Commonwealth of Australia v Randwick City Council - [2001] NSWLEC 79

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79

PARTIES:
APPLICANT:
Commonwealth of Australia
RESPONDENT:
Randwick City Council

FILE NUMBER(S): 10072 of 2000; 10073 of 2000

CORAM: Talbot J

KEY ISSUES: Development Application :- whether SIS required - whether inconsistent with master plans - contamination - SEPP 55 and Contaminated Land Management Act - commonsense precaution - urban planning and design for small allotments - provision of public open space - community facilities and buffer zones for threatened species and wetland - presumption about completion of projected works upon which development dependent

LEGISLATION CITED: Commonwealth Constitution s 109
Contaminated Land Management Act 1997 s 81
Electricity Supply Act 1995 s 25
Environmental Planning and Assessment Act 1979 s 5A, s 79C, s 80, s 94, s 112, Pt 4
Environmental Planning and Assessment Regulation 1994 cl 110AA, cl 110DD
Environmental Planning and Assessment Regulation 2000 cl 92A
Environmental Planning and Assessment Amendment (Randwick Master Plans) Regulation 2000
Environment Protection (Impact of Proposals) Act 1974 (Cth) s 6
Land and Environment Court Act 1979 s 39
Rivers and Foreshores Improvement Act 1948
Threatened Species Conservation Act 1995 Pt 6 Div 2
State Environmental Planning Policy No 32
State Environmental Planning Policy No 55 cl 7
Randwick Local Environmental Plan 1998 cl 40A

CASES CITED: Alumino (Aust) Pty Ltd v Minister Administering the EP&A Act 1979 & Ors (Talbot J, NSWLEC, 20 March 1996, unreported);
Byron Shire Businesses for the Future Inc v Byron Council & Anor (1994) 84 LGERA 434;
Coffs Harbour Environment Centre Inc v Coffs Harbour City Council & Anor (1991) 74 LGERA 185;
Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55;
Drummoyne Municipal Council v Maritime Services Board & Ors (1991) 72 LGRA 186;
R v Tonkin & Anor; Ex parte Federated Ship-Painters' and Dockers' Union of Australia (1954) 92 CLR 526;
Silverwater Estate Pty Ltd v Auburn Council and Anor [2001] NSWLEC 60

DATES OF HEARING: 19/02/2001, 20/02/2001, 21/02/2001, 22/02/2001, 23/02/2001, 01/03/2001, 02/03/2001, 05/03/2001, 06/03/2001, 07/03/2001, 08/03/2001, 09/03/2001, 12/03/2001, 13/03/2001, 14/03/2001, 15/03/2001, 19/03/2001, 20/03/2001, 21/03/2001, 23/03/2001, 26/03/2001, 27/03/2001, 28/03/2001, 29/03/2001, 05/04/2001, 09/04/2001

DATE OF JUDGMENT:
04/27/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Mr T S Hale SC with Mr M Wright (Barrister)
SOLICITORS:
Minter Ellison
RESPONDENT:
Mr W R Davison SC with Mr D R Parry (Barrister)
SOLICITORS:
Bowen and Gerathy
OBJECTOR BY LEAVE:
Mr B J Preston SC with Mr I J Hemmings (Barrister) for Energy Australia
SOLICITORS:
Allen Allen and Hemsley

JUDGMENT:

IN THE LAND AND Matter Nos. 10072 of 2000

ENVIRONMENT COURT And: 10073 of 2000

OF NEW SOUTH WALES Coram: Talbot J

Decision Date: 27 April, 2001

Commonwealth of Australia

v

Randwick City Council

Respondent

REASONS FOR JUDGMENT

1. The Commonwealth of Australia owns 68.6 hectares of land at Randwick. Until recently the whole of this land has been used for defence purposes. Following a reorganisation of Defence Force logistics and supply functions, 49 hectares of the defence land at Randwick has become surplus to the Commonwealth’s requirements. The Commonwealth now seeks to develop the surplus land for residential purposes. The remaining portion of the defence land will continue to be occupied by the army for the foreseeable future.

2. Two development applications were lodged with the council in October 1999. One related to Lot 2 in DP 1009660, being the northern precinct, whereas the other related to Lot 3, DP 1009660, the southern precinct.

3. The Commonwealth as the applicant in both appeals seeks development consent for the subdivision of Lot 2 and 3 to create in total 661 residential allotments, public roads and public open space.

4. The northern precinct, which is the subject of proceedings No 10073 of 2000, has an area of 12.287 hectares with a frontage to Bundock Street. The improvements on the land comprise playing fields and parking areas, asbestos sheds, internal roadways, army housing, army administrative buildings and recreational facilities.

5. The southern precinct, which is the subject of proceedings No 10072 of 2000 comprises an area of 23.835 hectares. It has a frontage to Avoca Street.

6. The present improvements on the southern precinct land comprise playing fields, roadways, vehicle compounds and wash down bays, redundant warehouses and army support facilities.

7. The balance of the defence land comprising approximately 20 hectares is used for various army activities including defence housing on the western parcel comprising Lot 1 DP 1009660. The eastern parcel of the remaining army land, being Lots 5, 6 and 7 in DP 1009660, has an area of 12.53 hectares.

8. The eastern parcel contains natural vegetation including the endangered community Eastern Suburbs Banksia Scrub (ESBS) and the endangered species Acacia terminalis (subsp. terminalis), ephemeral wetlands and other scrub vegetation including weeds and exotic species. It presently functions in part as a stormwater detention basin. There are sport playing fields with the balance given over to scrub vegetation.

9. Lot 5 within the eastern parcel is designated by the Commonwealth as the site of a proposed community centre to be dedicated to council. The balance of the eastern parcel, namely Lot 6 and 7 having a total area of 12.24 hectares, is also nominated by the applicant for transfer to the council, to be used as public open space. Lot 6 and 7 are referred to as the eastern parkland.

10. The locality surrounding the army site has been developed for low and medium density private housing.

11. Randwick Local Environmental Plan 1998 (“the LEP”) gazetted on 23 June 1998 includes the subject site within a Special Uses Zone. Residential uses such as dwellings, dwelling houses and multi unit housing are uses permissible in the zone with development consent.

12. A rezoning application for the surplus portion of the defence land was submitted to council in 1997. On 6 May 1997 council resolved to prepare a draft LEP pursuant to s 54 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). However, the council has not proceeded with the preparation of the draft LEP.

13. The development application in respect of the northern precinct seeks consent for the subdivision of that land to create 227 residential lots ranging in size from 286 square metres to 676 square metres with four lots proposed to be transferred to council as public open space having a combined area of 5,087 square metres.

14. The development application in respect of the southern precinct seeks consent for the creation of 434 residential lots in a range of sizes with a further four lots proposed to be transferred to council as public open space, having a combined area of 9,070 square metres.

The Commonwealth works and the conflict of state and Commonwealth laws

Demolition of existing buildings on lots 2, 3, 5 and 7.

Earthworks on lots 2, 3, 5 and 7 to create the surface levels shown in the SEEs attached to the applications. It is not clear at this point whether earthworks are proposed on lot 6.

Utility works on lots 1, 2, 3 and 6.

Remediation of contaminated land on lots 2, 3, 5 and 7.

Use of a wetland on lot 6 as a stormwater detention basin.

Use of an oval on lot 1 to serve as a stormwater detention basin.

Landscaping on lots 6 and 7 to create a park.

16. The Court is asked to assume in these appeals that the Commonwealth works have been completed on the subject land and that the levels throughout the site will be as depicted on a plan of survey prepared by Wallis and Moore Pty Ltd Surveyors, Engineers and Planners, Post Commonwealth Works Survey Plan Bundock and Avoca Streets Randwick, drawing No 23233DT-1 A1. This survey shows details and contours taken from information supplied to the surveyors on behalf of the Commonwealth. It is contended by the applicant that in the circumstances the present state of the site is irrelevant for the purpose of considering a determination of the development application.

1.

Remediation of contaminated land and buildings by removal and/or treatment of contaminating substances.

2.

Clearing and removal of vegetation.

3.

Demolition and removal of buildings and other improvements.

4.

Earthworks, re-contouring of the site and landscaping.

5.

Construction of a sporting oval and related sporting facilities and stormwater drainage facilities. The sporting oval is also intended to operate as a stormwater detention basin.

6.

Construction of a building of approximately 850 square metres in area and construction of related courtyards, terraces and circulation area of approximately 2,150 square metres. The building and related areas are intended to be used as a community facilities centre.

18. The Statement of Environmental Effects (SEE) lodged with the council in support of the development application states that remediation of the surplus defence land (including the site) and construction of a new overland stormwater detention basin on the army land will be carried out by the Department of Defence exercising the legal powers of the Commonwealth of Australia. The Commonwealth has already procured the registration of DP 1009660, exercising the legal powers of the Commonwealth.

19. It is contended by the applicant that the Commonwealth works will not be subject to the laws of New South Wales and that accordingly, no application will be made for development consent in respect of those works.

20. The Commonwealth law was repealed by the Environmental Reform (Consequential Provision) Act 1999 (“the CPA”) with effect from 16 July 2000.

