my judgment, neither the positive covenant created by the s 88B Instrument nor the counterpart obligation imposed by cl 13.1 of the By-Laws comprising the Management Statement to the relevant Neighbourhood Scheme is an "agreement, covenant or similar instrument imposing restrictions on the erection of buildings or the use of land or otherwise affecting the development of land" within the meaning of that compound expression in cl 8 of SEPP 53. 32 The obligations imposed by the registered s 88B Instrument and the registered Neighbourhood Scheme (By-law 13.1) are to maintain in good repair the existing on-site stormwater facilities. These obligations do not relevantly "impose restrictions on the erection of buildings or the use of land….etc" and accordingly do not fall within the ambit of cl 8 of SEPP53. Moreover, there is nothing in SEPP53 that remotely suggests that proper and adequate on-site stormwater control facilities are to be sacrificed or ignored, in the interests of promoting dual-occupancy development. Indeed, cl 32 par (d) of SEPP53 is expressly to the contrary of any such suggestion. 33 In so concluding, I would specifically reject the Applicant's argument that the s 88B Instrument was not legally effective to create the positive covenant (that is referred to as the seventh item in that Instrument) because the creation of such a covenant must be imposed pursuant to the power conferred by the Conveyancing Act 1919, s 88E. This is because the argument entirely overlooks the provisions of s 88(3)(d) which state as follows: (d) any restriction on the use of land or positive covenant that is of the type that may be imposed under section 88BA, 88D or 88E and is so indicated as intended to be created takes effect as if it had been so imposed. 34 My conclusion that cl 8 of SEPP 53 does not apply to the positive covenant contained in the registered s 88B Instrument and the registered Neighbourhood Scheme means that it is not necessary to finally adjudicate upon the Council's argument that these instruments are not "regulatory instruments" within the meaning of the EP&A Act, s 28(1) because of the exclusion from the definition of that term of the EP&A Act itself. 35 Although there are obvious textual difficulties confronting the Council's argument inasmuch as (i) the bracketed matter "(other than the Act)" is not repeated at the end of the enumerated class of delegated instruments; and (ii) the registered Instruments are primarily sourced in the Conveyancing Act 1919 and the Community Land Development Act 1989 and the Community Land Management Act 1989 respectively, there is much conceptual and logical force in the Council's argument that the true and original cause for the creation of these instruments is found in the conditions of the 1997 development consent and hence in the EP&A Act itself, and it would be anomalous if s 28 could operate to deny effect to a direct offspring of the EP&A Act. In the circumstances I would prefer to leave this as an open question for decision in a future case which requires an adjudication on it. 36 In leaving this question, I should note that the Applicant's argument in reliance upon cl 8 of SEPP53 to overcome the effect of the registered s 88B Instrument and the registered Neighbourhood Scheme did not suggest any automatic or predestinated effect of rendering "not applicable" the relevant "regulatory instruments". Rather the Applicant accepted that the effect of cl 8 would depend in a given case upon a decision of the consent authority (or this Court, on appeal) to grant development consent while deliberately conscious of the existence of the regulatory instrument and only after giving its existence proper consideration in evaluating the planning merits of the proposed development. In my opinion, this reflects the proper interpretive approach to cl 8 of SEPP53 (and to similar provisions contained in environmental planning instruments pursuant to s 28(2) of the EP&A Act). 37 It remains for me to consider the alternate ground advanced by the Applicant in support of his submission that the availability to the Court by virtue of s 39(2) of the LEC Act in the hearing and disposing of the present proceedings, of the power conferred upon the Council by the registered s 88B Instrument to release, vary or modify the relevant restriction on user and the relevant positive covenant, provides the means of eliminating all relevant inconsistency between the proposed development and the ongoing obligations in respect of the maintenance of the existing on-site stormwater facility installed on the development site. 38 As I have earlier noted, the Applicant's case suggests that such an outcome can be achieved by an appropriate variation of the registered restriction on user and the registered positive covenant. Although precise details of the variation have not been advanced by the Applicant, it is reasonable to assume that the contemplated variation would be to simply change the location of the existing on-site stormwater detention installation from its current position as precisely shown on the relevant Deposited Plan to the different location on the same development site as shown on Exhibit 1. (That Exhibit additionally shows the location of the on-site stormwater detention install required in respect of the additional dwelling-house). 39 The question is whether the adoption of such a variation (the precise terms of which are to be formulated by the Applicant hereafter) effectively relocating elsewhere on the development site the existing on-site stormwater detention installation would pave the way for development consent to be granted for the erection of the proposed additional dwelling-house where that consent would not be inconsistent with (i) the ongoing operation of the 1997 development consent; (ii) the registered s 88B Instrument; and (iii) the registered Neighbourhood Scheme. 40 It is necessary to separately examine each of the three suggested sources of potential inconsistency with the grant of development consent to the proposed development concurrently with, or contingently upon, the appropriate variation of the registered restriction on use and positive covenant that each bind the development site. The examination proceeds upon the assumption that development consent is granted concurrently with the appropriate variation being effected to the registered s 88B Instrument. (i) The 1997 development consent 41 The only relevant Condition of the 1997 development consent relied upon by the Council as involving any relevant ongoing obligation is Condition 20 which required the creation of the positive covenant and restriction on the use of land pursuant to the Conveyancing Act 1919, s 88B burdening the development site "with the requirement to maintain the on-site stormwater detention facilities on the property". Condition 20 did not itself create the required positive covenant or restriction on use of land. Nor did it nominate the particular location on the development site for the installation of the required facilities. Rather, it left the outworking of these matters to the relevant s 88B Instrument and other relevant conditions of the development consent requiring the construction of these facilities to the satisfaction of the Council prior to the issue of the Council's subdivision certificate. By the time the s 88B Instrument was registered together with Deposited Plan 285554, the requisite facilities had been constructed. It was at this point of time that the registered restriction on use and the registered positive covenant took effect to secure the ongoing maintenance of the constructed facility. 