Land and Environment Court New South Wales Medium Neutral Citation: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 Hearing dates: 5 and 8 June and 16 September 2020 Date of orders: 08 October 2020 Decision date: 08 October 2020 Jurisdiction: Class 1 Before: Preston CJ Decision: The Court orders: (1) The appeal is upheld. (2) Development application no DA/326/2018 (as amended on 5 June 2020) for the demolition of existing structures, construction of three residential flat buildings with four basement levels and a neighbourhood shop, and construction of a new private road and replacement bridge connecting the development to Hill Road on Lot 5 in DP 1081374, known as 2B Hill Road, Lidcombe, is determined by the grant of consent subject to conditions, in accordance with Annexure A. (3) The exhibits, other than Exhibit G (architectural plans), Exhibit H (landscape plans), Exhibit J (civil engineering and stormwater plans) and Exhibit K (cl 4.6 variation request), are to be returned to the party that tendered them. Catchwords: DEVELOPMENT APPLICATION – residential flat buildings – jurisdictional preconditions to grant of consent – satisfaction of preconditions – traffic generated by development – whether traffic management works required to prevent illegal manoeuvres – whether development not to be approved until traffic management works constructed Legislation Cited: Auburn Local Environmental Plan 2010 cll 4.3, 4.4, 4.6 6.1, 6.3, 6.4, 6.5, 6.8(3) Carter Street Precinct Development Control Plan 2016 Conveyancing Act 1919 s 88E Environmental Planning and Assessment Regulation 2000 cll 2A, 3 Petroleum Act 1967 Road Transport Act 2013 s 122 Roads Act 1993 State Environmental Planning Policy (Infrastructure) 2007 cl 66C, 102, 104 State Environmental Planning Policy No 55 – Remediation of Land cl 7 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development cll 28, 30 Environmental Planning and Assessment (Local Infrastructure Contributions – Timing of Payments) Direction 2020 Cases Cited: Harris v Scenic Rim Regional Council (2014) 201 LGERA 12; [2014] QPEC 16 Category: Principal judgment Parties: HP Subsidiary Pty Ltd (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: Mr T Robertson SC (Applicant) (on 5-8 June 2020) Mr C Nehme (solicitor) (Applicant) (on 16 September 2020) Mr A Seton (solicitor) (Respondent) Solicitors: McKees Legal Solutions (Applicant) (to 17 August 2020) Fortis Law Group (Applicant) (from 15 September 2020) Marsdens Law Group (Respondent) File Number(s): 2018/391803 Publication restriction: Nil Judgment 1. The Carter Street Priority Precinct at Lidcombe is undergoing urban renewal. The precinct is currently an established industrial area, but it is being transformed to a high density residential suburb. 2. One of the sites within the precinct undergoing urban renewal is Lot 5 in DP1081374, known as 2B Hill Road, Lidcombe (the site). The site is a battle axe block, with the M4 Motorway on one side of the axe head to the south and Haslam Creek on the other side of the axe head to the north, and a 10m access handle to the east connecting the site to Hill Street over vehicular and pedestrian bridges crossing a stormwater channel. The site is presently occupied by a car storage yard and a light industrial activity. 3. HP Subsidiary Pty Ltd (HP Subsidiary) has applied for development consent, by development application No DA/326/2018, for the demolition of the existing structures, construction of three residential flat buildings with four basement levels and a neighbourhood shop on the ground level of one of the buildings and construction of a new private road and replacement bridge connecting the development to Hill Road. Development for these purposes is permissible with consent. 4. More particularly, the proposed residential flat buildings are as follows: 1. Building A is a part 13, part 14 storey building with an overall height of 46.2m. It contains 111 units. Rooftop communal open space is provided atop levels 13 and 14. 2. Building B is a seven storey building with an overall height of 27.65m. It contains 41 units. Communal open space is proposed on the rooftop of Building B. 3. Building C is a 20 storey building with an overall height of 65m. It contains 152 units. 1. Parking is proposed across four basement levels with a total of 391 car parking spaces (including three car share spaces), 94 motorcycle parking spaces and 350 bicycle parking spaces. Additional parking includes three spaces for delivery vans and one car wash space. 2. In addition to rooftop communal space on Buildings A and B, communal open space is provided at ground level within the development, and on the opposite side of the new road extension. 3. A neighbourhood shop is proposed at the ground level of Building A. 4. A new private road and pedestrian path are proposed to provide vehicular and pedestrian access along the access handle to Hill Road. The provision of this access involves upgrading of the vehicular and pedestrian bridges over the stormwater channel and the private road in the access handle. 5. Sydney Central City Panel refused consent to HP Subsidiary's development application. HP Subsidiary appealed to the Court. HP Subsidiary has sought and been granted leave to amend its development application on a number of occasions, the two most recent being on 1 May 2020 and on the first day of the hearing of the appeal on 5 June 2020. The amended plans, describing the development for which consent was sought, included: 1. architectural plans prepared by Integrated Development Group (Exhibit G); 2. landscape plans prepared by Site Design and Studios (Exhibit H); and 3. civil engineering and stormwater plans prepared by Cardno Pty Ltd (Exhibit J). 1. The amendments of the development application and plans have reduced the issues in contention between the parties. After the last amendments allowed on 5 June 2020, only two issues remained in contention of the 16 contentions that had been raised by Parramatta City Council (the Council) in the further amended statement of facts and contentions filed on 18 May 2020. 2. The first issue concerned the need for satisfactory arrangements to be made for contributions to designated State public infrastructure in relation to the proposed development while the second issue concerned the impact of traffic generated by the proposed development on the local road network and the need to undertake traffic management works to mitigate such impacts. Arrangements for contributions to designated State public infrastructure 1. The first issue (contention 2) is jurisdictional, one of many jurisdictional preconditions to the grant of consent under the relevant environmental planning instruments. This one concerned the need for a certificate from the Secretary of the Department of Planning, Industry and Environment (DPIE) that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to the proposed development, as required by cl 6.8(3) of Auburn Local Environmental Plan 2010 (ALEP). Clause 6.8(3) provides: "Development consent must not be granted for development to which this clause applies unless the Secretary has certified in writing to the consent authority that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to that development." 1. At the time of the hearing on 5 to 8 June 2020, satisfactory arrangements had not been made with the Secretary. At the conclusion of the hearing on 8 June 2020, HP Subsidiary applied for, and I granted, an adjournment of the hearing for three months to allow HP Subsidiary further time to negotiate and endeavour to secure the Secretary's certificate in writing that satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to the proposed development. 2. By the resumption of the hearing on 16 September 2020, HP Subsidiary had succeeded in negotiating satisfactory arrangements with the Secretary. At the resumed hearing, HP Subsidiary tendered the Secretary's certificate dated 11 September 2020 confirming that, in accordance with cl 6.8(3) of ALEP, "satisfactory arrangements have been made to contribute to the provision of designated State public infrastructure in relation to" the proposed development. 3. The Council accepted that this certificate of the Secretary satisfied contention 2. Other jurisdictional preconditions to the grant of consent 1. Before dealing with the second issue concerning traffic generated by the development, which is a merit issue of whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the Court having power to grant consent to the proposed development have been met. The Council accepted that these other jurisdictional preconditions can be met, but noted that the Court, exercising the functions of the consent authority on the appeal, needs to be satisfied itself that the preconditions have been met. BASIX certificate for amended development 1. Clause 2A(1) of Schedule 1 to the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) requires a development application for any BASIX affected development to be accompanied by a BASIX certificate or BASIX certificates for the development. The proposed development is a BASIX affected development as defined in cl 3(1) of the EPA Regulation. 2. The Council raised as an issue (in contention 11 of the further amended statement of facts and contentions) that a BASIX certificate had not been provided for the amended development (as amended with leave of the Court on 5 June 2020). The deficiency was addressed by HP Subsidiary in two ways. First, it tendered a Thermal Comfort and BASIX Assessment by Efficient Living Pty Ltd dated 4 June 2020 assessing and certifying that the proposed development (as amended) achieves the BASIX targets for thermal comfort, water and energy usage. Second, it tendered architectural plans "BASIX requirements 04/06/2020" by Integrated Design Group detailing and describing the BASIX and NatHERS inclusions in the proposed development (as amended) to satisfy the BASIX requirements. 3. On the tender of these documents, the Council was satisfied that cl 2A of Sch 1 to the EPA Regulation 2000 was satisfied and no longer pressed its contention. A condition of consent will require fulfilment of the commitments listed in each BASIX certificate for the development, as required by cl 97A of the EPA Regulation. Development adjacent to pipelines 1. The proposed development is near a number of existing pipelines. Three Jemena natural gas pipelines are in common easement with a short section of these pipelines above ground at the stormwater channel and the bridge over Haslams Creek. A Viva Energy pipeline and a Caltex pipeline, both transporting liquid fuels, are in common easement. These pipelines are entirely underground and pass under Hill Road, the stormwater channel and Haslams Creek. A Qenos pipeline transporting gaseous fuel (although not currently in use) is in the same easement as the Jemena natural gas pipelines along the west of Hill Road, and a short section is above ground at the stormwater channel and the bridge over Haslams Creek. 