21. The council has commenced proceedings No 40041 of 2000 in the class 4 jurisdiction of the Court seeking a declaration that the Commonwealth works, as preparatory to and necessary for the development proposed in the subject development applications, is development for which prior development consent is required to be obtained under the EP&A Act. The council also seeks a declaration that the development proposed by the subject development applications is development for which prior development consent is required to be obtained under the EP&A Act or, in the alternative, the EP&A Act is invalid in so far as it relates to the development proposed by the applicant in the development applications. The class 4 proceedings are adjourned.

22. As a consequence of submissions made by Mr Hale SC on behalf of the Commonwealth, the question of jurisdiction was immediately raised at the commencement of the hearing on the merits. The Court then heard submissions by the council and legal arguments in respect of an application by the council for a stay until questions of jurisdiction raised in the class 4 proceedings have been determined. In the course of argument the parties accepted that the question of jurisdiction could be resolved as an issue in the class 1 proceedings.

23. The respondent council has raised the question of inconsistency between state and Commonwealth laws as a distinct issue in these proceedings. In raising that issue, which has yet to be heard and determined, the council alleges that Pt 4 of the EP&A Act is inconsistent with the Commonwealth law in relation to environmental aspects of actions and decisions by the Commonwealth, with the consequences under s 109 of the Commonwealth Constitution that the Commonwealth law prevails over Pt 4 and that Pt 4 is invalid to the extent of the inconsistency. Further, or in the alternative, the council asserts that the development applications are invalid as they are made and determined at a time when the Commonwealth law obtained and Pt 4 of the EP&A Act was invalid in relation to environmental aspects of actions and decisions by the Commonwealth.

24. Even after argument the Court was not able to discern whether there was a matter arising under the Commonwealth Constitution or involving its interpretation. The council was therefore given leave to amend the statement of issues and directions were made requiring the parties to file and serve documents in the nature of pleadings by way of Points of Claim and Points of Defence in respect of the jurisdictional issue. It was decided that the hearing on the merits should continue in the meantime. The process in the nature of pleadings has not been completed. The parties have requested the Court to make such findings on facts that are now open to it based upon the evidence adduced in the hearing to date.

25. Although there must be considerable doubt about the prudence of the Court proceeding to determine merits issues where the jurisdiction to do so is under direct challenge, there is obviously some practical advantage in doing so, particularly if the Court concludes that the development applications must be refused in any event.

26. In an interlocutory application determined on 16 June 2000 it was held that provided it is ultimately shown that the Commonwealth works have been specified with sufficient particularity for the Court to understand the proposed finished state, the impact of the residential subdivision development can be understood, considered and assessed on the assumption that the Commonwealth works will occur. The Court was satisfied at that time that there was sufficient certainty about the nature and extent of the Commonwealth works for the development applications to be assessed. It was left open for that view to be changed if ultimately the subsequent evidence at the hearing did not lead to the same level of satisfaction.

27. It is the council’s case that by adopting what is described as a highly artificial approach in formulating the development applications, it and the Court have been deprived of any real ability to assess the impact of the residential subdivision by being forced to rely on a series of complex assumptions, particularly in terms of standards of remediation, land contours and provision of infrastructure. The council’s consultant town planner, Clare Jennifer Brown, described them as fictions. The council contends that the Commonwealth works are inherently related aspects of what is in essence one proposal and that the lack of detail as to the nature or sequencing of the Commonwealth works means that the impact of the total development cannot be properly assessed.

The relevant planning controls

28. The council relies on the provisions of s 5(a), (ii), (iii), (vi) and (vii) of the EP&A Act to raise the issues of the promotion and coordination of the orderly and economic use of the development of land; the provision and coordination of community services and facilities; the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities and their habitat; and ecologically sustainable development.

29. Furthermore, the proposal is said to be inconsistent with the aims of the LEP to ensure the development is carried out in such a way as to allow the economic and efficient provision of public services and amenities; promote, protect and enhance the environmental qualities of the council area; the recognition of the importance of ecological sustainability in the planning and development processes; and to encourage consideration of social consequences when decisions are made in the implementation of the LEP.

30. The applicant considers that the proposed developments are consistent with state government policy and, in particular, the Metropolitan Strategies Action for Air (Environment Protection Authority) and Action for Transport 2010 (Department of Transport) in that they provide dwellings in close proximity to a wide range of employment services and educational opportunities in an area of better transport choices, including public transport, cycling and pedestrian movements.

31. The applicant also makes reference to State Environmental Planning Policy No 32 - Urban Consolidation (Redevelopment of Urban Land) (“SEPP 32”), the aims of which include urban consolidation and the orderly and economic use and development of land no longer required for its original purpose.

(a) to accommodate development by public authorities on publicly owned land, and

(b) to accommodate development for educational, religious, public transport or similar purposes on both publicly and privately owned land, and

(c) to allow appropriate community uses, and

(d) to enable associated and ancillary development, and

(e) to identify and protect land intended to be acquired for special uses, and

(f)

to allow for the redevelopment of land no longer required for a special use.

33. Pursuant to cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land (“SEPP 55”), a consent authority must not consent to the carrying out of any development of land unless it has considered whether the land is contaminated and whether it will be suitable for the purpose for which development is proposed or it is satisfied that the land will be remediated before the land is used for that purpose.

34. Under cl 7(2) of SEPP 55, because the land has been used for a purpose referred to in Table 1 to the Contaminated Land Planning Guidelines (“the Guidelines”), namely defence works, the Court is required, before determining the application for consent to the change of use, to consider a report specifying the findings of a preliminary investigation of the land concerned, carried out in accordance with the Guidelines. Following this the applicants may be required to carry out and provide a report on a detailed investigation (as referred to in the Guidelines). Thereafter, development consent cannot be granted if the land is contaminated, unless the Court is satisfied that the land is suitable in its contaminated state (or will be suitable after remediation) for the purpose for which development is proposed to be carried out. If it requires remediation, the Court as the consent authority must be satisfied that the land will be remediated before the land is used for that purpose.

35. In addition to the requirements of cl 7 of SEPP 55, pursuant to its Contaminated Land Policy 1999, the council may also require a preliminary investigation to be submitted when it has reasonable grounds to believe the land is contaminated, because of the lands topography, history, condition or other information known to council or even if it has been remediated there is insufficient information about the nature and extent of contamination and/or remediation or the circumstances have changed.

36. On 23 June 2000 the Environmental Planning and Assessment Amendment (Randwick Master Plans) Regulation 2000 was made. Clause 110DD was inserted by this amendment whereby, pursuant to s 80(11) of the EP&A Act, a development application in respect of a site area consisting of more than 4,000 square metres of land within the city of Randwick may not be determined by granting consent, unless a master plan has been adopted by the council and the consent authority is satisfied that the proposed development is not inconsistent with the master plan or the requirement for a master plan has been waived in accordance with an environmental planning instrument. The provisions of any master plans adopted by Randwick City Council became prescribed as matters to be taken into considerations in determining a development application for the purposes of s 79C(1)(a) of the EP&A Act. The master plan was defined as a plan that makes more detailed provision for or with respect to the development of land and the local environmental plan. It must nevertheless comply with any relevant requirements of such a local environmental plan and other environmental planning instruments.

(1)

Despite any other provisions of this plan, consent may be granted to a development application made in respect of a site area consisting of more than 4,000 square metres of land only if:

(a) a master plan for the development of that land has been adopted in accordance with this clause, and

(b)

the consent authority is satisfied that the development is not inconsistent with the provisions of that master plan.

(2)

The consent authority may waive the requirement for a master plan, but only if it is satisfied:

(a) that the proposed development is of a minor nature only or is ancillary to the current use of the land, or

(b)

that adequate guidelines and controls applying to the land are already in place.

(3)

A master plan is a document (consisting of written information, maps and diagrams) that makes more detailed provisions relating to development of the land for which a master plan is required than this plan. A master plan:

(a) outlines long-term proposals for development of the entire site for which the master plan is required, and

(b)

explains how those proposals address the range of matters outlined in subclause (5).

The proposals must conform to the requirements for development of the site made by this plan and any other environmental planning instrument.

(4) A master plan may be prepared by, or on behalf of, the owner of the land concerned following consultation with the Council.

(5)

A master plan is to address, illustrate and explain, where appropriate, proposals covering the following range of matters (but is not limited to them):

(a) design principles drawn from an analysis of the site and its context,

(b) phasing of development,

(c) distribution of land uses, including public open space and environmental protection areas,

(d) subdivision pattern,

(e) building envelopes and built form controls,

(f) heritage conservation, including both Aboriginal and European heritage,

(g) infrastructure provision,

(h) remediation of the site,

(i) pedestrian, cycle and road access and circulation network, with particular regard to public transport servicing ,

(j) parking provision,

(k) provision of public facilities,

(l) impact on, and improvements to, the public domain,

(m) provision of open spaces, its function and landscaping,

(n) identification and conservation of native flora and fauna habitat on the site, including any threatened species, populations or ecological communities, and

(o)

the principles of ecologically sustainable development.

(6) Immediately after receiving a draft master plan, the Council must advertise it in a newspaper circulating in the locality and exhibit it at the Council’s offices for not less than 14 days, for public comment. The Council must take into account any written submissions made about the content of the master plan during the exhibition period.

