Summary of cases. 1. NSW United Turkish Islamic Centre v Liverpool City Council [2013] NSWLEC Land and Environment Court Reporter

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1 Land and Environment Court Reporter IN THIS ISSUE Summary of cases Page 1 1. NSW United Turkish Islamic Centre v Liverpool City Council [2013] NSWLEC 1150 Page 1 2. Blakeney v Mosman Municipal Council (No 2) [2013] NSWLEC 100 Page 2 3. Demlakian v Mosman Council [2013] NSWLEC 1154 Page 4 4. Morrison t/as Playhouse Pet Motel v Lake Macquarie City Council [2013] NSWLEC Page 5 Definitions Page 6 Useful links Page 7 Summary of cases An appeal against Council s refusal of a development application for a cemetery in Bringelly. In addition to demonstrating matters a Court will take into account when considering a cemetery proposal, this case shows the issues that can arise as a result of inadequate information being provided to support development proposals and inconsistencies between a party s expert evidence. A case concerned a development application for a car parking area on private land and an access driveway along an unformed road in Mosman. The main issues in the proceedings were: whether the Court had power to grant consent under the Roads Act 1993 (Roads Act) for construction of the access road along the unformed road; and whether the Court should grant consent to the proposed development. Relevant to this issue were questions of visual impact, the public interest, the adequacy of the proposed car parking area and the compatibility of the proposed development with the objects of the relevant planning instruments. An appeal against deferred commencement conditions imposed by a council on a development consent for demolition of an existing building, erection of a two storey house with detached garages and landscaping works. An appeal against Lake Macquarie City Council s refusal of a s 96 application to modify a development consent granted by Council for an animal establishment (dog boarding) in Wyee. The material contained in the Land and Environment Court Reporter is of the nature of general comment only. No reader should rely on it without seeking legal advice. 1. NSW United Turkish Islamic Centre v Liverpool City Council [2013] NSWLEC 1150 This was an appeal against Council s refusal of a development application for a cemetery in Bringelly. In addition to demonstrating matters a Court will take into account when considering a cemetery proposal, this case shows the issues that can arise as a result of inadequate information being provided to support development proposals and inconsistencies between a party s expert evidence. The proposed development and the site The site is a ten hectare block of land in a rural setting on Greendale Road surrounded by rural allotments. The Centre sought to use the site as a cemetery. There are three other approved cemeteries on Greendale Road. The Liverpool LEP zones the site RU1 Primary Production. Cemeteries are permitted with development consent in this zone. Provisions in the Liverpool DCP relate specifically to cemeteries, crematoriums and funeral chapels. Consideration Council contended that the application should be refused on the following bases: the site did not comply with the minimum lot size in the DCP; the site was inappropriate; there were unresolved overland water flow issues; and it had unacceptable impacts on the local area regarding streetscape, landscaping, traffic, amenity and screening. Senior Commissioner Moore considered whether the amber light approach should be adopted by the Court. In the amber light approach, the Court considers how a proposal can be made capable of approval by the imposition of changes to the proposal by the Court. 1

2 Flooding In determining whether the land fell within a flood prone area, the Senior Commissioner referred to the flood planning area map in the LEP, which also maps certain areas outside the flood planning areas as flood prone. The Centre s flooding expert provided evidence of significant water volume across the site which satisfied Senior Commissioner Moore that the land is flood prone and that the impact of overland water flows would need to be dealt with. The Senior Commissioner held that the Centre s amended conditions dealt with the matter adequately. However in respect of wooden crossings that would be required, the Senior Commissioner noted that he did not have enough information to reach a decision. Site suitability The DCP required a minimum of 15 hectares available for burial plots and memorial walls, excluding, among other things, landscaped areas, parking, and places of public worship. The site area for the proposed cemetery was hectares and 1.3 hectares would be available for burials. The Senior Commissioner considered that the DCP should be given significant weight as it had been the subject of community consultation and reflected the community s expectations. After considering evidence on the development of the DCP, the Senior Commissioner held that the site suitability criterion was not a basis for refusal in itself but a matter to consider as part of a full merit assessment of the proposal. Landscaping Senior Commissioner Moore noted