Cavasinni Constructions Pty Ltd v Fairfield City Council

[2009] NSWLEC 1320

Land and Environment Court

of New South Wales

CITATION:	Cavasinni Constructions Pty Ltd v Fairfield City Council [2009] NSWLEC 1320 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Cavasinni Constructions Pty Ltd RESPONDENT Fairfield City Council
FILE NUMBER(S):	10218 of 2009
CORAM:	Pearson C
KEY ISSUES:	APPEAL :- Section 96 modification application
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 1994
CASES CITED:	Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 Manaldo Pty Ltd v Baulkham Hills Shire Council [1995] NSWLEC 165
DATES OF HEARING:	5 August 2009
DATE OF JUDGMENT:	1 October 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Seymour, barrister Instructed by Mr G Hartley of Gadens Lawyers RESPONDENT Mr AJJ Thompson, solicitor of Ritchie & Castellan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pearson C

1 October 2009

10218 of 2009 Cavasinni Constructions Pty Ltd v Fairfield City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by the Fairfield City Council (the council) of an application made pursuant to s96 of the Environmental Planning and Assessment Act 1979 (the Act) to modify a development consent granted to Cavasinni Constructions Pty Ltd (the applicant) on 22 October 2007 for an addition to provide a new dining area, entry and office, at the rear of an existing restaurant located at Lot 2, DP 215528, No 685-687 The Horsley Drive Smithfield (the site). The applicant sought to modify development consent 512/2007 by deletion of conditions 3, 4 and 34, the addition of a storage area under the building, the addition of a metal awning at the rear of the extension, and modifications to the elevation of the building.

2 Condition 3 requires the creation and registration of easements: (a) a right of carriageway 7.315m on part of the site between the proposed restaurant extension and the car parking area at the rear of the property in favour of three lots to the east of the site; (b) an easement to drain water 2m wide within the proposed right of carriageway; and (c) an easement to drain water 2m wide running north from the northern side of the proposed right of carriageway along the eastern boundary of the site. Condition 4 requires the transfer to the council free of cost a splay corner 2m by 2m at the north eastern corner of that part of the site where it is crossed by the right of carriageway referred to in condition 3(a). Condition 34 requires the applicant to provide kerb inlet pits on either side of the right of carriageway.

3 During the course of the proceedings the parties reached agreement on a number of issues. The applicant has not pressed for approval of the metal awning proposed for the rear of the extension. The council agrees that condition 3(c) can be deleted; and that condition 4 can be deleted if condition 3(a) is amended to limit access to vehicles no longer than 9.4m. The remaining issue in dispute is whether condition 3(a) should be deleted.

The site and its context

4 The site is located on the northern side of The Horsley Drive near the intersection with the Cumberland Highway. There is a general fall along The Horsley Drive in an easterly direction towards the Cumberland Highway. The site has a single storey commercial building, and the restaurant is the largest of three tenancies. Rear access to the properties to the west of the site is provided along Stein Lane which runs from Justin Street in an easterly direction, parallel to The Horsley Drive. The public road ends at the western boundary of the site. The site has at grade car parking at the rear.

5 There are three properties to the east of the site, being Lot 7A DP 161587, Lot 1 DP 212660 and Lot 1 DP 508769 (the downstream lots). The land drops from the eastern boundary of the site, and pedestrian access to the rear of those properties is through a staircase down from the eastern edge of the site. This staircase, and the access from it through the site to Stein Lane, also serves as a fire exit from Smithfield Square which faces Victoria Street. The downstream lots had informal vehicle access from Victoria Street until the construction of Smithfield Square Shopping Centre in 2006.

6 The site is zoned 3(c) Local Business Centre pursuant to Fairfield Local Environmental Plan 1994 (the LEP). The objectives of the 3(c) zone are:

(a) to provide for the establishment in a business centre of retail, commercial, professional and community service activities to serve local residents; and
(b) to provide for residential development to support business activity in the centre.

