Satmell Holdings Pty Ltd v Blacktown City Council

[2018] NSWLEC 1256

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Satmell Holdings Pty Ltd v Blacktown City Council [2018] NSWLEC 1256
Hearing dates:	30 April 2018 & 1 May 2018, 17 July 2018
Date of orders:	19 July 2018
Decision date:	31 May 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	Orders at [155]
Catchwords:	DEVELOPMENT APPEAL: North West Growth Centre urban release area – Medium Density Residential development – agreement on planning matters- whether the proposed stormwater discharge from the site is appropriate – applicable contributions plan – appeal upheld.
Legislation Cited:	Blacktown City Council Growth Centres Precincts Development Control Plan 2010 Conveyancing Act 1919 (NSW) Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy 55 – Remediation of Land State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development
Cases Cited:	Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 Hammersmith Management Pty Limited ACN 084 393 644 v Lake Macquarie City Council (124 LGERA 63) Kindimindi Investments Pty Ltd v Lane Cove Council [2006] 143 LGERA 277 Mison v Randwick Municipal Council (1992) 23 NSWLR 734 Wehbe v Pittwater Council [2007] NSWLEC 827
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Satmell Holdings Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant) R White (Respondent)   Solicitors: Mills Oakley (Applicant) Houston Dearn O’Connor Lawyers (Respondent)
File Number(s):	2017/266013
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Blacktown Council of Development Application number SPP-17-00012. The initial application sought consent for the following development at 876 Windsor Road, Rouse Hill. The development is proposed to be undertaken in a number of stages.

• Road and infrastructure works to create new public roads;

• Torrens title subdivision to create two allotments for residential development and public roads;

• Construction of a residential flat building of three storey containing 62 apartments and 77 car spaces in a basement car park;

• Construction of a multi dwelling housing development comprising 92 three storey town houses; and

• Construction of a temporary road and deceleration lane to facilitate temporary access to the site from Windsor Road.

2. The applicant appeals under s8.7 of the Environmental Planning and Assessment Act 1979 (the Act) and by reference to the Class 1 Application the applicant seeks for the appeal to be upheld and for consent to be granted to the development application.

3. Following the filing of the appeal the Council filed a Statement of Facts and Contentions that identified the following issues as warranting the refusal of the application:

• Building height is excessive in the context and the locality;

• the request to vary the height standard is not well founded;

• inconsistency with the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP);

• the quantity of development proposed is excessive for the site and is in excess of the proposed maximum density for the site;

• character of the proposed townhouses are inconsistent with the future character of the area; and

• the proposed stormwater drainage is located within protected native trees and vegetation.

4. Prior to the hearing the applicant prepared amended documentation and plans that sought to address the issues identified by the Council. The applicant was granted leave by the Court to rely on amended plans and documentation in March 2018. By reference to the affidavit supporting the motion for leave the applicant made the following main changes to the development:

• inclusion of an amended slip lane design to improve accessibility off Windsor Road;

• provision for the staging of the development;

• a reduction in the number of townhouses;

• increased town house separation an increase in landscaping and tree planting;

• increased setback of townhouses 1-7 to enable the retention of existing trees; and

• deletion of the top floor of the proposed apartment building.

5. Following a review of the amended plans Council is satisfied the development is acceptable with the exception of the resolution of the proposed stormwater discharge from the subject site.

6. At the commencement of the proceedings the applicant sought and was granted leave to rely on a further amended set of plans and documents. These further amendments alter the manner and location of the proposed stormwater discharge. The applicant states that the amendments arose from the joint conferencing of the respective stormwater experts.

7. Leave was not objected to by the Council, subject to the consideration of any costs arising. The applicant notes in the affidavit supporting the motion for leave that the amendments to the application are not minor. I concur with the submission of the parties that the amendments are not minor (Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 153 at [42]), and costs under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (‘the Act’) arise.

8. The Council maintains that the application, as further amended, fails to satisfactory manage the temporary stormwater discharge from the site which will be required until the permanent public facilities are operational.

9. The remaining issue between the parties arises if the Court finds that the application warrants approval. The parties are in dispute as to the relevant contribution plan that should apply to the development and therefore the contributions payable.

The Site:

10. The site is described as Lot 3 DP 135890, known as 876 Windsor Road, Rouse Hill.

11. A house, sheds, tennis courts and two dams currently occupy the site. The tree survey identifies 109 locally indigenous and ornamental trees scattered across the site and around the site boundaries. Of these 84 are categorised as of high significance (Exhibit 5).

12. The site slopes away from Windsor Road to the north-western corner of the site, and to Second Ponds Creek. The site is subject to a cross fall of approximately 8 metres over a distance of 260 metres (Exhibit 5).

13. The locality is undergoing change from a semi-rural character to urban development. The intended structure of the precinct as a whole (known as Area 20) is documented in area plan appended to the Blacktown City Council Growth Centre Precincts Development Control Plan 2010.

14. The area to the west and North West of the site consists of protected vegetation as identified in the Growth Centres SEPP mapping.

Planning Controls:

15. Under the Growth Centres SEPP Appendix 6 Area 20 Precinct Plan 2010, the subject site is within the R3 Medium Density Residential zone. The proposed development is permissible under this zone.

16. The objectives of the R3 Medium Density Residential zone are:

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

• To provide a variety of housing types within a medium density residential environment.

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

• To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.

17. The maximum building height applicable to the site is 8.5m. The application relies on a variation to the maximum building height standard under cl.4.3 of the Growth Centres SEPP. The objectives of this clause are:

(a) to establish a maximum height for development on the land within the Area 20 Precinct,

(b) to minimise visual impact and protect amenity of adjoining development and land in terms of solar access to buildings and open space,

(c) to facilitate higher density development in and around commercial centres and major transport routes.

18. The parties and their experts agree that the variation request can be supported. None the less the variation request is required to be assessed against the provisions of cl. 4.6 of the Growth Centres SEPP. Relevantly cl. 4.6 states:

(1)  The objectives of this clause are as follows:

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless:

(a)  the consent authority is satisfied that:

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Director-General has been obtained.

…

19. The development application is integrated development pursuant to s. 4.46(1) of the Act as follows:

• the proposed development will involve subdivision of bushfire prone land that could lawfully be used for residential purposes;

• the proposed development will involve a new temporary road connection to Windsor Road which requires approval from NSW Roads and Maritime Services;

• the proposed development will involve discharge to Second Ponds Creek and will require a controlled activity approval from the NSW Office of Water.

(Exhibit O)

Each of these requirements have been satisfied (Exhibit 5).

20. State Environmental Planning Policy 55 – Remediation of Land (SEPP 55) requires the consent authority to consider: whether the land is contaminated (cl.. 7 (1)(a)); if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out (cl. 7 (1)(b)); and it is satisfied that the land will be remediated before the land is used for that purpose (cl. 7 (1)(c)).

21. A preliminary site investigation report was prepared by Coffey Consulting for the site (Exhibit Q). The report concludes:

Coffey considers the site can be made suitable for the proposed residential redevelopment with respect to land contamination, subject to the following:

Inspection of the soil surface for the presence of ash, asbestos containing materials, building rubble or staining after demolition of the existing residential building and removal of dense vegetation.

Further sampling may be required if potential contamination sources be (sp.) identified during inspection.

Localised targeted assessment should be carried out in the following parts of the site:

• Soils of the embankment and sediments at the base of the existing farm dams and backfill of the former farm dam should be sampled and tested for chemicals of potential concern including PAH, TRH, heavy metals, OCP and asbestos.

• Water within the dam should also be tested to assess if it can be returned into the ground water system or discharged into the stormwater system.

• Near surface soils within the nursery area should be sampled and tested for heavy metals, OCP and herbacides.

