Won v Ashfield Council [2015] NSWLEC 1201

Land and Environment Court New South Wales

Medium Neutral Citation: Won v Ashfield Council [2015] NSWLEC 1201 Hearing dates: 18 May and 1 June 2015 Date of orders: 04 June 2015 Decision date: 04 June 2015 Jurisdiction: Class 1 Before: Moore SC Decision: See (59) below Catchwords: MODIFICATION APPLICATION: unsuccessful conciliation conference; continuing discussions between the parties; agreement on further modified proposal CONSENT ORDERS: leave to rely on amended plans; objections by local residents; objections largely relate to principal development not proposed modification; objections to amended modification proposal of limited nature; bulk when viewed from outside the site; amended proposal complies with controls; acoustic issues; expert evidence that amended proposal complies; consent orders made Legislation Cited: Ashfield Local Environmental Plan 2013 Land and Environment Court Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Category: Principal judgment Parties: John Won (Applicant) Ashfield Council (Respondent) Representation: Counsel: Mr M Sonter, solicitor (Applicant) Mr P Jackson, solicitor (Respondent)

Solicitors: Gadens Lawyers (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 10126 of 2015

Judgment

Introduction 1. SENIOR COMMISSIONER: In July 2014, Hussey AC conducted a conciliation conference between the applicant and those representing and/or and advising him and Ashfield Council (the Council) and those representing and/or advertising it. That conciliation process was undertaken as part of the role of the Court in seeking, pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act) to assist the parties to proceedings in merit disputes in the Court to reach an agreement about an outcome that is acceptable to both parties. If, as was the case of the conciliation conference conducted by Hussey AC, the parties reach such an agreement, the presiding Commissioner is obliged to give effect to it provided the Commissioner is satisfied that there is no legal impediment to do so. This is as a consequence of the provisions of s 34(4)(a) of the Court Act, a provision in the following terms: 34 Conciliation conferences (1) …... (1A) ….. (2…... (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner: (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. 1. In the instance being dealt with by Hussey AC, he was satisfied that there was no legal impediment to giving effect to the agreement and consent orders were made on 23 July 2014 to give effect to that agreement. 2. In doing so, Hussey AC made no merit assessment whatsoever of any aspect of the proposed development of the nursing home at 5 Henson Street, Summer Hill. 3. Indeed, to assist those who might be interested in the outcome of Court proceedings where conciliation conferences are conducted and agreement is reached between the parties giving rise to consent orders, since 1 March 2015, the Court has published short pro forma decisions in such matters with, as annexures to such decisions, copies of the conditions of consent being able to be accessed electronically through the Caselaw website. 4. One paragraph of that pro forma judgement template makes it clear that the Commissioner presiding at such a conciliation conference where agreement is reached has made no merit assessment and is not permitted to make any merit assessment of the development proposal. That paragraph of the template judgement is in the following terms: In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties. 1. I set out the process that is undertaken in some detail because, in these proceedings, I am dealing with an application to modify the s 34 conciliation conference derived development consent arising out of the conciliation conference presided over by Hussey AC in July 2014. 2. The modification application sought to increase the number of approved nursing home beds in the facility by adding an additional 10 beds and making other changes to the approved development. Particularly, for the purposes of these proceedings, the modification application proposed to locate the plant room of the development on its roof. 3. The proposed modification application was lodged direct with the Court and, after consideration of the material supplied in support of the modification application (being plans and supporting expert material such as an acoustic assessment), the Council did not support the modification application. 4. At the first directions hearing in this matter, the Registrar ordered the holding of a new conciliation conference, also conducted by Hussey AC, to see if the parties could reach agreement concerning the modification application. No agreement was reached and the conciliation conference was terminated. The matter was then set down for hearing, a hearing to which I was assigned by the Chief Judge of the Court. 5. Between the time of the termination of the new conciliation conference and the date when the matter was initially set down for hearing, the applicant and the Council held further discussions. These discussions resulted in a proposal by the applicant to amend the proposed modifications. These proposed amendments satisfied the contentions that had been set out by the Council, in its Statement of Facts and Contentions, as warranting refusal of the modification application. As a result of these proposed amendments, the Council agreed to enter into consent orders on the basis that, at the hearing before me, the applicant would seek leave to rely on amended plans reflecting that agreement and that the Council and the applicant would then hand up signed consent orders based on these amended plans. 