Land and Environment Court of New South Wales CITATION : Anambah Homes Pty Ltd v Maitland City Council [2006] NSWLEC 453 APPLICANT Anambah Homes Pty Ltd PARTIES : RESPONDENT Maitland City Council FILE NUMBER(S) : 10300 of 2004 CORAM: Tuor C KEY ISSUES: Development Consent :- for subdivision of land s96 application to delete conditions requiring construction of a shared pedestrian cycleway LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Maitland Local Environment Plan 1993 Anambah Homes Pty Limited v Maitland City Council [2004] NSWLEC 615; CASES CITED: Anambah Homes Pty Limited v Maitland City Council [No. 2] [2004] NSWLEC 719; Maitland City Council v Anambah Homes Pty Limited 2005 NSWCA 455 DATES OF HEARING: 04-05/07/2006 EX TEMPORE JUDGMENT DATE : 07/06/2006 APPLICANT Mr A Galasso, barrister Instructed by: Mr A Carroll, solicitor of Carroll & O'Dea LEGAL REPRESENTATIVES: RESPONDENT Mr J Kildea, barrister Instructed by: Mr G Williams, solicitor of Thompson Norrie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 6 July 2006 10300 of 2004 Anambah Homes Pty Ltd v Maitland City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal by Maitland City Council (the council) of an application under s 96 of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent (LD 00623) to subdivide land into 24 allotments at Lot 606 DP 874384, Denton Park Drive, Rutherford (the site). 2 Council approved the development application on 27 June 2000 subject to conditions. The approved application is Stage 18 of a large residential subdivision of Lot 606 known as the Anambah View Estate (the Estate), comprising about 91.1 ha. Council has approved some 12 other development applications in relation to this subdivision. The first application was approved in 1990. 3 The s 96 application seeks the deletion of Conditions 34, 35 and 36 of the Stage 18 consent. These conditions provide: Condition 34 : 2m wide shared pedestrian/cycleways are to be constructed, in accordance with Austroads "Guide to traffic engineering practice, part 14 (Bicycles), 1999", along the proposed pathways between Lots 1816 and 1815, 1802 and 1803, from there to Denton Park Drive at the eastern side of Lot 1825, across to Denton Park Drive, including a cycle refuge to cl 6.7.2.3(b) and fig 6.34. Then along the eastern alignment of the length of Lot 1825 in a southerly direction to abut Lot 1490 on DP 1005639 at the South eastern corner of Lot 1825. A second similarly constructed cycleway shall be constructed to intersect with Adam Avenue at the location of the frontage of Lot 1825 and to intersect with the first cycleway and then to continue and abut to the boundary of Lot 1490 of DP 1005639. Condition 35 : Where cycleways intersect with public roads, the cycleway shall be detailed in accordance with Council standard drawing SD73. Condition 36 : Lot 1825 shall be dedicated to the public as a reserve with the endorsement of the linen plan for precinct 18. Background 4 The site, its context and the history of the application are in the Statement of Basic Facts, the council report dated 20 June 2000 and the chronology in Exhibit 11. 5 Briefly, the Stage 18 application approved 24 allotments. One of these lots, Lot 1825, is 5.1 ha and the other lots are 750 sq m each. 6 Part of Lot 1825, to the north of Denton Park Drive, shares its west boundary with other allotments in the Stage 18 subdivision. The remainder of Lot 1825 is to the south of Denton Park Drive and adjoins allotments which have been developed as part of earlier subdivision approvals for the Estate. 7 Lot 1825 extends to the west across Adam Avenue and joins with another part of Lot 1825 which is not included in this application and has already been dedicated as open space with a cycleway under DASA 98-980. This land adjoins a public reserve. 8 Adjoining land to the east of Lot 1825 is Lot 1490 DP 1005639. This land is owned by council, is vacant and classified as operational land. 9 The s 96 application was lodged on 7 December 2003. The application was advertised and council received 26 objections to the proposal. 10 The applicant filed a class 1 appeal on 18 March 2004 against council's deemed refusal of the application (Appeal No. 10300 of 2004). 11 On 21 October 2004 the applicant filed a class 4 application seeking a declaration as to the invalidity of Conditions 34, 35 and 36 (Appeal No. 41298 of 2004). 12 Pain J granted leave for the appeals to be heard concurrently. 13 In Anambah Homes Pty Limited v Maitland City Council [2004] NSWLEC 615 and Anambah Homes Pty Limited v Maitland City Council [No. 2] [2004] NSWLEC 719, Pain J held that the imposition of Condition 36 was invalid and severable from the consent. This decision was subsequently upheld by the Court of Appeal in Maitland City Council v Anambah Homes Pty Limited [2005] NSW CA 455. 14 Pain J also dealt with the validity of Conditions 34 and 35 and found at par 33 in Anambah No 2 that Based on this reasoning, conditions imposed pursuant to s 80A(1)(f) of the current EPA Act are clearly permissible provided they are for planning purposes, are connected to the development application and are reasonable in the circumstances. The cycleway can be regarded as a public amenity connected to the development and I consider it is a matter about which conditions such as 34 and 35 may be imposed. Issues 15 Following Her Honours judgment and that of the Court of Appeal, Pain J set out the outstanding issues between the parties in the class 1 appeal. The Statement of Issues contained seven issues which can be summarised as whether: 1. On a merits assessment the provision of the cycleway required by Conditions 34 and 35 is appropriate considering the planning controls and public submissions. 