Land and Environment Court of New South Wales CITATION : Frasers Greencliff Developments Pty Ltd v Ku-ring-gai Council [2008] NSWLEC 1259 APPLICANT Frasers Greencliff Developments Pty Limited PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 11030 of 2007 CORAM: Murrell C KEY ISSUES: Appeal - Section 96 Modification :- right of carriageway, timing of occupation certificate, public interest LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Ku-ring-gai Local Environmental Plan No. 194 14/12/2007 DATES OF HEARING: 27/02/2008 Conditions 6/03/2008 DATE OF JUDGMENT: 30 June 2008 APPLICANT Mr D. Brigden, solicitor of Holding Redlich Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A. Hudson, solicitor of Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 30 June 2008 11030 of 2007 Frasers Greencliff Developments Pty Limited v Ku-ring-gai Council JUDGMENT 1 The applicant in these proceedings is seeking to modify the development consent issued by Ku-ring-gai Council 17 February 2006 for the approval of a residential flat building containing forty apartments with basement parking. The subject land is known as 25A, 27, 29 Lorne Avenue Killara. 2 The subject site is Lot 2, DP 547371 and is one of the sites rezoned for higher density in the Ku-ring-gai Environmental Local Plan No. 194. 3 The site is rectangular in shape and has a total area of 4022 square metres. The frontage to Lorne Avenue is approximately 57 metres and the northern boundary 50 metres with an eastern boundary 84 metres and a western boundary of about 76 metres. For a distance of some 30 metres the site shares a 7 m wide driveway with the adjoining properties known as Nos. 23 and 25 Lorne Avenue. Approximately half the driveway is within the subject land, however, this is burdened by a right of carriageway for the benefit of Nos. 23 and 25. 4 The development is substantially constructed and the applicant seeks to modify a number of conditions. In particular, Condition No. 4 which states that: "The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plan and Occupation Certificate has been issued." 5 The modification application has been submitted to address difficulties that the applicant is experiencing negotiating the right of carriageway where landscaping is approved for the proposed development. 6 The Council refused the s. 96 application for the following reasons: 1. The proposed modification is inconsistent with condition No. 45 which confers upon the applicant a responsibility of ensuring that the development consent does not set aside or affect the rights at law which may be conferred upon any party or terms of the grant or any easements or rights of carriageway on or over the subject lot. Council clearly stated in Condition No. 45 that it accepts no responsibility in this regard, now or in the future. 2. The proposed modification is not in the public interest. 7 The contention identified by the respondent in the proceedings is: "The Council contends that the landscaping and the acoustic fence along the eastern part of the boundary should be completed prior to the development being occupied as they are an integral part of the development addressing amenities issues for the completed development, the streetscape, and the adjoining properties to the east." 8 The modification application proposes that Condition 4 be amended as follows: 4A 'The landscaping and other works shown in the drawings referred to in Condition 1 in relation to the strip of land over which the right of way in favour of Nos. 23 and 25 Lorne Avenue runs do not need to be carried out until the right of way has been modified to reflect the revised driveway location shown on Figure 1 provided that, at the time when the Occupation Certificate is issued, the applicant has provided to Council a bond or bank guarantee in the sum of $10,000, which will be returned on completion of the works. If an agreement has not been reached with the owners of Nos. 23 and 25 Lorne Avenue to the modification of the right of way which the Occupation Certificate is issued: (a) the applicant must make all reasonable endeavours to conclude its negotiations with those owners; and (b) if agreement is not reached within 31 days of the issuing of the Occupation Certificate, and it it has not already done so the applicant must commence proceedings in the Supreme Court under section 89 of the Conveyancing Act to obtain orders to modify the right of way and diligently pursues the section 89 proceedings.' 9 The applicant also proposes to add a new condition to be known as 113A: "113A. An Occupation Certificate for the approved buildings may be issued and a Compliance Certificate may be issued under Condition 113 notwithstanding that the works referred to in Conditions 4A have not been carried out before the issue of those certificates. However, applicable certificates must be obtained following the completion of the works." 10 The consent contains Condition 113 which states: "Prior to the release of any Occupation Certificate, a Compliance Certificate must be obtained from an accredited certifier, certifying that the building works for the building to be occupied comply with the plans and specifications approved by this development consent; and any Construction Certificate associated with this consent for the buildings to be occupied. If the PCA is not the Council, then this Compliance Certificate must be submitted to the Council at the same time as the occupation certificate is submitted to the Council in accordance with Clause 151(2) of the Environmental Planning and Assessment Act regulations 11 The development consent was granted by the Council in February 2006 and since that time there have been four modifications as detailed in the Statement of Facts. 12 The Court met on-site with the parties and heard from the adjoining neighbours. Mr Martin from No. 25 objected to the modification and stated that the matter is a question of timing and the developer knew about the carriageway before commencing development. He is concerned that there is a question of amenity if the appeal is upheld and that there may not be a resolution and as such a solution needs to be found now in terms of the right of carriageway. He also stated that it is a matter of safety for Mrs Burke who owns No. 23. 