Land and Environment Court New South Wales Medium Neutral Citation: Romic v Fairfield City Council [2021] NSWLEC 1406 Hearing dates: 20 May 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders that: (1) The applicant is granted leave to amend the Development Application and rely on amended plans being Plan of Subdivision of Lot 29 and Lot 30 in DP31162 prepared by Michael Warren Basile, Surveyor's Ref: 171061rev 3 – dated 12 July 2021. (2) The Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent allowed by the Court on 20 May 2021 in the agreed sum of $8,000 within 21 days of the date of this order. (3) The appeal is upheld. (4) The Development Application No. 286.1/2019 seeking approval for the Torrens title subdivision of two (2) existing lots to create five (5) residential allotments, including demolition of an existing dwelling house at 8-10 Kaluna Avenue, Smithfield legally described as Lots 29 and 30 in Deposited Plan 31162 is approved subject to conditions of consent at Annexure "A". (5) Return Exhibit 2. Catchwords: DEVELOPMENT APPEAL – Torrens title subdivision – vehicular access to battle axe lots – heritage interpretation – waste – weight given to evidence from party as an expert to the proceedings – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Fairfield Local Environmental Plan 2013, cl 2.7, 4.1, 4.6, 5.10 and 6.6 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55 – Remediation of Land Uniform Civil Procedure Rules 2005 Cases Cited: Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 Wehbe v Pittwater Council [2007] NSWLEC 827 Texts Cited: Australian/New Zealand Standard AS/NZS 2890.1:2004 Parking Facilities Fairfield Citywide Development Control Plan 2013 Fire and Rescue NSW, Access for Fire Brigade Vehicles and Firefighters Version 5.0, (October 2019) Category: Principal judgment Parties: Momcilo Romic (Applicant) Fairfield City Council (Respondent) Representation: Counsel: R O'Gorman-Hughes (Applicant) A Seton (Solicitor) (Respondent) Solicitors: LCI Legal (Applicant) Marsdens Law Group (Respondent) File Number(s): 2020/234111 Publication restriction: No Judgment 1. COMMISSIONER: This is Class 1 - Development Appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an Appeal against the actual refusal of a development application No. 286.1/2018 which seeks consent for the demolition of an existing dwelling house and the Torrens title subdivision of the site to create 5 lots (the Proposed Development) at 8 – 10 Kaluna Avenue Smithfield legally described as Lots 29 and 30 in DP 31162 (the Site). 2. The proceedings commenced with an inspection of the Site from the roadside and the experts took measurements of the location of the existing electricity pole on the road reserve adjacent to the Site relative to the Site boundary. The parties reached agreement as to these measurements and the Applicant sought to rely on amended plans and agreed to conditions of consent regarding, inter alia, the existing electricity pole and its relocation at the cost of the applicant to the east of the extended alignment of the eastern boundary of the Site, to the satisfaction of Endeavour Energy (refer to consent condition B14). 3. The Respondent did not oppose the granting of approval on the basis of the Applicant relying on amended plans (Exhibit A) and agreeing to draft/proposed conditions (Exhibit 6). 4. The case was in effect resolved between the parties by this agreement with the Applicant to relocate the existing electricity pole. I will address the matters raised by the Respondent in the Statement of Facts and Contentions filed 28 September 2020 (SOFAC) (Exhibit 1) and I will briefly address each of them and how they have been resolved including the satisfaction of any jurisdictional prerequisites. Vehicular Access 1. The first contention relates to Vehicular Access and concerns were raised regarding the width of the battle axe access carriageway and the controls in Chapter 14 of Fairfield Citywide Development Control Plan 2013 (FDCP). The parties relied on the evidence contained in the Joint Expert Report prepared by Abdul Mohammad for the Applicant and Thomas Steal for the Respondent and filed 5 May 2021 (JER Traffic) (Exhibit 4). 2. The revised plans include a modification to the width of the right of carriageway and it is agreed that the proposed access driveway width is now variable from 4.1m (at the narrowest point for a length of approximately 33m)) and 6.0m along the lot 1 and lot 2 frontage (page 4 JER Traffic). 3. In relation to emergency access Mr Mohammed refers to section 7.1.2 of the Traffic Expert: Access for Fire Brigade Vehicles and Firefighters Version 5.0 issued by Fire and Rescue NSW (Access for Fire Brigade Vehicles) and he states that it "recommends the following: Along a straight section of the carriageway, a minimum of 4.5m wide carriageway should be provided." (p 5 JER Traffic). "Section 7.3 of the Access for Fire Brigade Vehicles defines constricted access as a narrow pinch point around an immovable object (eg fence, trees etc) that provides less than 4.5m. Section 7.3.2 allows to have a 3.2m wide carriageway at the constricted access provided the constricted access is not longer than 50m." (page 6 JER Traffic). 1. I note that the swept path assessment concluded that the arrangement/geometry of the proposed right of way is suitable to service a standard Medium Rigid Vehicle. 