2. The provision of the cycleway required by Conditions 34 and 35 would affect the development potential of Lot 1825 and its use by the public expose the applicant to risk. Planning Framework 16 The Stage 18 subdivision, including Lot 1825, is zoned Residential 2(a) under Maitland Local Environment Plan 1993 (LEP 1993). The proposal is permissible with consent in this zone. The adjoining allotment, Lot 1490, is also zoned Residential 2(a). 17 Maitland Development Control Plan No. 9 (DCP 9) applied to the site at the time the Stage 18 development application was approved and the conditions imposed. DCP 9 was first adopted in 1986. 18 On 24 January 2006, the provisions of DCP 9 were incorporated into the Maitland Citywide Development Control Plan (Maitland DCP). DCP 9 relevantly provides at cl 5.3 for land to be dedicated as public for open space. Clause 5.3.3 states: Areas of major open space shall be provided as indicated on the development control plan map. The boundaries of these areas are indicative only and are subject to survey and detailed subdivision planning. 19 Clause 5.5 refers to pedestrian and cycle facilities and relevantly provides: 5.5.1: Major shared pedestrian and cycleway paths are to be provided by the developer in the locations shown on the development control plan map. 5.5.2: Minor pedestrian and/or cycleway paths shall be provided throughout the development generally, in locations determined in consultation with Council during the course of detailed subdivision planning. These paths shall link the major pedestrian and cycleway paths with residential areas, local parks, community facilities, neighbourhood shops and schools. 20 The map in DCP 9 indicates Lot 1825 as public open space with a cycleway that passes through Lot 1825, generally consistent with the terms of Condition 34. 21 At the time the Stage 18 application was approved, the 1996 Maitland City Council Bicycle Plan (1996 Bike Plan) was the adopted plan of council. This showed the cycleway generally passing through Lot 1490. 22 The Maitland Bike Plan 2005 (2005 Bike Plan) has since been adopted. This shows the cycleway on Lot 1825. As I understand it, both these plans were publicly exhibited and adopted by council. The evidence 23 The Court heard expert evidence from Mr G Fielding, the Court-appointed town planner and Mr J Waugh, the Court-appointed traffic engineer. 24 A number of residents also gave evidence. Their main concern can be summarised as being that the long held expectation was that Lot 1825 would be open space with a cycleway. This expectation was based on the requirements of DCP 9, inquiries of both the council and sales representatives when purchasing their properties and the conditions of the Stage 18 application. A number of residents indicated that this was the reason for purchasing their property. 25 The residents acknowledged that due to the Court's previous decisions the area would not be dedicated and its future as open space was dependant upon council purchasing the land. Nonetheless, they considered that the provision of a combined cycleway/pedestrian pathway was of benefit. 26 The residents indicated that they currently used the area proposed for the cycleway and it served as a link to other areas such as the oval and the shops. It was shorter and safer and provided an off road alternative to the road. They considered that the cycleway was much safer than the road system, particularly for their children. 27 The residents held different opinions as to whether they preferred the unformed, informal path, that currently exists, to the paved path required by the conditions. They were united in their opinion that a path should be provided and that the conditions retained. 28 Mr Fielding's evidence can be summarised as being that DCP 9 provides for a major cycle and pedestrian pathway through Lot 1825. This cycleway forms an important part of the cycleway/pathway network proposed for the release area, providing a key off road link to the north-south route. 29 Mr Fielding considered that the link to Adam Avenue also provided a great deal of benefit by forming a westerly link to the existing cycleway consistent with the requirements of DCP 9. 30 Mr Fielding recognised that alternate access was available on-road around the estate but he considered this to provide less benefit when compared to the off road facility. He stated that: Sound planning principles support this approach, provided best practice design considerations are properly addressed (refer Amcord 1997, Element 1.4, Pedestrian and Cyclist Facilities). 31 Although the Statement of Issues did not refer to the Bike Plans, Mr Fielding noted that the 1996 Bike Plan required the route to go onto Lot 1490 which is inconsistent with the requirements of DCP 9. In Mr Fielding's opinion if there is an inconsistently between the Bike Plan and the DCP, the DCP should prevail. 32 Mr Fielding recognised that the catchment of the cycleway was greater than the area covered by the Stage 18 application and the earlier applications. However, he considered that the provision of the cycleway was for a planning purpose connected to the development and was reasonable. 