What questions should be considered in relation to whether a Plan of Management is appropriate for a particular situation?
The judgment of Renaldo Plus 3 Pty Limited v Hurstville City Council (Renaldo) provides the relevant questions as to when a Plan of Management (or Management Plan) is appropriate.
The appeal and issue in dispute
The appeal in Renaldo was in relation to the refusal of a development application for the erection of a mixed commercial, retail and residential development in Oatley. A loading dock was proposed for use by a proposed supermarket.
The operation of the loading dock was a significant issue in the proceedings. The applicant relied on an Operational Management Plan to control deliveries to the proposed supermarket to minimise the environmental impacts on the surrounding streets and residential areas. The Operational Management Plan included, among other things, operating hours for the loading dock, maximum capacities, delegation of responsibilities to staff, processes in relation to the delivery of goods by truck drivers, and a complains management process.
Hurstville City Council took the view that the Operational Management Plan could not be relied upon and it was likely that there would the impacts notwithstanding the plan.
The Planning Principle
In considering the adequacy or appropriateness of a Plan of Management to the particular use and situation, the Court formulated the following questions:
1. Do the requirements in the Plan of Management relate to the proposed use and complement any conditions of approval?
For example, does the Plan of Management complement the proposed use and provide operating guidelines for matters which are consistent with that use.
2. Do the requirements in the Plan of Management require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?
In Renaldo, the Operational Management Plan placed an obligation on truck drivers to notify the proposed supermarket 5 minutes prior to their arrival and if the red light is indicating that the loading dock cannot be accessed, to make other arrangements for the delivery of the goods. The Operation Management Plan also placed an obligation on the Stockroom Manager and/or the Store Manager to monitor the operation of the loading dock and to arrange for the coordinated delivery of goods.
The Court determined that these requirements would not place an unreasonable obligation on truck drivers, the Stockroom Manager or the Store Manager. However, it was the Court’s view that the Operational Management Plan required a slight amendment to provide for suitable locations where trucks could park in situations where the rescheduling of the delivery was not appropriate or unnecessary.
3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action?
A source should be readily identifiable. In Renaldo the Court determined that any breaches could be suitably enforced through proceedings in the Land and Environment Court against the operator of the supermarket.
4. Do the requirements in the Plan of Management require absolute compliance to achieve an acceptable outcome?
For a Plan of Management to be effective, a single breach or small number of breaches should not create a situation where there is unacceptable impact.
In Renaldo, the potential impact related to a noise impact. Based on expert evidence the Court accepted that absolute compliance with the requirements of the Operational Management Plan was not necessary to achieve an acceptable noise environment for local residents.
5. Can the people the subject of the Plan of Management be reasonably expected to know of its requirements?
In most situations it will be possible to provide the relevant people with the specific requirements of the Plan of Management. In Renaldo these people had links to the supermarket as employees or through other contractural arrangements. In that situation such arrangements provided incentives for those persons to comply with the requirements of the Operational Management Plan.
6. Is the Plan of Management incorporated in the conditions of consent, and to be enforced as a condition of consent?
This consideration was re-worded by the Court in Amazonia Hotels Pty Ltd v Council of the City of Sydney where the Court relevantly stated:
In Revelop Projects Pty Ltd v Parramatta City Council… the Senior Commissioner noted that the Commissioners of the Court had undertaken a review of the published list of planning principles in late 2013, in order to determine which planning principles remain relevant in their original form; which, if any, might warrant revision or replacement; and which, if any, were no longer relevant and should be disregarded in the future. The Commissioners decided that the planning principle in Renaldo… should be retained, and revised to require that where a Plan of Management is appropriate it should be incorporated in the conditions of consent. The sixth question in Renaldo asks whether there is a condition of consent requiring compliance with the Plan of Management. Such a condition assists in enforceability of the provisions of the Plan of Management. The analysis required by Renaldo assumes that the terms of the Plan of Management are known at the time of assessing whether a Plan of Management is appropriate for a particular use and situation. Requiring that the Plan of Management be annexed to the conditions of consent would also achieve certainty as to its terms, and accessibility to any member of the public.
Accordingly, if a Plan of Management is incorporated into the conditions of consent, it must be certain and known in order to be enforced as a condition of consent at a later time, if necessary.
7. Does the Plan of Management contain complaint management procedures?
It is necessary for a Plan of Management to have complaint management procedures to ensure that the operator (and Council, if necessary) can respond to impacts on surrounding land uses.
8. Is there a procedure for updating and changing the Plan of Management, including the advertising of any changes?
In Renaldo the Operational Management did not include a procedure for updating or changing its requirements. It was the Court’s view that this procedure should be incorporated into the plan, and the Court determined to address this matter by including a condition of consent to amend the Operational Management Plan accordingly.
The following cases can be accessed on NSW Caselaw: