Land and Environment Court New South Wales Medium Neutral Citation: Dragoneye Properties Pty Ltd v Northern Beaches Council [2016] NSWLEC 1555 Hearing dates: 31 October, 1 November 2016 Date of orders: 13 December 2016 Decision date: 23 November 2016 Jurisdiction: Class 1 Before: Dixon C Decision: See paragraph [88] Catchwords: DEVELOPMENT MODIFICATION: Residential Subdivision – removal of Conditions of Consent requiring existing above ground 33 kV electrical cables within an easement to be relocated underground in, or adjacent to, the road reserve adjoining the site – whether the conditions are an essential feature of the original development approval. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 79C, 94, 96, 109J(2) Pittwater 21 Development Control Plan 2014, cl C6.5 Warriewood Valley Section 94 Contributions Plan Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226;172 LGERA 338; Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Zhang v Canterbury City Council (2001) 51 NSWLR 589;115 LGERA 373 Category: Principal judgment Parties: Dragoneye Properties Pty Ltd (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: Mr A Galasso SC (Applicant) Ms J Reid (Respondent) Solicitors: Mills Oakley (Applicant) King Wood & Mallesons (Respondent) File Number(s): 2016/00197302 Publication restriction: No TABLE OF CONTENTS Judgment Background The modification application to the Court The Applicant's position The Council's position Evidence Contentions Facts Landscape Evidence Contention 1 The jurisdictional question Ms Englund's evidence about the jurisdictional issue Mr Cook's evidence about the jurisdictional issue Finding – Contention 1 - jurisdictional question Contention 2 Whether the impact of the overhead cables left in their current location will have unacceptable impacts on the streetscape and the amenity of the occupants within the development; Finding – Contention 2 Contention 3 Whether there is opportunity under the DCP cl C6 .5 Utilities – Services and Infrastructure provision (the variation clause) to justify not proceeding with underground utility's services in this case Findings – Contention 3 variation clause The Court's directions Judgment Background 1. On 3 May 2015 this Court approved the Applicant's development application (DA 304.20), for a 17-lot title subdivision comprising 16 residential lots and one community title lot, the construction of supporting infrastructure, landscaping and the demolition of an existing outbuilding at 1 Fern Creek Road, 8 and 12 Orchard Street Warriewood (the Site) subject to conditions – in Exhibit A (the Original Consent). 2. A modification to the Original Consent - which permitted the amalgamation of the battle-axe handle to 12 Orchard Street to be staged - was approved by this Court on 27 October 2015. 3. When the Original Consent was granted, the Site was burdened by an easement that traversed the Site through its centre in a north-to-south alignment, for the purpose of overhead electrical cables in favour of Energy Australia (now Ausgrid). The easement, which is 9.14 metres wide, accommodates two spans of high voltage 33 kV power cables extending from the Orchard Street frontage through the Site and connecting to power poles adjoining Fern Creek Road at the northern corner of the Site. The overhead cables and supporting poles constitute public infrastructure that benefits the broader community in the local government area and does not provide power to the site directly. 4. The location of the easement is shown below, bordered by a green dashed line, on the Site Plan in the Council's Statement of Facts and Contentions in Reply (SOFCR). The extension of the transmission lines within the Site, not subject to the easement, is circled in red on the Site Plan. 1. Despite the continued physical presence of the overhead transmission lines and supporting poles within the easement on the Site, apparently it was omitted from the property title with the creation of Lot 22 DP 12115064 – 1 Fern Creek Road. The Applicant intends to rectify this omission and have the easement reinstated on the title pending the outcome of this appeal. In the absence of any objection by the Council, the appeal proceeded on the basis that the electricity easement was legally in place. This common sense approach was appropriate because some of the conditions sought to be modified relate to works within the area of the easement on the Site. Let me explain. 2. The Original Consent, by its terms, requires the existing above ground 33 kV electrical cables within the easement to be relocated underground in, or adjacent to, the road reserve adjoining the Site. The proposed underground relocated path of the 33 kV infrastructure was designed by the Applicant and is referenced in the Original Consent as "Proposed Relocation of Transmission Conductor" dated 7 May 2014 (the Undergrounding Works). 3. The conditions, sought to be amended, provide as follows: 1. Before the Undergrounding Works can be carried out on the Site, the owner of the infrastructure, Ausgrid, must give its approval for its relocation. In this instance, updated advice provided by Ausgrid, dated 13 January 2016, confirms that it is still Ausgrid's preference to retain the overhead cables in their existing location on the Site. Without Ausgrid's approval to relocate the infrastructure, the completion of development, as approved under the Original Consent, is practically frustrated because the subdivision certificate cannot issue. 2. The Applicant contends that the present circumstances satisfy the criteria, under cl C6.5 of the Pittwater 21 Development Control Plan 2014 (the DCP), and warrant variation of the DCP requirements to not proceed with the Undergrounding Works. 