2. Clause 66C(1) of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) requires a consent authority to consider certain risks before determining a development application for development adjacent to land in a pipeline corridor: "Before determining a development application for development adjacent to land in a pipeline corridor, the consent authority must— (a) be satisfied that the potential safety risks or risks to the integrity of the pipeline that are associated with the development to which the application relates have been identified, and (b) take those risks into consideration, and (c) give written notice of the application to the pipeline operator concerned within 7 days after the application is made, and (d) take into consideration any response to the notice that is received from the pipeline operator within 21 days after the notice is given." 1. Land is in a "pipeline corridor" if it is within the licence area of a pipeline for gas, or petroleum or other liquid fuels, licensed under the Petroleum Act 1967, within 20 metres of a centreline of a relevant pipeline, or within 20 metres of land the subject of an easement for a relevant pipeline: cl 66C(2). A "relevant pipeline" is defined by reference to identified licensed pipelines: cl 66C(3). At least three of the pipelines that traverse the site are relevant pipelines for the purposes of cl 66C, being the pipelines with licence numbers 4, 6 and 12. 2. HP Subsidiary, through its engineering consultants, Sherpa Consulting Pty Ltd, has identified the potential safety risks or risks to the integrity of the pipelines that are associated with the proposed development, including in the Pipeline Risk Assessment dated 22 November 2018, Risk Assessment: Potential Impacts of the Development on Pipeline Easement dated 8 April 2020 and Response to Further Amended Statement of Facts and Contentions dated 4 June 2020. 3. As required by cl 66C(1)(c) of the Infrastructure SEPP, the Council gave written notice of HP Subsidiary's development application to the pipeline operators. The pipeline operators responded to the notice. The process of consultation has been iterative. Initially, the pipeline operators objected as they were not satisfied that the risks to the integrity of the pipelines that are associated with the proposed development had been adequately identified and addressed. However, after further consultation and pipeline risk assessment, the pipeline operators withdrew their objections and advised the Council that the ongoing assessment and consideration of risks could be managed by a Safety Management Study undertaken in accordance with the requirements of Australian Standard AS2885 Pipelines – Gas and Liquid Petroleum as a condition of consent: Viva Energy letter dated 12 May 2020 and Caltex email dated 19 May 2020. 4. In light of the further risk assessments and the withdrawal of objections by the pipeline operators, the Council advised that it no longer pressed contention 9 of the further amended statement of facts and contentions that the development application should be refused because of the potential risks to the integrity of the pipelines had not been appropriately identified and taken into consideration, as required by cl 66C of the Infrastructure SEPP. 5. On the evidence now before the Court, including all of the risk assessments and letters of the pipeline operators withdrawing their objections, I am satisfied the matters in cl 66C(1) have been met: 1. I am satisfied that the potential safety risks or risks to the integrity to the pipelines that are associated with the proposed development have been identified. 2. I have taken those risks into consideration. Conditions of consent will require, prior to any works commencing, the completion of a Safety Management Study, and during work, the carrying out of works required by the Safety Management Study. 3. The Council has given written notice of the development application to the pipeline operators. 4. I have taken into consideration the various responses of the pipeline operators to the notice and to the subsequent consultation. Impact of road noise on non-road development 1. Clause 102 of the Infrastructure SEPP imposes preconditions to the determination of a development application by the grant of consent to certain types of development adjacent to certain types of roads with high traffic volumes. Clause 102(1) of the Infrastructure SEPP provides: "This clause applies to development for any of the following purposes that is on land in or adjacent to the road corridor for a freeway, a tollway or a transitway or any other road with an annual average daily traffic volume of more than 20,000 vehicles (based on the traffic volume data published on the website of RMS) and that the consent authority considers is likely to be adversely affected by road noise or vibration— (a) residential accommodation, (b) a place of public worship, (c) a hospital, (d) an educational establishment or centre-based child care facility." 1. The proposed development will provide residential accommodation and is located adjacent to the M4 Motorway, which has an average daily traffic volume of more than 20,000 vehicles, such that cl 102 applies to the proposed development. 2. Clause 102 imposes two requirements in determining the development application for the proposed development. First, before determining the development application, the Court, exercising the function of the consent authority, must take into consideration any guidelines that are issued by the Secretary for the purposes of the clause and published in the Gazette: cl 102(2). The Secretary has published and gazetted the "Development Near Rail Corridors and Busy Roads – Interim Guidelines". The proposed development complies with the noise criteria in these guidelines, as established in the Acoustic DA Assessment by Acouras Consulting dated 17 April 2020. 3. Second, the Court is precluded from granting consent to the development for residential accommodation unless it is satisfied that appropriate measures will be taken to ensure that specified LAeq Levels are not exceeded, being: "(a) in any bedroom in the residential accommodation—35 dB(A) at any time between 10 pm and 7 am, (b) anywhere else in the residential accommodation (other than a garage, kitchen, bathroom or hallway)—40 dB(A) at any time." (cl 102(3) of the Infrastructure SEPP). 1. The Council raised as an issue the proposed development's compliance with cl 102 (in contention 10 in the further amended statement of facts and contentions). However, with the amendment of the architectural plans for the proposed development and the filing of the Acoustic DA Assessment establishing that the proposed development will comply with the specified acoustic levels in cl 102(3), the Council no longer pressed this contention. 2. As required by cl 102(2) and (3), I have considered the relevant guidelines issued by the Secretary for the purposes of the clause and am satisfied that the proposed development for the purposes of residential accommodation will take appropriate measures to ensure that the specified acoustic levels will not be exceeded. Traffic-generating development 1. Clause 104 of the Infrastructure SEPP applies to traffic-generating development specified in Column 1 of the Table to Schedule 3 to the Infrastructure SEPP: cl 104(1). 2. One of the specified traffic-generating developments is carparks. The proposed development involves a basement carpark providing 391 car parking spaces, 94 motorcycle parking spaces and 350 bicycle spaces. 3. As required by cl 104(3)(a), the Council gave written notice of the development application to the Roads and Maritime Service (RMS). RMS made a submission in response to that notice (dated 10 July 2018) stating that it "does not raise any objection to the proposed development", subject to specified conditions being included in any consent granted. These specified conditions were: "1. The layout of the proposed car park area associated with the subject development should be in accordance with AS 2890.1-2004 and AS 2890.6-2009. 2. Sight distances from the proposed new access road to vehicular traffic in Hill Road are to be in accordance with Austroads 'Guide to Traffic Engineering Practice', Part 5 Intersections at Grade, Section 6.2 – Sight Distance and AS 2890. Vegetation and proposed landscaping must not hinder sight lines to and from the vehicular crossings to pedestrians, cyclists and general traffic. 3. The access arrangement for the development at Hill Road is to be restricted to left in left [out] movements only. 4. A Construction Pedestrian and Traffic Management Plan (CPTMP) detailing construction vehicle routes, number of trucks, hours of operation, access arrangements and traffic control should be submitted to Council for approval prior to the issue of a Construction Certificate. 5. Constructions works zone will not be permitted on Hill Road. 6. No Stopping signs are to be installed across the frontage of the site. 7. A Road Occupancy Licence should be obtained from Transport Management Centre for any works that may impact on traffic flows on Hill Road during construction activities." 1. The Council's proposed draft conditions of consent include the conditions specified by RMS. 2. The Council and RMS were both satisfied of the matters in cl 104(3)(b)(ii) concerning the accessibility of the site and cl 104(3)(b)(iii) concerning any potential traffic safety, road congestion or parking implications of the proposed development. The Council raised no issue concerning these matters. The Council did raise a different traffic issue (in contention 8) concerning the potential for unsafe traffic movements on Hill Road, but this was not related to the matters in cl 104(3)(b)(iii). I will deal with Council's traffic issue in contention 8 later in the judgment. 