Mirvac Projects Pty Ltd v Ku-ring-gai Council

[2007] NSWLEC 540

Land and Environment Court

of New South Wales

CITATION:

Mirvac Projects Pty Ltd v Ku- Ring-Gai Council and Michael William Inglis [2007] NSWLEC 540

PARTIES:

APPLICANT
Mirvac Projects Pty Ltd

FIRST RESPONDENT
Ku-Ring-Gai Council

SECOND RESPONDENT
Michael William Inglis

FILE NUMBER(S):

10023 of 2007

CORAM:

Talbot J - Hoffman C

KEY ISSUES:

Appeal - Development Consent :- Modification of development consent - where development standard not satisfied.

Development consent:- consent identified modification where breach of development standard will occur.

Modification of development consent:- development standard that enures not dispersed with

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 96, s 96A
Environmental Planning and Assessment Regulations s55
Land and Environment Court Act 1979 s 25A, Part 4 Division 3, s68(1), 79B (3) to (7)
Land and Environment Court Rules Part 13 r 16(b)(1)

CASES CITED:

Austcorp No. 459 Pty Ltd v Baulkham Hills Shire Council (2002) 122 LGERA 205;
Benalup Holdings Pty Ltd v Lismore City Council (1993) 1 LGERA 257;
Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408;
Kendall Street Developments v Byron Shire Council (No. 2) (2004) 138 LGERA 36;
Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2007) 150 LGERA 333;
North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 ;
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355;
Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422;
Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299

DATES OF HEARING:

01/05/07, 03/05//07, 04/05/07, 12/06/07, 21/06/07,12/07/07

 
DATE OF JUDGMENT: 

29 August 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Robertson SC
SOLICITORS
Lindsay Taylor Lawyers

FIRST RESPONDENT
Mr P Marincowitz (Solicitor)
SOLICITORS
DLA Phillips Fox

SECOND RESPONDENT
Mr Garnsey QC
Mr Perram SC
Mr Norton (Barrister)
SOLICITORS
Woolf Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J and Hoffman C

29 August 2007

10023 of 2007 Mirvac Projects Pty Ltd v Ku-Ring-Gai Council and Michael William Ingliss

JUDGMENT

1 Talbot J: On 24 November 2006 the applicant pursuant to s 96 Environmental Planning and Assessment Act 1979 (EPA Act) caused an Application to Modify a Development Consent to be lodged with the first respondent Ku-ring-gai Council. The application to modify the development consent is supported by a letter dated 22 November 2006 and amended architectural plans dated August 2006. The original development consent (DA1388/04) was granted by resolution of the council on 14 June 2005. The Notice of Determination of Development Application addressed to the applicant is dated 22 June 2005. Consent was granted to a proposed development comprising demolition of existing structures and properties known as 10/16 Marian Street, Killara and construction of five residential flat buildings containing 60 units with basement parking, landscaping and strata subdivision.

2 The Notice of Determination of Development Application dated 22 June 2005 notified one hundred and thirty five conditions. Immediately preceding conditions 131 to 135 under the heading “Building Conditions”, the Notice of Determination incorporates the following note: -

Note: If Council is the Principal Certifying Authority, the following building conditions shall form part of this consent.
The note does not appear in the record of the resolution passed by council.

3 Relying upon the observation made by the Court of Appeal in Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2007) 150 LGERA 333, the second respondent submits that the development consent is the determination contained in the council resolution so that the Building Conditions are applicable irrespective of whether the council is the Principal Certifying Authority. That issue will be dealt with later in these reasons.

4 The original development application has already been the subject of a number of modifications, I believe the number is six. The further modifications proposed in November 2006 are the subject of the present appeal and include: -

· relocation of the driveway entry into the car park under Buildings 1 & 2;

· minor changes to the basement layout; and

· redesign of the landscape plan to suit.

5 The changes are reflected in the amended plans produced by the applicant which are now evidence in the proceedings. Effectively the extent of deep soil landscaping now proposed is something less than the 50% of the site as required under Ku-ring-gai Planning Scheme Ordinance [KPSO] and as asserted in the material lodged in support of the original development application.

6 The following issues raised by the first respondent remain to be resolved: -

1. The modified proposal does not comply with the requirements for deep soil landscaping in cl 25B and cl 25I(2) of the Ku-ring-gai Planning Scheme Ordinance (KPSO).
2. The non-compliance will not benefit the overall development.

3. The non-compliance will be contrary to the aims, objectives and considerations in the following clauses of the KPSO: Clauses 25C(1)(a); 25C(2)(b); 25D(2)(b), (c), (e), 25I(1)(a), (c), (d), (e).

4. The non-compliance with the deep soil landscaping requirements referred to in Issue 1, particularly in the front setback (adjacent to Building 1) and the northern and eastern setbacks (adjacent to Building 5), will exacerbate adverse streetscape impacts and adversely impact on adjoining properties by reason of reduced visual privacy and visual amenity, and increased building dominance.

Particulars

The non-compliance in relation to Building 1 are:

· Areas less than 2 metres in width located between proposed retaining walls and Building 1 (north side) and Buildings 3 and 4 (northern and southern side).

· An area less than 2 metres in width between the retaining walls within the front setback.

· Sections of pedestrian entry paths greater than 1 metre in width to the north of building 1, to eastern and western sides of Buildings 1 and 2, and to the north of Buildings 3, 4, and 5.

· The area occupied by the fire hydrant booster valve adjacent to the Marian Street frontage (which is a ‘structure’ but which has been included as deep soil).

· Masonary retaining walls to the north of Building 1, along the street frontage.

· Pedestrian entry paths to the north of Building 1.

· Stairs from basement areas to the ground level to the north of Building 1.

· Paved area surrounding the electrical substation required by Energy Australia along the Marian Street frontage.

