Land and Environment Court of New South Wales CITATION : M & E Developments Pty Ltd v Burwood Council [2006] NSWLEC 240 APPLICANT M & E Developments Pty Ltd PARTIES : RESPONDENT Burwood Council FILE NUMBER(S) : 10809 of 2005 CORAM: Moore C KEY ISSUES: Development Application :- Consent orders Burwood Planning Scheme Ordinance 1979 Burwood Consolidated Development Control Plan LEGISLATION CITED: Development Control Plan No. 1 Grosvenor Street Development Control Plan 18 for Residential Flat Buildings . DATES OF HEARING: 14 and 17 March 2006 EX TEMPORE JUDGMENT DATE : 06/17/2006 APPLICANT Mr A Pickles, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: Mallesons Stephen Jaques RESPONDENT Ms P Hudson, solicitor Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 17 March 2006 10809 of 2005 M & E Developments Pty Ltd v Burwood Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal will be the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders and the conditions may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by Burwood Council (the council) of a review pursuant to s 82A of the Act of an earlier refusal by the council of Development Application 229 of 2004. The applicant proposes the erection of what is now to be a five residential storey development at 16-20 Grosvenor Street, Croydon (the site). 2 A number of matters were originally in contention between the parties. Those matters were resolved and the matter came before the Court as proposed consent orders. As there had not been an appropriate communication of the proposed terms and conditions of those consent orders to the resident objectors (as required by para 9 of the Consolidated Practice Direction), I gave further directions that those conditions be notified to the objectors and that a further opportunity be provided to objectors to give evidence on site relating to their concerns. 3 I am satisfied that, following that direction, the council arranged for hand delivery of those proposed conditions of consent to the objectors and that an appropriate opportunity, conformable with the provisions of the Practice Direction, has now been provided to the objectors to express their concerns to the Court. 4 A matter had originally arisen in the proceedings between a proposed second respondent and the applicant concerning the isolation of a property known as 14A Grosvenor Street, which would be between the proposed development site and an already constructed four-storey residential development to the east. That matter was settled between those parties, but nonetheless, as a matter of planning policy, questions are required to be considered as to whether or not that site would be sterilised and so sterilised in a fashion inconsistent with the objectives of the Act for the orderly economic development of land. 5 The applicant has tendered a statement of evidence from Mr Kerry Smith, a town planner. That expert statement of evidence demonstrates that there is the possibility of a reasonable development of appropriate consistency and density being achieved on 14A Grosvenor Street and it would not be left as an orphan and undevelopable site. I am therefore satisfied that there is no basis on those grounds to refuse the development. 6 During the course of the hearings, I expressed my concerns to through Mr Pickles, counsel for the applicant, that the proposed development would, however, by the width of its balconies at a number of locations on the eastern and western sides, have impacts on the development potential not only of 14A Grosvenor Street but on also of a consolidation of 22 and 24 Grosvenor Street. 7 As a consequence, the applicant has amended the plans to provide planter boxes of substantial dimension and height on those sides – effectively turning the balconies into Juliet balconies with planter boxes. I am satisfied,, on that basis that it would be an appropriate development. 8 There were also put in contention by RailCorp a number of concerns relating to the interaction of the development with the railway line immediately to the south of the site. Following evidence given this morning by Mr Tsirimiagos concerning RailCorp's position, I am satisfied that revised conditions incorporating the matters he have appropriately resolved all of the concerns – it being his evidence that that was now the position. 9 Of particular import, I note the condition to be inserted that no work will be undertaken by the applicant on RailCorp land unless a safety officer employed by RailCorp (but at the expense of the applicant) is present at all times whilst such work is being carried out. 10 In addition, one of the RailCorp conditions required vibration monitoring and a vibration monitoring plan. That condition is to be revised to ensure that if there are any adverse results coming out of the vibration monitoring there is an express requirement (for the protection of the local community) that the council is notified promptly of such exceedance, which I assume would be the subject of a cessation of work requirement in the vibration monitoring plan, that plan being a matter to be settled between the applicant, the council and RailCorp. That notification regime, in the public interest, reflects a matter raised by a resident in a late submission. 11 There were a range of other operational matters raised by residents in their concerns. I note that there is to be a condition concerning the hours of work. The other various operational concerns are ones that are traditionally dealt with (and have, in this instance, now been dealt with) by the conditions of consent. 