3. I have considered the evidence on traffic, including RMS's submission, the Traffic and Parking Assessment Report by Varga Traffic Planning Pty Ltd dated 9 May 2018 and the Experts' Joint Statement – Traffic and Parking prepared by Mr Varga and Mr Searle dated 27 May 2020. I am satisfied that the accessibility of the site, and any potential traffic safety, road congestion and parking implications for the proposed development, will be acceptable having regard to the amendments to the proposed development that have been made and provided the proposed conditions of consent are imposed. Remediation of contaminated land 1. The site of the proposed development has been used as an industrial site. HP Subsidiary commissioned a detailed site investigation to determine the extent of any contamination. The Detailed Site Investigation report dated 9 March 2018 found a number of areas on the site had contaminants of concern above the adopted investigation levels and "that the site can be made suitable for the proposed development, provided the recommendations detailed in Section 12 are implemented". Amongst the recommendations was one for the preparation and implementation of a remedial action plan. As recommended, a Remediation Action Plan dated 24 May 2018 was prepared. The Remediation Action Plan indicated that further assessment of the site will need to be conducted following demolition of the remaining structures on site and that a hazardous materials survey will need to be conducted prior to demolition. Implementation of the Remediation Action Plan will ensure that any contaminants on the site are removed so as to make the site suitable for its proposed residential use with minimum access to soil. 2. Clause 7 of State Environmental Planning Policy No 55 – Remediation of Land (Contaminated Land SEPP) imposes preconditions to the determination of a development application by the grant of consent to development on land that is contaminated. Clause 7 of the Contaminated Land SEPP provides: "(1) A consent authority must not consent to the carrying out of any development on land unless— (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose. (2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. (3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation. (4) The land concerned is— (a) land that is within an investigation area, (b) land on which development for a purpose referred to in Table 1 to the contaminated land planning guidelines is being, or is known to have been, carried out, (c) to the extent to which it is proposed to carry out development on it for residential, educational, recreational or child care purposes, or for the purposes of a hospital—land— (i) in relation to which there is no knowledge (or incomplete knowledge) as to whether development for a purpose referred to in Table 1 to the contaminated land planning guidelines has been carried out, and (ii) on which it would have been lawful to carry out such development during any period in respect of which there is no knowledge (or incomplete knowledge)." 1. HP Subsidiary, the applicant for development consent, has carried out the investigation required by cl 7(2) and provided a detailed site investigation report and remediation action plan to the Council, as required by cl 7(3). The Council has considered the detailed site investigation report and remediation action plan, as required by cl 7(2). The Council's Senior Environmental Health Officer, in his report dated 4 June 2018, found that the land is contaminated but that the land will be suitable, after remediation, for the residential use for which the development is proposed to be carried out. Accordingly, the Council report concluded: "The proposal satisfies the requirements of Council's controls and can be supported, subject to standard conditions of consent". The Council report included the recommended conditions to ensure the remediation of the site so as to make it suitable for its proposed residential use, including the preparation and submission of a hazardous materials survey before demolition, the carrying out of remediation works in accordance with cl 17 and cl 18 of the Contaminated Land SEPP, and the preparation and submission of a site audit statement on the completion of remediation works. 2. I have considered the Detailed Site Investigation and Remediation Action Plan and the Council report, as required by cl 7(2). I am satisfied that, although the land is contaminated, it will be made suitable, after remediation, for the purpose for which the development is proposed to be carried out, namely residential use, as required by cl 7(1). Apartment design quality 1. The proposed development is a residential apartment development. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) requires consideration and demonstration of the design quality of the development. First, for consideration, cl 28(2) requires: "In determining a development application for consent to carry out development to which this Policy applies, a consent authority is to take into consideration (in addition to any other matters that are required to be, or may be, taken into consideration): (a) the advice (if any) obtained from the design review panel, and (b) the design quality of the development when evaluated in accordance with the design quality principles, and (c) the Apartment Design Guide." 1. Second, for demonstration, cl 30(2) requires: "Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. 1. A related requirement is that in cl 50(1A) of the EPA Regulation that a development application that relates to residential apartment development must be accompanied by a statement by a qualified designer. This statement by the qualified designer must: "(a) verify that he or she designed, or directed the design, of the development, and (b) provide an explanation that verifies how the development— (i) addresses how the design quality principles are achieved, and (ii) demonstrates, in terms of the Apartment Design Guide, how the objectives in Parts 3 and 4 of that guide have been achieved." (cl 50(1AB) of the EPA Regulation). 1. HP Subsidiary has provided a report and a statement verifying how the development addresses the design quality principles and demonstrates how the objectives of the Apartment Design Guide have been achieved, the first being SEPP 65 Report: Residential Development, 2 Hill Road Lidcombe by Integrated Design Group dated 28 April 2020 (Revised Report) and the second being SEPP 65 Design Verification – 2 Hill Road, Lidcombe by Simon Thorne dated 5 June 2020. In particular, the design verification stated: "Pursuant to requirement SEPP 65 – Design Quality of Residential Flat Developments, Part 4 – Development Applications, we advise: the design has been directed by Simon Thorne of Integrated Design Group who is registered in accordance with the Architects Act 1929, Registration No: 7093. the Design Quality Principles set out in Part 2 of State Environment Planning Policy No 65 – Design Quality of Residential Flat Development are achieved for the residential flat development." 1. The Council had raised an issue (contention 3 of the further amended statement of facts and contentions) that the development application should be refused because further refinement of the built form of the proposed development is required in order to meet the design quality principles of SEPP 65. However, after the proposed development was amended and a design verification statement was provided for the amended development, the Council no longer pressed this issue. 2. I have considered the amended development application, including the amended architectural drawings, the SEPP 65 Report and the SEPP 65 Design Verification Statement. I have taken into consideration the design quality of the proposed development (as amended), when evaluated in accordance with the design quality principles, and the Apartment Design Guide (as required by cl 28(2)). I am satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles and the objectives specified in the Apartment Design Guide for the relevant design criteria (as required by cl 30(2)). A condition of consent will require design verification by a registered architect to be provided with the application for an occupation certificate verifying that the residential flat development as constructed achieves the design quality of the development as shown in the approved plans and specifications. Variation to development standard 1. The proposed development breaches the height development standard in cl 4.3 of ALEP. Clause 4.3(2) provides that: "The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map." 1. The Height of Buildings Map shows two maximum building heights for the site, one of 55 metres for the western part of the site and the other of 42 metres for the eastern part of the site. The proposed development comprises three residential apartment buildings. Only one of the three buildings (Building C) breaches the height standard. Building C has a maximum building height of 65 metres, which exceeds the 55 metres height limit by a maximum of 10 metres, or 18% of the numerical value of the standard. Building A has a maximum building height of 46.1 metres, less than the standard's maximum height for that part of the site of 55 metres, while Building B has a maximum building height of 28 metres, less than the standard's maximum height for that part of the site of 42 metres. 2. HP Subsidiary has submitted a written request under cl 4.6(3) of ALEP seeking to justify the contravention of the development standard by Building C. The latest request, addressing the amended development, is the Clause 4.6 Variation Request by City Plan dated June 2020. As required by cl 4.6(3), the request seeks to justify the contravention of the height development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard. 3. As to the first matter, the request contends that compliance with the height development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding noncompliance with the standard. The objectives of the height development standard are twofold. Clause 4.3(1) provides: "(a) to establish a maximum height of buildings to enable appropriate development density to be achieved, and (b) to ensure that the height of buildings is compatible with the character of the locality." 1. The request contends that the first objective is achieved as: "No more density is proposed for the site than envisioned under the Auburn LEP, noting that compliance with the maximum FSR of 1.7:1 is achieved (proposed FSR is 1.7:1). The proposed development purely seeks to redistribute 'mass' across the site to achieve better planning, architectural and urban design outcomes". The redistribution referred to involves reducing the height of Buildings A and B below the maximum heights set by the height development standard and increasing the height of Building C by a corresponding level. The request contends, therefore, that the first objective "is achieved albeit in a different way than envisioned under Auburn LEP, with a minor variation to building height which is offset by reductions in height to other buildings." 