The non-compliance in relation to Building 5 comprises the shoring piles and reconfigured basement within the northern and eastern setbacks of Building 5.
5. In the circumstances of the case, none of the issues is capable of being resolved by conditions of consent.

7 The following further particulars are provided by the second respondent Mr Inglis, in respect of the first respondent’s issue No. 4:-

· The area referred to on the trunk drainage plan H5001 issue G as Rip Rap on Geotextile;

The following areas on the Deep Soil Plan have contrary to the provisions of clauses 25B and 25I (2) of the KPSO also been included as deep soil areas:

· All pedestrian pathways which provide wheelchair access and in which the area for wheelchair apart from area for rails and side guard is in accordance with Australian Standard 1428.1 2001 to be a minimum of 1m in width between handrails.

· Areas of paths west of building 5 greater than 1m in width;

· Areas of paths and land between a retaining wall and the southern side of the driveway to the north of building 4 and being less than 2m between structures;

· Areas where the angle external to the driveway is less than 90 degrees and the width is less than 2m between structures;

· Areas between the drainage pipe and retaining wall to the northwest of building 5 being less than 2m between structures;

· Areas between the retaining wall and the southern side of the basement between buildings 4 and 5 being less than 2m between structures;

· Area of pathway on the southern side of building 3 being more than 1m wide;

· Triangle between the driveway and stair to the west of the driveway at the north of the property near Marian Street;

· Area near the fire hydrant booster valve adjacent to the Marian Street frontage where the area is less than 2 m between structures;

· Area occupied by existing drainage pipe to west of “Drainage Pipe Under”, and north of building 3, as shown on Landscape Finishes Plan L-8401A.

8 The second respondent raises the following additional issues: -

1. Whether the failure to obtain a SEPP 1 dispensation from the requirement in cl 25I(2)(c) is a relevant matter to be taken into account in the public interest.

2. That neither the Council nor the Court has power under s 96(2) of the Environmental Planning and Assessment Act 1979 to modify the development consent, as the proposed modification is in respect of buildings and structures that have already been substantially constructed.

3. If the decision in Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 is to the contrary of 2, then that case was wrongly decided or alternatively can be distinguished from the facts of the subject appeal.

9 Both respondents have raised general issues in respect of the lack of adequate information to enable the proposed modification to be properly assessed.

10 It is also contended by the second respondent that a pipe installed to the north and east of Building 5 and an open overflow grate adjacent to the rear boundary of No. 4 Marian Street will have a significant adverse impact on the adjoining properties. The applicant says that the pipe has been located in accordance with the directions of the council.

The Identity of the development consent

11 Mr Garnsey QC, who appeared for the second respondent in the latter part of the case, raised the distinction between the resolution by council when it determined to grant consent subject to conditions and the Notice of Determination served on the applicant. It is his contention that the Notice of Determination does not amount to a consent. Moreover, there is no evidence that the consent reflected in the resolution of council has been subsequently formally modified by addition of the Note as included in the Notice of Determination. The only historical document that contains the Note is the Notice of Determination.

12 The issue was first raised in the context of an argument that as a matter of discretion the Court should not grant approval to an application for modification of development consent under s 96 of the EPA Act in circumstances where the development has been carried out otherwise than in accordance with the consent.

13 The documents lodged in support of the development application such as the Statement of Environmental Effects (SEE) contain statements to the effect that the development, if constructed according to the submitted plans, would comply with the 50 percent landscaping requirement. Condition 135(k) which appears in the conditions under the heading Building Conditions provides that a registered surveyor’s report confirming the deep soil landscape area is no less than 50 percent of the site area (as defined in the KPSO) must be submitted to the council on completion of the works. This has not occurred and cannot occur having regard to the way in which the development has been built.

14 On 6 June 2007 in a separate judgment I refused leave for the second respondent to raise an issue that the appeal be dismissed on the ground that the applicant had failed to lay out buildings in accordance with condition 131. Relying on the decision in Windy Dropdown (which I will come to in a moment), Mr Robertson SC, who appears for the applicant, correctly contends that these proceedings are by way of an appeal against the decision of the Council not to approve an application made pursuant to s 96 EPA Act rather than proceedings for enforcement following an alleged breach of the Act. The subjects for consideration under s 96 are those prescribed by that section and s 79C. They relate to the consent itself, not the actions of the holder of the consent. The subject of the application is not the development as it has been carried out, but the consent itself. It is nevertheless essential that I determine what it is that I am being asked to modify. I have had regard to the evidence of the resolution and the Notice of Determination notwithstanding objections raised by the applicant and the first respondent, for the purpose of determining that issue.

15 In Kindimindi, the Court of Appeal appears to have come to a definitive conclusion that a development consent is properly identified by reference to the actual resolution of the council. The Court was dealing with the application of s 25A of the Land and Environment Court Act 1979 (Court Act). In the course of deliberations there was reason to have regard to what was intended by reference to “a development consent granted” where those words are used in s 25A(1)(b). Justice Hodgson with whom Tobias JA agreed, also reflected on whether the provisions of s 25A(2) were otiose. Subsection (2) provides for Division 3 to “extend to invalidity arising from any steps preliminary to the granting of a development consent”. The Court of Appeal, in the context of the legislation it was considering, found that the development consent referred to in s 25A(1) is the determination by resolution of the relevant consent authority, and that accordingly, Division 3 would apply to invalidity arising from steps preliminary to ”the granting of such a consent”.

16 The EPA Act contains a definition of development consent as follows: -

development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate.

The definition contained in the EPA Act is the relevant definition for present purposes. Part 4 of the EPA Act and Division 3 of the Land and Environment Court Act use different textual references and apply in separate contexts.

