Australand No. 18 Pty Limited (ACN 097 928 777) v Auburn Council

[2003] NSWLEC 159

>

Reported Decision: (2003) 127 LGERA 181

Land and Environment Court

of New South Wales

CITATION:

Australand No. 18 Pty Limited (ACN 097 928 777) v Auburn Council [2003] NSWLEC 159

PARTIES:

APPLICANT
Australand No. 18 Pty Limited (ACN 097 928 777)

RESPONDENT
Auburn Council

FILE NUMBER(S):

10651 of 2003; 10688 of 2003

CORAM:

Cowdroy J

KEY ISSUES:

Practice and Procedure :- related proceedings - motion for proceedings to be heard concurrently - LEP requiring approval of development of site by stages - issues not necessarily identical in each appeal - hearing of appeal to proceed as soon as practicable following delivery of judgment in related matter and by same judicial officer or commissioner

LEGISLATION CITED:

Auburn Local Environmental Plan 2000
Environmental Planning and Assessment Act 1979, s 4

CASES CITED:

Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79;
Memel Holdings Pty Limited v Pittwater Council (No. 3) [2001] NSWLEC 240;
Spurbest Pty Limited v Sydney City Council [2002] NSWLEC 34

DATES OF HEARING:

27/06/2003

DATE OF JUDGMENT:

07/10/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr B. Preston SC

SOLICITORS
Malleson Stephen Jaques

RESPONDENT
Ms C. Schofield (Solicitor)

SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10651 of 2003
10688 of 2003

Cowdroy J

10 July 2003

Australand No. 18 Pty Limited (ACN 097 928 777)

Applicant
v

Auburn Council

Respondent

Judgment

Introduction

1 In proceedings 10688 of 2003 the applicant has filed a notice of motion dated 16 June 2003 (“the motion”) seeking the following orders:-

1 That this Notice of Motion be heard with the other Notice of Motion, dated 12 June 2003, filed by the Applicant in proceedings no. 10651 of 2003.
2 That these proceedings be listed and heard contemporaneously with proceedings nos. 10147 & 10651 of 2003 on 19-29 August 2003.

2 By notice of motion filed on 12 June 2003 in proceedings 10651 of 2003 the applicant seeks an order that those proceedings also be listed with and heard contemporaneously with proceedings 10147 of 2003 on 19 August 2003 to 29 August 2003.

3 At commencement of the hearing Mr Preston SC for the applicant withdrew that part of the motion which sought an order that proceedings 10688 of 2003 be heard with proceedings 10651 of 2003. Further Mr Preston did not rely upon the notice of motion filed in proceedings 10651 of 2003. Accordingly the only question is whether proceedings 10688 of 2003 should be heard simultaneously with proceedings 10147 of 2003 at the hearing which is fixed for 19 August 2003 to 29 August 2003.

Proceedings 10147 of 2003

4 A class 1 appeal was filed on 11 February 2003 in respect of the refusal of Auburn Council (“the council”) to approve a Stage 1 development application of land known as the former Lidcombe Hospital site which was sold by the Olympic Co-ordination Authority (now known as the Sydney Olympic Park Authority) to the applicant in 2002 (“the site”). The site is extensive containing 44.04 hectares in area. Special provisions relating to its redevelopment have been included in the Auburn Local Environmental Plan 2000 (“the LEP”).

5 The applicant had prepared a Stage 1 “Masterplan” for development of the whole of the site, and submitted it to the council for development approval being known as development application 572/02, as detailed in the affidavit of Mr David Stanley O’Donnell sworn 12 June 2003. The land subject of the Stage 1 Masterplan is described in development application 572/02 as follows:-

Lots 560, 561 and 562 in a subdivision of Lots 2 and 3 in D.P. 876565 and Lot 56 in DP 1016757.

6 Following council’s deemed refusal to approve the Stage 1 Masterplan the appeal to the Court was instituted. This appeal has been listed for hearing between 19 August 2003 and 29 August 2003. The statement of environmental effects which accompanied the development application for the Stage 1 Masterplan summarises the purposes for which the applicant seeks development consent as follows:-

· the use of the land in accordance with an overall general plan of development;

· a landscape masterplan for the site;

· demolition of certain buildings;

· land remediation works;

· general site civil works;

· subdivision of the site in accordance with the overall general plan of development;

· access to the site off Joseph Street and Weeroona Road.