33 Mr Fielding acknowledged that if the cycleway were to be constructed it would impact on the development potential of Lot 1825 under its residential 2(a) zoning. However, he supported the approach for urban release areas that open space should not be identified through zoning but through more detailed planning of the subdivision. 34 Mr Fielding stated: The provision of the cycleways/pathways affecting the subject land will affect the development potential of Lot 1825, and the provision of the cycleways/pathways on this site will attract members of the public onto this land. However, the requirement for the provision of these facilities on the subject land was adopted almost 20 years ago - on 22 August 1986 under DCP 9- and, as discussed above, is an appropriate requirement in an urban release area and is in the public interest. 35 Mr Fielding recognised that, as a consequence of the deletion of Condition 36, suitable arrangements would need to be made to ensure public access to the cycleway and an appropriate level of council care, control and management of the cycleway once constructed. He did not consider that because these arrangements were not yet determined this should be a reason not to impose Conditions 34 and 35. 36 Mr Waugh stated that both the 1996 and 2005 Bike Plans recognised the importance of providing a mixture of on and off road cycleways to meet the different needs and abilities of cyclists. Off road facilities are clearly safer and better meet the needs of children. He noted that Denton Park Drive provides a dedicated cycleway but the ability for cars to park within this cycleway and the level of traffic makes it a less safe and different environment to the proposed off road route. 37 Mr Waugh considered the off road north-south route to be an important part of the Bike Plans. He recognised that if it was removed it would still be possible to gain on road access but considered this would reduce the effectiveness of the Plan. He stated that the off road connection could be placed on either Lot 1825 or Lot 1490, provided the connections were maintained. 38 Mr Waugh also considered the connection to Adam Avenue to be a desirable part of the plan. He noted that it was not explicitly indicated on the 2005 Bike Plan but was on the 1996 Bike Plan. He stated that this did not diminish the merit in providing the link, particularly as the 2005 Bike Plan does not show local routes but says these are to be through planning and negotiation in development applications. 39 Mr Waugh considered that the path should be paved due to safety concerns. It would not be viable to retain its current informal nature and for it to function as a cycleway. Submissions 40 The key submission of Mr Galasso, on behalf of the applicant, is that Conditions 34, 35 and 36 are interrelated and Condition 34 is dependant upon Condition 36 for its implementation. As Condition 36 has been declared invalid and as council has not purchased Lot 1825, it remains in private ownership and is zoned Residential. His submission is that the conditions impose unreasonable public demands on private lands. 41 Mr Galasso stated there is no point in providing a cycleway on private land which the public could be excluded from using and which places constraints on the future development potential of the land. 42 Mr Galasso acknowledged the proper planning purpose in providing the cycleway, as stated in DCP 9, but submitted that cl 5.3 must be read together with cl 5.5 in that the land that is to be used by the public should be in public ownership. 43 Further, Mr Galasso submitted that if the conditions were deleted the opportunity to provide the cycleway would not be lost as it could be provided on the adjoining Lot 1490, which is owned by council, with appropriate connections over Lot 1825, particularly as this option is shown in 1996 Bike Plan. He submitted that the cycleway connection to Adam Avenue is unnecessary as it is not shown on the 2005 Bike Plan. 44 Alternatively, the cycleway could be achieved as part of a future development application for Lot 1825 and that to impose it now would unduly restrict the development potential of this land. 45 Mr Kildea's submission, for the council, was that the council intended to purchase Lot 1825 and there had been negotiations but disagreement on price. 46 Mr Kildea submitted that the conditions should be retained and that appropriate arrangements can be made to ensure public access, such as the purchase of Lot 1825 or that part of the land affected by the cycleway or through an easement. The deletion of Condition 36 does not mean that an acceptable arrangement to ensure public access to the cycleway cannot be achieved and is not a reason to delete the requirement to provide the cycleway. 47 Further, Mr Kildea stated that Pain J has established that Conditions 34 and 35 are valid and no issue was raised in the Statement of Issues that contested that they should be imposed due to the deletion of Condition 36 or the land not being in public ownership. 48 On merits, Mr Kildea submitted that the conditions are consistent with the requirements of DCP 9, which is now incorporated into Maitland DCP. The DCP imposes an obligation on the applicant to provide the cycleway on Lot 1825. The Stage 18 application is the last stage in a larger subdivision. The open space and cycleway on Lot 1825 are generated by the larger subdivision but the requirement is imposed by this approval. 