Land and Environment Court New South Wales Medium Neutral Citation: CSR Building Products Ltd v Fairfield City Council [2015] NSWLEC 1415 Hearing dates: 15-17 July 2015 Date of orders: 16 October 2015 Decision date: 16 October 2015 Jurisdiction: Class 1 Before: Morris C Decision: Appeal upheld Catchwords: Conditions of consent Legislation Cited: State Environmental Planning Policy (Western Sydney Employment Area) 2009 Cases Cited: see CSR Building Products Ltd v Fairfield City Council [2015] NSWLEC 1284 Category: Consequential orders (other than Costs) Parties: CSR Building Products Ltd (Applicant) Fairfield City Council (Respondent) Representation: Counsel: Ms S Duggan SC (Applicant) Solicitors: Ms J Wauchope, Gadens Mr A Seton, Marsdens Law Group File Number(s): 10634 of 2014 Judgment 1. On 30 July 2015, I delivered findings and made directions in relation to a development application which sought consent for subdivision of land for employment purposes at Nos 327-335 Burley Road, Horsley Park (see CSR Building Products Ltd v Fairfield City Council [2015] NSWLEC 1284). Those directions are set out at paras 77 and 78 of that judgment. 2. The first Direction required the parties to prepare and file consent conditions that reflected the findings I had made (see para 77). The second required the applicant to provide evidence that the Director-General had issued the necessary Certification required under clause 28 of State Environmental Planning Policy (Western Sydney Employment Area) 2009. That certification was filed with the Court on 13 October 2015. 3. The draft conditions were filed on 10 September 2015 however there is a dispute between the parties as to the wording of some of those conditions and they require my determination. Submissions in relation to each have been provided by the parties and I will deal with each disputed condition separately. 4. Draft condition 3b relates to the treatment of the required landscaped setback along the southern property boundary. The council proposes the following wording: All plans shall be amended prior to the issue of a construction certificate to provide a minimum 10m (western section without retaining walls), 14m (western section where retaining walls are proposed) and 21m (eastern section with bund) wide landscape setback along the southern boundary which is to be maintained for the life of the consent. No buildings, roads or access ways are to be constructed within the landscape setback shown in the plans referred to in this condition. 1. The applicant objects to the prohibition of roads and access ways within the setback and says that, depending on the final use or building design, paths, portions of access roads or the like may need to cross or traverse the area. The council submits that the area is required as a landscape setback and there should be no roads or access ways in the landscape setback. 2. The importance of the design and adequacy of the landscape buffer is addressed in my decision, see paras 61, 65, 66, 67,70 and 73. A 3m wide drainage swale/access way was always proposed adjacent to the immediate southern boundary (see paras 39, 44, 48 and 72). In addition, the need to provide access for maintenance of the landscaping is recognised in the third dot point of para 77(1) of my earlier judgment. Accordingly it is appropriate to allow a pathway for access within the 3m swale area adjacent to the southern property boundary however no roads or buildings (other than the structural bund and retaining walls) within the various setbacks defined in the condition. This is also recognised in draft condition 3a. Accordingly, the condition shall read as follows: 3b. All plans shall be amended prior to the issue of a construction certificate to provide a minimum 10m (western section without retaining walls), 14m (western section where retaining walls are proposed) and 21m (eastern section with bund) wide landscape setback along the southern boundary which is to be maintained for the life of the consent. No buildings (other than the structural bund and retaining walls), roads or access ways (other than a path to provide for maintenance of the landscaped area which may be provided within the 3m area set aside adjacent to the southern property boundary and identified as a drainage swale) are to be constructed within the landscape setback shown in the plans referred to in this condition. 1. Draft condition 3c as proposed by the council reads as follows: 3c. In the 3m lower portion of the setback adjacent to the southern boundary the drainage swale shall be accommodated and existing trees shall be retained. 1. The applicant seeks to add at the end of that condition the words where practical. That is because it says the final levels of the drainage swale may require removal of some existing trees to allow water to drain to designed drainage points and, if it is necessary to remove the trees, an application would be required in accordance with the council's Tree Preservation Order (TPO) as required by other conditions. The council submits the words should not be added as it does not reflect the judgment and would suggest that any or all trees could be removed as the applicant has not nominated which trees are required to be removed. 2. In para 72 of my judgment, I recognise the design of the swale may require removal of trees from within that 3m setback. I also note that approval for the removal of trees would be required in accordance with the council's TPO and consider it is appropriate to amend the wording of condition to highlight that fact as I am not satisfied that it is adequately addressed in other draft conditions. For that reason, condition 3c should read as follows: 3c. In the 3m lower portion of the setback adjacent to the southern boundary the drainage swale shall be accommodated and existing trees shall be retained unless prior approval of Fairfield City Council has been obtained. 1. Draft condition 12 requires the submission of a landscape plan and the council has included a paragraph as follows: Landscaping shall be designed to complement and enhanced (sic) the development, and improve the visual amenity of the landscape setback between the site and adjacent properties. 