7 The amended statement of issues filed 28 April 2003 prepared for hearing in these proceedings indicates that the issues are numerous and complex. However such issues relate solely to the Stage 1 Masterplan proposal.

Proceedings 10688 of 2003

8 In proceedings 10688 of 2003 the applicant appeals against the deemed refusal by council of development application 571/02. The class one application appears to erroneously refer to the appeal as having arisen from the council’s deemed refusal of development application 572/02, which is inconsistent with Mr O’Donnell’s affidavit. Development application 571/02 seeks consent for boundary adjustment and the creation of three new lots (“the three lot subdivision”). The land subject of such development application is described as follows:-

Lots 2 and 3 in D.P. 876565 and Lot 56 in D.P. 1016757

9 By letter dated 31 October 2002 the applicant, in support of development application 571/02, informed the council, inter alia:-

1. The application proposes to create three allotments, shown on the attached plan as Lots 560, 561 and 562. Each allotment has existing frontage to a public road, and each is able to be independently serviced.
2. The application subdivides three existing allotments, thereby creating no net increase in number of properties contained in the overall site.
3. The application proposes no works of any kind. No approval is sought for any activity on the site nor for any occupation of any building within the proposed allotments. In making this application, our Company is happy to contemplate imposition by Council of a condition of consent requiring that no works be carried out under terms of the consent issues.

Submissions

10 The applicant submits that it would be expeditious for the proceedings 10688 of 2003 and proceedings 10147 of 2003 to be heard together. In proceedings 10688 of 2003 the only issue concerns the subdivision of the land. Assuming that the appeal in proceedings 10147 of 2003 is upheld, the appeal in proceedings 10688 of 2003 should be considered contemporaneously. It submits that there are no environmental considerations arising from the three lot subdivision.

11 The council submits that cl 64 of the LEP prevents the Court from determining the appeal unless and until the Stage 1 Masterplan proposal is approved. Clause 64 of the LEP provides:-

64 Staged development
(1) The consent Authority must not grant consent for development of the whole or any part of a parcel of land described in Part 1 of Schedule 7 unless the consent authority is satisfied that the proposed development will form part of staged development in which:
(a) the first stage, to the greatest extent practicable, has regard to all of the maters required by Part 2 of Schedule 7 to be taken into account in staged development proposals and such additional matters as the consent authority may require in relation to the parcel, and
(b) each subsequent stage has regard to the first stage.

Accordingly the council alleges that the LEP requires approval of the Stage 1 Masterplan prior to any other development approval for the site. That is, the council submits that the three lot subdivision is a “subsequent stage”.

12 In support of its submission that the three lot subdivision is a “subsequent stage” the council maintains that separate issues will arise in relation to the Stage 1 Masterplan. Mr Kerry Richard Nash, a consultant town planner briefed by the council, deposed in an affidavit sworn 25 June 2003:-

7. Although this three lot subdivision has been described by the Applicant as a ‘boundary adjustment”, in fact it is a subdivision of great significance to the site generally.
7.1 The subdivision has the effect of creating a separate allotment (lot 562) within which a large number of the heritage buildings are to be found.
7.2 This raises issues as to the potential excising and sale of that lot to a separate purchaser. To the best of my knowledge and belief the applicant has been negotiating the sale of that lot to a private school entity for educational uses.
7.3 As well as isolating some of the heritage buildings within lot 562, the subdivision has the effect of redefining the boundaries of the heritage area because there are a number of buildings of heritage value left on a separate allotment. Nor does the subdivision address entirely the heritage landscape setting of the site.

Mr Nash continued and deposed that the hearing of the issues concerning the three lot subdivision will include the excision and sale of a substantial portion of the land to a separate purchaser; the isolation of certain heritage building; heritage landscaping, the question of setbacks from a building known as the Recreation Hall; the adequacy of on-site parking, loading and storage for the use of the Recreation Hall; whether public side or rear access servicing roads are adequate; the provision of an adequate forecourt; traffic control issues and other matters pertaining to the physical use of the land.