49 Mr Kildea submitted that no evidence had been provided as to the loss of development potential or risk to the applicant. Such matters would not outweigh the weight to be given to DCP 9 and its implementation. The development application recognised the obligation to provide the cycleway, as the Statement of Environment Effects stated that the proposal complies with the requirements of DCP 9. Findings 50 Pain J has already determined that "the cycleway can be regarded as a public amenity connected with the development and….is a matter about which conditions such as 34 and 35 may be imposed". In reaching this conclusion, Pain J had struck out Condition 36 and declared that it was severable from the consent. 51 The invalidity of Condition 36 was based in part on s 94 being the exclusive power for a council to impose a condition requiring dedication of land free of cost. The fundamental flaw in the condition being that it required dedication free of cost, not that the land was proposed to be used for open space purposes as a cycleway. The dedication was valid provided it was purchased at value by council. 52 In dealing with the question of whether the development was substantially the same development if Condition 36 was severed from the consent, Pain J at par 14 in Anambah No 2 stated: The evidence shows that the Stage 18 Consent grants consent for the subdivision of the final stage of a large residential development, consisting of seven housing precincts, being carried out by the Applicant. Residue Lot 1825 is to be created on registration of the plan of subdivision. As set out above, Condition 36 requires that Lot 1825, which is identified as "open space" in the DCP, be dedicated to the public as a reserve. The DCP sets out the form of subdivision, including open space, for the whole of the Aberglasslyn/North Rutherford urban release area. Residue Lot 1825 is the only area of public open space identified by the DCP within the subdivision area approved by the Stage 18 consent. It is part of a wider corridor of public open space identified in the DCP adjacent to the urban release area. The importance of having this land reserved for public open space is clear and I am satisfied that council granted the Stage 18 consent on the basis that this would occur. 53 Pain J concluded at par 17 in Anambah No 2 that Condition 36 could be severed from the consent "as it was still open to council to acquire Lot 1825 for value either by negotiation or by rezoning the land appropriately and exercising its compulsory acquisition powers". The Court of Appeal upheld the decision on 16 December 2005. 54 The period of time that has elapsed is not unreasonable for the options outlined by Pain J for the land to be transferred into public ownership to have reached finality. The fact that Lot 1825 has not been acquired by council is not a reason to remove Conditions 34 and 35. Pain J clearly considered that these conditions were valid and could be imposed without Condition 36. The conditions should remain and an appropriate arrangement made to ensure public access. 55 There is clearly a planning purpose in providing the cycleway. I accept the evidence of both Mr Fielding and Mr Waugh as to the importance of providing an off road cycleway to provide a north-south link as well as the west link to Adam Avenue. 56 The cycleway is identified in DCP 9 and Maitland DCP. While there is an inconsistency between the 1996 Bike Plan and the 2005 Bike Plan I do not accept that this should override the requirements in the DCPs. Nor do I accept that it is appropriate that the obligation to provide the cycleway should be transferred to another piece of land, albeit one owned by council, or to any future development of Lot 1825. The circumstances and obligations for the future development of these lots will need to be assessed on their merits. 57 It is not unusual for a DCP to provide greater planning detail than an LEP particularly in large urban release areas. While all of the subject release area is zone 2(a) it is an established planning practice that an appropriate amount of open space and other community facilities, such as a cycleway, would be associated with a residential subdivision and identified in a DCP. 58 The provision of the cycleway will impact on the development potential of Lot 1825 but this needs to be considered within the context that the land since 1986 has been identified as open space and the residential densities appropriately distributed within the overall subdivision. Additionally, no evidence was provided as to the impact on future development of the site. 59 I therefore accept the evidence of Mr Fielding and Mr Waugh and the submissions of Mr Kildea that Conditions 34 and 35 should be retained. 60 The parties indicated that, despite the deletion of Condition 36, no change to the wording of these conditions was required. 61 The orders of the Court are therefore: 1. The appeal is dismissed. 2. The s 96 application to modify development consent LD 00623 to subdivide land at Lot 606 DP 874384 at Denton Park Drive, Rutherford, into 24 allotments, by the deletion of Conditions 34 and 35 is refused. 3. The exhibits may be returned. ___________________ Annelise Tuor Commissioner of the Court rjs 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.