Land and Environment Court New South Wales Medium Neutral Citation: Fitzpatrick Investments Pty Ltd v Blacktown City Council [2012] NSWLEC 1133 Hearing dates: 8 May 2012 Decision date: 25 May 2012 Jurisdiction: Class 1 Before: Dixon C Decision: (1)The appeal is upheld. (2)Development consent DA07/1856 is modified by the deletion of condition 65(b). (3)The exhibits are returned. Catchwords: Modification application - the deletion of a condition of a development consent requiring the registration of a s 88B instrument on the title of each lot of a subdivision; the condition was imposed to protect and maintain trees; is the condition unnecessary and/or inappropriate in circumstances where tree removal already requires the council's consent. Legislation Cited: Environmental Planning and Assessment Act 1979 Conveyancing Act 1919 Blacktown Local Environmental Plan, 1998 Blacktown Development Control Plan 2006 Cases Cited: Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502 Antoun v Wollondilly Shire Council (2009) NSWLEC 1308 BTG Planning v Blacktown City Council [2008] NSWLEC 1500 Charles Family Kindergarten Limited v Council of the City of Sydney [2006] NSWLEC 590 Hillpalm Pty Limited v Heaven's Door Pty Limited (204) 220 CLR 472 Telstra Corporation Limited v Hornsby Shire Council (2006) 146LGERA 10 Walton v Blacktown City Council [2006] NSWLEC 451 Category: Principal judgment Parties: Fitzpatrick Investments Pty Limited (Applicant) Blacktown City Council (Respondent) Representation: Counsel Mr I Hemmings, barrister (Applicant) Mr M Seymour, barrister (Respondent) Solicitors Norton Rose Australia (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 10240 of 2012 Judgment 1On 24 December 2008 development consent was granted by the Court for the subdivision of Lot 101, DP 863828, Hampton Crescent, Prospect into twenty-six residential lots, a community title lot for roads and a further lot for conservation and dedication to council (BTG Planning v Blacktown City Council [2008] NSWLEC 1500). 2Condition 65 (b) of the consent provides: Post construction of the subdivision the trees, identified in Condition 75 (a) [sic] above and as finally preserved on site shall be the subject of a s 88B (Restriction as to user) instrument under the Conveyancing Act 1919 identifying the trees that must be retained on each of the individual allotments that are created. 3By an application made on 7 November 2011 the applicant, Fitzgerald Investments Pty Ltd, sought to modify that consent by deletion of condition 65(b). That application having been refused by the council on 28 March 2012,the applicant now appeals seeking approval from the Court for the deletion of that condition. 4The applicant contends that condition 65(b) is unnecessary and inappropriate. It places a burden on the developer and future purchasers of the lots. It serves no planning purpose. 5Council in its amended statement of facts and contentions dated 30 April 2012 contends that the requirement for a s 88B instrument in the terms outlined in condition 65(b) in respect of each lot serves the public interest because - when read with condition 65(a) - it ensures the protection and maintenance of identified trees on the individual lots; the s 88B instrument notifies potential purchasers of the requirement to retain and maintain certain trees; and the condition internalizes the costs of vegetation conservation and management within development rather than shifting those costs onto the Council and ultimately the community. 6I must determine in accordance with s96AA of the Environmental Planning and Assessment Act 1979 (EP&A Act) whether it is appropriate in the circumstances of this case to delete condition 65(b) of the development consent. 7The land is zoned 2(a) Residential pursuant to the Blacktown Local Environmental Plan, 1998 (BLEP). Clause 25 of the BLEP contains the provisions for Tree Preservation: Tree Preservation "(1) A person shall not ring bark, cut down, lop, top, remove, injure or willfully destroy any tree, or cause any tree to be ring barked, cut down, topped, lopped, removed, injured or willfully destroyed; except with the consent of the Council. (2) In any proceedings for an offense arising under this clause, it shall be sufficient defence to prove that the tree ring barked, cut down, topped, lopped, removed, injured or willfully destroyed was dying or dead or had become dangerous. (3) This clause does not apply to trees in a state forest or on land reserved as a timber reserve within the meaning of the Forestry Act 1916, or to trees required to be lopped in accordance with the Regulation 38 or 39 of the Overhead Line Construction and Maintenance Regulations 1962, or to any trees which are under the control or management of the Sydney Water Corporation. (4)This clause does not operate so as to require a consent to be given pursuant to this clause for the carrying out of development at a plant nursery if the development could lawfully be carried out at the plant nursery in the absence of this clause." 8Blacktown Development Control Plan 2006 (BDCP) - Part A Introduction and General Guidelines; and, Part C, Development in the Residential Zone control residential development of the land. 9Tree removal on any land within the Blacktown Local Government area requires the council's consent. It must be approved either via the approval of a Development Application or a Tree Removal Application if there is no development proposed, or a Complying Development Certificate to be determined either by council or a private certifier. 