2. The experts agree at page 6 of the JER Traffic that the revised plans will meet the requirements of the Access for Fire Brigade Vehicles and will therefore provide adequately for fire brigade vehicles and other emergency services as well and Mr Steal notes that the increased width of 6.0m shown on the revised plans would be sufficient for occasional use by delivery vehicles (ie short term parking within the easement whilst delivering or picking up items). 3. In relation to achieving two-way passing requirements of AS2890.1:2004 Parking Facilities the experts agree that the revised plans achieve these requirements and agree that a condition of consent should include that the sight line requirements of AS2890.1 Figure 3.3 should be kept clear of any obstruction. (page 9 JER Traffic) 4. The FDCP expressly provides at clause 1.9 that "there may be circumstances where a variation to a provision within the DCP is warranted." 5. Chapter 14 of the FDCP deals with Subdivision. The Respondent drew the Court's attention to the relevant general objectives of subdivision and provided in clause 14 (a) and (e), namely: "a) To encourage a high standard of design at both subdivision stage and for subsequent development of newly created lots." "e) To ensure that where appropriate, the subdivision takes into account the likely future use of the land." 1. Clause 14.4 provides controls for subdivision of land in residential areas and clause 14.4.2 relates to land in zone R2 Low Density Residential and addresses battle axe lots, local roads, subdivision criteria for multiple battle axe lots including the width of the access carriageway. Although the specific control for the access carriageway width is not strictly met the Respondent is satisfied that the objectives above are satisfied by the amended Plan of Subdivision (Exhibit A) and the agreed proposed Conditions of Consent (Exhibit 6). 2. Having considered the evidence of the Traffic experts and the submissions of the parties I am satisfied that the objectives of chapter 14 of the FDCP are satisfied and that the concerns raised by the Respondent in the SOFAC regarding vehicular access are resolved by the amended Plan of Subdivision (Exhibit A) and the agreed proposed Conditions of Consent (Exhibit 6). Waste Management 1. The second contention concerns Waste Management and is dealt with in the Joint Expert Report prepared by Garry Dickens for the Applicant and Stuart McDonald for the Respondent and filed 12 May 2021 (JER Waste) (Exhibit 5). 2. The concern raised by Council is focused on the safe and practical method of collection of waste bins as the Site is located at the end of a cul-de-sac. 3. The parties have agreed to and have incorporated the suggested conditions of consent contained in the JER Waste at page 10 at par 51. 4. I am satisfied that proposed consent conditions B29 and B30 address these waste management concerns and they provide as follows: "B29. Waste Collection Services No bins or bulky waste shall be presented to the street. All waste collection services shall be undertaken within the subject premises. Accordingly, all bins are to be placed along the eastern boundary of the proposed right of carriageway for collection. B30. Waste Management Agreement Prior to the issue of a Subdivision Certificate, the applicant shall enter into a written agreement between Fairfield City Council and the owners of the subject premises indemnifying Council with respect to the waste collection services conducted within the premises." Suitability of the site and Overdevelopment 1. The third contention is titled "Suitability of the site and Overdevelopment" and the parties rely on the Joint Expert Report prepared by Momcilo Romic for the Applicant and Stuart McDonald for the Respondent filed 14 May 2021 (JER Planning) (Exhibit 3). 2. I raised with the parties the fact that the Applicant is also the author of the JER and of the Statement of Environmental Effects insofar as there may be a perceived or actual conflict of interest in the context of the terms of Schedule 7 Expert witness code of conduct of the Uniform Civil Procedure Rules 2005. 3. The Applicant submits that as the parties have reached an effective agreement and that there are no matters in contest, the Court may give little weight to the evidence of Mr Romic and in fact may rely simply on the evidence of Mr McDonald. The Applicant referred to the decision of Beazley J and Young JA in the matter of Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 at [53] which may be considered analogous to the extent that the expert witness in that matter did not refer to the Expert Code of Conduct. 4. I accept that I can rely on the evidence of Mr McDonald and for the avoidance of any doubt have placed little if any weight on the evidence of Mr Romic contained in the JER Planning (Exhibit 3). Insofar as the Statement of Environmental Effects plays a role in these proceedings, I note that there is no contest between the parties following the amendment of the Plan of Subdivision and the agreed proposed Conditions of Consent so any remaining concern as to the authorship of that document effectively falls away. My approach may have been significantly different had the matter remained contested and if there had been any significant reliance on the evidence of Mr Romic. 