2. The request contends that the second objective is achieved as the height of Building C will be compatible with the character of the existing locality as it undergoes significant transformation from a light industrial to residential precinct. The site is zoned R4 High Density Residential. The current Carter Street Precinct Development Control Plan 2016 (Carter Street Precinct DCP) already encourages high density residential development of a built form consistent with the development standards, including the height development standard in cl 4.3. However, the built form controls applicable to the site and the wider Carter Street Precinct are under review. A revised master plan for the precinct proposes to amend ALEP and the Carter Street Precinct DCP "to improve planning outcomes at the Precinct", including amending the building height controls in ALEP. The proposed amended height controls for the site would be a maximum height of 65 metres in the site's north-eastern corner, 55 metres in the western part of the site, 26 metres along the site's north eastern extent and 24 metres within the eastern part of the site. The objective of these amended height controls for the western side of Hill Road (including the site) is to "increase the maximum building height along Hill Road and reduce the maximum building height opposite the Haslams Creek foreshore. This will provide a 'gateway' to the precinct and reduce bulk along the foreshore." 3. The request notes that the proposed height of Building C is compatible with the existing character of the locality as well as the intended future character of the locality, as envisaged in the draft master plan, and the proposed height is consistent with the draft 65 metres height control for the site. While the location of Building C varies slightly from where the draft master plan proposed the 65 metre building height, the location of Building C is appropriately sited at the site's entrance to provide a tower typology and "gateway" entrance to the precinct, as sought by the draft master plan. The location of the height breach is away from Haslams Creek to align with the intention of the draft master plan to reduce height and bulk along the Haslams Creek foreshore. 4. The request notes that the height exceedance is located centrally within the site and appropriately setback from the site's boundaries to assist in improving amenity for adjoining occupiers and ensure acceptable levels of solar access will be provided to adjoining development. 5. As to the second matter required to be demonstrated, the request contends that there are sufficient environment planning grounds to justify contravening the development standard as: "- No additional floor space is sought as part of this proposal; the proposal seeks only to redistribute the mass to provide a better planning outcome for the site. The standard allows uniform boundary heights across the whole site. This is universally considered to be an adverse urban design outcome. The proposed variation allows for the intended density in a variety of building forms and heights resulting in a better planning outcome. - As detailed within the Precinct Report, the height controls applicable to the Carter Street Precinct are not considered to be appropriate and provide little height variation across the Precinct. The proposal is consistent with the maximum 65 metre building height contemplated by the proposed controls in the locality. - While a compliant development would clearly result in a lesser height, it would be inconsistent with the 65 metre proposed maximum height envisaged for the site as stipulated within the draft revised Master Plan. The additional height will assist in providing height variation across the Precinct and will provide a 'gateway' entrance to the Precinct, as contemplated by the proposed controls. These controls have been exhibited and are a matter for consideration. - The proposal will promote the good design and amenity of the built environment particularly through the redistribution of massing. The proposed height of the non-compliant building will be offset by lower buildings which front Haslams Creek. - The proposed development satisfies the stated objectives of the standard and the objectives of the zone (refer Section 7)." 1. The request also contended that the proposed development will be in the public interest because, first, it is consistent with the objectives of the height development standard for the reasons already given, and second, it is consistent with the objectives of the R4 High Density Residential Zone, for the reasons given in Table 3 in the request. The proposed development meets the objectives of providing high density residential development of a housing type and in a location that meets the needs of the community, as sought by the objectives of the zone. 2. The Council was satisfied that the written request had adequately addressed the matters required to be demonstrated by cl 4.6(3) and that the proposed development (as amended) will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development in the R4 High Density Residential Zone (being the matters in cl 4.6(4)(a)). The concurrence of the Secretary of DPIE can be assumed in accordance with Planning Circular PS18-003 (being the matter in cl 4.6(4)(b)). Accordingly, the Council raised no issue regarding cl 4.6 and accepted that variation of the height development standard under cl 4.3 was justified. 3. I am satisfied under cl 4.6(4) that HP Subsidiary's written request has adequately addressed the matters required to be demonstrated by subcl (3) and that the proposed development will be in the public interest because it is consistent with the objectives of the height development standard and the objectives for development within the R4 High Density Residential Zone, for the reasons given in the request. Acid sulfate soils 1. Clause 6.1(3) of ALEP precludes the grant of development consent for the carrying out of works described in the Table to cl 6.1(2) of ALEP on land shown on the Acid Sulfate Soils Map unless an Acid Sulfate Soils Management Plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority. 2. The site is shown on the Acid Sulfate Soils Map as being of Class 2. The proposed development to be carried out on the site includes works below the natural ground surface, including bulk excavation, and the removal (pumping) of any ground water from an excavation area may lower the existing watertable. 3. As required by cl 6.1(3), an Acid Sulfate Soils Management Plan dated 26 April 2018 was prepared and provided to the Council. The plan proposed measures for groundwater management and disposal to ensure that the development does not cause environmental damage. 4. The Council did not raise any issue concerning the proposed management of acid sulfate soils on the site and included a condition of consent to ensure such management occurs. 5. I am satisfied, having regard to the Acid Sulfate Soils Management Plan, that appropriate measures will be taken for groundwater management and disposal to ensure that the proposed development does not cause environmental damage. A condition of consent will require implementation of the Acid Sulfate Soils Management Plan. Flood planning 1. The proposed development is on a site next to Haslams Creek and the stormwater channel, which may be impacted by flooding. Clause 6.3 of ALEP applies to land that is shown as "Flood planning area" on the Flood Planning Map and other land at or below the flood planning level: cl 6.3(2). The term "flood planning level" means "the level of 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard": cl 6.3(5). Although the site is not shown as a flood planning area on the Flood Planning Map, some points of the site are below the flood planning level. The whole site is not flooded during a 1% AEP event, and much of it is above that level plus 0.5 metres freeboard, but there are sag points on the site which are below the flood planning level. In these circumstances, cl 6.3 applies to the site. 2. Clause 6.3(3) sets a precondition to the grant of consent to the proposed development on the site. Clause 6.3(3) provides: "Development consent must not be granted for development on land to which this clause applies unless the consent authority is satisfied that the development— (a) is compatible with the flood hazard of the land, and (b) is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and (c) incorporates appropriate measures to manage risk to life from flood, and (d) is not likely to significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and (e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding." 1. The Council had raised as an issue (in contention 12 of the amended statement of facts and contentions) that the development application should be refused because the proposed development had not been designed to minimise the flood risk to life and property associated with the use of the land, contrary to cl 6.3(3). The only aspects in which the Council contended that the proposed development would be inconsistent with the requirements of cl 6.3(3) concerned the flooding of the basements: "The design of the basement will not preclude the inundation of floodwaters up to the Probable Maximum Flood (PMF) through the inclusion of passive measures such as a driveway crest up to the FPL of RL 4.33, and mechanical measures such as flood gates and doors up to the PMF of RL 4.76. Although the driveway is shown as having correct RL at the basement entry, the driveway is not designed to include a crest that ramps up to that level. Further, no plans provide details of mechanical measures (flood gates) to protect the basement up to the PMF of RL 4.76." 1. After further flood studies and assessments by the parties' flood engineers, Dr Phillips for HP Subsidiary and Mr Clark for the Council, HP Subsidiary amended the development application and plans. The Court allowed the amendments on 1 May 2020. Amongst the amendments were a raising of the ground floor level of the buildings to RL 4.33 and the inclusion of a flood gate at the driveway entry to the basements. 2. The level of RL 4.33 is recorded on the overall ground floor plan DA 1100 issue 8 (28/5/20) by the note "driveway crest RL 4.33" at the driveway entrance to the basements. The level of RL 4.33 was derived from the 1% AEP design flood level of 3.83m AHD upstream plus 0.5m freeboard. This level of RL 4.33 was used by the Council in its contention as the appropriate flood planning level. 