Scagias v Campbelltown City Council
[2012] NSWLEC 1018
•31 January 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Scagias v Campbelltown City Council [2012] NSWLEC 1018 Hearing dates: 31 January 2012 Decision date: 31 January 2012 Jurisdiction: Class 1 Before: Hussey C Decision: (1)The appeal is upheld.
(2)Development Application No 1416/2011/DA - C for the construction of a single storey commercial building and associated car parking on the land known as Lot 6 SEC 4 DP 2913, 34 Carlisle Street, Ingleburn is approved subject to the conditions in Annexure "A".
(3)Exhibits may be returned except 3, Tab 8 (Exhibit 2), A and B.
Catchwords: Consent orders; condition of consent relating to the dedication of road widening. Legislation Cited: Environmental Planning and Assessment Act 1979
Campbelltown (Urban Area) Local Environmental Plan 2002Cases Cited: Skagias & Anor v Campbelltown City Council [2010] NSWLEC 1187 Category: Principal judgment Parties: Mr Nick Skagias (Applicant)
Campbelltown City Council (Respondent)Representation: Mr P Jackson (Applicant)
Mr A Seton (Respondent)
File Number(s): 10985 of 2011
Judgment
Background
This appeal was lodged against conditions of consent imposed on a development for the construction of a single storey commercial building and car parking for 19 vehicles at 34 Carlisle St, Ingleburn. The applicant's main contention in the appeal concerns Condition 55, which states:
"Prior to the principal certifying authority issuing an occupation certificate, the land required for road widening shown on the approved plan shall be dedicated to Council".
During the lead in to the appeal, further conferencing between the parties has resulted in an agreement to consent orders, which provides for Condition 55 to be deleted.
The evidence
Council's bundle of documents (Exhibit 2) contains details of the proposal, the planning controls and council officer's assessment, which resulted in the council granting development consent on 13 December 2011, including Condition 55.
With regard to the road widening and car parking considerations, I note that the assessment report states:
"The proposal involves the construction of a single storey commercial building width ground level car parking. There would be a total of 19 car parking spaces provided on the site, including two disabled spaces, with 13 provided parallel to and with direct access to Boots Lane and open to the public at all times, and 6 private spaces provided at the rear of the site utilising 3 double car stackers A loading dock is also provided to the rear of the site. The 13 spaces provided along Boots Lane are to be located within the area identified for road widening.
The proposed commercial building has a floor area of approximately 475 square metres and is located in the northeastern corner of the site. The proposed building setback is 7.3 m from the southern boundary of Boots Lane.
Pedestrian access to the proposed building would be via the main entry at the Carlisle Street. Staff access would also be available from the loading dock/parking area to the rear of the site as the parking spaces provided in double car stackers are provided staff usage only. Loading/unloading would occur to the rear of the site with the delivery vehicles reversing from Boots Lane into the loading bay provided. Goods would then be unloaded and transferred to the tenancy either on foot via the pedestrian stairs adjoining the rear roller door (small item) or straight to the roller door for large items via the use of a trolley or similar device."
Planning controls
The relevant planning controls dealing with the contention of involves the following provisions of the Campbelltown (Urban Area) Local Environmental Plan 2002 (CLEP) under which the subject site is zoned part 10(b) District Comprehensive Centre zone and part 5(d) Special Uses Local Roads zone.
Under Clause 29 - Zone 10(b) District Comprehensive Centre Zone , the relevant objectives are:
(a) to provide space for a wide range of retail and commercial needs to serve the district of Edmondson Park, and
(b) to encourage employment and business activities in order to promote the economic well-being of the community, and
It is a requirement of CLEP that development must be consistent with a least one of the zone objectives in order that Council can grant development consent. I accept the assessment officer's opinion that the development would contribute to economic and employment growth and as such, consent can be granted.
Clause 18 - Zone 5(d) - Special Uses Local Roads Zone includes the following objectives:
(a) to identify land required for proposed local roads (including the widening of existing roads), and
(b) to allow for the development of such land prior to its acquisition or dedication for use for roads.
Clause 18 provides information relating to development that may be carried out with or without the consent of Council. Specifically, the development types listed are limited to drainage; roads; utility installations... As noted previously, the subject site has a 5 m wide strip located along its southwestern boundary zoned as 5(d). Accordingly, the subject section of land is shown in proposed car parking facilities and a portion of a loading area. The proposed development relies on this section of land for the provision of most of the on-site parking. Consequently, the assessment officer says that:
"Pursuant to Clause 18 of the CLEP, parking areas and loading zones are not specifically identified as being permissible development within the 5(d) zone. However, parking areas and loading zones are development types that are commonly found and expected to be located within a road or a road related area."
Another relevant control is Clause 52 - Acquisition of certain land, which provides:
(3) Until the land referred to in subclause (1) is acquired by the public authority concerned, development may be carried out for any purpose on that land with development consent.
(4) In determining whether to grant consent under subclause (3), the consent authority must take the following into consideration:
(a) the effect of the proposed development on acquisition costs,
(b) the imminence of acquisition,
(c) the cost of reinstating the land for the purpose for which the land is zoned,
(d) in the case of land within Zone 5 (b), the need to carry out development on the land for the purpose of classified roads or proposed classified roads, within the meaning of the Roads Act 1993 .