Implementation of an unexpected finds protocol during earthworks and site excavation. If during the excavation work, material is encountered which appears to be potentially contaminated or suspicious, excavation works should cease until inspection is carried out by a competent environmental consultant. In the context of the above, potentially contaminated or suspicious material would include stained or odorous soil, fibrous material, asbestos sheeting, drums, metal or plastic containers or brightly coloured material.

(Exhibit O)

22. These conditions are incorporated in the draft consent conditions at Section 4.1 (Exhibit 6).

23. I am satisfied that the proceeding report and the proposed conditions implementing its recommendations meet the requirements of cl. 7 of SEPP 55.

24. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles (cl. 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl. 28(2)(c)).

25. Blacktown City Council Growth Centres Precincts Development Control Plan 2010 (DCP 2010) applies.

Should the height standard be varied?

26. As outlined at paragraph [17] cl. 4.6 provides the opportunity to provide exemptions to development standards by way of a written request.

27. The Dictionary to the Growth Centres SEPP provides the following relevant definitions:

building height (or height of building) means:

(a)  in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or

(b)  in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like.

ground level (existing) means the existing level of a site at any point.

What is the extent of the variation sought?

28. The applicant seeks a variation to the height standard in relation to the residential flat building and a portion of the town houses proposed. The variation request details the extent as follows:

Townhouses

The eastern end of the townhouses are compliant with the height control. However, in order to achieve an acceptable stormwater solution, some roads within the development have been required to be lifted substantially above the existing ground level which has resulted in some variation to the height place when measured from existing ground level for townhouse[s] at the western end of the development to a maximum height of 9.305m or a variation of 805mm or 9.4% above the 8.5 metre height limit.

It is noted that the affected townhouses do not exceed 8.5 metres as measured from the new ground level.

Residential Flat Building

The area of the site where there is a height variation is currently occupied by a dam which results in a significant variation in topography and disparity in site levels in the north eastern corner of the site.

Therefore, the proposed variations in height have been represented both in relation to this existing level as well as an interpolated height plane.

(Exhibit E)

29. The extent of the variation is agreed between the parties.

Consistency with the zone objectives:

30. The objectives of the zone are provided at paragraph [16].

31. The variation request makes the following arguments in support of the proposals consistency with the zone objectives:

The proposed development provides for residential accommodation in the form of a residential flat building and multi dwelling housing which provide for the housing needs of the community within a medium density environment. A variety of housing types are provided within the development including adaptable housing that will meet the changing needs of the resident population. The overall development includes a comprehensive landscape scheme that will enhance the amenity and liveability for residents and visitors and support the wellbeing of the community. For the reasons given the proposal is considered to be consistent with the objectives of the R3 Medium Density Residential zone.

(Exhibit E)

32. Following a review of the variation request in Exhibit E, the agreed position of the parties and a consideration of the submissions put by the representatives I am satisfied that the development is consistent with the objective of providing for the housing needs of the community within a medium density residential environment. I am similarly satisfied that the development provides a variety of medium density housing types. As a result pursuant to cl. 4.6(4)(a)(ii), I find that the proposed development is consistent with the zone objectives.

Does the development meet the objectives of the height standard?

33. In relation to the height objectives the written request makes the following comments in relation to the consistency of the proposal with the objectives of the height standard:

(a) to establish the maximum height of buildings on land within the Area 20 Precinct,

The proposed development is considered to be consistent with the intention of the height control to facilitate a 3 storey residential development form and the components which breach the height control are generally as a result of the uneven land form due to the previous manipulation of the site to create a dam and also the need to increase the ground level in some areas.

(b) to minimise the visual impact and protect the amenity of adjoining development and land in terms of solar access to buildings and open space,

The majority of the development is compliant with the maximum height control. The proposed residential flat building is 3 storeys in height as envisaged by the height control and the areas of variation are only a result of the uneven land form due to the previous manipulation of the site to create a dam which creates encroachments particularly within the centre of the building which is over the area of the dam. Furthermore, the western townhouses only exceed the height limit due to the need to raise some of the roads. As the height variation is predominately the result of the unusual landform or the raising of site levels, the variation does not result in any perceptible difference in scale compared to a strictly complying scheme when considered against an interpolated ground floor plane, and the lift overrun is set back from the edges of the building such that it will not result in any visual impact. The nature of the height variation is such that it results in negligible difference in terms of shadow impact when compared to strict compliance with the height control.

(c) to facilitate higher density development in and around commercial centres and major transport routes,

The proposed development is significantly below the FSR density control notwithstanding the minor variation to height.

34. The preceding arguments in support of the variation are not contended by the Council.

35. I find that objective (a) is satisfied on the basis that the applicant argues at paragraph [33]. I am satisfied that the intention of the control to achieve a three storey form of development will be realised in the final form of development. I note that the most material variation to height occurs at the location of the existing dam and I am satisfied that the height exceedance will not result in a development that is inconsistent with the maximum height plane intended for Area 20. I am equally satisfied that the development is consistent with objective (b). I accept the evidence of Mr Sutherland that there is negligible difference in solar impact between a development compliant in height and the proposed development. In relation to objective (d) I am satisfied that the proposal will facilitate high density development on a major transport node (Windsor Road) and this is consistent with the objective.

34. For these reasons, and pursuant to cl. 4.6(4)(a)(ii), I find the proposed development is consistent with objectives of the height standard.

Is it established that compliance is unreasonable or unnecessary and there sufficient environmental planning grounds to justify the variation?

37. Wehbev Pittwater Council[2007] NSWLEC 827 at [44]-[48] detailed a number of approaches which may establish that compliance with a development standard is unreasonable or unnecessary for the purposes of cl. 4.6(3)(a). Namely that: the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1); the underlying objective or purpose of the standard is not relevant to the development (Wehbe test 2); that the objective would be thwarted if compliance was required (Wehbe test 3); that the development has virtually been abandoned or destroyed by Councils own actions in departing from the standard (Wehbe test 4); or that the zoning of the land is unreasonable or inappropriate.

38. In this appeal the applicant primarily relies on Wehbe test 1 and seeks to establish that the objectives of the standard are achieved notwithstanding the variation.

39. The written request argues that strict compliance with the building height control is unreasonable and unnecessary in the circumstances for the following reasons:

• the height variation is in part due to the manipulated land form on the existing site and strict compliance with the height control, when measured from this variable ground line, would result in an unintended planning outcome.

• When considered against a more regularised ground line the proposed variations in height for the flat building are minor and balanced by areas which are under the height plane.

• The height variation for the western townhouses is only the result of the need to fill the site to increase the level of some roads to achieve a satisfactory stormwater solution.

• The townhouses will appear to be compliant in height against the new ground level and ‘therefore the height variation will not result in any differing outcome when compared to that which is envisaged by the height control’ (Exhibit E).

• The proposed development is below the density control for the subject site.

• The distribution of height across the site provides for a gradual increase in scale towards Windsor Road ‘and achieves an appropriate visual transition to the higher density mixed use and commercial centre to the east of the site on the opposite side of Windsor Road’ (Exhibit E).

• A reduction in the height of the development to achieve a compliant building height would likely necessitate additional excavation and a lowering of the dwellings. The request argues that this would have a detrimental impact on relationship between the finished level of the public domain and the ground floor level of the apartments, which would be at least partly subterranean.

• The solar analysis prepared illustrates that the proposed development will result in buildings and open space receiving solar access in accordance with the ADG,

• ‘There are no unreasonable impacts in terms of overshadowing, views, visual and acoustic privacy to adjacent sites resulting from the proposed variation to the height control which would warrant strict compliance’ (Exhibit E).

• The proposed variations to height will have no impact upon views from Rouse Hill House and Farm as such views are obstructed by protected trees in Rouse Hill Regional Park.