3. The financial burden imposed by the undergrounding conditions is not insignificant. The Undergrounding Works have an estimated costing of approximately $1.47 million. The Council has suggested, absent Ausgrid's consent, that practical completion of the development could proceed with the issue of the subdivision certificate after the payment of a bond to the Council to cover the cost of the Undergrounding Works at some future date or some other negotiated arrangement under s 109J(2) of the EPA Act. 4. However, this course is not supported by the Council's planner. In fact Ms Englund describes this course as problematic and undesirable, given that there is no reliable estimate of a timeframe for the carrying out of the Undergrounding Works (given Ausgrid's present position) nor any final costing or design to inform the amount of any bond or agreement reached under the provisions of s 109J (2). Compounded by the uncertainty around the timing and delivery of the overhead power cables on the adjoining site (known as the Baxter land), and the Council's land further to the north, Ms Englund raised concerns about the reasonableness of requiring the developer to complete the subdivision and associated road works without relocation of the infrastructure in circumstances where that work might be required to be dug up at some future date to accommodate the Undergrounding Works. Such an arrangement would also impact on the completion of landscaping of the easement and the ultimate use of the residential lots and community land – in effect a holding pattern in order to allow Ausgrid access to maintain its infrastructure until (if ever) Ausgrid agrees to its relocation. 5. The evidence is that all of the residential lots have been sold on terms which accommodate a sale with or without the easement (presumably based on the outcome of this appeal). Upon settlement, however, one might reasonably expect that a final position in respect of the easement and its infrastructure was known. However, the Council's proposed solution to this problem, via s 109J (2) of the EPA Act, seems to fall short of any certainty of outcome based on Ms Englund's evidence. The owners would presumably complete the sale and lodge a DA with the infrastructure in situ within the easement –build their dwelling and landscaping around present restrictions only to have those restrictions removed at some future date. 6. In addition to the financial impost of the undergrounding conditions, condition C9 of the Original Consent requires the payment of cash contributions for the provision of public infrastructure and services pursuant to s 94 of the EPA Act in the sum of $960,508.06 (after indexation). The s 94 contributions levied in condition C9 of the Original Consent are based on the Warriewood Valley Section 94 Contributions Plan (the Contributions Plan) because the Site and the Warriewood Valley urban release area are exempt from the State government cap on development contributions, which currently restricts the maximum amount of development contributions to $30,000. Therefore, on the basis that 16 lots will be delivered as part of the Proposal, a development contribution pursuant to s 94 is imposed at a rate of $60,031.75. This amount represents two times the state cap. 7. The s 94 monetary contribution was paid by the Applicant on 10 February 2016. The modification application to the Court 1. It is against this background, on 29 June 2016, that the Applicant filed these proceedings seeking the Court's approval for the modification of the Original Consent pursuant to s 96(8) of the EPA Act to delete the conditions that require the Undergrounding works to be carried out. Alternatively, if the Court is not minded to make those modifications sought, the Applicant seeks an order pursuant to s 94B(3) of the EPA Act that the s 94 condition be disallowed because it is unreasonable in the particular circumstances of the case, even though it was determined in accordance with the relevant contributions plan. The Applicant's position 1. Generally stated, the Applicant contends that the Court has jurisdiction to rely on the particular circumstances of the case to overcome the impasse to completion caused by Ausgrid's refusal to consent to the Undergrounding Works and correct the financial burden imposed by the Undergrounding Works' conditions of the Original Consent. The Applicant submits that the financial burden that the undergrounding conditions place on the development of the site is both unreasonable and overly onerous. Moreover, such expenditure is disproportionate to the planning benefit which will be achieved. 2. In circumstances where the overhead cables and support poles constitute public infrastructure that benefits the broader community and does not provide power to the Site directly, the Applicant also contends that the undergrounding conditions do not reasonably relate to the approved development. 3. In the ultimate, the Applicant asserts that the retention on the Site of the existing 33 kV cables within the existing easement, as proposed in the modification application, will result in a modified development which the Court, after assessment, will be satisfied is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all): s 96(2)(a) of the EPA Act. It also submits, after an assessment of all relevant matters under s 79C(1), that the Court will be satisfied that that the modified development does not unreasonably detract from the desired future streetscape and character of the locality. In short, the modified development will generally achieve the outcomes sought by cl C6.5 of the DCP. The Council's position 1. The Council submits that the undergrounding of the cables is an essential feature of the development approved by the Court on 3 May 2015. Therefore, the Court cannot be satisfied that the development to which the consent, as modified, relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all): s 96(2)(a). Accordingly, it submits that the Court has no jurisdiction to approve the modification application as proposed on either basis. Alternatively, in the event that the Court forms the opinion that it has jurisdiction, the Council contends that the modified development does not satisfy the outcomes of cl C6.5 of the DCP and the present circumstances do not warrant a variation of the DCP requirements. Additionally, the Council contends that the modified development is unacceptable, after merit assessment, because of a reduced internal amenity for the individual lots and the more general impact on streetscape. Evidence 1. Expert evidence, both written and oral, was provided to the Court by the following experts: 1. Rebecca Englund - Executive Town Planner employed by Northern Beaches Council; 2. Robert Platt – Section 94 Coordinator employed by Northern Beaches Council; 3. Joseph Tramonte - Landscape Architect employed by Northern Beaches Council; 4. Thomas Cook - Consultant Town Planner and Director of Willow Tree Planning on behalf the Applicant. 1. The planning experts jointly conferred and produced a written report which is Exhibit 8. 