This appeal was lodged against the refusal of development application DA/401/2016. The application sought approval for the construction of infill affordable housing at 6 Felton Road, Carlingford (the Site).
The appeal was subject to mandatory conciliation on 15 November 2016 (34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s 34AA(2)(b)(ii) LEC Act).
In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.
Prior to the hearing, the parties agreed to enter into consent orders based on the amendments made to the proposal and the provision of additional information to address contentions identified by the Council.
The amendments to the proposal can be summarised as follows:
1. changes to the roof forms of Unit 8 and 9 to achieve compliance with the maximum allowable height of 9m;
2. Modifications to the roof form of Unit 1 to provide a form more consistent with the streetscape of Felton Street;
3. Revisions to the vehicular ramp to improve manoeuvrability into and out of the basement;
4. Relocation of bin storage to the basement;
5. Incorporation of additional boundary planting along the shared boundary with 8 Felton Road.
6. The inclusion of fixed privacy louvers, up to 1600mm above floor level, for windows facing the property at 8 Felton Road.
In considering the consent orders, the Court's Practice Note - Class 1 Development Appeals (paragraph 36) provides relevantly:
36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:
i) the content of the proposed orders (including the proposed conditions of consent);
ii) the date of the hearing by the Court to consider making the proposed consent orders; and
iii) the opportunity for any such person to be heard,
or that, in the circumstances of the case, notification is not necessary.
The Council furnished the Court with documentation confirming that the objectors had received notification of the proposed consent orders and were provided the opportunity to be heard at the hearing as required by the Practice Note.
The development application seeks approval for the demolition of all structures, tree removal and construction of infill affordable housing. The application is lodged under the provisions of State Environmental Planning Policy Affordable Rental Housing (SEPP ARH). Specific details of the proposal are as follows:
Construction of a three-storey multi dwelling housing development consisting of 10 attached dwellings, basement parking and construction of storm water works.
The final issue in contention between the parties is the appropriate wording of the proposed deferred commencement condition to address the right to drain through the downstream property.
[2]
The site and its context
The site is an irregular 'L' shaped allotment located on the eastern side of Felton Road, Carlingford. The site enjoys frontage to Felton Road of 24.885m, has a total area of 1,815m ², and a moderate fall from the front of the site to the rear. The site contains a single detached dwelling and ancillary structures that are to be demolished. The site has no significant vegetation.
The area surrounding the site is characterised predominately by residential development of single and double storey construction. The site is adjoining by 1-2 storey dwellings to the south, detached two-storey dwelling to the west, and an electrical substation to the north.
The site is on the interface with land zoned B2 to the east and land zoned R2 to the north.
[3]
Planning Controls:
Section 79C(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) requires the consent authority, in this case the Court, to consider a number of provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
The key statutory controls relevant to the application are as follows:
State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP)
The development is subject to the requirements of the BASIX SEPP. The relevant clauses are:
Clause 3: Aim of the policy
Clause 4: Definitions
Clause 5: Land to which Policy applies
Clause 6: Buildings to which Policy applies
Clause 7: Relationship with other environmental planning instruments
State Environmental Planning Policy (Affordable Rental Housing) 2009
Clause 3: Aims of the policy
Clause 4: Interpretation - General
Clause 7: Land to which Policy applies
Clause 8: Relationship with other environmental planning instruments
Division 1: Infill Affordable Housing
The Hills Local Environmental Plan 2012 (LEP 2012)
Clause 1.2: Aims of the plan
Clause 1.3: Land to which plan applies
Clause 1.4: Definitions
Part 2: Permitted or prohibited development
Clause 1.4A : Minimum lot size for R3 and R4 zones
Clause 1.4B: Exceptions to minimum lot sizes for certain residential development
Clause 4.3: Height of Buildings
Clause 4.4: Floor Space Ratio
Clause 4.5: Calculation of floor space ratio and site area
Clause 4.6: Exceptions to development standards
Clause 5.9: Preservation of trees
Clause 5.10: Heritage Conservation
Clause 7.2: Earth works
The Hills Development Control Plan 2012 (DCP 2012)
Part A: Introduction
Part B Section 4: Multi Dwelling Housing
Part C Section 1: Parking
The proposed development is permissible in the zone and the planning experts agree that the development satisfies the precondition of SEPPARH, at cl 16A: Character of the Local Area, and they find that the development is compatible with the character of the local area.
[4]
Public submissions
As a result of public exhibition in accordance with the relevant controls, one submission was received in relation to the application. The submission raised concerns in relation to the failure of the development provide adequate onsite parking within the site. The consideration of the adequacy of parking is discussed further in the following.
In accordance with the requirements of the practice note Exhibit 1 includes a copy of the relevant correspondence to the objectors notifying them of the proposed orders and the date of the proceedings.
[5]
Expert Evidence
The Court heard expert planning evidence from Mr Andrew Minto, for the applicant, and Ms Kerry Gordon for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit 1.
