Land and Environment Court of New South Wales CITATION : Nirimba Developments Pty Limited v Blacktown City Council and Anor [2007] NSWLEC 451 APPLICANT Nirimba Developments Pty Limited FIRST RESPONDENT PARTIES : Blacktown City Council SECOND RESPONDENT Sertari Pty Limited FILE NUMBER(S) : 10063 of 2006 CORAM: Pain J KEY ISSUES: Appeal :- s 56A appeal - whether question of law arises- whether error in Commissioner's consideration of pedestrian and construction traffic. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s79C, s80 Land and Environment Court Act 1979 s 56A Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248; Mison and Anor v Randwick Municipal Council and Ors (1991) 23 NSWLR 734; Nirimba Developments v Blacktown City Council and Anor [2006] NSWLEC 739; CASES CITED: Parramatta City Council v Hale (1982) 47 LGRA 319; Scott v Wollongong City Council (1992) 75 LGRA 112; Transport Action Group Against Motorways v Roads and Traffic Authority and Anor (1999) 46 NSWLR 598; Weal v Bathurst City Council (2000) 111 LGERA 181. DATES OF HEARING: 23 July 2007 DATE OF JUDGMENT: 25 July 2007 APPLICANT Mr P Rigg (solicitor) SOLICITOR Deacons LEGAL REPRESENTATIVES: FIRST RESPONDENT Submitting appearance SECOND RESPONDENT Mr T Hale SC SOLICITOR Holding Redlich JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 25 July 2007 10063 of 2006 Nirimba Developments Pty Limited v Blacktown City Council and Anor JUDGMENT 1 Her Honour: This is an appeal under s 56A of the Land and Environment Court Act 1979 (the Court Act) by the Second Respondent on three grounds. Such appeals may only be made in relation to questions of law. The First Respondent filed a submitting appearance and did not appear. Ground 1 was ultimately the only ground that required consideration and I do not need to refer to the other grounds of appeal at all. Ground 1 states: 1. The Commissioner erred in law in deferring consideration of essential environmental and planning matters to be addressed in plans of management. Particular The conditions required the preparation of the following management plans: (i) Pedestrian; (ii) Construction traffic; and (iii) General traffic. Background 2 On 1 February 2006 the Applicant commenced Land and Environment Court proceedings 10063 of 2006 in relation to Blacktown City Council's deemed refusal of the Applicant's development application DA 05-3381 for the construction of a residential flat building containing 236 dwellings in two integrated buildings and a basement carpark at 9 Nirimba Drive, Quakers Hill. The development application 3 The land the subject of the development application is Lot 1 DP 853847 which has an area of 2.124ha. It adjoins the Quakers Hill Parkway and the Richmond/Blacktown Railway line. 4 The development application was for a development proposal for the construction of 236 dwellings in two five-level residential flat buildings above two levels of basement car parking on land known as Nirimba Drive, Quakers Hill. Also included in the proposal was the conservation and landscaping of the bushland area that comprises roughly half of the site. A total of 354 car parking spaces were to be provided. 5 Adjoining the subject site to the north east is Nirimba Drive which is a public road. It is from Nirimba Drive that access to the site is to be obtained. Access to Nirimba Drive is obtained from Railway Drive which is to the south east and which is also a public road. But Nirimba Drive and Railway Drive are not connected. To obtain access from Railway Drive to Nirimba Drive it is necessary to pass over the land now known as the Quakers Hill Hotel, the owner of which is the Second Respondent, Sertari Pty Limited. Sertari was joined in the proceedings as the Second Respondent. 6 The right of carriageway (ROC) was registered on 14 December 1990 as part of DP 806691. Relevantly: (a) the lot burdened by the ROC is Lot 1 in DP 806691, that is the hotel site – the Second Respondent's land; (b) the lot benefited is Lot 4 DP 216298, which at the time was land owned by the Commonwealth, having an area of 557 acres 2 roods 7 perches. That land was subsequently sub-divided creating, inter alia, the subject land being Lot 1 DP 53847 and having an area of 2.124 hectares; (c) the relevant terms of the ROC are set out at [8] of the Commissioner's judgment; (d) the ROC passes through that part of the hotel car park near the bottle shop. Land and Environment Court proceedings 7 The Class 1 proceedings were heard on 23, 24 and 25 of October 2006. At the hearing, as a result of amendments to the proposed development and agreed conditions of consent, the Council no longer pressed the issues identified in its statement of issues and agreed that deferred/conditional consent could be granted. 8 Accordingly, the only issues at the hearing were those raised by the Second Respondent in its statement of issues in relation to the impact of the development on the Second Respondent's hotel and business from construction traffic during the construction of the development, and vehicular and pedestrian traffic post construction. 