17 I am inclined to the view, without deciding, that a person who receives a Notice of Determination is entitled to rely on the Notice and its contents, including any conditions, and to presume that the council has acted with regularity, unless there is some fact which indicates to the contrary. In my opinion the applicant was entitled to assume that the Note appearing under the heading of the Building Conditions was a proper reflection of the council’s intention. In a practical sense it would be entirely unworkable if upon receipt of a Notice of Determination it would be then necessary to plough back into the records of the council to check the contents of the Notice against the resolution. The difficulties would be compounded further where consent is granted under delegated authority as in many cases the decision may not be recorded in the same clear-cut fashion that one expects to see in a formal resolution of a council.

18 The applicant’s primary position is that the application to modify the consent is based upon the Notice of Determination and that accordingly, if the application for modification is approved, it will follow as a matter of form that the disputed note will be included. If the Court does not accept that outcome, then the applicant would seek to modify the consent by adding the note.

19 Mr Robertson proceeded on the basis that the Notice of Determination is protected by the presumption of regularity, thereby placing an onus on the second respondent to show that not only was there no delegation to amend the resolution or to issue a consent in a different form to the resolution, but also to establish that the consent was not in fact amended in accordance with the delegation.

20 Mr Robertson makes the following points as part of his submissions in favour of the applicant’s position:-

(a) Notwithstanding s 372 of the Local Government Act the effect of a delegation to one of the Council officers to re-draft conditions of consent was a legitimate shift of the Council’s function ( GPT v Wollongong City Council (2006) 151 LGERA 116).

(b) The consent only became effective and operated upon delivery of the Notice of Determination (s 83(i)(a).

(c) Until the determination by council is notified it is not beyond recall ( Townsend v Evans Shire Council (2000) 109 LGERA 336).

(d) Both development applicants and third parties including purchasers and lenders should be able to rely on the Notice of Determination as constituting the determination of the council and that all internal processes and procedures relevant to the making of the determination have been adhered to.

(e) The consent does not relate to the second respondent’s land and there is no suggestion he acted to his detriment by relying on the Notice of Determination.

(f) A party seeking to challenge the presumption of regularity bears the onus of demonstrating that the presumption has been displaced. The burden has not been discharged. The form of delegation produced by the Council provides ample support for the delegation of relevant authority. The delegate acted in accordance with his delegation by re-drafting the conditions to make council’s intention clear.

(g) It is self evident that the applicant has relied on the Notice of Determination.

(h) The applicant relies on the principles of estoppel to support the application of the conditions as set out in the Notice of Determination.

(i) The primary submission is one of statutory construction that it is the Parliament’s intention that reliance can be placed on the conditions as they appear in the Notice as the authentic expression of Council’s decision ( Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355).

21 All of the above arguments are strong rebuttal of the arguments put by the second respondent supporting reliance solely upon the terms of the original resolution.

22 Mr Garnsey responded to Mr Robertson’s submission contending that following the decision of the Court of Appeal in Kindimindi the only power that the Court has under s 96 is to modify a development consent granted by the resolution of the Council. In that circumstance any question of the presumption of regularity does not arise. A matter relevant to whether or not the Court grants approval to the modification for application is the fact that the applicant has not complied with the mandatory conditions 131-135.

23 Ultimately, Mr Robertson accepted an invitation to adopt a pragmatic approach. Assuming, without admission, that the Court was satisfied that the consent might be contained only in the resolution of council, then the present application to modify should be amended to bring the consent into conformity with the Notice of Determination and consistent with earlier modifications as amended by the current proposed conditions and amended plans.

24 It is clearly within the power of the council as the consent authority to allow an amendment to an application and accordingly, the Court derives that same power in accordance with s 39(2) of the Land and Environment Court Act. The power is further facilitated by s 68 of the Court Act and Part 10 rule 1 of the Court Rules. The decision of the Court in Benalup Holdings Pty Ltd v Lismore CityCouncil (1993) 1 LGERA 257 is no longer applicable in the light of subsequent decisions in particular the observations made in North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 at [475-476]. Therefore, even if Mr Robertson had not formalised the foreshadowed application to amend, it is within the ambit of the Court’s powers on appeal to modify the existing consent other than in the terms specifically applied for.

25 Following notification of the foreshadowed amendment to the s 96 application the Council has exhibited it for the prescribed period and the parties have been given an opportunity to comment on the single further objection received as a response. The question of costs can be dealt with separately.

26 The amended application is as follows: -

If the Court finds that the consent the subject of these proceedings is that embodied in the minutes of the Council’s ordinary meeting held on 14 June 2005, the consent as modified to date as modified by:

Annexure “A” [being an amended Exhibit “U” (comprising the architectural plans now relied upon by the applicant)]; and

The insertion, immediately prior to condition 131, of the following words:

‘If Council is not the Principal Certifying Authority, the following building conditions shall not form part of this consent’

27 Not only does the Court acquiesce in the amendment on behalf of the Council but leave is granted to rely on it. (see cl 55 of EPA Regulations; s 68(1) Court Act, Pt 13 r 16(b)(1) of the Court Rules).

28 Although there is no specific provision in relation to amendment of an application under s 96, s 68 of the Court Act does not constrain the exercise of the power of amendment.

29 Clause 55 is a constraint on amendment to a development application without leave in the circumstances therein described. I agree with the applicant’s submission that in the absence of a similar constraint on the amendment of a s96 application, it can be accepted that an applicant is allowed to amend. Moreover, a power to apply must ordinarily include a power to amend. Furthermore following the departure from what was decided in Benalup, the Court can exercise a discretion to grant an approval in a different form to the application as a condition of the consent.

30 Having regard to the way the application has developed and the entitlement of the applicant to rely on the terms of the Notice of Determination, if the consent is modified it is not strictly necessary to engage the competing arguments of the applicant and the second respondent in respect of the validity of conditions 131 to 135.