13 Ms Kim, also of No. 25 advised the Court that in her opinion the modification should not be approved and should await the outcome of the Supreme Court action for the right of carriageway. 14 Mr Hackney of Wallaroo Close told the Court that in his opinion it was not in the public interest to modify the consent as the issue of right of carriageway may not be resolved in the applicant's favour and that it would then fall on the Body Corporate. 15 Ms Amy Mary Coleman represented her mother of No. 23 Lorne and said that a test drive had been undertaken and she could not access the southern garage with the development as approved. That includes part of the right of carriageway for the landscaping area for the development. She expressed concern that the application had been approved by the Council without adequate testing of the garage to No. 23 and access to the road. 16 Mrs Bourke, who owns No. 23, expressed concern about the modification because of the difficulty of accessing her property. She said that if the development required 50 per cent landscaping that the issue of the right of carriageway and access to her property should have been resolved earlier. 17 During the proceedings the applicant offered a further amendment to Condition 4A to provide a more significant guarantee. This reads as follows: 4A The landscaping and other works shown in the drawings referred to in Condition 1 in relation to the strip of land over which the right of way in favour of Nos. 23 and 25 Lorne Avenue run do not need to be carried out until the right of way has been modified to reflect the revised driveway location shown on Figure 1 provided that: the applicant must reserve from sale one of the units in the development and must not sell, occupy, lease or otherwise dispose of that unit until such time as the landscaping and other works referred to in Condition 4A have been completed in accordance with the approved plans. The applicant must tell the Council which unit has been reserved from sale before the Occupation Certificate is issued. The applicant can change the nominated unit from time to time as long as at least one unit remains unsold, unleased and otherwise in the ownership of the applicant until the landscaping and other works have been completed in accordance with the approved plans. If agreement has not been reached with the owners of Nos. 23 and 25 Lorne Avenue to the modification of the right of way when the Occupation Certificate is issued: (a) the applicant must make all reasonable endeavours to conclude its negotiations with those owners; and (b) continue its proceedings in the Supreme Court under section 89 of the Conveyancing Act to obtain orders to modify the right of way and diligently pursues the section 89 proceedings." We also need (so as to remove any doubt) to amend: Conditions 124 and 125 to add, at the beginning of each condition: "Other than as provided in Condition 4A," Condition 105 to add after "ensure that" the words "other than as provided in Condition 4A. 18 During the hearing I raised the question about the certainty of the development being completed in accordance with approved plans within that part of the site burdened by the right of way. The applicant understood this issue to be can or should the development consent be modified to allow an Occupation Certificate to issue before completion of deep soil planting of that part of the site subject to the right of way. 19 The Environmental Planning and Assessment Act provides for a sequence of approvals and certificates and indeed interim Occupation Certificates may be issued but this would only be in the context of certainty as to the ultimate outcome being in accordance with the approved plans. 20 While I agree with the submission on behalf of the applicant that there is no reason why an Occupation Certificate cannot be issued before completion of all conditions of a development consent, or completion of all aspects of a development. In my assessment this should only occur where there is certainty that the development will and can be completed in accordance with the development consent. 21 Whether the landscaping may, or may not, be regarded as having been significant in the Council's decision to grant consent is not a relevant inquiry for my assessment of this s96 modification and is only relevant to an assessment of either a s 96 application or an application to amend the approved set of plans, in particular, the landscaping plan. 22 Rather the important question in these proceedings is what is the certainty of the development being completed in accordance with the approved plans, not whether the decreased amount of landscaping is significant. 23 On the applicant's submission the development will be able to be completed where: (a) the neighbours agree to vary the right of way to reflect the approved plans; (b) the Supreme Court varies the right of way to reflect the approved plans; (c) the approved plans are amended by another development consent to reduce or omit the deep soil planting requirement. 24 I cannot assume (a), (b) or (c) as outlined by the applicant, as these are not matters relevant to my merits assessment of the s 96 application before. 25 These proceedings are not about whether agreement between the neighbours is reached or action in the Supreme Court, or about a separate s 96 application seeking to amend the landscape plan. A s 96 application to amend the landscape plan if approved would allow the development to be completed in accordance with approved plans. However, my role in determining this s 96 application is not about the merits or otherwise of an amended landscape plan that would reduce the deep soil planting required in the original approval from 50.5% to 49.18%. This question is outside the bounds of this s 96 application. 26 Similarly there is no certainty in the s96 application before me when the resolution is dependent upon proceedings in another Court. It is also inappropriate for me to comment on the terms of the easements or other matters such as whether the development consent has the effect of amending the right of carriageway in terms of s.28 of the Environmental Planning and Assessment Act, 1979 and cl 68 of the Ku-ring-gai Planning Scheme Ordinance. Clearly these are legal questions and not matters for my consideration in this s 96 application. 