Tzannes v Moree Plains Shire Council [2014] NSWLEC 1032

Land and Environment Court New South Wales

Medium Neutral Citation: Tzannes v Moree Plains Shire Council [2014] NSWLEC 1032 Hearing dates: 12 February 2014 Decision date: 12 February 2014 Jurisdiction: Class 1 Before: Pearson C Decision: Appeal upheld Catchwords: DEVELOPMENT MODIFICATION - Rural residential subdivision - Condition requiring fencing of borrow pits Legislation Cited: Environmental Planning and Assessment Act 1979 Moree Plains Local Environmental Plan 2011 Category: Principal judgment Parties: Theodore Tzannes (First Applicant) Leonie Maureen Tzannes (Second Applicant) Moree Plains Shire Council (Respondent) Representation: Mr T Tzannes (self represented) Mr M Carrigan, Webb & Boland Lawyers (Respondent) File Number(s): 10914 of 2013

Judgment This determination was given extemporaneously and has been edited prior to publication 1This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal by the respondent Council on 24 October 2013 of an application made under s 96(1A) of the Act to modify development consent DA2012/76 granted by the Council on 7 June 2013. The parties have reached agreement as to the amendments to the conditions of the consent that are appropriate to be made, and they are now seeking consent orders from the Court. The issue for the Court is to determine whether it is satisfied that it is both lawful and appropriate to make the orders sought. 2Development application DA2012/76 related to a proposed 11 lot semi-rural subdivision of Lot 20 DP 1056083 and Lot 105 DP 1001911, at the northern end of Kamilaroi Drive on the northern outskirts of Moree. The land the subject of the subdivision application is owned by Mr and Mrs Tzannes. The land is in the R5 (Large Lot Residential) zone under the Moree Plains Local Environmental Plan 2011, and adjoins an already developed residential area which is zoned R1 Residential. Because Mr Tzannes is an elected councillor of Moree Plains Shire Council, the development application was assessed by an independent consultant on behalf of the Council. As a part of the process of that assessment the Council notified all the adjoining owners, and the evidence before the Court provides details of that notification, and the objections received in response to that notification (exhibit annexed to an affidavit sworn by Mr Murray Amos on 29 January 2014). 3The development application was considered by the full Council at its meetings in January 2013, and subsequently, in May 2013. Development consent was granted subject to the imposition of condition 14 which reads: The dams associated with the construction of flood proofing mounds shall be fenced in accordance with the requirements of the Swimming Pools Regulation 2008, or alternatively be deleted from the proposed development. The applicant shall provide appropriate advice on this matter prior to the issue of a Construction Certificate. Reason: to ensure that dams associated with the development do not create a hazard to children in the vicinity of the development. 4The particular structures the subject of condition 14 are referred to in that condition as "dams"; they have also been referred to in the evidence before the Court as "borrow pits". It appears from the Statement of Environmental Effects and the associated documentation that the subdivision into residential lots requires the extraction of fill and the elevation of the resulting dwellings on mounds, and the borrow pits, or dams, are those pits remaining from the extraction of fill. 5Mr Murray Amos, the Council's Senior Strategic/Development Officer, gave oral evidence. Mr Amos' evidence was that condition 14 was not part of the conditions recommended by the independent consultant, but was imposed by the elected Council in the course of its consideration of the development application. The issue of safety and risk to children did not appear to have been an issue raised at that point by the written submissions made in response to the notification of the development application. 6After notification of the determination of DA2012/76 the applicants commenced discussions with the Council about varying the conditions of the development consent. Those discussions culminated in the application under s 96(1A) of the Act, lodged on 2 September 2013, which sought "Removal of Condition 14: Requirement to fence dams/borrow pits with pool style fencing". 7The oral evidence of Mr Amos was that the Council notified the s 96 modification application in accordance with the requirements of the Moree Plains Development Control Plan 2013 (the DCP), which requires the Council to renotify persons who made submissions on an original development application and any persons who own adjoining or neighbouring land "only where in the opinion of the Planning and Development Department those persons could be detrimentally affected by the proposal as amended" (p 121). Mr Amos' evidence is that eight objections were received in response to that notification, and that those objections raised issues about safety for children. The Court has been provided with copies of the objections which are now exhibit 1, which confirm that the objections, among other matters, raise the issue of safety for children and the potential hazards for drowning if the borrow pits are not fenced. 8Mr Amos also addressed in his oral evidence the substantive amendments proposed to the conditions. Mr Amos' evidence was that condition 14 was not part of originally recommended conditions because, in his opinion, borrow pits are not swimming pools, and it was not considered necessary to impose a condition requiring swimming pool fencing. It is relevant that the site of the subject development is close to a creek which also poses separate and obvious risks for drowning for small children. 