Reported Decision : 143 LGERA 346 Land and Environment Court of New South Wales CITATION : Falcomata v Ku-ring-gai Council (No 2) [2005] NSWLEC 459 APPLICANT R Falcomata PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10190 of 2005 CORAM: Moore C Development Application :- Planning Principle: The imposition of conditions relating to the preservation of landscaping or protection of existing vegetation Solar access KEY ISSUES: Privacy Overdevelopment . Environmental Planning and Assessment Act 1979, s 79C(1), s 80A(6), s 94 Rivers and Foreshores Improvement Act 1948, s 22C(2) LEGISLATION CITED: State Environmental Planning Policy 53 . Parsonage v Ku-ring-gai [2004] NSWLEC 347; Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62; Allen & Hawkes v Ku-ring-gai Council [2005] NSWLEC 227; CASES CITED: Newbury District Council v Secretary of State for the Environment [1981] AC 578; J James and Anastasia Markakis v Mosman Municipal Council [1998] NSWLEC 223; . DATES OF HEARING: 3 and 10 August 2005 DATE OF JUDGMENT: 08/24/2005 APPLICANT Mr S Kondilios, solicitor Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz, solicitor Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 19 August 2005 05/10189 Falcomatta Pty Limited v Ku-ring-gai Council The consequence of the Court's decision in this appeal is 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/ JUDGMENT 1 Commissioner : This appeal is one of a pair of appeals involving the two subdivided elements of a parcel of land known as 86 Livingstone Avenue, Pymble (the site). The portion of the site to which this appeal relates is known as a Lot 2. 2 It is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 (the Planning Act) against the deemed refusal by Ku-ring-gai Council (the council) of Development Application 1153/04 for the demolition of a tennis court and the construction of two detached dual occupancy dwellings. 3 During the course of the hearing, I had the advantage not only of an inspection of the site in company with the legal representatives of the parties but the opportunity to hear the evidence of the resident objectors during the course of that inspection. 4 Further, Mr I English had been appointed as the court expert arborist and Mr N Ingham was the court appointed expert town planner. They both accompanied me during the course of the site inspection and each was able to provide significant assistance to me with respect to the issues on each of the lots comprising the site during the course of that inspection. 5 In response to a question from me, Mr Marincowitz, solicitor for the council, confirmed that the council does not submit that each of the allotments is incapable of supporting two dwellings. Thus the council agrees that a development of four dwellings for the totality of the site is achievable. However, the objectors oppose the total development proposals on the basis of that they consider four dwellings to be an overdevelopment of the complete parcel of land. 6 It is clear from an examination of State Environmental Planning Policy 53 (SEPP 53), which applies to the site and, thus, to each of the two allotments on it, that a development of four dwellings (being two on each of the lots comprising the site) is permissible. 7 The principal issues which arise in this appeal and which are pressed by Mr Marincowitz as being fatally determinative are: * the question of the impact on a number of ancient Turpentine trees located on the neighbouring properties; * the impact on two Blackbutt trees on Lot 2; and * the questions of amenity and adequacy of the private open space for the residents of dwelling 1 proposed for this portion of the site. 8 I raised a separate issue of solar access for this dwelling at the commencement of the proceedings. 9 In an extempore judgment given on 3 August, I upheld the appeal with respect to the proposed two detached dual occupancies on the second lot, Lot 3, of the site – subject to a number of significant amendments to the plans to assist preserve the amenity of residents of 9 Nadine Place, being the property to the south of the site. 10 At the conclusion of the hearing of the simultaneous appeals, the applicant sought and was granted leave to prepare revised plans (including amended shadow diagrams for those revised plans) which had the effect of shifting the single storey element of dwelling 1 on Lot 2 some metres further to the west. Additional windows are to be provided in the south-eastern wall of the ground floor living area. 11 Mr English and Mr Ingham also gave further evidence, in court, on the outstanding issues with respect to the proposals on each of Lot 2 and Lot 3. The trees 12 As a consequence of Mr English's uncontradicted evidence and my inspection of the site, I am satisfied that, with respect to Lot 2, there can be no impact on the turpentine trees on the adjacent properties – provided all construction, relevantly, is confined to the already excavated area of tennis court footprint (as is proposed to be the case). 13 This arises from the fact that the tennis court footprint is already covered by a hard surface imperviously covering its area and has been, for a considerable portion of its area, already excavated into the underlying sandstone stratum. 14 It was also Mr English's uncontradicted evidence, as explained on-site and confirmed in court, that there was no prospect of any roots of any significance from the turpentine trees on the adjacent properties being located under the already established hard surface of the tennis court. 