that there were inconsistencies between the landscaping plan and the Centre s own expert reports. The DCP envisaged landscaped mounding around the property but the proposal did not provide for mounding. For parts of the site, mounding would inhibit proper overland water management, however mounding could have been provided at other parts of the site. The Senior Commissioner considered this a significant matter to be considered. With respect to continuous planting along portions of the boundaries, the Senior Commissioner found that it was not compatible with the site being treated as an inner protection zone for bushfire management purposes. Difficulties also arose with respect to continuous landscaping near the effluent disposal area. An issue of fencing arose in the context of flora and fauna management. The proposal included a rabbit proof fence around the site but the Centre s flooding expert held the opinion that rabbit proof fencing would result in backing up flood waters, impacting the access to a neighbouring property. The flooding evidence for the Centre was also that such fencing should not be built across watercourses. This presented a problem as the Senior Commissioner held that it was necessary for the protection of the grave sites to have rabbits excluded from the burial areas. Access Senior Commissioner Moore again noted that he did not have enough information with respect to access and its effect on other aspects of the proposal. Other matters Regarding the issue of proliferation, the Senior Commissioner held that visual impacts would not accumulate from the approved cemetery at 41 Greendale Road, and held that it was not appropriate to have regard to the potentially increased psychological impact of the proposed development on neighbouring residents. Having regard to the proposed landscaping on Greendale Road, the Senior Commissioner held that the development did not cause concern about proliferation. Other matters (including operative hours, long-term financial viability, fill and nearby bores) were not impediments to the proposal. Conclusion Throughout the judgment, the Senior Commissioner made several references to the inadequate preparation of the applicant s case. Ultimately, Senior Commissioner Moore concluded that there was a serious deficiency in or conflicts between the expert evidence, with the result that the Court could not apply the amber light approach to this proposal. Furthermore, the noncompliance with the DCP s landscaping provisions was unacceptable. The appeal was dismissed. 2. Blakeney v Mosman Municipal Council (No 2)[2013] NSWLEC 100 This case concerned a development application by Mr Delprat for a car parking area on his land and an access driveway along an unformed road in Mosman. The main issues in the proceedings were: whether the Court had power to grant consent under the Roads Act 1993 (Roads Act) for construction of the access road along the unformed road; and whether the Court should grant consent to the proposed development. Relevant to this issue were questions of visual impact, the public interest, the adequacy of the proposed car parking area and the compatibility of the proposed development with the objects of the relevant planning instruments. Justice Craig dismissed the appeal and refused the development. This case provides guidance on when a road is a public road, and how the Court may apply planning objectives with a view to the future use of the land. 2

3 The site Mr Delprat s land, 22B Burran Avenue, Mosman (the site), lacks any frontage to a formed public road. The site has a right of way over adjoining land, 24 Burran Avenue. Mr Delprat sought development consent to enable him to gain access to the rear of the site from Stanton Road. The section of Stanton Road from which Mr Delprat sought access is an unformed extension of a sealed road. This portion of unformed road is zoned RE Public Recreation. Within the section of Stanton Road that fronts the site is a watercourse as well as a pathway, stairs and a ramp for pedestrian access to Edwards Beach. East of the unformed section of Stanton Road is Wyargine Reserve which extends to Edwards Beach and the headland, and has the appearance of bushland. Wyargine Reserve is zoned E2 Environmental Conservation. Is Stanton Road a public road? This question was relevant to whether consent under the Roads Act was required. Although the parties agreed that the unformed section of Stanton Road is a public road for all relevant purposes, Justice Craig nevertheless considered this as each party had provided evidence and submissions to support their agreed position. Justice Craig was satisfied that the unformed section of Stanton Road was dedicated as a public road at common law for the following reasons: Stanton Road, including the unformed section of that road, is identified in a deposited plan that reflected a survey lodged with the Registrar General in At that time, dedication of land as a public road at common law could occur without reference to any public authority; The dedication was accepted by public user. Justice Craig considered section 249 of the Roads Act, cases on evidence as to public use and evidence read by the