(7)

After considering a draft master plan, the Council:

(a) may adopt the master plan, without variation, or

(b) may adopt the master plan with such variations as it considers appropriate, or

(c)

may reject the draft master plan.

(8)

If a draft plan for a site area:

(a) has not been adopted by the Council within 60 days after it was received by Council, or

(b)

has been rejected by the Council,

then subclause (1) does not apply to the site area, but when a consent authority assesses a development application for the site area, it must have regard to the range of matters set out in subclause (5).

(9) When a master plan is adopted, the Council must place a notice to that effect in a newspaper circulating in the locality.

(10) A master plan may be amended or replaced by a subsequent master plan.

(11) A master plan has effect for 5 years from the date on which it is adopted by the Council or for such other period as the Council may determine and specify in the master plan at the time of its adoption.

(12)

A copy of each adopted master plan must be available for inspection at the Council’s offices during ordinary office hours.

38. On 10 November 2000 cl 110DD of the Environmental Planning and Assessment Regulation 1994 (“EP&A Regulation 1994”) was omitted and a new clause 110AA inserted. Clause 110AA applies to all land if an environmental planning instrument provides that consent is not to be granted to a development application relating to that land unless there is an approved development control plan, an approved contributions plan or there is a master plan for the land in which case a development application must not be determined by the granting of consent unless those plans are in place. A master plan is defined as a plan that makes provisions for or with respect to the development of land and has been made or adopted by the Minister or a public authority. The Environmental Planning and Assessment Regulation 2000 (“EP&A Regulation 2000”) was amended on the same day in identical terms by the insertion of cl 92A.

39. Documents entitled “Master Plan Bundock and Avoca Streets Randwick” northern precinct Lot 2 DP 1009660 and southern precinct Lot 3 DP 1009660 were submitted to the council by the applicant in August 2000. The draft master plans submitted to the council by the applicant were a direct reflection of the development applications already lodged. By resolution dated 10 October 2000 the master plans were adopted by the council with variations. Significant alterations were made to the draft master plans by the resolution of council when it adopted the master plans as varied.

40. The process was repeated in November 2000, following which on 12 December 2000 the council adopted a further two master plans in similar terms to those adopted by council in October 2000.

The master plans

42. When the first master plans were adopted with variation by the council on 10 October 2000 cl 110DD of the EP&A Regulation 1994 applied.

43. By the time the second master plans were submitted on 23 November 2000 cl 110DD had been omitted and cl 110AA inserted in lieu thereof.

44. On 20 December 2000, in an interlocutory judgment in these proceedings, the Court held that contrary to the council’s submissions it is not a requirement of cl 40A that the whole of the defence land at Randwick be made the subject of a master plan. Since then, even after hearing evidence over nearly six weeks, the Court has not been persuaded that the respective sites are not appropriate subjects for a master plan. They both relate to an area of more than 4,000 square metres. No definitive program for the redevelopment of the balance of the land held for defence purposes has been brought to the attention of the Court, except to the extent that the clear intention is to make the eastern parcels available for public recreation and public open space. The latter is clear from the offers made by the applicant to build and dedicate a community centre on Lot 5 and to rehabilitate Lots 6 and 7 as parkland and passive open space.

45. It is necessary to take account of the changes made by the council when it adopted the master plans in order to determine whether the resolution in truth gave rise to a permissible variation or a rejection of the draft master plans submitted.

46. The Commonwealth’s argument is that rather than adopting the draft master plans or making specific amendments to particular provisions, the council proceeded to issue its own master plans. Although the council may adopt a draft master plan with variations, the power of variation cannot be used as a means of imposing a different master plan upon the applicant, anymore than it may impose a different development upon an applicant for development consent. Accordingly, if it is the Court’s opinion that the purported variation under cl 40A(7)(b) is an attempt by the council to impose a master plan of its own, then it could amount to a rejection of the master plan under cl 40A(7)(c).

47. The expression “variations” is capable of having more than one connotation. The Macquarie Dictionary refers to the “act or process of varying; change in condition, character or degree” . The definition in The Australian Oxford Dictionary includes a departure from a former or normal condition. In R v Tonkin & Anor; Ex parte Federated Ship-Painters’ and Dockers’ Union of Australia (1954) 92 CLR 526 Dixon CJ, giving the judgment of the Court, expressed the probability that it is enough to say that to vary the terms of an award is to change them in part whether by addition, by excision, by modification or by substitution or by qualification or otherwise.

48. Ms Brown was cross-examined in respect of her role in the adoption of the master plans by council. The master plans adopted in October and December were in substance drafted by Ms Brown. She conceded that the contents of the master plans submitted reflected the earlier detail in the development applications already lodged with the council. She told the Court that she undertook an assessment of the master plans against the council’s guidelines having regard to submissions received by the council following the notification of the master plans which raised some issues which had never previously been raised in the notification of the development application. She insisted that the master plans recommended to council by her were a variation of the draft master plans submitted to council based on the submitted master plans and the consideration of the issues.

49. Ms Brown identified the introduction of buffer zones along the eastern boundary of the site in order to recognise the importance of the adjacent wetland and the presence of the endangered Eastern Suburbs Banksia Scrub. She also noted a requirement for stormwater detention facilities to be on site. Furthermore, there is a requirement for a community facility within Lots 2 and 3. She acknowledged that those three requirements would bring about an inconsistency with the development applications. However, Ms Brown could not recognise that the changes by way of variations made to the master plans resulted in an inconsistency with the draft master plans. She could say no more than that they were different. Nevertheless, she said that the adoption of the master plans in the form that the council adopted them would have a consequence that unless the applicant amended the development application to be consistent with the new master plans the development applications must, in her opinion, be refused.

50. The report prepared by Ms Brown in respect of the first draft master plans, in addition to identifying amendments by the provision of buffer zones and stormwater detention facilities also referred to the relocation of electricity supply cables within the site and the incorporation of laneways into the title of adjacent lots. She observed in her report that the proposed amendment to the master plans will internalise any potential adverse impacts on adjoining sensitive land and the existing residential development.

51. The Court is satisfied that the changes made to the draft master plans fall within the power in cl 40A(7)(b) of the amended LEP, namely, to adopt any master plan with such variations as the council considers appropriate. The concept of a master plan remains intact in each case. The overall development proposed for the site remains fundamentally the same although with some alterations. Some aspects of the foreshadowed development which were contemplated in the draft master plans as being outside the site have been internalised. All of these things fall within the concept of variations.

52. It remains to determine whether the development described in the respective development applications is not inconsistent with the provisions of the master plan (cl 40A(1)(b)). The council proposes that a condition of consent be imposed and that the plans be amended in order to incorporate the native revegetation areas and buffer zones, a neighbourhood park and a town square sufficient to provide a site for a community centre and future local retail use consistent with the adopted master plans. If development consent is to be granted then it is conceivable that the plans can be varied either to the full extent required to make them identical with the master plans or in part in order to produce a result which is not inconsistent with the master plans. The wording of cl 40A(1) contemplates that development as approved shall not be inconsistent with the master plans rather than that the development proposed in the development application be consistent with the master plans. Accordingly, potentially any consent can be conditioned so that it complies with the provisions of cl 40A(1).

The issues

53. The issues raised by the council have been comprehensively described in the further amended statement of issues filed on 1 March 2001.

54. Some of those issues have already been addressed in the earlier sections of this judgment.

56. Mr Hale made a succinct submission on behalf of the applicant that because the Commonwealth’s witnesses had, in the main, been associated with the project, if not from the outset but at least for a considerable period of time, their evidence should be attributed more weight than the evidence from the council’s witnesses who had been engaged in more recent times and then only for the purpose of comment and criticism.

57. The fact that one witness may have been involved with a project on a more intimate basis than another does not necessarily mean the evidence from the former should be treated as more credible. Indeed, the risk is that such a witness may have developed a bias or commitment to the project that he or she finds difficult to displace. That having been said the Court does not find that any individual witness or group of witnesses who has given evidence in this case should be regarded as being preferred for either of the reasons expressed above. The Court has been considerably assisted by the professional expertise demonstrated and the impartial approach taken by the witnesses collectively, all of whom seemed to have a proper appreciation of their role as expert witnesses.

Local residents’ concerns

58. Following notification of the development applications, the council received about 1,500 letters of objections which formed part of the evidence. Thirteen of the objectors gave oral evidence in Court. Five objectors (coming from four addresses) live in properties which are close enough to the site to be directly affected by the proposed development.

59. Concern is expressed about the impact of the proposed 16 allotments located east of Cooper Street upon rear yards of properties facing Holmes Street which now back on to open land. The 16 allotments are identified as suitable for three-storey buildings. Two residents hold a principal concern about the glare of headlights which would enter their bedroom as cars exit the site opposite their property.

60. There is widespread concern in relation to the contamination of the site with asbestos and how its remediation will affect their properties.

62. Three-storey development is suggested in a height control plan that does not form part of the applications. Given that the plan has no status, three storey development adjoining the Holmes Street properties is no more than an indication that the project’s designer considers this to be appropriate. However, if three-storey development takes place in this location its impact on adjoining properties in Holmes Street, which are mainly single-storey, will be unacceptable.