15 Finally, with respect to the to the Blackbutt trees, it was his uncontradicted evidence that, provided a pathway were moved and a proposed drainage line were relocated away from these trees, there was not likely to be any impact on them. 16 He also proposed a range of conditions designed to ensure the preservation of the trees and these conditions have been accepted by the applicant together with the two amendments to the plans proposed by Mr English. 17 As a consequence this evidence and in light of Mr English's response to question from me that, provided the builder observes all the conditions of consent, there will be no impact on the trees, I am satisfied that there will be no impact on any of the trees which would warrant refusal or further modification to the proposals for Lot 2. I do so on the basis of the long settled legal principle that a person or entity having the benefit of a development consent which is subject to conditions will observe those conditions whilst effecting the development proposed. Solar access for dwelling 1 18 With respect to be amended application, it is Mr Ingham's evidence that the amendments now effect satisfactory solar access to both the living and family rooms of dwelling 1 – that being the dwelling which was of concern to me. 19 I am satisfied that, in light of: + these amendments to the plans; + the more detailed shadow diagrams now provided with respect to the amended plans; + Mr Ingham's evidence with respect to these amendments; and + what I observed on the site the solar amenity of dwelling 1 on Lot 2 is now acceptable. 20 Even if I were to take into account the overshadowing effected by the turpentine trees located on the adjacent properties (contrary to the relevant planning principle set out in Parsonage v Ku-ring-gai [2004] NSWLEC 347 by Roseth SC), the detailed shadow impact analysis (provided in elevation) of the amended plans shows that the proposal is nonetheless still acceptable (although more marginally so). Private open space to dwelling 1 21 The movement of the single storey element to the west also has the effect of creating additional private open space on the north-eastern side of this dwelling. This has satisfactorily addressed this matter of concern to the council. Privacy 22 In the course of the inspection of an adjacent property, Mrs Huntley raised the question of the possible over viewing of her rear yard by users of the Juliette balconies which are proposed for the main first-floor bedroom of each of the dwellings proposed for Lot 2. 23 Although the degree of separation which is proposed between those balconies and her property would be such that there would be absolutely no issue with respect the privacy within her dwelling and, on reasonable separation distances such as those contained in AMCORD, no planning, concerns as to the separation with her backyard, I suggested to Mr S Kondilios, solicitor for the applicant that the applicant might consider increasing the width of them and incorporating planter boxes on their eastern edges so that there would be a softening of appearance and some privacy both for Mrs Huntley's backyard and for the residents of the dwelling. The applicant has agreed to this amendment and these are to be incorporated into the plans. Withn respect to other privacy matters raised by residents of other properties, the degree of separation which is proposed between the proposed dwellings on Lot 2 and those residents'properties is such that there is no issue with respect the privacy as reasonable separation distances such as those contained in AMCORD are more than adequately provided for and, as a consequence, no planning, concerns as to separation with those properties arise. Scale of development 24 The neighbours raised the issue of the similarity of the proposed dwellings and their concerns as to overdevelopment of the site. As noted earlier, the council agrees that a development of four dwellings for the totality of the site is achievable. I am satisfied that I am obliged to consider each allotment separately. Doing so (but also having regard to the totality of the amendments to the dwellings on both lots), I am satisfied that there is no infringement of the requirements of SEPP 53 and thus no reason on this basis to refuse the application. Similarly, traffic concerns within the deveklopment are to be addressed by a barrier to the neighbour's property to the west to address noise and light impacts. The relevant council officer has concluded that there are no sight-line issues concerning the driveway entrance and I accept this position. The right of way 25 Mr Ingham raised the question of adequacy of identification of the series of mutual rights of way. Mr Kondilios concede that this needed to be addressed and it is dealt with in conclusion I have reached and the directions resulting from it. Landscaping bonds 26 The final matter which arises concerns the proposal by the council that two conditions of consent should be incorporated relating to the imposition cash performance bonds for the purposes of: + landscaping establishment and maintenance; and + protection of trees on the site. 27 The relevant terms of these two conditions are as follows: A CASH BOND/BANK GUARANTEE of $4000 shall be lodged