McIntyre v Pittwater Council

[2001] NSWLEC 16

Land and Environment Court

of New South Wales

CITATION:

McIntyre and Ors v Pittwater Council [2001] NSWLEC 16

PARTIES:

APPLICANTS:
Richard John McIntyre and Others

RESPONDENT:
Pittwater Council

FILE NUMBER(S):

10736 of 1999

CORAM:

Talbot J

KEY ISSUES:

Development Application :- whether master plan incorporating residential and industrial use can be subject of consent to industrial use only

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

13/11/2000

EX TEMPORE
JUDGMENT DATE :

11/13/2000

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr W R Davison SC
SOLICITORS:
Ronald J Curry & Co

RESPONDENT:
Mr A E Galasso (Barrister)
SOLICITORS:
Mallesons Stephen Jaques

OBJECTOR BY LEAVE:
Ms I Millar (Solicitor) for Sydney Water Corporation
SOLICITORS:
Phillips Fox

JUDGMENT:

IN THE LAND AND Matter No. 10736 of 1999ENVIRONMENT COURT Coram: Talbot JOF NEW SOUTH WALES Decision Date: 13 November, 2000Richard John McIntyre and Others ApplicantsvPittwater Council RespondentREASONS FOR JUDGMENT1. HIS HONOUR: After a hearing extending over four days, followed by written submissions brought in subsequently, the Court delivered a judgment in this matter on 21 July 2000. It was decided, on the merits, that the part of the land described in the various documents lodged in support of the development application as Sector C, was not suitable for the intensity of residential development proposed by the applicant, whereas the council itself not having raised any objection of a fundamental nature to the use of the land described as Sector D for industrial purposes, the Court concluded that that land could be made the subject of a development consent for that purpose.2. Various matters relating to s 94 contributions were resolved and ultimately the Court found that, having regard to the nature of the application, the rejection of the proposal for the type of residential development contemplated on Sector C effectively meant that the development application should be determined by refusal of consent in respect of the whole proposal.3. Recognising that there may be a means of resolving the dilemma created by its findings, the Court gave the parties an opportunity to reach an agreement whereby the industrial subdivision might be permitted to proceed with the benefit of a consent notwithstanding the rejection, in principle, of the residential proposal for Sector C.4. The major part of the hearing today has been taken up in attempting to identify the interface between various elements of the land and in particular the western extremity or boundary of the land proposed for industrial use, the location of the eastern section of the land within the site which is zoned 5(a) for drainage purposes and the extent to which the creek intersects both parcels of land.5. It is appropriate to have some regard to how the development application evolved in order to appreciate the character of the development proposal which is before the Court. The original statement of environmental effects produced in June 1999 states that the subject site is in the ownership of a number of land owners who have come together to form a joint applicants group at this stage.6. The zoning history of the site shows that in early 1982 it was rezoned under Warringah Amending LEP No. 12 to Light Industrial with a corridor of land zoned for open space. Changes have taken place since then. Ultimately the portion of the site now known as Sector C was rezoned for residential uses within the residential 2(e) zone.7. At that time the drainage corridor was included in the 5(a) special uses zone. The land within the special uses zone is recognised as being generally the flow path of the one in one hundred flood or rainfall event. In normal circumstances the drainage flows through the site are generally along the creek. The creek itself as it relates to the industrial land is not the subject of any special zoning, although it appears that part of it may be caught up in the 5(a) zone within Sector C.8. The Court is not able to make any final determination in regard to the extent to which the land proposed for the industrial use is within zone 5(a) as the plans and diagrams placed before the Court this morning within the existing exhibits are unclear in this respect. Indeed there is a suggestion from a reading of some of those plans on their face that part of the drainage area is within the industrial land. Ultimately it is not necessary to resolve that issue.9. The development proposal when presented to council was supported by a statement of environmental effects. Reference was made to a draft master plan for the whole of the land, and an overall description of what is proposed. The broad principles of the design were said to be guided primarily by the site zonings and access points. In addition reference is made to the Narrabeen Creek corridor and the proposal to provide a nature reserve with the object of forming a managed vegetated creek line corridor.10. The author of the statement of environmental effects asserted that the overall design for the sites makes for the most efficient use of the land, whilst public open space has been provided in Sector C through the provision of recreation areas and by open space linkages through the site. Further reference is made to the preservation of the Narrabeen Creek corridor in pursuit of nature conservation interests.11. Subsequently, after these proceedings were commenced and following filing of a statement of issues a further statement of environmental effects was lodged in support of a change to the proposed configuration of lots within Sector D which, as I mentioned, was designated for industrial use in accordance with the zoning applicable to that land.12. The further EIS prepared in February 2000 refers to its purpose as being to accompany an amended master plan proposal and consequent development application for the subdivision and development of land identified as Sections C and D of the Ingleside/Warriewood Urban Land Release Area.13. Reference is made to a water management plan prepared by consultants to deal with the impact of the proposed development within Section C and D on water management issues. Other issues are dealt with on the basis of the overall concept for the combined site. The conclusions deal with the overall concept plan and the modification which is proposed within Sector D.14. The applicant’s consultant town planner, Mr Hill, in a statement of evidence prepared for the purposes of the hearing, asserts that the future housing in Sector C, and the industrial subdivision of Sector D, represent a logical extension of urban development in terms of servicing and proximity to established built areas. He also notes that in relation to the future ownership of the corridor the applicant proposes that