Land and Environment Court New South Wales Medium Neutral Citation: Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 1163 Hearing dates: 27, 29 April 2011 Decision date: 29 April 2011 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld in part Catchwords: CONSENT ORDERS - development modification - mixed commercial/residential building - dedication of laneway Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Category: Principal judgment Parties: Conquest Constructions (NSW) Pty Ltd (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel T To (Applicant) T Robertson SC (Respondent) Solicitors Shaw Reynolds Bowen & Gerathy (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 10152 of 2011 Judgment This judgment was given extemporaneously and has been edited prior to publication 1This is an appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by the respondent Council of an application to modify development consent DA/10/0640 granted on 18 October 2010 for the demolition of existing structures and the erection of a mixed commercial/residential building and 43 lot strata subdivision at 716 Old Princess Highway, Sutherland (the site). 2The issues between the parties have been resolved and the parties are seeking consent orders from the Court. 3The site is located on the south-east corner of the intersection of the Old Princess Highway and Merton Street, at the northern approach to the Sutherland Centre. The site is zoned 8- Urban Centre, under the Sutherland Local Environmental Plan 2006 (the LEP). The Sutherland Development Control Plan 2006 (the DCP) applies to the site. 4The plans forming part of the development application included drawings Nos 2B, 6B and 19B which showed dedication of a 9.0m wide laneway to the Council consistent with section 5.b.6 map 12g of the DCP. The development consent included conditions relating to arrangements with utility authorities (condition 16), required road frontage works (condition 28), design of the laneway construction (condition 33), completion of work on public land (condition 56), final site inspection (condition 57) and requiring dedication of the proposed laneway before the issue of an occupation certificate or subdivision certificate (condition 71). 5The application made under s 96(2) of the Act for modification of the development consent sought the deletion of conditions 33, 56, 57 and 71, the amendment of conditions 16 and 28, and the amendment of condition 1 to replace the reference to Architectural Drawings 2B, 6B and 19B with Architectural Drawings Nos 2BA, 4CA and 17CA. The significant substantive amendment to the plans proposed a private driveway instead of the approved 9.0m wide public laneway. 6At the same time as lodging this Class 1 appeal, the applicant commenced Class 4 proceedings challenging the validity of certain provisions in the DCP. Those proceedings were heard by Sheahan J, who held that the challenge to the DCP failed, and dismissed the Class 4 application: Conquest Constructions (NSW) Pty Ltd v Sutherland Shire Council [2011] NSWLEC 52. His Honour described the affect of the planning controls in the LEP and the DCP in the following terms: 7.The subject site is zoned 8 - Urban Centre. It lies at the northern entry to the " Sutherland Centre ", which is the principal administrative, commercial and retail centre of the Shire. Its redevelopment and revitalisation is a fundamental element of the strategy in the LEP. That strategy encourages mixed use, higher density, generous FSR, transport corridors including pedestrian paths, and high quality designs, including improved public domain. The building height controls for the subject site allow it to have 8 storeys (cl 33). The Council has for the site a " preferred amalgamation pattern ", facilitating construction in a U-shaped building envelope, and establishment of the dedicated public laneway at the rear. 8.Under the DCP the subject site forms part of " amalgamated site area 8a " (see map 12g, aka 9.7, in tab 5 of Exhibit A1). Amalgamated sites attract additional FSR (3.5:1 under cl 35, cf 3:1). The applicant in this case failed to achieve the preferred site amalgamation pattern, as the adjoining landholder in area 8a (The St Vincent de Paul Society) was not willing to sell, or undertake redevelopment. 7His Honour went on to describe the significance of the proposed dedication of the laneway: 9.The laneway running from Merton Street to Belmont Street will facilitate development of the St Vincent de Paul site and the remaining parcels of land not included in the current amalgamation pattern. It was a key matter in the pre DA negotiations between the parties, was specifically included in the DA submitted by the applicant, and was clearly a key consideration for the Council in approving that DA. The conclusion to the Council's favourable development assessment report dated 18 October 2010 (included in Exhibit S2 - see p12 of report) says that: " The inability to achieve the amalgamation pattern has not been fatal in this case due to the provision of the rear laneway to achieve vehicular access and the design of the building which will accommodate development of St Vincent de Paul's site to the east without any unreasonable constraints ". 8The Council in its Statement of Facts and Contentions in Reply in these Class 1 proceedings contended that the proposed modification, in particular the change from a public laneway to a private driveway, was such that the Court could not be satisfied that the modified development is substantially the same as the originally approved development. The Council further contended that conditions 33 and 71 could not and should not be deleted, and that deletion of the conditions relating to road frontage works and road frontage inspections would be unacceptable on planning grounds, and that the proposed amendments to condition 28 would give rise to uncertainties as to the requirements for the planting of street trees, landscaping and pavements. 