Land and Environment Court New South Wales Medium Neutral Citation: Urban Peninsula Pty Limited v Ku-ring-gai Council [2013] NSWLEC 1030 Hearing dates: 14, 19 February 2013 Decision date: 22 February 2013 Jurisdiction: Class 1 Before: Hussey C Decision: Appeal upheld, consent granted subject to conditions. Catchwords: Development application; conditions regarding plan of management and easements for access to basement tunnel connecting adjacent residential flat buildings Legislation Cited: DCP 31 - Access DCP 40 -Waste Management DCP 43 - Car Parking DCP 47 - Water Management DCP 55 - Railway/Pacific Highway Corridor & St Ives Centre DCP 56 - Notification EP & A Act 1979 Ku-ring-gai Planning Scheme Ordinance (KPSO) State Environmental Planning Policy 1 - Development Standards State Environmental Planning Policy 55 - Remediation of Land State Environmental Planning Policy 65 - Design Quality of Residential Flat Development Sydney Regional Environmental Plan (Sydney harbour Catchment) 2005 Cases Cited: Dogild Pty Ltd v Warringah Council [2008] NSWLEC 53, Category: Principal judgment Parties: Urban Peninsula Pty Limited (Applicant) Ku ring gai Council (Respondent) Representation: Mr D Briggs (Applicant) Mr G Shapiro (Respondent) Solicitors DC Briggs and Associates (Applicant) Norton Rose Australia (Respondent) File Number(s): 11222 of 2012 Judgment Background 1This appeal is against council's refusal of a development application for a basement driveway, which is effectively a tunnel to provide access between adjacent residential flat buildings, located in Buckingham Road, Killara, to facilitate combined access to Buckingham Road. 2The subject site is 2 - 6 Buckingham Road (Dev 1) and the neighbouring property is 6A - 8 Buckingham Road (Dev 2). There is a current consent for the Dev 1 to construct a 5 - storey residential flat building containing 29 units above 2 levels of basement parking. Access to the basement car park is via Buckingham Street. 3Dev 2 has consent to construct 43 units over basement parking. This consent relies on access via Dev 1 and contains the following deferred commencement condition: This consent shall not operate until the following deferred commencement conditions are satisfied: (1) The consent authority is satisfied that vehicular access to and from the development and Buckingham Road is available in the manner proposed in the development application (through the basement of an approved residential flat development on 2-6 Buckingham Road). (2) Evidence is to be submitted, to the satisfaction of the consent authority, of registration on title of a vehicular easement/covenant burdening 2-6 Buckingham Road and benefiting 6A-8 Buckingham Road which allows ongoing legal vehicular access consistent with the physical arrangement required to satisfy deferred consent condition no.1. 4The proposed tunnel is to enable the satisfaction of this deferred commencement condition. This would enable the vehicles from Dev 2 to access their site via the approved driveway in the subject site and the tunnel. Previous considerations by the Court determined that separate access to Buckingham Road from Dev 2 was not appropriate. 5Council's initial contentions concerned the orderly and economic use of land in terms of the effective coordination of the construction, use and management of the combined driveway and tunnel. Insofar as a number of other issues were raised, further conferencing between the parties resulted an agreement that they could be covered by appropriate conditions. 6With regard to the primary 'orderly' development issue, Council initially proposed a Deferred Commencement consent, which required firstly the approval of a Plan of Management (POM) to establish the phasing and staging of basement connection between the two buildings. This condition also required the applicant to endeavour to obtain an agreement with Dev 2 to achieve the orderly implementation of the tunnel arrangement. The applicant objected to this approach on the basis that there was long - standing communication between the respective property owners regarding this outcome. 7There was a joint planning conference resulting in an agreement that the contentions raised by council could be satisfied by conditions of consent to be imposed on the subject development. Insofar as most of the conditions have also been agreed, the following conditions concerning the ultimate coordination and provision of the essential easements over the subject property were not agreed and left for the Court's determination. 8Considering the somewhat uncommon nature of the subject development, and the fact that development consents have been granted for the residential flat buildings on the respective adjoining lots, the following background material has been considered The site 9The subject site is No.2-6 Buckingham Road, Killara. It site is located on the southern corner of the intersection of Buckingham Road and the Pacific Highway, Killara. The site has a total area of 2745m2, is roughly triangular in shape, with dual frontage of 79.5 m to Buckingham Road and 14.5 m to the Pacific Highway. The southern boundary is approximately 86 m in length while the western boundary measures 45.7 m. 10The adjoining development site (south-west of 2-6 Buckingham Road) consists of three allotments; one with a frontage to Buckingham Road (No. 8 Buckingham Road) and two battleaxe allotments containing one dwelling (No. 6A Buckingham Road). 