27 The circumstances have not changed from before and after approval was granted for the development by the Council in February 2006. The right of carriageway was in place before the application was made to Council and there is not a changed circumstance which would warrant approval of this s 96 application. 28 When the Court first met on-site with the parties, the Court endeavoured to assist in resolving the matter, however at the end of the day I must assess the s 96 application before me on its merits. 29 The modification application proposed cannot be approved as it is conditional upon matters not relevant to the consideration of this Court. That is to resolve the right of carriageway or amend the current landscape plan by a s 96 application. 30 The issue in these proceedings is not that the area of landscaping in question that would remain incomplete (approximately one to two per cent) but that the process embarked upon provides for no certainty. In the assessment of the proposed modification it is not part of my merits assessment to determine whether the development would be satisfactory without the small portion of landscaping within the right of carriageway. This would be a merits consideration for the s 96 application to modify the landscape plan. 31 The applicant has advised that it has submitted a s 96 application to vary the landscape plan to overcome the problem with the right of carriageway. If such an application is approved then the development could be carried out in accordance with the approved plans and modifications; that would be consistent then with Condition 4. 32 I raised during the proceedings that a ten thousand dollar bond may provide little incentive to complete the development in accordance with the approved plan, and the applicant responded with the proposal to amend the condition such that one unit would be withdrawn from sale, and/or occupation. While this provides a significant incentive, at the end of the day there can be no guarantee as to the outcome of the Supreme Court action or negotiations with neighbours on the right of carriageway, or the approval of a further s 96 application to amend the landscaping plan to resolve the issue. In my merits assessment approval should not be granted to this s96 that is dependent upon other action being successful. This would provide for no certainty in the planning system and would be an undesirable precedent. 33 The Court understands the applicant's intention is to be able to market the units that are nearing completion, or in fact completed in built form, however this s 96 modification proposed is an appropriate mechanism to facilitate same. In my merits assessment I have concluded that the proposed modification is an inappropriate use of s 96 and against the spirit and intent of the Act. 34 It was submitted on behalf of the applicant that it is seeking certainty and the proposed development will provide for and promote the social and economic welfare of the community, and that the applicant had provided a significant investment in the development of the project. Furthermore it was submitted on behalf of the applicant that this is a matter beyond its control and it is only a matter of timing. The facts are that the applicant was aware of the right of carriageway before the development approval was granted by the Council and in this regard circumstances have not changed to warrant approval of the s 96 application as proposed. 35 It is not my role in these proceedings to assess whether the Council's determination and conditions; and it is not my role to comment on whether s.28 of the Environmental Planning and Assessment Act, operates or not. It is also not my role to assess whether reduced landscaping would be appropriate or not; that is a matter for a separate merits assessment. I must assume that the landscaping is required in accordance with the consent granted for the development. 36 If this appeal were to be allowed there would be no certainty as to the ultimate outcome and it could be unworkable with no end result. The modification sought seeks to defer indefinitely questions that must be resolved. The purpose of s 96 is facultative but cannot be used in an artificial way. 37 This appeal has come before me as a merits appeal under s 96 of the Act and on the merits the modification sought is conceptually incorrect and is inconsistent with the object of the Act for "the promotion and co-ordination of the orderly and economic use and development of land". 38 On a merits assessment the proposed modification is not in the public interest under s.79C(1)(e) and as such the proposed modification does not warrant approval. Modifications to relieve applicants from carrying out developments in accordance with plans is not an acceptable planning practice and against the above object of the Act. As a general principle such a practice cannot be condoned by the Court to alleviate an applicant of its responsibilities under the consent. In the case before me there is no certainty as to when the development could comply if the modification is approved as it is delaying to another day, and indefinitely the resolution of a matter outside this s 96 application. 39 The focus or compass of this s 96 modification is narrow and I have concluded that it is not in the public interest and does not warrant approval and would be a precedent in terms of establishing poor practice in the administration of the Act. 40 It was submitted on behalf of the applicant that: "either the right of way will be varied or some other resolution will be found." In my assessment this demonstrates the inappropriateness and unsatisfactory nature of the s 96 modification before me to vary the conditions as proposed. 41 Accordingly, on the basis of my findings above the formal orders of the Court are: 1. The appeal for the property known as 25A, 27 and 29 Lorne Avenue, Killara is dismissed. 2. The s 96 modification application MOD296/07 to modify conditions, including No. 4, of development consent number 425/05 granted by Ku-ring-gai Council in February 2006 is determined by the refusal of consent. 3. The exhibits are returned to the parties. ___________________ J.S. Murrell Commissioner of the Court kb 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.