Gebran and Raad Developments Pty Ltd v Wollongong City Council

[2020] NSWLEC 1610

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gebran & Raad Developments Pty Ltd v Wollongong City Council [2020] NSWLEC 1610

Hearing dates:

16-17 November 2020

Date of orders:

7 December 2020

Decision date:

07 December 2020

Jurisdiction:

Class 1

Before:

Gray C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) The development application for the demolition of the existing dwelling house and the construction of a boarding house comprising 15 boarding rooms at 124 Avondale Road, Avondale, is refused.

(3) The exhibits are returned, except for Exhibits A, B and 8.

Catchwords:

APPEAL – development application – off-site stormwater drainage works required – whether sufficient information to consider impacts of the development – design concerns – number of boarding rooms

Legislation Cited:

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Affordable Rental Housing) 2009

State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019

Wollongong Local Environmental Plan 2009

Cases Cited:

Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641

Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41

Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86

Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Weal v Bathurst City Council & Anor (2000) 111 LGERA 181; [2000] NSWCA 88

Texts Cited:

Wollongong Development Control Plan 2009

Category:

Principal judgment

Parties:

Gebran & Raad Developments Pty Ltd (Applicant)
Wollongong City Council (Respondent)

Representation:

Counsel:
F Berglund (Applicant)
E Kilpatrick (Respondent)

Solicitors:
Paramonte Legal (Applicant)
Wollongong City Council (Respondent)

File Number(s):

2019/342230

Publication restriction:

No

Judgment

1. COMMISSIONER: In an area to the east of the West Dapto housing release, at 124 Avondale Road, Avondale, Gebran & Raad Developments Pty Ltd (“Gebran”) seeks development consent for the demolition of the existing dwelling house and ancillary structures, tree removal and the construction of a boarding house comprising 15 boarding rooms. Gebran lodged a development application on 10 December 2018, which was refused by Wollongong City Council (“the Council”) on 16 October 2019. In these proceedings, Gebran appeals against that determination pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”).

2. A conciliation conference was held on 7 May 2020. I presided over the conciliation conference. The parties were unable to reach an agreement at the conciliation conference, and it was terminated. The parties nevertheless agreed to me presiding at the hearing of the appeal, consistent with the requirements of s 34(13) of the Land and Environment Court Act 1979.

3. The development application was the subject of an amendment on the first day of the hearing. The proposed development that results from the amended development application is described further below. Whilst the proposed development includes stormwater concept plans, a pit shown on the ground floor stormwater concept plan notes that it will connect to a future stormwater easement. However, the proposed development does not include a plan for how the stormwater will be disposed off-site. Gebran’s position is that the disposal of the stormwater off-site will be carried out by stormwater drainage works on the adjacent property, at 118 Avondale Road, and that this can appropriately be dealt with by way of a deferred commencement condition.

4. For the reasons that are set out below, I have determined that the absence of information on how the stormwater will be disposed off-site means that there is insufficient information to consider the impacts of the proposed development, which is a mandatory consideration in the assessment of a development application, pursuant to s 4.15(1)(b) of the EPA Act. As a result, I cannot be satisfied that impacts from the proposed development are acceptable or can be satisfactorily addressed and managed. As set out below, I therefore conclude that the development application should be refused on that basis.

The site and the locality

5. The hearing commenced with a site inspection. The site is known as 124 Avondale Road, Avondale, and is legally described as Lot 1 DP 413039. It has a total area of 1113m² and a street frontage of 18.29m. The land falls from the street to the rear, by 0.88m.

6. It is currently comprised of a single dwelling house and a large outbuilding at the rear. It is located opposite a bus stop with a regular bus service.

7. The properties on each adjoining site on Avondale Road, immediately to the west and east, both comprise single storey residential dwellings. It is acknowledged that those lots are of similar size to the site, and are likely to be redeveloped in the future.