40. The written request argues that there are sufficient environmental planning grounds to justify the variation:

There is a significant variation to the existing landform on the site in the location of the proposed residential flat building due to the existence of a dam on the site which has been created by a significant manipulation of the original landform, such that there is a circa 3 metre high batter of soil to create the dam wall and conversely a circa 3 metre drop in level inside the dam The height variation is primarily due to this manipulated land form and strict compliance with a height control measured from this landform would result in an unintended planning outcome.

In addition, it is noted that a 3 storey townhouse is capable of having floor to ceiling heights of less than 2 7 metres which means that it is easier to achieve compliance with the height control when compared with a 3 storey residential flat building which must have 2 7 metres floor to ceiling height for every level as well as the need for a lift overrun Accordingly, strict compliance with the height control would preclude the delivery of a 3 storey residential flat building and only allow townhouses to be erected on the site This is considered a sub-optimal outcome compared to the proposed development which seeks to deliver a diversity of housing product across the site comprising both townhouse and apartment dwelling typologies.

When considered against an interpolated height plane, the proposed variation to height for the flat building is minor and the result of the cross fall across the site as well as the need to achieve minimum floor to ceiling heights for the apartments and an appropriate ground floor plane without subterranean apartments.

The height variation for the western townhouses is only the result of the need to fill the site to increase the level of some of the roads to achieve a satisfactory stormwater solution These townhouses appear as compliant when considered against the new ground level and therefore the height variation will not result in any differing outcome when compared to that which is envisaged by the height control.

The variation does not result in adverse overshadowing impacts and the solar analysis prepared by Rothelowman Architects demonstrates that the proposed development will result in buildings and open space areas receiving solar access in accordance with minimum requirements of the Apartment Design Guide and Blacktown City Council Growth Centres Precinct Development Control Plan 2010.

(Exhibit E)

41. The preceding arguments in support of the variation are not contended by the Council.

42. Whilst the Court is not bound to accept the agreed position of the parties I find that I can be satisfied that the applicant’s written request adequately demonstrates the matters in cl. 4.6(3)(a)(i). I accept the reasoning of Mr Sutherland that the objectives of the standard are achieved notwithstanding the noncompliance and I accept his reasoning at paragraph [39]. I am satisfied on the basis of the evidence that it is unnecessary for the development to be compliant with the height standard for these objectives to be achieved.

43. Having regard to the evidence and in particular to the written objection prepared, I am satisfied that there are sufficient environmental planning grounds to justify the variation. In particular I am satisfied that:

1. there are site specific circumstances that warrant the variation (manipulated ground plane),

2. there is environmental benefits to housing diversity (provision of units), and

3. the elevation of the finished road/ground level results in the diversion of water away from the mapped environmental and native vegetation lands adjacent the site.

44. Finally, as required by cl. 4.6(5) I am satisfied that the variation sought does not raise any matters of significance for State or regional planning that would warrant refusal of the variation request.

45. In short, I am satisfied that there is no public benefit in maintaining the development standard in this particular case.  The variation request is in my opinion well‑founded for the reasons stated.

Stormwater Design:

46. There is a proposed regional stormwater facility (S.10.2 & S.10.1) located to the south of the subject property. This basin has not as yet been designed by Council or constructed (Exhibit B). The final design solution for the stormwater for the southern part of the subject site is to drain to this proposed regional basin via an extension of the road drainage in road MC02 (Exhibit D).

47. The adjoining property to the north (890 Windsor Road) has an approval for redevelopment. Part of this redevelopment includes a temporary stormwater basin which is it to be located at the rear of the allotment. This temporary basin was approved by the consent DA-16-02927 (Exhibit 1). The final design solution for the remaining stormwater generated by the development on the subject site is to drain to the northern proposed stormwater facility (S.11.2 & S.11.1).

48. The locations of these regional stormwater facilities are shown in Section 94 Contributions Plan No.22W – Rouse Hill (Works), at Appendix A8: Rouse Hill Water Cycle Management Facilities Seconds Ponds Creek Stormwater Quality.

49. As part of the stormwater engineers joint report they provide the following commentary confirming that the drainage design for the adjoining property has demonstrated capacity for the conveyance of stormwater when the public drainage system is constructed:

Ian Harris:

The approved stormwater management report for 890 Windsor Road indicates that the design has made allowance for an upstream catchment of 2.3ha to pass through the 890 Windsor Road public drainage network. The proposed catchment discharging from the subject site to 890 Windsor Road is 2.2ha. This confirms that the drainage system in 890 Windsor Road has the capacity to convey the discharge from the subject site.

…

Tony Merrilees:

…

The Respondent accepts that the capacity of the downstream drainage design in 890 Windsor Road may be capable of accepting the reduced fully developed catchment currently draining to B.2 while allowing the flow from Line E to discharge independently.

…   

(Exhibit B)

50. There is agreement between the parties and the experts that the permanent stormwater design for the subject site is acceptable. Further it is agreed that the ultimate design for the subject site, to connect to the permanent detention basis once constructed by Council, is appropriate.

Temporary Stormwater Conveyance

51. The applicant’s drainage design originally indicated that the northern catchment would be drained to a temporary offsite discharge point located within native trees and vegetation protected by the Growth Centres SEPP Native Vegetation Protection Map (Exhibit 5).

52. In the joint ecology report the parties’ experts concluded that the stormwater system should be redesigned to alleviate any impact to this mapped vegetation.

53. The need for a redesign was accepted by the applicant and an amended stormwater design for the temporary stormwater conveyance was prepared (Exhibit D).

54. To achieve the required redirection of stormwater the applicant has:

1. increased the finished subdivision and road levels in the north-west corner of the site by 1.5m; and

2. relocated the temporary tail out pipe from the mapped vegetation to a “tailout” within the land to the north at 890 Windsor Road.

55. The remaining issues between the stormwater experts are:

1. Whether the discharge of the temporary flows should be split into two disparate discharge locations in a manner similar to the final solution;

2. whether there is an impact arising from the redundant pipework once the permanent drainage infrastructure is in place.

56. The Applicant’s final stormwater design provides for the temporary discharge of all stormwater to 890 Windsor Road. This is achieved by the redirection of water collected in drainage within road MC02, across the shared driveway (in front of townhouses TR01 –TR07) to connect with Road MC01 (Exhibit C). The applicant proposes this stormwater to discharge to two temporary “tail-out” structures within 890 Windsor Road (Exhibit A2).

57. Once the final stormwater infrastructure is in place the applicant notes that the above internal temporary “pipe (is to be) disconnected and cement filled” (Exhibit A2).

58. It is Mr Merrilees’ evidence that the stormwater arising from the southern section of the proposed subdivision should be discharged within 28 Rouse Road (Lot 184 DP208203) rather than being diverted across the subject site to be discharged to the 890 Windsor Road. His reasoning is as follows:

1. such an approach more closely mimics the natural flow pattern from the current (predevelopment) site;

2. the inclusion of two temporary discharge points within 890 Windsor Road will provide a further constraint to Council in the future design of the proposed regional stormwater facility;

3. the increased water discharge within 890 Windsor Road has the potential to create scour impacts;

4. the redundant pipework, left within the public road way of the subdivision, will create confusion and cost imposts to Council when undertaking future civil works.

59. In his oral evidence Mr Merrilees accepted that the Applicant’s temporary stormwater design is technically feasible.

60. In the alternative it is Mr Harris’ evidence that the inclusion of a second temporary discharge point within 28 Rouse Road has the potential to interfere with existing and future structures on the land. Therefore it was his approach to limit the impact of temporary facilities to one property which was identified as the location of the regional facility.

