Owners' consent as a precondition to the exercise of power to grant consent

CKDI Pty Ltd as trustee for CKDI Unit Trust v Ku-ring-gai Council [2023] NSWLEC 1018

We acted for the Council in this appeal, which was dismissed by the Court on 17 January 2023.  This decision focused on the jurisdictional test for owners’ consent as a precondition to the exercise of power to grant consent, in this case, to an inter-allotment drainage system that was proposed on adjoining land.  The Court was also required to consider whether that drainage system could be considered to be part of the development for which consent was sought.

The appeal concerned a development application (DA) under which consent was sought for lot consolidation and the re-use of an existing locally listed heritage item (pursuant to the Heritage Incentives Clause under clause 5.10(10) of Ku-ring-gai Local Environmental Plan 2015 (LEP)) on a property in Wahroonga (Site).  The DA included a proposal to drain the Site over an adjoining parcel of land (Neighbouring Property) for which works, consent from the owners of that Property had not been obtained or provided.

The primary questions for the Court were: whether the inter-allotment drainage arrangement proposed for the Site, over the Neighbouring Property, in an easement (to be created under a deferred commencement condition) was considered to be part of the development for which consent was sought; and whether consent could be granted for those drainage works in the absence of consent from the owners of the Neighbouring Property.

The Applicant argued that the drainage works on the Neighbouring Property and the creation of the easement thereon were not works for which consent was sought as part of the DA before the Court; those works had merely been depicted in documents provided as “information” in support of the DA.

The Council argued that the proposed drainage works upon the Neighbouring Property comprised part of the works for which the Applicant sought consent (because they were depicted on the documents accompanying the DA), in which case the owners of the Neighbouring Property would be required to provide their consent for such works.  As owners’ consent had not been provided, the Court did not have power to grant consent to the DA.

The Council also argued in the alternative that even if the Court found that the proposed inter-allotment drainage works did not form part of the DA, the Court would still be precluded from granting consent because the preconditions at clauses 6.5(1) (stormwater and water sensitive urban design) and 5.10(1) (heritage conservation incentives) of the LEP were not satisfied.

The Court accepted that the purpose of the proposed inter-allotment drainage works was to discharge stormwater from the Site to the public drainage system and without such works, there would be no means of discharging stormwater from the Site without further adverse impacts on the downstream properties.

As to the owners’ consent issue, the Court accepted the Council’s argument that the Applicant’s proposed deferred commencement condition would not overcome the requirement for owners’ consent or the jurisdictional tests in clauses 6.5(1) and 5.10(1) of the LEP.

In dismissing the appeal, the Court carefully stepped through the requisite jurisdictional tests around requirement for owners’ consent from the owners of the Neighbouring Property and the requirements for documents that form part of a development application in clause 2(1) of Schedule 1 of the Environmental Planning & Assessment Regulation. The Court was satisfied that the documents accompanying the DA provided as “information” in support of the proposed inter-allotment drainage scheme over the Neighbouring Property did in fact comprise part of the works for which consent was sought under the DA. As such, the Court found that the Neighbouring Property was land to which the DA related, and that consent could not be granted to the DA without the consent from the owners of the Neighbouring Property (applying the reasoning in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245).

The Court also considered that even if the drainage works proposed on the Neighbouring Property were not found to be part of the DA, it would not meet the preconditions in clause 6.5(2) of the LEP, which require the Court to be satisfied the proposed stormwater management system includes all reasonable management actions to “avoid any adverse impacts on the land to which the development is to be carried out, adjoining properties …”. The Court was not satisfied that the proposed inter-allotment drainage scheme included all reasonable management actions to avoid any adverse impacts or uncontrolled stormwater discharge on adjoining properties including the Neighbouring Property. Accordingly, the Court found that there was no power to grant consent.

This decision also demonstrates that a development proposal cannot be salvaged by a deferred commencement condition that is intended to: exclude works on an adjoining property from the development for which approval is sought; and require further and later development consent for the works intended to be excluded from the grant of consent.

The granting of consent under a deferred commencement condition to only part of the development for which approval is sought also does not remove the requirement for owners’ consent from all owners of the land to which the development application relates; owners’ consent is required for the land to which the development application relates and not to the land to which the development consent relates. The requirement for owners’ consent applies to the development for which approval is sought and not only to any part of a development for which approval is granted.