31 As a matter of practicality and common sense, I therefore propose to deal with the application on the basis that it includes a request to modify the conditions of the consent so that they conform to the form of consent reiterated in the Notice of Determination as subsequently modified by previous applications and ultimately further modified by the amended plans and conditions proposed to the Court. Having regard to the whole of the circumstances and the reasonable expectation on the part of the applicant that the Notice of Determination was a proper reflection of the resolution passed by the Council, any alleged breach of the conditions of consent prior to the introduction or reinstatement of the Note appearing in the Notice of Determination is not cause for this Court to exercise its discretion against the grant of an approval to a further application for modification on that ground. If there has been a technical breach of the conditions of the original consent then that is not a matter which will concern the Court in these appeal proceedings.

The question of Power

32 In Windy Dropdown I decided that an application for modification of a development consent could be considered notwithstanding that the development had been carried out. The second respondent submits that a consent authority does not have the power to modify a development consent where the development has been substantially constructed. Moreover, the alleged illegality of the works undertaken by the applicant and the alleged failure of the applicant to comply with the requirements of the relevant legislation are said to be matters relevant to establishing lack of power to grant an approval to an application for modification under s 96 of the EPA Act either generally or particularly where dispensation was required under SEPP 1 and not obtained in the first instance. To the extent that the decision in Windy Dropdown is to the contrary, Mr Perram has asserted that it should not be followed and Mr Garnsey reiterates that contention.

33 Mr Perram submitted that as a matter of text it is apparent from s 96(5) that at least in that provision the word modification must refer to a process which occurs prior to the development occurring. I find it difficult to derive any assistance in relation to the present issue from the text of s 96 (5) as in its own terms it refers specifically to an application for modification of the kind that relates to a critical habitat, a threatened species population, or ecological community. The reasons for there being a special provision in respect of development consents of that kind are self evidently related to the special circumstances which relate to threatened species and habitat. Clearly an assessment in accordance with the consultation and concurrence process stipulated in s 79B (3) to (7) would be severely jeopardised if the development had already been carried out. Conversely, the special provision in (5) suggests a construction in respect of any other development consent that is consistent with the finding in Windy Dropdown.

34 In my opinion the power given to the Director-General and a Council pursuant to s 96A(1), called in aid by Mr Perram, takes the second respondent’s argument no further. That provision relates to a power to revoke or modify a consent where it appears to either of the authorities that a development application should not be carried out or “completed”. Section 96A has no bearing on the operation of s 96, except that it empowers the authorities to modify a consent. It is otherwise a stand alone provision.

35 I agree with subsequent distinguishing observations made by Bignold J in Willoughby City Council v Dasco Design and Construction Pty Ltd (2000) 111 LGERA 422 and Lloyd J in Kendall Street Developments v Byron Shire Council (No. 2) (2004) 138 LGERA 360 that the effect of s 96(4) is not retrospective. As Bignold J said at 442, it does not require a fictional relation back of the modification to the date when the development consent that it modifies was granted. Lloyd J came to the same conclusion at page 369 and 370. The question did not strictly arise in Windy Dropdown itself. The reference to a modification of consent pursuant to s 96 operating retrospectively by dint of s 96(4) in the Windy Dropdown judgment is certainly an unfortunate use of language that arose almost as a side wind in the narrow context of determining whether an application that relates to development which has already been carried out can be made pursuant to s 96. I found in Windy Dropdown that such an application can be made. Bignold J and Lloyd J as well as Cowdroy J in Austcorp No. 459 Pty Ltd v Baulkham Hills Shire Council (2002) 122 LGERA 205 have since concurred. The decisions of Bignold and Lloyd JJ, followed specific argument on the issue.

36 The effect of the decisions in Dasco Design and Kendell Street is merely that the Court has the power to entertain an application made under s 96 irrespective of whether the development has been carried out. However, that does not have any impact upon the possible consequence that any works carried out otherwise than in accordance with the original development consent between the date of the original development consent and the date of the approval under s 96, may have been carried out illegally.

37 Mr Perram persisted with an argument that the rejection by Bignold J and Lloyd J of the finding in Windy Dropdown that works which were illegal ceased to be so upon the approval of the modification, is inconsistent with the pivotal reasoning relied upon in Windy Dropdown. However, rather than being part of the pivotal reasoning, the reference to retrospective operation was only a consequence of the reasoning which supported the conclusion that an application for modification of development consent could be considered notwithstanding that the development had been carried out.

38 Furthermore, the submissions on behalf of the second respondent do not appreciate the fact that s 76 operates in respect of development whereas s 96 operates in respect of a development consent. The former is intended to overcome an impediment to the carrying out of development at all without consent whereas the latter deals with an amendment to an existing approval, usually to take into account subsequent facts and circumstances. The modification relates to the documentation of the approval.

39 If an application pursuant to s 96 cannot be made where development had already been carried out, it would defeat one of the purposes of the provision namely to enable changes to be made where carrying out the development strictly in accordance with a development consent has proved to be impracticable or even impossible. Often circumstances change and necessitate adjustments to the operation of or the means of carrying out development.

40 Finally Mr Perram submits that the power in s 96(2) can only be dispensed to a person who is “the applicant or any other person entitled to act on a consent”. This argument is developed by reference to the provisions of s 76A(1) which insists that development is to be carried out in accordance with a development consent and the environmental planning instrument which provides that the specified development may not be carried out except with development consent. Because it is alleged the landscape plans approved by the original consent did not comply with the provisions of clause 25I of the KPSO and as there was no dispensation with that requirement under SEPP 1, Mirvac was not, therefore, a person entitled to act on the consent and hence had no entitlement to apply under s 96(2). It follows according to the argument that if s 96 is utilised in the present case it would be a means to circumvent the SEPP 1 procedure entirely by the simple expedience of applying for consent without disclosing the departure from the development standard or making a SEPP 1 objection, carrying out the work to which it would have related illegally, and then seeking modification. Even if this argument is correct it has not been proved to my satisfaction on the balance of probabilities that a SEPP 1 objection was required in the first instance. The SEE asserted to the contrary. The development was supported by a Deep Soil Zone plan that demonstrated provision of 50.16 percent of the site being deep soil zone. The Council accepted, considered and dealt with the application on the basis that the development standard in clause 25I of the LEP would be satisfied. The non compliance with the standard arises now only as a consequence of the evidence of Mr Pittendrigh, a landscape architect and of the way in which the development has been built. The applicant was entitled to act on the consent and continues to be entitled to do so whilever the consent continues to operate and remains in force.

