Ducking and weaving to consent

Adrem Nominees PtyLtd v Auburn City Council [2012] NSWLEC1043

Earlier this week we looked at the conditions of consent relating to the installation of security cameras on a domestic residence. We continue the theme of conditions of consent and appeals against them, and review a decision which considers the appropriateness of a condition of consent requiring the creation of a proposed 5 metre wide easement and conditions restricting the temporary placement of building materials on the roadway.

The development to which the conditions attached
The base development was for alterations and additions to an existing industrial development, including the construction of five new buildings and various associated works on Parramatta Road in Auburn.

Council required through its conditions an easement for public access to be created over a strip of land approximately 5 metres wide along the northern boundary within the riparian zone adjacent to Duck River.

This arose from the Auburn Local Environmental Plan 2010 (LEP) which provided that development consent must not be granted unless the consent authority is satisfied that ‘opportunities to provide continuous public access along the foreshore and to the waterway would not be compromised’. The opportunities to realise these public access opportunities were held to be contained within the Auburn Development Control Plan 10 (DCP10), which included as one of its objectives ‘to promote industrial development which is both functional and attractive in the context of its local environment through appropriate design’. Section 3.3 of the DCP10 stated in relation to side and rear setbacks:

Development adjacent to Duck River shall provide a 5m easement for public access within the foreshore building line area along Duck River. This easement shall be established under a Section 88B instrument and shall be registered with the NSW Land and Property Management Authority.

There were also associated controls within the lower Duck River‑Riparian Management Land (RMP). The RMP had as one of its objectives ‘foreshore public access’.

Applicant’s response
The applicant responded to the condition by advising that it was prepared to consider other arrangements for making the 5m strip of land available, but disagreed that there was any relevance and benefit to the subject development because any increased public access was likely to reduce security and there would not be any material amenity benefit arising.

Court’s findings
The Court held that there was a considerable amount of strategic planning for the environmental management of the Duck River riparian zone as reflected in the LEP, DCP and associated controls. The Court considered it reasonable that the easement be provided as part of the development consent, noting that the DCP requirement for an easement has been consistently applied to other similar developments along Duck River. Accordingly, the Court specifically rejected the applicant’s submissions that there was no ‘relevance or benefit to the subject land’.

The Court considered the relevant cases on the validity of conditions including Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65, which also looked at the creation of a right‑of‑way by conditional consent. In that case the Court considered whether the condition related to a matter referred to in s 79C(1), and secondly whether such a matter is relevant to the particular development for which development consent has been or is proposed to be granted. In this matter, the Court held the condition referred to the section 79C matters for consideration – the LEP and DCP provisions.

The Court also looked at Botany Bay Council v Saab Corporation Pty Ltd [2011] NSWCA 308. In that matter the Court of Appeal held that Section 80A:

empowers the consent authority to impose a condition if ‘it relates to any matter referred to in s 79C(1) of relevance to the development the subject of the consent’

The Court of Appeal in that case then noted that:

Section 79C(1) identifies general matters for consideration by the consent authority in determining a development application. Those matters include ‘the likely impacts of that development … on both the natural and built environments and social and economic impacts in the locality’: s 79C(1)(b). These will obviously involve matters of evaluative judgment for the consent authority.

Ultimately, the Court of Appeal referred to Gummow and Hayne JJ in Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63 as to the limit of the power where the High Court held that:

a power to attach conditions to development consent was to be understood as a power to impose conditions reasonably capable of being regarding as related to the purpose for which the functions for the responsible authority were being ascertained from the consideration of the applicable legislation and town planning instruments, rather than from ‘some preconceived general notion of what constitutes planning’. 

Against this background the Court held that achieving opportunities for foreshore access was included in the section 79C considerations. The Court held that the provision of the easement over the subject property to connect with other similar easements where the Council would subsequently provide money for the implementation of works, provided a ‘reasonable balance between the competing private and public benefits’.

Material placement
The condition imposed by the Council required various items not to be placed on the ‘footpath, roadway or nature strip’. The applicant sought a less restrictive condition allowing temporary placement of building materials on the footpath, roadway or nature strip. The Court again held the imposition of Council’s standard condition was reasonable. This was because the relevant site had several access points and careful construction planning could avoid the need for materials to be placed within the road reserve.

The Court did note that the applicant could apply for a Road Occupancy Licence for temporary use of the road area.

Word of caution
Consent authorities should not automatically assume the conditioning of an easement will always be appropriate. There are a number of cases which have ruled against conditions requiring the registration on title of binding restrictions as to user. In this regard, other cases have held that the Court is not favourably disposed to the view that restrictions on developments operating by virtue of the Environmental Planning & Assessment Act 1979 should be, or need be, supplemented or reinforced by action taken pursuant to the Conveyancing Act 1919 to create binding restrictions as to user (see Ramsay & Anor v Wingecarribee Shire Council [2011] NSWLEC 1349).

Below: Duck River (courtesy Auburn City Council)

Duck River


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