Land and Environment Court New South Wales Medium Neutral Citation: Pillay & anor v Hawkesbury City Council [2013] NSWLEC 1180 Hearing dates: 6 September 2013 Decision date: 06 September 2013 Jurisdiction: Class 1 Before: Moore SC Decision: (1)The appeal is upheld; (2)Development Application No DA0131/12 for the erection of a motel at 141-145 March Street, Richmond, being Lots 1 3 in Deposited Plan 223656 is determined by the granting of development consent subject to conditions in Annexure A; and (3)The exhibits, other than Exhibits D, 2 and 3, are returned. Catchwords: Conditions of consent Legislation Cited: Valuation of Land Act 1916 Land and Environment Court Act 1979 Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41 Category: Principal judgment Parties: A Pillay (First Applicant) D Pillay (Second Applicant) Hawkesbury City Council (Respondent) Representation: Mr K Webber, solicitor (Applicants) Mr S Griffiths, solicitor (Respondent) Wilshire Webb Staunton Beattie (Applicants) Pikes & Verekers Lawyers (Respondent) File Number(s): 11084 of 2012 Judgment 1SENIOR COMMISSIONER: March Street at Richmond is part of the main thoroughfare for the northern crossing of the Blue Mountains known as the Bells Line Of Road. The development proposal for three allotments at 141145 March Street, Richmond, is for consent to construct a fourstorey motel over a basement car park. This motel would have 50 motel rooms and a caretaker residence. In addition to the car parking in the basement, there will be a car parking area at ground level at the rear of the site comprising 15 atgrade car parking spaces. 2The site's rear to be used as the car park is also used for service vehicles and for the collection of waste for disposal. It is accessed by a Council owned lane known as Musson Lane. Musson Lane is a one-way thoroughfare running from March Street, at the south, to the north to provide access for the Council's car park that serves primarily the Orange Grove Shopping Centre area which has a frontage to West Market Street which runs north-south, and to a further street running east-west. 3Vehicles travelling along Musson Lane or exiting from the Council's car park must, at least as one of the paths of travel, cross the Council car park to West Market Street. 4The applicant is to have the advantage of a right of carriageway for this development to permit access to West Market Street from the car parking spaces at the rear of the site or for service vehicles that service the facility. 5The original appeal commenced with a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 on 1 February 2013. It commenced on site and, during the course of the site inspection, I heard informal submissions from a number of residents primarily relating to traffic and visual appearance matters concerning the design of the proposed motel. 6Over the intervening period of time involving a number of attendances by the legal representatives of the parties, the plans became refined and, on 1 August, leave was granted for the applicant to rely on amended plans. Those plans were notified to those who had made objections to the original proposal and who had been heard during the course of the site inspection. No objections were received to those amended plans. 7Arising out of those amended plans there were several matters that remained in contention. One concerned the attitude of Roads and Maritime Services (as the relevant consent authority) for the creation of two driveway crossing points to March Street. A second element related to issues that the Council had with the ability for what it considered to be the likely and appropriate waste disposal collection vehicle accessing the rear of the premises. Those matters have subsequently been resolved so that Roads and Maritime Services have granted their approval to the crossings accessing March Street as proposed. 8The Council has now agreed to what are appropriate waste disposal and waste collection arrangements that involve a smaller vehicle with rear loading rather than a vehicle that, in the ordinary course of events, might use top loading and thus require a greater clearance in the space for which the waste would be collected. 9As a consequence of all of that, there is no substantive merit reason why the development application known as Development Application DA0131/12 should not be granted development consent subject to conditions. 10However, there are two matters in contention in the Council's revised proposed without prejudice conditions of consent. This morning's hearing has been taken up with dealing with those. 11During the course of the hearing I have had the advantage of evidence from Ms Jensen, an engineer with the Council, and Mr McLaren, a traffic engineer, on behalf of the applicant. 12The two conditions relate, first in condition 16, to the quantum of a proposed performance maintenance bond (but not to the imposition of such a performance maintenance bond) and, second, with respect to two of the five elements contained in condition 64 requiring works to be undertaken in Musson Lane and Council's car park. 13I turn first to the question of condition 16. This condition is in the following terms: The payment to Council of a performance maintenance bond to the value of 2% of the cost of construction works, ie $96,000, is required prior to the release of any construction certificate or approval under the Roads Act. This bond is required to guarantee the safety of the public, environmental protection performance and maintenance during construction of the surrounding road network and lands, in particular Musson Lane and Orange Grove Mall car park. Where damages occur and costs are incurred by Council in excess of the bond amount, Council will seek to recover these funds from the developer. 14It was Ms Jensen's evidence that the amount that the Council would conventionally require for such a bond was 5% of the construction costs rather than 2% and that that amount had been reduced as a result of representations made on behalf of the applicant. 15It was Mr McLaren's evidence that the likely cost of maintenance required to the car park and to Musson Lane would be of the order of $20,000 or a little more and that if some modest amount, as I understood his evidence, were to be permitted for possible maintenance requirements in March Street or elsewhere in the immediate local road network, another $4,000 or $5,000 might be appropriate. 