3. The inclusion of a flood gate in the driveway entrance to the basements was recorded on the overall ground floor plan by the note "approved flood gate set in driveway". HP Subsidiary sought leave to add to this note the words "to prevent the entry of PMF waters to the basements up to RL 4.76 or the PMF, whichever is the higher." The reason for the amendment is so that the Court can be satisfied that the flood gate will exclude floodwaters entering the basements during the probable maximum flood (PMF) event. The Council consented to the amendment, as this was the level that the Council had specified in its contention for the flood gate in the driveway. 4. With these amendments of the development application and plans to raise the ground floor levels and driveway crest to RL 4.33 and install a flood gate to prevent entry of floodwaters up to a PMF of RL 4.76, the Council no longer pressed its contention that the development application should be refused because of flooding. 5. The Council raised the issue of flooding in another context (in contention 1 of the further amended statement of facts and contentions). The proposed development will require altering and rebuilding the access road and bridge over the stormwater channel from Hill Road to the site. The Council was concerned that the replacement bridge and road approaches might impede the flow of floodwaters along the stormwater channel and associated floodways. The Council sought further information as follows: "(i) The applicant should demonstrate that the underside of the bridge structure will be above the flood planning level which is RL 4.33m AHD. (ii) Certification should be obtained from a flood engineer to confirm that the proposed replacement bridge, including abutments and roadway ramps will not cause significant obstruction to the flow of floodwaters, including water-borne debris, in any flood event up to the 1% AEP event plus 0.5m freeboard (which is assumed to be RL 4.33m AHD). (iii) Certification should be obtained from the flood engineer to confirm that proposed replacement bridge and ancillary works, such as abutments, support columns and ramps, will be able to adequately withstand the forces associated with flowing floodwaters and water-borne debris up to the Probable Maximum Flood level (which is assumed to be RL 4.8m AHD)." 1. The parties' flood engineers, in their Joint Flooding Expert Report dated 29 May 2020, addressed the Council's concerns and provided the requested certification. The flood experts agreed to setting a flood planning level for the underside of the bridge of RL4.33m AHD, which is the same flood planning level as for the development as a whole. Dr Phillips explained why there will not be a significant obstruction to the flow of floodwaters, including water-borne debris, up to the level of RL 4.33m AHD and proposed that certification be required at the construction certificate stage by a condition of consent. Mr Clark accepted Dr Phillips' response. Dr Phillips explained that the detailed bridge design would confirm that the proposed bridge and ancillary works would be able to adequately withstand the forces associated with flowing floodwaters and water-borne debris up to the probable maximum flood level and proposed that certification be required at the construction certificate stage by a condition of consent. Mr Clark accepted Dr Phillips' response. 2. In light of the flood engineers' agreement, the Council did not press its contention about the impact of the replacement bridge and road approaches on flooding or the impact of flooding on the replacement bridge and road approaches. 3. I am satisfied that the proposed development (as amended) meets the criteria in cl 6.3(3) of ALEP: 1. The proposed development is compatible with the flood hazard of the land. Most of the site is not below the flood planning level. Only some points of the site are below the flood planning level of 1% AEP plus 0.5m freeboard. Flooding at these points can be addressed by fixing the ground level of the buildings and the driveway crest at the driveway entrance to the basements at RL4.33m . The replacement bridge and road approaches will be designed so as not to be impacted by, or have any unacceptable impacts on, flooding. This can be required by a condition of consent. 2. The proposed development is not likely to significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties. The site is not a flood storage or a flood flow area, with the exception of the stormwater channel, which will not be overtopped in a 1% AEP event. The setbacks of the buildings from the stormwater channel, of between 8m and 12m, will have no effect on flood conveyance. 3. The proposed development incorporates appropriate measures to manage risk to life from flood. The ground floor levels and the crest of the driveway to the basements are fixed at RL4.33m and the floodgate in the driveway will prevent entry of floodwaters to the basements up to the probable maximum flood of RL4.76m. A condition of consent will require these and other flood protection measures to be provided. A condition of consent also will require the buildings to be designed and certified by a registered structural engineer to ensure the buildings do not fall due to floodwater forces, debris or buoyancy effects from flooding. The replacement bridge will be designed to have a flood planning level to the underside of the bridge of RL4.33m. This can be required by a condition of consent. 4. There is no suggestion by the Council or evidence that the proposed development is likely to significantly affect the environment or cause erosion, siltation, destruction of riparian vegetation or reduction in the stability of river banks or watercourses. The adjacent watercourses are Haslams Creek and the stormwater channel. The parties' flood engineers agreed, in their joint expert report dated 29 May 2020, that the proposed development is not likely to cause environmental harm, including to Haslams Creek or the stormwater channel. 5. There is no suggestion by the Council or evidence that the proposed development is likely to result in unsustainable social and economic cost to the community as a result of flooding. Foreshore building line 1. A portion of the site of the proposed development is identified as being below the foreshore building line on the Foreshore Building Line Map for the purposes of cl 6.4 of ALEP. The Foreshore Building Line Map fixes the foreshore building line along, but setback from, the stormwater channel. Clause 6.4(3) provides: "Development consent must not be granted for development on land in the foreshore area except for the following purposes— (a) the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area, (b) the erection of a building in the foreshore area, if the levels, depth or other exceptional features of the site make it appropriate to do so, (c) boat sheds, sea retaining walls, wharves, slipways, jetties, waterway access stairs, swimming pools, fences, cycleways, walking trails, picnic facilities or other recreation facilities (outdoor)." 1. The proposed development involves two types of buildings or works below the foreshore building line. First, a landscaped walking trail is proposed between the buildings and the stormwater channel. For the most part, the walking trail is within the site, but it will begin and end outside of the site. Consent is sought for works within the site but not for works to the east of the site boundary. Second, the existing bridge over the stormwater channel providing vehicular and pedestrian access to the site from Hill Road will need to be altered and rebuilt. Consent is sought for the replacement bridge and upgrading of the access road connecting the development to Hill Road. These buildings and works fall within the category of purposes permitted by cl 6.4(3). 2. Clause 6.4(4) sets a precondition to the grant of development consent for these buildings and works. Clause 6.4(4) provides: "Development consent must not be granted under subclause (3) unless the consent authority is satisfied that— (a) the development will contribute to achieving the objectives for the zone in which the land is located, and (b) the appearance of any proposed structure, from both the waterway and adjacent foreshore areas, will be compatible with the surrounding area, and (c) the development is not likely to cause environmental harm such as— (i) pollution or siltation of the waterway, or (ii) an adverse effect on surrounding uses, marine habitat, wetland areas, flora or fauna habitats, or (iii) an adverse effect on drainage patterns, and (d) the development will not cause congestion of, or generate conflicts between, people using open space areas or the waterway, and (e) opportunities to provide continuous public access along the foreshore and to the waterway will not be compromised, and (f) any historic, scientific, cultural, social, archaeological, architectural, natural or aesthetic significance of the land on which the development is to be carried out and of surrounding land will be maintained, and (g) in the case of development for the extension, alteration or rebuilding of an existing building wholly or partly in the foreshore area, the extension, alteration or rebuilding will not have an adverse impact on the amenity or aesthetic appearance of the foreshore, and (h) sea level rise or change of flooding patterns as a result of climate change have been considered." 1. The Council raised as an issue (in contention 1 in the further amended statement of facts and contentions) that inadequate information had been provided to allow a proper consideration of two of these matters, being the matters in paragraphs (c) and (h). 2. As to the matters in paragraph (c), the parties' engineers, in their Joint Flooding Expert Report dated 29 May 2020, agreed that the proposed development is not likely to cause environmental harm by pollution or siltation of the waterway; adverse effect on surrounding uses, marine habitat, wetland areas, flora or fauna habitats; or adverse effect on drainage patterns. In fact, the flood engineers agreed that the proposed development is likely to have beneficial effects. The site, as a result of its past industrial uses, currently is exposed and uncontrolled runoff may transport sediment and pollutants into Haslams Creek, the foreshore zone and the stormwater channel. The redevelopment and landscaping of the site will enable runoff to be managed and treated prior to discharge into the stormwater channel. Setting the development 20 metres back from Haslams Creek and landscaping the foreshore zone beside the stormwater channel creates opportunities for enhanced habitat compared to existing conditions. The proposed development will have a beneficial effect on drainage patterns by addressing the current issue of uncontrolled and polluted runoff from the site into Haslams Creek and the stormwater channel. 