63. The concern with the glare of headlights arises from the location of the intersection of proposed Oval Avenue with Bundock Street, one of the two entries/exits to the site from Bundock Street. The evidence shows that, on 10 August 1999, the applicant received advice from a lighting consultant, Peter McLean, that indicated three locations for exits from the site that would not disturb the residents of Bundock Street. The applicant adopted one of those locations for the eastern exit. The exit from proposed Oval Avenue is, however, not in any of the locations suggested by Mr McLean. According to Ms Brown, the glare of headlights exiting the site from proposed Oval Avenue to Bundock Street will disturb the occupants of 86A Bundock Street. There was no evidence to the contrary from the applicant. In the circumstances this will be an adverse impact on No 86A. The impact would not occur if the applicant adopted the exits recommended by Mr McLean.

Adequacy of information

64. In Ms Brown’s view, the applications lack sufficient detail to enable a proper assessment. She is critical of the two-dimensional nature of the application drawings which contain no information on the finished levels of the proposal. The applicant’s experts, Daniel Brindle and Neil Ingham, town planners, and Philip Thalis, an architect, believe that information on finished levels would be of no assistance because the site is flat. They point out that the council has not requested this information.

65. Form 1 of the EP&A Regulation 1994 requires the submission of preliminary engineering drawings and existing and finished ground levels for development applications involving subdivision. The applicant has not provided either finished levels or preliminary engineering drawings. It has provided the levels of the site following the completion of the Commonwealth works. However, from the point of view of these applications, these are existing levels.

66. The majority of the site is flat, but not the north-eastern corner, nor the section to the south of Bundock Street. For example, the proposed allotments facing extended Hendy Avenue appear to have a fall of about 1 metre across their frontage. The application does not state whether they are to be sloping or terraced. In the Court’s opinion, the lack of information on finished levels reduces the ability to assess the applications.

67. There is also a potential problem in respect of the relocation of the 33kV and 11kV Energy Australia cables. It is common ground that these cables must be 1.7 metres below the finished road surface. The finished road levels are not known. The relocation, if it occurs, must occur before the development works commence. There is no suggestion from the applicant how this difficulty should be overcome.

68. Although it is desirable for the applications to comply with the EP&A Regulation 1994 in the information they provide, in the Court’s opinion the paucity of information is not, by itself, a reason for refusal.

Soil and groundwater contamination

69. The remediation of contaminated sites is governed by the Contaminated Land Management Act 1997 (“the CLM Act”). The general scheme of that Act is that the auditing in the management of contaminated sites is entrusted to site auditors accredited under the CLM Act by the Environment Protection Authority of NSW (“the EPA”).

(1)

A consent authority must not consent to the carrying out of any development on land unless:

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c)

if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.

(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.

(4)

The land concerned is:

(a) land that is within an investigation area,

(b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out,

(c)

to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child cater purposes, or for the purposes of a hospital - land:

(i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and

(ii)

on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge).

71. The site is currently contaminated. Its remediation is part of the Commonwealth works. The council proposes a deferred commencement condition requiring the applicant to submit a development application for the site remediation works. The applicant proposes a condition to the effect that a Construction Certificate will not be issued for any stage of the development until the applicant furnishes the council with a satisfactory site audit statement in respect of that stage.

72. The Court heard the evidence from two environmental scientists; Adrian Heggie for the council and Anthony Scott for the applicant. Mr Heggie is an environmental scientist who is not an accredited site auditor under the CLM Act. Mr Scott is an engineer who is an accredited site auditor.

73. Mr Heggie and Mr Scott agree on the level of remediation proposed, namely, level 3 as set out in the EPA’s Guidelines for the NSW Site Auditor Scheme (“the EPA Guidelines”). They disagree, however, on two issues. The first is the appropriate criterion for asbestos concentration in the soil following remediation. The second is whether or not the groundwater needs to be remediated.

(a) Asbestos

74. It is common ground between Mr Heggie and Mr Scott that there is no national or NSW standard for the acceptable level of concentration of asbestos in soil. The EPA Guidelines provide criteria for the acceptable level of concentration in the soil of 21 substances. However, asbestos is not included. The EPA Guidelines suggest that where the criterion for a substance is not appropriate for a particular site or where there is no criterion for a particular substance, a health risk assessment should be carried out in order to derive a site-specific standard. Egis Consulting Australia has carried out a health risk assessment to determine the acceptable level of concentration for asbestos. The author of the health risk assessment is Dr Douglas Cox. He is a specialist in human health and ecological risk assessment. Dr Cox is now not in Australia and did not give evidence. Mr Scott accepts responsibility for the health risk assessment. The result of the assessment is that the appropriate concentration for asbestos in the soil is 0.05 per cent.

75. Mr Scott told the Court that the applicant intends to appoint Ross McFarland as the site auditor for the remediation of Lots 2 and 3. In a faxed letter to Mr Scott dated 19 January 2001, Mr McFarland agreed that a soil mass concentration of 0.05 per cent of asbestos fibres is appropriate for the site. He added the qualification that “[i]t may be prudent to discuss this issue with the NSW agencies” . There was no evidence that either Mr McFarland or Mr Scott has discussed the matter with any agency, such as the EPA. Nor was there evidence of the EPA’s views on appropriate levels of asbestos fibre concentration in soils.

76. Mr Heggie does not accept that the appropriate level of concentration is 0.05 per cent. He believes that the assumptions and methodology of the health risk assessment are flawed and therefore the 0.05 per cent standard derived from it is also flawed. For example, in his opinion the assessment fails to take account of an individual’s exposure to dust from personal dust generating activities such as digging soil while gardening. He believes that the assessment underestimates ambient dust concentrations by a factor of three. Mr Scott did not respond to Mr Heggie’s criticisms of the health risk assessment, beyond relying on the credentials of its author, Dr Cox, above those of Mr Heggie. In any event, the qualification by Mr McFarland has not even been dealt with.

77. The Court accepts that the remediation of the site, being part of the Commonwealth works, is not part of these applications. The Court also accepts that, in general, it is appropriate to rely on accredited site auditors in the management and remediation of contaminated sites.

78. However, under SEPP 55 the Court cannot grant consent to these applications unless it is satisfied that the land will be suitable for its intended use as a residential area. The two experts do not agree on the standards of remediation in relation to asbestos concentration. The Court is therefore required to consider the evidence on these two matters and to come to a conclusion on it.

79. The difference between Mr Heggie and Mr Scott is not simply the difference between zero and 0.05 per cent concentration of asbestos. Mr Scott’s position is that the scheme of the CLM Act is that the decision on the appropriate criteria for remediation should be left to the discretion of accredited site auditors. Mr Heggie’s position is that the decision of the site auditor should be subject to scrutiny by the consent authority, which is required to be satisfied that the land will be suitable for its intended use.

80. Notwithstanding his lack of accreditation as a site auditor, Mr Heggie’s evidence in relation to asbestos is sufficiently persuasive to leave a doubt about the appropriateness of a soil mass concentration of 0.05 per cent of asbestos fibres. Apart from a health risk assessment carried out by a person who did not give evidence, the applicant brought no other evidence to support or explain how the standard was arrived at. As mentioned before, the Court remains in ignorance of the opinion of the EPA. No alternative standard to 0.05 per cent has been postulated. Mr Heggie recognises that if it could be shown that an appropriate methodology had been followed he would not necessarily cavil with the adoption of 0.05 per cent for subsurface soils as a matter of principle although he has serious doubts about its appropriateness to surface soils.

81. Although the CLM Act recognises voluntary remedial action by parties it is, nevertheless, primarily a pro-active provision vesting the EPA with wide powers to intervene in order to cause the investigation or remediation of land. The system of appointing site auditors to carry out site audits is a means of achieving an independent review of the nature and extent of any contamination of land and to determine what investigation or remediation remains necessary before the land is suitable for any specified use or range of uses (s 47 of the CLM Act).

82. SEPP 55 is one of the key components of the package of reforms in relation to contaminated land management referred to by the minister in his Second Reading Speech when the Contaminated Land Management Bill was introduced. The stated aims of SEPP 55 include specifying certain considerations that are relevant in determining development applications in general and applications for consent to carry out remediation work in particular. It is made under and for the purposes of the EP&A Act.

83. There is no direct reference to site audits in SEPP 55. Clause 7 of SEPP 55 places the obligation to be satisfied that the land is suitable for the proposed purpose squarely upon the consent authority. In the light of the doubts generated by Mr Heggie, the Court is not prepared at this point to defer to the site auditor in respect of the acceptable level of asbestos fibres as proposed by the application. Nevertheless, this is not to say that there never can be circumstances where a council would be entitled to rely on a site audit statement provided that in doing so it assumes the ultimate responsibility to be satisfied in accordance with cl 7 of SEPP 55.

84. It is only that in this case the Court has the benefit of an insight into the process and that has instilled a level of doubt about its acceptability. This is so notwithstanding the applicant’s assertion that the council’s expert criticism is misconceived. It is not necessary to make a final decision about the correct criteria.

85. The Court has the responsibility to make an informed decision. The parties contend for conflicting criteria to evaluate the potential risk from contamination of the soil on the site. The options are to leave the question of satisfaction entirely in the hands of a site auditor or to set a guideline level which binds the site auditor or any other certifiers.

