Galluzzo v Campbelltown City Council

[2010] NSWLEC 99

Land and Environment Court

of New South Wales

CITATION:

Galluzzo v Campbelltown City Council [2010] NSWLEC 99

PARTIES:

APPLICANT
John Galuzzo

RESPONDENT
Campbelltown City Council

FILE NUMBER(S):

10099 of 2010

CORAM:

Craig J

KEY ISSUES:

APPEAL :- s 56A appeal - grounds of appeal addressed questions of fact - commissioner addressed relevant evidence and issues - commissioner based decision on available evidence

LEGISLATION CITED:

Campbelltown (Urban Area) Local Environmental Plan 2002
Environmental Planning And Assessment Act 1979
Land And Environment Court Act 1979

CASES CITED:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367

DATES OF HEARING:

15 June 2010

EX TEMPORE JUDGMENT DATE:

15 June 2010

LEGAL REPRESENTATIVES:

APPLICANT
W J Carney, barrister
SOLICITOR
Allied Lawyers & Immigration Services t/a ALIS Lawyers

RESPONDENT
A M Pickles, barrister
SOLICITOR
Marsden Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

CRAIG J

15 June 2010

10/10099 JOHN GALLUZZO v CAMPBELLTOWN CITY COUNCIL

EX TEMPORE JUDGMENT

1 HIS HONOUR: John Galluzzo (the applicant) made application to Campbelltown City Council (the Council) to carry out further development on land located at the intersection of Campbelltown Road and Blomfield Road in Denham Court. The application proposed redevelopment of the existing child-care centre operated on that site by the construction of a new single story building accommodating a total of 131 children, 15 staff members and a car park capable of accommodating 42 motor vehicles. The existing child-care centre accommodated 74 children, 10 staff and 23 motor vehicles.

2 The applicant’s development application was refused by the Council and he subsequently appealed to this Court pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the EPA Act). His application to the Court, by way of appeal, was dismissed by a commissioner of the Court on 18 December 2009.

3 The applicant now appeals pursuant to s 56A of the Land AndEnvironment Court Act 1979 from the commissioner’s decision. His appeal was filed out of time but leave was granted for an extension of time in which to commence the appeal and leave was also granted to amend his summons by adding two additional grounds of appeal.

Background

4 The hearing before the commissioner commenced on 14 September 2009. In accordance with the Court’s practice, the hearing commenced on site when the commissioner, accompanied by the parties or their legal representatives, viewed the site and its environs. Following the site inspection, the parties returned to the courtroom where the tender of documents and adducing of evidence took place in a conventional manner.

5 Among the documents tendered by the Council was a letter from the Roads and Traffic Authority (the RTA) dated 11 September 2009. By that letter, the RTA indicated that Campbelltown Road was intended to be upgraded to a four-lane divided carriageway, with such work to be undertaken “in the medium term “. Importantly, the letter further indicated that the long term expectation for the road was that it was to have a corridor width of up to 47 m.

6 As a result of the proposed Campbelltown Road upgrade, the letter of 11 September 2009 indicated that the RTA “retracted” all previous correspondence directed to the issue of road reservation and endorsed the affectation upon the subject land in accordance with the zoning that had been imposed upon it under the Council’s local environmental plan. Finally, the RTA indicated that it “did not support the construction of any new buildings or structures within the road affectation as shown in Council’s LEP 2002”.

7 Previous correspondence from the RTA had indicated that only a 4 m strip across the subject land was required for road widening. A width of that dimension did not correspond with the depth to which the land was the subject of the 5(c) Special Uses Sub-Arterial Road Zoning under Campbelltown (Urban Area) Local Environmental Plan 2002 (the LEP). It was the extent of affectation upon the subject land by that zoning which was identified in the letter from the RTA of 11 September 2009. The letter, in effect, endorsed the corridor width of that zone as reflecting the need for future roadworks and was the reason for the “retraction” of the 4 m width indicated in previous correspondence.

8 This change of position on the part of the RTA, coming, as it did, so close upon the commencement of the hearing on 14 September, clearly had significant ramifications for the applicant’s development application. At the conclusion of evidence on 15 September, the matter was adjourned until 19 November when the hearing ultimately concluded. This adjournment was to afford to the applicant the opportunity to further consider the design of his development proposal and to make such amendments as he may have been advised to make in order to meet the exigencies presented by the RTA’s current requirements.

9 The correspondence from the RTA was important for two reasons. Clearly enough, it was relevant by way of general background to address the appropriate siting of any buildings on the subject land in the context of proposals for future road widening. However, it assumed particular significance because cl 52 of the LEP mandated consideration of a number of specific matters where land falling within the 5(c) zone was being considered for development, pending its acquisition for road purposes.