2. Mr Tramonte prepared a written statement in respect of the modified landscape plan which is Exhibit 10. Contentions 1. The parties are in disagreement about the following matters: 1. Whether the removal of the undergrounding conditions will result in substantially the same development; 2. Whether the impact of the overhead cables left in their current location will have unacceptable impacts on the streetscape and the amenity of the occupants within the development; 3. Whether there is opportunity under the DCP (cl C6 .5 Utilities – Services and Infrastructure (the variation clause)) to justify not proceeding with underground utility's services in this case; 4. Whether the imposition of the conditions is reasonable, having regard to the financial cost it imposes on the developer; 5. Whether the imposition of the conditions is reasonable, having regard to the use of the high voltage cable and development consent issued for the site; and 6. Whether s 109J(2)(c) of the EPA Act provides an answer to the practical completion of the works in this case. Facts 1. Having already set out a relatively detailed background to the case, there are only a few additional facts derived from the parties' respective Statements of Facts and Contentions (SOFAC) and Statement in Reply that need to be stated. 2. The Original Consent was issued by the Court after the parties had executed a s 34 agreement, whereby the Applicant provided a plan demonstrating the relocation of the overhead transmission line and agreed to the conditions requiring the undergrounding of the overhead transmission lines. 3. A construction certificate was issued by the Council on 15 February 2016 in relation to the internal civil subdivision works, including demolition, tree-clearing, bulk earthworks, roads, drainage, utility services, and OSD tanks. Suffice to say, the subdivision works are now well-advanced. The roads have been constructed and the trees approved for removal have since been removed. The development is about eight weeks away from completion – save for the Undergrounding Works. 4. The requirement for the design and implementation of the cabling relocation work to be at cost of the developer is both an outcome and a technical requirement of the Council's C6.5 of the P21 DCP. In this instance, the Applicant agreed to the underground relocation of the existing 33kV overhead cables and designed an alternative path for that infrastructure. 5. That said, the parties agree that: 1. The 33 kV cables do not provide any benefit to the site. 2. The overhead cables will traverse 10 of the 16 lots within the approved subdivision. 3. The cables are public infrastructure and do not provide power to the Site directly. 4. All residential buildings footprints are located outside the existing easement. 5. Undergrounding of the power cables will reduce their ability to be seen from the street and within the Site. 6. Planting can be used to screen the visual impact of the power lines. 1. The parties agree that Ausgrid's latest position in respect of the Undergrounding Works is outlined in its correspondence to the Applicant dated 13 January 2016. 2. Ausgrid's correspondence states that, after review, Ausgrid supports Option 1 and "…does not require the 33kV overhead feeder cable known as S21 to be relocated or modified". Option 1 is described as "Ausgrid preferred option as it has minimal impact for the company and lower ongoing costs impacts compared to the undergrounding proposals considered". The correspondence also provides that: Ausgrid would not permit the section of S21 on Lot 1 DP 736691 to be underground in isolation due to technical difficulties and safety challenges associated with the multiple overhead to underground transitions on an individual feeder. This restriction is particularly relevant considering the proximity of the existing underground section (within 250 metres) and the lengths being contemplated (235-650m). Subject to the provision of the detail outlined in the letter, confirming that safety and operational issues are adequately addressed, Ausgrid has advised the Applicant that it has no objection to the subdivision proceeding. 1. The letter contains an aerial photograph of the Site, and the adjoining properties to the north, depicting the four alternative arrangements (Options) and the undergrounding points A, B, C and D relative to each Option. The undergrounding costs vary from $1.4 million to several million dollars. 2. Immediately to the north of the Site is a development site for a larger 22-lot subdivision known as the Baxter land. The consent for the Baxter land's subdivision also contains undergrounding conditions in respect of the Fern Creek Road frontage (Exhibit 7). At the Court's view, it was apparent that the Baxter land development works are at an early stage when compared to the Site. 3. Beyond the Baxter land and the Fern Creek Road cul-de-sac is a pocket of council-owned residential land and public parkland. At the hearing Ms Englund told the Court that she believed that the Council had a planning agreement under assessment for a land swap with a developer known as Frazer and a planning proposal for the park which would facilitate the undergrounding of the electricity services from Point A and extending to the Baxter land, as identified on the photograph attached to the Ausgrid letter reproduced below. No further detail of these matters was provided to the Court. 4. The parties acknowledged Ausgrid's preference for undergrounding of its electricity infrastructure in a coordinated works program, rather than by a piecemeal, development-by-development process. To that end, Ms Englund said that the Council and Ausgrid required the proponent to be responsible for engaging with the affected lots at the end of Fern Creek Road, where the existing UGHO is located, whilst, at the same time, conceding that such negotiations were dependent upon a number of factors outside the Applicant's control (such as the Frazer land swap approval of the planning proposal for residential use of the Council land). 