parties, including evidence from local residents. Does the Court have power to grant consent under the Roads Act? Since Stanton Road was found to be a public road, the roads authority had to give consent under section 138 of the Roads Act before works could be carried out the road. Council was the relevant roads authority in this case. Council submitted that no formal application for consent under section 138 was provided by Mr Delprat as part of his development application and that the Court did not have the power to grant the consent under the Roads Act. Mr Delprat accepted that the Roads Act affords no separate right of appeal however he submitted that the Court had the power under section 39(2) of the Land and Environment Court Act 1979 (LEC Act) which gives the Court all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter. Justice Craig held that the Court did have the power to grant consent under the Roads Act because the development application included construction of the driveway within Stanton Road. However, Justice Craig held that whether the Court should grant the consent depended on his Honour s decision whether development consent should be granted. Merit consideration of the development application Justice Craig considered evidence from local residents, representatives of the Mosman Parks and Bushland Association, planners and ecological consultants. In considering the planning evidence, his Honour held that the Court should consider the likely future of the area if the zoning and management objectives are met. The Court should not focus too narrowly on the present state of the land. While Justice Craig considered that car parking and a hardstand could be achievable if the plans were amended, his Honour found that the proposed driveway along the unformed section of Stanton Road was unsatisfactory and justified refusal of the application for the following reasons: The area to be occupied by the proposed driveway has public use value as open space or recreation. The land provides a relatively attractive bushland enclave and offers passive recreation. Volunteer bushcare groups demonstrate the attraction of the area. The degraded state of the land was likely to improve. The proposed driveway and its associated structures did not meet the objectives of the RE1 Zone as they would alienate public use and their presence would be antipathetic to the land s open space. The proposed driveway would be inconsistent with planning principles in the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 which included maintaining and restoring the catchment s natural assets. Although the proposed driveway would not be visible from the beach or the harbour, it would have a visual impact upon the surrounding area, including people moving toward the beach, and it therefore failed to reinforce the dominance of landscape over built form as expressed in the LEP. In considering whether the site was suitable for the proposed development, Justice Craig was informed by its present zoning, the management policy and the public s long use of the land as open space. 3

4 A vehicle reversing along the proposed access driveway would be inappropriate. Conclusion Justice Craig concluded that the construction of the driveway would thwart the intended rehabilitation of this land as harbourside bushland and its enjoyment as such, by the public at large. The appeal was dismissed and the development application was refused. 3. Demlakian v Mosman Council [2013] NSWLEC 1154 This was an appeal against deferred commencement conditions imposed by Mosman Council (Council) imposed on a development consent for demolition, erection of a two storey house with detached garages and landscaping works. The proposal The proposal was to demolish an existing dwelling on the lot and construct a two storey dwelling with an undercroft (a cellar or storage room) and two single detached garages. A front fence and landscaping works were also proposed. Council accepted that the dwelling was of a height and scale comparable to other dwellings in the area and, subject to a number of design changes, reflected the future character of the area. These design changes included that the height of the dwelling be reduced by 500mm and the setback be increased. Resident objections Council sought to increase the rear setback by 3.6m, which would provide sufficient space for substantial planting, provide adequate separation of buildings and have regard to cross views of neighbouring properties. Ms Demlakian argued: that there was no established pattern of rear setbacks; the rear boundary of the site was substantially closer to the front boundary than its neighbours due to a previous subdivision of the site, so any numeric matching of adjoining rear setbacks would see the dwelling setback substantially more from the rear than its neighbours; the development was of similar bulk and scale to adjoining development; and the adjoining development maximises height at the rear of the site given the sloping nature of the topography. The Court found that the rear boundary of the subject site did not align with the rear boundaries of the neighbouring lots. The Court agreed that some setback was necessary