Conduct of the appeal

10 Regrettably, the conduct of the appeal on behalf of the applicant left much to be desired. The very brief submissions filed on his behalf made no attempt to identify the ground or grounds of appeal to which those submissions were directed. Moreover, the written submissions that were filed ultimately found little expression or exposition in the matters advanced by way of oral argument at the hearing.

11 Although the amended summons identified seven grounds of appeal, three of those were abandoned, being grounds 3, 4 and 5. As for the remainder, the difficulty confronting the applicant was that they essentially sought to agitate issues of fact arising from the commissioner’s judgment. As will be apparent, none identified arguable questions of law.

12 It is appropriate to deal briefly with those grounds which were argued and in the order in which the oral argument proceeded.

Ground 2

13 This ground of appeal was expressed as follows:

“2 That the Commissioner misdirected himself in the application of the Campbelltown LEP 2002 in that he considered the RTA’s plans for road widening when there were no plans for resumption of the subject lands.”

14 The legal necessity for there to have been “plans for resumption of the subject lands” was not explained in argument. Clause 52(3) of the LEP allowed that development on land zoned 5(c) could be carried out for any purpose, with development consent, until such time as it was acquired by the relevant public authority. Subclause (4) of cl 52 relevantly provides as follows:

“(4) In determining whether to grant consent under subclause (3), the consent authority must take the following into consideration:
(a) the effect of the proposed development on acquisition costs,
(b) the imminence of acquisition,
(c) the cost of reinstating the land for the purpose for which the land is zoned,
…”.

15 As will be apparent, cl 52(4) did not require there to have been a plan for resumption of so much of the subject land as fell within the 5(c) zone. Rather, the subclause was predicated upon the need for particular considerations to be given to an application where the development in contemplation intended development for a purpose other than a road purpose.

16 The essence of the submission made on behalf of the applicant, at least as I understood it, was that there was no evidence upon which the commissioner could base his finding that road widening would take place within 15 years which, so it was said, was a fundamental premise of the judgment. A careful but not overzealous consideration of the judgment indicates that this submission is unsustainable (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367). The critical finding of the commissioner is found at [30] – [31] as follows:

“30 Whilst the RTA initially advised that it had no intention of widening Campbelltown Road in the Denham Court area it now intends to widen the road corridor to 47 m essentially in accordance with the existing 5(c) zone to enable the upgrading of the road to a four lane divided carriageway in accordance with its Growth Centres Road Framework. This is to be done in the “medium term”, a period of time that could be between 5 and 15 years with the actual timing being triggered by the advancement of residential development in the South West Growth Centres. On this basis the RTA does not support the construction of new buildings or structures within the 5(c) zone.
31 Section 52 of the LEP plainly makes the proposal permissible subject to consideration of acquisition costs, imminence of acquisition and the eventual reinstatement of the land and that such matters could be the subjects of conditions of consent.”

17 The conclusion in respect of this aspect of the matter is reflected in the commissioner’s “conclusion” at paragraph [38]. It is as follows:

“38 In addition the approval of development (building and car parking) that would require removal for the purposes of what I accept as being an inevitable widening of Campbelltown Road within a period of 15 years when the economic life of such development is likely to far exceed this period does not represent orderly and economic planning.”

18 The correspondence from the RTA which is the subject of discussion in the judgment is contained in Exhibit 14 tendered before the commissioner. Not only does that Exhibit contain the letter of 11 September 2009 but also a letter dated 30 October 2009 in which the RTA responds to a number of questions posed to it by the Council, seeking an explanation of various matters raised in the RTA letter of 11 September 2009. In the letter of 30 October, the expression “medium term”, as used in the September letter, is indicated to mean a period of 5 to 10 years, although it is stated that it is not uncommon for such a period to be in the range of 5 to 15 years. The relevant portions of those letters are extracted by the commissioner at [18] – [20] of his judgment. It was this evidence to which the commissioner then referred in both [30] and [38] which I have earlier quoted. There was no other evidence put before him as to the time within which roadworks might be required and it was evidence upon which he was entitled to make the findings that he did.

19 I have been taken to the transcript of the hearing before the commissioner, particularly that part which records exchanges between the commissioner and the legal representatives of the parties when they made submissions to him on 19 November 2009. The commissioner raised with the parties the effect of the RTA correspondence. His concern as to the impact that it had upon the proposed development and upon its implementation were matters to which the applicant’s counsel was specifically directed and submissions invited. No submission was recorded as having been made by the applicant’s counsel to the same or similar effect as that which is presently being made in relation to the RTA correspondence. It does not appear to have been suggested that there was no evidence upon which the commissioner could found the determination sought to be challenged by this ground of appeal

20 Moreover, the finding made in relation to the 15 year period reflected in [38] is not, so it seems to me, fundamental to his decision. As the opening words of that paragraph indicate, it was an additional basis upon which the commissioner concluded that the s 97 appeal to him should be dismissed. An independent ground upon which he dismissed the application is expressed in [37]. This is essentially a ground in which he found the extent and scale of the proposed development to be inconsistent with the objectives of the 7(d5) Environmental Protection Zone which applied to a significant portion of the site. Those objectives, summarised at [6] of the commissioner’s judgment, were not reflected by the development in the context of what the commissioner saw to be the character of the area and the necessity for further development of the site to relate sympathetically “to nearby and adjoining development”.