86. The threat to human health from asbestos fibres is not in dispute. The Court is left in a state of uncertainty about the acceptable level of asbestos fibres in soil on land to be used for residential purposes. Until there is more information which removes the doubts left following evidence in this case, common sense dictates that it should take the precaution of requiring that the soil be asbestos free ( Alumino (Aust) Pty Ltd v Minister Administering the EP&A Act 1979 & Ors (NSWLEC, Talbot J, 29 March 1996, unreported)).

87. If the applications are otherwise acceptable, in the absence of further evidence, a condition to this effect should be imposed in order to meet the stringent requirements of cl 7 of SEPP 55.

(b) Groundwater

88. Mr Heggie and Mr Scott agree that in a number of locations water quality does not reach the level required for drinking water. In Mr Scott’s view, this does not justify further investigation since the future residents are unlikely to use bore water for drinking (or for any other purpose). In Mr Heggie’s view, groundwater quality needs further investigation. He points out that there is a number of registered bores in the vicinity of the site. He believes that the source of contamination should be established in order to find out if it is likely to get worse.

89. The Court agrees with Mr Heggie that the cause of groundwater contamination should be explored. If that investigation proves that groundwater quality will not decline further, then remediation is not necessary. On the evidence before the Court, however, such a conclusion cannot be drawn.

Flora and fauna

(a) in the case of a threatened species, wether the life cycle of the species is likely to be disrupted such that a viable local population of the species is likely to be placed at risk of extinction,

(b) in the case of an endangered population, whether the life cycle of the species that constitutes the endangered population is likely to be disrupted such that the viability of the population is likely to be significantly compromised,

(c) in relation to the regional distribution of the habitat of a threatened species, population or ecological community, whether a significant area of known habitat is to be modified or removed,

(d) whether an area of known habitat is likely to become isolated from currently interconnecting or proximate areas of habitat for a threatened species, population or ecological community,

(e) whether critical habitat will be affected,

(f) whether a threatened species, population or ecological community, or their habitats, are adequately represented in conservation reserves (or other similar protected areas) in the region,

(g) whether the development or activity proposed is of a class of development or activity that is recognised as a threatening process,

(h)

whether any threatened species, population or ecological community is at the limit of its known distribution.

91. Pursuant to s 112(1B), where the application of the eight part test leads to the conclusion that a proposed development is likely to significantly affect threatened species, populations or ecological communities, or their habitats, a consent authority must not grant approval unless a species impact statement (SIS) has been prepared in accordance with Div 2 of Pt 6 of the Threatened Species Conservation Act 1995 (“the TSC Act”).

92. Three experts gave evidence in the council’s case, namely, Dr AnneMarie Clements, a plant ecologist, Dr Michael Mahoney, a biologist with special expertise on amphibians, and Dr Stephen Ambrose, an ecological and ornithological consultant. In addition the Court had before it the written evidence of Dr Glenn Hoye, an expert on bats. Four experts gave evidence for the applicant. They are Dr Kevin Mills, a consultant ecologist, Geoff Winning, a wetland ecologist, Brian Wilson, a consultant ecologist, and Francis Dominic Fanning, an environmental consultant.

A single pass by a probable Bentwing Bat over the edge of the northern playing fields within the northern precinct.

94. Dr Ambrose is concerned about the impact of urbanisation on birds for which the wetland on Lot 6 may provide a habitat. Mr Mahoney believes that Lot 6 is a likely habitat for the Green and Golden Bell Frog, although he has not found the frog on the site. He says that no other sites in the eastern suburbs of Sydney possess such a high ecological diversity of amphibians.

95. Three surveys of vegetation of the site have been carried out on behalf of the applicant. On behalf of the council, Dr Clements carried out a fourth survey. The experts agree on the occurrence of one endangered species, Acacia terminalis (subsp. terminalis), and one endangered ecological community, Eastern Suburbs Banksia Scrub (ESBS) on the combined area of Lots 2, 3, 5, 6 and 7.

96. Apart from an area in the south western end of the site where the identification of the vegetation is in dispute, Dr Mills has carried out eight part tests for the Acacia terminalis (subsp. terminalis) and ESBS occurring on the site. He reached the conclusion that the proposal will not impact significantly on the endangered vegetation. However, Dr Clements takes issue. Although she herself has not carried out the eight part test, she believes that Dr Mills’ conclusion is wrong.

98. Dr Hoye’s evidence and the single sighting by Mr Wilson are not sufficient evidence to conclude that the site is a habitat for the Large Bentwing Bat. Similarly, Dr Mahoney did not find any Green and Golden Bell Frogs but he says it is a suitable habitat. There is no evidence to support a positive finding that the proposed development is likely to affect these threatened species or their habitats. An eight part test would show that an SIS is not required for these endangered fauna.

99. Dr Ambrose does not claim that any threatened bird species frequent the site. His main concern is in regard to the future hydrology of the site.

100. It is common ground between the experts that both Acacia terminalis (subsp. terminalis) and ESBS have grown on the site spontaneously in the last 20 years and that they have flourished despite the activity of the army and urbanisation around them. Dr Mills carried out an eight part test in respect of the threatened species of Acacia terminalis (subsp. terminalis) and the other threatened plant community ESBS. The validity of his conclusions is challenged by Dr Clements.

101. Dr Clements’ concern is that the additional urbanisation on Lots 2 and 3 would create an increased impact on ESBS. The edge effect, in her opinion, mandates a buffer of 20 metres for the population to the north of the southern wetland and the population to the east of the northern wetland east of the site.

102. Dr Mills assumes that Lots 6 and 7 will be rehabilitated as part of the development works and maintained in a pristine weed-free state thereafter. This is not a valid assumption as it is based on the dedication of Lots 6 and 7 to the council and, for the time being at least, the council does not accept the offer. However, the basic premise of Dr Mills is that both Acacia terminalis (subsp. terminalis) and ESBS have grown and thrived in the currently poorly maintained environment of Lots 6 and 7. Notwithstanding the doubts strongly expressed by Dr Clements, although Lot 6 and 7 may continue to be poorly maintained, absent the development the situation of the endangered species is unlikely to get worse.

103. In addition, Dr Mills found only two species belonging to the ESBS community in the area of vegetation at the south-western end of the site. Two other surveys carried out on behalf of the applicant at various times found two additional species. Dr Clements found another six species. Dr Mills disputes that three of the species found by Dr Clements are valid examples of ESBS. Thus, counting all the species identified by the four surveys (apart from those disputed by Dr Mills) the area may contain up to seven species of ESBS. The determination of ESBS by the Scientific Committee as an endangered ecological community of 46 separate species does not say how many of the species must be present for vegetation to qualify as ESBS.

104. Mr Hale submitted for the applicant that, in order for the vegetation to qualify as ESBS, all 46 species of the Final Determination must be present. The Court rejects this construction of the Final Determination since it is unlikely that any ecological community would contain all 46 species. The Court accepts, however, Dr Mills’ opinion that the vegetation at the south-western end of the site does not contain sufficient of the 46 species to qualify as ESBS. If this is wrong and the vegetation is ESBS, the loss of this relatively small group in the wider context of the eastern suburbs is not significant.

105. The council’s contention that the wetland on Lot 7 meets the criteria of Sydney Freshwater Wetland which is an endangered ecological community under the TSC Act, is based on Dr Clements’ evidence that the wetland is a remnant of an earlier swamp. The applicant’s experts point out that the current wetland has been formed by sand mining. Moreover, it is now a detention basin for urban development. Its connection to the sea is by a drainage line and it is highly degraded. The Court accepts the applicant’s evidence that the wetland does not meet the criteria of the endangered ecological community Sydney Freshwater Wetland.

Buffer zones to protected species

106. The proposal does not provide an undeveloped area around the endangered vegetation on the site and Lots 6 and 7. According to Dr Clements, protection of the endangered vegetation requires a buffer zone of at least 20 metres. Her view is based on studies she carried out, (though not on this site) investigating the edge effect of urbanisation on native vegetation. Her studies indicate that the impact is felt up to 20 metres from residential development.

The proposed urban design concept plan does not appear to incorporate any buffer areas. Rather, residential lots and associated roads extend right to the boundaries of areas of conservation value, including the ESBS community and threatened species, Acacia terminalis (subsp. terminalis).

This is a completely arbitrary distance and is located along the whole western edge of the Eastern Parcel, irrespective of the condition of the adjacent vegetation within the Eastern Parcel. For example, the Council is proposing a 20 metre minimum buffer zone along edges that are completely bare of vegetation or consist of dense growths of lantana and other weeds. In the small sections along the edge of the Eastern Parcel where native plants are present, other mechanisms are available to manage that edge, rather than simply setting an arbitrary setback for development. The methods used by the NPWS to manage an edge of ESBS at Jennifer Street, La Perouse is shown in the photographs in ... . Fencing and other treatments are available to protect the edges of bushland in urban situations. There is no reason why such methods cannot be utilised along the edge of the Eastern Parcel and the vegetation between Sheds 21 and 22 on lot 3.

109. There is a great deal of validity in Dr Mills’ view that the 20 metre wide buffer zone required by the council is arbitrary and, in many locations, unnecessary. However, the design of the proposal does not indicate any buffer for the protection of endangered vegetation. The ESBS between Sheds 21 and 22 to which Dr Mills refers is to be in the centre of proposed Banksia Avenue. It is referred to in the SEE as a “remnant bush park” . It is proposed to be part of the open space contribution. How will its protection be achieved? Measures such as “fencing and other treatments” which Dr Mills believes will be adequate for protecting the ESBS are not part of the application.

