Won v Ashfield Council
[2015] NSWLEC 1201
•4 June 2015
|
New South Wales |
Case Name: | Won v Ashfield Council |
Medium Neutral Citation: | [2015] NSWLEC 1201 |
Hearing Date(s): | 18 May and 1 June 2015 |
Date of Orders: | 4 June 2015 |
Decision Date: | 4 June 2015 |
Jurisdiction: | Class 1 |
Before: | Moore SC |
Decision: | See (59) below |
Catchwords: | MODIFICATION APPLICATION: unsuccessful conciliation conference; continuing discussions between the parties; agreement on further modified proposal |
Legislation Cited: | Ashfield Local Environmental Plan 2013 |
Category: | Principal judgment |
Parties: | John Won (Applicant) |
Representation: | Counsel: |
File Number(s): | 10126 of 2015 |
JUDGMENT
INTRODUCTION
SENIOR COMMISSIONER: In July 2014, Hussey AC conducted a conciliation conference between the applicant and those representing and/or and advising him and Ashfield Council (the Council) and those representing and/or advertising it. That conciliation process was undertaken as part of the role of the Court in seeking, pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act) to assist the parties to proceedings in merit disputes in the Court to reach an agreement about an outcome that is acceptable to both parties. If, as was the case of the conciliation conference conducted by Hussey AC, the parties reach such an agreement, the presiding Commissioner is obliged to give effect to it provided the Commissioner is satisfied that there is no legal impediment to do so. This is as a consequence of the provisions of s 34(4)(a) of the Court Act, a provision in the following terms:
34 Conciliation conferences
(1) …...
(1A) …..
(2…...
(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner:
(a) must dispose of the proceedings in accordance with the decision, and
(b) must set out in writing the terms of the decision.
In the instance being dealt with by Hussey AC, he was satisfied that there was no legal impediment to giving effect to the agreement and consent orders were made on 23 July 2014 to give effect to that agreement.
In doing so, Hussey AC made no merit assessment whatsoever of any aspect of the proposed development of the nursing home at 5 Henson Street, Summer Hill.
Indeed, to assist those who might be interested in the outcome of Court proceedings where conciliation conferences are conducted and agreement is reached between the parties giving rise to consent orders, since 1 March 2015, the Court has published short pro forma decisions in such matters with, as annexures to such decisions, copies of the conditions of consent being able to be accessed electronically through the Caselaw website.
One paragraph of that pro forma judgement template makes it clear that the Commissioner presiding at such a conciliation conference where agreement is reached has made no merit assessment and is not permitted to make any merit assessment of the development proposal. That paragraph of the template judgement is in the following terms:
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
I set out the process that is undertaken in some detail because, in these proceedings, I am dealing with an application to modify the s 34 conciliation conference derived development consent arising out of the conciliation conference presided over by Hussey AC in July 2014.
The modification application sought to increase the number of approved nursing home beds in the facility by adding an additional 10 beds and making other changes to the approved development. Particularly, for the purposes of these proceedings, the modification application proposed to locate the plant room of the development on its roof.
The proposed modification application was lodged direct with the Court and, after consideration of the material supplied in support of the modification application (being plans and supporting expert material such as an acoustic assessment), the Council did not support the modification application.
At the first directions hearing in this matter, the Registrar ordered the holding of a new conciliation conference, also conducted by Hussey AC, to see if the parties could reach agreement concerning the modification application. No agreement was reached and the conciliation conference was terminated. The matter was then set down for hearing, a hearing to which I was assigned by the Chief Judge of the Court.
Between the time of the termination of the new conciliation conference and the date when the matter was initially set down for hearing, the applicant and the Council held further discussions. These discussions resulted in a proposal by the applicant to amend the proposed modifications. These proposed amendments satisfied the contentions that had been set out by the Council, in its Statement of Facts and Contentions, as warranting refusal of the modification application. As a result of these proposed amendments, the Council agreed to enter into consent orders on the basis that, at the hearing before me, the applicant would seek leave to rely on amended plans reflecting that agreement and that the Council and the applicant would then hand up signed consent orders based on these amended plans.
When the matter first came before me on 18 May, I granted leave to rely on the amended plans but I declined to consider the consent orders that were proposed by the parties. I did so because the terms of paragraph 36 of the Class I Practice Note had not been complied with.
Paragraph 36 of the Practice Note reads:
36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:
(i) the content of the proposed orders (including the proposed conditions of consent);
(ii) the date of the hearing by the Court to consider making the proposed consent orders; and
(iii) the opportunity for any such person to be heard,
or that, in the circumstances of the case, notification is not necessary.