3. As to the matters in paragraph (h), Dr Phillips analysed, and Mr Clark agreed with Dr Phillips' analysis, the impacts of climate change, including increases in rainfall, generating increases in flood levels for three scenarios (a 10%, 20% and 30% increase in rainfall). The assessed impacts on the 1% AEP flood level in the vicinity of the confluence of the stormwater channel and Haslams Creek under each of these scenarios generates flood level increases which are within the adopted freeboard of 0.5 metres. 4. In light of the flood engineers' agreement on these issues, the Council no longer pressed its contention that inadequate information had been provided to enable a proper consideration of the matters in cl 4.6(4)(c) and (h). 5. Having regard to the evidence, I am satisfied that the parts of the proposed development that will be carried out below the foreshore building line, being the landscaped walking trail along the stormwater channel and the replacement bridge and road approaches across the stormwater channel, will meet the criteria in cl 6.4(4), including that the development is not likely to cause environmental harm in any of the ways referred to in paragraph (c) and that any change of flooding patterns as a result of climate change will not adversely affect the proposed development, including the replacement bridge and road approaches as designed. Essential services 1. Clause 6.5(1) of ALEP provides: "Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been [made] to make them available when required— (a) the supply of water, (b) the supply of electricity, (c) the disposal and management of sewage, (d) stormwater drainage or on-site conservation, (e) suitable road access." 1. The Council accepted that the first three essential services will be available: there will be a supply of water and electricity and facilities for the disposal and management of sewage. 2. The Council had raised as an issue (in contention 10 of the further amended statement of facts and contentions) that adequate arrangements had not been made for stormwater drainage. The proposed development had originally planned to drain stormwater into Haslams Creek, which the Council contended would cause unacceptable environmental impacts. After the joint conferencing of the parties' engineers, the proposed drainage was amended to ensure that the stormwater that is collected and treated by the stormwater management system, is conveyed to the stormwater channel, instead of to Haslams Creek. A concept drawing of the amended stormwater design was attached to the Joint Flooding Expert Report dated 29 May 2020. A condition of consent will require the preparation, submission and approval of amended stormwater plans and documents for this amended stormwater design. As a consequence, the Council no longer pressed this contention that adequate arrangements for stormwater drainage had not been made. 3. The Council also raised as an issue (in contention 8 of the further amended statement of facts and contentions) that suitable road access would not be available. The Council contended that the proposed development should not be approved until certain roadworks are completed to ensure safe and orderly traffic movement along Hill Road, and in particular, to prevent unsafe manoeuvrers (such as U-turns) at the intersection of Hill Road and Carter Street. 4. This issue is not, however, properly characterised as being that the essential service of "suitable road access" is not available. The site currently has, and if redeveloped as proposed will have, suitable road access. Traffic can enter and leave the site by the access road off Hill Road. There is no issue that this access road, when redeveloped as proposed, will not be suitable road access. 5. Hill Road too is clearly suitable road access. The Council's contention that roadworks need to be undertaken, including the installation of a median and "No U-turn" signs to prevent unsafe manoeuvres in Hill Road, does not mean that Hill Road does not provide "suitable road access" for the development. Whether or not the roadworks sought by the Council are undertaken, Hill Road still provides suitable access to the proposed development. 6. I am satisfied that the services in cl 6.5(1) that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required. Safe and orderly traffic flow 1. This brings me to consider the Council's second issue (raised in contention 8 in the further amended statement of facts and contentions) that development consent should not be granted to the proposed development until certain roadworks are undertaken to ensure safe and orderly traffic movement along Hill Road. The roadworks the Council contends need to be undertaken are: 1. construction of the median in Hill Road up to John Ian Wing Parade; 2. restriction of Carter Street to left in/left out at its intersection with Hill Road; and 3. construction of the "Green Spine" road connection to Uhrig Road/Carter Street or alternatively the construction of Haslams Creek Road. 1. The Council contended that the carrying out of these roadworks will reduce the likelihood of traffic generated by the proposed development making unsafe manoeuvres, such as illegal U-turns, at the intersection of Hill Road and Carter Street and in Carter Street. 2. The parties' traffic experts, Mr Varga and Mr Searle, had agreed in their Experts' Joint Statement – Traffic and Parking dated 27 May 2020 that certain traffic management works should be undertaken in Hill Road to ensure safety and traffic flows. First, a left in/left out median or traffic island should be constructed in Hill Road. This would prevent traffic leaving the site by the access road turning right onto Hill Road in order to access the on-ramp to the M4 Motorway and prevent traffic turning right across Hill Road into the access road to the site against the flow of traffic coming from the off-ramp from the M4 Motorway. Second, a "No U-turn" sign should be installed in Hill Road near the Carter Street intersection, facing northbound traffic in Carter Street, when the left in/left out median island is constructed in Hill Road. This would make it illegal for traffic that has turned left onto Hill Road from the access road from the site to perform a U-turn at the Hill Road/Carter Street intersection in order to return to the on-ramp to the M4 Motorway. A condition of consent will require these traffic management works to be undertaken. 3. The experts' agreement for access for the proposed development to be restricted to left in/left out movements only was also a requirement of RMS. RMS, in its letter of 10 July 2018 in response to the Council's notification of the development application, did not raise any objection to the proposed development subject to specified conditions being imposed on any grant of development consent, one of which was the restriction on left in/left out movements. RMS did not require that any of the roadworks proposed by the Council should be undertaken. 4. The Council's reason for contending that the roadworks should be constructed before consent to the proposed development is granted was simply that drivers will not obey the road rules. Constructing the agreed median island on Hill Road where the access road joins Hill Road will physically force drivers to turn left out of the access road into Hill Road. For drivers wishing to travel towards the city by the M4 Motorway, this will be in the opposite direction to where they wish to travel. In order legally to return along Hill Road to enter the on-ramp to the M4 Motorway, drivers would need to use various detours to reach a roundabout where a U-turn can legally be made. 5. The Council's traffic consultant, Mr Searle, identified detours in a residential area of about 1.15km or 1.8km long, and other detours in other areas of about 2.3km long. These detours would extend the length and time of the driver's journey. Mr Searle believed that a "significant proportion" of drivers wishing to travel towards the city by using the M4 Motorway would undertake illegal U-turns in Hill Road at Carter Street or across the double unbroken centre line in Carter Street due to the length and time of travel that would be required along these legal detour routes. Mr Searle believes that they would do so notwithstanding the no U-turn sign at the intersection and the double unbroken centre line clearly indicating that such manoeuvres are illegal. 6. The Council argued that the only way to prevent such illegal manoeuvres is to construct a physical barrier in the form of a raised median in Hill Road. This would involve extending the proposed median island that would be constructed in Hill Road at the intersection with the access road, across the intersection with Carter Street and up to the intersection with John Ian Wing Parade. The construction of this raised median across the intersection of Carter Street and Hill Road would also restrict traffic to left in and left out on Carter Street. These traffic management works are required prior to the proposed development being approved and carried out so that safety issues with illegal U-turns do not arise. 7. HP Subsidiary's traffic consultant, Mr Varga, disagreed that there is a need to undertake the Council's suggested traffic management works before the proposed development can be approved and carried out. Mr Varga gave four reasons. 8. First, the number of drivers that might be tempted to perform illegal and unsafe manoeuvres is small. Mr Varga calculated that there will be approximately 45 vehicles per hour departing the site of the proposed development during the morning peak hour. Of these, 18 vehicles per hour would head west or north (away from the city) and 27 would head east or south. Of the 27 east- or south-bound vehicles, 2 would turn off south towards Homebush and 6 would turn off north towards Rhodes. That leaves 19 vehicles per hour that would wish to continue east to join the M4 Motorway towards the city. These are the only vehicles that might be tempted to perform the illegal and unsafe manoeuvres in Hill Road or Carter Street in order to reduce the length and time of their journey. 9. Secondly, Mr Varga believed that many of the residents would be unlikely to adopt one of the detours suggested by Mr Searle so as to return in a southbound direction along Hill Road in order to access the on ramp to the M4 Motorway. Instead, Mr Varga believed that drivers wishing to travel towards the city on the M4 Motorway would travel down Carter Street, then through Sydney Olympic Park before entering the M4 Motorway by the on ramp near the Sydney Olympic Park. Whilst this route would involve longer travel time for vehicles leaving the site than if they were able to access the on ramp at Hill Road (although this would be prevented by the left in/left out restriction on Hill Road), this would involve shorter travel time than using the detours suggested by Mr Searle. The reasonable driver would therefore use the route suggested by Mr Varga in preference to the detour suggested by Mr Searle. 