41 The overriding position is that on a plain reading of s 96(2), Mirvac is entitled to make the application in its capacity as the original applicant.

42 The evidence of Mr P Pittendrigh is that he has calculated the area of the deep soil landscaping provided in the approved plans as less than 50 percent of the site area. Even if those calculations are correct the conditions of consent required that the area of deep soil landscaping comply with the standard. The SEE and the supporting plan asserted that would be so. It follows that the development was approved on the basis that the amount of deep soil landscaping would be as prescribed by cl 25I of the LEP.

43 Inadvertent mistake or inaccuracy is not necessarily a ground for treating a determination to grant development consent as invalid. Although Mr Pittendrigh was not cross examined it is certainly arguable that parts of the site he excluded from the calculations could be included to account for the alleged deficiency at the date of the determination. I agree with the applicant’s submission that the power in s 96 is not a power which is to be used to punish errors but to relieve from their consequences in appropriate cases (Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408). If there was an error initially then the time has long past for that to be an issue. The s 96 application has become necessary in order to overcome the deficiency in the provision of deep soil landscaping area as a consequence of the way in which the development has been built. Not as a consequence of the initial error or mistake, if indeed there was one.

Non compliance with the Development Standard

44 The second respondent seeks to distinguish the circumstances that prevailed in Michael Standley or indeed Windy Dropdown from this case on the basis of the following evidence:-

· The development in the initial development application did not comply with the standard.

· Accordingly, the development was prohibited unless a SEPP 1 objection was lodged.

· It was asserted in the development application that compliance was achieved.

· No SEPP 1 objection was lodged.

· The council proceeded to assess the application on the false assumption that compliance was achieved.

45 I have already said that I am not able to find that a SEPP 1 objection was required in support of the original development application, notwithstanding the evidence of Mr Pittendrigh. However a careful reading of the judgments of Mason P in Michael Standley and applying his conclusion at 480-481 to the application of cl 25I to the facts of this case leads to a further problem. The President of the Court of Appeal dealt with three examples at the top of page 480. None of the examples apply in the circumstances of this case. At page 481 His Honour makes a statement as follows:-

A modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application. And s 102(3A) controls the way in which the consent authority takes into account the development standards found in any environmental planning instrument.

46 However what the President did not address is a circumstance, such as the present, where effectively there was compliance by the description or design of the proposal at the time the development application was considered but the modified development (as built) does not comply with the standard. This is not a case where a development standard has been introduced after the original development application was determined. Furthermore even if the standards in cl 25I(2) are development standards they are ambulatory and apply irrespective of the terms of any consent or approval unless development consent is granted on the basis that compliance with the relevant standard is unreasonable or unnecessary in the circumstances of the case.

47 A reading of the plain words of cl 25I(2) demonstrates that its effect enures beyond the date of consent. It applies to the development unless dispensed with. The clause relevantly states:

25I Site requirements and development standards for multi-unit housing
(1) …
(2) Minimum standards for deep soil landscaping
The following standards relating to deep soil landscaping apply to multi-unit house:
(a) …
(b) …
(c) a site with an area of 1,800 square metres or more is to have deep soil landscaping for at least 50% of the site area.

48 The dispensing power contained in SEPP 1 only applies to a development application. Section 76A(1) provides:-

76A Development that needs consent
(1) General
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.

49 As the development may not be carried out except with development consent it must not only be carried out in accordance with the consent but also the KPSO. Clause 25I(2) has not been dispensed with and cannot be varied except by means of a SEPP 1 objection. An application for development consent is not capable of adaption to a modification application for the purposes of applying SEPP 1 (see Michael Standley at p 480 overruling the decision of Bignold J in Haywood & Bakken Pty Ltd v North Sydney Municipal Council).

50 The decision in Michael Standley does not facilitate ignoring an ongoing provision such as clause 25I(2) that controls a specification for the state of the site at any given time. It has not been dispensed with and accordingly has continuing effect. The only means to engage SEPP 1 is by the lodgement of a development application. There is no such application on foot.

51 The problem for the Court therefore is that it is being asked to approve a modified development in a form that cannot be maintained whilever clause 25I(2) operates against it. As a matter of policy the Court should not embrace such a position by granting an approval to a form of development that can only be carried on in breach of the Act (see s 76A(1) and s 125).

52 The last mentioned conclusion means that the Court must refuse the application in so far as it inevitably leads to the consequence of there being a breach of cl 25I(2).

53 An approval can be granted to that part of the application that generates the Note prior to condition 131. There may be aspects of the plans that can be approved because those parts do not relate to development that impinges on the capacity to provide deep soil landscaping (DSL). I am unable to discern what those aspects are without further clarification and investigation. The parties particularly the applicant and the first respondent should be capable of identifying any such aspects.

54 There has been a full exploration of the merit issues in regard to the development in its modified form. But for the impediment to giving an approval to non-complying development I have decided with the benefit of considerable assistance from Commissioner Hoffman, whose advice has been most helpful, that the development in its modified form is acceptable. The evidence has persuaded me that if appropriate conditions were applied an approval would have been forthcoming. It is appropriate that the parties have the benefit of a formal finding in respect to the merit issues so that a way forward can be devised in a further attempt to formalise the situation.