8. The adjoining property to the rear (north east) is known as Lot 1 DP 1210332 and has been developed as multi dwelling housing. The property is known as 118 Avondale Road and contains 12 strata titled townhouses. A natural watercourse traverses the rear of 118 Avondale Road, to which stormwater from 118 is discharged. Gebran has identified this watercourse as the likely future destination for the disposal of stormwater from the site.

9. To the south are other dwelling houses and a multi-dwelling housing development owned by NSW Land & Housing Corporation comprising 28 units.

10. An aerial photograph of the site and surrounds, showing the location of 118 Avondale Road relative to the site, is at Figure 1.

Recent background and the proposed development

11. On 8 October 2020, the Court granted leave for Gebran to amend the development application in accordance with a number of amended plans. This included stormwater concept plans, which entailed both the drainage plan for stormwater on the site, as well as works on 118 Avondale Road for the stormwater to be conveyed from the site to the watercourse at the rear of 118 Avondale Road.

12. In response to that amended development application, the Council filed an Amended Statement of Facts and Contentions on 21 October 2020 (Ex 2). Contention 2 raised issues with respect to the impact of the inter-allotment drainage pipe with a number of existing trees, the adequacy of the extent of the proposed easement to accommodate the entire proposed drainage system (including pipe, headwall, and outlet scour protection) and the adequacy of the width of the proposed easement to accommodate the proposed pipe.

Joint expert reports

13. In preparation for the hearing, joint expert reports were prepared by the town planners and stormwater engineers.

14. The expert town planners are Ms Jessica Saunders, engaged by the Council, and Mr Anthony Betros, engaged by Gebran. Following their joint conference but prior to the finalisation of their joint report, amended documentation was provided by Mr Betros to Ms Saunders. That amended documentation included updated architectural plans, an updated Plan of Management and a number of updated reports. As a result of that amended documentation, Ms Saunders and Mr Betros agreed in their joint expert reports that a number of the contentions raised by the Council in its Amended Statement of Facts and Contentions were resolved.

15. The expert stormwater engineers are Mr Mathew Carden, an engineer employed by the Council, and Mr Tony Ahal, an engineer engaged by Gebran.

16. In their joint reports, Mr Carden and Mr Ahal reached the following joint position with respect to the potential conflict of the inter-allotment drainage pipe with existing trees (Ex 6 p 1):

“Full extent of the conflict between proposed stormwater works and existing trees need to be assessed and identified by an arborist.

All trees potentially affected (as determined by the arborist) need to be surveyed and plotted on the plans.

The proposed method of resolving the conflict needs to be identified by the applicant, based on advice from arborist.”

17. Mr Carden opines that this matter needs to be addressed prior to the granting of consent, and where works are required on other land to resolve the conflict, owner’s consent will be required for those works. Mr Ahal instead opines that the additional information may be satisfied through a deferred commencement condition.

The proposed development

18. At the commencement of the hearing, leave was granted to Gebran to amend the development application to reflect the amended plans and documents that were before the town planners in their joint conference. The amended plans and documents, which are Ex A in the proceedings, include amended stormwater concept plans that excise from the proposed works the inter-allotment drainage system that conveys stormwater to the watercourse.

19. The proposed development, as shown in Ex A, is for the construction of a boarding house containing 15 rooms across three separate buildings with pitched rooves. Each boarding room contains an ensuite and kitchenette.

20. The building to the rear, Building C, is single storey and contains three boarding rooms, a manager’s room and the communal room living room containing lounges, a dining area, bathroom and kitchen facilities. There is also communal open space located between Building C and the rear boundary, as well as in an area between Building C and the boundary to the east.

21. The building located centrally on the site, Building B, is two-storeys in height. At the ground floor it contains a communal room and laundry, and at the first floor it contains three boarding rooms. The first floor cantilevers over five parking spaces on the ground level below.

22. The building at the front of the site, Building A, is also two-storeys in height. It comprises four boarding rooms on the ground floor, and four on the first floor.