16I do not consider that Mr McLaren has understood the scope of that which is intended to be provided for by the bond if necessary. It is not merely the surrounding road network, nor is it confined to Musson Lane and the car park. It deals with matters of safety, environmental protection performance, as well as maintenance of Council's assets. 17Environmental protection performance can not fancifully, deal with matters such as impacts on the drainage network. Safety of the public can deal with the adequacy of protection, fencing, marking and the like, and the necessity for the Council to respond to complaints about or concerns that require in its inspection and evaluation of possible risks of that nature. 18The narrowness of the interpretation that Mr McLaren has made of the provision to deal with effectively road maintenance issues in my view shows a fundamental misunderstanding of that which is proposed to be covered by the construction protection measures that are to be encompassed by the bond. 19It is perhaps fortunate for the applicant that, unlike valuation objections under the Valuation of Land Act 1916, I do not consider that I have a discretion to say that I consider that the Council's number is wrong and unduly favourable to the applicant and to increase it. Had I had such a power, I might well have, for proper planning reasons satisfying all the tests in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 been minded to reinstate the 5% cent figure rather than merely adopt that of 2%. 20I am satisfied that condition 16 as proposed by the Council for the reasons enunciated by Ms Jensen and drawn from Mr Griffiths' crossexamination of Mr McLaren is entirely reasonable under all the circumstances. 21I now turn to the question of condition 64. 22The two elements of condition 64 that are in contention have been amended, at least the second of them, this morning so that that which is required is the resurfacing of the pavement within Musson Lane and its extension to the north in the right of carriageway within the Council's car park to the point where that right of carriageway turns to the east to access West Market Street, with that resurfacing to be a layer of 10 millimetre asphalt concrete with what is known as an AC10 standard, that is by reference to the 10 millimetre expected particle size within such construction. 23As a consequence of what I was informed was a typographical error, the proposal that it be a 40 millimetre layer in the element within the Council car park has been amended to be a 30 millimetre layer as well as the length of that which is proposed being lessened to remove the east-west running element originally proposed in condition 64(e). 24The evidence of Ms Jensen was that construction to that standard would constitute a modest improvement to the pavement standard that is likely to be there at the present time. It was Mr McLaren's evidence that he did not consider that such reconstruction would be warranted as a consequence of the construction traffic that would arise from the development and that there would only be an additional 11% loading, most of which would be lightweight vehicles as a consequence of the proposed development. 25It was the submission made by Mr Griffiths that, in addition to merely being a reinstatement, it would be not unreasonable for there to be a requirement to improve the standard of those elements of the lane and the car park encompassed by the provisions of 64(c) and (d) as a consequence of the additional loading. He also put the proposition to me that it was not unreasonable to impose such a condition in light of the decision of the Court of Appeal in Fairfield City Council v N & S Oliveri P/L [2003] NSWCA 41. Oliveri was a case on a much more limited basis in which the Court of Appeal held, as I have always understood that decision, that a Council has the power to impose a condition of consent that a developer undertake work off its own site at its own expense, because the carrying out of that work might or would provide a broader public benefit. That matter is discussed in para 76 and onward of the decision of Cripps AJA. 26That is a much broader position than the position that here applies. That which applies here is the imposition of a condition of consent that the developer undertake work off its site at its own expense for two reasons. 27The first is to deal with the anticipated deterioration of the pavement surface in Musson Lane and the car park that would result from construction traffic to the site, and the second is to prove anticipatory additional life to the pavement as a consequence of the additional loading because of the vehicle traffic that will be generated by the development. The broader public benefit is not relied upon and specific nexus connection to both construction traffic and future anticipated use on Mr McLaren's evidence of the laneway is used as the foundation for the imposition of these conditions. 28Whilst it is true that condition 17 of the conditions of consent provides a basis upon which actual dilapidation and deterioration can be met from the security bond, and if the cost goes beyond the extent of the bond, the additional cost can be recovered. Such a requirement makes no provision for the additional construction standard warranted as an appropriate measure against the additional vehicle traffic. I do not consider that there is any basis upon which I could remove 64(c) as it stands or 64(d) as it is proposed. It will be written given the modification that the Council has conceded this morning to that provision. As a consequence, the appeal to the extent that it relates to either of those conditions of consent fails. The overall result however must be that the application is granted a development consent. 29The orders of the Court will become: (1)The appeal is upheld; (2)Development Application No DA0131/12 for the erection of a motel at 141-145 March Street, Richmond, being Lots 13 in Deposited Plan 223656 is determined by the granting of development consent subject to conditions in Annexure A; and (3)The exhibits, other than Exhibits D, 2 and 3, are returned. Tim Moore Senior Commissioner Amendments 15 October 2013 - Corrected pursuant to the "slip rule" on 14 October 2013 to insert the names of the correct applicants in light of the amendment made on 20 November 2012 Amended paragraphs: Judgment Coversheet 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: 15 October 2013