Assessment of the Merits

55 The relevant changes to the development which are the subject of the application for modification are shown in plans drawn generally to reflect the development as built overlayed what was approved by the development consent as subsequently modified. In some instances the footprint of the subject buildings has extended beyond the approved footprint whereas in other places it has retracted.

56 Building 1 has a frontage to Marian Street to the north. The footprint of the slab has extended in a northerly direction to accommodate piling in the foundation. The driveway along the eastern side of Building 1 and 2 has been built otherwise than in accordance with the approval but no issue is raised directly in that respect. There is a narrow strip between the edge of the driveway and the western boundary of the property owned by the second respondent. Building 2 has been built more or less with a footprint in the form approved.

57 Building 3 at the rear of the site has extended in a westerly direction towards the western boundary. The footprint of Building 3 has been extended by a firestair. In the case of Building 4 the footprint has been extended by the addition of an expanded area for a mechanical room. The southeast corner of Building 5 has been significantly extended in the basement area including a machine room. The additional area also extends along the northeast boundary and projects towards the boundary of the property owned by the second respondent in a northerly direction. Building 4 and 5 respectively have larger basement areas projecting into the area set aside for DSL between the two buildings.

58 The overall affect of the above-mentioned changes is that there has been an encroachment into the area previously included in the DSL land, to the extent that the area set aside for that purpose is now approximately 44.6 percent of the site. A further reduction will occur if an area to be treated with “rip-rap” is regarded as unsuitable for DSL.

59 The changes have occurred for a number of reasons. Firstly in the area of a pinchpoint at the northern extremity of Building 5 the building was relocated at basement and ground floor level to accommodate the installation of a drainage line originally designed to run under the corner of the building. The original design maintained a seven metre set back from the boundary with the second respondent’s property. That setback has now been significantly reduced to approximately 3.6 metres and the drainage line is located in that setback area thereby further impeding the capacity for deep soil landscaping.

60 The applicant has explained that the other changes in the footprints have occurred generally as a consequence of allowing for piling of the foundations at the perimeter of the buildings. Further changes may have occurred as a consequence of meeting the standards required for the provision of manoeuvring spaces within the car park. The car park provision is significantly in excess of the requirement by the DCP. The additional requirement for parking is said to be driven by the propensity for commuters to park in the immediate vicinity of the site adjacent to Killara railway station.

61 Apart from the impact on the provision of landscaping, in particular deep soil landscaping, the relocation of Buildings 1 and 5 and other works near the common boundaries change the amenity of the property owned by the second respondent.

62 The primary argument in relation to the merits have been in respect of the treatment of the structures in the areas immediately fronting Marian Street and adjoining the property of the second respondent as well as the capacity to provide the equivalent of deep soil landscaping to the extent anticipated by clause 25I of the KPSO.

63 Following considerable conferencing, consultation and collaboration the experts have agreed that most of the issues can be resolved by appropriate treatment subject to the Court’s approval. These are as follows:-

(1) The lowering of a wall and the creation of a garden around the electricity substation at the street frontage.

(2) The planting of a hedge around the fire hydrant and water connection adjacent to the boundary with the second respondent’s property at the north-east corner of the site.

(3) The construction of a landscape retaining wall above the basement extension along the frontage of Building 1 with associated step gardens down to courtyards at the front of the northern units.

(4) Additional tree planting in the front garden to respect the existing streetscape.
(5) The removal of bike racks near the mailboxes to increase the landscape area.
(6) The relocation of a path along the western side of Buildings 1 and 2 to facilitate the planting of tall trees along the boundary with sufficient room for canopy spread.
(7) An alteration to the tree species to be planted along the eastern boundary of the site with the second respondent’s property to provide better screening at the lower level with reduced canopy spread to reduce overhang to the adjoining house.
(8) The basement car park entry to Building 1 has been removed to the southern end of Building 2 thereby reducing the extent of concrete driveway adjacent to the second respondent’s property facilitating the planting of a greater number of canopy trees to soften the effect of the five-storey Building 2 as viewed from the property of the second respondent.
(9) The deletion of a number of parallel visitor parking spaces along the driveway adjacent to the eastern side of Building 2 to facilitate the provision of space for large trees and to allow for canopy spread clear of the building.
(10) The maintenance of existing trees adjacent to the south-west corner of the second respondent’s property in order to provide softening of the impact of the north side of Building 5 and the view through the space between Buildings 2 and 4. These trees will need special attention having regard to the location of the council easement and drain in that vicinity. A drainage sump that feeds into the council’s drain can be moved in order to relieve the potential stress on the existing trees at this location.
(11) A path at the western end of Building 3 will be relocated in the side setback in order to preserve some existing trees and unit privacy.
(12) The extension to the south of Building 4 and 5 basements will impinge upon areas that were previously set aside for deep soil landscaping but will now be treated with the placement of 0.6m-1.5m of new top soil over the basement roof. The topsoil will be contoured to blend with the natural slope of the land within the southern side setback. This depth of soil will enable tall and large canopy trees to thrive in an environment superior to the conditions under which existing trees grow. The original soil depths in this location were as shallow as 150mm overlaying impervious clay. The experts agree that although this area cannot be classified as deep soil landscaping after treatment it will nevertheless essentially serve the same purpose. A proposed tree approved by the original consent will be moved off the basement roof in order to be in actual deep soil landscaping. Existing and new large canopy trees will provide a suitable screen softening of Buildings 4 and 5.
(13) The restoration of a Blue Gum High Forest (BGHF) ecological community to the site replacing exotic trees and shrubs that have been removed.
(14) The changed location of the drain the subject of the council easement at the pinchpoint has reduced the capacity for deep soil landscaping outside the footprint of the building. However, a large planter box can be constructed on the terrace above the extension of the basement at the northern end of Building 5 to separate the standing area on the terrace from the second respondent’s property by 7m. The planter vegetation will screen any view line into the second respondent’s rear yard. The 7m standing position is consistent with the original setback approved for the terrace. Apart from the above changes at basement and ground level Building 5 remains in the same position and setback in accordance with the original consent.
(15) An increased number of trees between Building 5 and the boundary will grow to significant heights with canopies that will soften and screen Building 5 in a more effective way than originally proposed by the landscape plans the subject of the development consent.
(16) Visitor car spaces parallel to the kerb on the south side of the driveway outside Building 4 should be removed. This will allow more deep soil planting and allows trees to be further from the building to allow for canopy spread.
(17) The number of trees that can be planted on the site generally is not restricted by the construction of piles outside the original footprint as the trees must be planted a greater distance from any building to allow for canopy spread in any event. There will nevertheless be a reduction in area for deep soil landscaping and understorey shrubs.
(18) The approved masonry fence along the boundary with the second respondent’s property should be replaced with a lapped and capped wooden fence 1.8m high along the common boundary with a concrete strip footing.