23. The driveway accessing the site is on the eastern side of the road frontage, and runs alongside Building A.

24. The second storeys of Building A and B are both setback further than the ground floor on their western edge, where a pedestrian path runs alongside Buildings A and B to provide access to the communal rooms in Building B and C.

25. The site analysis plan is shown at Figure 2.

26. The stormwater drainage plans that form part of the proposed development show that water is to be drained to a pipe at the rear of the site, with a pit shown on the ground floor plan indicating “Connect to future stormwater easement”.

27. Gebran acknowledges that the stormwater collected in its proposed stormwater drainage will require disposal off-site through inter-allotment drainage to the watercourse, and proposes to deal with the future drainage works through a deferred commencement condition. Such a condition has been included in the Council’s without prejudice draft conditions of consent (Ex 7), as follows (and as amended by the parties’ agreement):

“The development application has been determined by granting deferred commencement consent subject to the following conditions:

(i)   The Development Consent shall not operate until Council has been satisfied as to the following matters:

a)   Deferred Commencement – Development Application

The developer must lodge, and have determined by way of approval, a development application for the installation construction and use of pipes and related infrastructure on Lot 1 DP 1210332 to dispose of stormwater from Lot 1 DP413039 (the subject site).

b)   Deferred Commencement - Registered Easement

The developer must obtain an easement to drain stormwater over Lot 1 DP 1210332 for the purpose of stormwater disposal to the watercourse within Lot 1 DP 1210332. The minimum easement width shall be 1.5 metres, or wider where necessary to enable construction of, access to, and maintenance of, the proposed pipeline within the easement. The easement must encompass the whole extent of the stormwater disposal pipe, outlet, and any associated tail-out channel and/or scour protection works. Evidence that these requirements have been satisfied and that the easement has been registered with the NSW Land and Property Information Office must be submitted to Council.

(ii)   The developer must satisfy Council, within 5 years of the date shown on the top of this consent, that the two matters specified in condition number (i) have been complied with. Failure to satisfy Council within that time period will lapse this development consent.

(iii)   If compliance with the matters contained in condition number (i) necessitates a substantial variation to the development approved by this deferred commencement consent, a new development application must be submitted.”

The Council’s position on the proposed development

28. The Council remains opposed to the proposed development. In response to the amendment to the development application made at the hearing, it substituted the former contention 2 (referred to in [12] above) with a new contention. As a result of that change and the contentions that remain in dispute, the issues raised by the Council can be summarised as follows:

• The proposed development is uncertain and incomplete as it fails to make provision for stormwater disposal, and this means that an assessment of the impacts of the proposed development cannot be carried out.

• The number of boarding rooms sought exceeds the limit of 12 imposed by cl 30AA of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (“SEPP ARH”). Whilst this clause does not apply by virtue of a savings provision, it is nevertheless a matter for consideration under the EPA Act.

• The design of the principal communal room, its location, and the overall site planning and paths of travel through the site, result in a poor design outcome for the proposed development.

• The social impact statement does not sufficiently justify the need for a boarding house in this location.

The planning controls

29. Section 4.15(1)(a) of the EPA Act requires that the Court, in exercising the functions of the consent authority, consider the provisions of any applicable environmental planning instrument, proposed instrument, development control plan, planning agreement, and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

30. The site is zoned R2 Low Density Residential under the Wollongong Local Environmental Plan 2009 (“WLEP 2009”). Boarding houses are a nominated permissible use within the R2 zone. Clause 2.3(2) requires the consent authority to “have regard to the objectives for development in a zone when determining a development application in respect of land within the zone”. The objectives of the R2 Low Density Residential zone are as follows:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

31. Clause 4.3 of the WLEP 2009, together with the Height of Buildings Map, imposes a height development standard of 9m to the site. Pursuant to cl 4.4 of the WLEP 2009, the maximum floor space ratio (“FSR”) permitted on the site is 0.5:1. The proposed development complies with both the height and FSR development standards.