13 Accordingly the council submits that it would be prejudiced in the event that it is required to prepare for an appeal relating to the three lot subdivision. The council submits that it has had no opportunity to consider such issues in detail nor prepare its experts for hearing. It further submits the issues already identified for proceedings 10147 of 2003 are likely to occupy the whole of the hearing time allocated for that appeal and that the issues raised in the present appeal are separate and distinct. The council says that the applicant is already in default of the directions for the hearing in proceedings 10147 of 2003.

14 In response the applicant submits that the council is fully aware of the nature of the three lot subdivision and no further evidence would be required in addition to evidence which would be adduced in the hearing of proceedings 10147 of 2003. The applicant submits that no environmental considerations could arise, and disputes the difficulties foreshadowed by Mr Nash.

Findings

15 Clause 64 of the LEP expressly contemplates that the site will be developed in stages. The first stage of development must be approved before any other stages are to be considered (see cl 64(1)(b) of the LEP). In this matter the first stage of development is the subject of proceedings 10147 of 2003.

16 Until an approval is granted to the Stage 1 Masterplan, cl 64(1)(b) of the LEP operates as a bar to any other development consent for the site. Accordingly any development which does not form part of the Stage 1 Masterplan cannot be determined as part of the “first stage” pursuant to cl 64(1) of the LEP.

17 The Court accepts the council’s submission that issues could arise in proceedings 10688 of 2003 which are not confined to the three lot subdivision. The mere subdivision of land has been held to constitute “development”: see s 4 of the Environmental Planning and Assessment Act 1979; see also Spurbest Pty Limited v Sydney City Council [2002] NSWLEC 34; Memel Holdings Pty Limited v Pittwater Council (No. 3) [2001] NSWLEC 240; Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79. Accordingly an issue of subdivision may require the Court to determine issues raised by the council, as detailed in the affidavit of Mr Nash. New issues could arise which are not included in the issues to be determined in proceedings 10147 of 2003.

18 The Court finds that since no approval can be granted to the development application which is the subject of the appeal in proceedings 10688 of 2003 until there has been approval of the development application the subject of proceedings 10147 of 2003, there is no utility in listing proceedings 10688 of 2003 to be heard with proceedings 10147 of 2003.

19 As an additional ground for refusing the applicant’s notice of motion, the Court notes that proceedings 10688 of 2003 commenced on 16 June 2003. In these circumstances the Court accepts the submission of the council that it would be prejudiced if the appeal in proceedings 10688 of 2003 was listed for hearing to commence on the 19 August 2003.

20 For the above reasons the Court considers that proceedings 10688 of 2003 should not be heard contemporaneously with proceedings 10147 of 2003.

21 Despite the above findings, it is apparent that there is a close relationship between the appeals. Whilst the Court concludes that they should not be heard together, the interests of efficiency and justice require that proceedings 10688 of 2003 be determined as soon as practicable after judgment has been delivered in proceedings 10147 of 2003. The hearing of proceedings 10688 of 2003 should be determined by the same judicial officer or commissioner who hears proceedings 10147 of 2003 since he or she will be acquainted with the Stage 1 Masterplan proposal. If the appeal is upheld in proceedings 10147 of 2003 such knowledge would be of great assistance in the determination of the three lot subdivision appeal. For this reason the Court will order that proceedings 10688 of 2003 be expedited and to be listed to follow as soon as possible after judgment has been delivered in proceedings 10147 of 2003 and before the same judicial officer or commissioner.

Orders

22 The Court makes the following orders:-

1. Proceedings 10688 of 2003 be granted expedition;

2. The appeal in these proceedings is to be listed for hearing as soon as practicable following the delivery of judgment in proceedings 10147 of 2003 and before the same judicial officer or commissioner who determines proceedings 10147 of 2003;

3. Proceedings 10688 of 20036 are to be listed in the Registrar’s call over list following delivery of judgment in proceedings 10147 of 2003;

4. The notice of motion in proceedings 10651 of 2003 be dismissed;

5 Costs are reserved.