Background

7 Condition 3 requires the registration of a 7.315m right of carriageway in favour of the downstream lots. This condition is similar to conditions imposed on development consents granted in 1997 and 1998. In 1997 the council granted consent to extension of commercial premises and provision of a carpark on the site, subject to a condition requiring the registration of a right of carriageway across lot 1 DP 215528 (to the west of the site) and the site. In 1998 the council granted consent for a restaurant, subject to the same condition as imposed on the 1997 consent. In 1998 the condition was modified to remove the requirement to create a right of carriageway across lot 1 DP 215528 in favour of Lot 2 DP 215528 and to provide a right of carriageway across Lot 2 DP 215528 in favour of the downstream lots. The council’s Statement of Facts and Contentions notes that in 1997 part of Lot 1 DP 215528 was dedicated to council as a public road. In December 2006 ownership of the site changed.

8 The Notice of Determination advising of the refusal of the application states:

1. The proposed development seeking the deletion of condition 3(a) of the consent would not result in an orderly development of Stein Lane in that the development would not provide for the proposed extension of Stein Lane and access to adjacent and adjoining properties (Environmental Planning and Assessment Act 1979 section 79C(1)(b)).
2. The proposed development seeking the deletion of conditions 3(b) and (c) of the consent would not result in an orderly development of Stein Lane in that the development would not allow for the acceptable disposal of stormwater from Stein Lane (Environmental Planning and Assessment Act 1979 section 79C(1)(b)).
3. The proposed development seeking the deletion of condition 4 would not result in an orderly development of Stein Lane in that the development would not provide for the manoeuvring of large vehicles in Stein Lane and protect the subject property from damage (Environmental Planning and Assessment Act 1979 section 79C(1)(b)).
4. The proposed development seeking the deletion of condition 34 of the consent would not result in an orderly development of Stein Lane in that the installation of kerb inlet pits to either side of the required right-of-carriageway would enable the drainage of Stein Lane (Environmental Planning and Assessment Act 1979 section 79C(1)(b)).
5. The proposed awning to the rear of the building encroaches over the proposed extension of Stein Lane which is limited in height to 26.00 AHD (Environmental Planning and Assessment Act 1979 section 79C(1)(b)).
6. Approval of the application is not considered to be in the public interest (Environmental Planning and Assessment Act 1979 section 79C(1)(e)).

The issues

9 The council maintains that deletion of condition 3(a) would fail to satisfy the objectives of the Act in that the development, as modified, would fail to promote and co-ordinate the orderly and economic use and development of the land; and that the proposed modifications are not in the public interest.

10 The applicant contends that condition 3(a) requiring the creation of a right of carriageway does not relate to the development the subject of the development consent, as it relates to the council’s future desire to create service vehicle access for the downstream lots; is not imposed pursuant to s94 of the Act: is unfair, unjust and unreasonable; and is unnecessary. Condition 3(b) does not relate to the development the subject of development consent as it relates to the council’s future desire to create drainage facilities for the downstream lots; is not imposed pursuant to s94 of the Act; is unfair, unjust and unreasonable; and is unnecessary. The applicant further contends that the council refused the proposed modification for an improper purpose: because it wishes to extend Stein Lane, to avoid paying compensation, and to prevent the applicant from developing the land to its highest and best use.

Evidence

11 Mr C Hallam and Mr C Hazell gave evidence on traffic issues. Both agreed that if access to Stein Lane east of the site is restricted to vehicles no longer than 9.4m, the 2m by 2m splay on the north eastern corner of the building would not be required. Both agreed that the proposed turning bay to the east of the site is not required for loading and deliveries to the site because these movements can be made within the site and the right of carriageway. Both agreed that a sign prohibiting entry for trucks longer than 9.4m could be placed at the eastern boundary of the site.

12 Mr N Mu, Senior Development Planner for the council, gave evidence on planning issues. In response to questions Mr Mu stated that there is no basis for refusal for the construction of the storeroom area on the merits.