9The proposed modifications to the conditions imposed on DA2012/76 include the amendment of condition 7 to include the following additional conditions: o. No borrow pits are to be constructed on lots 200 and 208. The remaining borrow pits may be increased in size, so as to avoid any additional importation of fill on to the site. p. A notation on the plans that: "All lots are to be provided with ring-lock boundary fencing or similar, with a maximum mesh aperture of 20cm, together with rural mesh gate". 10The proposed amendments also include the deletion of condition 14. 11In Mr Amos' opinion, this is an appropriate outcome, for two reasons. The lots that are closest to the R1 residential area, that is, lots 200 and 208, and the existing lot on which the applicants' house is constructed, lot 210, will now have no borrow pit. That means that the closest that any of the existing residential developments will be to a borrow pit will be in the order of 200m. Secondly, in his opinion the proposed requirement for fencing of the lots is appropriate, based on an informal assessment of risk and the precedent created, and in his opinion that would provide appropriate protection. 12The other issue addressed in Mr Amos' oral evidence related to notification given to the objectors to the original development application and to the s 96 modification application. The Court's Practice Note for Class 1 Development Appeals requires that where orders are sought by consent, the consent authority is to satisfy the Court that it has given reasonable notice to all persons who objected to the proposal of the content of the proposed orders, the date of the hearing by the Court to consider making a proposed orders, and the opportunity for any such person to be heard, or that in the circumstances of the case notification is not necessary. The Council initially did not propose to notify the objectors as it had formed an opinion that the agreement does not pose any detriment to the objectors (affidavit of Mr Amos sworn 29 January 2014, paragraph [43]). At the request of the Court the Council's solicitor did provide notification to the objectors. Annexed to a further affidavit sworn by Mr Amos on 12 February 2014 is a copy of the letter sent to ten identified objectors on 6 February 2014 that includes the proposed terms of the consent orders; notification of the day, time and place of the Court hearing; and advice that anyone wishing to be heard should contact the Council or provide any comments, objections or general feedback either to the Council's solicitors or to Mr Amos. Mr Amos' evidence is that he received one telephone query in response, and no written responses. The Council's solicitor informed the Court that the Council's legal representative has not received any response. I am satisfied that the requirements of the Court's Practice Note have been complied with and that reasonable notice has been given to the objectors. 13Turning now to consider whether the orders can and should be made, the first issue is whether the Court is satisfied that it would be lawful to modify the development consent in the terms as proposed by the parties. Section 96(1A) of the Act sets out the requirements before there is power to modify a development consent. There is no dispute that paragraphs 96(1A)(a) and (b) are satisfied. Having regard to Mr Amos' evidence and the documentary evidence, I am satisfied that the Council has notified the modification application in accordance with its DCP (s 96(1A)(c)), and that the submissions in response to the proposed modification are now before the Court for consideration (s 96(1A)(d)). 14In considering whether it is appropriate to make the orders now sought, I accept the evidence of Mr Amos, and in particular, his opinion that removing the borrow pits for the two lots closest to the existing residential area is appropriate, and secondly, that to fence the remaining borrow pits at the property boundary and provide appropriate gates will also reduce the risk of drowning or injury. I accept Mr Amos' evidence that the nature of the borrow pits proposed is such that they are a common feature in the landscape in this locality, in particular, in the rural residential landscape, and they are not intended to be permanent water features; and that they would have a gentle batter slope as compared to a swimming pool, and would pose a lesser risk. I accept Mr Amos' evidence as to the assessment of risk associated with the borrow pits in the rural subdivision that is the subject of development consent DA2012/76. I am satisfied that removing the borrow pits from lots 200 and 208 and imposing the requirement for specified fencing provides an acceptable and appropriate outcome in terms of safety. 15On that basis I am satisfied that it is both lawful and appropriate to modify the development consent in the terms as proposed by the parties. I propose, once the Council provides a consolidated set of conditions for the development consent, to make orders, by consent, in the following terms: (1)The appeal is upheld. (2)The application to modify development consent DA 2012/76 for the purposes of an eleven lot rural residential subdivision is determined by approving the modifications set out in Annexure A. Those modifications are: (a)That condition 14 is deleted. (b)That condition 7 is amended to include the following additional conditions: (o) No borrow pits have to be constructed on lots 200 and 208; the remaining borrow pits may be increased in size so as to avoid any additional importation of fill onto the site; (p) A notation on the plans that all lots are to be provided with ring lot boundary fencing similar with a maximum mesh aperture of 20 cm together with rural or mesh gate. (3)As a consequence of order 2 development consent 2012/76 is now subject to the consolidated modified conditions of development consent set out in Annexure B 16The exhibits will be retained. Linda Pearson Commissioner of the Court