5. As is evident in the correspondence between Ausgrid and the Applicant (Exhibit 8, Appendix 4, Joint Planners Report), undergrounding of the existing 33 kV overhead power lines is to occur in conjunction with adjoining properties to the north, including 2 Fern Creek Road and 9, 11, 12 and 13 Fern Creek Road. Any approval to allow the retention of the existing 33 kV lines at the subject site will have a flow-on effect upon the undergrounding of overhead infrastructure burdening other sites currently being developed with the same undergrounding conditions. Landscape Evidence 1. Whilst dealing with agreed matters, it is appropriate to note that Mr Tramonte, the Council's landscape expert, is generally supportive of the amended landscape design, subject to some refinement. Moreover, in my assessment, his evidence does not support a finding that the development, after modification, will be substantially different to that approved under the Original Consent. 2. Condition 18F of the Original Consent requires the planting of at least 100 canopy trees across the Site at the discretion of the developer - with 29 of the trees within the easement. Assuming no canopy trees can be planted in the easement, Mr Tramonte (who assessed the Original Consent) agreed with Mr Galasso that the easement could be planted with shrubs and landscaping no taller than four metres to appropriately green that space and still provide access for Ausgrid to the infrastructure. Subject to the identification of appropriate species, Mr Tramonte was confident that satisfactory landscaping of the subdivision and the Council reserve could be achieved including the additional planting of two or three trees on the Council verge north of Lot 9. 3. Accepting that the approved landscape plan in the Original Consent does not follow the spacing requirements outlined in the Council's Warriewood Valley Landscape Masterplan and Design Guidelines document (Exhibit 3), Mr Tramonte's concern about the spacing of plans in the modified design does not comply with the Guidelines. That said, he acknowledged that the landscaping along the frontages of Fern Creek Road and Orchard Street will remain, generally, as proposed in the Original Consent after modification. He also agreed that, where the lot boundary contained canopy trees with potential to grow into the easement area, that these trees should be replaced with shrubs (up to four metres in height) or be moved slightly within the allotment away from the easement without unacceptable landscaping consequence for the development. In fact, Mr Tramonte said that he could identify appropriate shrubs or plantings with a canopy of no taller than four metres for inclusion on lots such as Lots 17, 10 and 2 in order to avoid the easement area. 4. Mr Tramonte accepted that the modified landscaping plan (subject to the refinement discussed) will not cause the development, after modification, to be substantially different from that originally approved. Contention 1 The jurisdictional question 1. As stated the Council contends that the Court does not have jurisdiction to approve of this modification application because the undergrounding work conditions are 'essential features' of the Original Consent and, if deleted as proposed, the Court could not be satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all),": s96 (2)(a). 2. In support of this proposition the Council refers the Court to the contentions raised in the Class 1 appeal for the Original Consent which refer to the need to underground the overhead high voltage wires in order maximise the development potential yield of the original development. The statement records that "…the existing high voltage electricity wires were seen to compromise the development potential of the resultant allotments" (Contention b. in Exbhit 5); therefore, in order to facilitate the development approved by the Original Consent the parties agreed for that regional infrastructure to be relocated off site in accord with the conditions of consent. Should the Court approve the removal of the undergrounding conditions in this appeal the submission is that the modified development will not be substantially the same as the development for which consent was originally granted. 3. In making the above submission the Council accepts that the discussions had in the s34 process are not relevant to this appeal and that the jurisdictional issue raised by s96 (2) (a) is addressed by a comparison of the Original Consent (before modification) with the development as proposed to be modified. As Ms Reid submitted the relevant legal principles are conveniently summarised in the decision Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 per Pepper J at [173] : Legal Principles Governing the Power to Modify in s 96(2) of the EPAA 173 The applicable legal principles governing the exercise of the power contained in s 96(2) (a) of the EPAA may be stated as follows: (1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); (2) the modification power is beneficial and facultative (Michael Standley at 440); (3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Realty at [16]); (4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); (5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); (6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); (7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); (8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2) (a) (Vacik); (9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and (10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52]). Ms Englund's evidence about the jurisdictional issue 1. The Council's planner is of the opinion that the undergrounding and relocation of the high voltage infrastructure was an essential component of the Original Consent. In the joint report, Ms Englund states … the approved subdivision layout would not have been endorsed by the Council during the s 34 conciliation process if the overhead infrastructure was to remain in its current location … The maximum dwelling density for the site prescribed by cl 6.1 of the PLEP 2014 is not an automatic entitlement, but was seen to be appropriate in light of the Undergrounding Works ultimately proposed by the Applicant" (Exhibit 8, page 23, [9.3]) 1. With respect to the circumstances in which the original application was approved, and with regard to the qualitative and quantitative assessment of the proposed modifications, Ms Englund does not consider the proposed modification to be essentially or materially the same as that which was originally approved. She lists the differences as follows : * the proposed modifications result in a loss of canopy trees on the Site, and the retention of a visual scar in the natural landscaped setting that was to be revegetated as a result of the approved development; * the proposed modifications result in an unreasonable and otherwise avoidable burden upon individual sites and the Community Lot as a whole; * the proposed modifications result in inconsistent controls and outcomes that will be achieved with respect to the original approval , and * the proposed modifications result in a loss of a landscaped buffer between approved dwelling footprints (Exhibit 8, page 28). 