110. In the Court’s opinion, a 20 metre buffer zone along the entire boundary of Lots 6 and 7 is not necessary. However, in the vicinity of endangered vegetation either a buffer zone (not necessarily 20 metre wide) or alternative protection measures are necessary. The applicant’s argument that existing fences and proposed roads will provide effective barriers is not convincing. The proposal has no buffer zones as such and does not include adequate protection measures. This is not a detail that can be provided at the Construction Certificate stage. The Court needs to be assured at the time of development approval that endangered vegetation will be protected.

111. Moreover, in the absence of adequate buffers that can be recognised as a protection against the impacts of the residential subdivision on either the ESBS or Acacia terminalis (subsp. terminalis) and because the buffers are not part of the application for development consent the Court cannot be satisfied there is not likely to be a significant effect on these threatened species. Accordingly, a SIS is required ( Drummoyne Municipal Council v Maritime Services Board & Ors (1991) 72 LGRA 186; Byron Shire Businesses for the Future Inc v Byron Council & Anor (1994) 84 LGERA 434; Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55; Silverwater Estate Pty Ltd v Auburn Council and Anor [2001] NSWLEC 60).

Buffer zone to the wetland

112. Dr Patricia Holdway is an aquatic biologist retained by the council. She believes that the wetland could be a river or a coastal lake as defined by the Rivers and Foreshores Improvement Act 1948 . In cross-examination, she agreed that the wetland is more than 1 kilometre from the sea and the only connection is through a stormwater channel. The evidence does not support the conclusion that the wetland is a river or a coastal lake. However, all the experts agree that the wetland should be protected. There is no concern with the amount and quality of water that will flow into the wetland as this will not change adversely as a result of the subject development.

It is noted that the parcel of land containing the wetland is to be maintained as open space for recreational use. In accordance with the aims of the NSW Wetlands Policy, the Department

be allowed for around the entire wetland margin.

While consent agencies often recommend fixed-width buffer zones, these are generally arbitrary and are [sic] represent a cautionary approach in the absence of site-specific information. With specific details about the site and the management proposals incorporated into a proposed development, it is often reasonable to argue that a lesser buffer zone is appropriate. Indeed, in some situations it is possible to demonstrate that a buffer zone is not necessary.

115. Mr Winning concludes that the minimum buffer zone of 10 metres between the nominal maximum water level of the wetland (31.0m AHD) and the eastern boundary of Lot 3 (ie the nearest edge of the proposed development to the wetland) is an adequate buffer for protecting the wetland.

116. The Court finds Mr Winning’s evidence persuasive. He is the author of a 1997 publication dealing with the functions and widths of wetland buffers. His expertise is therefore directly related to the question of buffers around wetlands. The proposal does provide a buffer around the wetland that is 10 metres wide at its narrowest and widens to 30 metres. This contrasts to the way the proposal treats endangered vegetation for which no buffer is proposed.

117. Subject to the implementation of an effective mechanism to maintain it, in the Court’s opinion, the buffer proposed for the wetland is adequate to protect it from the impact of the proposed development.

Urban planning and ESD principles

Control of building form

118. The proposed subdivision contains 661 allotments of which 585 (88 per cent) are below 400 square metres, and 348 (53 per cent) are below 320 square metres. A large number of allotments are 7.7 metres wide, a width that is not suitable for detached housing. Appendix 11 to the Statements of Environmental Effects (SEE) contains a height control plan and a built-upon area plan. These are not part of the applications. There is no suggestion of controls on materials or controls ensuring co-ordinated development of the 7.7 metre wide allotments. Appendix 10 contains nine “illustrative house types” as houses that “might” be built on various types of allotments. Their only purpose appears to be to demonstrate that it is possible to design houses that fit the allotments.

… if the application was approved as before the Court today, there would be 661 development application for single residential dwellings of varying design, styles and natures to fit upon the range of allotments, the majority of which are less than 440 square metres, and there would be no consistent urban design concept, no consistent streetscape and there would be no certainty as to what it was.

120. Mr Thalis, who is the applicant’s consultant architect, does not think that control on built form is necessary. He maintains that the proposed allotments are not small in the context of the surrounding area which contains many allotments of similar size. He notes that Paddington terrace houses are on allotments that are smaller than proposed in these applications. In cross-examination Mr Thalis agreed that almost all small allotments in the vicinity of the site contain semi-detached houses. He also agreed that in practice a very small proportion of single houses are designed by architects. In answer to a question from the Court whether he knows of similar contemporary developments that were successfully subdivided and developed without controls on built form, Mr Thalis mentioned the Cascades in Camden and Stanhope Gardens near Parklea. He conceded, however, that he did not know what, if any, controls governed the development of these projects.

I think there does need to be some consistent theme or form of development which takes place throughout the estate, so that it is not a jumble of individual preferences but there is some consistency about the materials and about the colours, and so forth, in various parts of the estate

… it’s the size of the lots. 450 square metre lots, there is no issue, in my opinion, about that size. When you’re getting down to smaller lots, then there is an issue about consistency.

… at some stage there was an intention on the part of the applicant to prepare a development control plan but it was put off from doing that by various events that took place surrounding this matter…

A development control plan shall be prepared by Council at the applicant’s expense to provide planning guidelines for the residential development of individual allotments created under this consent within the northern and southern precinct, Lots 2 and 3 DP 1009660. The draft DCP shall be prepared and exhibited prior to registration of the subdivision plan under the terms of this consent. The development control plan shall incorporate built form controls consistent with those contained within the adopted master plan for the site, the indicative house types prepared by Hill Thalis and referred to in the northern SEE.

Prior to the issue of a Construction Certificate for any Stage, the Applicant must prepare and submit to Randwick City Council for its consideration, a draft development control plan (as defined in Part 3 of the Environmental Planning and Assessment Act 1979) in respect of Lots 2 and 3 DP 1009660. The draft development control plan must make provision for built form controls in respect of the proposed residential development of Lots 2 and 3 in DP 1009660.

(1) Of the three planning experts who dealt with the issue of built form, two consider that control of built form is necessary for allotments smaller than 400 square metres or 450 square metres. Virtually all the allotments are below that size in this proposal.

(2) Mr Thalis does not consider it necessary to control built form on small allotments. He cites two reasons for his belief. The first is that there are many allotments around the site which are of comparable size to those proposed. The second is that terrace houses in Paddington are on even smaller sites. These reasons are not persuasive. Almost all the small allotments around the site are developed with semi-detached houses. The subdivision of a semi-detached house is an example of absolute certainty about built form at the time of subdivision. The same is true of Paddington terraces, for which the land was subdivided at the same time as or after the terraces were built.

(3) Ms Brown and Mr Ingham agree that, for this proposal, control on built form is necessary. Mr Ingham believes that control can be imposed at some later time, after the subdivision is approved.

(4) Neither Mr Thalis nor Mr Ingham can identify a contemporary residential development, successful in their view, in which small lot subdivision occurred without either the houses being designed at the time of subdivision or built form controls being imposed at the time of subdivision.

127. The fundamental question for the Court is whether it is appropriate to approve a subdivision in which the majority of allotments are small and narrow without any knowledge of the built form that will occur on the allotments. In the Court’s opinion, it is not appropriate. This is not to say that small allotments are inappropriate for this site. Indeed, they are an appropriate form of development as they are in line with current government policy and sympathetic to the existing development around the site. What is unacceptable is to cut up the land into small parcels without providing the assurance that the houses to be built on them will be coordinated to produce a well designed residential environment.

128. This conclusion is strengthened by the fact, acknowledged by Mr Thalis in evidence, that only a tiny proportion of single houses are designed by architects. The illustrative house types, designed by Mr Thalis and attached to the applicant’s SEE help to demonstrate the problem. Even with the design skills of Mr Thalis, who has received numerous architectural awards, the courtyards of many of the houses are devoid of sunlight in mid-winter. One can only wonder how much worse the situation would be if the design of the houses is entrusted to people without architectural training.

129. In the Court’s opinion, it is appropriate for the approval of these applications, containing a majority of allotments below 400 square metres, that they be accompanied by an assurance that the resulting residential environment will be desirable. Without detailed controls on built form the Court does not have that assurance.

130. The countervailing proposals for the preparation of DCPs, as they are presently drafted, will not overcome the Court’s apprehension in this respect.

The town centre and the distribution of density

131. Ms Brown’s and Jo Manion’s evidence is supplemented by Erica Griffiths, an expert on the principles of ecologically sustainable development. All three experts believe that there should be a town centre at the junction between Lots 2 and 3 and that it should contain retailing, a community centre and open space. In Ms Griffith’s opinion, a town centre would allow people to walk to the shops instead of driving to shopping centres outside the site.

132. Mr Brindle and Mr Ingham take issue. They point out that retailing is a prohibited use in the Special Uses zone. In Ms Brown’s opinion, this is not a problem since the council is likely to re-zone the site. The future zoning would permit retailing. She does not deal with the difficulty of approving an application that includes retailing in a zone in which retailing is currently prohibited. None of the council’s experts have considered whether retailing on this site is viable. Given the current zoning and the lack of consideration given to the viability of retailing on this site, in the Court’s opinion, the absence of retailing is not a reason for refusal.