but not to the extent sought by Council, 2m would suffice on the basis that: the setbacks chosen by Ms Demlakian were a midway point between the setbacks of the adjoining dwellings; the landscaping at the back of a neighbouring lot would likely result in minimal overlooking of the property from the development; and this would reduce the impact of the development on adjacent properties and would not materially reduce the harbour views achieved from the proposed development or neighbours. Similar issues were considered for the front and side setbacks. Height During the hearing Ms Demlakian agreed to lower the height of the development, however not to the extent required by Council. Council was satisfied that the proposed development would be in the public interest because it was consistent with the objectives for development within the zone, however lowering the height would reduce the bulk and scale of the development when viewed from the harbour and from neighbouring properties. Ms Demlakian argued that the new proposed height was less than the height of the ridge of the existing dwelling on the site and the height non-compliance was limited to the rear of the site. Further, lowering the height to the extent first required by Council would be inconsistent with the dwelling immediately adjacent the site and therefore compliance with the height was unreasonable. The Court agreed to the height proposed by Ms Demlakian on the basis that it would help minimise impacts on neighbours and would put the dwelling at a similar height to the maximum heights of the neighbouring properties. Other issues Council imposed a condition requiring the ground and first floor rear balconies of the proposed development to have 1.6m high privacy screens extending the full length of the southern wall of the balconies in order to increase privacy to the neighbouring properties. During the hearing, Council and Ms Demlakian agreed that the balcony screens could be replaced by angled louvres. However, Ms Demlakian agreed to screens for only half the width of the balcony, arguing that this was sufficient to provide privacy. The Court found that extending the privacy screens the full length of both proposed balconies it would increase the bulk and scale of the façade and reduce cross views. However, without them it would be possible to look directly south from the proposed balconies. 4

5 On this basis, the Court held that the louvres were to be extended the full depth of the balconies, however they should be able to intrude into the setback as required so they could be affixed to the side of the balconies. The Court upheld the appeal in part, amending some conditions but retaining others as imposed by Council. 4. Morrison t/as Playhouse Pet Motel v Lake Macquarie City Council [2013] NSWLEC This was an appeal against Lake Macquarie City Council s (Council) refusal of a s 96 application to modify a development consent granted by Council for an animal establishment (dog boarding) in Wyee. Background The original consent was granted in May 1980 for the dog boarding kennel allowed the accommodation of 40 dogs on the premises. The consent was subsequently modified in 2008 so as to allow an increase in the number of dogs to 120 and subject to certain conditions including the construction of a new insulated shed located at the rear of the property. The conditions required the incorporation of noise mitigation measures and acoustic/visual fencing along the boundary of the property. At the time of the hearing, the construction work for the new shed and fencing had been substantially commenced. The s 96 modification application was made in 2011 for the following modifications: modification of the building materials for the dog kennel structure from those previously approved; modification to location of acoustic fencing required as part of the conditions of the consent; relocation of the water tank and Envirocycle system from the western area of the site to the eastern area of the site; removal of certain conditions which required car parking to be available for staff and clients at all times and to be constructed in accordance with the Australian Standard. Council refused the s 96 modification on the following grounds there would be: unacceptable noise impacts; this issue substantially related to the non-completion of insulation and sound-proofing of the structure; unacceptable odour impacts; and unacceptable visual impacts of the fencing, this referred mainly to non-completed sections of the boundary fencing and also the alignment of sections. The site The site was adjoined by a vacant parcel, single dwelling houses and associated outbuildings and conservation land along three sides. The site contains a single storey brick manager s residence with an office for the operation of Playhouse Pet motel. Other structures on site include a weatherboard dwelling house used for administration, kennel structures, dog runs, garages, fencing and a substantial kennel building constructed after development consent for an animal establishment was granted. Zoning The land was zone Rural (Living). Animal establishments were not permissible on land zoned Rural Living. The use was