In particular, I indicated my concern that the precise terms of the proposed consent orders; the modifications to the conditions of consent that had been agreed to by the parties; and the modified consolidated conditions of consent had not been provided to all those who had objected to the original modification application. In addition, the proposed orders were not in the form that had been required by the Court, for proceedings commenced on or after 1 November 2013, namely setting out, in Schedule A to the proposed orders, the conditions that were being modified whilst incorporating, in Schedule B to the proposed orders, a modified, consolidated set of conditions of consent.
I directed Mr Jackson, solicitor for the Council, to undertake the appropriate process of providing the information to the objectors; I set a date for an adjourned hearing of the proposed consent orders; and I required that the notification of the objectors make it clear that, at the adjourned consideration of the proposed consent orders, any objector who wished to be heard would be able to give evidence to me concerning their objections to matters arising out of the modification application.
When the matter resumed on 1 June, a variety of documents were tendered by the applicant's solicitor, Mr Sonter, and by Mr Jackson. Of particular relevance to my consideration of matters concerning the consent orders were copies of the objections that had been lodged with the Council to the proposed modification application. These letters or emails of objection were included in the Council’s bundle of documents (Exhibit 6 behind tab 7). Exhibit 6 had been filed with the Court on 15 May and I had had the opportunity to read the various letters of objection prior to the initial hearing and to refresh myself concerning their contents prior to the resumed hearing on 1 June.
Only one of those who had lodged a written objection to the modification application, Mr Norris, wished to give evidence at the resumed hearing. He had five matters about which he wished to raise his concerns during the course of his oral evidence. After reading his written objection (Exhibit 6 folio 136) to the original modification application and his further emailed objections to the Council (Exhibits 3 and 5), it was clear that he was seeking to canvas a wide range of matters concerning the overall design and other aspects of the development proposal - matters going significantly beyond the matters sought in the modification application and entirely outside the scope of these proceedings.
A fair reading of much of the other material lodged by the objectors also shared this characteristic of seeking to canvas matters well outside any jurisdiction that the Court could exercise on a modification application.
The matters of this general nature that were sought to be canvassed were, effectively, all matters that had been resolved as a consequence of the conciliation agreement reached in July 2014 and the outcomes concerning which were embodied in the orders that Hussey AC was obliged to make to give effect to that outcome (without him making any merit assessment, whatsoever, of that outcome).
When Mr Norris gave his oral evidence, he indicated that there were five matters which he wished to address. He addressed the first three of these:
the height and visual impact of the lowered but enlarged plant room on the roof;
concerns about the impact of the development on street trees; and
what he perceived to be the inadequacies in the landscaping plan.
After he commenced to address this third point, I intervened to indicate to him that his second and third points were entirely outside the scope of the appeal and that, if I were to make some intervention concerning them based on his evidence, I would be committing an appealable error. I indicated to him that the first of his points was a matter that was within my jurisdiction and that I would consider his concerns on that point in writing this judgement.
I repeated to him, in slightly different terms, my earlier explanation as to the extremely limited scope of the matters with which I was able to deal but did explain to him that, unlike a conciliation conference agreed outcome, consent orders did permit me to intervene if I had some proper basis founded on relevant planning controls to do so.
I asked him whether his remaining two points related to the modification application presently before me or not and he indicated that they did not and that he had misunderstood the nature of the matters with which I was able to deal. At that stage, it was apparent from him standing up and putting his papers away, that he did not wish to speak further and he was stood down and excused.
Although this is a lengthy preamble to my consideration of the planning and other merit aspects arising from the modification application and requiring to be considered in light of the relevant controls in the planning instruments that are applicable to the approved development, it is necessary to do so because there clearly has been a misapprehension about the nature of these proceedings and the extremely limited scope of that which is properly within my jurisdiction for consideration and determination within these proceedings.
THE PROPOSED CONSENT ORDERS
The proposed consent orders set out, in proposed Order 2, the limited range of aspects of the approved development that are proposed to be modified through this consent orders process. Those matters are:
…… adjustment to window locations, relocate bin store, amend the roof ridge line, confirm and amend the roof plant platform and screening and relocate the underground cooling pit and grease arrestor pit ………
THE COUNCIL'S CONTENTIONS
In its Statement of Facts and Contentions, the Council raised the following as matters that it said provided a basis for refusing the amended modification application (noting that the Statement of Facts and Contentions was drafted and filed with the Court prior to the revision of the modifications after further discussions between the applicant and the Council). The contentions raised were:
(1)The scale of the proposed plant room is unacceptable;
(2)Insufficient information; and
(3)The proposal is not in the public interest.
The particulars set out by the Council in support of the third of these contentions were in the following terms:
The proposed modification is not in the public interest having regard to the contentions raised above.