1. Whilst acknowledging the Applicant's right to amend under s 96 of the EPA Act, Ms Englund said that the approval circumstances in this case are particularly relevant to my consideration as to whether the development is substantially the same. She identifies the fact that the Applicant agreed to the undergrounding at the s 34 conciliation process, knowing the potential costs prior to acceptance of the terms of the Original Consent. In her view, despite the Council's position, this negotiated outcome underlines the "essence" of the original development approved. Mr Cook's evidence about the jurisdictional issue 1. Mr Cook adopts a different focus. His evidence is based upon a qualitative and quantitative comparison of the development approved by the Original Consent with the modified development, an approach which is consistent with cases such as Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [56]; Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8. 2. In terms of qualitative changes to the development, Mr Cook is of the opinion that the retention of the cables, the amenity, and appearance and presentation of the development will not be dramatically modified. Notwithstanding, there will be some views of the cables. He believes that they will be either screened or filtered in a densely vegetated context, which includes the additional canopy trees over the Site required by the Original Consent (less those identified in the easement), with some additional three canopy trees on the Council verge (as suggested by Mr Tramonte during the hearing). According to Mr Cook's analysis, the limited views of the overhead cables from the public domain, and within the Site, will be a feature which is not uncommon, and often seen in residential subdivisions within the locality, including in Orchard Street to the west of the Site. 3. In terms of quantitative assessment, Mr Cook believes that the development remains a Community Title subdivision for the 16 residential lots/dwellings. Each lot will remain the same size as previously approved and all building footprints are capable of remaining the same size and in the same location - despite the retention of the overhead cables. In his opinion, the undergrounding of the cables is not an essential feature of the development as its impacts and potential benefits are minimal. Finding – Contention 1 - jurisdictional question 1. In my assessment, the location of the overhead cables represents a small feature (not an essential feature ) of the development and the result is that the proposal represents, after comparison (from both a quantitative and qualitative perspective), a development outcome which is substantially the same as the one originally approved and thereby satisfies s 96(2)(a). 2. In reaching that decision, I accept Mr Cook's evidence that the retention of the overhead cables does not drive a dramatic change to the essence of the original proposal because the access arrangements, building footprints and lot sizes remain identical and the visual impact resulting from the retention of the cables will be marginal, as demonstrated in the amended landscape plan (Appendix 6 to the joint report), subject to the refinement suggested by Mr Tramonte in terms of plant species. Mr Cook's evidence about landscaping of the Site is consistent with that given by Mr Tramonte. 3. In my assessment, the proposed landscaping will provide adequate privacy screening between dwellings and will soften the development, including the cables, from the public domain. Having walked along Fern Creek Road and observed the cables from the northernmost part of the site (said to offer the most unattractive view to the high point of the Site), I am satisfied that the proposed landscaping, including the further canopy trees on the Council verge, will soften the view impacts to the overhead wires and poles from the public domain. In time, as Mr Cook told the Court, the modified development will not look much different from that originally approved under the Original Consent. I do not accept Ms Englund's assessment, after a consideration of Mr Tramonte's evidence, that the easement will present as a "… visual scar in the natural landscaped setting that was to be revegetated as a result of the approved development". Such a description ignores the substantial planting proposed by the modified landscape plan. 4. Shortly stated, Ms Englund's assessment that the retention of the overhead cables and easement will dramatically impact upon the amenity of both the burdened residential allotments and Community Estate as a whole such as to render the development essentially different from that originally approved is not supported by the evidence. Yards will be able to be fenced and used and the easement will be landscaped and available for use by the residents of the estate. It is true that there will be different species of four-metre-high shrubs in the easement area rather than the canopy trees originally approved but that change does not, on the evidence of Mr Cook or Mr Tramonte, substantially change the essence of development from that originally approved after a quantitative and qualitative assessment. 