6. When the matter first came before me on 18 May, I granted leave to rely on the amended plans but I declined to consider the consent orders that were proposed by the parties. I did so because the terms of paragraph 36 of the Class I Practice Note had not been complied with. 7. Paragraph 36 of the Practice Note reads: 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 1. In particular, I indicated my concern that the precise terms of the proposed consent orders; the modifications to the conditions of consent that had been agreed to by the parties; and the modified consolidated conditions of consent had not been provided to all those who had objected to the original modification application. In addition, the proposed orders were not in the form that had been required by the Court, for proceedings commenced on or after 1 November 2013, namely setting out, in Schedule A to the proposed orders, the conditions that were being modified whilst incorporating, in Schedule B to the proposed orders, a modified, consolidated set of conditions of consent. 2. I directed Mr Jackson, solicitor for the Council, to undertake the appropriate process of providing the information to the objectors; I set a date for an adjourned hearing of the proposed consent orders; and I required that the notification of the objectors make it clear that, at the adjourned consideration of the proposed consent orders, any objector who wished to be heard would be able to give evidence to me concerning their objections to matters arising out of the modification application. 3. When the matter resumed on 1 June, a variety of documents were tendered by the applicant's solicitor, Mr Sonter, and by Mr Jackson. Of particular relevance to my consideration of matters concerning the consent orders were copies of the objections that had been lodged with the Council to the proposed modification application. These letters or emails of objection were included in the Council's bundle of documents (Exhibit 6 behind tab 7). Exhibit 6 had been filed with the Court on 15 May and I had had the opportunity to read the various letters of objection prior to the initial hearing and to refresh myself concerning their contents prior to the resumed hearing on 1 June. 4. Only one of those who had lodged a written objection to the modification application, Mr Norris, wished to give evidence at the resumed hearing. He had five matters about which he wished to raise his concerns during the course of his oral evidence. After reading his written objection (Exhibit 6 folio 136) to the original modification application and his further emailed objections to the Council (Exhibits 3 and 5), it was clear that he was seeking to canvas a wide range of matters concerning the overall design and other aspects of the development proposal - matters going significantly beyond the matters sought in the modification application and entirely outside the scope of these proceedings. 5. A fair reading of much of the other material lodged by the objectors also shared this characteristic of seeking to canvas matters well outside any jurisdiction that the Court could exercise on a modification application. 6. The matters of this general nature that were sought to be canvassed were, effectively, all matters that had been resolved as a consequence of the conciliation agreement reached in July 2014 and the outcomes concerning which were embodied in the orders that Hussey AC was obliged to make to give effect to that outcome (without him making any merit assessment, whatsoever, of that outcome). 7. When Mr Norris gave his oral evidence, he indicated that there were five matters which he wished to address. He addressed the first three of these: * the height and visual impact of the lowered but enlarged plant room on the roof; * concerns about the impact of the development on street trees; and * what he perceived to be the inadequacies in the landscaping plan. 1. After he commenced to address this third point, I intervened to indicate to him that his second and third points were entirely outside the scope of the appeal and that, if I were to make some intervention concerning them based on his evidence, I would be committing an appealable error. I indicated to him that the first of his points was a matter that was within my jurisdiction and that I would consider his concerns on that point in writing this judgement. 2. I repeated to him, in slightly different terms, my earlier explanation as to the extremely limited scope of the matters with which I was able to deal but did explain to him that, unlike a conciliation conference agreed outcome, consent orders did permit me to intervene if I had some proper basis founded on relevant planning controls to do so. 3. I asked him whether his remaining two points related to the modification application presently before me or not and he indicated that they did not and that he had misunderstood the nature of the matters with which I was able to deal. At that stage, it was apparent from him standing up and putting his papers away, that he did not wish to speak further and he was stood down and excused. 4. Although this is a lengthy preamble to my consideration of the planning and other merit aspects arising from the modification application and requiring to be considered in light of the relevant controls in the planning instruments that are applicable to the approved development, it is necessary to do so because there clearly has been a misapprehension about the nature of these proceedings and the extremely limited scope of that which is properly within my jurisdiction for consideration and determination within these proceedings.