Land and Environment Court New South Wales Medium Neutral Citation: Ramsay & Anor v Wingecarribee Shire Council [2011] NSWLEC 1349 Hearing dates: 27 October 2011 Decision date: 28 October 2011 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld. (2)Development consent is granted to Development Application LUA 11/0142 for the subdivision of Lot 1 DP 785111, 416 Berrima Road, Moss Vale into two allotments and the construction of a 22m wide carriage way and the installation of pollution trap and a bio-retention system to treat post development water run off subject to the conditions in Annexure "A". (3)The exhibits are returned. Catchwords: Development application - challenge to conditions of a development consent for subdivision of land - whether the conditions imposed relate to a matter referred to in s79C (1) of the EPA Act and whether such matter is relevant to the particular development for which development consent has been given, s 80A (1)(a) of the EPA Act Legislation Cited: Conveyancing Act 1919 Environmental Planning and Assessment Act 1979 Wingecarribee Local Environmental Plan 2010 Moss Vale Enterprise Corridor Development Control Plan Cases Cited: Cavasinni v Fairfield City Council [2010] NSWLEC 65 Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; 158 LGERA 429 Mirvac Projects v Sydney City Council [2003] 131 LGERA 363 Newbury District Council v Secretary of State for the Environment [1981] AC 578, Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 MacDonald v Mosman Municipal Council [1999] NSWLEC 215 Carr v Goulburn City Council (Cripps J 21 June 1983, unreported) Category: Principal judgment Parties: Mr P Ramsay (First Applicant) Mr M Siddle (Second Applicant) Wingecarribee Shire Council (Respondent) Representation: Mr A Pickles Barrister (Applicant) Minter Ellison Lawyers Mr B Bilinsky Solicitor (Respondent) Bilinsky & Co File Number(s): 10750 of 2011 Ex tempore Judgment This determination was given extemporaneously and has been edited prior to publication . Introduction 1This is an appeal under s 97(1) of the Environmental Planning and Assessment Act 1979, (Act) against a development consent (LUA 11/10142) issued by the respondent, Wingecarribbee Council for the subdivision of land at 416 Berrima Road, Moss Vale (the land). 2The consent approves the subdivision of the land into two allotments and the construction of a private access road from Berrima Road through Lot 100 connecting to Lot 101. Lot 101 will benefit from a right of carriageway over Lot 100. 3The applicant seeks to retain the consent for the subdivision but wants conditions 9, 11,14 and 21 to be deleted. It contends that those conditions cannot be imposed under s 80A(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act), because they do not relate to the impacts of the development and/or are unreasonable. The council argues to the contrary. 4The appeal was heard at Picton Courthouse and expert town planning evidence was received from Mr Malloy for the council and Ms Pinkerton for the applicant. Their joint report is Exhibit C. 5The conditions in dispute are set out below: 6Condition 9 - subdivision certificate In accordance with Section 109J of the Environmental Planning and Assessment Act 1979 an application for a subdivision certificate along with the linen plan suitable for lodgement with the Land and Property Information NSW plus (8) copies and relevant other documentation, shall be made on the completion of works and the relevant application fee paid. All works specified in Council's' development consent and approved construction certificate plans shall be completed and all development consent conditions complied with prior to making a subdivision certificate application. The linen plans of subdivision shall be accompanied by a section 88B restriction under the Conveyancing Act 1919 requiring that the land in the north west corner of the site, generally as indicated by the cross hatched area shown on A4 plans marked "A" attached to this consent notice shall be set aside for future roadworks, with Wingecarribee Shire Council nominated as the authority empowered to release vary or modify the restriction. 7Condition 11- Future Industrial Development and Access provides: Depending upon the scale of a future proposed industrial development of the site, the private road/right of carriage way and junction with Berrima Road approved with this 2 lot subdivision may not be sufficient to adequately cater for such a future industrial development. Therefore depending upon the scale of the future industrial development of the site, a future DA for the industrial development could be approved subject to a new road access to a roundabout in the north western corner of the site, and the removal of the private road/right of carriageway and junction with Berrima Road approved by this 2 lot subdivision. 