Land and Environment Court of New South Wales CITATION : Deobeam Pty Ltd v Hornsby Shire Council [2005] NSWLEC 249 APPLICANT Deobeam Pty Ltd PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 11016 of 2004 CORAM: Bly C KEY ISSUES: Development Application :- Consent orders - integrated development - waterway - subdivision into 8 allotments - development control plan requirements - sewerage - neighbour objections - right of way - flooding Hornsby Shire Local Environmental Plan 1994 LEGISLATION CITED: Hornsby Rural Lands Development Control Plan DATES OF HEARING: 19/04/2005 EX TEMPORE JUDGMENT DATE : 04/19/2005 APPLICANT Mr P Clay, barrister SOLICITORS Domain Legal LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike & Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 19 April 2005 11016 of 2004 Deobeam Pty Ltd v Hornsby Shire Council JUDGMENT 1 This appeal relates to development application 922/03 which seeks approval for the Torrens Title subdivision of Lot 2 in DP231660 being 29 Arcadia Road, Galston, into nine allotments together with the creation of a right-of-carriageway to service the proposed lots. 2 The application has since been modified, reducing the number of allotments to eight. The proposed lots now range in area between 672 sq m and 1311 sq m. Incorporated into the subdivision design is an extension to Gardiner Road which in turn converts to the proposed right-of-carriageway now to have a width of between 6.3 and 10.2 m providing access to the adjoining property to the north, being 33 Arcadia Road. There are additional internal rights-of-carriageway providing access to the lots off Gardiner Road as extended into the site. 3 There is also to be provided in conjunction with a creek which passes through the site a riparian zone and there is also to be provided a vegetative buffer zone 10 m deep along that part of the northern boundary of the site where it provides boundaries to Lots 3, 4 and 5. One of the proposed lots will have access off Arcadia Road. 4 The plan of subdivision has provided building envelopes indicating the possible location of future dwellings on each of the eight lots. 5 The site is a hatchet-shaped lot with access off Arcadia Road. It has frontage to the northern end of Gardiner Road. Generally the site has moderate slopes of between 8-10%. It contains remnant Sydney turpentine ironbark forest, the majority of which is to be protected by the vegetation buffer zone referred to earlier. 6 The site is zoned Residential AR (Low Density Rural Village) under the Hornsby Shire Local Environmental Plan 1994 ("the LEP"). Under the LEP subdivision is permissible pursuant to cl 7 with development consent. 7 Clause 7(2) of the LEP requires that the objectives of the zone must be taken into account before development consent is granted to the carrying out of development within the zone. The objectives include the provision of housing to meet the needs of the rural village population, to promote a variety of housing types and to provide for development within the environmental capacity of a low density rural village environment. These objectives were dealt with in the report of Ms Sylvia Correia. Her report deals with this requirement and concludes that the proposal complies with the zone objectives. Having considered her report together with the numerous other reports that are available to the Court I agree with her conclusion. This conclusion is further supported by the fact that the proposal more than meets the minimum lot subdivision standard of 500 sq m in cl 14(2) of the LEP. 8 Also relevant to this application is council's Rural Lands Development Control Plan ("the DCP"), in particular the Galston Village Urban Design Guidelines. Whilst there is some confusion as to which of the plans or maps associated with these guidelines is the correct one it seems to me that the plan which indicates a subdivision pattern for this land and 33 Arcadia Road is the correct one. That subdivision depiction in the guidelines in relation to the subject site and the adjoining site shows a subdivision pattern that I would describe as a rural residential subdivision comprising a total of nine lots. 9 It also shows an access road significantly different to that proposed in this application. Despite this I agree with Mr Moody's assessment that the zoning of the land and the applicable subdivision standard should prevail over this much lower density guideline in the DCP. As Mr Moody agreed, a subdivision consistent with that version of the DCP would not constitute orderly and economic development of land. 10 According to the Statement of Basic Facts the original and amended proposals were placed on public exhibition and adjoining owners were notified. Four submissions were lodged to the original proposal and six submissions to the amended proposal. Seven of the ten submissions were received from the residents of 33 Arcadia Road. 11 These submissions raise concerns including non-compliance with the provisions of the Development Control Plan, stormwater drainage problems, inadequate width of the proposed right-of-carriageway resulting in an inability for waste service vehicles to stand and concurrently allow other vehicles to pass, loss of significant trees from the site, noise associated with cars and service vehicles, the resulting residential d evelopment would be out of character with the existing village, the proposal would adversely affect existing wildlife corridors, the present infrastructure is not sufficient to sustain the subject development, stormwater run-off will be significantly increased due to proposed hard surfaces. 