13 Mr G Lucas, Co-ordinator Engineering Assessment for the council, gave evidence on engineering issues. Mr Lucas stated that condition 3(b) is necessary to provide adequate capture and disposal of stormwater through Stein Lane, and that the proposed easement will allow the construction of the stormwater drainage system that will drain towards and connect to the downstream drainage easement system within Smithfield Square. Condition 34 requiring the provision of kerb inlet pits on either side of the right of carriageway is necessary to enable the proposed drainage system within the laneway to capture sufficient amounts of stormwater runoff. The pit on the southern side will allow access to the system for maintenance purposes; the northern pit is required to allow a suitable hydraulic solution for the connection of the development to the proposed street drainage system.

Condition 3(a)

14 The applicant submits that condition 3(a) should be deleted because it ought not to have been imposed in the first place, as it has no connection with the operation of the restaurant. The present needs of the restaurant are met from the subject site which derives no benefit from the condition; and the current situation is of advantage to the restaurant because its operators can control the hours of access of service and delivery vehicles. The council submits that the planning purpose of this condition is to complete the extension of Stein Land so that all properties facing The Horsley Drive may have access to a public road and for the provision of rear access to the downstream lots to the east of the site to be serviced. The council submits that the condition is justified on the basis that it will complete council’s policy to create Stein Lane; will provide rear-lane access to all properties fronting The Horsley Drive east of Justin Street; will enable the downstream lots to be connected to a public road; will improve fire egress from the Smithfield Square Shopping Centre; and will enable all properties fronting The Horsley Drive east of Justin Street to be serviced from the rear.

15 In oral evidence Mr Mu stated that the extension has been council’s long standing policy, since 1962. It is council’s plan to acquire part of the land to dedicate it as a public road, and Lot 2 in DP215528 is the last piece to be created. Mr Mu agreed that there has been no document on public exhibition or consultation with stakeholders, and that the site can accommodate traffic and vehicle movements generated, and there is no need for vehicles to travel downstream of the site. Mr Mu agreed that customer car parking and service vehicle access occurs on the site. Creation of the right of carriageway would contribute to the orderly extension of Stein Lane, as trucks could use the proposed turning bay to go out in a forward direction. Mr Mu was asked how a developer would know of the council’s policy of extending Stein Lane and Mr Mu referred to the s149 certificate which contains notations about road widening. Mr Mu agreed that the s149 certificate for the site does not expressly refer to Stein Lane. Mr Mu said that a developer might learn of the proposal through inquiries made to council officers. In further evidence Mr Mu stated that a council officer responding to an inquiry would look at the cadastral mapping system which has overlays of details of zoning, flooding, road works. In preparing his Statement of Evidence he looked at the cadastral mapping system. Council proposes to bear the cost of construction of the works including the ramp to the downstream lots; there is no contributions plan for the purposes of s94 of the Act.

Findings

16 The power to modify a development consent is conferred by s96 of the Act. The applicant submits that s96(1A) is satisfied as the development to which the consent as modified relates would be the same as the development for the consent as granted, namely the extension of the restaurant; that consideration of the matters referred to in s79C(1) of the Act (as required by s96(3)) requires a merits assessment of the matters arising from the development; and that this requires consideration of whether the condition could properly have been imposed. The applicant submits that, applying the test in Newbury District Council v Secretary of State for the Environment [1981] AC 578, this condition should not have been imposed.

17 The power to impose conditions is conferred by s80A(1) of the Act, in particular by s80A(1) (a) that “it relates to any matter referred to in s79C(1) of relevance to the development the subject of the consent”. The general approach to the imposition of conditions is that formulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578, namely that a condition must have a planning purpose; it must fairly and reasonably relate to the permitted development; and it must be reasonable. The latter requirement means that a condition that is so unreasonable that no reasonable planning authority could have imposed it would be invalid. In Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429 Biscoe J held (at [48]) that the Newbury tests are “a succinct and convenient statement of principles”, and derive High Court support from the judgments of McHugh and Callinan JJ in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30, and are entrenched in decisions of intermediate appellate courts and this Court.