64 The following matters remain for determination:-

(1) Adjustment of parking spaces. The applicant proposes four ground level car spaces at the foot of the driveway. The council seeks to have all four spaces deleted and the accommodation transferred underground in a basement. The purpose of deleting spaces marked V11 and V12 is to facilitate the provision of a turning area for emergency vehicles at the bottom of the driveway. This in my opinion is reasonable and represents an essential requirement as otherwise there would be insufficient manoeuvring space at this point. Another of the spaces marked V9 is located over a drainage easement and accordingly there is not a good facility for planting. V10 is conveniently located to provide a-grade disabled access to Buildings 3, 4 and 5. In my view spaces V9 and V10 can remain. These changes will have a consequential effect on condition 74 in relation to the number of car spaces the applicant is required to provide.
(2) There is an argument in regard to condition 40A and 40B that the wooden lapped and capped fence proposed along the boundary with the second respondent’s property will reduce the opportunity for landscaping and could affect existing trees by the provision of the concrete strip footing. The problem can be overcome or the impact limited by the construction of pier footings near existing trees. A strip footing could nevertheless be provided following an expert root mapping by a qualified arborist to identify areas where foundations should be limited. The footings in relation to the fence should be designed in conjunction with an engineer to prevent overland storm water flows entering the second respondent’s property, according to plans to be approved by the council.
(3) Condition 75A(f) of the respondent provides that a pathway along the western boundary shall be setback at least 3m from the boundary. This is impractical as the minimum setback of the building at one point is only 3.48m. At other points the path if constructed in accordance with the condition will be hard against the structure of Building 1. The second respondent’s landscape expert Mr Pittendrigh and the applicant’s expert have agreed that the path can be designed in accordance with a plan produced for that purpose and I am satisfied that plan represents a satisfactory solution to the problem. The condition should therefore be deleted.
(4) Condition 75D proposed by the applicant requires the construction of a suitable structure designed to redirect run-off away from the second respondent’s property to a nominated pit. The proposal has the potential to interfere with the roots beneath the drip line of Tree No. 162 to be retained. The applicant has agreed to move the pit out of the canopy spread and is now reflected in condition 75F proposed by the respondent.
(5) The council seeks to amend its proposed condition 75D to say existing soil levels should be retained within the canopy spread of existing trees 181,161,162, 90 and 91 shown on the landscape plan. This problem arises in addition to the matters dealt with by proposed conditions 40A and 40B relating to the construction of the lapped and capped wooden fence along the boundary. The council’s proposal to maintain existing levels under condition 75D is in the interests of the survival of existing trees that screen the proposal from the second respondents property and is appropriate.
(6) The condition proposed by the council as condition 75E is equally appropriate as it specifies construction details for any proposed garden and masonry walls near the same trees.
(7) There is also an argument being maintained by the respondents that there is insufficient information available to the Court to enable it to determine the issues, particularly in relation to the impact on and the effect of landscaping. Following the extensive hearing and the concentrated evidence given by the respective landscape experts together with the town planning evidence it cannot now be said the Court is not properly informed on all of these matters. Any previous deficiency has been rectified in the course of the hearing.
(8) There is an issue whether the extent of deep soil landscaping now proposed to be provided is adequate to meet the aims and objectives of the standard in Clause 25I of the KPSO. There is a large volume of drawings, technical reports, expert reports, joint reports and plans addressing this subject. The landscape experts gave concurrent oral evidence and indicated that in quantitative and qualitative terms the landscape proposal as it now stands will produce a better landscape outcome than the original consent subject to certain conditions on which there is still some disagreement. The disagreement has been covered above.
(9) It is not now helpful to delve further into the reasons the council was either misled or misunderstood the original plans in relation to the extent of deep soil landscaping. It is not always necessarily the case that a council should accept whatever an applicant presents as being correct. There is an equal responsibility on the part of the council to be satisfied that the requirements of the law are complied with. Comprehension of the plans and supporting documents and reports lodged as part of any development application is an essential ingredient of the assessment of the totality of the proposal.
(10) It is agreed that the actual deficiency of deep soil landscaping is in the order of 5.4% or possibly 6% according to how the area treated with rip-rap is regarded. The experts agree the total area of the deficiency is equivalent to about 600sqm. However it must be appreciated that the deficiency is scattered throughout the site and is not one large area that cannot be treated in the manner contemplated by the KSPO.

65 The applicant’s submission is that the landscaping proposed is acceptable for the following reasons:-

· The landscaped area of the site (DSL plus other landscaped areas) is 55 percent.

· The area taken by the piling is close to the building footprint in most locations, and the experts agree it has not reduced the number of BGHF trees that can be planted.

· The proposal actually incorporates far more large trees than council’s controls require, and more than originally approved.

· There are 18 existing trees of height, above 13m, and the proposal will add 111 trees of species capable of growing above 13m.