with Council as a landscape establishment bond prior to the release of the construction certificate to ensure that the landscape works are installed and maintained in accordance with the approved landscape plan or other landscape conditions. Fifty percent (50%) of this bond will be refunded on the issue of the Occupation Certificate, where landscape works as approved have been satisfactorily installed. The balance of the bond will be refunded three years after issue of the building certificate, where landscape works has [sic] been satisfactorily established and maintained. and A CASH BOND/BANK GUARANTEE of $12,000 shall be lodged with Council prior to the release of the Construction Certificate to ensure that the following trees are maintained in the same condition has found prior commencement site development work [sic]. The bond will be returned following the issue of the Occupation Certificate provided the trees are undamaged. In the event that any specified trees are found damaged, dying or dead as a result of any negligence by the applicant or its agent, or as a result of the construction works at any time during the construction period, council will have the option to demand the whole or part therefore of the bond. 28 The second condition then incorporated the list of trees by reference to their number on a plan – the details of which do not require to be reproduced for the purposes of this decision. 29 When I indicated to Mr Marincowitz that I proposed to refer the lawfulness of the imposition of such conditions to the Chief Judge for determination as a question of law pursuant to s 36(5) of the Land and Environment Court Act 1979 , he indicated that the council did not press the conditions. 30 In Datum Pty Ltd v Botany Bay City Council [2003] NSWLEC 62, Pearlman CJ dealt with this issue and gave a proposal for such a bond short shrift. She said: 51. Proposed condition 16 would have imposed a security bond on the applicant for the purpose of ensuring the maintenance of the landscaping. The applicant objected on the ground that such a bond did not fall within the scope of bonds permitted by s80A(6) of the Environmental Planning and Assessment Act 1979. These provisions of the Act empower the consent authority to require such a bond in limited circumstances and it is clear that the protection or maintenance of landscaping on private property is not amongst those permitted purposes. I decline therefore to impose this condition. 31 It is clear, in my view, that it is now settled law that there is no statutory power under the Planning Act to impose such a bond. 32 Obviously in so concluding, I have only considered whether or not such a condition could be imposed as a general proposition in the absence of some specific statutory provision in another enactment which permits such a condition. An example of such a provision is s 22C(2) of the Rivers and Foreshores Improvement Act 1948 . This section expressly establishes a basis for such a surety for works on private property when the works are in a riparian zone and subject to a consent under that Act. It reads: (2) As a pre-condition to the grant of a permit, the Constructing Authority may require the applicant to give security for the due performance of the applicant's obligations under and in connection with the permit for an amount, in a form and on such terms and conditions as the Constructing Authority may require. 33 There is no equivalent provision in the Planning Act. 34 In Allen & Hawkes v Ku-ring-gai Council [2005] NSWLEC 227, Roseth SC was faced with similar proposals for such conditions from this council as were advanced (and abandoned) in this appeal. The Senior Commissioner discussed these matters in the following terms. Landscape bond and tree preservation bond 10. The council proposed two conditions requiring monetary bonds or guarantees to be lodged guaranteeing · the maintenance of the landscaping for a three-year period; · and the retention of four trees. 11. The applicant's advocate, Mr G McKee submitted that the Court did not have the power to impose bonds relating to landscaping on private land. In his submission, the only two sections of the Environmental Planning and Assessment Act 1979 that enabled monetary bonds or contributions to be required were s80A(6) and s94, and neither of these sections applied to landscaping or trees on private land. The council's advocate, Mr P Marincowitz, took issue. In his opinion a landscape bond can be imposed under the general power of s80A(1), a section that authorises conditions that relate to any matter referred to in s79C(1) of the Act. In Mr Marincowitz's submission, the maintenance of landscaping is clearly one of those matters. 12. Any condition of consent must withstand the so-called Newbury test, ie it must relate to the development, it must be for a planning purpose and it must be reasonable. In the case of the condition for a bond proposed by the council, the first and third tests are, in my opinion, satisfied, since the amount of the bond is not high. However, I do not think that the second test is satisfied. While I accept that the maintenance of landscaping is a planning purpose, I do not think that the lodgement of a bond that will be returned only if the landscaping is well maintained is also a planning purpose. If, at the end of the three-year period, the council finds that the landscaping is not well maintained, it cannot enter the applicant's property and plant trees on it. It most certainly could not (and would not) return once a week to water the seedlings. The bond would not achieve the planning purpose of healthy landscaping. And what would happen to the bond money? Would it go to the council's consolidated revenue? Would it be used for public landscaping elsewhere? In either of those cases it would no longer relate to the subject development. 