18 I accept the evidence of Mr Mu that the purpose of condition 3(a) is to continue the gradual extension of Stein Lane along the rear of the properties facing The Horsley Drive. Mr Mu’s oral evidence was that this has been the intention of the respondent since 1962, and in his written statement he refers to gradual acquisition of land from properties fronting The Horsley Drive, and dedication in 1997 of part of Lot 1 DP 215528 (which is west of the site) as a public road. While Mr Mu was unable to identify any Council document or statement concerning the extension of Stein Lane, other than a handwritten notation on a copy of the DCP No 2/1996 Roads, the inclusion of conditions requiring the creation of a right of carriageway in the consents granted in 1997 and 1998 supports a conclusion that this was intended by council at least as far back as 1997. While the certificate issued under s149 of the Act relating to the site on 12 June 2009 does not contain any express reference to the extension of Stein Lane, the statement that the land is affected by “proposed road widening and/or proposed realignment” and by “provisions restricting vehicular access”, together with the terms of the consents issued in 1997 and 1998, would put a person interested in the site on notice. I accept the evidence of Mr Mu that a developer could contact Council staff who would consult council records to obtain zoning information and information about all other constraints.

19 I accept that condition 3(a) is intended to enable the extension of Stein Lane so as to provide vehicle access to the downstream lots. Services and deliveries to and from these lots are currently conducted from The Horsley Drive, which is not ideal given the proximity to the Cumberland Highway, limited parking, and the potential for conflict between customer vehicles and delivery vehicles. Mr Hallam and Mr Hazell agreed that the right of carriageway required by condition 3(a) was a reasonable means of providing access to the downstream lots when access to the front from The Horsley Drive was impractical. Condition 3(a) clearly has a planning purpose consistent with object 5(a)(ii) of the Act, and the first of the Newbury tests is satisfied.

20 The applicant contends that the condition has no connection with the current operation of the restaurant, and that the site derives no benefit from the provision of the right of carriageway, as access for customers, service and delivery vehicles can be obtained on the site. The applicant further contends that the lack of a right of carriage way provides greater control of the hours of access by service and delivery vehicles. In support of the argument that condition 3(a) does not reasonably relate to the development on the site, the applicant relies on Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429. That case was a Class 1 appeal against a condition of development consent requiring the creation of a right of carriageway. The property was a battleaxe block facing The Strand in Dee Why, with vehicle access and carpark achieved at the rear by the three metre wide handle of the battleaxe facing Oaks Avenue. The council in those proceedings imposed a condition requiring the creation of a right of carriageway across the 3m battleaxe handle, in order to complete a connection from Oaks Avenue to Howard Avenue across rights of way 6m wide negotiated with the owners of properties between the property and Howard Avenue. It had been the council’s intention since 1969 that there be a vehicular lane running at the rear of the properties facing The Strand between Oaks Avenue and Howard Avenue, to be obtained by the acquisition of a right of carriageway giving reciprocal rights to owners of the properties facing The Strand; if that became a one way system that would meet existing traffic problems in the lane serving the rear of the properties to the north of the site for the permitted development.

21 After a detailed consideration of the authorities, Biscoe J concluded:

51 What is meant by “fairly and reasonably relate”? The authoritative answer in Temwood at [155] by Callinan J is that it means “it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case”. That seems consistent with dicta in Newbury that there is some overlap between the second and third Newbury tests. Quoting and applying that Temwood passage, Lloyd J held in Charalambous v Ku-ring-gai Council (2007) 155 LGERA 352 at [29] that satisfaction of the Newbury tests depends upon the circumstances of the particular case. His Honour also said that it was inappropriate to determine a bare legal question whether a condition satisfied the Newbury tests without knowing all the facts and circumstances of the case after a full hearing on the merits (at [29]). In the present case there has been a full hearing on the merits in order to inform the Court of the facts and circumstances of the case.