5. As is made plain by the legal principles applicable to the manner in which the discretionary power contained in s 96(2)(a) of the EPA Act is to be exercised by the Court, the relevant comparison is between the present modification application and the development approved by the Original Consent. Having said this, insofar as the s 34 negotiations facilitated the issue of the Original Consent, the fact of that negotiation, whilst forming part of the circumstances in which the approval was granted, does not inform the jurisdictional question raised by s 96(2)(a). The modification power is beneficial and facultative (Michael Standley at 440) and is not dependent upon agreed positions which facilitated the issue of a development consent. For those reasons, Ms Englund's evidence about the s 34 negotiations, at page 29 of the joint report, does not demonstrate, for the purposes of s 96(2)(a), that the development after modification is not substantially the same as that originally approved. In short, the s 34 process behind the Court's final orders approving of the original development cannot be a focus in the comparative exercise required by s 96(2)(a). Contention 2 Whether the impact of the overhead cables left in their current location will have unacceptable impacts on the streetscape and the amenity of the occupants within the development; 1. I have already assessed the planning and landscaping impacts when dealing with the jurisdictional issue and do not need to repeat myself, save to record that, having reached the conclusion that the development after modification is substantially the same as that originally approved because the layout, building footprints and landscaping will not be very different, it does not follow that the modified development will have unacceptable streetscape impacts or that the amenity of the occupants within the development will be unacceptably reduced. 2. The correspondence from Ausgrid makes it clear that minor structures, such as clothes' hoists, playground equipment, non-metallic fences, brick barbeques and the like, are generally acceptable provided that they are below 4.6 metres, if not climbable, or 2.5 metres, where they are climbable. While the easement needs to be accessible for Ausgrid's staff and equipment, and large structures such as tennis courts and pools may be required to have particular safety requirements if permitted, there is no evidence to support a finding that the proposed modifications result in an "unreasonable and otherwise avoidable burden upon individual sites and the Community Lot as a whole", as suggested by Ms Englund. Therefore, based on my view of the site and the evidence, I do not believe that the evidence supports a finding that the retaining of the existing cables and the easement of the Site will result in unacceptable amenity outcomes, either within the Site or external to the Site. Finding – Contention 2 1. The impact of the overhead cables, left in their current location, will not have unacceptable impacts on the streetscape and the amenity of the occupants within the development. Contention 3 Whether there is opportunity under the DCP cl C6 .5 Utilities – Services and Infrastructure provision (the variation clause) to justify not proceeding with underground utility's services in this case 1. Much of the hearing was directed toward the interpretation and application of cl C6.5 of the DCP to the facts of this case. 2. Clause C6.5 states: 1. Needless to say, cl C6.5 of the DCP sets a standard with respect to development and, while the Applicant invites the Court to adopt a flexible approach in the application of the cl C6.5 (with an emphasis on allowing reasonable alternative solutions that achieve the objects of those standards in accordance with s 79C (3A) (b) of the EPA Act), the section is not relevant because the Court is not dealing with a development application. 2. Rather, in dealing with this modification application, the Court must take into consideration such of the matters referred to in s79C (1) as are of relevance to the development the subject of the modification: s 96(3). In that regard, I accept that cl C6.5 of the DCP is a central focus of my consideration under s 79C(1)(iii): Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226;172 LGERA 338; Zhang v Canterbury City Council (2001) 51 NSWLR 589;115 LGERA 373. 3. The planners agree about the following matters: 1. There is an increased risk to the system and power outage during the construction stage for undergrounding; 2. It is presently unclear how long and when the construction for the undergrounding will occur and, therefore, the potential risk to the system is unknown and could be lengthy; 3. There is uncertainly around the timing and delivery of overhead power cables on the adjoining site (Baxter land and the council-owned land beyond); 4. A large span of overhead cables (300 metres) has been placed underground, to the north, which was associated with the redevelopment of Sector 8; 5. The overhead cables satisfy criteria 1 for a variation in that they carry more than 33 kV; 6. The DCP provision expressly contemplates variations to the undergrounding requirement; and 7. Updated advice form Ausgrid, dated 13 January 2016, confirms that it is still Ausgrid's preference to retain the overhead cables in their existing location. 1. However, the planners disagree as to whether the development consent required two or three spans of overhead cables to be placed underground. 2. Let me deal, firstly, with the length of the spans. The Council submits that the plan in Exhibit 8, Tab 13 indicates three poles across the site holding three spans of wires, while Mr Cook believes that the wires to be undergrounded are short lengths of overhead wires of two spans – one of the poles is simply supporting. Mr Cook's assessment accords with my observations at the view. 3. Fortunately, the parties agree that the wires carry 33 kV of electricity and this aspect of the variation clause is satisfied. 4. The next circumstance required to engage the variation clause concerns the "… opportunities to underground with adjoining properties being available". Ms Englund, while appreciating that there is some level of uncertainty regarding the timing of the development of adjoining sites, believes such opportunity is available with the adjoining Baxter land. The development consent for that site contains similar conditions requiring undergrounding of the wires and there is no evidence to suggest that they will not be complied with. 5. Ms Englund also believes the undergrounding of the power lines over the creek line (Fern Creek), and across Sector 8 of the Warriewood Release Area which was completed at the developer's expense, is relevant. Although, she concedes that Sector 8 was developed as an entire sector and, as such, the costs of the Undergrounding Works was attributed to a greater developable area. In saying that, she notes that the subject site could have been developed in conjunction with adjoining parcels of land to achieve a scale consistent with Sector 8, but wasn't. Instead, the developer of the Site elected to develop independently and, as such, in Ms Englund's opinion, must be responsible for the costs of developing an individual site. In any event, she believes that there is likely to be financial return associated with unencumbered resultant lots. 6. Ms Englund has no answer to the evidence that Ausgrid has specifically advised the Applicant that it will consider longer lengths of the cables to be undergrounded (ie the entire length of the cables from 1 Fern Creek Road to 9 Fern Creek Road) and completed in one run. That length takes in the Council's land which, as Ms Englund conceded, is presently not available for such undergrounding opportunities – although she is aware of certain discussions taking place concerning a Council land swap with Frazer and a planning proposal to rezone part of the Council's land for residential purposes. 