9 On 25 October 2006 Commissioner Bly delivered judgment in Nirimba Developments v Blacktown City Council and Anor [2006] NSWLEC 739 upholding the Applicant's appeal and granting development consent to DA 05-3381, subject to conditions. The Commissioner requested submissions in respect of the conditions and all the parties made both oral and written submissions to the Commissioner in relation to the conditions. In addition, the Commissioner directed the experts to confer and prepare a joint report in respect of one issue relevant to the conditions. 10 The Commissioner called for submissions both oral and written in relation to the conditions. Both the Applicant and Second Respondent made submissions about the proposed conditions which included conditions 86A and 86B in the same form as contained in exhibit 6 in October 2006. Having determined the conditions of consent on 16 May 2007, Bly C made an order again granting development consent to DA 05-3381, subject to specified conditions. The conditions include: Condition 86A A Construction Traffic Management Plan shall be prepared and submitted to Council for the approval of the Director, Transport and Technical Services prior to the issue of a Construction Certificate for the subject development. The Construction Traffic Management Plan shall detail the measures to be implemented to mitigate the impacts of vehicles associated with the construction of the subject development in the Quakers Hill commercial precinct and in particular the Right of Carriageway burdening Lot 1, DP 806691 (the Quakers Inn). A copy of this plan is to be made available to the owner of Lot 1, DP 806691. Condition 86B A Pedestrian Management Plan shall be prepared and submitted to Council for the approval of the Director, Transport and Technical Services prior to the issue of a Construction Certificate for the subject development. The Pedestrian Management Plan shall detail the provision of a safe pedestrian path of movement between Quakers Hill Railway Station and the subject land. Second Class 1 proceedings 11 I note for completeness that the Applicant contends in separate proceedings that it is entitled to gain legal access from Railway Drive to Nirimba Drive over the hotel site by reason of the ROC referred to in par 6. There is a separate Class 1 appeal by the Applicant concerning a development application for the use of the ROC over the Second Respondent's land for the proposed development the subject of this appeal. That was initially also before Bly C in October 2006 and was stood over by him. It was ultimately heard by Murrell C. She has reserved her decision pending the outcome of Supreme Court proceedings concerning the giving of owner's consent. Second Respondent's submissions 12 The statement of issues filed by the Second Respondent and before Bly C is set out at [15] of his judgment but the narrower concerns raised by the Applicant on appeal are the impact that the development would have upon the hotel and its business from pedestrian and vehicular traffic gaining access to the site through the hotel land, particularly in relation to: (i) the impacts of construction traffic during the construction of the development; (ii) the impact of vehicular traffic generated by the development post construction; (iii) the impact of pedestrian traffic post construction. 13 The particular focus of these issues was conditions 86A and 86B. 14 The Second Respondent's counsel argued that the consideration of a development application under s 79C and s 80 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) requires the Court to give proper, genuine and realistic consideration upon the merits to relevant matters including conditions of consent, see Weal v Bathurst City Council (2000) 111 LGERA 181 at [9]. Conditions of development consent are integral to the required consideration under s 79C. Further, relying on Parramatta City Council v Hale (1982) 47 LGRA 319 at 343-344, the assessment of impacts under s 79C must be carried out contemporaneously with the determination of what conditions should be imposed under s 80(1). This can be considered by analogy to the case law on deferred commencement conditions such as considered in Weal at [91] - [94]. That decision emphasises that there needs to be an understanding of the relevant matters and the decision in relation to such conditions requires that there be a description of the matters "sufficient to take these into consideration". Alternatively, the principle in Mison and Anor v Randwick Municipal Council and Ors (1991) 23 NSWLR 734 is infringed because there was a failure by the Commissioner to finally determine the matter. 15 The Commissioner's decision to impose conditions 86A and 86B infringe these legal obligations of the decision-maker. These conditions defer to the Council's Director of Technical Services the approval of appropriate plans of management. No draft of a plan of management was before the Commissioner during the hearing. There are no performance standards or other criteria identified in the judgment to be adopted in the preparation of the plans of management. There is no obligation to comply with the plan of management once made. Applicant's submissions 16 The Applicant argued there was no error of law and that what is really challenged are findings of fact which cannot give rise to any appellable error. Nor is there a failure to properly consider matters (Weal was satisfied) nor is there a lack of finality in the decision (as identified in Mison) as a result of the development consent conditions 86A and 86B. The Commissioner correctly evaluated the impacts of the construction traffic associated with the development and accepted that measures under the plan of management for construction traffic could be employed to mitigate those impacts. The Commissioner's consideration of the matter is in conformity with Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248. 