9In the course of his determination of the Class 4 proceedings, Sheahan J held that the dedication of the public laneway was not mandated by a condition of the development consent. His Honour concluded: 142. The plans for the public domain include a clearly integrated network of rear lanes and front boulevards, of which the laneway involved in the present matter is an important component. The DCP did not go beyond a schematic indication of where the laneways and boulevards would be located. The Council indicated to the applicant that the dedication of the laneway would be important in the processing of its proposal, and the DC reflects the quid pro quo principle in the face of the applicant's failure to secure amalgamation with the St Vincent de Paul site. The approval and incorporation in the DC of plans showing the laneway as part of the applicant's proposal achieved the voluntary dedication, not any aspect of the operation of the DCP, nor the imposition of any condition. 10The parties have agreed that the proposed dedication of the public laneway is to remain part of the approved development. That dedication was supported by Mr Craig McLaren, the Council's traffic expert. The provision of access for pedestrians and vehicles from the rear of the approved development by means of the laneway was supported by the parties' expert planners, Ms Francis on behalf of the applicant and Mr Grech on behalf of the Council. 11The parties have reached agreement on certain works proposed as part of the development, including paving, landscaping and tree planting, and have proposed an amendment to condition 9 of the development consent relating a contribution under s 94 of the Act. The parties have agreed on amendments to condition 28, and the inclusion of new conditions 52A, 52B, 52C, 52D, 52E and 52F to improve clarity and certainty in relation to required road frontage works, the design and construction of the public laneway and street planting and lighting. Those amendments are consistent with the agreed position of the expert planners. A further matter in dispute between the parties relating to the undergrounding of overhead utility services has been the subject of an agreement between the parties and now forms part of condition 52C(j). 12The parties are now in agreement that the development as sought to be modified is substantially the same as that for which consent was originally granted, on the basis of the qualitative and quantitative comparative exercise required by the decision of Bignold J in Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298. As a consequence of this conclusion the Council's contention no longer arises and was not pressed. I am also satisfied that the development as sought to be modified is substantially the same as that for which consent was originally granted. 13I am satisfied that the conditions as now proposed meet the Council's remaining contentions. The Council's bundle of documents in evidence before the Court includes the objections made in response to the original development application. The matters raised in those objections concerning traffic and access were addressed in the provision of vehicle access from the rear by means of the public laneway and that aspect of the development is not modified. I am satisfied that the requirements of s 96(2) of the Act are met and, in consideration as required by s 96(3) of the relevant matters raised by s 79C of the Act, that the modification application should be approved and that the consent orders ought to be made. 14I note that the parties have agreed that there not be any order as to costs. The Court further notes that: 1.The Council undertakes to the applicant, at Council's sole cost, to: (a) Supply, install and connect a minimum of four (4) streetlights along the Princess Highway and Merton Street frontages of the site. Installation is to be in accordance with AS1158 - Lighting for Road and Public Spaces. Lighting design requirements are to be capable of complying with category P4 lighting design for pedestrian surfaces and category V4 for adjoining road surfaces. Lighting to comprise Sylvania Lighting Australia, Graphic 62 standard series, ceramic metal halide with flat glass visor, with an outreach of 3m curved arm, 8m high tapered pole with a 2pac epoxy enamel colour Basalt N54 finish, or alternate lighting to a similar standard. (b) Supply, install and connect street lighting (number of ligh/ts to be determined by Council) to illuminate the laneway. 2.The Council undertakes to the applicant to determine any application made for a consent under section 139 of the Roads Act 1993, in relation to the road frontage works contemplated by conditions 52B, 52C and 52D within 12 weeks of a written request being made by the applicant to the Council's Civil Assets Manager. 3.The Applicant undertakes that it will not lodge any further section 96 applications to vary approved section 94 contributions, other than in circumstances where an application is made to vary the number of residential units. 15By consent the Court orders: 1. The appeal is upheld in part. 2.Development consent DA10/0640 is modified in accordance with Annexure A. 3.The exhibits may be returned, except exhibits A, B and 3. Linda Pearson 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. Decision last updated: 27 June 2011