11This site is on the southern (low) side of Buckingham Road and is irregular in shape with a total area of 3792.2m2. The site has a frontage of 28.03 m to Buckingham Road and widens to 64.31 m at the rear boundary. The site has a depth of 164.72 m along its irregular eastern boundary and 91.86 m along its western boundary. Planning controls 12The following controls apply: * State Environmental Planning Policy 1 - Development Standards * State Environmental Planning Policy 55 - Remediation of Land * State Environmental Planning Policy 65 - Design Quality of Residential Flat Development * Sydney Regional Environmental Plan (Sydney harbour Catchment) 2005 * Ku-ring-gai Planning Scheme Ordinance (KPSO) * DCP 55 - Railway/Pacific Highway Corridor & St Ives Centre * DCP 31 - Access * DCP 40 - Waste Management * DCP 43 - Car Parking * DCP 47 - Water Management * DCP 56 - Notification The proposal 13The subject application is for the proposed tunnel. It is described having a total width of the driveway connection of 7.3 m and a carriageway of 5.5 m wide. The total width of the connection includes a 600 mm wall thickness on each side and a 300 mm kerb on each side. The head clearance of the connection is 2.6 m. 14The basement connection is proposed at basement 02 level of Dev 1, which is at RL 108.79. It is proposed to provide a ramp gradient of 1:28 to connect with the proposed basement level at RL 109 being Basement Level 2 in Dev 2. 15It is proposed to provide a security roller door along the western edge of the proposed vehicular connection at Dev 1 to prevent residents or visitors of Dev 1 passing through the connection into the basement of Dev 2. 16The top of the slab of the proposed vehicular connection is between RL 111.79 and RL 112 and the natural ground level above the connection ranges from RL 115 to approximately RL 113.5. Accordingly the depth below natural ground level of the basement connection is between 3.21 m and 1.171 m. The area of the new basement connection is 44m2. Discussion of the evidence 17The joint planning conference was undertaken by: * Ms R Hoschke; Council planner * Mr W Gosling; Applicant's consulting planner 18As noted, the only issue for the Court's determination concerns the following conditions, which mainly concern 'orderly development' considerations for the tunnel application, within the confines of the existing consents for the separate residential flat buildings. 19Section 80A deals with the circumstances of imposing conditions on development consents in relation to s79C matters for consideration. This includes: (b) likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) ... (e) the public interest. 20Also relevant is the validity of conditions and this matter was addressed by Biscoe J in wherein he included the following reference to the "Newbury tests": TESTING VALIDITY OF A CONDITION37 The "Newbury tests" or principles were formulated by the House of Lords to test the validity of an apparently unlimited statutory power to impose planning conditions. In Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 607G Lord Fraser held that the power was nevertheless subject to certain limitations: In order to be valid, a condition must satisfy three tests. First, it must have a planning purpose. It may have other purposes as well as its planning purpose. But if it is imposed solely for some other purpose or purposes, such as furtherance of the housing policy of the local authority, it will not be valid as a planning condition: see Reg. v. Hillingdon London Borough Council, Ex parte Royco Homes Ltd. [1974] Q.B. 720. Second, it must relate to the permitted development to which it is annexed. The best known statement of these two tests is that by Lord Denning in Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1958] 1 Q.B. 554 which has been followed and applied in many later cases. Lord Denning said. at p. 572: Although the planning authorities are given very wide powers to impose such conditions as they think fit, nevertheless the law says that those conditions, to be valid, must fairly and reasonably relate to the permitted development. The planning authority are not at liberty to use their powers for an ulterior object, however desirable that object may seem to them to be in the public interest. One reason, relevant to the instant case, why it would be wrong to secure removal of buildings by the use of a condition unrelated to the permitted development is that it would enable the planning authority to evade its liability to pay compensation for removal under section 51 of the Act of 1971. Thirdly, the condition must be reasonable in the rather special sense of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, 229. Thus it will be invalid if it is so clearly unreasonable that no reasonable planning authority could have imposed it... 21In the subject matter, the proposed Condition 31 relates to the arrangements for establishment of the tunnel and its subsequent use. Council, in acknowledgement of the tunnels primary use as an area for movement of both resident and service (particularly waste collection) vehicles, submitted that once the approved basement tunnel has been completed, it can only be used for the purpose of providing vehicular access to the basement car park of Dev 2, and in particular, must not be used for other purposes such as storage of goods, parking of vehicles or plant. 22Accordingly, council's draft condition is that prior to the physical connection of the approved Dev 2 to the basement tunnel, the Principal Certifying Authority is to be satisfied that the following burdens: * a right of carriageway benefiting 6A-8 Buckingham Road, Killara, * an easement for waste collection benefiting Ku-ring-gai Council, in accordance with Council's draft terms, have been registered over the entire path of travel from Buckingham Road to the end of the tunnel at the south western boundary of Dev 1. The vertical extent of the right of carriageway and easement must be at least 2.6 m and must correspond to the floor-to-ceiling height of the driveway and tunnel. 23The terms of the Instrument(s) describing these burdens must include responsibilities for maintenance, upkeep and servicing of the tunnel at all times, including if relevant, before, during and after the construction and occupation of Dev 2. Council must be named as the authority to release, vary or modify both of the above burdens. 