Torada Pty Ltd (1) v Pittwater C

[2005] NSWLEC 593

Land and Environment Court

of New South Wales

CITATION:

Torada Pty Ltd (1) v Pittwater C [2005] NSWLEC 593

PARTIES:

APPLICANT
Torada Pty Limited

RESPONDENT
Pittwater Council

FILE NUMBER(S):

10065 of 2005

CORAM:

Tuor C

KEY ISSUES:

Development Application :- Mixed use development
Amended plans to satisfy preliminary judgment
Objection to condition requiring undergrounding of utility services

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

CASES CITED:

Newbury District Council v Secretary of the Environment (1981) AC 578

DATES OF HEARING:

11/10/2005

EX TEMPORE JUDGMENT DATE:

10/11/2005

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. McKee, solicitor
SOLICITORS
McKees Legal Solutions

RESPONDENT
Ms J. Jagot, barrister
SOLICITORS
Mallesons Stephen Jacques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

11 October 2005

10065 of 2005 Torada Pty Ltd v Pittwater Council

JUDGMENT

1 On 12 July 2005, I handed down a preliminary judgment on this appeal. The applicant and the council have now reached agreement on the amendments to the application required as a result of that judgment and agreed that the proposal is a high quality development capable of approval.

2 The only matter in dispute between the parties is the imposition of condition E4 which, as currently drafted, requires the overhead electrical power lines that run along Waratah Street adjacent to the development site, to be removed and laid in the conduits underground for the full width of the development site.

3 The applicant has objected to the condition on the basis that it does not meet the tests in Newbury District Council v Secretary of the Environment (1981) AC 578. The test being that the condition must:

(a) fairly and reasonably relate to the development for which consent is given, and,
(b) be imposed for a planning purpose, and,
(c) be reasonable in the sense that it must be a condition which a reasonable local authority properly advised might impose.

4 Clause C 120 of Pittwater 21 Development Control Plan (the DCP) requires that:

All utility services are to be placed underground to the total frontage of the site to the public road. Design and construction of the undergrounding is to be at the full cost of the developer.

5 The stated outcome of the control is that “amenity is maintained and enhanced and security of the utility services is improved.”

6 Mr McKee’s submission, for the applicant, was that the reference in the control to ‘all utility services’ was to future services required by the proposed development, and that as the development will draw its services from existing underground services, the control was met. He also submitted that the power lines extended beyond the frontage of the development, provided power to other properties, and included other services than electricity. He noted that even with the removal of the line the poles would remain, and concluded that the removal of the lines was not associated with this development, and therefore the condition was unreasonable.

7 Ms Jagot’s submission, for the council, was that the DCP control was to achieve the objective of maintaining and enhancing the visual environment through the removal of utility services. This was to be achieved through the undergrounding of existing and future services in a progressive manner as sites were redeveloped, with each site being responsible for the services proximate to its frontage, and regardless of whether these provided power to the development or other developments. On this basis, the condition was for a planning purpose and was reasonable, as even though the poles would not be removed, the removal of the wires would maintain and enhance the visual amenity of the area that directly relates to the development.

8 I accept Ms Jagot’s submission, and for the reasons that she has articulated, agree that the imposition of the condition is for a planning purpose and is reasonable. However, the wording of the condition needs to be amended to clarify that the wires relate, not only to the electrical power lines, but to all the lines, and that the conduits may not already exist.

9 The orders of the Court are therefore:

1. The appeal is upheld.
2. The development application for a mixed use development at No. 24 Waratah Street, Mona Vale, is approved subject to the conditions of annexure A.
3. Exhibits, except exhibits H and 9, may be returned.
4. No order as to costs.

___________________

Annelise Tuor
Commissioner of the Court
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