32. Clause 7.6 of the WLEP 2009 relates to development which comprises earthworks and requires that development consent must not be granted for earthworks unless the impacts have been considered.

33. Pursuant to cl 7.9 of the WLEP 2009, the site is impacted by the Obstacle Limitation Surface Map concerning land within the flight path of the Illawarra Regional Airport. The proposed development would not penetrate the applicable Limitation of Operations Surface.

34. Division 3 of the SEPP ARH, as presently in force, applies to the development by virtue of cll 26 and cl 27(1), which make it clear that Div 3 applies to development for the purposes of boarding houses in the R2 Low Density Residential zone. However, pursuant to cl 27(3), cll 29, 30 and 30A of Div 3 do not apply to the proposed development, as the proposed development is outside the Sydney region and is not within 400m of land zoned B2 Local Centre. Nevertheless, as presently in force, cl 30AA remains applicable to development for the purposes of a boarding house in the R2 Low Density Residential zone and provides as follows:

“30AA Boarding houses in Zone R2 Low Density Residential

A consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.”

35. However, the insertion of cl 30AA and the amendments to cl 27(3) of the SEPP ARH commenced on 28 February 2019, which is a date after which the development application was lodged. As such, the savings provision in cl 54C applies as follows:

54C   Savings and transitional provisions—2019 amendment

(1)  This clause applies to a development application that was made before the commencement of the amending SEPP and was not determined by a consent authority or, if appealed, not finally determined by a court before that commencement.

(2)  The application must be determined by applying all provisions of this Policy as if the amending SEPP had not commenced.

(3)  In this clause, the amending SEPP means State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019.

36. As a result of the savings provision, cl 27(3), as it was in force prior to the coming into force of the State Environmental Planning Policy (Affordable Rental Housing) Amendment (Boarding House Development) 2019, operates such that none of Div 3 of the SEPP ARH applies to the proposed development and cl 30AA does not apply.

37. The Wollongong Development Control Plan 2009 (“WDCP 2009”) applies to the proposed development. Chapter C3 concerns the controls with respect to Boarding Houses.

38. In considering the objectives and the controls of Chapter C3 of the WDCP 2009 in the context of an assessment pursuant to s 4.15(1) of the EPA Act, s 4.15(3A)(a) prevents more onerous standards being imposed where the standards are met and s 4.15(3A)(b) requires flexibility where the standards are not met. Specifically, s 4.15(3A) provides:

(3A) Development control plans

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

Stormwater disposal and its impact

39. The Council contends that the proposed development is uncertain and incomplete as it fails to make provision for stormwater disposal. As particularised in its new contention 2, the Council says that the proposed development cannot function without the disposal of stormwater off-site, and so without a proposal for how that will be done, a “fundamental component of the development which will require assessment of impacts has been excised” (Ex 8).

40. The Council submits that, without a design for the drainage of the stormwater to the watercourse, the proposed development is not final or certain. It relies on the evidence of Mr Carden that the settled design for the inter-allotment drainage can require changes with the design on the site. In particular, Mr Carden gave evidence that the drainage design for the conveyance of water across 118 Avondale Road could result in changes to the pipe sizes in the stormwater drainage design for the proposed development, which would result in a change to the size of the on-site stormwater detention tank, which can require a change to the layout of the built form on the site. As such, the Council submits that the absence of a design for the drainage from the site to the watercourse means that there is no certainty in the stormwater concept plans for the site.