61. Mr Harris argues this opportunity to consolidate the temporary facilities was only realised in the raising of the levels, which made the conveyance of stormwater for the whole of the subject site to 890 Windsor Road possible.

62. In response to the concerns raised by Mr Merrilees, Mr Harris argues:

1. Precinct 20, within the Growth Centres SEPP, is earmarked for redevelopment as residential. As part of this redevelopment significant earthworks and drainage infrastructure has been designed to support new housing. Mr Harris notes that Mr Merilees accepts that, at a precinct level, the natural flows of water will not be achieved following redevelopment;

2. the future basin within 890 Windsor Road has not as yet been located within the site or designed by Council. Whilst the pipes will be a constraint, it is Mr Harris’ view that they are able to be designed around and do not represent a large area. Further Mr Harris argues that the position of the discharge has been designed to be located at the base of the road batter of the future regional road to minimise any conflict.

3. In relation to potential for scour to occur Mr Harris argues that the design has considered this and includes measures to address this potential. Further he argues that the discharge is a temporary, not permanent solution.

4. The proposal to backfill the redundant pipework with concrete will address any issues with the structural integrity of the pipeline into the future. Mr Harris argues that it would be clear to contractors working on site that the pipeline is disconnected and not in use.

63. Mr Galasso submits that the interim drainage design proposed by the applicant has the benefit of reducing the impact on adjoining properties. He argues that this impact arises both from the conveyance of stormwater including the civil works associated with the infrastructure and the legal creation of an easement. Further he argues that the need to negotiate and procure an easement from two property owners will add complexity to the delivery of development of the subject site.

64. It is Mr Galasso’s submission that in contrast to the easement over 890 Windsor Road; the creation of an easement over 28 Rouse Road is significant as this land is zoned for future residential development.

65. In contrast Mr White argues that the evidence of Mr Merrilees’ identifies that the future burden of the temporary solution is unreasonable. It is his submission that this can be overcome by the maintenance of two temporary discharge points (one in 890 Windsor Road and one in 28 Rouse Road) which would not require the temporary line traversing to the road network within the development.

66. Mr White submits that the Court should make directions for the drainage design to be amended to facilitate temporary discharge of stormwater from the subject site to both 28 Rouse Road and 890 Windsor Road.

Findings

67. I note the agreement between the parties and the experts that the permanent stormwater design for the subject site is acceptable. On the basis of their agreement and the evidence demonstrating the future regional facilities I am satisfied that the final stormwater solution for the subject site is satisfactory.

68. In relation to the temporary stormwater conveyance I accept the evidence of Mr Harris and I am satisfied that his reasoning at paragraph [62] addresses the final concerns raised by Mr Merrilees. I concur with his reasoning that the inclusion of a second temporary discharge point within 28 Rouse Road has the potential to interfere with existing and future structures on the land.

69. At cl. 2.3(2) of the Area 20 Precinct Plan under the Growth Centres SEPP the consent authority is required to have regard to the zone objectives in determining a development application. Those objectives are provided at paragraph [16]. In considering these objectives I am satisfied that it is appropriate to give weight to the submissions of Mr Galasso and I accept that the requirement for procurement of an easement from a second party will add complexity, and potentially delay the delivery of the proposed development. Secondly I accept that the provision of an easement within 28 Rouse Road will provide a temporary constraint which will add complexity to the desired provision of residential housing for the community on that site.

70. However I accept that the length of time the temporary facilities will be in pace is uncertain, therefore I am satisfied on the evidence that it is appropriate that a condition be placed on the consent that requires the installation and renewal of scour protection measures at the discharge points within 890 Windsor Road. I am satisfied this condition is warranted given the sensitive adjoining vegetation and the impermanent nature of the protective measures.

Certainty of Conditions

71. The proposed conditions of consent include the following deferred commencement condition in relation to the need for an easement to facilitate the right to drain water over the adjoining land:

Under Section 80(3) of the Environmental Planning and Assessment Act 1979, the Applicant must satisfy the following deferred commencement conditions of consent prior to the development consent becoming operative:

1.1 This Development Consent is not to operate until such time as the following matters are satisfied:

….

c) Provide a minimum 2.5 m wide drainage easement with a Restriction to User over the centreline of the proposed stormwater pipe line B over 2/1033564 and any tail out works in favour of 3/135890 as per the Engineering Guide for Development. The Restriction to User and drainage easement must be registered with NSW Land Registry Services.

(Exhibit 6)

72. The Act at s. 4.16(3) states:

“Deferred commencement” consent

A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority, in accordance with the regulations, as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

73. The applicant submits that certainty for the achievement of the easement arises from s. 40(4) of the Land and Environment Court Act 1979 (the Court Act) and Section 88K of the ConveyancingAct 1919 (NSW).

74. Conditions need to clear and certain, as outlined in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] 143 LGERA 277 which states at 24:

(that there is no lawful development consent where the consent falls into one of two categories) 'the first category is where a condition has the effect of "significantly altering the development in respect of which the application is made": at 737B; 351 (Preistly J A). The second category is where Council has purportedly granted consent, but in terms which lack finality or certainty, so that there is, in substance, no effective consent to the application.

75. Having reviewed the engineering plans before the Court I am satisfied that the proposed deferred commencement conditions are sufficiently clear and certain and do not defer matters post determination that should be finalised in the determination (Mison v Randwick Municipal Council (1992) 23 NSWLR 734).

Development Contributions:

76. The power of the Court under s. 8.7 of the Act is to remake the determination of the application under s. 4.16 of the Act. A development application can be determined by way of consent unconditionally or with conditions (s. 4.16(1) of the Act).

77. Pursuant to s. 4.17(a) conditions may be imposed if they relate to a matter of consideration under s. 4.15(1) that is relevant to the development the subject of the consent, or relevantly are authorised to be imposed by a further section of the Act, including s. 7.11 which relates to development contributions (s. 4.17(h)).

78. Part 7 of the Act at Division 7.1 addresses Development Contributions. Section 7.1 contains the following relevant definition:

"contributions plan" means a contributions plan approved under section 7.18.

79. If a consent authority is satisfied that the development for which consent is sought will, or is likely to, require or increase demand for amenities and public services within the area it can impose a condition requiring dedication of land or payment of a monetary contribution (s. 7.11(1) of the Act). To impose such a condition the following must be met (s. 7.11(2) of the Act):

(a) a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and

(b) development for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services, the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations).

80. The ability to impose a condition requiring the payment of contributions under s.7.11 is constrained by the terms of s. 7.13(1) of the Act which states:

(1) A consent authority may impose a condition under section 7.11 or 7.12 only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).

81. The Minister can make a relevant direction under s. 7.17(1)(b)(ii) of the Act as follows. [Prior to the renumbering of the Act this section was s94E].

(1) The Minister may, generally or in any particular case or class of cases, direct a consent authority as to:

(a) the public amenities and public services in relation to which a condition under section 7.11 may or may not be imposed, and

(b) in the case of a condition under section 7.11 requiring the payment of a monetary contribution:

(i) the means by which or the factors in relation to which the amount of the contribution may or may not be calculated or determined, and

(ii) the maximum amount of any such contribution, and

(c) the things that may or may not be accepted as a material public benefit for the purposes of a condition under section 7.11, and

(d) the type or area of development in respect of which a condition under section 7.12 may be imposed and the maximum percentage of the levy, and

(e) the use of monetary contributions or levies for purposes other than those for which they were paid, and

(f) the preparation of joint contributions plans by two or more councils.

(2) A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms.

(3) A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan.

82. Section 7.18 of the Act states:

(1) A council, or two or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions under this Division (other than Subdivision 4).