133. It is difficult to understand the council’s concern about the distribution of density. The council’s planning experts do not consider the proposal to be too dense. However, they believe too much of the site is being developed. In their opinion, the density is distributed too uniformly over the site. According to Ms Brown and Ms Griffith, the density around the edges of the site should be lower than proposed, while in the centre of the site it should be higher. The increased density housing in the centre would facilitate walking to the town centre and to public transport, thus contributing towards the achievement of ESD principles. Given the above finding that it is not necessary to have a town centre with retailing on the site, the concern with the distribution of density has no basis.

173. In the Court’s opinion, the location of two detention basins on land which will remain in Commonwealth ownership is not desirable. The Court notes the evidence from several of the experts that the existing gross pollution traps on Lot 6, which serve adjoining developments, are poorly maintained and do not seem to function. However, given that the proposed drainage arrangements are accepted by the council’s drainage expert, Dr Joliffe, these are not a sufficient reason for refusal.

Traffic

174. The traffic experts were Christopher Hallam, in the council’s case, and Michael Colston and Graham Pindar, in the applicant’s case. All three are traffic engineers. They agreed on a set of conditions requiring traffic management and devices, mainly outside the site. These conditions are included in the draft conditions presented to the Court. Subject to resolving a disagreement about the requirement in one of the draft deferred commencement conditions, the issue of traffic is settled between the parties.

Objections raised by Energy Australia

175. Energy Australia has been granted leave to appear in respect of the specific issue arising as a consequence of the presence of 33kV and 11kV electricity supply cables on the site and their proposed relocation.

176. There is no disagreement between the parties or Energy Australia that an appropriate electricity supply can be provided to the future subdivision subject to resolving the relocation issue.

177. Energy Australia claims that the existence of the 33kV power lines through the site is fundamental to the ability to bring electricity not only to the subdivision itself, but also to the surrounding 12,000 to 20,000 residents that rely upon the Randwick Zone substation. That is, high voltage electricity is transmitted from Bunnerrong North substation to the south of the site through the site to the Randwick Zone substation via the three 33kV cables. At the Randwick Zone substation the power is stepped down to 11kV. The two 11kV cables that run back through the site in a southerly direction then feed into local substations both on the site and within the surrounding area. From those local substations the 11kV is further stepped down to a low voltage supply for local distribution.

178. The Commonwealth argues that the removal of the power cables arises from a lack of contractual entitlement on the part of Energy Australia to maintain those power lines in the present position. An earlier easement has expired and the cables remain in the land at the will of the Commonwealth.

179. Arguably, part of the Commonwealth works will cause the cables to be disrupted. The relocation itself is not part of the Commonwealth works. Primarily, however, relocation is necessary to accommodate the proposed road pattern in the residential subdivision.

180. Mr Hemmings compendiously submits on behalf of Energy Australia that it is appropriate to impose conditions recognising the specific requirements of Energy Australia relying on the combined effect of and interrelationship between s 80A(1)(f), s 79C(1) and s 80A(2) of the EP&A Act.

181. In the Court’s view, once the legal and contractual relationships between Energy Australia and the Commonwealth have been settled, it is highly appropriate to ensure that works necessitated by the need to accommodate the cables within the constraints imposed by the subdivision pattern are taken into account.

182. The Court is entitled to assume that the cables will be relocated to the position agreed between Energy Australia and the applicant. It is reasonable that Energy Australia be provided with finished surface levels to enable the preparatory work in regard to cable design to be carried out in a timely and efficient manner. The Commonwealth as the developer should recognise the construction practices of Energy Australia in order to ensure the safety of workers at the time of installation and future safety of operations.

(a) in relation to the ongoing installation and maintenance of infrastructure related to the subdivision of the site; or

184. Furthermore, Energy Australia says that any extension of the network should be at the cost of the developer and in a manner agreed to by Energy Australia. The applicant appears to accept this proposition.

185. It is true, as Mr Hemmings submits, that it is relevant only to have regard to relevant public law considerations and the principles of good planning when formulating conditions of consent. The legal relationship is a private matter between the parties but the Court acting as consent authority needs to be satisfied on planning grounds what conditions of consent should be imposed. The conditions need to address the environmental impacts of the development including the technical concerns of Energy Australia. However, the Court is not convinced that in the circumstances it would be appropriate to impose the total burden of the cost of relocation of cables on the Commonwealth as a condition of development consent. This is a matter that needs to be resolved between the land owner and the statutory supply authority having regard to their competing legal interests and relevant legislation, such as s 25 of the Electricity Supply Act 1995.

186. It is nevertheless in the public interest that the conditions of development consent ensure that the reasonable technical needs and safety requirements of Energy Australia are not jeopardised.

Inconsistency with the approved master plans

187. The difficulty for the council in this respect is typified by the evidence of Ms Brown when, as indicated earlier, she could not recognise inconsistency between the amended master plans and draft master plans, the latter based on the development applications, whereas the development applications must, in her opinion, be regarded as not consistent with the adopted master plans thereby leading, in itself, to refusal of consent.

188. The Court of Appeal in a slightly different context has held that a development will be generally inconsistent with an objective stated in a planning instrument if it is antipathetic development ( Coffs Harbour Environment Centre Inc v Coffs Harbour City Council & Anor (1991) 74 LGERA 185 at 193). It does not necessarily follow from that line of reasoning that a development will be generally consistent with an objective if it is not antipathetic. In each case it is a matter of fact and degree.

189. The fact that the propositions formulated by and presented in the development applications are inconsistent does not thereby make any approved development inconsistent with the master plans if the conditions of consent make it relevantly consistent. Clause 40A(1)(b) provides that a consent may be granted only if the consent authority is satisfied that the development is not inconsistent with the provisions of the master plan. That is, the development in its approved form. Recognising that the master plans are planning policy tools means that the provisions are not to be regarded as inflexible and mandatory. Rather, the underlying purpose and principles are to be respected. The implementation of the scheme is not required to be a slavish reflection of the terms of the master plans.

190. The adopted master plans dictate that buffers around the site are required to protect native vegetation. It is recognised they may be re-positioned depending upon detailed assessment of flora and fauna. The position of buffers shown in the development applications differs from the master plan proposals, both as to size and extent. Provided the development consents recognise the purpose of the buffers and the approved buffers are adequate to meet the purpose then the development can be regarded as not inconsistent with the provisions of the master plan as required by cl 40A(1)(b).

191. The development applications are specifically drawn on the basis that a community area will be developed immediately adjacent to the site. In so doing the requirements of the master plans will be physically satisfied. However, the positioning of the area off site is not unacceptably inconsistent with the location referred to in the master plans as being proximity to the boundary between Lots 2 and 3 in order to enable ready access by the respective communities in the northern and southern precincts. The location on Lot 5 will be readily accessible in a practical sense for this type of facility, notwithstanding that it is not in immediate proximity to the boundary between Lots 2 and 3.

192. Although the site is dependent upon stormwater infrastructure to be built on adjoining land, nevertheless, it is proposed that any consent be conditioned appropriately to ensure that it is built and maintained for the purpose of servicing the subdivided land. Provided that the consent authority can ensure that appropriate controls are implemented, the scheme comprised in the development applications is not relevantly inconsistent with the principle enunciated in the master plans that drainage infrastructure be provided on the site.

193. The provision of open space within the site has been found wanting. The deficiency, and hence inconsistency, can be overcome either by requiring the provision of further areas within the site or the dedication of other land which can readily service the site. The deficiency is, to a large extent, a consequence of the council’s understandable reluctance to accept dedication of the eastern parklands. The development applications contemplate that such dedication would take place. Accordingly, the objective of the master plans to ensure adequate space to facilitate better amenity for residents can be achieved if the development applications as presented to the council are adopted.

194. The Court is satisfied that there is no real impediment to the grant of development consents on the basis that the developments are inconsistent with the provisions of the master plans either because it is not inconsistent with the master plans or may be rendered not inconsistent by the imposition of conditions.

195. As part of its argument that the amendments made by the council to the submitted master plans amounted to a rejection of the draft, the Commonwealth submitted that on a proper construction of cl 40A the preparation of a master plan can only be undertaken by a proponent for the development of the subject land. It is appropriate to deal with this argument.

196. There is nothing that the Court can discern from the language and structure of cl 40A which drives it to that same conclusion. There is an attractive logic derived from the concept of a landowner being free to choose its own development scheme, subject of course to the planning controls and constraints that apply to the land. Otherwise, it might be said that the council could take steps by means of a master plan to frustrate the owner’s ambitions for the land.

197. If the drafters of cl 40A had intended that the power rested only with the developer then they would have said so. Instead, cl 40A(4) is permissive in its terms by allowing for the preparation of a master plan by or on behalf of the owners of the land. No imperative connation arises out of a reading of the whole clause.

198. Furthermore, the preparation of a master plan is not inconsistent with council’s role as the local authority responsible for planning administration. The directive contained in subcl (5), the exhibition and consideration of written submissions in subcl (6), the prescription for adoption, variation and rejection in subcll (7) and (8), together with the prospect of further amendment or replacement provide a framework within which the owner and the council must work.