5. I accept that the relevant evidence of Mr McDonald is contained within paragraphs 18 to 22 of the JER Planning which I include in full in the circumstances of these proceedings: "18. In summary, both the traffic joint report and the waste joint report agree with that both the general vehicular access requirements and the specific waste management arrangements for the site, will be satisfied by the application being amended as stated in those respective reports. I consider that Contention 3 (b) is potentially capable of being resolved subject to the production and review of a final draft plan of subdivision that is fully dimensioned and documented and which reflects the concept put forward by the applicant and included as Annexure C to the traffic joint expert report filed on 5 May 2021. 19. There will also be the need for relevant conditions of consent, including deferred commencement conditions, as discussed in the respective traffic and waste joint reports subject to my comments above that suggest some changes. 20. Ultimately it will be the Court's opinion regarding vehicular access (Contention 1 and tied in with Contention 3(b)) and waste management (Contention 2 and tied in with Contention 3 (b)) that will determine the suitability of the site for the development proposed and the merit of the development. 21. With regard to Contention 3 (c) I have detailed above the constraints of the site and as detailed in Contentions 1 and 2, these constraints result in further subdivision of existing Lots 29 and 30 presenting challenges in terms of vehicular access and waste management, principally arising from the very narrow frontage and the long and irregular shape of Lot 30 in particular. In my opinion the proposal filed with the Court is not suitable on the constrained site. Subject to the vehicular access and waste management arrangements being resolved as discussed above in my comments, and a resultant fully dimensioned draft plan of subdivision being prepared for final consideration then this contention may also be resolved. 22. With regard to Contention 3 (d), subject to the vehicular access and waste management arrangements being resolved and a resultant fully dimensioned draft plan of subdivision being prepared for final consideration, then this contention may also be resolved." 1. Having determined above that the vehicular access and waste management issues have been resolved and for the reasons identified by Mc Donald, I am satisfied that the Site is suitable for the Proposed Development. Public Interest and Precedent 1. The fourth contention relates to the Public Interest and Precedent and I am satisfied that the Proposed Development is in the public interest because the concerns raised by the Respondent have all been resolved by the amended Plan of Subdivision and the agreed proposed Conditions of Consent. Similarly, there is no longer a concern that the Proposed Development creates any undesirable precedent. Heritage cl 5.10(4) of Fairfield Local Environmental Plan 2013 (FLEP 2013) – condition of consent. 1. The final contention was identified in the SOFAC as a contention that can be resolved by conditions which relates to Heritage. The contention concerns a condition of the prior development consent and I note the following background from the SOFAC: 1. On 20 March 2019, the Respondent approved Development Application No. 348.1/2017 for the demolition of the heritage item known as "Kaluna Cellars" and a staged 4-lot Torrens title subdivision on the Site subject to a deferred commencement condition which required the preparation of an on-site heritage interpretation plan. 2. On 9 July 2019, the Respondent issued correspondence to the Applicant advising the matters specified in the deferred commencement condition had been satisfied and that the consent was then operational. 3. Implementation of the on-site heritage interpretation plan is integral to ensure an acceptable heritage outcome on the Site, which remains listed as a heritage item. 1. I am satisfied that the concerns raised by the Respondent in the SOFAC have been appropriately addressed and resolved with the inclusion of agreed Consent condition number B24 titled "Reports Certification" which provides as follows: "Prior to the issue of the Subdivision Certificate written certification from a suitably qualified person shall be submitted to the satisfaction of Council stating that all works, methods, procedures, control measure and recommendations approved by Council in the following report have been completed as appropriate: i) Final On-site Heritage Interpretation Plan prepared by Romic Planning, Revision 2 dated 7 June 2019. Where any of the above documents conflict with another condition of this consent, that other conditions shall prevail to the extent of the inconsistency." Jurisdictional prerequisites 1. Clause 7 of the State Environmental Planning Policy No 55 – Remediation of Land relevantly provides as follows: 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. 1. The parties rely on the consideration of cl 7 of SEPP 55 in the previous development consent for a 4 lot Torrens title subdivision on this Site as detailed in the SOFAC at [18] as follows: "On 20 March 2019, the Fairfield Local Planning Panel approved Development Application No. 348.1/2017 for the demolition of the remnants of "Kaluna Cellars" and a staged 4 lot Torrens title subdivision on 8 and 10 Kaluna Avenue." 