13. I have considered the notion that a monetary bond may be seen as an incentive, in the sense that an applicant is more likely to look after the landscaping if this will lead to the return of the bond money. The incentive may therefore be considered to be the planning purpose. However, this kind of reasoning seems to me to move too far away from a proper application of the Newbury test. For this reason I have not imposed the two conditions requiring monetary bonds. However, Condition 88 requires that the landscaping be completed before the building can be occupied and that it be maintained in a satisfactory condition at all times. If the applicant fails to maintain the landscaping, the council can take action. 35 In para (13) of Allen & Hawkes, set out immediately above, the Senior Commissioner considered whether or not such conditions could be regarded as incentives. In one perverse sense, this might be the case. They are an "incentive" but only in the extremely limited fashion, for example, that a whip is an "incentive" for a horse. 36 In circumstances where the condition underlying the bond is breached, the monies are or potentially are forfeited to the council. Nothing in the conditions of consent indicates the purpose for which such monies would be used if they were forfeited to the council and, presumably, they would merely pass into the council's general revenue. 37 No power would exist which would permit the council to enter onto the land which is the subject of the conditions and rectify the defects which had occasioned the breach of conditions and the forfeiture of the monies. 38 Similarly, I would venture the opinion, that the monies having passed into the general revenue stream of the council, it would not lawfully be open to the council to expend those monies on rectification works to remedy the breach of the condition (even if it were able physically to do so) as that would constitute an expenditure of public monies by the council to provide a private benefit to the owner of the property to which the consent and its conditions attached. 39 In any event, it is clear that the forfeiture of the monies could not, in any way, be linked to rectification of the underlying causes of the forfeiture. In essence, such forfeiture would be a penalty for breaching a condition in a consent which set up the arrangements for the bond. Such penalty is one which would give rise not to an incentive but merely to a contingent penalty. 40 It is clear that the jurisdiction of this Court to impose penalties does not arise in proceedings in Class 1 of Court's jurisdiction. It arises, relevantly, solely in Class 5 proceedings. 41 No member of the Court, whether Judge or Commissioner, has the power to impose a penalty, analogous to a fine, whether contingent or not, in Class 1 proceedings. In addition, imposition of fines in this Court is confined to exercising of jurisdiction in appropriate proceedings by Judges of the Court only. 42 I am, therefore, satisfied that not merely is there no statutory foundation for such bonds contained in the Planning Act but that the structure of the jurisdiction of the Court established by the Land and Environment Court Act 1979 , by necessarily implication, precludes such conditions being imposed in Class 1 proceedings. On that second basis, I am satisfied that imposition of such bonds is also ultra vires . 43 However, it is the habit of this council routinely to insert such conditions in its development consents. It is, therefore, in my view, desirable to consider whether or not such conditions are appropriate, in a planning sense , on the assumption that it might be lawful to impose them (despite my view that this is clearly not the case). 44 The relevant general head of power to impose conditions comes from s 80A(1) of the Planning Act. The breadth of that power must be considered in the light of established judicial pronouncements on the scope of statutory power to impose conditions on the grant of development consent. 45 Relevant to the matter of these putative conditions is the so-called Newbury test referred to by Roseth SC. These are the three well known tests deriving from the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599. 46 In Newbury , it was held that for a condition to come within the relevant statutory power it must fulfil three conditions: + it must be imposed for a planning purpose; + it must fairly and reasonably relate to the development for which permission is being given; and + it must be reasonable. 47 Lloyd J's decision in J James and Anastasia Markakis v Mosman Municipal Council [1998] NSWLEC 223 notes, at para 14, the applicability of Newbury in proceedings in this Court and also makes it clear that: The threefold test described [ in Newbury ] is a cumulative one. It is not enough for one or two of the tests to be satisfied. All three tests must be satisfied for a condition to be valid. 48 In the present instance, it follows, therefore, that I would need be satisfied that the totality of any bond condition is for or would achieve a planning purpose. 49 There can no doubt that a Newbury compliant condition requiring the establishment and maintenance of landscaping or for the protection and preservation of existing vegetation can be drafted and is acceptable where appropriate. 50 However, as discussed in more detail above, I endorse and adopt the reasoning and conclusions of Roseth SC in para 12 of Allen & Hawkes quoted above concerning the bond element sought by this and other councils to be attached to such broader establishment and maintenance or the protection and preservation objectives. 51 As a consequence, the element of requirement of a financial security or bond to seek to guarantee the establishment and maintenance of landscaping or for the protection and preservation of existing vegetation is not capable of satisfying the first of the Newbury tests. 52 Having concluded that, absent any specific statutory basis for requiring bonds or sureties, they cannot validly be imposed for planning reasons, it is appropriate to deal with the broad issue of how preservation of landscaping or protection of existing vegetation might be dealt with in a development consent by setting out the relevant planning principles for conditions which might deal with such matters. Planning principle for the imposition of conditions relating to the preservation of landscaping or protection of existing vegetation 53 The planning principles to be applied to the establishment and maintenance of proposed landscaping for a site or for the protection of existing vegetation on a site during and after construction are as follows: (1) A development consent may include conditions requiring the establishment and maintenance of proposed landscaping or the protection and retention of existing vegetation; (2) Such conditions should specify the following: a. The landscaping plans to be implemented and maintained; or b. The species and location of tree(s) or other vegetation which is to be protected during and retained after construction on a plan which shows this information with precision and clarity; and c. Any requirements necessary to ensure protection of such trees or other vegetation during construction; d. Whether an expert's report on compliance is required prior to the issue of an occupation or building certificate; e. If an expert's report is available prior to approval, the conditions of consent should incorporate its recommendations as conditions; f. Whether landscaping maintenance or vegetation retention, which is to extend beyond the construction phase, is to be for a nominated period of time after the issue of an occupation or building certificate or if it is to be an ongoing obligation for the life of the development. (3) Conditions relating to landscaping or vegetation on private property should not include any financial surety or bond unless such bond or surety is specifically permitted by a relevant statute e.g. s 22C(2) of the Rivers and Foreshores Improvement Act 1948 . Enforcement of conditions arising from (1), (2), (4) or (5) should be through the normal processes for ensuring compliance with conditions of consent. (4) Conditions can include the requirement that if a tree or vegetation to be protected dies or is significantly damaged, it is to be replaced; (5) Where extensive landscaping is proposed on the common property of a strata title or community title development, in appropriate cases a condition may be imposed requiring the body corporate or community association to enter into a maintenance contract for the landscaping for the period of maintenance specified in the conditions of consent. The conditions may require that a copy of such contract be provided to the council prior to the issue of an occupation or building certificate. The period of time specified for such a contract should be sufficient for only the establishment of the landscaping rather than being long-term or open-ended. Conclusion 54 I have, therefore, concluded that, with the amendments already foreshadowed to the plans and further revisions arising from Mr English's and Mr Ingham's concerns (as agreed by the applicant), the two proposed dwellings for Lot 2; * are acceptably designed; * are acceptably located on Lot 2; and * when considered in conjunction with that which has been approved for Lot 3, does not constitute an overdevelopment of the site. Orders and directions 55 The orders of the Court, therefore, will be to uphold the appeal, subject to the submission of revised plans and conditions. 56 As a consequence, I direct that: 1. The applicant file further revised plans (agreed with the council and reflecting the matters dealt with in this decision) with such plans to be filed by 9 September 2005; 2. The council is to file revised conditions (settled with the applicant and reflecting the matters dealt with in this decision) with such conditions to be filed electronically in format conforming with Practice Direction 2 of 2005 by 9 September 2005; 3. The matter is set down for callover before the Registrar on 13 September 2005; 4. If directions (1) and (2) are complied with, I will issue orders in Chambers and vacate the callover; and 5. Liberty to relist before me at 9 am on two days notice if required. 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.