1. The applicant submits that the paragraph should be deleted as it is very subjective, and not properly a condition of consent. Rather, it is an objective (which underlies all the other landscaping requirements) no a performance based criteria. The council says it is a performance based condition. I agree that the paragraph is an objective and consider that it should be added as a note at the end of condition 12 and that additional details should be incorporated into condition 3d as follows: 3diii Shrubs that achieve a height of 4m shall be planted at the top of the bund at 2m spacing with a minimum soil depth of 1m provided. That planting shall be supplemented with ground covers and smaller shrubs to achieve the objectives outline in condition 12. 1. There would be no need for the landscaped setback along the western side of the site when Stages 3B to 5 of the Jacfin land are developed (see paras 25 and 71 of earlier judgment). This was recognised in the Directions I gave in relation to conditions and the following condition to reflect that scenario has been proposed by the council: 111. Landscaped setback vegetation height (a) Landscaping on that portion of the site adjacent to the southern boundary in the landscape setback that does not have the bund in place shall achieve a minimum height of 7m above the finished level of proposed Lot 201, prior to the release of the subdivision certificate. (b) The condition above (111(a)) does not need to be complied with and the subdivision certificate may be released if stages 3b to 5 of the Concept Plan Approval issued by the Director General of the Department of Planning (Reference 10_0129) have been approved and implemented in accordance with Condition 4 of Schedule 2 of that Concept Plan Approval. 1. The applicant objects to the inclusion of the words "and implemented" in the last paragraph of that condition and submits that requiring the Jacfin stages to have been implemented is unreasonable, could present significant uncertainty and timing challenges and ties the requirement in the condition to too many other uncertainties out of the applicants control. It cites issues such as determining whether the development has been lawfully implemented, fully or partially implemented or simply commenced, nor does it state which stage is relevant to determination of the matter. The council seeks to include the words because it says whilst the development may be approved it may ever be implemented in which case it would not provide the relevant screening anticipated on the condition. 2. I accept the parties' submission that there is a need for certainty and therefore, it is appropriate that the condition be reworded to ensure that the development will take place and has adequately addressed the visual impacts of the Jacfin development and any development beyond Stage 1 of the subject application. Approval of Stages 3b to 5 should ensure visual impacts are addressed however it is also necessary to ensure the development will take place in accordance with that approval. For that reason, the condition should be reworded to include provision that actual works on the site such as earthworks, roadworks or building construction have occurred on the Jacfin site. The condition would be in the following form: 111. Landscaped setback vegetation height (a) Landscaping on that portion of the site adjacent to the southern boundary in the landscape setback that does not have the bund in place shall achieve a minimum height of 7m above the finished level of proposed Lot 201, prior to the release of the subdivision certificate. (b) The condition above (111(a)) does not need to be complied with and the subdivision certificate may be released if stages 3b to 5 of the Concept Plan Approval issued by the Director General of the Department of Planning (Reference 10_0129) have been approved and the actual physical works such as earthworks, roadworks or building construction has occurred on that site in accordance with Condition 4 of Schedule 2 of that Concept Plan Approval. 1. The last condition in dispute is proposed condition 126 which is in the following form: 126. Restriction on Use of Land – Height of Building The creation of a Restriction on Use of Land over the proposed Lots 201 and 204 in the following term:- "No development within the meaning of the Environmental Planning and Assessment Act 1979, as amended, shall be effected upon the lot hereby burdened unless the proposed building does not exceed 10 metres above the Pad level. Name of person empowered to release, vary or modify the restriction covenant:- Fairfield-City Council 1. The applicant opposes the condition stating there is no application for buildings and therefore the condition does not apply to the development proposed. It submits that future development applications should be assessed on their merits and the condition was not required by the Judgment. The council accepts the condition was not required however says it should be imposed having regard to its primary submissions. 2. The matter of building height is one that I have considered, particularly in relation to any possible complying development that could, in the future, occur on the land (see paras 65, 69 and 70). Any development in excess of 15m would be the subject of a development application and therefore be a matter for the relevant consent authority to address. My findings go to buildings to a height of 15m that may occur without the need for further consent and for that reason, I see no need to impose the condition. Accordingly it is deleted and all conditions have been renumbered to address this deletion and other changes made between the parties. This explains the difference in numbered conditions in the final Orders to that referred to in this Judgment. 3. Having been satisfied that the provisions of Clause 28 of State Environmental Planning Policy (Western Sydney Employment Area) 2009 have been met, consent can now be granted. 4. The Orders of the Court are: 1. The appeal is upheld. 2. Development Application 893.1/2013 for the subdivision of land at Nos 327-335 Burley Road, Horsley Park in three stages to create a total of 14 lots (one of which includes a conservation area) for employment purposes, new public roads and associated drainage is approved subject to the conditions in Annexure A. 3. The exhibits, other that exhibits A, B and 1, are returned. _____________________ Sue Morris Commissioner of the Court 10634 of 2014 Morris (C) (421 KB, pdf) ********** 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: 16 October 2015