1. The Respondent does not raise any concerns and relies on the agreed conditions of consent. However, I do note that cl 7(1)(b) refers to the purpose for which the development is proposed to be carried out and, in this matter the proposed development is a Torrens title subdivision. The parties referred the Court to the decision of Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 where at [28] he refers to subdivision as follows: "28 As to the latter, subdivision itself does not involve any use of land: see Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250; Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 34 LGRA 151 at 152 and Lyne v Moree Plains Shire Council (1999) 110 LGERA 120. Furthermore, consent for subdivision of land is consent for subdivision simpliciter and does not import any approval for subsequent use for any purpose. In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246 at 250, Sugerman J noted: "Approval of subdivision is approval of subdivision simpliciter and not approval of subdivision for any particular purpose, or with a view to the erection of some particular sort of building, either in the sense that it alone restricts the owners or in the sense that, by approving the particular subdivision, the Council must be taken to have approved of some particular sort of building being erected upon or some particular use being made of, the land"." 1. I am therefore satisfied that potential contamination of the Site was adequately addressed and considered in the previous development consent granted for the 4 lot Torrens title subdivision and in any event, I am satisfied that the land is suitable for the purpose for which the development is proposed to be carried out, namely a 5 lot Torrens title subdivision. 2. In addition to cl 5.10 of the FLEP regarding heritage, there are a number of other jurisdictional matters provided in the Fairfield Local Environmental Plan 2013 which have been satisfied as follows: 1. The objectives of the R2 Low Density Residential zone have been considered in the assessment of the Proposed Development as required by cl 2.3(2). The R2 Low Density Residential objectives are included in the Land Use Table of the FLEP as follows: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. 1. The Proposed Development is permitted with development consent as sought by the Applicant pursuant to cl 2.6. 2. The Proposed Development is subject to minimum subdivision lot size which is to be calculated excluding the area of any access handle (cl 4.1(3A)) and I am satisfied that the Plan of Subdivision (Exhibit A) shows the area of each lot excluding the access handle and that the area complies with the minimum lot size development standard specified in the Lot Size Map, namely 450m2. 3. As part of the Site is at or below the Flood Planning Level as defined in cl 6.3(5) the provisions of cl 6.3 apply and the Court, as consent authority must be satisfied, as listed in cl 6.3(3), that the development: (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding. 1. The Respondent does not raise any concern in relation to flooding and refers the Court to a number of conditions of consent which deal with and address the matters listed in cl 6.3(3) namely consent condition number B36 which provides: "B36. Restriction on Use – 100 Year Flood Level A Restriction on Use is to be created over proposed Lots 1, 2, 3, 4 and 5 pursuant to Section 88 of the Conveyancing Act, 1919, requiring that the Designated Floor Level for habitable development be at least 0.5m above the 100 year flood level." 1. Clause 6.5 relates to maintaining terrestrial biodiversity and part of proposed lot 5 of the Site is land identified as "Biodiversity" on the Terrestrial Biodiversity map. Accordingly, to the extent of the Proposed Development I have considered the matters listed in cl 6.5(3) and do not consider that any measures are required to avoid, minimise or mitigate any adverse impacts. I agree with the parties and am satisfied as required by cl 6.5(4) that the Proposed Development is designed, sited and will be managed to avoid any significant adverse environmental impact. 2. All of the proposed lots including part of proposed lot 1 is land identified as "Riparian area" on the Riparian Lands and Watercourses Map which invokes the provisions of cl 6.6. Accordingly, to the extent of the Proposed Development I have considered the matters listed in cl 6.6(3) and do not consider that any measures are required to avoid, minimise or mitigate the impacts of the development. I agree with the parties and am satisfied as required by cl 6.6(4) that the Proposed Development the development is designed, sited and will be managed to avoid any significant adverse environmental impact. Orders 1. The Court orders that: 1. The applicant is granted leave to amend the Development Application and rely on amended plans being Plan of Subdivision of Lot 29 and Lot 30 in DP31162 prepared by Michael Warren Basile, Surveyor's Ref: 171061rev3 – dated 12 July 2021. 2. The Applicant is to pay the costs of the Respondent that have been thrown away as a result of the amendment of the application for development consent allowed by the Court on 20 May 2021 in the agreed sum of $8,000 within 21 days of the date of this order. 3. The appeal is upheld. 4. The Development Application No. 286.1/2019 seeking approval for the Torrens title subdivision of two (2) existing lots to create five (5) residential allotments, including demolition of an existing dwelling house at 8-10 Kaluna Avenue, Smithfield legally described as Lots 29 and 30 in Deposited Plan 31162 is approved subject to conditions of consent at Annexure "A". 5. Return Exhibit 2. ………………………. E Espinosa Commissioner of the Court Espinosa C Annexure A (223416, pdf) Espinosa C Plan (164668, pdf) ********** Amendments 26 July 2021 - Amended the "Date of orders:" and "Decision date:" to read "16 July 2021" instead of "16 June 2021". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2021