(5) In granting a consent referred to in subclause (3), the consent authority may impose conditions requiring:
(a) the removal of the building or work for which it has granted consent, and
(b) the reinstatement of the land or removal of any waste materials or refuse, and
(c) compliance with any other condition required by the consent authority.
(6) (Repealed)
(7) Nothing in this clause requires the public authority concerned to acquire land during the currency of a consent obtained under subclause (3).
(8) Nothing in this clause requires the Council to acquire land within Zone 5 (a), 5 (c), 5 (d) or 6 (a) where such land may be required to be provided, without cost to the Council, as a condition of consent for development of land in the same ownership.
Submissions
The submissions on behalf of the applicant for the deletion of Condition 55 are:
Uncertainty
(1) The imposition of condition 55 is unclear and uncertain in its intent
Particulars:
(a) The condition refers to land required for road widening shown on the approved plan. The approved plan does not show any land proposed for road widening or dedication.
(b) The application lodged and as subsequently amended, at no time proposed any land to be dedicated to Council.
The condition does not identify the dimension or the area of dedication purported to the required by this condition.
(2) The imposition of condition 55 renders the development consent unworkable.
Particulars:
(a) CSCDLP 2009 - Part 5, section 5.4 car parking and access requires 1 space per 25m 2 LFA. The proposed dedication would mean that car parking is not directly provided for the development,
(b) The proposed dedication would result in the approved development being non-compliant with the car parking requirements.
(c) Access to car parking would no longer be available to the development to meet the needs of the development.
(d) The dedication would result in loading facilities, fencing and gates associated with and required for the function of the development being located on Council land.
(e) The car parking spaces adjoining Boots Lane would straddle two (2) land holdings. Car parking would no longer be wholly contained on the development site and be able to be managed by the owner or lessee of the development.
Lawfulness of Condition
(3) The imposition of condition 55 is unlawful as its need does not arise from the actual development proposed and is therefore unreasonable.
Particulars:
(a) Clause 52(8) of the Campbelltown (Urban Area) LEP 2002 reads as follows:
"Nothing in this clause requires the Council to acquire land within zone 5(a), 5(c), 5(d), or 6(a), where such land may be required to be provided, without costs to the Council as a condition for development of land in the same ownership."
Such a condition must only be imposed in accordance with s80A of the Environmental Planning and Assessment Act 1979. Therefore Clause 52(8) does not apply to the DA.
(b) The s94A Development Contributions Plan at Schedule 1 - Works Schedule and Figure 2 identifies the subject site as a public facility and/or infrastructure for which s94A levies will be required. Condition 25 requires a contribution to be made under this plan, which includes money for the works and acquisition of this land.
(c) The development of a single storey commercial development of 475m 2 does not result in the need to widen Boots Lane by the width of the land zoned 5(d) Special Use Local Road.
(d) The existing road system can adequately cater for the traffic generated by the development as proposed.
(e) The imposition of the condition is disproportionate to the scale of traffic impacts as a result of the development.
(f) The dedication of 24% of the site for road widening purposes not directly arising from the development is unreasonable and unlawful.
(4) Acquisition of Land:
Particulars :
The imposition of condition 55 is effectively a defacto acquisition of land which is outside the provisions of the Land Acquisition (Just Term Compensation) Act 1991:
(a) The s94A Development Contributions Plan at Schedule 1 - Works Schedule and Figure 2 identifies the subject site as a public facility and/or infrastructure for which s94A levies will be required. Condition 25 requires a contribution to be made under this plan, which includes money for the works and acquisition of this land.
(b) The s94A Plan and s94 Contributions Plan for public car parking facilities shows the whole site proposed for public car parking which would invoke the provisions of the Land Acquisition (Just Term Compensation) Act 1991.
Conclusion
Having considered the evidence before the Court and submissions, I am satisfied that the application has been subject to a detailed planning assessment resulting in the grant of conditional consent by Council. I do not consider there has been any substantive evidence put before the Court, which would result in consent now being withheld. In this regard I also note that there are no objections.
With regard to Condition 55, it seems that cl 52 of the LEP allows that the 5(d) zoned land to be used for any purpose with development consent until it is acquired. It is apparent from the submissions that Council has no plans at this stage for acquisition.
I am satisfied that the proposed use and construction of the car park the area in this 5(d) strip of land use associated with the future road use and in this regard I accept Council officer's assessment that:
"given that a road (and presumably all things that would be expected to be found within a road all road related area) is permissible without consent within the 5(d) zone section of land, in the circumstances of the case, it is considered a reasonable to consider the development proposed within the area zoned 5(d) as a road and as such, the development is then permissible, and considered consistent with the objectives of Clause 18."
In summary then, I am satisfied to grant the Consent Orders deleting Condition 55 and allowing the development to proceed on the basis that the 5(d) road widening the is use for car parking. I accept the submissions that this is consistent with the provisions of cl 52 on the CLEP and the land will still remain available for future acquisition for any other road purposes when required by Council with any appropriate compensation being ascertained at the time.
Court orders
The Court orders by consent:
(1) The appeal is upheld.
(2) Development Application No 1416/2011/DA - C for the construction of a single storey commercial building and associated car parking on the land known as Lot 6 SEC 4 DP 2913, 34 Carlisle Street, Ingleburn is approved subject to the conditions in Annexure "A".
(3) Exhibits may be returned except 3, Tab 8 (Exhibit 2), A and B.
R Hussey
Commissioner of the Court
ANNEXURE A
Decision last updated: 01 February 2012
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