Attachment 1 - Letter from Thomson Geer - Condition 63 · 132007.12.8

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                    Food and Beverages, Commercial Business Type 1 – Office and Commercial Business
                    Type 2 – Medical;2

          (b)       Condition 12 of the development approval authorises a total maximum gross floor area of
                    6,054m2, with certain sub-limits apportioned to some of the listed uses mentioned in (a),
                    above;

          (c)       Two large, two storey buildings (with some underground car parking on a third level),
                    described as Buildings A and B; and

          (d)       A total of 366 car parks plus 12 motorcycle bays, which are deemed to be equivalent to 3
                    further car parks. In other words, 369 car parks (or equivalent) are required for the
                    development as approved, including the child care centres (which are located on the
                    same parcel of land but were approved separately to the balance of the currently
                    operating uses/development).

2         Change Application

2.1       Subsequent to the granting of the development approval by the Court you lodged a change
          application, on behalf of the land owner, with the Council.

2.2       That change application was lodged pursuant to the terms of the Planning Act 2016 and sought
          (in broad terms) approval for:

          (a)       A two storey car parking structure that would include a total of 106 car parking spaces. 72
                    of these spaces would be intended to provide the same 72 spaces contemplated under
                    the development approval for this area, with the remaining 34 spaces servicing the
                    additional GFA referred to in point (b), below. This structure was to be located at the rear
                    of the development, behind the existing Telstra facility; and

          (b)       A partial third storey (above the two storeys of parking) comprising a total GFA of 675m2,
                    which would connect by way of elevated walkway to existing Building B.

2.3       A more detailed analysis of the proposed changes to the development approval is contained in
          the town planning report that you have prepared and that was provided to the Council with the
          change application. That report also notes certain consequential amendments that are required to
          other conditions of approval to reflect the additional built form referred to above.

2.4       By way of letter dated 12 January 2018 the Council issued an information request with respect to
          the change application. Item 3 of that change application, being the subject of this advice,
          requested additional information with respect to the requirements of Condition 63 of the
          development approval.

3         Condition 63

3.1       Condition 63 of the development approval, in its current form, states as follows:

          Additional Conditions (7/3/08)

          63    The applicant shall enter into an infrastructure agreement with Council with regard to the
                provision of private services within the 5m wide road reserve that divides the two separate
                parts of Lot 4 prior to the use commencing on the northern part of Lot 4. The conditions of
                the infrastructure agreement shall:

                (a) Provide for the installation, maintenance and preservation of the private water an
                    electrical services that supply the separate parts of Lot 4,


2 The existing child care centres on the land are the subject of a separate development approval and are not the subject of this
advice.




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            (b) Provide for the maintenance of the road reserve in those parts affected by the private
                services,

            (c) State that the applicant is responsible for obtaining approval for the design and
                construction of the various services from the relevant authority,

            (d) State that the design and construction of the services shall be wholly at the applicant's
                expense and shall not entail a financial encumbrance on future purchasers of the
                proposed lot, and

            (e) Be to the satisfaction of the Department of Natural Resources and Water (DNR&W). If
                DNR&W does not consent to the private services crossing their land the applicant shall
                find an alternative means of providing services to the balance of Lot 4 prior to the use
                commencing.

3.2   As the heading suggests, this condition was inserted as part of the Negotiated Decision Notice
      process that resulted in the first version of the development approval, granted on 7 March 2008.

3.3   The current change application is directly relevant to this Condition 63, as the new built form is
      proposed for that part of Lot 4 that is separated from the existing development by the road
      reserve area. No substantive built form has been constructed on that separated part of Lot 4 to
      date, which has meant that compliance with this condition has not yet been necessary.

4     Discussion

4.1   In substance, Condition 63 requires the installation (and ongoing maintenance) of appropriate
      infrastructure (e.g. power, water) to service the part of Lot 4 that is separate from the existing built
      form.

4.2   We do not consider that an infrastructure agreement is necessary or desirable to achieve that
      substantive purpose. The relevant area that the services need to traverse is a dedicated road
      reserve. Whilst it is relatively narrow (approximately 5m in width) and is used as a public footpath,
      legally it is no different to any other roadway.

4.3   There is no necessity for the outcomes sought in Condition 63 to be imposed by way of
      infrastructure agreement. We say this because:

      (a)      It is lawful for the Council to impose conditions on a developer/applicant requiring works
               in the existing public roadway. Councils regularly impose conditions on approvals
               requiring road upgrades (additional lanes, kerb and channel etc) and/or installation of
               services under roadways (e.g. bringing a water/sewer main under a road to service a
               development). Moreover, those conditions often require that the works be undertaken at
               the developer/applicant's cost; and

      (b)      It is lawful for the Council to impose conditions requiring the ongoing maintenance of
               those services. Again, Councils regularly impose conditions that require aspects of a
               development to be maintained on an ongoing basis, whilst the approved use is operating.

4.4   Furthermore, it is in fact less desirable for the parties to enter into an infrastructure agreement (as
      contemplated by the condition), particularly from the point of view of the Council, as:

      (a)      There are costs associated with drafting, reviewing and then implementing an
               infrastructure agreement (for both parties) that can be readily avoided by utilising a
               condition of approval instead;

      (b)      Condition 63, in its current form, already requires the developer/applicant to seek further
               approvals for the works (likely to be operational works approvals). Those further
               approvals represent an opportunity for the Council to appropriately condition any detailed




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                   requirements that may reasonably be necessary for the works. An infrastructure
                   agreement adds nothing to the process in this context;

          (c)      A condition of approval provides greater clarity and certainty moving forward, as future
                   owners of the development can be expected to be well aware of the conditions
                   associated with an approval, but are less likely to be aware of a related infrastructure
                   agreement.

4.5       Finally, this condition was imposed during the currency of the Integrated Planning Act 1997. At
          the time it was imposed it was lawful to impose a condition that mandated an applicant/developer
          to enter into an infrastructure agreement. However, such conditions are no longer lawful. They
          are expressly prohibited by section 66(1)(b) Planning Act 2016 and have been unlawful pursuant
          to previous legislation for some time.3 The change application currently before the Council
          therefore represents an opportunity for the parties to modernise this condition and remove what
          has become an unlawful requirement.

5         Conclusion

5.1       We consider that the infrastructure agreement required pursuant to Condition 63 of the
          development approval is unnecessary. Moreover, if the development approval were granted
          today, imposition of a condition of this kind would be unlawful.

5.2       We consider that the appropriate way to resolve the matter is for the Council, as part of the
          current change application, to impose a revised condition 63 that requires the applicant/developer
          to implement the same scope of works (or some appropriate modification thereof), but without the
          need for an infrastructure agreement relating to those works. In this context it appears as though
          subparagraphs (a) through (e) of the current Condition 63 require very little amendment, with the
          only substantive amendment necessary being to the first part of the condition, prior to those
          subparagraphs.

5.3       The condition would require ongoing compliance, much like any other condition of approval,
          providing both parties with adequate certainty as to the future of the works and the development
          more generally.

5.4       Such a condition would be no different to a condition requiring external road upgrade works and
          would, in our view, provide sufficient certainty to both the Council and the applicant/developer
          with respect to the works moving forward.

If you have any queries regarding the above, please contact us.

Yours sincerely




Michael Marshall
Partner
T +61 7 3338 7525
M 0407 914 748
E     [email protected]




3 See section 347(f) Sustainable Planning Act 2009.




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