Urbis Pty Ltd v Sutherland Shire Council
[2002] NSWLEC 20
•02/28/2002
Land and Environment Court
of New South Wales
CITATION: Urbis Pty Ltd v Sutherland Shire Council [2002] NSWLEC 20 PARTIES: APPLICANT
RESPONDENT
Urbis Pty Ltd
Sutherland Shire CouncilFILE NUMBER(S): 10774 of 2000 CORAM: Pearlman J KEY ISSUES: Appeal :- s 56A - take into consideration - development control plan - traffic LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C(1)(a)(iii)
Land and Environment Court Act 1979 s 56A
Sutherland Shire Development Control Plan Heathcote Precinct 3CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373 DATES OF HEARING: 15/02/2002 DATE OF JUDGMENT:
02/28/2002LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr C W McEwen (Barrister)
SOLICITORS
Mallesons Stephen Jaques
Mr D P Wilson (Barrister)
SOLICITORS
Sutherland Shire Council
JUDGMENT:
IN THE LAND AND 10774 of 2000
ENVIRONMENT COURT
Pearlman J
OF NEW SOUTH WALES 28 February 2002
- Applicant
Respondent
Introduction
1. This is an appeal under s 56A of the Land and Environment Court Act 1979 brought by Sutherland Shire Council against the decision of Commissioner Roseth (now Senior Commissioner) to grant development consent to a development application for a McDonald’s Restaurant and drive through take-away at 1264 - 1268 Princes Highway, Heathcote (“the site”).
2. The sole ground of appeal is that the Commissioner failed to take into consideration, or alternatively failed to give real and/or adequate consideration, to a development control plan concerning traffic that applied to the site.
The development proposal
3. The Commissioner described the site in pars 4 - 5 of his judgment as follows:
The commercial strip to the north comprises a restaurant, a BP service station and a motel. There is nearby housing to the west on the opposite side of the Highway. Wilson Parade passes over the railway line through a two-lane bridge, then turns at right angles towards the north and ends in a cul-de-sac, serving the residential enclave of East Heathcote …The site is bounded by the Princes Highway to the west, Wilson Parade to the south, the South Coast railway corridor to the east and a small strip of commercial uses to the north. The location is opposite the signalised intersection with Heathcote Road …
4. In par 2, the Commissioner stated that the two main issues in the class 1 appeal were:
… the impact of traffic likely to be generated by a McDonald’s outlet and resident opposition to the proposal.
5. After the appeal was lodged, and on the recommendation of the Roads and Traffic Authority, the council and the applicant commissioned a Road Safety Audit to be conducted for the site. The Audit recommended several changes to the original design. In particular, it recommended re-arranging the internal layout of the site to allow the egress onto the Princes Highway to be relocated at the northwest boundary of the site. It also recommended that egress to Wilson Parade be only to the left due to poor visibility to the right. These recommendations were incorporated into amended plans that were eventually approved by the Court.
The provisions of the development control plan
6. The relevant development control plan is Sutherland Shire Development Control Plan Heathcote Precinct 3 (“the DCP”). The DCP is site specific, that is, it relates only to the site.
7. Clause 2 of the DCP deals with vehicular access and provides:
Vehicular access requirements are as follows:
(i) ingress to the site to be via a left hand turn only from Princes Highway or Wilson Parade;
(ii) egress to be to Wilson Parade only . This can be a left or right hand turn;
(iii) the vehicular access point in Wilson Parade to be in the vicinity of the existing footpath crossing;
(iv) road widening to be undertaken in the existing road reserve of Wilson Parade to ensure eastbound vehicles are not obstructed by ingressing vehicles. (Shown on drawing). (my emphasis)
8. In par 6 of his judgment, when noting the planning controls relevant to the site, the Commissioner referred to the DCP as follows:
· Development Control Plan 3 – Heathcote Precinct 3 (the site specific DCP) provides detailed controls for this site alone. The site-specific DCP permits the same land uses as LEP 93 with the exception of service stations.