17 The Commissioner also understood the pedestrian traffic issues and imposed appropriate conditions. Finding 18 Conditions 86A and B were in exhibit 6 tendered in the hearing before the Commissioner. There is no evidence that there was any issue raised in relation to them by the Second Respondent's representative at the hearing. A subsequent set of conditions was filed by the Second Respondent on 3 April 2007 which contained an alternative set of conditions including condition 97. That condition required that the plan of management for construction work be complied with, inter alia. That condition was not adopted by the Commissioner. A consideration of the judgment demonstrates that the Commissioner was aware of the traffic issues identified by the parties' respective experts as set out by him and of the role of plans of management. The Commissioner's judgment states in part at [16] and [18] as follows: Additional issues raised by the second respondent involve the use of plans of management to manage construction and traffic including pedestrian activities and construction traffic and whether the site is to be provided with services utilising the right of carriageway. … In relation to the proposed plans of management generally I accept that these can be utilised in the manner and for the purposes proposed. I do not accept that there is any uncertainty in relation to these even though they have not yet been prepared. (i) pedestrian issues 19 In relation to pedestrian issues at [19] the judgment states: In relation to the pedestrian plan of management I have been fully appraised of the concerns and the fundamental works that are the subject of conditions of consent. The plan of management will finalise these matters. 20 The Commissioner was told that it was intended to facilitate pedestrian traffic separate from the ROC over the Second Respondent's land. The approved plan DA 5230-0001 shows a pedestrian path on the hotel side of the ROC on the Second Respondent's land and consequential changes to the parking on the hotel land not on the ROC land. Such pathway and parking changes are not able to be the subject of any development consent by this Applicant given it is not on its land and no rights exist in relation to that land. That land is not the subject of this development consent or the second proceedings concerning the use of the ROC heard by Murrell C and is not a scheme for pedestrian access which the Applicant can build. This was all accepted by the Applicant's solicitor. 21 What was proposed in the evidence before the Commissioner was that an existing public path on RailCorp land leased by the Council which is not on the ROC is to be utilised. Conditions 178A, B and C also imposed by the Commissioner facilitate the use of that pathway and provide: 178A. The applicant shall carry out the necessary improvements to the pedestrian link to the east of Lot 1, DP 806691 in accordance with the Pedestrian Management Plan approved under these conditions. These works shall be completed prior to the issue of any Occupation Certificate for the development. 178B. A 25km/h speed limit sign shall be erected at each end of the Right of Carriageway bordering Lot 1, DP 806691 prior to the issue of any Occupation Certificate for the development. 178C. The applicant shall provide a zebra crossing across Nirimba Drive in accordance with the Pedestrian Management Plan approved under these conditions. These works shall be completed prior to the issue of any Occupation Certificate for the development. 22 No plan of that pedestrian pathway on railway land is specifically referred to in the conditions of consent and the approved plans (or so the parties informed me) but what was presented to the Commissioner was the document which became exhibit C before me, being the Plan showing detail and levels over Railway Road, Quakers Hill, dated 17 February 2006, reference 6390/03. I think this location was clearly understood by the Commissioner given the reference in [25] of the judgment to the existing footpath on adjoining railway land. Paragraph 26 refers to the issue raised in this appeal of whether such a footpath would continue to be available indefinitely. The Commissioner considered there was additional land immediately adjoining the existing footpath which would be able to be used if for some reason the existing footpath could no longer be used. That conclusion is open to him on the evidence and on his own observations. 