7. With respect to satisfaction of the outcomes of cl C6.5 of the DCP, Ms Englund lists, at [2.3] of the joint report, the reasons why she believes they are not achieved. 8. Shortly stated, her evidence is that all of the outcomes must be achieved despite the engagement of the variation. For example, the outcome relating to visual pollution from overhead services, she says, is primarily related to overhead power lines. Therefore, it cannot be said that the subject application, which seeks to maintain the overhead 33 kV overhead cables, results in the prevention of visual pollution. Similarly, the retention of the overhead wires is at odds with the key outcome for the development within the Warriewood Valley Release Area to install telecommunications and technical innovation. More innovative, in her opinion would be the undergrounding of the wires. 9. According to Ms Englund, visual clutter is retained by the overhead wires and the Applicant has not demonstrated to Ausgrid's satisfaction safety issues arising with the retention of the wires in situ. Furthermore, the security outcome is not addressed by the application and, finally, the retention of the wires directly attributes to the loss of existing canopy trees within the road reserve, and restricts opportunities for further plantings, particularly within the frontage of Lot 2, and substantial tree plantings across the Site. 10. Mr Cook disagrees and lists, at [2.4] of the joint report, the reasons why he believes that the outcomes are achieved. Mindful that the control in cl C6.5 requires all services, including telecommunications and cable television, are to be provided underground, Mr Cook does not believe that satisfaction of the outcomes only relates to the overhead wires. In this case, he is satisfied that the existing and future utilities' services are capable of meeting the increased demands of the approved development and will not impede the servicing of the greater Warriewood Valley Land Release Area. 11. The proposal provides for all utilities' services which service the Site underground in satisfaction of the DCP outcome. The existing overhead 33 kV cables sought to be retained by this proposal do not service the Site. The funding of this procedure is disproportionate to the development itself and the perceived planning benefit associated with it. The obligation, having been fully costed, is unreasonable and of little planning benefit. 12. While Mr Cook agrees that the undergrounding would be a more visually pleasing outcome – however only marginally - maintaining them in their current location, in his opinion, will not result in "visual pollution" to the locality and will have minimal impact on existing and future residents within the relevant land release area. Based on the existing and approved/proposed relocated trees, the transmission lines are considered to be well-sited and screened within the context of the Site. 13. Mr Cook believes that the transmission lines do not contribute to a predominant streetscape, nor are they perceived from any particular vantage points apart from within or directly in front of the Site. 14. Relying on the visual impact study (Appendix 5 of Exhibit 8), Mr Cook's evidence is that retention of the overhead wires has minimal impact on the streetscape presentation and internal amenity of the Site, or from the vantage points the Court was taken too at the commencement of the hearing. 15. The installation of the telecommunications and technological innovations were achieved under the approval of the Original Consent. The existing wires are said to be adequate for ongoing use and for the purposes of the subdivision, subject to some further detail being provided to Ausgrid. In fact, Ausgrid, in its advice dated 13 January 2016, has indicated that the undergrounding of the transmission lines may compromise the security and condition of this service, especially if undertaken in isolation. 16. The existing wires pose no threat to the safety of future residents, according to Ausgrid's advice. The building footprints are outside the easement, clear of the existing transmission lines. The electricity easement at 9.14 metres is sufficiently wide to allow for safe maintenance and at an overhead height to accommodate nominated structures and proposed landscaping. While the visual impact will be marginally improved by the undergrounding of the wires, Mr Cook does not believe the visual improvement is such as to warrant the significant expense. Ultimately, the overhead cables will be well‑screened and relatively small and unimposing. Their maintenance is not considered to result in any unreasonable visual clutter or affect the general amenity of the area. In short, the transmission lines in their current location could not be described as causing visual clutter from key vantage points around the Site. 17. Soil depths in the Council verge will be improved without the undergrounding of the wires and, as demonstrated by the landscape plan (with Mr Tramonte's suggestions of species and locations incorporated), the Applicant contends tree planting is appropriate and compliant with the consent in respect of the 100 trees less those in the easement. 18. The Applicant has paid the s 94 contribution for the provision of public infrastructure and undertaken a significant amount of public infrastructure works as part of the consent, including road upgrades, landscaping and footpaths. 