Ashley Adams v Ku-Ring-Gai Council

[2006] NSWLEC 213

Land and Environment Court

of New South Wales

CITATION:	Ashley Adams v Ku-Ring-Gai Council [2006] NSWLEC 213
PARTIES:	APPLICANT Ashley Adams RESPONDENT Ku-Ring-Gai Council
FILE NUMBER(S):	10086 of 2006
CORAM:	Jagot J
KEY ISSUES:	Appeal :- Application to modify development consent
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 79C, s 96(1), s 96(1A), s 96(6) Land and Environment Court Act 1979 s 69 Land and Environment Court Rules 1996 Pt 16 r 4(2)
DATES OF HEARING:	04/04/2006
EX TEMPORE JUDGMENT DATE:	04/04/2006
LEGAL REPRESENTATIVES:	APPLICANT P Whitford (solicitor) SOLICITORS Maddocks RESPONDENT J Smith (solicitor) SOLICITORS Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

4 April 2006

10086 of 2006

ASHLEY ADAMS
Applicant

KU-RING-GAI COUNCIL
Respondent

JUDGMENT

Jagot J:
Introduction

1 This is an application under s 96(1A) of the Environmental Planning and Assessment Act 1979 (the “EPA Act”) to modify a development consent granted by Ku-Ring-Gai Council (“the Council”) for the demolition of an existing dwelling and the construction of a detached dual occupancy development. The Council now consents to the making of orders as sought by the applicant.

2 The modification application seeks to modify three conditions of the development consent that was issued by the Council on 10 March 2005. In particular, it seeks to delete conditions 52 and 53, both of which relate to the provision of a cash bond or bank guarantee for trees and landscaping (described in condition 52 as a landscape establishment bond and in condition 53 as a tree maintenance bond).

3 The s 96(1A) application also seeks to amend condition 59A of the development consent. That condition required that “prior to the issue of the construction certificate the applicant shall submit for approval by the principal certifying authority (PCA) a fence plan showing ONLY side and rear fences exclusive of the Mudies Road and Banool Avenue and the proposed lap and capped fence between dwellings 1 and 2 from the southern boundary to the Mudies Road building line (behind the dwellings). No front fences or fences forward of the Mudies Road and Banool Avenue building line will be permitted. This includes the 1.5 metre brickwork privacy wall”.

Statutory provisions

4 Section 96(1A) of the EPA Act authorises a consent authority on application being made by a person entitled to act on the consent to modify the consent if: - (a) it is satisfied that the proposed modification is of minimal environmental impact; (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified at all; (c) it has notified the application in accordance with the regulations, if the regulations so require or a development control plan, if there is such a development control plan; and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan as the case may be.

5 The EPA Act provides in s 96(6) that an applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made, may appeal to the Court and the Court may determine the appeal. This right of appeal relevantly applies to s 96(1A) applications (in contradistinction, for example, to applications under s 96(1)).

The position of the parties

6 In this case, the Council (on 17 November 2005) determined the s 96(1A) application by refusal on the grounds set out in the notice of refusal. Subsequently, the applicant appealed to this Court. The Council’s position altered, and the Council is now willing to enter into consent orders pursuant to which condition 52 will be deleted, condition 53 will be deleted and condition 59A will be amended, as sought by the applicant.

7 There has been tendered in evidence before me a letter from the solicitors for the Council to the solicitors for the applicant which attaches a letter setting out the Council’s reasons for the change of position, at least in relation to condition 59A.

8 Mr Smith, who appears for the Council in the proceedings, also indicates that the Council consents to the deletion of conditions 52 and 53 in circumstances where those conditions are unnecessary having regard to the nature of the development and the conditions otherwise imposed on the development consent. Ms Whitford appears for the applicant. Ms Whitford submits that the requirements of s 96(1A) are satisfied and that the modification application ought to be approved.