Conditions

199. Negotiations in relation to the conditions extended throughout the hearing. The final version of the joint statement was lodged with the Court on 9 April 2001. Even though the Court has decided to determine the applications by refusal of consent it is nevertheless appropriate to make some observations in regard to particular conditions.

200. The council seeks to impose a deferred commencement condition to in effect provide for development consent to be obtained for the Commonwealth works. Based on present assumptions this is not warranted but ultimately its providence depends upon the outcome of the legal issues yet to be determined.

201. A further draft deferred commencement condition contemplates that the development consent will be obtained for the work associated with the laying of the Energy Australia cables and that an easement will be granted to the authority. The observations the Court made earlier lead to a conclusion that these matters should be left to be resolved after Energy Australia and the Commonwealth reach an accommodation of their differences.

202. In the light of the agreement reached between the traffic experts, the Court is not convinced a deferred commencement condition is necessary in respect of a traffic management plan.

203. The magnitude of the development justifies a deferred commencement condition in relation to the concurrence of Sydney Water regarding stormwater connection to existing systems, notwithstanding the agreement of the expert witnesses on this issue.

204. The Court has not reached any firm conclusion regarding the final location of streets, parks, a town square and other community facilities so that any observations in respect of conditions dealing with these matters is premature.

205. Whilever the council resists accepting dedication of Lots 5, 6 and 7 it is not relevant to impose conditions on the future management of these lands. It is possible that some part of these lands may be incorporated in any amended development application in order to provide appropriate buffers from the impact of development on Lots 2 and 3.

206. It is appropriate that works of drainage in the Army oval to the west of the site be completed prior to the issue of certificates authorising the implementation of the subdivision.

207. The council requires that laneways provided at the rear of allotments be held in private ownership. The Court cannot agree with such a proposition having regard to the aesthetic and practical benefits of locating garages on narrow sites at the rear of the premises.

208. Section 94, buffer zone and contamination issues have been adequately covered in the body of the judgment.

209. Issues relating to splay corners, provision and location of services, acoustics, construction conditions, landscaping detail and fencing are matters which should be resolved by further discussion between the parties, as the areas of remaining dispute are not major.

210. The preparation of a DCP to provide detailed planning guidelines for the residential developments will not necessarily overcome the Court’s concern in this regard, although depending on its terms it could do so. It is enough to say that the making of a DCP can be recognised as one way of resolving the issue. The detail expected by the Court makes it desirable that the form of control, whether in a DCP or some other form, should be initiated by the applicant and then submitted to council for approval.

211. The difficulty of treating the site as two separate developments in the northern and southern precincts is manifest by the way the council has framed some conditions on the basis that they relate to the developments as if they are one comprehensive development. This has resulted in duplication. For example, there is the risk that if only one development proceeds compliance with the conditions of that consent will inflict an unjustified burden on the developer as the draft conditions take account of the total development in both precincts. Alternatively, a strict application of the conditions as drafted without further qualification could have the consequence that an intended single obligation is imposed twice.

Conclusion

(1) Whether the subdivision works that are the subject of the development applications can be properly assessed without also assessing the Commonwealth works which precede it.

(2) Whether the levels of contamination proposed are acceptable.

(3) Whether the development applications are inconsistent with the adopted master plans.

(4) Whether a SIS is required for endangered flora, fauna and the wetland in the Eastern parcel.

(5) Whether the public open space provision is adequate.

(6) Whether the provision of community facilities is adequate.

213. On the first issue, the Court finds that it is possible to assess the subdivision works independently of the Commonwealth works. However, the consent authority must be satisfied pursuant to SEPP 55 that the remediation of the site has rendered it suitable for the proposed residential use. Although it is not the most desirable way of dealing with the development of the site for subdivision it is nevertheless achievable.

214. On the second issue, the Court finds that further clarifying and definitive evidence is required before the conditions proposed by the applicant can be accepted.

215. On the third issue, the Court finds that the development applications are either not inconsistent with the adopted master plans, or they may be rendered not inconsistent by the imposition of appropriate conditions.

216. On the fourth issue, the Court finds that a SIS is required in respect of the endangered flora of Acacia terminalis (subsp. terminalis) and ESBS, but not in respect of the wetlands or endangered fauna. However, a different application incorporating adequate buffer zones could lead to a different conclusion.

217. On the fifth issue, the Court finds that the provision of public open space on the site is inadequate. The deficiency may be overcome by a condition requiring additional public open space on the site or by the council’s acceptance of land outside the site for public open space.

218. On the sixth issue, the Court finds that the proposed provision of community facilities is adequate.

219. On the seventh issue, the Court finds that the development applications are deficient in the information they provide. The deficiency is at two levels. At the technical level, there is a dearth of information on finished ground levels and the detailed design of roads and parks. This, by itself, does not justify refusal. At the conceptual or planning level, however, the deficiency is of a more fundamental nature. The proposal is almost entirely based on small allotments, a form of development that has proved successful in the past in areas of semi-detached and terrace housing. Given the current desire of the public for large dwellings, small allotment subdivisions without any planning guidelines or controls on built form, have the potential to turn into residential environments with uncoordinated building form and discordant materials dominating over insufficient landscaping. In the final analysis, the conclusion that without adequate controls the proposed subdivision could lead to disastrous aesthetic results is a major factor in the Court’s decision to refuse the applications.

220. Apart from the seven matters referred to above, in most other respects the concerns of the council and the issues raised by the residents can be resolved by conditions or amendments to the submitted plans.

221. The Court has been materially assisted in making its decision by the advice and counsel of Commissioner Dr Roseth.

Orders

222. The formal orders of the Court are:-

Matter No 10072 of 2000

1. Development Application No 1374/99/GL lodged with Randwick City Council on 18 October 1999 for consent to subdivide for residential use part Lot 3 DP 789368 now Lot 3 DP 1009660 is determined by refusal of consent.

2. The exhibits may be returned.

Matter No 10073 of 2000

1. Development Application No 1377/99/GL lodged with Randwick City Council on 18 October 1999 for consent to subdivide for residential use land part Lot 3 DP 789368 now Lot 2 DP 1009660 is determined by refusal of consent.

2. The exhibits may be returned.

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Citations

Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79

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CITATION:	Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79
PARTIES:	APPLICANT: Commonwealth of Australia RESPONDENT: Randwick City Council
FILE NUMBER(S):	10072 of 2000; 10073 of 2000
CORAM:	Talbot J
KEY ISSUES:	Development Application :- whether SIS required - whether inconsistent with master plans - contamination - SEPP 55 and Contaminated Land Management Act - commonsense precaution - urban planning and design for small allotments - provision of public open space - community facilities and buffer zones for threatened species and wetland - presumption about completion of projected works upon which development dependent
LEGISLATION CITED:	Commonwealth Constitution s 109 Contaminated Land Management Act 1997 s 81 Electricity Supply Act 1995 s 25 Environmental Planning and Assessment Act 1979 s 5A, s 79C, s 80, s 94, s 112, Pt 4 Environmental Planning and Assessment Regulation 1994 cl 110AA, cl 110DD Environmental Planning and Assessment Regulation 2000 cl 92A Environmental Planning and Assessment Amendment (Randwick Master Plans) Regulation 2000 Environment Protection (Impact of Proposals) Act 1974 (Cth) s 6 Land and Environment Court Act 1979 s 39 Rivers and Foreshores Improvement Act 1948 Threatened Species Conservation Act 1995 Pt 6 Div 2 State Environmental Planning Policy No 32 State Environmental Planning Policy No 55 cl 7 Randwick Local Environmental Plan 1998 cl 40A
CASES CITED:	Alumino (Aust) Pty Ltd v Minister Administering the EP&A Act 1979 & Ors (Talbot J, NSWLEC, 20 March 1996, unreported); Byron Shire Businesses for the Future Inc v Byron Council & Anor (1994) 84 LGERA 434; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council & Anor (1991) 74 LGERA 185; Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55; Drummoyne Municipal Council v Maritime Services Board & Ors (1991) 72 LGRA 186; R v Tonkin & Anor; Ex parte Federated Ship-Painters' and Dockers' Union of Australia (1954) 92 CLR 526; Silverwater Estate Pty Ltd v Auburn Council and Anor [2001] NSWLEC 60
DATES OF HEARING:	19/02/2001, 20/02/2001, 21/02/2001, 22/02/2001, 23/02/2001, 01/03/2001, 02/03/2001, 05/03/2001, 06/03/2001, 07/03/2001, 08/03/2001, 09/03/2001, 12/03/2001, 13/03/2001, 14/03/2001, 15/03/2001, 19/03/2001, 20/03/2001, 21/03/2001, 23/03/2001, 26/03/2001, 27/03/2001, 28/03/2001, 29/03/2001, 05/04/2001, 09/04/2001
DATE OF JUDGMENT:	04/27/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr T S Hale SC with Mr M Wright (Barrister) SOLICITORS: Minter Ellison RESPONDENT: Mr W R Davison SC with Mr D R Parry (Barrister) SOLICITORS: Bowen and Gerathy OBJECTOR BY LEAVE: Mr B J Preston SC with Mr I J Hemmings (Barrister) for Energy Australia SOLICITORS: Allen Allen and Hemsley