In particular, it is not in the public interest to grant approval to the application for modification having regard to the unacceptable bulk and scale of the plant room and without an acoustic report which specifically addresses the noise impact from the plant room on residential amenity.
The Council accepted, prior to the commencement of the hearing, that the additional information required to be provided as particularised in support of contention (2) had now been provided and thus it did not require further consideration.
The bulk and scale issue and the acoustic issue arose in the context of the plant room as then proposed. To the extent that the Council has now been satisfied with respect to those two issues but they remain pressed as a consequence of the objections to the modification application as is now before the Court, they are dealt with below.
MATTERS RELATING TO THE PLANT ROOM RAISED BY THE OBJECTORS
There were, in essence, two substantive matters raised with respect to the plant room and these were touched on by Mr Norris in his evidence concerning this aspect of the proposed modification. His concerns can be summarised as being:
the proposed location and dimensions of the plant room were unacceptably bulky and visible from outside the development site (Mr Norris being a resident opposite the site); and
the desirability of requiring the plant room to be countersunk into the main fabric of the building by eliminating two of the ten additional beds sought to be added to the development. This would have two beneficial effects, these being to eliminate the visual bulk and intrusive nature of the plant room when viewed from outside the site and reducing the level of noise transmission that would be caused by the operation of the plant (as a consequence of the additional acoustic shielding that would be provided by an internal location of the plant room).
These two specific concerns were also reflected in the objections to the original modification application but the submission from Mr Norris and his oral evidence was the only further material brought in response to the matters notified to the original objectors by Mr Jackson's letter sent following the hearing on 18 May and the comprehensive attachments that Mr Jackson had had appended to that letter.
THE PLANNING CONTROLS
Two environmental planning instruments are relevant to my consideration of this application. The first is State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the Policy) and the second is the Ashfield Local Environmental Plan 2013 (the LEP).
First, I should note that the Policy is, as has been observed numerous times in judgements of this Court, a beneficial and facultative one which contains a provision in cl 5 that, if any of the matters for which the Policy prescribes a specific control, if such a control is inconsistent with any local environmental plan, the Policy shall, to the extent of the inconsistency, prevail.
In this instance, the particular provision of the Policy that is relevant is that contained in cl 48(a) of the Policy. This clause deals with the height of buildings for the purposes of the Policy. This provision as discussed in more detail below.
The LEP also contains, through the operation of cl 4.3(2), a development standard concerning the maximum height permitted for a building plane to be permissible without an exemption being approved for breach of that provision.
Because of the definitional differences between the Policy and the LEP, both provisions are able to coexist harmoniously and require my consideration in these proceedings together with the acoustic concerns originally raised by the Council (but no longer pressed by it) and also raised in the objections.
THE HEIGHT ISSUE
The amended plans that the applicant was given leave to rely upon at the hearing on 18 May were tendered and became Exhibit A. Those plans comprise a number of sheets of which plan DA921 revision A shows the elevations of the building from each of the cardinal points of the compass. Each of those elevations has marked on it the relevant building height plane set by the Policy (marked as a red dashed line on each elevation) and/or the LEP height plane (marked as a black dashed line in each instance).
The relevant element in cl 48 of the Policy provides that a consent authority (in this case, the Court in these proceedings) cannot refuse development consent to a building to which the Policy applies if the height of the building is less than 8 m. This provision reads, relevantly:
48 Standards that cannot be used to refuse development consent for residential care facilities
A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a residential care facility on any of the following grounds:
(a) building height: if all proposed buildings are 8 metres or less in height (and regardless of any other standard specified by another environmental planning instrument limiting development to 2 storeys),
For the purposes of the Policy, the height of the building is defined in the dictionary to the Policy in the following terms:
height in relation to a building, means the distance measured vertically from any point on the ceiling of the topmost floor of the building to the ground level immediately below that point.
No element of the main structure comes close, in any elevation, to the height plane limit set by the Policy.
The height plane that is set by the LEP is, as also shown on the elevations – at a level higher than the height plane defined by the Policy. This is derived from cl 4.3(2) of the LEP and the relevant element of the Height of Buildings map there referred to. The clause is in the following terms:
4.3 Height of buildings
(1) ………
(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Maphttp:// type="1">
Height of Buildings Map - Sheet HOB_002 shows the height of building permitted for 5 Henson Street, Summer Hill to be 8.5 m. The height plane derived from the LEP is thus 0.5 m higher than the height plane defined by the Policy but measured differently.
It is clear from the elevations referred to above on plan DA921 revision A that the proposed plant room structure touches the maximum height plane set by the LEP but does not, in any elevation, breach that height plane. This is to be compared with the structure that was originally proposed in the modification application as it was some 64 cm higher and breached this height plane in a number of respects.
