Land and Environment Court of New South Wales CITATION : Meriton Apartments Pty Ltd v Ashfield Council [2001] NSWLEC 195 APPLICANT: Meriton Apartments Pty Ltd PARTIES : RESPONDENT: Ashfield Council FILE NUMBER(S) : 10235; 10237; 10209 of 2001 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- Consent orders in class 1 proceedings-Evidence of objector's concerns received and considered. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: DATES OF HEARING: 6 August 2001 EX TEMPORE JUDGMENT DATE : 08/06/2001 APPLICANT: Mr R de Carvalho, Solicitor SOLICITORS Legal Counsel Meriton Apartments Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT: Mr P Jackson, Solicitor SOLICITORS Pike Pike and Fenwick JUDGMENT: IN THE LAND AND Matter No. 10235, 10237 and 10209 of 2001 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 6 August 2001 MERITON APARTMENTS PTY LTD Applicant v ASHFIELD COUNCIL Respondent JUDGMENT Bignold J: 1. The Court has before it three appeals pursuant to the Environmental Planning and Assessment Act 1979, s 96 relating to the same development, being a major residential with office and retail, component development of property known as 209 Liverpool Road, Ashfield. 2. The Council granted development consent to the major development in December 2000. The consent was granted subject to many conditions and the present appeals relate to applications to modify some of those conditions that were imposed in the original grant of approval on 20 December 2000. 3. The parties have appeared before the Court today having notified it recently that agreement had been reached between the parties as to the disposal of the three proceedings. That agreement, which has been reduced to writing (Exhibit 2 in the proceedings) contemplates the upholding of the appeals pursuant to s 96 of the Environmental Planning and Assessment Act and the granting of the modification sought in the case of each appeal. 4. The document, being the draft consent orders, deals compendiously with all three appeals. But for the fact that a number of owners of properties geographically proximate to the development site have notified the Council that they wish to be heard, the Court would have readily adopted as appropriate, the solution reached between the parties, as reflected in the consent orders, the Council having notified all persons who may have been affected by the proposed modifications of the Council's change of decision, namely to enter into consent orders with the Applicant compared with Council's original decisions to refuse each of the modifications sought. 5. In accordance with the Court's Practice Direction requirements for notification, the Council's Solicitor notified and submitted draft consent orders to persons who had objected and informed them of the day's proceedings. Mr Jackson, on behalf of the Council, has helpfully presented the Council's case by calling a representative of the five property owners concerned, Mr Katsintonis, who was given evidence of the concern of the group of five owners who commonly enjoy right-of-way access off Holden Street to the rear of their properties, numbered respectively 217A, 217, 215, 213 and 211 Liverpool Road. Those premises are developed by commercial/retail structures and utilise the right-of-way access over part of the development site, physically in the form of a laneway some six metres wide to provide for deliveries and loading and unloading facilities for their shops and commercial premises. 6. The original development consent had imposed a number of conditions relevant to this right-of-way land. In particular, conditions 7 and 8 were imposed, and allied conditions relating to physical works in Holden Street, upgrading the roadway in consequence of this major development were also imposed. 7. The scheme of the original conditions 7 and 8 can be noted as follows. Condition 7 acknowledged the existence of the right-of-way providing access to the Liverpool Road properties. The condition went on to provide for that land to be dedicated to the Council and the Council agreed to accept it upon stated terms including the fact that the costs of construction of the land were to be borne by the developer and that the Council would not be required to pay any compensation and that the consent of the proprietors of the right-of-way entitlement would be required. This last requirement was imposed because the dedication contemplated the extinguishment of the right-of-way entitlements and their substitution by the dedication of the land to the Council as a public road. This would mean, of course, that the existing five properties enjoying the right-of-way entitlement would, under the proposed arrangement, have rights in common with any member of the public to use the property, although realistically the fact that the land would become a public road would confer special benefits upon them as being the owners of land with a boundary to the proposed public road land. 8. Condition 8 was a related condition of the original approval which declared that in the event that dedication did not occur, the site would maintain the vehicular and pedestrian right-of-way to the rear of the properties and this would be shown on the land title particulars. 9. In the proposed conditions, the subject of the agreement between the Council and the developer, there has been, what I would describe, as a minor change to the original conditions. 10. Condition 7 (as recorded in Exhibit 2) more emphatically recognises the existing right-of-way and the entitlement of the five properties having the benefit of it. It too requires the reconstruction of the pavement according to the Council's design specification at the cost of the developer. It too contemplates the possibility of the land, following the reconstruction of the pavement and the like, becoming dedicated to the Council as a public road at no cost to the Council but such possibility is predicated upon the approval in writing being obtained from all owners of the right-of-way. 11. In consequence of condition 7 emphatically recognising, preserving and vouchsafing the right-of-way interests of the five property owners, Condition 8 under the proposed substituted conditions has been deleted which, in my respectful opinion, is both a logical and reasonable response to the redraft of Condition 7. 12. I should note that in the main, it is only Condition 7 which is the subject of concern expressed by Mr Katsintonis on behalf of the five proprietors of the properties in Liverpool Road having the benefit of the right-of-way access. 