8Condition 14 provides: A legally binding instrument (Section 88B Conveyancing Act) shall be prepared in consultation with, and to the satisfaction of the Council for each allotment identified as affected by flooding in: (a) the contour survey plan and calculations Reference No: 201450 prepared by Richard Anderson and dated 6 April 2011. 9Conditions 21 provides: Where any part of any allotment created is within the 15 AEP flood an appropriate Restriction as to User shall be crated on the title of that lot. The works as executed plans and title document shall state the 1% AEP flood level and the minimum finished floor level for that allotment. The finished floor level is to be minimum of 500mm above the 15 AEP flood level. 10The statement of agreed facts and contentions filed by the applicant on 21 September 2011 records the relevant facts as follows: 11The land is part of the Moss Vale Enterprise Corridor (MVEC) and is zoned IN1 General Industrial under Wingecarribee Local Environmental Plan 2010 (LEP). It is also subject to the Moss Vale Enterprise Corridor Development Control Plan (DCP). 12It comprises a single allotment of 51.68 ha and is situated on the eastern side of Berrima Road, Berrima. It has a frontage of 240 m to Berrima Road. This is the only access to the site. Vehicular access is presently from Berrima Road from the south via an access easement over the southern adjoining site owned by Ingham Enterprises Pty Ltd. 13The site is bisected by Stony Creek, which is a perennial creek that runs from north to south through the site. 14The site is currently used for agricultural purposes and is substantially cleared, with small pockets of tree strands primarily on the eastern side of Stony Creek. 15On its northern boundary the site adjoins an access road to a quarry, which is being developed under pt 3A of the Act. 16The only improvements on the land are Chesley Park homestead and associated structures, an unsealed road and dam. 17There is not dispute about the fact that the development is permissible with consent, or that the land has the potential to be developed for a wide range of industrial and warehouse land uses. 18An objective of the IN1 General Industrial zone is: " To ensure that new development and land uses incorporate measures that take account of their spatial context and mitigate any potential impacts on neighbourhood amenity and character, or the efficient operation of the local or regional road system ". Council relies on this objective to justify the imposition of the conditions at issue under s 80A(1)(a) of the Act. It contends that it is in the public interest and the orderly and economic development of the land to impose the conditions. 19I will group the conditions by subject and deal with them consecutively. Conditions 9 and 10, The Small Roundabout 20Condition 9 requires the applicant to register an 88B restriction under the Conveyancing Act 1919, over a portion of the northwestern corner of the site. The restriction is to cover an area described in the condition as " generally as indicated by the crosshatched area shown on A4 plans marked 'A' attached to this consent notice shall be set aside for future road works, with Wingecarribee Shire Council nominated as the authority empowered to release vary or modify the restriction ". 21Council concedes that the area to be reserved for the future round about has not been surveyed and the exact dimensions are unknown. The area is described in the condition to be an area sufficient to allow construction, if necessary, of a small roundabout. According to the evidence, the exact area and dimensions of the roundabout will be driven by RTA and engineering requirements at the time of construction. 22Condition 11 is said to complement condition 9. Council submits that it attempts to address council's concern that the approved right of carriageway to the approved lots from Berrima Road may not be sufficient to adequately cater for future industrial development of the site. 23Council submits both conditions are for a planning purpose and are in the public interest and therefore able to be imposed under s 80A(1), because they are based on relevant considerations under 79C and s 5(a)(ii) of the Act . Imposition of conditions 9 and 11, council contends, allows an opportunity for future road works (should the need arise) to assist to meet the objectives of the General Industrial IN1 zone and orderly planning and development of the Moss Vale Enterprise Corridor. The Court was told that the small roundabout is the best access to the site, should a future development generate traffic and vehicles beyond the capacity and capability of the approved private road. It is also imposed to avoid conflict with the future roundabout at the Berrima Road-Taylor Avenue intersection, which is yet to be approved. 24Council believes the conditions are reasonable because the applicant is not being asked to build the roundabout, but rather to set aside the crosshatched portion of the land for future road works. Wingecarribee Council is nominated as the authority with the power to release, vary or modify the s 88B restriction. 