(2) If a contributions plan authorises the imposition of conditions under section 7.12, the plan is to specify the type or area of development in respect of which a condition under section 7.12 may be imposed and is to preclude the imposition of a condition under section 7.11 in respect of that type or area of development.

(2A) A contributions plan does not authorise the imposition of a condition under section 7.11 on a grant of development consent if the public amenities or public services to which that condition relates are, in whole or in part, infrastructure provided, or to be provided, in relation to the development out of contributions collected under Subdivision 4.

(3) The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.

(4) A council is, as soon as practicable after approving a contributions plan, to provide the Minister with a copy of the plan.

83. Clause 26 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) states:

26 In what form must a contributions plan be prepared?

(1) A contributions plan must be prepared having regard to any relevant practice notes adopted for the time being by the Secretary, copies of which are available for inspection and purchase from the offices of the Department.

(2) One or more contributions plans may be made for all or any part of the council’s area and in relation to one or more public amenities or public services.

(2A) Despite subclause (2), a contributions plan may be made for land outside the council’s area for the purposes of a condition referred to in section 7.15 of the Act.

(3) The council must not approve a contributions plan that is inconsistent with any direction given to it under section 7.17 of the Act.

(4) A draft contributions plan must be publicly exhibited for a period of at least 28 days.

84. The applicant argues that the contributions plans on which the Council seeks to rely, Section 94 Contributions Plans No. 22 L – Rouse Hill Land and 22 W – Rouse Hill Works, (Exhibit 2) have not been approved under s.7.18 of the Act.

Background

85. On the 21 August 2012 the then Minister for Planning gave a direction under the then s. 94E of the Act. At (6) of the direction it states:

6. Maximum amount of monetary contributions under s94

(1) This clause applies to a development consent to the extent that it authorises one or more dwellings or the subdivision of land into residential lots.

…

(3) A council (or planning panel) must not grant development consent for development of any land identified in Schedule 2 subject to a condition under s94 (1) or (3) of the Environmental Planning and Assessment Act 1979 requiring the payment of a monetary contribution that:

(a) In the case of a development consent that authorises one or more dwellings, exceeds $30,000 for each dwelling authorised by the consent, or

(b) in the case of development consent that authorises subdivision into residential lots, exceeds $30,000 for each residential lot authorised to be created by the development consent.

(4) A council (or planning panel) may, in a particular case, require, as a condition on the grant of development consent, the payment of a monetary contribution that exceeds the maximum amount of the contribution calculated in accordance with subclause (2) or (3), but only with both the written agreement of the applicant for the consent and the written approval of the Minister, given before the condition is imposed.

86. It is agreed between the parties that the subject site falls within land identified in Schedule 2 of the direction and that the provisions of 6(4) of the Direction do not apply.

87. The above direction was amended on the 17 July 2017 (the Amended Direction). Relevantly the Amended Direction inserted cl. 6(5) which states:

(5) this clause does not apply to the imposition (after the 2017 directive takes affect) of a condition in accordance with an IPART reviewed contribution plan.

88. This new clause has the effect of lifting the restriction on the maximum amount if the condition is imposed in accordance with a contribution plan “reviewed” by IPART.

89. The review process by IPART is detailed in cl. 5(3) as follows:

(3) A reference in this Direction to an IPART reviewed contributions plan is a reference to a contributions plan that satisfies all of the following:

(a) IPART has reviewed the contributions plan (or a draft of the plan) in accordance with assessment criteria set out in any applicable practice note, including whether the facilities to which the contributions plan relates are on any essential works list set out in the practice note,

(b) IPART has published a report of its review on its website and forwarded it to the Minister of Planning,

(c) following the forwarding of the report to the Minister, the Minister (or nominee of the Minister) has advised the relevant council as to the amendments required to the contributions plan,

(d) the Minister’s (or the nominee’s) advice to the council has been published on the website of the Department of Planning and Environment,

(e) the relevant council has approved the plan, and has made any amendments to the plan, in accordance with the written advice of the Minister or the Minister’s nominee.

An applicable practice note, referred to in paragraph (a), is the Revised Local Development Contributions Practice Note: For the assessment of Local Development Contributions Plans by IPART, issued by the Department of Planning and Environment, February 2014, as amended or replaced from time to time.

90. The Amended Direction also introduced stepped contribution amounts through clause 6A, 6B and 6C. Relevant to the current proceedings is 6A which includes a table at (2) that nominates the maximum monetary contribution, which varies dependant on when the development consent is granted, as follows:

91. Relevant to clause 6A(1) of the Amended Direction the ‘specified contribution plan’ is nominated as: Section 94 Contributions Plan 22 – Area 20 Precinct.

92. Concurrent with the Amended Direction the Department of Planning and Environment released planning circular PS 17-002 (the Circular). This circular detailed the relationship between the ‘Local infrastructure growth scheme’ and the changes to the cap amounts. Relevantly the circular notes:

The application of the cap is determined by the date of development consent being granted by a council or a planning panel.

Precincts in the LIGS transition areas will only be able to charge the escalated cap once the relevant contributions plan has been assessed by IPART and the Minister has given advice on the outcome. For precincts where LIGS funding is currently in place, this process has already been completed.

93. The attachment to the Circular identifies that the subject site is within a precinct where LIGS funding is in place, meaning that the escalated cap of $35,000 is “available”.

94. The Council has reviewed Contributions Plan 22 – Area 20. The intent of the review was to include the Riverstone East Precinct (Exhibit Y). As part of the review the plan was split into “works” and “land”. These plans were publically exhibited and considered by Council on 21 February 2018. The Council resolved as follows:

1. Adopt revised Section 94 Contributions Plans No. 22 L – Rouse Hill Land and 22 W – Rouse Hill Works.

2. Write to submitters advising of Council’s decision.

3. Submit both plans to IPART and the Minister for Planning and Environment for assessment and approval.

(Exhibit Y)

95. Clause 32(1) of the Regulation provides that a Council may amend a contribution plan by a subsequent plan. Clause 32(2) of the Regulation provides that a Council may repeal a contributions plan by a subsequent plan or by notice in a newspaper.

96. There is no evidence before the Court of the repeal of the previous plan or the intention to do so in accordance with cl. 32(2) of the Regulation.

97. The amended contribution plans were notified in accordance with cl. 31(4) of the Regulation in the Rouse Hill Times on March 7 2018 with the following text:

No. 15 – Metella Road Flood Plain

No. 22L – Rouse Hill (land); and

No. 22W – Rouse Hill (works)

At its Ordinary Meeting on 28 February 2018 Council adopted s94 contribution plans No. 15 – Metella Road Flood Plain, No. 22L – Rouse Hill (land); and No. 22W – Rouse Hill (works). The adopted plans come into effect on 7 March 2018.

…

(Exhibit 3)

Submissions

98. Mr Galasso argues that the primary source of power for the levying of contributions arises from s. 7.11(1) of the Act and that a fair reading of the legislative scheme requires the following conditions to be met prior to a condition being applied to the subject development:

1. the tests at s. 7.11(2) of the Act need to be satisfied

2. contributions need to be of a kind allowed by a contributions plan that has been prepared subjection to any direction of the Minister (s7.13(1))

3. that the relevant direction by the Minister is the Amended Direction of 17 July 2017.

4. that s. 7.18(1) requires the contributions plan to be prepared in accordance with the Regulations (s. 7.18(3)), which then refers to the Practice Note – which is the Practice Note: ‘Local Infrastructure Contributions, January 2018 (Exhibit Y) (2018 Practice Note).

99. It is Mr Galasso’s submission that the contributions proposed by the Council in the draft conditions of consent arise from a contribution plan that has not been prepared, adopted or approved in accordance with the planning regime and therefore should not be applied. He argues that the condition seeks to impose a rate of $35,000/lot (or dwelling) in a circumstance where the relevant contribution plan has not been assessed by IPART or approved by the Minister.

