Steve Nolan Constructions Pty Ltd v Ku-ring-gai Council [2013] NSWLEC 1132

Land and Environment Court New South Wales

Medium Neutral Citation: Steve Nolan Constructions Pty Ltd v Ku-ring-gai Council [2013] NSWLEC 1132 Hearing dates: 12 July 2013 Decision date: 12 July 2013 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld in part Catchwords: CONSENT ORDERS - Modification application - Infrastructure Restoration Fees - Modification of condition Legislation Cited: Environmental Planning and Assessment Act 1979 Local Government Act 1993 Roads Act 1993 Category: Principal judgment Parties: Steve Nolan Constructions Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Representation: Counsel Mr S Nash (Applicant) Solicitors Mr G Gough, Storey & Gough (Applicant) Mr T Messenger, HWL Ebsworth Lawyers (Respondent) File Number(s): 10341 of 2013

EX TEMPORE Judgment 1This is an appeal under s 97AA of the Environment Planning and Assessment Act 1979 (the Act) in relation to the respondent Council's refusal on 28 March 2013 of an application made under s 96(1A) of the Act to modify a development consent (DA0173/11) in relation to a property at 36-40A Culworth Avenue, Killara. The development consent was granted on 8 June 2012 for the demolition of four dwellings and the construction of a five storey residential flat building, subject to conditions which relevantly included conditions addressing the likely prospect of damage to council infrastructure in the form of public roads in the course of construction. The parties have reached agreement and are seeking consent orders. 2Condition 74 of the original consent imposed an obligation on the applicant, owner and builder to be responsible for repair of damage to the roadway at or near the subject site, and included a reference to s 102 of the Roads Act 1993 which imposes an obligation on a person who causes damage to a public road to pay to the appropriate roads authority the cost incurred by that authority in making good the damage. 3I am informed that the process by which Ku-ring-gai Council manages repair of public infrastructure in this form is through a requirement that an applicant obtain a "road opening permit" under s 138 of the Roads Act to disturb the road, and to pay a fee for that permit based on the expected likely cost calculated by reference to the likely or assessed area of disturbance. The issue that has arisen which prompted the modification application relates to the mechanism for refund of any amount of money paid in excess of what is reasonably required to repair any damage. 4The applicant and the Council have reached agreement that condition 74 can be modified to provide a mechanism for the Council to refund the amount of the road opening permit fee which was not expended by the Council on road repairs or administrative expenses once those repairs have been carried out, in substitution for the previous position that it would be dealt with on the issue of a final occupation certificate. 5The other part of the modification application is to condition 53 of the original development consent. That condition is headed "Infrastructure Restorations Fees", and the proposed modification to condition 53 makes amendments that remove an inconsistency between it and condition 74. Condition 53(c) included an obligation to pay an Infrastructure Restorations Fee to the Council prior to the issue of the Construction Certificate and the commencement of any earthworks or construction. Condition 53(d) made provision for inspection of Council Property and for Council to undertake restoration work, at a cost of not more than the Infrastructure Restorations Fee. 6The parties have now agreed that it is appropriate to delete paras (c) and (d) from condition 53, and to delete the reference to and the definition of Infrastructure Restoration Fee contained in that condition. The Council's representative informs me that the Council considers that its interests are protected by the provisions of condition 53(b), which imposes a responsibility on an applicant, builder, developer or any person acting in reliance on the approval to make good any damage to Council property. 7The parties agree that the source of the power to impose the relevant fees is that available under the Local Government Act 1993 through the Council's Schedule of Fees and Charges. 8Having heard from the parties, I am satisfied that the proposed modifications remove the potential internal inconsistencies, make clear the process for refund of fees that might have been paid in excess of the amount actually required to do any restoration work, and protect the interest that the Council properly has in maintaining the integrity and repair of its infrastructure. The parties inform me that there are no objectors. Accordingly, I am satisfied that it is lawful and appropriate to make the modification to the development consent in the terms as put to me by the parties. I note that the parties agree that there be no order as to costs 9The orders of the Court therefore are, by consent: 1. The appeal is upheld in part. 2.Development consent number 173/11 for the demolition of four dwellings and the construction of a five storey residential flat building comprising fifty-seven units, underground car parking and associated landscaping at 36 40A Culworth Avenue, Killara is modified as follows: 53. Infrastructure Restorations Fees To ensure that damage to Council Property as a result of construction activity is rectified in a timely manner: (a) All work or activity taken in furtherance of the development the subject of this approval must be undertaken in a manner to avoid damage to Council Property and must jeopardise the safety of any person using or occupying the adjacent public areas; (b) The applicant, builder, developer or any person acting in reliance on this approval shall be responsible for making good any damage to Council Property and for the removal from Council Property of any waste bin, building materials, sediment, silt, or any other material or article; (c) Deleted; (d) Deleted; (e) In this Condition "Council Property" includes any road, footway, footpath, paving, curbing, guttering, crossings, street furniture, seats, letter bins, trees, shrubs, lawns, mounds, bushland, and similar structures or features on any road or public road within the meaning of the Local Government Act 1993 (NSW) or any public place. Reason To Maintain Public Infrastructure 74. Road repairs necessitated by excavation and construction works It is highly likely that damage will be caused to the roadway at or near the subject site as a result of the construction for demolition or excavation works. The applicant, owner and builder (and demolition or excavation contractor as appropriate) will be held responsible for repair of such damage, (except to the extent of the amount paid by the applicant, owner or builder (as the case may be) a fee for any road opening, permit/approval issued by the Council under section 138 of the Roads Act 1993. Section 102(1) of the Roads Act states "A person who causes damage to a public road is liable to pay to the appropriate roads authority the cost incurred by that authority in making good the damage". Council will notify when road repairs are needed, and if they are not carried out within 48 hours, then Council will proceed with the repairs, and will invoice the applicant, owner and relevant contractor for the balance. Council will refund to the applicant/owner the amount of the road opening permit/approval fee which is not expended by the Council on road repairs or administrative expenses once those repairs have been carried out. 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: 23 July 2013