· The changes to the driveway, the relocation of the entry to the basement car park of Buildings 1 and 2, and the ground level visitor parking locations have increased the deep soil landscaping and reduced the 5.4 or 6% deficiency so it is closer to 50% of the site area. The final calculation is not in evidence.

· The same changes plus the amended vegetation proposed along the eastern boundary has vastly improved screening of the buildings from Nos 4-8 Marian Street and will achieve a substantially leafy outlook once the trees grow.

· The actual portion of Building 5 that is closer to the property of the second respondent than the original approval is the basement and the slightly elevated terrace of Unit 5.01. These components are minor in visual impact. It is the screening of the five-storey height of Building 5 that is important. In the opinion of the experts the greater concentration of trees around the “pinchpoint” and the planter bed on the terrace of Building 5’s Unit 5.01 will produce a similar or better outcome of screen vegetation as seen from the adjoining property compared to the original consent.

· The largest component areas of basement that have reduced the deep soil landscaping are on the east and south sides of Building 5. The east side faces the rear boundary of a heavily treed park. The south side faces rising ground to the back yards of houses on higher ground. Streetscape is not affected at these locations. The experts are satisfied that (above the basement roof) new soil between 600mm and 1.8m will enable growth of substantial trees and vegetation similar to areas of deep soil landscaping even though it does not qualify as such. They will achieve a high level of screening of Building 5 by tall canopy trees.

· The pre-development soil conditions on site, revealed from bore-logs, show that there was only 150-400mm depth of soil above impervious clay. The proposal will provide at least 600mm of new soil of a type appropriate to the BGHF ecological community species.

· The experts agree that BGHF as an ecological community of vegetation has not existed on this site for many years, and the proposal with the intended canopy trees and understorey vegetation will restore it.

· Part of the area now deleted from deep soil landscaping is where Building 5 basement comes to less than 2m, from the eastern boundary. The reduced dimension of less than 2m is what disqualifies it from the definition. Yet Mr Pittendrigh asked for the ang. Floribunda to be moved off the roof of the basement into this area and the applicant agrees. This demonstrates confidence to some extent at least that a non-deep soil landscaping area can be expected to perform a similar function.

Conclusion

66 Given the above, one cannot escape the conclusion that the objective of the deep soil landscaping (of maintaining and enhancing the leafy character and tree canopy of Ku-ring-gai that gives the impression of vegetation predominance over built form), can be achieved. Following the recent change of zoning from low density to high density for this locality, it cannot be expected to achieve the greater predominance of vegetation seen where only houses occupy a site.

67 The amended plans if ultimately approved will ameliorate any impacts on-site and off-site to acceptable levels, in fact, to an improved level compared to the original consent. They could be approved subject to appropriate conditions if the applicant is able to make an application that can be considered. As a result, although there would not be strict compliance with clause 25(1)(2)(c) of the KPSO, the proposal would achieve the objectives of clause 25C(1)(a), 25C(2)(b),(c),(e) and 25I(1)(a), (c),(d) and (e).

68 Conditions will need to be amended to reflect the following outcomes:-

(1) Visitor car spaces V9 and V10 are maintained.
(2) Visitor car spaces V11 and V12 be relocated to a basement area.
(3) A turn around space be provided at the foot of the driveway sufficient to allow emergency vehicles to manoeuvre.
(4) Car space V9 or V10 be sized and sign posted as “Disabled Access Parking Only”.
(5) The identification and numbers of car spaces be recast to retain 15 visitor spaces on the site. Condition 74 needs to be amended accordingly.
(6) Conditions 40A, 40B, 75D and 75F proposed by council are adopted with the addition of the following words: “Design of structures to include: no excavation except for pier footings near existing trees, or, root mapping by a qualified arborist and design of any structure by the arborist in conjunction with an engineer to ensure the survival of existing trees.”
(7) Delete condition 75A(f) as proposed by council.
(8) Adopt condition 75E and 75F as proposed by council.
(9) The reference to drawing L-8400-H in condition 1 of council’s proposed conditions should be a reference to drawing I-8400-H.
(10) All other conditions proposed by the council should be incorporated in the approval to the application for modification.

69 It is inevitable the superimposed changes to the planning regime in this area will create tensions between developers and existing residents. This is a classic case of that occurrence. The Court has striven to take into account the amenity of the second respondent, as far as practicable, having regard to the nature of the development. The conflicts that have arisen are more a product of the altered planning circumstances rather than as a consequence of the development itself. The benefit of these proceedings to the second respondent is that in the Court’s opinion it has been shown that a better result can be achieved than from the original consent. The extent and quantity of landscaping has been reviewed in detail and improved, and elements of the design have been amended in a manner that produces a positive result for the second respondent and the relationship of the development with the existing streetscape, in the public interest.

70 The parties are directed to forthwith confer and agree on a form of orders reflecting the Court’s decision. The first respondent is to file a form of final orders for sealing by the Registrar within 14 days.

71 The applicant has been successful in meeting various merit claims and some of the other issues generated principally by the second respondent. However the failure of the applicant to construct the development strictly in accordance with the approved plans and conditions of consent has caused a large degree of contention. The council was justified in seeking to have the development carried out in accordance with standards in the LEP. The suggested conditions of consent will achieve this as far as practicable if they can be implemented. Nevertheless the council could have been more diligent in its consideration and assessment of the approved plans particularly in respect of the extent of the deep soil landscaping.

72 In summary each party has gained some benefit from the outcome. I accept that the exuberance of the second respondent and his advisers has at times extended the complexity of the issues and the time taken for the hearing and resolution of the issues. Nevertheless starting from the position that in Class 1 proceedings there should be no order as to costs I consider that having regard to the outcome of the appeal it is fair and reasonable for that position to be maintained.

73 The Exhibits may be returned.