10The Council's Planning and Development Assessment Report No SD320015 supports the deletion of condition 65(b). It states: This section 96AA application does not seek to amend the formation, layout, the number of lots, lot sizes or roads in the subdivision which was approved by the LEC. The application does not seek approval to remove any trees from the site. Rather it seeks to enable the normal channels of development assessment to apply to the proposed lots as they apply elsewhere in the city. Council's Regulatory Planning Unit who dealt with the appeal in the LEC advised that the trees within the proposed residential lots were not the focus of the appeal, rather the LEC focused on the development holistically and whether the form of development was appropriate. The overriding issue with the proposal was the conservation of habitat. In particular the matter centered on the question of whether the site should be developed at all, and if it is found that it should be developed, whether adequate provision was made for the retention of trees and habitat outside the residential lots. The applicant is in the process of dedicating and contributing to the regeneration of more than one-third of the subject site (1.54 ha) to council to be amalgamated into the adjoining Timbertop Reserve, and will be required to bush regenerate 12 ha of bushland within the Western Sydney Parklands as an offset to the loss of the Cumberland Plain Woodland within the subject site. The Court found that these measures were adequate to facilitate the conservation of habitat and that the remainder of the site could be subdivided for residential development. Condition 65(b) was imposed when the draft Development Consent was prepared for the Court. The Applicant did not object to the condition at that time and it was duly imposed by the Court when the appeal was upheld. ... ...The use of a s 88B in this instance is considered to be an unnecessary burden on the future residential owners, especially where this is already policed by existing council policy regulating tree removal but also given their genuine compensatory offsets for the future development of the residential lots in the form of a substantial land dedication to add to the Timbertop Reserve as well as bushland regeneration in the WSP in accordance with the requirements of the Parkland Trust " (folio 61 of tab 2 exhibit 2). 11Referrals to the council's Development Engineers, Building Surveyors, Regulatory Planning Unit and Land Projects Committee have not raised any objection to the deletion of condition 65(b) from the development consent. 12The s 96AA modification application was notified and the council received three written submissions. In council's assessment report, however the submissions do not justify the refusal of this application. The planning assessment report states that the council's Tree Preservation provisions in the BLEP 1988, which regulate the development application and tree removal process, address the issues raised by the objectors to the application. The deletion of the condition will not interfere with the usual development process that "... All assessments for the removal of trees will be undertaken on a merits based approach, upon application, to determine whether or not it is suitable to allow the removal of any tree on any lot" (at folio 59-61 at tab 2 exhibit 2). 13I have also had regard to the oral evidence of Mr O'Reilly and Mr Olling and the written submissions tendered in council's bundle (exhibit 2). Applicant's evidence and submissions 14As detailed at the outset of this judgment the applicant's primary position is that there is no planning reason to justify the imposition of condition 65(b) on the facts of this case. It contends that the requirement for a s88B restriction as to user on the land places an unnecessary burden on the applicant and subsequent purchasers. 15Based on the latest survey there will be a need to apply to the council for consent to remove certain trees on the lots, particularly within the asset protection zones. 16The deletion of this condition will allow future owners the ability to develop their residential lot in the usual way subject to the council's tree preservation provisions and development controls. It will avoid the time, cost and delay associated with seeking a variation or modification or release of the s 88B covenant on their land. 17The Courts have for some time recognised that restrictions imposed under the Conveyancing Act 1919 should not be used to enforce planning provisions where adequate controls are in place: Rodgers v Blacktown City Council [2008] NSWLEC 1502; Carr v Goulburn City Council per Cripps J (unreported) 21 June 1983. The council's assessment report concludes that there are adequate planning controls under the TPO and the BLEP. 18Therefore, the condition is unnecessary and inappropriate in this case. The decision of the High Court in Hillpalm Pty Limited v Heaven's Door Pty Limited (204) 220 CLR 472 does not displace the need for an owner of land in this subdivision to obtain the council's consent to the removal of any tree. 19The applicant relies on the council' s planning assessment report in support of the deletion of the condition and Mr App's oral evidence that the s88B restriction on title merely "...adds another layer" to the planning controls which already require the council's consent for the removal of a tree. It submits that Mr Apps in cross-examination conceded that the imposition of a s88B restriction on use would do no more than remind the purchaser of obligations under the BLEP or the TPO. 20The applicant submits that ultimately, Mr Apps' evidence was consistent with the conclusions in Council's staff's planning assessment report at folios 53 and 54 of exhibit 2. Council's evidence and submissions 21The Council submits that condition 65(b) complements condition 65(a) by requiring nominated trees to be protected and managed. 