Conclusions

9 Having regard to the material placed before me I am satisfied that the proposed modification is of minimal environmental impact. In short, I see no real environmental impact arising by reason of the deletion of conditions 52 and 53. Any environmental impacts flowing from the alteration to condition 59A (in effect the reduction of a brickwork privacy wall proposed at 1.5 metres to a height of 1.2 metres) will also be minimal. I am thus satisfied in terms of s 96(1A)(a) of the EPA Act.

10 It also necessarily follows that I am satisfied that the development to which the consent as modified relates, will be substantially the same development as the development for which the consent was originally granted. I am thus satisfied in terms of s 96(1A)(b) of the EPA Act.

11 The Council has filed in the proceedings, and there has been tendered before me, a statement of basic facts. That statement records that, in accordance with the Council’s notification policy, owners of surrounding properties were given notice of the original development application. One submission was received, and that submission did not raise any issues relevant to the current appeal proceedings. Further, in accordance with Pt 5 of the Ku-Ring-Gai notification policy, the proposal the subject of the modification application was not required to be advertised or notified. Consequently, no submissions were received in response to the s 96(1A) application. Therefore, on the basis of that material, I am also satisfied in terms of the requirements of s 96(1A)(c) and (d).

12 Insofar as any other considerations under s 79C of the EPA Act might be relevant, I am satisfied that the modification application raises no issue which would weigh against the grant of approval as sought by the applicant.

13 Ms Whitford has helpfully summarised a series of cases in which the Court, in one decision of the former Chief Judge, Pearlman J, and in a series of decisions of Commissioners, has refused to impose conditions requiring the provision of bonds or cash performance guarantees for trees and landscaping. Six of those seven decisions relate to Ku-Ring-Gai Council.

14 The applicant says that, in circumstances where the Council has been the respondent to six appeals, and in each appeal the Court has refused to impose a condition requiring a tree protection or landscape maintenance bond, it is fair and reasonable that there also be an order for costs against the Council in this matter.

15 The Council (for its part) consents to the making of an order for costs against it in the sum of $1,550.

16 The power to make a costs order is contained in s 69 of the Land and Environment Court Act 1979 which power is to be exercised having regard to the requirements of Pt 16 r 4(2) of the Land and Environment Court Rules 1996 – namely, that no order for the payment of costs will be made in proceedings to which the rule applies unless the Court considers that the making of a cost order is, in the circumstances of a particular case, fair and reasonable.

17 In this case the primary circumstance that I consider makes it fair and reasonable that there be an order for costs, is the Council’s consent to the order in circumstances where it refused the application on certain grounds, each of which has now been withdrawn.

18 As I have not received submissions on the power to impose conditions relating to tree bonds or landscape maintenance bonds (primarily because the Council consents to this modification application, and thus is not a contradictor in any real sense), I do not see this to be an appropriate matter for me to say anything about that question or, indeed, to take that question into account on the issue of costs. In circumstances where the Council initially refused the application relating to all three conditions, but now is willing to enter into consent orders relating to all three conditions precisely as sought by the applicant in its original application, it is fair and reasonable (and the Council accepts) that there should be a costs order in these proceedings consistent with the draft consent orders. That is a sufficient basis upon which to make the costs order.

19 For these reasons I make the following orders:

(1) The appeal is upheld.

(2) Development consent number 0965/04 is modified as follows:

(a) Condition 52 (landscape establishment bond) is deleted;

(b) Condition 53 (tree maintenance bond) is deleted;

(c) Condition 59A is amended so as to read as follows:

“Prior to the issue of the construction certificate the applicant shall submit for approval by the principal certifying authority (PCA), fence plans showing the modification of the 1.5 metre brickwork privacy wall to a height of 1.2 metres. The site plan and the landscape plan shall be amended to reflect these changes.”

(3) The respondent shall pay the applicant’s reasonable costs incurred in these proceedings in the sum of $1,550.

(4) All exhibits other than Exhibit 1 are returned.

****************************