24Council's preference is that the condition should be specific in restricting the use the completed tunnel to the access use proposed and not allowing some other use if the agreements between the parties not proceed. Therefore the following provisions should be required: "If: (a) development consent DA0110/11( Dev 2) lapses; or otherwise, (b) an occupation certificate has not been issued for the development approved under development consent DA0110/11 within 7 years of the date of this consent; and (c) no approval for a change of use has been obtained from the consent authority, then: the basement tunnel must either be demolished or filled in to the satisfaction of Council's development engineer." 25Against this, Mr Briggs submits this form of condition is unreasonable. Whilst accepting that the condition can restrict the use of the tunnel for access and servicing for Dev 2, his submission is that any future changes in circumstances could be covered by the condition stating: "If the need for access to the adjoining land is not sought or required by Dev 2 before application is made for a Subdivision Certificate for the completed residential flat building for the subject land (Development Consent 1354/04), then the following action should take place: (i) a competent application for development consent is to be made (and approved) for an alternative use for the works provided in this development consent. (ii) The Subdivision Certificate is to allocate the entitlement for the works provided for by this development consent consistent with its approved use. 26In support of these different approaches, various submissions were made regarding possible outcome scenarios for the future, the desire for coordinated development of both development sites and the also the need for integration of the access/services tunnel. 27Considering the provisions of the Newbury tests, I consider it appropriate to impose a condition such as Condition 31 because it relates directly to the planning purpose of the use of the subject land. 28In terms of the reasonableness of the competing versions, I consider the condition should be quite specific on the "access use" only. One of the scenarios mentioned was that if Dev 2 does not proceed in a timely manner relative to Dev 1, then the Dev 1 occupiers may have an expectation that the constructed tunnel could alternatively be used for other uses such as storage or garaging. I agree with council that this would not be consistent with the intent of the existing RFB consents and therefore undesirable. 29Consequently, I do not consider the form of condition submitted by Mr Briggs is appropriate because it does not provide adequate specificity and finality. I think it inappropriate and unreasonable that such condition should be qualified by the requirement to lodge and obtain approval, for an alternative use. If there is a change of circumstances, then the applicant has the usual options to make a s96 modification application or lodge a new development application, which could then be considered on its merits. 30Insofar as there were brief references made to the subdivision plan, I understand that the strata plan for Dev 1 can be submitted for approval by the PCA after this building and associated works has reached a stage where the individual strata lots and common property can be identified. However the subject (tunnel) area is within the area covered by Dev 1 and presumably is ultimately to be some form of "common property" that is subject to the appropriate easements benefiting Dev 2. In these circumstances, I think that the orderly development considerations would be to avoid the tunnel area becoming a separate lot. In my assessment it is reasonable to finalise its status before the strata plan for Dev 1 is approved. 31Therefore, I accept council's concerns that careful consideration should be given to the integration of these developments so that the overall construction of the tunnel area and its subsequent designated use is clearly specified in the subject consent. In the circumstances I also note that s 80A enables time restrictions on consents and note that the time period of 7 years nominated by council seems reasonable in the subject matter. 32Accordingly, I think council's further qualification of this condition that if the tunnel is not required after the prescribed period then it be removed unless an alternative consent is obtained. For these reasons, I consider the intent of council's proposed Condition 31 is reasonable, particularly taking into account the submissions that the respective parties have had on -going discussions to achieve the outcome prescribed in council's form of Condition 31. As stated previously, if circumstances change, there are adequate opportunities to review the consent in the usual manner. 33Insofar as a number of other conditions were challenged, this was mainly in relation to detailing matters. Some of the conditions contained extra detailing, which in my opinion reads more as an advisory note for the applicant. As it is not the Court's usual practice to incorporate these notes within the specific conditions, nevertheless in some circumstances the presentation of separate advisory notes may be included to assist interested parties in understanding the overall outcome expectation for the development. Due to the more complex neighbour relationship in this matter, I follow that course in the subject matter. 34In summary then, this application is specifically to develop an interconnecting tunnel in Dev 1 to provide access for designated vehicles and servicing arrangements for the adjoining Dev 2. I rely on the planner's agreement that it is appropriate for conditional consent to be granted. My assessment is that the conditions in Annexure A are fair and reasonable in the circumstances of this application. Court orders 35The Court orders that: 1 The appeal is upheld. 2 Development consent is granted to DA 0099/12 for the construction of a basement level driveway (tunnel) between 2 - 6 Buckingham and 6A - 8 Buckingham Road, Killara subject to the conditions in Annexure A. 3 The exhibits may be returned except 3, 4, 7, A, B and J. R Hussey 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: 25 February 2013