The experts agreed that the proposal, as amended, meets the objectives and provisions of the SEPPARH, and of Council's LEP and DCP to the extent that they applied.
The conclusion of their assessment of the amended application against the Councils original contentions in the case is provided below (Exhibit 1):
I agree with the parties that incompatibility with the character of the local area is no longer a ground for refusal of the application and accept their evidence that based on the amendments the remaining issues are resolved.
The Court was also assisted by evidence from Councils Traffic and Transport Investigations Engineer who concluded that the amended plans satisfactorily address contention 8- Parking and manoeuvring (Exhibit 1).
I accept the evidence of the experts that the issues previously in contention in relation to vehicular parking and manoeuvring have been resolved through amendments to the plans.
[6]
Does the development provide adequate onsite parking within the site?
The resident raises concern in his submission that within Felton Street parking is heavily utilised due to the location of the school and commercial premises within close proximity to the site. The objector seeks the inclusion of four additional spaces within the development to accommodate what he seeks as the parking demand generated by the development (Exhibit 1).
[7]
Findings
Consent cannot be refused under the SEPPARH if the amount of parking required by the SEPP is provided. This application provides the required parking for the development. Compliance is also met in terms of the required provision of motorcycle and bicycle parking and accessibility to public transport.
Therefore, whilst the objectors may still consider that the application provides inadequate parking, and that there is a high demand for on street parking already in Fenton Street, the amount of parking provided onsite in the application complies with what the planning controls require and therefore cannot be a basis for refusal of the application.
[8]
Deferred Commencement condition.
Having been satisfied that it is appropriate to grant consent to the development the issue in dispute between the parties is the proposed deferred commencement condition to address the right to drain through the downstream property.
Mr McKee argues that Councils condition is onerous. His client wishes to begin work on site as soon as practical, commencing with excavation and basement works. Mr McKee argues that during this time the procedural process of the registration of the easement through NSW Land and Property Information Service can occur. It is his submission that this will allow for the orderly and economic use of the land, as sought by the Act, rather than the construction being delayed a further 6-8 weeks whilst the process of registration occurs.
Mr McKee argues that the deed he proposes (Exhibit D) between the applicant and the strata of the downstream property is a legally enforceable undertaking that would give certainty to the means of the discharge of water from the site. If the applicants wording is accepted, development could not commence until the deed was executed.
The Applicant seeks the following wording of the condition:
Submission to Council of a legally enforceable agreement confirming the granting of an easement to drain water 1.0 metre wide over a downstream property, benefiting the subject lot known as Lot 1 in DP 212573 (6, Felton Road, Carlingford) and burdening the downstream property known as SP 79261 (237-239, Pennant Hills Road).
…
Given that the need to drain water to the easement is triggered as surface and roof water is required to be collected the applicant proposes the following condition, which would be an operation condition:
No construction works above the ground floor slab are to be carried out until the easement to drain water has been registered with the NSW Land and Property Information Service. The applicant is to advise the Council within 40 hours of the circumstances where this condition is comes into effect.
Mr McKee argues that the execution of the deed between the applicant and the strata body of the downstream property achieves owners consent; the agreement to the constriction of the pipe; agreement to the compensation amount and agreement to the addition of the easement on the title. If the Court supports the applicant's condition wording, in his submission this will all occur before the consent is operational.
Further Council is protected as the applicant is constrained by the additional operational condition in that the applicant must cease work at the ground floor slab.
The Council seeks the following wording of the condition:
Submission to Council of suitable documentary evidence issued by the Department of Lands confirming the creation of an easement to drain water 1.0 metre wide over a downstream property, benefiting the subject lot known as Lot 1 in DP 212573 (6, Felton Road, Carlingford) and burdening the downstream property known as SP 79261 (237-239, Pennant Hills Road) has been registered with the NSW Land and Property Information Service.
…
The key argument of the Council is that the wording of the condition proffered by the applicant is uncertain. Mr Gough argues the condition is uncertain for the following reasons:
1. A deed cannot be enforced against or by a third party. It is not able to be enforced by the Council as they are not party to the contract.
2. A deed provides no certainty that an easement would be registered if the owner/s of the development site becomes bankrupt.
3. A deed is only enforceable by the parties to the deed and not by Council. If a party attempted to withdrawn from the deed, proceedings seeking to enforce the deed could only be commenced if the aggrieved party had the means and will to do so.
4. There is no legal mechanism to force the adjoining property to enter into a legally enforceable agreement.
Mr Gough submits that the stormwater drainage design principles, in 3.3.61 of DCP 2011, require that adequate provision is made for the control and disposal of stormwater runoff from the development site and that it has no adverse impact on Councils stormwater drainage systems, the development itself or adjoining properties. Mr Gough argues that the achievement of 'adequate' provision of stormwater will only be achieved if the drainage easement is registered on the title of the burdened lot prior to the consent being operative.