22It contends that the s88B instrument is necessary because the plans of management and conditions of this consent do not bind subsequent purchasers of lots since Hillpalm. Therefore, there is no mechanism to create a condition of the consent that would, of itself, bind the residential use of purchasers of the lots in the subdivision to maintain and protect the nominated tree. Because there is no adequate provision for enforcement under the existing planning scheme it submits that condition 65(b) remains an appropriate means of creating a mechanism for that enforcement after the subdivision is registered. It contends that the provisions of the TPO whilst important do not of themselves convey to a purchaser of a lot in the subdivision that there are trees, which are protected under condition 65(a) of the consent. Accordingly, a registered covenant is appropriate to inform purchasers that trees on the lots they might purchase are not able to be removed, subject to assessment under the provisions of the TPO or the BLEP because they are protected and to be managed under condition 65(a) of the consent. 23The council also maintains it is relevant that the applicant did not object to the imposition of condition 65(b) as a mechanism for the protection of trees within the lots at the time of the hearing. While subsequent surveys have identified trees within the setback zones this does not justify removal of the restriction. It submits a more appropriate way of handling this problem would be to lodge a s 96 application to amend the subdivision plan. 24The council submits there is simply no reason to interfere with the conditions imposed by the Court. The imposition of the s 88B covenant is an appropriate and necessary use of the power to make conditions under s 80A of the Environmental Planning and Assessment Act 1979. 25The council also contends that it is appropriate to consider the principles of ecologically sustainable development called up by the EP and A Act in respect of this assessment: Telstra Corporation Limited v Hornsby Shire Council (2006) 146LGERA 10; Antoun v Wollondilly Shire Council (2009) NSWLEC 1308. 26One of the principles of ecologically sustainable development is to ensure that environmental costs are internalised within a development project, in order that those costs are not passed to the public at large as "externalities": Telstra at [para 119]. It is not unlike the user pay principles supporting conditions for example requiring ongoing monitoring: Charles Family Kindergarten Limited v Council of the City of Sydney [2006] NSWLEC 590. The Council contends that condition 65(b) serves a purpose of: (i)designating protected trees under the condition 65(a); (ii)notifying purchasers of the land the subject of the subdivision that there are protected trees on the land; (iii)creating enforceable obligations on owners of the lots the subject of the subdivision to conserve that vegetation (s 88H of the Conveyancing Act); (iv)By notifying purchasers of these obligations, and ensuring the obligations are mutually enforceable against all owners, promoting a conscious awareness of and responsibility for conservation in the occupants of the residential subdivision the subject of the consent 27The council maintains that the deletion of condition 65(b) would shift the entire cost of surveillance, supervision and enforcement of the protection obligations onto the council. In addition, the council's role and enforcement of the protection obligations would be largely reactive rather than being preventative. It contends that it is in the public interest to maintain the condition and having received the benefit of the residential subdivision of the land it accepted the imposition of the condition and any burden ensuing in respect of the protection and management of certain limited number of trees within the development stop. Progress and Securities Pty Limited v North Sydney Municipal Council [1998] 66 LGRA 236; Walton v Blacktown City Council [2006] NSWLEC 451. 28The council relies on the written and oral evidence of Mr Apps who is employed by the council as the Team Leader Regulatory Planning (exhibit 4). Mr Apps told the Court that the Blacktown Local Government area is large with approximately 140 parks and reserves to manage. The council staff are not able to carry out proactive inspections to monitor whether vegetation on private land is being maintained. In his experience council does not find out about unauthorized tree removal until such time as it has taken place and the complaint is received, if in fact a complaint is made at all. In his assessment it would be a: "Significant resource cost in terms of staff time and financial implications if it was expected that council's open plan policy and tree management staff were to carry out proactive monitoring of the entire Blacktown Local Government area. " 29In his professional opinion it is: "a far greater effective outcome, and in the public interest if the obligation to conserve the vegetation should remain with the development in the form of restriction, on the title of each lot that is affected by the vegetation." Consideration 30The council argues that the Court's reluctance in cases such as Rogers v Blacktown City Council [2008] NSWLEC 1502; Carr v Goulburn City Council (unreported) 21 June 1983; (Cripps J) to impose a s 88B instrument (Restriction as to user) on the land needs to be reconsidered as a result of the Hillpalm decision. While that may well be so in some circumstances it is not necessary in the present case. The TPO is sufficient to control an action affecting a tree. The right to remove a tree is controlled independently of condition 65(b). 