42 In my two earlier decisions in Rutland and in Moss involving conditions of development consent similar to condition 20 of the 1997 development inasmuch as they required the creation of a s 88B restriction on user, I considered the question whether the relevant condition had an operation independent of the existence of the s 88B restriction on user. The result yielded in each of those cases was delivered via the process of statutory construction of the relevant development consent and the conditions of that consent in the light of relevant background facts. 43 In the present case, the result yielded by the proper construction of of the 1997 development consent is that Condition 20 does not have an operation independent of the existence of the registered s 88B Instrument and that the coming into existence of that Instrument entirely fulfilled the requirements of Condition 20 which thereupon became spent. This is similar to the result that was reached in Moss for the reasons there set forth at pp 90 to 92 (inclusive). 44 Accordingly, upon the stated assumption that the grant of development consent would be concurrent with, or contingent upon, the appropriate variation of the relevant restriction on use and the relevant positive covenant, I am satisfied that there would be no relevant inconsistency between that consent and any relevant ongoing obligation imposed by the 1997 development consent where the only current manifestation of that ongoing obligation is the s 88B Instrument. (ii) The registered s 88B Instrument 45 Upon the stated assumption of there being an appropriate variation of the s 88B Instrument, it is obvious that there would be no inconsistency between the varied Instrument and the grant of development consent to the proposed development. This reflects the same conclusion that was reached in Moss and for the same reasons. (iii) The registered Neighbourhood Scheme 46 The only relevant feature of the Neighbourhood Scheme relied upon by the Council in support of its case is By-Law 13.1 which merely re-declares or repeats the obligations to maintain the on-site stormwater detention facilities "in accordance with the obligations imposed….by the restrictions as to user created pursuant to the registration of the plan of subdivision creating the Neighbourhood Plan". 47 If on the stated assumption those obligations are to be appropriately varied, concurrently with the grant of development to the proposed development, it would naturally follow that the obligations re-declared by By-Law 13.1 are to be properly understood as a reference to the obligations imposed by the s 88B Instrument as varied in the contemplated manner. 48 Accordingly for these reasons, I am satisfied that there would be no relevant inconsistency between that development consent and the ongoing obligation imposed by the registered Neighbourhood Scheme in general, or By-Law 13.1 in particular. D. CONCLUSIONS 49 For all of the foregoing reasons, I am of the opinion that the grant of development consent to be proposed development concurrently with, or contingently upon, the appropriate variation of the restriction on use and the positive covenant created by the registered s 88B Instrument, would not give rise to any relevant inconsistency between that development consent and (i) the 1997 development consent; (ii) the registered s 88B Instrument; or (iii) the registered Neighbourhood Scheme, such as may otherwise require the refusal of development consent. Accordingly, the question of law should be answered in the negative. 50 In so concluding and having regard to the manner and content of the competing arguments, I do not think it necessary to reconsider what I said obiter in Moss at pp 92 to 94 (inclusive) concerning the intrinsic limits on the discretionary power vested in a consent authority pursuant to the EP&A Act, s 80(1) not to exercise that power in a manner that would create or result in a direct and deliberate contravention of the EP&A Act (by the carrying out of the proposed development, assuming development consent had been granted). 51 Nor do I think it necessary in the present case to separately examine whether the creation of any relevant inconsistency with either the registered s 88B Instrument or the registered Neighbourhood Scheme (in each case considered independently from the question of any ongoing operation of the 1997 development consent) would necessarily attract the principle that was enunciated obiter in Moss. At the same time, I would not wish anything said in this judgment to be interpreted as offering an affirmative answer to that question. Indeed, the decision in Moss (and not the obiter dicta) was that the existence of the s 88B restriction on user did not preclude the grant of development consent because the power vested in the Council to release, vary or modify the restriction was available to the Court by virtue of the LEC Act, s 39(2). Moreover, there is much earlier authority in this Court to the effect that the existence of a restrictive covenant etc does not per se constitute a legal impediment to the grant of development consent. The relationship between the EP&A Act and the Neighbourhood Scheme is more closely aligned (see for example the Community Land Development Act 1989, ss 26(3) and (4) and the Community Land Management Act 1989, s 106). However, the present case (which has been confined to the effect of By-Law 13.1) does not call for an exposition of those provisions or of the relationship between those Acts and the EP&A Act. 52 Accordingly, I make the following orders - 1. The question of law raised by the Council be answered as follows:

Question: Must development consent be refused in the present case on account of the proposed development being inconsistent with (i) conditions of the 1997 development consent; and (ii) the registered s 88B Instrument; and (iii) the registered Neighbourhood Scheme? Answer: No, because it is possible to grant development consent, concurrently with or contingently upon an appropriate variation of the s 88B Instrument, so as to avoid all of the suggested inconsistencies.

2. The proceedings be stood over to the Registrar's callover on 28 October 2004 for directions for the completion of the hearing. 3. The parties have liberty to restore before me on three days' notice in the event of their agreeing upon an outcome of the present proceeding conformably to the Court's determination of the question of law. 4. Question of costs reserved. 5. Exhibits be returned.

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.