It is Mr Gough's submission that the requirement to register the easement prior to the consent becoming operative satisfies the test in Newbury DC v Secretary of State for the Environment [1981] AC 587, namely:
To be for a planning purpose;
To fairly and reasonably relate to the development; and
To be not so unreasonable that no consent authority would impose it.
[9]
Findings
In accordance with s80(3) of the Act a development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to a matter specified in the condition.
Relevantly pursuant to s80A(1) of the Act the consent authority may impose a condition of development consent if:
(a) it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or
…
(f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C(1), or
(g) it modifies details of the development the subject of the development application, or
…
Relevantly s80(4) requires that conditions are expressed in terms of outcomes or objectives and requires conditions to expressed in a manner that identifies both of the following:
(a) one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve,
(b) clear criteria against which achievement of the outcome or objective must be assessed.
In order for conditions to be successful they need to clear and certain, as outlined in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] 143 LGERA 277 which states at 24:
(that there is no lawful development consent where the consent falls into one of two categories) 'the first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B; 351 (Preistly J A). The second category is where Council has purportedly granted consent, but in terms which lack finality or certainty, so that there is, in substance, no effective consent to the application.
There is no dispute between the parties that the resolution of stormwater discharge is essential to the development application. In fact, reference to Exhibit 1 indicates there has been correspondence between Council and the applicant on the issue from January 2016.
From an evidentiary perspective, there is nothing before the Court indicating consent from the strata body downstream to the easement. The document relied on by Mr McKee in Exhibit C does not give the Court certainty of the strata bodies intention in relation to the easement, rather it details an exchange between lawyers of the two parties in relation to an agreed price for the valuation.
I accept the argument of Mr Gough at [36] that the condition requested by the applicant is uncertain for the reasons he identifies, as well as the following:
1. If the applicant's conditions are preferred the development consent would be commenced without certainty in relation to the adequate provision for drainage. Given the slope of the land, the resolution of the easement must be certain. This is not achieved by the applicants proposed deed of agreement (Kindimindi Investments Pty Ltd v Lane Cove Council). Certainty is achieved by the registration of the right to drain over the downstream property prior to commencing works;
2. An easement serves an additional purpose of notifying future owners of the existence of the right to drain over the downstream lot consistent with Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1; [2001] NSWLEC 70.
Given the above, I find that if the easement cannot be agreed the development should not proceed. Adequate drainage is a fundamental element of the application and the consent authority should be certain as to the resolution of this central element before the consent operates. I find it is appropriate to apply the deferred commencement condition sought by the Council.
[10]
Conclusion
Ultimately, and notwithstanding the concerns raised by objectors, I find that there are no substantive grounds on which the Court can refuse consent to this application. It complies with all of the required development standards of the SEPP.
In my view, the relevant objections raised by neighbours regarding the proposal have been considered by the parties and are appropriately addressed by the amendments made to the proposal to the extent that the relevant planning instruments require.
In this regard, I accept that the amendments to the proposal have addressed Council's original contentions of concern in relation to the proposal and I am also satisfied that the proposal is consistent with the objectives of the SEPP and with the LEP and DCP to the extent that these instruments apply.
In considering the amended plans and documents and agreed conditions of consent, and taking into consideration the issues raised by the objectors, I am satisfied that it is lawful and appropriate to grant consent to the proposal, having regard to the whole of the circumstances.
[11]
Orders:
The Court orders by consent:
1. The applicant is granted leave to rely on amended plans set out in condition 1 of Annexure A;
2. The applicant is to pay the Respondents costs that are thrown away as a result of amending the development application pursuant to s97B of the Environmental Planning and Assessment Act 1979 as may be agreed or assessed;
3. The appeal is upheld;
4. Development Application No. DA/946/2016 HB lodged with the Hills Council on 15 December 2015 for demolition of all structures, tree removal and the subsequent construction of an infill affordable rental housing development containing 10 attached dwellings at Lot 1, DP 212573, being 6 Felton Road is approved subject to the conditions in Annexure A, including the following deferred commencement condition:
Pursuant to the provisions of Section 80(3) of the Environmental Planning and Assessment Act, 1979, the development application be granted a Deferred Commencement Consent subject to the completion of the following:
Submission to Council of suitable documentary evidence issued by the Department of Lands confirming the creation of an easement to drain water 1.0 metre wide over a downstream property, benefiting the subject lot known as Lot 1 in DP 212573 (6, Felton Road, Carlingford) and burdening the downstream property known as SP 79261 (237-239, Pennant Hills Road) has been registered with the NSW Land and Property Information Service.
The above requirement(s) must be satisfied within 24 months of this determination or the consent will lapse.
Upon compliance with the above requirements, the development consent will become operative and will be subject to the following conditions:
…
1. The exhibits are returned with the exception of Exhibit 2, 3 and A.
…………….
D M Dickson
Commissioner of the Court
252094.16 Dickson (C) (310 KB, pdf)
252094.16 Dickson - Plans (5.77 MB, pdf)
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Decision last updated: 04 April 2017