100. Mr Galasso argues that to be the “approved” contributions plans (s7.18 of the Act), the reviewed contributions plans (No. 22 L – Rouse Hill Land and 22 W – Rouse Hill Works) have to be prepared in accordance with the Amended Direction and the Regulations.

101. It is Mr Galasso’s submission that this approval process was acknowledged by the Council in the wording of its resolution (refer [Exhibit Y]) which required the submission of “both plans to IPART and the Minister for Planning for assessment and approval” (Exhibit Y). This has not been completed. Mr Galasso argues this failure results in the contributions in the reviewed plans being unable to be imposed.

102. Mr Galasso submits that only the pre-existing contributions plan (prior to the review) has the power to levy contributions. He notes that this pre-existing plan provides a rate per lot that is lower than the maximum amount of $35,000 provided for in the Amended Direction of 17 July 2017.

103. In the alternative Mr White argues that draft condition itself (Exhibit 6) complies with the Amended Direction by reducing the amount able to be levied by the Council under the contribution plan to $35,000 per lot.

104. Relying on the wording of s. 7.18(1) that a Council may “approve a contributions plan” Mr White argues that once adopted by Council a contribution plan is ‘in force’ and therefore the contributions plans (No. 22 L – Rouse Hill Land and 22 W – Rouse Hill Works) have applied since the 7 March 2018. It is Mr White’s submission that this was the effect of the Council’s resolution.

105. Mr White draws support for this position from cl. 31 of the Regulations which states:

31 Approval of contributions plan by council (cf clause 30 of EP&A Regulation 1994)

(1) After considering any submissions about the draft contributions plan that have been duly made, the council:

(a) may approve the plan in the form in which it was publicly exhibited, or

(b) may approve the plan with such alterations as the council thinks fit, or

(c) may decide not to proceed with the plan.

(2) The council must give public notice of its decision in a local newspaper within 28 days after the decision is made.

(3) Notice of a decision not to proceed with a contributions plan must include the council’s reasons for the decision.

(4) A contributions plan comes into effect on the date that public notice of its approval is given in a local newspaper, or on a later date specified in the notice

106. Further Mr White argues that the framing of the condition sought to be imposed is consistent with s. 7.17(1)(ii), (2) and (3) as it seeks only the maximum amount.

107. On this basis Mr White argues that the approved contribution plan is that “approved” by Council and that therefore applying the Amended Direction (refer paragraph [90]) the consent should include a contribution of $35,000 per lot as detailed in Councils draft consent conditions (Exhibit 6).

108. Mr White submits that in determining the application the Court must consider the effect of s. 7.20 of the Act as follows:

7.20 Contributions Plans--Judicial Notice, Validity etc

(cf previous s 94EB)

(1) Judicial notice is to be taken of a contributions plan and of the date on which the plan came into effect.

(2) It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed.

(3) The validity of any procedure required to be followed in making or approving a contributions plan is not to be questioned in any legal proceedings except those commenced in the Court by any person within 3 months after the date on which the plan came into effect.

(4) The amendment or repeal, whether in whole or in part, of a contributions plan does not affect the previous operation of the plan or anything duly done under the plan.

109. Mr White argues in the proceedings under Class 1 of the Court’s jurisdiction there is, pursuant to s. 7.20 of the Act, a presumption of regularity in relation to the contributions plan. It is his submission that a determination of the validity of the plan is a matter for judicial review (Class 4 of the Court’s jurisdiction) which is outside the scope of the current proceedings.

Findings

Precondition: demand:

110. Pursuant to s. 7.11(1) of the Act I satisfied that the proposed development will, or is likely to, require or increase demand for amenities and public services within the area.

Is the proposed condition in accordance with a “contributions plan” (s. 7.13(1) of the Act)?

111. In Hammersmith Management Pty Limited ACN 084 393 644 v Lake Macquarie City Council (124 LGERA 63) Lloyd J clarified the separation of issues between Class 1 and Class 4 of the Court’s jurisdiction as follows:

1 This is a case about monetary contributions sought by the respondent, Lake Macquarie City Council (“the council”) under s 94 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). There are two applications before the Court: (1) a challenge to the validity of a contributions plan adopted by the council under s 94B of the EP&A Act (such challenge falling within Class 4 of the Court’s jurisdiction); and (2) an appeal against a condition of a development consent granted by the council which requires the payment of a monetary contribution in accordance with the contributions plan (such appeal being within class 1 of the Court’s jurisdiction).

…

25 The conclusion confirming the validity of the contributions plan does not necessarily also determine the appeal against the imposition of the particular condition of consent in this case. Whilst the contributions plan may validly include contributions for the public amenity of a conservation corridor, the questions remain as to whether the particular development “will or is likely to require” the provision of such a corridor, or “increase the demand” for such a corridor, as required by s 94(1) of the EP&A Act.

112. The current proceedings are an appeal under s. 8.7 and the applicant seeks to overturn the Council’s refusal of development consent, of which one issue in contention is the acceptability of conditions of such a determination.

113. By reference to the originating process, the applicant does not seek a declaration that the contributions plans are invalid (which would fall within judicial review). Rather the Class 1 Application seeks for the Court to remake the Council’s determination of the application under s. 4.16 of the Act.

114. Applying the proceeding I am satisfied that in determining an application it is relevant to consider the question of the relevant contributions plan from which a condition (under s. 4.17 of the Act) is able to be levied.

115. The definition of a contributions plan is made clear in the Act. It states a "contributions plan" means a contributions plan approved under s. 7.18.

116. The power to “approve” a contribution plan is limited by the conditions detailed in the Act and the Regulations. At s. 7.18(3) it states: The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.

117. I accept the submissions of Mr Galasso (at paragraphs [98] to [100]) that Contributions Plans No. 22 L – Rouse Hill Land and 22 W – Rouse Hill Works are not "contributions plans" as defined by the Act. My reasoning is as follows:

1. the definition of contributions plan is one approved under s. 7.18.

2. s. 7.18(1) provides that such a plan is to be made “subject to and in accordance with the Regulations”

3. cl. 26 of the Regulations requires a contributions plan to be made in accordance with the relevant Practice Note and that such a plan cannot be inconsistent with a direction under s. 7.17 of the Act.

4. cl 6A of the 2017 Amended Direction applies as the Contributions Plan 22- Area 20 Precinct is a specified contributions plan, therefore a maximum of $35,000 applies for each dwelling or each residential lot.

5. The relevant Practice Note is the 2018 Practice Note.

6. The Contributions Plans No. 22 L – Rouse Hill Land and 22 W do not satisfy the requirements of the Regulations and the Amended Direction:

1. the Amended Direction requires Councils to submit any contributions plan that proposes to charge a contribution rate above the cap to IPART for assessment, reporting and referral to the Minister as detailed in cl. 5(3) of the Amended Direction.

2. the plans seek to impose a rate higher than the cap, as detailed in Exhibit 2. The process detailed at Figure 1 of the 2018 Practice Note details steps of both IPART assessment and Ministerial advice prior to the adoption of final contribution plans (Exhibit Y). This process has not been concluded.

3. The Regulation addresses the review of Contributions Plans at cl. 32, as follows:

(3)  A council may make the following kinds of amendments to a contributions plan without the need to prepare a new contributions plan:

(a)  minor typographical corrections,

(b)  changes to the rates of section 7.11 monetary contributions set out in the plan to reflect quarterly or annual variations to:

(i)  readily accessible index figures adopted by the plan (such as a Consumer Price Index), or

(ii)  index figures prepared by or on behalf of the council from time to time that are specifically adopted by the plan,

(c)  the omission of details concerning works that have been completed

4. I am satisfied the review undertaken by Council is outside this remit of this clause and is a ‘new contributions plan’ (cl. 3.2(3) of the Regulation. Therefore the plan is required to be made in accordance with the regime outlined in the Act. Importantly s. 7.18(1) of the Act provides that such a plan is to be made “subject to and in accordance with the Regulations” and the Amended Direction (s. 7117(2) of the Act).