prohibited under the local environmental plan (LEP). The site was previously zoned Rural under the (LEP), dog boarding kennels was not a defined use and therefore were permissible by virtue of not being prohibited. Conclusion Concerns were raised by several objectors relating to noise impacts from barking dogs. The incorporation of insulation and plasterboard into the structure was found to be sufficient to provide a better acoustic outcome and comply with the original noise performance conditions imposed by Council. The boundary fence had not been erected on the boundary line, however the parties agreed to the granting an easement to allow the neighbouring property owner to allow maintenance. Commissioner Hussey was satisfied that the modification related to substantially the same development and that it had been notified to the objectors. The modified conditions satisfactorily addressed the concerns of the neighbours so as to achieve a satisfactory environmental outcome. On this basis, the Court granted consent to the modification application. 5

6 Definitions Appeal - an application or proceeding for review by a higher tribunal or decision maker. Consent authority the body having the function of determining the application, usually a council; Deemed refusal where a consent authority has failed to make a decision in relation to a development applications within the statutory time limit for determining development applications Development means: (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition Development Application - an application for consent under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) to carry out development but does not include an application for a complying development certificate. Environment includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings; Existing use rights rights under Planning Legislation to continue previously lawful activities on land which would no longer be permitted following the introduction of changes to environmental planning instruments. LEP Local Environmental Plan, planning tool created by councils to control the form and location of new development; Local heritage significance - in relation to a place, building, work, relic, moveable object or precinct means significance to an area in relation to the historical, scientific, cultural, social, archaeological, architectural, natural or aesthetic value of the item; Objector a person who makes a submission to a consent authority objecting to a development application for consent to carry out designated development; Occupier includes a tenant or other lawful occupant of premises, not being the owner; Planning principle - statement of a desirable outcome from a chain of reasoning aimed at reaching, or a list of appropriate matters to be considered in making, a planning decision; Premises means any of the following: (a) a building of any description or any part of it and the appurtenances to it, (b) a manufactured home, moveable dwelling and associated structure, (c) land, whether built on or not, (d) a tent, (e) a swimming pool, (f) a ship or vessel of any description (including a houseboat). Procedural fairness - this term is interchangeable with natural justice and is a common law principle implied in relation to statutory and prerogative powers to ensure the fairness of the decision making procedure of courts and administrators. Prohibited development means (a) development the carrying out of which is prohibited on land by the provisions of an environmental planning instrument that apply to the land, or (b) development that cannot be carried out on land with or without development consent. Public authority includes: (a) a public or local authority constituted by or under an Act, (b) a government Department, (c) a statutory body representing the Crown; State heritage significance - in relation to a place building, work, relic, moveable object or precinct means significance to the State in relation to the historical, scientific, cultural, social, archeological, architectural, natural or aesthetic value of the item Subpoena - a document by which a court compels a person to attend a court to give evidence or to produce documents within that person s possession. 6

7 Useful links Land and Environment Court website: Australasian Legal Information Institute: NSW Attorney General s Department - Land and Environment Court: Case Law NSW: Environment Protection Biodiversity Conservation Act - subscription to EPBCA group: Environment and Planning Law Association NSW: Development and Environmental Professionals Association: Urban Development Institute of Australia: Property Council: Housing Industry Association: Planning NSW: Environment Australia: Environmental Protection Authority (NSW): EDONet: NSW Agriculture: NSW National Park and Wildlife Service: Planning Institute of Australia: Free subscription: Subscribe to receive the Land and Environment Court Reporter directly by on the Local Government NSW website: lgnsw.org.au/subscribe Maddocks LGNSW welcome any feedback or suggestions relating to future editions of the Land & Environment Court Reporter by to LGNSW s Legal Officer, Frank Loveridge at frank.loveridge@lgnsw.org.au 7