39. Further, the Council submits that, without a design for the drainage across 118 Avondale Road to the watercourse, there is insufficient information to assess the impacts of the proposed development. The Council submits that any impacts from the infrastructure on 118 Avondale Road is an impact from the proposed development, which is required to be assessed, pursuant to s 4.15(1)(b) of the EPA Act. In circumstances where there is no concept plan for which approval is sought, where there is no plan upon which it can be said that the easement will be created, where the impact on trees is not known, and where the extent of any other impact is not known, there is a fundamental component of the proposed development that cannot be assessed for its likely impacts. The Council relies on the decision of Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 at [34], in which His Honour considered that “the likely impacts of a proposed development, the subject of a development application, can include likely impacts of activities other than the proposed development”.

The applicant’s submissions on the issue of stormwater disposal

42. Gebran agrees that the proposed development cannot be carried out without the disposal of stormwater off-site. Gebran submits that this is appropriately done through 118 Avondale Road to the watercourse, and that the final design is appropriately dealt with by the deferred commencement conditions.

43. Gebran firstly points out that, contrary to the Council’s position, the likely impacts have been considered, in satisfaction of s 4.15(1)(b) of the EPA Act. In particular, thought has been given on how the drainage could be done, including the route that could be taken across 118 Avondale Road to the watercourse, and the likely impacts of that route, including impacts on trees and impacts that depend on the width of the easement. Gebran submits that those impacts will then be assessed in considering the development application necessitated by the deferred commencement conditions.

44. Secondly, Gebran submits that the site inspection and the superseded stormwater plan in Ex E demonstrate that there is an undeveloped area that can accommodate the easement, and that the stormwater drainage across 118 Avondale Road can be achieved. As such, Gebran says that the drainage across 118 Avondale Road is not improbable, and so there is no uncertainty that arises.

45. Thirdly, Gebran submits that there is no real prospect that the proposed development will be materially changed by the satisfaction of the deferred commencement conditions. Ms Berglund submits, for Gebran, that this is in contradistinction to the principle arising from Mison v Randwick Municipal Council (1991) 23 NSWLR 734, in which Priestly JA found that “if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application.” Gebran submits that, other than some minor works at the boundary for the connection to an approved drainage system across 118 Avondale Road, what is sought on 124 Avondale Road in the proposed development is settled and will not change. Therefore, Gebran submits that there is certainty in the proposed development.

46. Fourthly, Gebran submits that the deferred commencement conditions themselves are certain. In particular, they refer to the lot across which drainage will occur, they refer to a requirement for a development application and they require the creation of an easement. As such, Gebran says it is clear what needs to be done to satisfy those conditions.

47. Gebran points out that the consent will not commence if the consent for the drainage works is not forthcoming. Ms Berglund submits that this means that the applicant takes the risk that such consent will not be granted, and the works the subject of the proposed development will not be carried out.

The requirement to consider the impacts of the development

48. Section 4.15(1)(b) of the EPA Act requires the consideration of “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”.

49. In Ballina Shire Council v Palm Lake Works Pty Ltd, Preston CJ considered the relevant authorities and explained that this involves consideration of impacts from works that are off-site that have a “real and sufficient link” to the proposed development. His Honour states (at [6], citing Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at 101 and Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 at 534-535):

“The phrase ‘the likely impacts of that development’ embraces not only site specific impacts, being impacts of the proposed development on the development site, but also off-site impacts. Off-site impacts can be caused not only by the proposed development impacting adjoining or other land in an area of influence but also by some other development provided that the impacts of that other development have ‘a real and sufficient link’ with the proposed development, such as where the impacts are caused by “some further undertaking that is ‘inextricably involved’ with the proposed development’”

50. In the appeal before his Honour, there was a need to carry out works in the road reserve to provide access to and service the proposed development. The development application did not seek consent to carry out those works, and, in the decision the subject of the appeal before his Honour, the Commissioner imposed a deferred commencement condition requiring their approval.

51. His Honour considered that the fact that works required for the proposed development do not form part of the development for which consent is sought, “is not a reason justifying not considering the likely impact of the works” (Ballina Shire Council v Palm Lake Works Pty Ltd at [33]).