25Council says that conditions 9 and 11 meet the objectives of s 5(a)(ii) of the Act and achieve the zone objectives of the IN1 General Industrial zone at [18] above. 26The applicant does not agree. It submits that the evidence of both planners supports a finding that the development does not generate a need for a small roundabout in the crosshatched section of the northwestern corner of the site. Nor does the adjoining quarry generate a need for the development of a small roundabout in that location at this time. The Court was taken to p 2 of the joint report exhibit C, wherein the planners state: " The two lot subdivision and access as sought in this development application does not warrant the roundabout in the north west corner of the site ." 27Furthermore, the applicant contends that there is no planning instrument, which applies which can be relied upon to require a small roundabout in the crosshatched section of the applicant's northwest corner. It is agreed that the draft s 94 contribution plan for Moss Vale Enterprise Corridor is not adopted and is in fact undergoing a third notification and is of little relevance to this application under s 79C of the Act . Furthermore, the planners agree in the joint report, exhibit C, that not all forms of future industrial development permitted on the site will require a roundabout in the northwest corner of the site. 28In short, the applicant says the reservation of land on the site for a possible future roundabout does not reasonably relate to the development and therefore cannot be imposed under s 80A(1) of the E P & A Act. Section 80A(1) states: 80A Imposition of conditions (4)Conditions-generally a condition of development consent may be imposed if: (a)It relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent. 29It submits that the imposition of condition 9 fails the second limb of the Newbury District Council v Secretary of State for the Environment [1981] AC 578 Newbury test. The applicant submits the council has opportunity to consider the need for a roundabout when a development, which generates that need, is lodged with council. It submits that it is inappropriate to include condition 11 to inform potential purchasers about development which may not ever eventuate. 30Both planning experts agree that a certificate pursuant to s149 of the Act informs the public about planning controls relating to a particular site at the time of issue. The applicant contends that an 88B instrument under the Conveyancing Act may be justified in certain circumstances to register a restriction on the title of land, but only if relevant to the particular development under consideration and not in anticipation of possible future development. Ms Pinkerton's evidence is that it is not appropriate in the circumstance of this case to require an 88B instrument as proposed in condition 9. The Court was referred to the decisions of Lloyd J in MacDonald v Mosman Municipal Council [1999] NSWLEC 215 at [7] and Carr v Goulburn City Council (Cripps J 21 June 1983, unreported) at [8] - [11], wherein the Court accepted that as a matter of principle, the Court is not favourably disposed to the view that restrictions on development operating by virtue of the Act should be, or need be, supplemented or reinforced by action taken pursuant to the Conveyancing Act 1919 to create binding restrictions as to user. 31The orderly and economic development of the land is, as the applicant submits, achieved when the actual development application is assessed against the relevant controls. Conditions imposed in anticipation of development, unrelated to the development, cannot be imposed under s 80A(1)(a) of the Act, even if they have a general planning purpose and are generally in the public interest. Flooding, Conditions 14 and 21 32Council submits that conditions 14 and 21 strive to identify areas on the site that are flood affected. Condition 21 repeats, as the applicant contends, flood related planning information that is available publicly upon inquiry. The council argues that conditions 14 and 21 can be justified because they are in the public interest and are reasonable. In short, they identify the flood-affected areas of the site and specify the minimum finished floor levels for each allotment. Council contends that the conditions can be imposed validly under s 80A(1) of the Act and s 80A(4)(a). 33The applicant does not agree. The applicant contends that condition 14 does not relate to the subject matter of the development and that condition 21 does not meet the requirements under s 80A(4)(a) because it does not provide: (a)one or more express outcomes or objectives that the development or a specified part or aspect of the development must achieve. 