52 In Parramatta City Council v Peterson (above) Stein J held that “fairly and reasonably relate” means that the development is “benefited” by the public amenity provided. He said at 296 “In my opinion the second test of whether the condition fairly and reasonably relates to the permitted development is not answered simply by geographical proximity but rather whether the development is benefited by the public amenity provided. There is no doubt that it must benefit, (as indeed will the Parramatta CBD as a whole), even though the benefit may not be a direct one (in terms of geographical proximity)”. A narrower and more rigid test of an “identifiable nexus” and a “direct connection” was rejected: at 295. Peterson , a s 94 condition case, was approved in the context of a non-s 94 condition in this Court in McGregor v Bathurst City Council [1995] NSWLEC 71 by Pearlman J who said: “The second of the Newbury tests was considered by Stein J in Parramatta v Peterson at 296-7 in which his Honour stated the Court’s approach to this test should be a broad rather than a narrow approach and that the test is whether the permitted development is benefited by the condition imposed”. Peterson was also approved by the Court of Appeal in the s 94 condition case of Lake Macquarie City Council v Hammersmith Management Pty Ltd at 238 [51] where Tobias JA (with whom Mason P and Young CJ in Eq agreed) said in relation to Stein J’s judgment: “His Honour found that…the condition requiring a monetary contribution towards its construction satisfied the second Newbury test as the development would be benefited by its provision. This was clear…” Although this line of authority indicates that such a benefit is sufficient to satisfy the second Newbury test, it may not be inconsistent to envisage cases where a condition is fair and reasonable in the circumstances of a particular case (to use Callinan J’s description) even if it does not benefit the permitted development.

22 Biscoe J was not persuaded in Dogild that there was a traffic management issue generated by the development which provided a real or sufficient nexus with the requirement of the right of carriageway. In concluding that the condition requiring the grant of a right of carriageway did not fairly and reasonably relate to the permitted development, and was not fair and reasonable in the circumstances, it was relevant that there were between 50 and 70 strata owners who, as well as their invitees and licensees, including customers, would be entitled to use the carriageway. The general public would also use the carriageway. Biscoe J concluded that the development did not generate the need for such a right of carriageway and public access and would not benefit from it; and the existing traffic problems were not affected by the proposed development nor vice versa.

23 The applicant submitted that the circumstances in this matter are the same, and that a similar conclusion should be reached. In my view, while there are similarities, the circumstances are different. I accept, based on the evidence of Mr Mu and Mr Hazell, that the present needs of the site for access by service and delivery vehicles and access for customers are met without the need to create the right of carriageway. However, as Biscoe J makes clear in Dogild, the second Newbury requirement does not require that there be a direct connection between the permitted development and the public amenity. The requirement is that the condition be fair and reasonable in the circumstances of the particular case, and it may be that a condition is fair and reasonable in the circumstances of a particular case even if it does not benefit the permitted development. I accept that the present position enables the restaurant operators to have some control over the hours and form of access to the land which would be the subject of the right of carriageway, and that the creation of the right of carriage way would bring additional vehicle movements through servicing the downstream lots. However, there are only three such lots and any additional vehicle movements, and consequential private detriment, would be of a different order to that expected in Dogild where the owner of the property would have to endure “new and potentially heavy vehicular traffic and pedestrian flows and their consequences” (at [53]). The evidence of Mr Lucas was that while the design of the ramp down proposed from the eastern boundary of the site to the rear of the downstream lots has changed, the level of roadway leading into the car park area of the site will be the same as at present to 2m from the eastern boundary, and then the level drops. I accept his evidence that vehicles will still be able to turn into the car parking area of the site, and so the construction of the ramp will not give rise to any detriment to the site. I accept Mr Mu’s evidence that there may be some advantage in vehicles being able to use the turning area proposed for the east of the site to be able to leave Stein Lane in a forward direction. The extension of the restaurant in accordance with the terms of development consent 512/2007 is achievable even with the creation of the right of carriageway, so there is no private detriment arising from any denial of an opportunity to redevelop existing premises as was the case in St George Building Society v Manly Municipal Council (1981) 3 APA 370. In my view the condition is fair and reasonable in the circumstances of this case.

24 Acknowledging that there is some overlap between the second and third Newbury tests, I am not satisfied that condition 3(a) could be regarded as unreasonable in the Wednesbury sense. The site has received the benefit of the dedication of land between the site and Justin Street, in particular by enabling the provision of car parking at the rear of the restaurant, and while the creation of the right of carriageway and construction work proposed by the council would increase vehicle movements across the land to the three downstream lots, any additional burden would be unlikely to meet the stringent Wednesbury standard.

25 Condition 3(a) does not require the “dedication” of land for the purposes of s94 of the Act: Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429.