9. The Commissioner’s only other direct reference to the DCP appeared in par 23 of his judgment. In discussing one of the matters concerning the issue of traffic, the Commissioner made the following statement:
The second matter is the unsafe nature of the proposed exit to the Highway at the northwest corner. Mr McLaren believes that the sight distance of 85m is inadequate. An exit to the Highway is also contrary to the site specific DCP that requires exit to be only to Wilson Parade. The departure from the DCP was suggested in the Road Safety Audit. If such an exit can be justified on safety grounds, it is clearly preferable to all traffic exiting via Wilson Parade and disturbing the calm of East Heathcote.
The respective submissions
10. Mr Wilson, appearing on behalf of the council, submitted that the Commissioner considered the issue of traffic simply on its merits, but failed to give genuine consideration to the DCP. The DCP was a matter for consideration under s 79C(1)(a)(iii) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”), and the Commissioner was required to focus on it and consider the consequences of departure from it.
11. In support of his argument, Mr Wilson referred the Court to par 3 of the Commissioner’s judgment in which he summarised his decision as follows:
The weight of expert evidence indicates that the proposal will not significantly affect the efficiency of the Princes Highway, nor will it have a major impact on the nearby residential enclave of East Heathcote. The appeal is therefore upheld.
12. In Mr Wilson’s submission, this passage indicated that the issue of traffic was considered solely on its merits. Although the Commissioner may have been aware of the existence of the DCP, as reflected in the fact that he listed it in par 6 as a “relevant planning control”, he did not consider it and give it the attention it required pursuant to s 79C(1)(a)(iii).
13. Mr McEwen, appearing on behalf of the applicant, submitted that the Commissioner was fully aware that the amended proposal did not comply with the DCP and he understood the manner of non-compliance. The issue that was before the Commissioner was whether, in these circumstances, the appeal should be upheld. Mr McEwen submitted that, on the evidence from the Road Safety Audit, the Commissioner made a deliberate decision to approve the development notwithstanding non-compliance with the DCP. In par 23, he furnished his reasons for approving the departure from the DCP. His judgment demonstrated consideration of the instrument.
Did the Commissioner err in law?
14. Section 79C(1)(a)(iii) requires the Court (in this case, constituted by the Commissioner) to take into consideration a development control plan so far as it is of relevance to the development the subject of the development application. The expression “take into consideration” has been held to require a proper, genuine and realistic consideration of the relevant development control plan. Furthermore, “… mere advertence to a matter required to be taken into consideration is not sufficient …” and the relevant development control plan “… had to be considered as a ‘fundamental element’ in or a ‘focal point’ of the decision-making process” (see Zhang v Canterbury City Council (2001) 115 LGERA 373 at 385 – 387 and the cases there cited).
15. In accordance with this test, the Commissioner was obliged, so far as concerns vehicular access to the site, to consider the fact that the DCP established certain standards with respect to ingress and egress to and from the site, and that, in particular, egress was to be to Wilson Parade only.
16. In my opinion, the Commissioner complied with this test in par 23 of his judgment. He recognised that the standard set by the DCP required egress to be to Wilson Parade only, but that the proposed development involved egress to the Princes Highway. He recognised that the proposal departed from the standard. He concluded that such a departure was justified on two grounds – first, because it was suggested in the Road Safety Audit, and, secondly, because it would have a benefit on the amenity of East Heathcote.
17. The standard set in the DCP was not determinative. The Commissioner had a discretion to approve the proposed development despite non-compliance with the standard, so long as he gave proper, genuine and realistic consideration to the standard. In my opinion, he did so, and the council’s appeal must fail.
18. I should, finally, say a word about Mr Wilson’s reliance on par 3 of the Commissioner’s judgment (which I have quoted above). That paragraph was obviously intended to be a summary of the Commissioner’s reasons for his determination of the appeal, and thus an aid to the reader of the judgment. It was not intended, nor could it be, a substitute for his reasons in full.
Orders
19. My formal orders are therefore as follows:
(1) The appeal is dismissed.
(2) The council must pay the costs of the applicant as agreed or as assessed.
(3) The exhibits may be returned.
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