52. Additionally, his Honour found that the Commissioner misdirected herself in thinking that the imposition of a deferred commencement condition that entailed environmental assessment of the off-site works required for the proposed development “justified her not taking into consideration the likely impacts of the works in determining to grant consent to the development application.” Specifically, his Honour considered that (at [37]):

“The power in s 4.16(3) of the EPA Act to grant consent to a development application subject to a deferred commencement condition does not relieve a consent authority from the obligation to take into consideration all matters of relevance to the development the subject of the development application under s 4.15(1) of the EPA Act.”

53. Therefore, the assessment of impacts required by s 4.15(1)(b) of the EPA Act extends to an assessment of impacts from works that are required off-site that are inextricably involved in the carrying out of the proposed development, even if those works off-site are not proposed in the development application the subject of the s 4.15 assessment.

54. Applying these principles to the present application, the assessment of impacts required by s 4.15(1)(b) extends to the impacts of the stormwater drainage works that are required on 118 Avondale Road to drain the stormwater from the site to the watercourse. I consider that those works are inextricably involved in the carrying out of the proposed development, and have a “real and sufficient link” to the proposed development. That is because it is common ground that the proposed development cannot be carried out without the disposal of stormwater off-site, and the evidence is that this can be done through 118 Avondale Road. It is clear from the decision of the Chief Judge in Ballina Shire Council v Palm Lake Works Pty Ltd that the mere fact that those works are not proposed in the development application does not allow me to avoid an assessment of their impacts. Nor does the imposition of a deferred commencement condition for their approval justify not considering their impacts.

There is insufficient information to assess the impacts of the development

55. In light of the applicable principles, without a design for the drainage across 118 Avondale Road to the watercourse, I accept the Council’s submission that there is insufficient information to assess the impacts of the proposed development. Those impacts potentially extend to built form and trees located on 118 Avondale Road, as well as trees located on other properties that adjoin 118 Avondale Road. There are two reasons why there is insufficient information to assess those impacts.

56. Firstly, there is no stormwater plan for the disposal of stormwater off-site that forms part of the proposed development on which an assessment of impacts could be founded. Without knowing the route of the stormwater drainage, the necessary infrastructure, the width of the pipes and the required width of the easement, the impacts on that built form on 118 Avondale Road or on the trees is not known.

57. Secondly, whilst there is a potential route for the stormwater drainage identified in Ex E, the agreed evidence of Mr Carden and Mr Ahal is that there are established trees within the vicinity of this route, which requires that the “full extent of the conflict between proposed stormwater works and existing trees need to be assessed and identified by an arborist.” Without an assessment by an arborist, there is insufficient information before the Court as to the impacts of the potential route in Ex E on the trees within the vicinity of the proposed pipes.

58. The consequence of there being insufficient information before the Court to adequately assess the impacts of the proposed development is that the Court cannot be satisfied that consent ought to be granted. The applicant bears the persuasive burden of so satisfying the Court. As described by Preston CJ in Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]:

“an applicant for development consent always bears a persuasive burden of proof: the applicant must persuade the consent authority, whether it be the council at first instance or the Court on appeal, that development consent ought to be granted. This persuasive burden includes providing information and arguments that relevant environmental impacts can be satisfactorily addressed.”

59. As an assessment of the impacts is a mandatory consideration pursuant to s 4.15(1)(b), and this extends to the impacts of off-site works where those works are inextricably linked to the proposed development, Gebran bears the persuasive burden to provide information to persuade the Court that any impacts resulting from those off-site works on 118 Avondale Road can be satisfactorily addressed. The absence of sufficient information means that this burden has not been discharged, and I cannot be satisfied that impacts from the proposed development can be satisfactorily addressed and managed.