12 During the hearing Mr P Brown of 9 Gardiner Road elaborated on his concerns regarding the proposal. He was concerned at the proposed right-of-way to be established effectively alongside his house. He was particularly concerned about noise from cars utilising this right-of-carriageway. He was also concerned about noise likely to be generated as a result of the extended time for sewer pump trucks operating in Gardiner Road and resulting smells. Other concerns expressed by Mr Brown include the number of garbage bins likely to be placed in Gardiner Road, essentially in the turning area, loss of privacy and loss of solar access, and the resulting need for a significant fence. 13 Mrs B Inshaw of 33 Arcadia Road essentially summarised her extensive written concerns which include the narrowness of the proposed right-of-carriageway that is to provide access to her property thus facilitating, in the longer term, its redevelopment. She also expressed concerns in relation to the consequences of the narrowness of the right-of-carriageway and the absence of separate pedestrian access that could also provide for cyclists. She was of the opinion that the right-of-carriageway should be a public road 15 m wide as is the existing road reservation for Gardiner Road south of the subject site. 14 Mrs Inshaw also believed that the right-of-carriageway should be moved further to the west to avoid a number of trees on her property. She provided a number of photographs showing the extent to which localised flooding occurs on the site, a further reason for moving the carriageway further to the west. She also believed that eight houses on this site would exacerbate the flooding situation that she described. 15 Mrs Inshaw and Mr Brown indicated their particular requirements in relation to fencing and I understand that their requirements can be accommodated by conditions of consent. 16 This development is integrated development because there is a waterway passing through the site. The Department of Infrastructure Planning and Natural Resources does not oppose the granting of consent subject to the general terms of approval conditions which it has provided. These terms have now been incorporated into the draft conditions of consent. 17 The site is bushfire prone and consultation with the New South Wales Rural Fire Service has resulted in the advice of that Service that the proposal would be satisfactory and that it has no particular requirements for this subdivision. Reticulated sewerage is not available to this site and the LEP requires that the consent authority consider the provision of water and sewerage services. 18 According to the officer's report the Sydney Water Priority Sewerage Program deals with the providing of sewer to village areas throughout New South Wales. Under this program there is no timeframe for completion or commencement of Stage II which includes this property. On this basis whilst there is no set timeframe I accept that in due course the property will be sewered and that in the meantime the pump-out system as proposed whilst not being entirely satisfactory will suffice in the meantime. The council has no objection to this arrangement. 19 In addition to the council officer's report I have been provided with a flood study, a geotechnical report, a flora and fauna report as well as a report from Mr A Moody who provided additional independent advice to the council. Subject to the reduction in the number of lots from nine to eight he supports the proposal. 20 Having taken all of these matters into account including the resident objections the council has decided that the Court should be invited to grant consent orders subject to a number of conditions. 21 Having also considered these same materials, which I must say are thorough and comprehensive and deal with all of the concerns expressed by the residents and the inquiries made by myself. Whilst there will be some impacts on Mr Brown's property I do not accept that those impacts would be sufficient to warrant rejection of the application. Similarly the concerns of Mrs Inshaw regarding the right-of-way, are not a reason to reject this application, especially as the proposed carriageway meets the particular requirements in the DCP. 22 It is therefore the decision of the Court that: 1. By consent the appeal is upheld. 2. Development consent is granted for the subdivision of 29 Arcadia Road, Galston, being Lot 2 in DP231660 into 8 allotments in accordance with the conditions of consent in Annexure A hereto. 3. Exhibits A, 8, and 7 are retained. _____________________ T A Bly Commissioner of the Court rjs 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.