19. For all those reasons, Mr Cook says that the outcomes of the clause are satisfied. Findings – Contention 3 variation clause 1. After a careful consideration of all of the evidence, including Ms Englund's oral testimony, I must conclude that there is no surety that opportunities for the undergrounding are presently available. In fact, the evidence is that opportunity to underground with adjoining properties is, at its highest, limited to the Baxter land which has a similar condition requiring undergrounding. 2. However, it was apparent at the site inspection that the Baxter land development is nowhere as advanced as the development on the Site – some eight weeks from completion. And, even if the Baxter land was available, Ausgrid has advised of technical impracticalities of undergrounding the Site in isolation (Exhibit 8, Tab 4) and said it will consider longer lengths of cables which take in the land to the north beyond the Baxter land. As it presently stands, Ausgrid has raised two matters that are relevant in the exercise of the discretion in cl C6.5 of the DCP. 3. Firstly, Ausgrid has advised the Applicant that it does not require the 33 kV overhead feeder known as S21 to be relocated or modified and that its preferred arrangement is for the overhead feeder to be retained in its existing state, because this has minimal impacts for Ausgrid and lower ongoing cost impacts compared to undergrounding proposals tabled by the Applicant. 4. Secondly, Ausgrid has advised the Applicant that it will not permit the S21 on the Applicant's site to be relocated underground in isolation due to technical and safety challenges with multiple overhead-to-underground transitions on an individual feeder. It is my assessment that Mr Cooks' evidence accurately reflects the circumstances in which the Applicant finds itself. In short, there is no satisfactory evidence to demonstrate opportunities for undergrounding with adjoining sites available now or in the near future – particularly in light of Ausgrid's advice and preferred position. For those reasons outlined in Mr Cook's evidence as summarised above, I am satisfied the circumstances in the dot points of the variation clause are made out. 5. Similarly, I accept Mr Cook's expert assessment that the outcomes of the control are achieved. Ms Englund's evidence was generally restricted to a consideration of the overhead wires and, as Mr Cook demonstrated in his evidence, the outcomes also require a consideration of other features in order to assess whether they are achieved. The cost of the Undergrounding Works is significant and a relevant matter in the merit assessment invited by the variation clause. While I accept that the undergrounding of the wires will obviously improve the visual impact of the Site from the public domain, and to a lesser extent internally, the visual improvement is not such as to warrant the expense, particularly when the infrastructure is regional infrastructure which does not service the development site directly. Mr Tarmonte's evidence is that the proposed landscaping (including shrubs up to four metres in the easement) will satisfactorily screen the overhead wires and provide a landscape buffer between the residential lot sites and from the public domain. He accepts that the trees to be planted will be appropriate, subject to some refinement of the species. 6. Accordingly, after a merit assessment (including social, environmental and economic matters) and a consideration of technical practicalities and advice from Ausgrid, the justification for not proceeding with undergrounding as required by the conditions at issue in this application is made out. And, having taken into consideration all relevant matters under s 79C(1) of the EPA Act, including the public interest, I am satisfied in the circumstances of this particular case that the conditions requiring undergrounding of the overhead wires should be deleted from the Original Consent. Having reached this conclusion, I do not need to deal with the Applicant's alternative contentions raised in respect to the s 94 contributions which have been paid to the Council or, for that matter, the s 109J argument proffered as an answer to the issues raised by the facts at hand. I have already indicated the problems with that course of action in the particular circumstances of this case. Similarly, I have already made clear my views about the Council's reliance on the matters agreed by the Applicant at the s 34 negotiations to facilitate the issue of the Original Consent as reason to refuse this s 96(8) application. The Court's directions 1. The Council is directed to prepare the modified conditions of consent to reflect my reasons for judgment, including any amendments to the landscaping plan, to identify appropriate species and provide them to the Court within 14 days. In the event that there is disagreement about the terms of any of the conditions, the parties have leave to approach the Registrar to relist the matter before me for the hearing of argument about the conditions at issue. 2. Addendum made on 13 December 2016 In accordance with the terms of paragraph 87 of my judgment of 23 November 2016, on 7 December 2016 the parties provided me with the agreed conditions of consent. I am satisfied that the conditions of consent accord with my findings and accordingly I make orders in chambers as follows: (1) The appeal is upheld. (2) Consent is granted to the application to modify Development Consent DA 304/2014 (as amended ) for a 17 lot community title subdivision, comprising 16 residential lots (with restricted building footprints ) and one community lot, boundary adjustment to 1 Fern Creek and 12 Orchard Street, the construction of supporting infrastructure, landscaping and demolition of existing outbuildings at 1 Fern Creek Road, 8 and 12 Orchard Street Warriewood (Lot 1 DP 736961,Lot C1 DP 376390 and Lot 103 DP 1033854) to amend condition 1.A and remove conditions B.11, C4(a)(v), C18(a), F.2 and F.10(f) which require the undergrounding of the existing 33 kV transmission lines that exist within the site and authorise the development in accordance with the consolidated conditions marked Annexure A to this judgment. (3) The exhibits are returned apart from A, C, 1 and 5. …………………………… Susan Dixon Commissioner 197302.16 - Annexure A - Consolidated Conditions (120 KB, pdf) Amendments 28 November 2016 - Amended Judgment cover sheet. 13 December 2016 - Addendum - Final Orders. 15 December 2016 - Amended 'Date of Orders' and 'Decision' on the cover sheet. 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 December 2016