13. Mr Katsintonis has given evidence today expressing concern, on behalf of his mother who owns 217A Liverpool Road and the four other owners of adjacent properties also enjoying the right-of-way, that in some fashion or another (unspecified) their existing entitlements may be impaired either in the physical realm or in the legal realm by the proposed changes to the conditions of consent. It is to be noted that none of the landowners has obtained legal advice concerning their rights and this hearing has been conducted on the basis that the rights-of-way exist over this part of the development site and have existed for some considerable time benefiting the five properties having frontage to Liverpool Road. 14. In my judgment, whereas I can readily appreciate that lay persons might be apprehensive about the future preservation of their present right-of-way interest, I am entirely satisfied that Condition 7, in the proposed substitute condition, is amply respectful of the existence of the right-of-way and in no way impairs that legal entitlement. 15. Indeed, as Mr De Carvalho, Solicitor for the Company rightly said, it would be difficult to conceive of a condition of development consent having such an effect but, in any event, the proposed condition as worded clearly, respectfully recognises the existing right-of-way and goes out of its way to ensure that that right-of-way interest is not only preserved but is ultimately rendered more effective, in a practical way, inasmuch as the pavement is to be reconstructed to higher road standards. 16. Accordingly, although I understand a layman's concern, I am entirely satisfied that nothing in proposed Condition 7 (combined with the deletion of existing Condition 8) will imperil the legal entitlement of the right-of-way owners. Indeed, as I understand the scheme, as a matter of physical arrangements, the pavement will be improved and presumably, the existing entitlement will be enhanced thereby. 17. There was some concern expressed by Mr Katsintonis about a turning circle further within the development site which is utilised as an adjunct to the right-of-way but this matter has not been explored. Its preservation or continuance in the future is, of course, dependent upon the right-of-way entitlements. To the extent to which any entitlement is conferred then the position remains unchanged by anything in the proposed modification arrangements and to the extent that no such entitlement exists (that is that it has simply been enjoyed as an adjunct to the right-of-way use without any legal entitlement so to do) that position remains unchanged. It would be inappropriate for a modification of the conditions of consent to take beyond that which currently exists any existing entitlement. Accordingly, that aspect of Mr Katsintonis' concerns, in my view, do not require any solution to be provided in the present proceedings. 18. Another matter that he raised concerned the fact that the Water Board sewer line passes through the development site at the rear of the same five premises that enjoy the right-of-way entitlement and that only one of those premises has an easement over that part of the development site affected connecting to the Water Board's sewer and that the other four properties do not have any formal easement arrangements. 19. It is true that in a letter from Meriton Apartments to the owners of one of the properties, Corporate Counsel for the Company indicated a possible benefit if the right-of-way land was converted into a dedicated public road by referring to upgrading of the sewer line as part of the reconstruction process together with the entitlement for the pipes to remain in the public road. 20. That is a matter that the owners of the five properties have not taken up, but it is a matter which no doubt they and the developer may continue to consider in their negotiations. It may be that it provides an inducement for the owners of the properties to ultimately agree to the dedication of the land if they can secure greater entitlements than they may presently have, but that is a matter entirely for their decision. 21. Mr Jackson, on behalf of the Council, rightly adverted to the possibility that there might be some rights acquired by prescription over the development site in relation to the Water Board sewer connection of the five properties. Again that is not a matter that can be explored in these proceedings but I do acknowledge that that too is a possible entitlement which the owners of the five properties may wish to pursue. 22. This is a matter which ultimately is extraneous to the case before the Court and the Court therefore must leave the matter to the parties for their ongoing negotiation (that is the owners of the properties concerned and the developer). 23. Mr Katsintonis also mentioned a couple of other matters, especially the likely removal of the existing concrete structure, which appears to have been built on Holden Street, when it was created some twenty years ago, adjacent to his mother's property on the western wall and expressed concern about the works of upgrading Holden Street (including footpath provision and beautification) affecting the structural stability of the wall in consequence of the removal of that structure. Again that is a matter that I am confident will be undertaken by the developer in recognition of its obligation to carry out works in a manner that does not adversely affect existing properties. 24. Having had the benefit of Mr Katsintonis' evidence on behalf of the five property owners I am entirely satisfied that nothing in the agreed settlement reached between the Council and the developer, as reflected in the consent orders, adversely impacts upon any existing legal entitlement of the five property owners enjoying the benefit of the right-of-way access. I am satisfied that the reconstruction works on that access way together with the improvements to Holden Street (both in terms of construction and site beautification) will physically improve that existing entitlement. 25. Any question arising in the future of whether the right-of-way land is to be dedicated as public road to the Council, ultimately lies entirely within the power of the five property owners acting either individually or collectively. It appears to me that they are in as strong a bargaining position with the developer and the Council as they could wish to be and that there is no way in which their existing entitlements can be impaired by the settlement result reached between the parties in these proceedings. 26. Accordingly, for the foregoing reasons, I consider it appropriate to adopt the agreed outcome in the proceedings as presented by the parties' draft Consent Orders in Exhibit 2 (which exhibit should remain with the Court papers together with Exhibit 1 which contains the detailed documentation of the Council's consideration of the three matters raised by the three appeals together with its appropriate notification to objectors as required by the Court's practice). 27. For all of the foregoing reasons, by consent, I make the orders as set forth in Exhibit 2 which I have signed and will place with the Court papers. I order the return of Exhibits 3 and 4 (which come from Mr Katsintonis). 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