26 Section 96(1A) requires that I be satisfied that the development to which the consent as modified (by the deletion of condition 3(a)) is substantially the same as the development for which the consent was granted. The approach to be adopted was set out by Bignold J in Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309:

The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.

The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially” the same as the (currently) approved development.

The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).

27 I agree with the applicant that the development for which consent was granted and the development as modified could both be described as being the extension of an existing restaurant.

28 Section 96 of the Act confers a discretion. The site has had the benefit of access for service and delivery vehicles and customer vehicles through the gradual creation of rights of carriageway over land to the west of the site through to Justin Street and the consequential dedication of Stein Lane as a public road, and condition 3(a) is consistent with the overall scheme of extending Stein Lane across the rear of the site and the downstream lots, which meets the objects in s5(a)(i) and (ii) of the Act. The context here is similar to that in Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236 and Manaldo Pty Ltd v Baulkham Hills Shire Council [1995] NSWLEC 165: the applicant is in effect accepting the benefit of both the 1998 consent for use as a restaurant and the 2007 consent for the extension of the restaurant premises, while seeking to be relieved of the burden created by the imposition of condition 3(a). The approval for use of the site as a restaurant since 1998 has been subject to a condition requiring the creation of the right of carriageway, and the present situation of access to the site for service and delivery vehicles and customer vehicles, and car parking for the restaurant patrons, have been obtained through the gradual creation of rights of carriageway over land to the west of the site through to Justin Street and the consequential dedication of Stein Lane as a public road. The most recent steps in that process were the subdivision in 2007 of lot 1 DP 215528 to enable the dedication of the former right of carriageway over that lot as a public road, bringing Stein Lane to the western boundary of the site, and the registration in 2008 of a right of carriageway over lot 7A DP 161587. While ownership of the site changed in 2006, any purchaser of the property would have been on notice of the requirement for the creation of the right of carriageway through the terms of the consents issued in 1997 and 1998 and the notation in the s149 certificate.

29 In the exercise of my discretion, I am not persuaded that the modification through deletion of condition 3(a) should be granted.

Other Conditions

30 As noted above, the parties have reached agreement on the addition of a new storage area and the modified elevations, the deletion of condition 3(c) and 4, and the amendment of condition 3(b) to reflect agreement on stormwater drainage. The parties have provided draft Conditions reflecting this agreement. There are a number of matters remaining which need to be addressed in the conditions, and on which the parties have not reached agreement, including the wording of condition 1; whether (on the basis that condition 3(a) is not deleted) the wording should be changed, and whether proof of registration of the easements is to be provided before the issue of a construction certificate, or before the issue of an occupation certificate; and whether condition 34 should be deleted. The parties have set out in an exchange of correspondence their respective positions on each of the conditions still in dispute.

31 The applicant proposes for condition 1 the following wording:

1. Compliance with Plans
The development shall take place in accordance with the approved development plans as prepared by Cavasinni Constructions for 685 The Horsley Drive, Smithfield, Job No. 07-002. Sheets 01-04 dated May 2007 marked 685THD 1-4 subject to the deletion of the metal awning shown on Sheet 685THD-2 and Survey Plan titled Fairfield City Council reference 26700.1 dated 19.10.2007 prepared by Jim Pelosa; noting that construction of a carriageway 7.315 metres wide including a ramp down to the adjoining property to the east and the construction of kerbing and guttering to that carriageway and construction of a handrail are not works approved by or required by this consent .

32 The council opposes the insertion of the words underlined, on the basis that there is no need for any additional wording about works not included in the condition as those were not part of the application. The applicant relies on the council’s concession at the hearing that the applicant would not be required to undertake those works. I agree with the applicant that the words confirm the position agreed at the hearing and should remain.