60. Further, this lacuna cannot be satisfied by the imposition of deferred commencement conditions. This is because, firstly, it defers a mandatory relevant matter for later consideration, contrary to the well-established principle that you cannot defer for consideration a matter which is required to be considered by s 4.15(1) (see Weal v Bathurst City Council & Anor (2000) 111 LGERA 181; [2000] NSWCA 88). Secondly, I accept the evidence of Mr Carden that the stormwater plans for the off-site works might ultimately result in changes to the stormwater concept for the site, which can result in larger onsite detention tanks, which can require changes to the built form layout on the site. This means that there is a lack of finality in the development consent, as it leaves open the possibility that the development will be different to the proposed development to an extent that is not known, and means that there is no “final disposal” of the application, contrary to the principles espoused in the decision of Clarke JA in Mison v Randwick Municipal Council.

61. For these reasons, on the evidence I cannot be satisfied that the impacts of the proposed development are satisfactory or can be satisfactorily managed. Development consent must be refused on that basis.

The other matters raised by the Council

62. The Council raises a number of other contentions as a basis upon which the development application should be refused.

63. It is contended that the design of the principal communal room, its location, and the overall site planning and paths of travel through the site, result in a poor design outcome for the proposed development. Ms Saunders’ evidence in this regard, upon which the Council relies, considers each of the aspects and reaches conclusions on an alternative that would be “more appropriate” (Ex 5 p 20) or on what a better design might be (Ex 5 pp 7, 17, 20). However, the assessment required by s 4.15 of the EPA Act does not include consideration of whether there is a better, alternative design that could be achieved. Instead, the Court’s role is to assess the acceptability of the proposed development in light of its impacts and compliance with the relevant controls. Where there is a departure from the controls within the WDCP 2009, s 4.15(3A)(b) of the EPA Act requires flexibility to “allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development”.

64. In considering the Council’s contention concerning the design issues, I am therefore required to consider whether the proposed development is acceptable on its merits and, where there are non-compliances with the WDCP 2009, whether it provides alternative solutions to achieve the objectives of those controls. However, there is little utility in undertaking that consideration in circumstances where I have determined that development consent must be refused on the basis that there is insufficient information to satisfy me that the impacts of the proposed development are satisfactory or can be satisfactorily managed.

65. The Council also contends that the proposed development provides a number of boarding rooms that exceeds the number that is now limited by cl 30AA of the SEPP ARH. However, cl 30AA does not apply to the proposed development and it is therefore not determinative of the application. What is instead required is a consideration of what weight ought to be placed on cl 30AA in the exercise of the Court’s discretion in determining the development application. Nevertheless, this exercise is not required given my determination above that, as a result of insufficient information, I am not persuaded that the impacts of the proposed development are satisfactory or can be satisfactorily managed.

66. Further, a number of submissions were made by resident objectors, which are required to be considered by s 4.15(1)(d). Given that I have determined that consent should be refused, there is no utility in considering those submissions.

The outcome of the appeal

67. As set out above, s 4.15(1)(b) of the EPA Act requires an assessment of the impacts of the proposed development. This extends to the impacts of off-site works where those works have a “real and sufficient link” to the proposed development (see Ballina Shire Council v Palm Lake Works Pty Ltd), and therefore includes the impacts from the works off-site for the drainage system for the disposal of the stormwater from the site to an appropriate location, such as the watercourse. Gebran bears the persuasive burden to provide information to persuade the Court that any impacts resulting from those off-site works can be satisfactorily addressed. For the reasons set out above, the absence of sufficient information means that this burden has not been discharged, and I cannot be satisfied that impacts from the proposed development are acceptable or can be satisfactorily addressed and managed. Accordingly, the development application must be refused.

68. The Court orders that:

1. The appeal is dismissed.

2. The development application for the demolition of the existing dwelling house and the construction of a boarding house comprising 15 boarding rooms at 124 Avondale Road, Avondale, is refused.

3. The exhibits are returned, except for Exhibits A, B and 8.

……………………….

J Gray

Commissioner of the Court

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Decision last updated: 07 December 2020