5. Further whilst the 2018 Practice Note provides the following explanation of the process to undertake amendments to IPART assessed contributions plans, the review undertaken by Council is outside this exemption as the plans seek an increase in contributions:

If a Council has an existing contributions plan that has been assessed by IPART and the plan is being amended as under cl.32(3) of the EP&A Regulation, then the Direction does not require the Council to resubmit the plan to IPART to continue to charge contributions in accordance with the IPART assessed plan.

118. I have considered the submission of Mr White on the effect of s7.20 of the Act. I note at (1) the section requires ‘judicial notice to be taken of a contributions plan and the date on which the plan came into effect’. I am not persuaded that the effect of this clause is that within Class 1 proceedings, where a dispute as to which plan is the correct contributions plan arises, it is inappropriate for the Court to satisfy itself that the plan from which contributions are proposed to be levied is one that has been “approved under section 7.18” as required by the definition and is consistent with a direction of the Minister. I note that s. 7.17(3) of the Act states:

(3) A consent authority must not, in granting development consent in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division and despite the provisions of any contributions plan.

119. On the basis of the above I am satisfied that a condition requiring payment of a contribution arising from Contributions Plans No. 22 L – Rouse Hill Land and 22 W – Rouse Hill Works cannot be levied under s. 4.17 of the Act.

120. Contributions Plan 22- Area 20 Precinct (In force as at 24 February 2016) has not been repealed in accordance with cl. 32(2) of the Regulation and remains in place. No evidence or submissions have been made to the Court to indicate that this contributions plan is not consistent with the definition of an approved plan under s. 7.18 of the Act.

121. The 2017 Ministerial Direction applies to the imposition of contributions in accordance with Contributions Plan 22- Area 20 Precinct which provides a maximum rate of contributions of $35,000/ dwelling or residential lot (refer paragraph [90].

122. I note Mr Galasso’s submission that Contributions Plan 22- Area 20 Precinct provides a rate per lot that is lower than the maximum amount of $35,000 able to be levied in accordance the Amended Direction.

123. I am satisfied it is appropriate for the Court to make directions to allow the Respondent’s draft consent conditions be updated to reflect my findings in the preceding and for the Applicant to file an updated set of plans in accordance with my earlier findings in relation to the stormwater conveyance.

Directions:

124. The applicant is to file and serve a full set of updated plans, ensuring that the documentation is internally consistent, reflecting the findings of this judgment on stormwater design at paragraph [68 - 70].

125. The applicant is to file and serve the amended plans, with updated revision numbers, no later than 22 June 2018.

126. The Council is to amend the Conditions of Consent (Exhibit 6) to include the updated revision numbers in condition A1 and the findings of this judgement at [117].

127. The respondent is to file and serve settled conditions of consent by 6 July 2018.

128. The matter is listed for mention before me at 9am on 10 July 2018. If directions (paragraph [124]) and [125]) are complied with, I will make orders in chambers to dispose of the proceedings in accordance with this decision and vacate the mention.

Addendum made on 19 July 2018:

129. In accordance with the terms of directions in paragraph [124-128] of my judgment of 31 May 2018, the Applicant filed a set of amended plans on 19 June 2018.

130. The parties were unable to agree a settled set of consent conditions in accordance with the Directions at [127]. As a result the matter was listed for mention on 17 July 2018 and the parties were provided an opportunity to make submissions in relation to the contested conditions. A number of conditions were agreed between the parties at the mention. The following conditions remain in dispute:

Deferred commencement conditions

131. Condition 1.1(c): Temporary pipeline

1. The Council proposes the following wording for Condition 1.1(c). The words in contention are highlighted:

The creation of a minimum 2.5m wide temporary drainage easement with a Restriction to User over the centreline of the proposed stormwater pipe from T.1 to E.2B over 2/1033564 and any tail out and swale works in favour of 3/135890 as per the Engineering Guide for Development. The Restriction to User and drainage easement must be registered with NSW Land Registry Services. The easement to contain a sunset clause enabling the easement to be extinguished upon the registration of the subdivision over 184/208203 and removal of the pipeline from T.1 to E 2.B.

The Council does not agree to the pipeline remaining in the land zoned RE1: Public Recreation (Lot 2 DP 1033564) on the basis that it ‘will restrict the full and effective use of the future RE1 land and the pipe retained in the roadway even when filled with concrete creates a degree of uncertainty for the future installation of services and works within the roadway.’ (Council’s submissions 16 July 2018)

2. The Applicant seeks the deletion of the following words from Condition 1.1(c) – ‘and removal of the pipeline from T.1 to E.2B’ on the grounds that the matter was previously determined in the judgement (refer paragraph [57]).

The Applicant indicates they would accept a condition that mandates that no pipework is to be retained in the RE1 land as none is intended.

132. Having considered the submissions of the parties I find that it is appropriate to accept the Applicants position in relation to Condition 1.1(c) for the reasons they provide. I am satisfied it is appropriate to also include a new condition, Condition 18.10 as follows to provide certainty to the Council:

“At the completion of the development no pipework is to be retained in the portion of Lot 2 DP 1033564 zoned RE1:Public Recreation ”

133. Condition 1.2: timeframe for satisfaction of conditions. The draft condition states:

Evidence that will enable the Council to be satisfied of the matters above must be provided to Council within 36 months of this determination. If it is not provided by this time, the consent will lapse under section 4.53(6) of the Act.

1. The Council proposes a timeframe of 36 months for the satisfaction of the deferred commencement condition. Their reasoning as to the determination of this timeframe was not provided.

2. The applicant seeks to delete this condition and rely on the provisions of s 4.35(6) of the Act which state:

(6) Despite any other provision of this section, a development consent that is subject to a deferred commencement condition under section 4.16(3) lapses is the applicant fails to satisfy the consent authority as to the matter specified in the condition within 5 years from the grant of consent, or if a shorter period is specified by the consent authority, within the period so specified.

The Applicant’s reasoning is that the ‘the timeframe required in this condition for completion of the deferred commencement conditions does not allow for circumstances whereby obtaining the easements is a difficult, lengthy process which the Applicant cannot control for example Supreme Court proceedings’ (Applicant’s submissions 16 July 2018).

134. I am satisfied that there is no evidence in this matter to warrant the imposition of a reduced timeframe that is less than the timeframe provided by the Act at s4.35(6). I accept the Applicant’s submission that the condition should be amended to state a timeframe of five years from the grant of consent to enable the applicant to obtain the necessary easements to implement the development.

135. Condition 1.3: Timeframe for assessment by Council.

1. The Council proposes the following wording for this condition:

The consent will not become operative until the Council gives written notification to the applicant that the requirements of Condition 1.1 have been satisfied and thereafter, the consent will become operative from the date of that notification subject to the conditions set out below.

2. The applicant seeks to insert a two timeframe for the Council to assess and respond to the material filed with the Council under Condition 1.1.

136. This condition was discussed at the mention and the parties propose an agreed timeframe of four weeks. I accept the agreement of the parties. The amended condition will read:

The consent will not become operative until the Council gives written notification within four weeks of receiving all of the above information to the applicant that the requirements of Condition 1.1 have been satisfied and thereafter, the consent will become operative from the date of that notification subject to the conditions set out below.