12 It is long settled as a matter of law that I am obliged to assume that an applicant given the benefit of a development consent by this Court will abide by the conditions attaching to that consent. If an applicant does not do so then that is appropriately a matter of proceedings in another Class of the Court's jurisdiction and is not a matter for me to consider during these proceedings. 13 Prior to turning to the central matter relating to planning instruments that is at the heart of the residents' concern, there is one further matter that I should note for the purpose of this decision. That is that the applicant, through Mr Pickles, gave an undertaking that, if there were any outstanding costs arising from the appointment of Mr Shields as a Court appointed expert between the applicant and the second respondent, as Mr Shields' engagement did not proceed following the discontinuance by the second respondent, the applicant would meet any costs that Mr Shields put forward and the applicant would pursue the former second respondent for its share of those costs. 14 The single matter of some significance put in contention by the residents (but not pressed by the council) is the inconsistency between the provisions of two of the council's Development Control Plans (DCPs). 15 Although, on 31 January 2006 (effective from 28 February 2006), the council consolidated its various DCPs into a document known as the Burwood Consolidated Development Control Plan (the consolidated DCP), which, in cl 1, notes the cessation of all previous DCPs from the date of effect, there is nothing in that consolidated document which amends the provisions of any of the prior existing DCPs. They are simply imported as parts of the new development control plan. There is no inconsistency clause dealing with internal inconsistencies in the consolidated DCP, only, in cl 4, a provision dealing with inconsistencies with either the Burwood Planning Scheme Ordinance 1979 or other environmental planning instruments. 16 I therefore need to consider the concerns put by the objectors concerning the differences between Development Control Plan No. 1 Grosvenor Street (DCP 1) and Development Control Plan 18 for Residential Flat Buildings (DCP 18). DCP 1 is more restrictive than is provided for in DCP 18. DCP 1 was adopted in 1979 and was, apparently from the face of the document, last amended in 1982. DCP 18 was adopted on 6 November 2001 effective from 19 November 2001. It is therefore appropriate, as a matter of commonsense, to the extent that there is any inconsistency between them I ought, as a matter of logic, prefer the later plan as it is expressed to be operational over the relevant land in these proceedings. 17 In addition, however, there are inconsistencies internal to DCP 1. The notation on the map contained in that plan shows the area where the site is located as being subject to a three-storey, 200 persons per hectare limitation. However, such a limitation in the table attaching to the DCP applies only to residential 2(c1) zoned areas. The site is in an area zoned residential 2(c2), which, as noted in table E to DCP 1, has a permitted maximum height of eight storeys and a permitted density of 300 persons per hectare. 18 To the extent that it might be intuited from the map that there was some intention of the council to downzone the area within which the site is located, it is clear that that down zoning has not been effected since 1982. The circumstances that apply in this case is that I am left to deal with the matter in a fashion where there is a DCP that contains internal inconsistencies; a later DCP that is entirely consistent with the local environment plan expressed through the Burwood Planning Scheme Ordinance 1979 (the BPSO) as amended at 28 April 2005. 19 Whilst there is understandable concern expressed by the residents as to the inconsistency between the two documents, I am satisfied that as a matter of law, given the state of the documents and the zoning, I am obliged to have regard to DCP 18 as the relevant dominant Development Control Plan consistent with the BPSO. There is, therefore, no basis upon which I could refuse or require further amendment or modification to the proposed application as a consequence of those planning documents. 20 I am therefore satisfied that the appeal should be upheld and that Development Application 229 of 2004 should be granted development consent, subject to revised plans and conditions which remain to be settled between the parties. I am satisfied also, under the circumstances, that the exhibits which should be retained are exhibits C, D and E. 21 I therefore give the following directions: 1. The applicant is to file and serve revised plans by the close of business on 24 March 2006; 2. The respondent is to file and serve revised conditions of consent by the close of business on 23 March 2006; 3. If the conditions of consent are filed electronically by eCourt, a separate court communication is to be sent advising that these have been filed; 4. The matter is set down before the Registrar for call-over on 29 March 2006; 5. Liberty to relist before me on two days' notice of any matters if any matters require further consideration arising out of directions 1 and 2; and 6. If matters covered by directions 1 and 2 require no further consideration and the conditions of consent are filed electronically (in accordance with Practice Direction 2 of 2005), I will make orders in Chambers and vacate the call-over. Tim Moore Commissioner of the Court 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.