33 The applicant proposes the following changes to condition 3:

(i) that condition 3 be deleted and re-inserted immediately before the heading “PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE”;
(ii) that the words “Prior to the issue of a construction certificate, proof of registration of the following easements at Land and Property Information must be produced to the Council” be deleted and replaced with “Prior to the issue of the occupation certificate, provide to Council proof of registration of the following easements as to the Land and Property Information”; and
(iii) that if condition 3(a) is not deleted, that it read:
a. A right of carriageway 7.315 metres wide limited in terms of height to 26.0AHD in terms of Part 1 of Schedule 8 of the Conveyancing Act 1919 created pursuant to the provisions of s88B of the Conveyancing Act 1919 over Lot 2 Deposited Plan 215528 as shown in the Plan of Right of Carriageway, Easement to Drain Water and Easement for Drainage within Lot 2 in Deposited Plan 21558 annexed hereto and marked “Annexure A” in favour of Lot 7A Deposited Plan 161587, Lot 1 Deposited Plan 212660 and Lot 1 Deposited Plan 508769.

34 The council opposes the change to the timing of the creation of the easement as proposed in (i) and (ii), preferring that it be created before the issue of a construction certificate. In the interests of certainty as to the legal position, it would be preferable for the easement to be created as early as possible, and before any construction work is undertaken either by the applicant or the council. I agree with the council’s position.

35 The change to the wording of condition 3(a) as proposed by the applicant in effect removes the reference to Schedule 1 of the 2007 consent, which sets out “Terms of Right of Carriageway 7.315 Limited in Height to 26.0AHD”. Schedule 1 includes a restriction in cl 1(c) that the owner of any lot benefited not permit any vehicles greater than 9.9m in length to travel on the right of carriageway. The council contends that the terms of the right of carriageway in Schedule 1 are to control vehicles attending the downstream lots, and will not have any impact on the owners of the site, and that the original wording should be retained, subject to the amendment of cl 1(c) to limit use of the right of carriageway to vehicles no greater than 9.4m in length. The applicant contends that it is inappropriate for conditions of consent to include the terms of an easement and that its version of condition 3(a) provides sufficient certainty. I agree with the council that the retention of Schedule 1, subject to the amendment to cl 1(c), is a mechanism for ensuring certainty as to the size of vehicles permitted to use the right of carriageway to access the downstream lots. I agree with the council’s position on the wording of condition 3(a). The council accepts the change of reference from “Annexure X” to “Annexure A”, and the correspondence between the parties confirms what that plan is.

36 The applicant proposes the deletion of condition 33, which relates to construction of the outlet stormwater pipe across the right of carriageway. The council opposes this, on the basis that it is required to ensure the outlet stormwater pipe be of suitable standard. The applicant contends that it is not necessary as a result of the imposition of an agreed new condition 15A which requires that before the issue of a construction certificate a stormwater drainage plan be submitted to council for approval, the council has control over the standard of stormwater pipe that will be installed. I agree with the applicant.

37 The applicant proposes that condition 34, requiring the applicant to provide kerb inlet pits on either side of the right of carriageway, be deleted. The council, in its solicitor’s letter dated 12 August 2009, contends that the kerb inlet pit or pits are required to cope with stormwater drained from the development. The applicant’s response is that the understanding from the hearing was that council did not require the applicant to construct a kerb inlet pit or pits as required under condition 34; and that kerb inlet pits relate to the possible future construction of a kerb for the extension of Stein Land and do not arise from stormwater draining from the development the subject of the consent.

38 In considering whether condition 34 should be deleted, I note that in submissions at the hearing the council’s solicitor stated that this issue would be dealt with in the proposed new stormwater drainage plan, which is the subject of the agreed new condition 15A. The evidence of Mr Lucas was that the kerb inlet pits were to enable the proposed drainage system within the laneway to capture sufficient amounts of stormwater runoff. Condition 15A ensures appropriate provision of stormwater drainage for the development the subject of the consent. Given that the council is to undertake the construction works required for the right of carriageway it is difficult to understand why the applicant should be required to provide kerb inlet pits, and condition 34 should be deleted.

1. The appeal is upheld.

2. Modification No 58/2008 is approved and Development Consent No 512/2007 issued by Fairfield City Council for 685-687 The Horsley Drive Smithfield is modified in accordance with Annexure “A”.

3.Exhibits, other than Exhibits 5 and 6, may be returned.

Linda Pearson

Commissioner of the Court

01/10/2009 - years changed - Paragraph(s) 28