31As Mr Apps told the Court, the imposition of the s 88B restriction does no more than add an extra layer upon the consent. It is an extra reminder that an owner must obtain permission to remove trees identified in the instrument. Mr Apps agreed that it is council's policy to list the TPO and development controls on the s 149(2) certificate for the land. He agreed that the s 149(2) or s 149(5) certificate serves to notify the purchaser of the requirement for consent to remove trees on the lots the subject of this application. And that a copy of the s 149 certificate is required to be included in any contract for the sale of land in New South Wales and as a result a purchaser would be on notice of the need for consent to remove a tree on the land. 32While I accept that one of the principles of ecologically sustainable development is to ensure that environmental costs are internalized within a development (so that they are not passed onto the public at large as "externalities"; Telstra; [119]); it is also the case that an abdication of planning responsibility, by virtue of an excessive reliance on land title registrations should be avoided. I am not convinced that the power of the council to either grant or withhold development consent for the erection of a dwelling on the lot requiring the removal of a tree; or refusal to do so under the TPO needs to be reinforced in the manner contended by council. 33Nor do I accept on the evidence before me that there is a planning basis for a s 88B instrument to be registered on the title in order for a purchaser to be on notice as to the need for consent to remove a tree on the lot. There is simply no justification for imposing a condition limiting future use of the allotments by way of a registered restriction as to user after a consideration of council's assessment report number SD320015. This case deals with ecologically sensitive land but it is not land which falls within the category of "rare and unusual" such as to justify the requirement for the restriction as to user; Our Firm Facility Pty Limited v Wyong Shire Council [2001] NSWLEC 243 at [7]. 34I accept the conclusion of the planning assessment report prepared by the council staff that there is no justification for a s 88B instrument in the particular circumstances of this case. The tree retention plan dated October 2011 demonstrates that the applicant has retained the trees required by the approval issued by the Court. Whilst lots 1 to 4 and 16 to 26 have large building footprint areas council's assessment report records that the position of the trees would prevent even a modest sized dwelling being erected on these lots. Lots 5 to 15 have an even more restrictive building footprint area due largely to the APZ that affects these sites. Those trees within the APZ will need to be removed as a result of individual dwellings being approved because of the provision of AS3959-Construction of Buildings in Bushfire Prone Area. As the assessment report records at folio 58 "Whilst such a variation would not be a regular position Council would support, nevertheless it is potentially an outcome." The report goes on to say that in accepting the condition at the hearing the restriction was part of a suite of conditions drafted by council. The restriction however, did not form "the core of the Court consideration"; in fact no discussion was had about it at the earlier hearing. Therefore, I cannot accept that the subdivision approval depended upon the imposition of condition 65(b). 35It is clear on the evidence before me that deletion of condition 65(b) will not result in a different development. I am satisfied in accordance with Section 96AA(1)(a) that the development to which the consent as modified relates it substantially the same development as the development for which the consent was originally granted. Irrespective of whether condition 65(b) remains, there will still be the requirement to obtain consent for the removal of trees on the individual lots under the council's LEP and TPO provisions or a complying development certificate. I am also satisfied that the enforcement provisions under the EP&A Act will adequately ensure that the environmental costs are internalized - each owner bears the responsibility to develop in accordance with environmental laws. The imposition of a s 88B restriction as to user on each lot as required by condition 65(b) is as Mr Apps told the Court an additional layer. A submission that the applicant has accepted the benefit of the consent and therefore must accept the burden of condition 65(b) raises matters of discretion. In light of the observations of Jagot J in Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502 at [69] - [70]; 148 LGERA 85) I am not persuaded on the facts of this case that such a principle, if ever relevant, justifies refusal in the present case. 36Having regard to the above and my assessment under s 79C of the EP&A Act I make the following orders: (1)The appeal is upheld. (2)Development consent DA07/1856 is modified by the deletion of condition 65(b). (3)The exhibits are returned. Susan Dixon 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: 25 May 2012