10. Thirdly, Mr Varga believed that a reasonable driver would not disobey the road rules by making a U-turn in defiance of the No U-turn sign at the intersection of Hill Road and Carter Street or over the double unbroken centre line in Carter Street. Mr Varga noted that drivers are already habituated to not making U-turns in Hill Road. There are already no U-turn signs along Hill Road, including near the intersection of Hill Road and Carter Street, and median strips making U-turns illegal in Hill Road from Carter Street through to John Ian Wing Parade. In these circumstances, although there is not a constructed median in Hill Road physically preventing U-turns in the stretch of road from Carter Street to John Ian Wing Parade, the existing signage and painted median strips achieve the same purpose of making it illegal to perform a U-turn along this stretch of Hill Road. 11. Fourthly, Mr Varga noted that RMS is proposing to construct a raised median from Carter Street to John Ian Wing Parade within two years, by 2022. RMS has proposed, as part of the WestConnex M4 widening project, to widen Hill Road to be two lanes in each direction with no kerb side parking up to the intersection with John Ian Wing Parade. The north and southbound carriageways are intended to be separated by a raised median that would prevent U-turns in Hill Road. This project is expected to be completed by RMS in 2022. Accordingly, if the proposed development is approved, having regard to the time taken to construct the approved development (which might take 1.5 to 2 years), there would only be a short period where traffic from the proposed development will use Hill Road before RMS constructs the raised median along Hill Road. In these circumstances, the time period in which any drivers might be able to make illegal U-turns in Hill Road or Carter Street would be very limited. 12. I do not accept the Council's argument that the proposed development should not be approved until the additional traffic management works suggested by the Council have been carried out. The only traffic management works that are necessary to be carried out are the installation of the traffic control devices of a median island limiting movements to and from the site to left in/left out and the installation of a No U-turn sign at the intersection of Hill Road and Carter Street. The other traffic management works suggested by the Council to prevent illegal manoeuvres in Hill Road or Carter Street are unnecessary for the four reasons given by Mr Varga. 13. First, the number of vehicles per hour wishing to travel east towards the city by the M4 Motorway in the morning peak is not significant (only about 19 vehicles per hour). These are the vehicles of which only some might be tempted to perform illegal manoeuvres in Hill Road or Carter Street to save travel length and time. 14. Secondly, of these vehicles, most would use the shortest and quickest route down Carter Street and through Sydney Olympic Park to access the nearby on ramp to the M4 Motorway rather than use the lengthy and slower detours suggested by Mr Searle, in order to use the on ramp at Hill Road. 15. Thirdly, reasonable drivers will comply with the road rules and not perform illegal manoeuvrers, such as U-turns, in defiance of road markings and signage. The functioning of Hill Road, Carter Street and the intersection between the two roads needs to be evaluated in light of the reasonable assumption that motorists will, as a whole, comply with the road rules and obey road markings and signage: Harris v Scenic Rim Regional Council (2014) 201 LGERA 12; [2014] QPEC 16 at [184]. 16. Fourthly, the time period between completion of the proposed development and the construction of a raised median by RMS along Hill Road up to John Ian Wing Parade will be short, minimising the time when potentially illegal manoeuvrers could be performed. The RMS is predicted to carry out the widening of Hill Road, including the construction of a raised median, by 2022. No traffic will be generated from the proposed development until shortly before the widening of Hill Road is completed. Having regard to the size of the development and the scope of construction work required, it is unlikely that traffic will be generated from the proposed development before about 1.5 to 2 years. This means that the period within which traffic generated from the site might use Hill Road, before the RMS completes the widening of Hill Road and the installation of a raised median, is likely to be of limited duration. 17. The Council alternatively contended that if the Court found that the only traffic management works that needed to be undertaken are the construction of the median island in Hill Road limiting movement to left in/left out and the installation of a No U-turn sign at the Carter Street intersection, these traffic management works should be completed either prior to the consent becoming operative or prior to the issue of any construction certificate for the proposed development. The Council noted that HP Subsidiary will need to obtain authorisation under s 122 of the Road Transport Act 2013 to install the traffic control devices of the median island and No U-turn sign in Hill Road and approval under the Roads Act 1993 to carry out such roadworks in Hill Road. Obtaining this authorisation and approval may take some time. The power to issue authorisation under s 122 of the Roads Act 1993 is delegated to a Local Traffic Committee that includes four members, only one of whom is a representative of the Council, and is subject to limitations. The Council has no control over the process. There is no certainty that the necessary authorisation will be issued. The Council submitted that, in circumstances where installation of the median and No U-turn sign is necessary for the development, the development should not be allowed to proceed unless and until the authorisation has been obtained. To do so would not promote the concept of orderly development encouraged by the EPA Act. 18. The Council sought for the Court to address this problem in alternative ways. The first way was to grant consent subject to a deferred commencement condition under s 4.16(3) of the EPA Act that the consent is not to operate until all necessary consents, approvals and authorisations have been obtained for the traffic control devices and the roadworks have been completed. The alternative way was to grant consent subject to an operational condition to the same effect requiring the obtaining of all necessary consents, approvals and authorisations and the completion of construction of the traffic control devices and roadworks but fixing the time for doing so as being prior to the issue of any construction certificate. 19. HP Subsidiary contested the need for a deferred commencement condition or an operational condition requiring the approval and construction of the traffic control devices and roadworks before the issue of any construction certificate. It submitted instead that it was sufficient to impose an operational condition requiring approval and construction of the traffic control devices and roadworks before any occupation certificate is issued for the proposed development. Until an occupation certificate is issued, residents cannot occupy the development and hence generate any traffic that would need to be controlled by the traffic control devices of the median island and the No U-turn sign in Hill Road. Construction traffic can be controlled by a construction traffic management plan, which can require the use of traffic controllers to regulate construction traffic leaving or entering the site, thereby ensuring safe entry from and exit to Hill Road. HP Subsidiary submitted that the volume of construction traffic will be significantly less than the resident-generated traffic upon completion of the development. Allowing the construction traffic to use the existing right turn out of the site into Hill Road will facilitate construction traffic following the most direct route to the M4 Motorway rather than travelling through nearby residential areas, thereby minimising impact on residential amenity. 20. I agree with HP Subsidiary that it is not necessary to impose a deferred commencement condition and it will be sufficient to impose an operational condition of consent that the traffic control devices must be installed before an occupation certificate can be issued for the proposed development. This will ensure that there will be no resident-generated traffic from the development before the traffic control devices are operational to control such traffic. 21. Any risk associated with carrying out construction of the development before the traffic control devices have been approved and installed, such as not being able to obtain or a delay in obtaining the necessary authorisation and approval of the traffic control devices, will be borne by HP Subsidiary. It must decide if it is inclined to or can afford to take that risk. If it does not wish to take the risk, it can defer commencement of construction of the development until it has obtained the necessary authorisation and approval of the traffic control devices. 22. I agree with the Council, however, that installation of the traffic control devices once authorised and approved should be to the satisfaction of the Council's Traffic and Transport Manager prior to the issue of any occupation certificate. Conditions of consent 1. The parties have largely agreed the conditions on which consent should be granted. Two of the conditions in dispute relate to the issue of traffic. As noted, the Council seeks to condition the operation of the consent or the commencement of construction of the development on the completion of its suggested traffic management works and the agreed traffic control devices, while HP Subsidiary contested the need for such conditions of consent. Having accepted HP Subsidiary's arguments on these issues, I also accept HP Subsidiary's version of the conditions. 