23 Condition 86A must be considered in light of the other conditions 178A, B and C and the location of the pedestrian path outside the Second Respondent's land. 24 To the extent that general vehicle traffic generated by the development after the construction is raised, this is in relation to the lack of detail for the pedestrian plan of management referred to in condition 86B. The Commissioner accepted at [22] and [23] of his judgment the experts' agreed evidence that the additional traffic generated by the development could be accommodated on the ROC. (ii) construction traffic 25 In relation to construction traffic matters the judgment states at [20]: As for the plan of management for construction traffic, whilst Mr J Coady the applicant's traffic consultant was uncertain as to the exact extent of this traffic I accept his evidence that its management can be effected so as to minimise impacts not only on the hotel but also in relation to local streets generally. There will certainly be impacts but I do not accept that these impacts cannot be managed or would be such as to prevent the development of the subject site. 26 Condition 86A must also be reviewed in light of the issues considered in the judgment. (iii) general 27 While the issues raised by the Second Respondent are clearly of concern to it these must be considered in the whole context of these proceedings which concern a large development at 9 Nirimba Avenue. That is reflected in the 202 development consent conditions issued by the Commissioner. The adequacy of the Commissioner's consideration of relevant issues must be considered in that context. 28 In Rinaldo the plan of management in issue was acknowledged by the commissioner to be fundamental to his decision whether or not to grant consent. There was a draft plan in evidence and the commissioner addressed that draft in some detail and required specific amendments, on the basis of which development consent was granted although the plan was not finalised at the date of that decision but subsequently. This is to be contrasted with this situation where, while there are no draft plans of management provided, the issues raised by the Second Respondent were not considered by the Commissioner to be fundamental to the decision to approve the development. That finding is clearly open to him in this matter. 29 Given the consideration of pedestrian and construction traffic in the judgment and other conditions of consent imposed, as identified at par 19 - 26, no issue arises that the consent lacks finality based on the Mison principle. The impugned conditions do not leave open the possibility of a significantly different development, see Scott v Wollongong City Council (1992) 75 LGRA 112 at 118 per Samuels AP. Transport Action Group Against Motorways v Roads and Traffic Authority and Anor (1999) 46 NSWLR 598 considered the application of Mison in the context of a consent condition requiring a management plan to address an issue (at 122). Mason P (Sheller JA concurring) held that the requirement of finality and certainty referred to in Mison does not mean that every development consent with conditions leaving matters open for later decision is invalid. Mason P recognised at [122] that: The mere fact that a proposed activity in its original or modified form contemplates plans of management as integers of or means of carrying out an activity cannot be a ground of invalidity. 30 The transcript of the evidence of Mr Coady, the Applicant's traffic expert, was referred to by the Second Respondent's counsel where he admits that he has no knowledge of the likely impacts of construction traffic on the Second Respondent's hotel next to the ROC. His evidence is that such plans of management are commonplace in projects of this nature. The Commissioner accepted his evidence in that regard and I do not consider there is any error of law demonstrated by his reasoning as set out in his judgment at [20] (see above). 31 In relation to the criticism that there is no obligation to comply with the plan of management once made, the conditions require that the plans be approved by the Director of Technical Services, suggesting that he or she would not approve an inadequate plan. I consider there are requirements specified for the contents of the plans of management in the conditions. Condition 86A requires that the plan of management measures must mitigate the impacts of vehicles associated with the construction on the ROC, including on the Second Respondent's land. Condition 86B requires that there be provision of a safe pedestrian path of movement between the Quakers Hill railway station and the subject land. A further criticism was that the Second Respondent was not provided with any relevant role in the finalisation of the plans of management because it was the Director's decision rather than the Commissioner's which was the final determinant of the content of the plans. That is a matter that the Commissioner had before him and chose not to adopt, as he is entitled to do. 32 There has been adequate consideration of relevant issues, as required by Weal. There is no deferral of essential environmental and planning matters to be addressed in plans of management. No legal error is disclosed in the Commissioner's judgment in relation to the issues raised in this appeal. This appeal should therefore be dismissed. 33 As the Second Respondent has been unsuccessful it should pay the Applicant's costs of this appeal. Orders 34 The Court makes the following orders: 1. The appeal is dismissed. 2. The Second Respondent is to pay the Applicant's costs of this appeal. 3. The exhibits must be returned. 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