appropriate conditions be applied which require the creation of a separate allotment for the corridor and a condition in respect of any s 94 contributions.15. Mr Davison SC, appearing for the applicant, speaks of an air of unreality in respect of the council’s position which now prevails, namely to the effect that Sector D cannot be developed without Sector C. I do not necessarily understand the council’s position to be such that Sector D cannot proceed in isolation to Sector C, rather it seems to me that the proposal that was put to council, and hence the Court on appeal, involved both an industrial subdivision and a concept proposal for residential development comprising group buildings generally pursuant to the master plan presented for the overall site.16. I hope by providing that summary I do not do a disservice to the council’s main thrust of argument. In other words the council has regarded the development application as, to use Mr Galasso’s words, singular and was not either staged nor comprised of several component parts. It certainly was comprised of component parts. Those component parts identified by the Court are the residential part, the industrial part, the creek line corridor, and the land within the drainage zone. In that context the subdivision of the land zoned industrial should not be allowed at least at this stage to proceed until there has been an opportunity to properly consider a concept which involves only that development.17. As I understand the applicant’s now wish to proceed to lead evidence and make submissions in support of a proposal which would allow the industrial land to be developed as a stand alone development incorporating such drainage and other works of infrastructure that may be required solely within Sector D, and simply to leave Sector C for another time. In other words, no works would be envisaged and no conditions would be imposed in respect of Sector C. The Court would be asked to look at Sector D in isolation and to approve it as a stand alone industrial subdivision imposing such conditions as might be appropriate to that circumstance.18. That, in my view, represents a distinct and different proposal to that which was first lodged with the council supported by the statement of environmental effects prepared in 1999, and even the subsequent amendments supported by the further statement of environmental effects earlier this year, and in particular that which was litigated before the Court.19. What was put by the applicant was a master plan for the site. It may be open to argue, and probably is, that the site had its integral parts all of which could be considered in isolation. But what was put forward was a planning concept to deal with the totality of the land.20. What in effect is now proposed is a proposal which deals with the planning concept for part of the land without any consideration of the integration, interrelationship, or conceptual relationship that might exist between the parts of the site which heretofore have been dealt with as a single site. The evolution of zoning since at least 1985 has been on the basis that the site has been regarded as one. That is going back to the time when the whole of it was zoned industrial.21. It is not appropriate for the Court to embark upon a development application within the development application that is before the Court. Now I say that advisedly notwithstanding that it might be said that there were several developments within the application already before the Court, namely the master plan, which incorporated the concept for Sector C as residential of the type envisaged, and Sector D for the industrial subdivision.22. Mr Galasso does not put to the Court that there is no power to proceed in the way in which the applicant now seeks to proceed. He does not go that far. But he does say that any consent which approves only one part of a development application and which imposes conditions dealing with only that part of the land, the subject of the consent, to the exclusion of the remainder must either be an exercise in granting consent different from that for which consent was sought or to grant a consent which is differently described from that for which consent was sought.23. The interests involved in development applications are not limited to the parties. The council has responsibility for the development of the whole Warriewood development area that has been referred to in the evidence. Strategies and plans have been devised in order to facilitate the orderly development of this expanding area which is apparently being gradually given over to residential development.24. It is not, in my opinion, appropriate to embark upon a separate consideration of the industrial subdivision in these proceedings. That approach might be regarded by some as a bit cute, or taking a fine line. That may be a criticism that could be made of that approach in terms of a micro approach to the subject land. The issues, however, may well be wider. In terms of the specific development application that the applicant elected to make, namely for an approval to a master concept plan, regard must be had to the wider implication of such a development application.25. I make no observation, comment or finding, about the prospect of a separate development application in respect of any part of this land. Notwithstanding the findings about the appropriateness of the industrial subdivision which were necessary in terms of dealing with the arguments raised at the hearing the Court has not changed its opinion expressed in para 99 of the judgment, and further reflected in para 102, where it was indicated that in the absence of consensus between the parties that the matter could be dealt with in another way, namely by agreement, then the development application should be refused.26. I have attempted to accommodate the applicant's proposal to avoid the consequences of that decision by going back and re-analysing the situation with particular reference to what is now proposed rather than the overall concept that was before the Court at the time. I have not been persuaded to change that view.27. In the circumstances, therefore, there is no option but for the Court, consequent upon the confirmation of that original finding, to refuse development consent to the master plan.Orders28. Subject to any further submissions that might be made in relation to the nature of the orders, it would follow from the above that the orders should be:-1. Appeal dismissed.2. Application for development consent to Development Application 570/99, lodged on 23 June 1999 as subsequently amended, is refused.3. The exhibits may be returned.29. I have not heard a breath about exceptional circumstances and I will assume therefore that no order as to costs is appropriate in accordance with the Practice Direction. I will make no order as to costs.