Operational conditions

137. Condition 2.9.3.1: Subdivision

1. The Council proposes the following wording for this condition:

2.9.3.1 Principal Certifying Authority – Blacktown City Council shall be the Principal Certifying Authority for the proposed subdivision and shall issue the Subdivision Certificate upon compliance with all relevant conditions of this consent.

2. The applicant seeks to clarify the condition by the insertion of the following words:

2.9.3.1 Principal Certifying Authority – Blacktown City Council shall be the Principal Certifying Authority for the proposed subdivision and shall issue the Subdivision Certificate upon compliance with all relevant subdivision conditions of this consent.

The Applicant argues that the subdivision certificate should be issued once all the conditions listed under the section within the consent titled “Prior to Subdivision Certificate.

The Council disagrees with the insertion, arguing that “There are other conditions in the consent that need to be satisfied in addition to the subdivision conditions” (Council’s submissions 16 July 2018). At the mention Council was unable to particularise the relevant conditions to which they refer.

138. I accept the submission of the Applicant that the scope of the condition should be clarified. I find that within the draft consent it is the subdivision works that would trigger the requirement for the implementation of a number of conditions. I am satisfied that Blacktown City Council, as the PCA will be able to adequately ensure those conditions are identified and satisfied as part of their certification role. The amended condition will read:

2.9.3.1 Principal Certifying Authority – Blacktown City Council shall be the Principal Certifying Authority for the proposed subdivision and shall issue the Subdivision Certificate upon compliance with all conditions of this consent relevant to the subdivision works.

139. Condition 3.2.2(e): internal ground floor levels

1. The Council seeks to impose the following condition:

The internal ground levels and building floor levels are to be raised as required to match the finished road levels.

140. The matter of the appropriate finished floor level of the townhouses within the development was considered in the preceding judgement. This condition proposed by Council is inconsistent with the Clause 4.6 variation request, and the evidence of the expert planners. I am satisfied that the outcome proposed by the Applicant balances the height standard, the stormwater design for the site and the amenity of the future development. As such the condition is deleted.

141. The parties agree to the appropriate consent conditions to be applied in relation to development contributions to implement the findings in the judgement. That condition is incorporated in the conditions at 3.10 (Annexure A).

142. The Council proposes the following condition (6.1.8) seeking the removal of the temporary stormwater pipes.

Provide a Temporary Pipe Removal Estimate using Cordells or similar for the removal of temporary from A2 to T5 and T1 to E2B. Costs are to include excavations and disposal of waste to a registered tip, removal of any headwalls or scour protection, restoration of any disturbed vegetation, making good any pit connections, backfilling with clean compacted fill and restoration of all damaged footpaths, kerbs and pavements.

This is inconsistent with the findings of the Court which accepts the evidence of Mr Harris at paragraph 62(4). As such the condition is deleted.

143. Condition 6.1.9: Raising of Road levels in North West Corner

1. The Council proposes the following condition:

6.1.9 Provide a north west road adjustment estimate for the adjustment of the northwest road on MC.01 to match the Council road design level for Paris Avenue up to Jeffery Circuit including pavement course, hotmix and kerb and gutter.

The applicant argues that the effect of this condition is that the road levels would be required to be lowered, and therefore be inconsistent with the approved temporary drainage solution depicted in the amended civil plans filed on 19 June 2018.

Council states they require this condition to be retained “as the Road Adjustment Estimate is required” (Council’s submissions 16 July 2018).

144. As noted at paragraph [54] of the judgement, prior to the proceedings the Applicant prepared an amended scheme that raised the road level. This design was accepted by the Council and the judgement notes at paragraph [5] the remaining issues between the parties. The level of the road was not an issue contested by the Council. No submission to the contrary was made by Mr White in closing. As such the condition is deleted.

145. I accept the submission of the Applicant that the imposition of the condition would be inconsistent with the development that was determined by the Court to be satisfactory.

146. I number of other consequential changes were made to the conditions to be consistent with the preceding findings.

147. 6.13.4 Stormwater devices

1. The Applicant seeks to allow for brand substitution of the stormwater quality devices proposed. This was accepted by the Council subject to achievement of the same performance.

148. The amended condition will read:

The 200 micron Enviropods and/or Jellyfish Units 1 x JF3250-17-3 and 1x JF-2250-8-2 and 1 x JF 2250-7-2 are to be supplied by Stormwater 360 (or equivalent brand approved by Council that is capable of achieving the same performance specification) as detailed on the approved drainage plan.

149. Council seeks, at Condition 16.11.4.6 and 16.11.4.7 a bond for the maintenance and removal of the temporary Enviropods. The Council seeks a bond of 200% of the estimated cost of removal and 150% of the estimated cost of maintenance. Council’s reasoning is that the Enviropods may be in place for an uncertain duration (up to 10 years). The Applicant seeks for these amounts to be reduced to 100% on the basis that the estimate prepared us already required to include a contingency allowance.

150. The power to apply a bond in these cases arises from s 4.17 (6) (a) and s 4.17 (6) (b) of the Act respectively. At s 4.17 the Act states:

(7) The security is to be for such reasonable amount as is determined by the consent authority.

151. I am satisfied it is reasonable to set both bond amounts at 150% of the respective estimates, on the basis argued by the Council at [149].

152. Condition 17.20.5.1: Kerb and gutter to Windsor Road

1. The applicant seeks to insert the following words in the condition provided by the Roads and Maritime Service (RMS):

The redundant driveway on the Windsor Road boundary shall be removed and replaced with a temporary kerb and gutter to match existing. The design and construction of the temporary kerb and gutter on Windsor Road shall be in accordance with the Roads and Maritime requirements. Details of these requirements should be obtained from Roads and Maritime Services, Manager Developer Works, Statewide Delivery, Paramatta.

Detailed design plans of the proposed gutter crossing are to be submitted to the Roads and Maritime for approval prior to the issue of a Construction Certificate for the residential flat building and commencement of the temporary kerb and gutter road works.

…

The Applicant’s reasoning for the amendment is that ‘the design and construction of the kerb and gutter on Windsor Road cannot be completed until the Applicant has removed the temporary deceleration lane and has created the separate, permanent entrance to the site off Windsor Road’ (Applicant’s submissions 16 July 2018).

The Council disagrees with the Applicant’s amendments and argues that consultation is required with the RMS to ensure that their requirements for safety are satisfied during the staged development of the site.

153. I find that I have insufficient justification to uphold the amendment to the condition sought by the Applicant. I accept the condition was likely drafted by the RMS prior to the most recent amendments to the Applicants plans, I am not satisfied that the approach sought by the Applicant is adequately justified in the absence of consideration by the engineering experts engaged in the appeal. The amended to the condition is declined.

154. Finally I am satisfied that consent to the application should be granted, as the appeal is an appeal under s8.7 of the Environmental Planning and Assessment Act 1979, the amended plans and that the conditions of consent as amended accord with my findings.

Orders:

155. Accordingly I make orders in chambers as follows:

1. The applicant is granted leave to rely on the amended plans filed with the Court on 19 June 2018;

2. The objection pursuant to cl 4.6 for a variation to the maximum building height standard under cl.4.3 of the Growth Centres SEPP is upheld;

3. The appeal is upheld;

4. Consent is granted to Development Application No. SPP-17-00012 at Lot 3, DP 135890, 876 Windsor Road, Rouse Hill, subject to conditions in Annexure A

5. The exhibits are returned with the exception of 5, E, the Class 1 Application and the plan listed in Condition 2.1.1 of Annexure A

…………….

D M Dickson

Commissioner of the Court

Annexure A

Amendments

17 July 2018 - Correction to Hearing dates.

20 July 2018 - Addendum (including final orders) added to Judgment with Conditions of Consent attached as Annexure 'A'

Decision last updated: 20 July 2018