34The applicant submits that the conditions do not relate to the development and are premature and therefore are unreasonable and unnecessary in the circumstances of the case having regard to Newbury test. Finding 35Section 80A is the focus of this case and the parties have referred me to several authorities concerning the general principles relating to that section of the Act: Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53; 158 LGERA 429, Planning Commission (WA) v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30, Newbury District Council v Secretary of State for the Environment [1981] AC 578, Mirvac Projects v Sydney City Council [2003] 131 LGERA 363. 36As was made clear in the decision of Craig J Cavasinni v Fairfield City Council [2010] NSWLEC 65 at [14] - [46] to determine whether the conditions at issue can be imposed in this case it is necessary to consider the statutory language in s 80A(1)(a). The judgment states at [17]: " Properly analysed, it seems to me that s80A (1)(a) requires two matters to be addressed. The first is whether the condition relates to a matter referred to in s79C (1) and the second requires a determination as to whether such matter is relevant to the particular development for which development consent has been or is proposed to be granted ." In short, conditions of consent can only be imposed under s 80A of the Act if they relate to a matter referred to in s 79C(1) and are of relevance to the development, the subject of the consent. 37I accept Ms Pinkerton's assessment that conditions 9 and 11 do not relate to the development, the subject of the consent, because there is no need generated for the reservation of land on the site for a small roundabout by this development. The conditions anticipate a need that may arise from future development of the site. The present development application deals with subdivision simpliciter. Furthermore, there is no planning instrument in place such as a s 94 policy to require the reservation of land for a small roundabout at this point of time or for future development that may never require a roundabout. Nor is there evidence that the adjoining quarry development to the east generates a need for a small roundabout in that general location at this point of time. 38There is no basis to require the creation of an 88B instrument to preclude development of the northwest part of the applicant's land in the circumstances of this case. 39The conditions under review in this appeal do not, on the evidence before me, relate to any matter in s 79C(1) of the Act of relevance to this subdivision development . It is entirely unreasonable in my opinion to require this applicant to sterilise a portion of the site from development in anticipation of a possible future need. Based on the evidence, I find that conditions 9 and 11 cannot be imposed under s 80A(1)(a) of the Act . 40With respect to conditions 14 and 21, I accept the applicant's submissions, as discussed above, that the conditions do not satisfy s 80A(1)(a) of the Act, or s 80A(4)(a) of the Act . Conditions 14 and 21 cannot be imposed on this consent. 41In my opinion, orderly or economic development cannot be achieved by second-guessing what will happen on this site in the future, independent of the relevant planning controls. A future purchaser will be able to review and consider the information on a s 149(5) certificate to identify the land's development potential and the relevant development controls at that time. Council will be in a position to revisit the need for a roundabout or flood level issues when and if any future application raises those types of issues. 42For the reasons discussed, s 80A(1)(a) or 80A(4)(a) of the Act does not empower me to impose the conditions 9, 11, 14 or 21 in the circumstances of this case. I accept the applicant's submissions based on Ms Pinkerton's evidence in the joint report and determine that the appeal should be upheld and development consent issued without conditions 9,11,14 and 21 imposed. 43The council is directed to draft conditions of consent that reflect my reasons for judgment and provide them to the applicant and the Court within fourteen (14) days. The Court's orders will issue upon receipt of the conditions. The exhibits will be returned upon publication of the judgment. 44In accordance with the Court's direction the council has now filed agreed conditions of consent, which reflect my reasons for judgment. Accordingly, the Court Orders: (1)The appeal is upheld. (2)Development consent is granted to Development Application LUA 11/0142) for the subdivision of Lot 1 DP 785111, 416 Berrima Road, Moss Vale into two allotments and the construction of a 22m wide carriage way and the installation of pollution trap and a bio-retention system to treat post development water run off subject to the conditions in Annexure "A". (3)The exhibits are returned. Susan Dixon Commissioner of the Court Annexure 'A' 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: 02 December 2011