As these height limits (particularly that contained in the LEP) were the only development standard issues raised by the Council in its assessment of the original modification proposal, the fact that the amended modification application as reflected by the plans in Exhibit A is now completely compliant means that there are no development height related control issues standing as impediments to approval of the modification now proposed.
With respect to all other development control compliance matters, the assessment by the Council's development assessment planner of the amended modification application was tendered as part of the Council's bundle (Exhibit 6 behind tab 16). This assessment report contains a compliance table (at folios 259 and 260) that shows that the now amended modification application complies with all applicable controls arising from either the Policy or the LEP.
It therefore follows that there are no development standard compliance issues with the now amended proposal.
ACOUSTIC ISSUES
The original modification application was accompanied by an acoustic report from Mr Gaussen. This report was tendered and became Exhibit E. This acoustic report makes it clear that, based on sound power measurements and relevant locations in the public domain, the acoustic shielding of the proposed plant room and its proposed location on the roof of the building will not emit any noise or vibration that will be non-compliant with standards set by the Environment Protection Authority (the EPA) at any relevant noise receiver location. In addition, the Council tended a letter from Mr Cooper, the Council's acoustic consultant (Exhibit 6 behind tab 12). Mr Cooper had undertaken a critical analysis of Mr Gaussen's report concerning the amended modification application.
The applicant had Mr Gaussen prepare a response to Mr Cooper's critique and that response was tendered as Exhibit D.
I have carefully read the material contained in these documents dealing with acoustic issues. It is clear from their terms that there will be no non-compliance with the relevant acoustic standards set by the EPA by this development as proposed to be modified in the amended application being considered by me.
There is, therefore, no acoustic basis upon which I could refuse to give effect to the consent orders proposed by the parties.
CONDITIONS OF CONSENT
For completeness on the acoustic issue, I should refer to relevant matters contained in the consolidated conditions of consent that will apply to the proposed development as a consequence of approval of these consent orders.
First, I observe that it is a long-standing legal requirement that I am obliged to presume that a development consent that is granted subject to conditions will have those conditions obeyed during the life of the development that is subject of the approval.
Second, although it is also a self-evident truth, development consents run with the land and are not consents issued solely to the benefit of the person or entity that made the original application. This means that the modified conditions of development consent that will applies a consequence of my approval of these consent orders will continue to apply during the life of the development - no matter who might be the owner or operator of the aged care facility that has been approved.
Having made those observations, I record that new conditions Part C condition 13 and Part G conditions 8 and 34 coupled with the existing conditions (Part H conditions 5 to 9) in the modified, consolidated conditions of development consent that comprise Annexure B to the proposed consent orders deal with and impose a legal obligation to observe the relevant acoustic requirements including those set by the EPA.
This is both the usual and appropriate fashion for dealing with such matters.
CONCLUSION
It therefore follows that, having considered the matters raised by the objectors in the written objections to the modification application (to the extent that they do, in fact, address matters relating to the now amended modification proposal rather than raising objections of a more general nature that are no longer relevant as a consequence of the orders arising as an outcome from the conciliation conference presided over by Hussey AC) and the oral evidence given by Mr Norris (again, confined to the extent to which it related to the now amended modification application), I am satisfied that the now amended modification application is compliant with all relevant development standards and, relevant to the acoustic concerns raised by the objectors, subject to appropriate conditions of development consent.
There is, therefore, no proper basis upon which I could require some further amendment to the modified proposal let alone refuse the modified proposal in its entirety.
ORDERS
It therefore follows that the orders that I should make, by consent, are those proposed by the parties as tendered in Exhibit 2.
The detailed terms of the orders and their annexures (the specific modifications to the conditions of consent as Annexure A and the consolidated modified conditions of consent as Annexure B) should be made with me expressly noting that they remain in the terms as circulated to the objectors as a consequence of my directions given at the hearing on 18 May.
The orders of the Court, by consent, therefore are:
(1)The Appeal is upheld.
(2)Modification Application No DA10.2013.248.1/1 to modify Development Consent No DA10.2013.248.1 for the purposes of adjustment to window locations, relocate bin store, amend the roof ridge line, confirm and amend the roof plant platform and screening and relocate the underground cooling pit and grease arrestor pit at 5 Henson Street, Summer Hill is determined by approving the modifications as set out in Annexure A;
(3)As a consequence of order (2), Development Consent No DA10.2013.248.1 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and
(4)The exhibits, other than Exhibits A, B, C, D, 2 and 4, are returned
Tim Moore
Senior Commissioner
10126 of 2015 Moore (C) (155 KB, doc)
Won v Ashfield Council [2015] NSWLEC 1201
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