2. The other conditions in dispute fall into the following categories: 1. substituting the Principal Certifying Authority (PCA) for the Council in conditions as the person with responsibility to approve or be satisfied of some matter, such as conditions 6, 11, 26, 28, 53, 54, 60 and 75; 2. changing the timing of some action or event required by a condition to be the issue of an occupation certificate instead of a construction certificate, such as conditions 19, 36 and 37; 3. changing the timing of some action or event required by a condition to be the issue of a "relevant" construction certificate instead of any construction certificate, such as conditions 20, 24, 25, 26, 27, 28 and 45; 4. changing the development for which consent is sought, such as substituting different types or locations of works, structures, plant or measures, such as conditions 24, 28, 45, 52 and 116; 5. deleting a condition requiring a covenant be registered on title to the effect that the Building Management Plan be complied with at all times (condition 130); 6. changing the wording of a condition requiring a review report on the green travel plan (condition 140). 1. I will deal with each category of disputed conditions. 2. For the first category, I consider the Council and not the PCA is the appropriate person to whom certain notices should be given and from whom certain approvals should be obtained. Condition 6 should require that demolition work not commence before the Council and not the PCA inspects the site. Condition 11 should require any new contamination evidence to be provided to both the Council and the PCA. Condition 26 should require the Council, not the PCA, to check that the design and certification of the bridge over the stormwater channel comply with the requirements of the condition. Condition 28 should require the Council, not the PCA, to be satisfied that the requirements for flood protection in the condition have been met. Condition 53 should require the noise management plan to be submitted for approval by the Council and not the PCA. This will ensure that the noise management measures proposed will meet the standards required by applicable environmental planning instruments and the development control plan and be as predicted in the noise assessments. Condition 54 should require the Council, not the PCA, to approve any alternative design/performance solution for column locations in the basement carpark that do not comply with AS2890.1. Condition 60 should require the Council, not the PCA, to approve the reflectivity report assessing the reflectivity of the facades of the building. Condition 75 should require the noise management plan to be approved by the Council and not the PCA. This is an anterior step to the PCA managing the construction process, including ensuring compliance with the noise management plan. 3. For the second category, for some conditions the issue of the occupation certificate is the appropriate timing but for others the issue of the construction certificate is the appropriate timing. Condition 19 is the condition requiring installation of the traffic control devices of the median island and the No U-turn sign in Hill Road. As I have earlier indicated, I consider it will be sufficient if these roadworks are undertaken before the issue of any occupation certificate. Condition 36 requires certain covenants under s 88E of the Conveyancing Act 1919 to be registered on the land prior to the issue of any construction certificate. HP Subsidiary sought to change this timing to be the issue of the occupation certificate. I agree with the Council that these covenants need to be registered prior to the issue of any construction certificate to ensure that the covenants are in place before the development proceeds. The covenants need to be in place in case there are off-the-plan purchases or subdivision prior to the issue of an occupation certificate. 4. Condition 37 requires the payment of a monetary contribution prior to the issue of a construction certificate. HP Subsidiary sought to change this timing to be the issue of an occupation certificate. The Council agreed to the contribution being paid before the issue of the first occupation certificate in accordance with the Environmental Planning and Assessment (Local Infrastructure Contributions – Timing of Payments) Direction 2020 dated 25 June 2020. However, the Council suggested the wording of the condition should be in accordance with the DPIE's sample condition to ensure that the condition complies with the Minister's direction. I agree that the Council's alternative condition, based on the DPIE's sample condition, is appropriate. 5. For the third category, HP Subsidiary sought to change references in various conditions to any construction certificate to any "relevant" construction certificate. I agree with the Council's submission that the words "the relevant construction certificate" in these conditions are vague. In circumstances where there may be multiple construction certificates issued, there will be no certainty as to which of these construction certificates will be the relevant construction certificate for the purpose of satisfying the particular condition concerned. 6. For the fourth category, I agree with the Council that the suggested changes sought by HP Subsidiary involve changing aspects of the development for which consent is sought and are inappropriate. In condition 24, HP Subsidiary sought to change the design for water quality treatment in the amended stormwater plans to rely only on the landscape "where possible". The Council opposed this change as it was not agreed between the parties' stormwater experts. I agree with the Council that this change should not be made. In condition 28, HP Subsidiary sought to delete the requirement that it provide a "shelter in place" refuge area, as it argued that residents can shelter in their apartments which will be above the PMF level. The Council contended that an external refuge area is needed if residents are not able to reach their apartments. I agree with the Council that an external refuge area should be provided. 7. In condition 45, HP Subsidiary sought to change the requirement that all plant and equipment be located within the basements and instead allow plant and equipment to be located on the roofs of Building A and Building C. I agree with the Council that this was not part of the development proposed and has not been assessed. Provision of plant and equipment on the roofs might add to the maximum heights of the buildings. Building C already exceeds the maximum height development standard. Any further exceedance would need to be considered, including by a cl 4.6 written request. 8. Condition 52 requires the installation of dual water reticulation piping to enable connection to future recycled water via the Sydney Olympic Park Water Reclamation and Management Scheme (WRAMS) or other future Sydney Water recycled water system. HP Subsidiary sought to delete this condition. I agree with the Council that this condition should be retained so as to require the provision of dual water reticulation piping to connect to future recycled water. The Council noted that it has imposed such a condition on every development consent granted after it became aware of the WRAMS scheme in 2016. 9. Condition 116 prescribes the arrangements for dealing with domestic waste from the site. HP Subsidiary sought to vary the arrangements to include the installation of an eDiverter system. I agree with the Council that the condition should not be varied. The proposed development did not include the use of an eDiverter and this system has not been evaluated. The Council notes that it would have wished to adduce evidence that eDiverters do not work and have been switched off due to misuse by occupants in developments in which eDiverters have been installed. I consider it is inappropriate at this stage to allow for a different arrangement for collection of waste than that which was proposed in the development application. 10. For the fifth category, HP Subsidiary sought to delete condition 130 which requires a covenant to be registered on title to the effect that the Building Management Plan must be complied with at all times. HP Subsidiary submitted that there is no reason why a covenant needs to be registered on title to ensure that the Building Management Plan is complied with at all times. A condition of consent requiring the implementation of the Building Management Plan (which is required by condition 129) is sufficient and is enforceable in the Court. The Council submitted that the building management plan is a critical document in the ongoing management of the development and incorporates the matters set out in condition 129. The registration of a covenant on the title will ensure that all persons dealing with the property are made aware of the Building Management Plan, rather than persons having to go back to the original development consent in order to identify that document. 11. I consider that it is unnecessary to require a covenant to be registered on title to ensure that the Building Management Plan is complied with at all times. Condition 129 already requires that the Building Management Plan be implemented for the life of the development. The language of condition 130 can be changed to require expressly that the Building Management Plan must be complied with at all times. This will be sufficient without requiring also the registration of a covenant. 12. For the sixth category, HP Subsidiary sought to vary the wording of condition 140 requiring a review report on the effectiveness of the Green Travel Plan. The Council accepted that some variation in the wording would be appropriate and submitted an alternative condition 140. I consider that the Council's alternative condition 140 adequately meets HP Subsidiary's concerns and is appropriate. 13. There is one final change to the conditions that should be made. As I earlier found, the overall ground floor plan needs to be amended to add words to the note on the driveway crest so that it reads "Approved flood gate set in driveway to prevent the entry of PMF waters to the basements, up to RL 4.76 or the PMF, whichever is the higher." Conclusion and orders 1. HP Subsidiary's development application (as amended) should be determined by the grant of consent subject to conditions. 2. The Court orders: 1. The appeal is upheld. 2. Development application no DA/326/2018 (as amended on 5 June 2020) for the demolition of existing structures, construction of three residential flat buildings with four basement levels and a neighbourhood shop, and construction of a new private road and replacement bridge connecting the development to Hill Road on Lot 5 in DP 1081374, known as 2B Hill Road, Lidcombe, is determined by the grant of consent subject to conditions, in accordance with Annexure A. 3. The exhibits, other than Exhibit G (architectural plans), Exhibit H (landscape plans), Exhibit J (civil engineering and stormwater plans) and Exhibit K (cl 4.6 variation request), are to be returned to the party that tendered them. Annexure A (457635, pdf) ********** 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: 08 October 2020