21 It follows that if I was persuaded that the applicant’s argument in respect of this ground had some basis (and I am not so persuaded), it does not bear upon the primary reason for the commissioner’s decision and therefore could not sustain the appeal.

Ground 1

22 The applicant’s amended summons articulates this ground in the following terms:

“1. That the Commissioner misdirected himself in regards to the need to consider the RTA’s medium term plans when there has been no resumption of land or a time cannot be put on it.”

23 The argument in support of this ground substantially overlaps with that advanced in respect of Ground 2. The only additional matter that is added to sustain this ground is reference in [38] to the 15 year period within which the RTA is likely to carry out roadworks and the decision founded upon it to the effect that the economic life of the proposed development would far exceed that period, with the consequence that any approval would be contrary to the “orderly and economic planning” of the land. Reference to the “inevitable widening of Campbelltown Road” within the time period is emphasised in support of this ground on the basis that the evidence does not support such a finding.

24 For reasons already articulated, I reject this ground of appeal. There was evidence led before the commissioner not only addressing the likely 15 year period within which widening of Campbelltown Road would take place but also evidence directed to the economic life of the new child-care centre exceeding that period. Indeed, it would hardly require evidence to indicate that building and works of the kind indicated in the development application would be expected to have an economic life in excess of 15 years. However, as I have indicated, such evidence was led and no contrary evidence was advanced.

25 To the extent to which the applicant is said to rely upon an argument that, in arriving at the decision that he did, the commissioner failed to appreciate that there was an existing child-care centre on the site, such an argument cannot be sustained. The commissioner’s judgment commences at [1] with a description of the existing development and at [2] he indicates that the child-care centre is proposed to be extended. Moreover, at [37] the commissioner states that for the reasons he has earlier indicated, he has “concluded that the application for the expansion of the existing child-care centre should not be approved” (emphasis added). The text clearly demonstrates both an understanding of the development application being considered and that the decision was being made in the context of the present use of the subject land for a child-care centre.

26 This ground of appeal is rejected.

Grounds of appeal 6 & 7

27 The amended appeal grounds identify grounds 6 and 7 as follows:

“6. The Commissioner misdirected himself as to the character and streetscape of the area surrounding the subject property.
7. The Commissioner erred in finding that the subject development was out of character with the surrounding area and of excessive density and rejecting the appeal (sic).”

28 As formulated, these grounds are quintessentially merit grounds. As such, they do not engage the provisions of s 56A of the Land and Environment Court Act.

29 In an endeavour to support this ground of appeal, reference is made to what appears in [28] of the commissioner’s judgment. Emphasis is given to a sentence within that paragraph which reads as follows:

“Whilst I am not convinced that the scale of the proposed and existing single storey buildings would (leaving aside setbacks) be excessive I agree with Mr Hammersley that the density and intensity that would result from this proposal would be, for this single site, excessive.”

30 The paragraph in which that sentence appears does no more than reflect the planning judgment which the commissioner was called upon to exercise when deciding whether an expansion of the existing child-care centre was appropriate, taking account of the objectives of the 7(d5) zone. That is the very task that s 79C(1) of the EPA Act required the commissioner to undertake (see particularly cl 25 of the LEP). He was clearly aided in his assessment not only by the evidentiary debate between the planner called by the Council and the planner called by the applicant but also his appreciation of their competing opinions was undoubtedly informed by the site inspection that he had carried out at the commencement of the hearing. Even if it was thought that his finding as to suitability was perverse, that circumstance would not found this ground of appeal (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156).

31 Again, the applicant prays in aid an argument suggesting that the finding failed to reflect the fact that the development application proposed an extension to the present use of the site for a child-care centre. For reasons already indicated, this argument cannot be accepted.

32 For all of these reasons, Grounds 6 and 7 of the appeal are rejected.

Costs

33 The applicant’s counsel was asked whether there was any submission he would propose to make as to costs if the appeal was unsuccessful. He properly indicated that no submission could or would be made in that regard.

34 As the applicant has not made out any ground of appeal, it is appropriate that an order for costs be made in favour of the Council.

Orders

35 For reasons that I have indicated, the orders that I make are as follows:

1. Appeal dismissed.

2. Applicant to pay the respondent’s costs.

3. Exhibits may be returned.

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