Land and Environment Court of New South Wales CITATION : Millenium Projects Pty Ltd v Baulkham Hills SC [2005] NSWLEC 362 APPLICANT Millenium Projects Pty Limited PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10908 of 2004 CORAM: Murrell C Development Application :- Subdivision of Land - Landscaping - Geotechnical issues - Minimum allotment size - Community title and s 88B provisions KEY ISSUES: Environmental Planning and Assessment Act 1979 Baulkham Hills Local Environmental Plan1991 Development Control Plan LEGISLATION CITED: Baulkham Hills draft Local Environmental Plan 2004 Community Titles Act DATES OF HEARING: 8/06/2005 EX TEMPORE JUDGMENT DATE : 06/08/2005 APPLICANT Mr A. Pickles, barrister instructed by Mr D. Briggs, solicitor of D G Briggs & Associates LEGAL REPRESENTATIVES: RESPONDENT Ms J. Wauchope, solicitor of Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 9 June 2005 10908 of 2004 Millenium Projects Pty Limited v Baulkham Hills Shire Council JUDGMENT 1 This is a verbal judgment for an appeal under s 97 of the Environmental Planning and Assessment Act against Baulkham Hills Council's refusal of a development application for the sub-division of land known as No. 391-393 Old Northern Road, Castle Hill. 2 I will preface my judgment by saying that the Court met on-site with the parties and undertook an extensive site inspection of the subject land and also had the benefit of hearing from a number of objectors in the vicinity of the subject site. 3 The site consists of two allotments and is located on the eastern side of Old Northern Road, north of Telfer Road and south of Castle Hill Road. It is located 60 m from the intersection of Old Northern Road and Castle Hill Road and approximately 70 m north east. The site has an area of 14,185 sq m and a frontage to Old Northern Road of 128 m and an approximate 5 m frontage to Telfer Road at the south-eastern boundary of the site. Currently, on the subject site there is a two storey dwelling and associated residential ancillary structures pertaining to that residence with two access points from Old Northern Road. 4 The site slopes to the south-east towards Telfer Road with a 7 m wide and variable electricity easement traversing the eastern boundary of the site. Approximately 30% of the site adjacent to Old Northern Road is relatively flat with the remainder of the site sharply falling to the south-east and south-west. The subject land is sensitive and geotechnical reports have been prepared for the subject site. 5 The Court had the benefit of the Court appointed geotechnical engineer, Mr Tim Rannard who provided advice to the Court on the site inspection and he also provided further advice to the Court in terms of geotechnical conditions. As I stated, the site is sensitive but in the Court appointed expert's opinion from a geotechnical point of view, it is capable of development subject to stringent conditions. The Court also heard evidence from Mr Terry Byrnes the applicant's architect/town planner who prepared the proposal. And the Court also had the benefit of a court appointed town planner, Mr Lindsay Fletcher who also provided further advice to the Court yesterday in these proceedings. 6 After the Court met on-site, the matter was then adjourned to allow for further information in terms of the geotechnical matters and also for consideration as to the appropriate title of the proposed sub-division as well as further consideration to existing trees and the existing allotment layout. When the Court came together yesterday, there was an amended plan that had been prepared such that there are now nine lots proposed in the sub-division, one lot being a community title/neighbourhood association lot, that covers the internal access road and much of the steep land on the periphery of the site as well as a community title lot the most steep and sensitive land. 7 The issues in the proceedings include consistency with the aims and objectives of the Baulkham Hills LEP. Council contends that the proposal would be contrary to the objectives of the 1991 LEP and the draft LEP 2004. For the lot sizes the issue is whether the proposed development should be approved as it does not satisfy council's requirements with respect to the minimum allotment size, that is 2,000 sq m. And the third issue was the proposed development does not comply with the DCP for residential development in terms of the minimum allotment depth of 50 m. And four, the proposed development does not comply with DCP 3 concerning the ability to provide building platforms of 20 by 15 m free of constraints. 8 As I stated, the geotechnical matters are matters that have been worked through and they are no longer issues in the proceedings. Similarly, the vegetation and on-site detention issues that were originally raised are no longer live issues in the proceedings. I will say that the applicant and the council have approached this matter in a co-operative way such that whilst there were some very significant concerns initially in the Court's mind, I am now satisfied with the benefit of the Court appointed experts, that the proposed development is one that warrants approval. I say this that by way of summary and my reasons follow. 9 The objectors to the proceedings included: Ms Leonardi from 8 Telfer Road. She is concerned that the subject site and the area generally is known for landslip and is concerned that development of the subject site with houses and foundations and the removal of trees would provide for an adverse effect in terms of the sensitivity of the land. Evidence on site was also given by Mr Dobell and Ms Koreshoff who own a bonsai nursery at the foot of the subject site and have been there for some 40 years. They are concerned about the stability of the subject land in terms of slip and hillside creep and the issue of altering the ground water and runoff patterns from the subject site and the impact on their property. 10 The Court has considered the planning controls set out in council's LEP 1991 that zones the subject site 2(d), ' residential protected'. The site is environmentally sensitive and it is also surrounded by other lands which are zoned 2(d) under the LEP. The sites to the south-west of the subject site are zoned 2(e), that is also residential land and it can be seen from council's extract of the planning scheme that the residential allotments within that area have been subdivided and houses built. It is also noted the land on the north-east or to the north of the subject site fronting Castle Hill Road has allotments of a residential nature as well. 11 The remaining issue now in the proceedings is that council considers that the applicant has not demonstrated why the minimum allotment size of 2,000 sq m should not be complied with. The subject development application has sites ranging in size from some 925 sq m to some 2,500 sq m. The plan that was submitted as exhibit G, the amended plan, is to be further amended from today's proceedings such that there is a greater area of sensitive land contained within the community title Lot 1, and that land is to be excised from Lot 6 such that it will reduce the current 3,000 plus size to about 2,5000 sq m. 12 As I said, the majority of lots in the proposed subdivision are not 2,000 sq m, in fact council maintains that many of the lots could be amalgamated to achieve council's objective of 2,000 sq m per lot. In my assessment of the development application, I must have regard to council's controls, not only its LEP but also its Development Control Plan. The Baulkham Hills draft LEP of 2004 continues to zone the subject site 2(d). The amendment to the environmentally integrated housing definition is proposed to be changed to highlight the particular constraints of land that environmentally integrated housing applies to and aims to protect through the nature of the design of development. 13 The Baulkham Hills LEP 1991 has a number of objectives for the 2(d) zone as follows: (a) to provide for the residential development of land within the zone having regard to the special development constraints of that land, and (b) to provide for the preservation of the vegetative landscape, drainage, scenic and environmental qualities of the land within the zone, and (c) to make provision for the carrying out of necessary environmental protection works to support residential development of the land within the zone. 14 The Residential DCP No. 3, December 2000, has zone functions and for the land zoned 2(d) the DCP states: "is located in environmentally sensitive areas and will therefore be characterised by larger than normal lot sizes. The primary objective is to provide for residential development having regard to the preservation of scenic and environmental qualities whilst taking into consideration the physical constraints of the land." 15 Clause 2.2 relates to environmentally integrated housing that is a type of residential development permissible in the 2(d) zone: "it is designed to provide an alternative form of development to large detached housing lots in that zone. It recognises that environmentally significant or sensitive features of a site can often be better protected or enhanced by an integrated development approach to development." 16 The question of 'Integrated development' was raised on the first day of the proceedings as a more appropriate form of development for the subject land and a proposal could have been formulated in terms for an integrated housing proposal. At the same time I also note the 2,000 sq m lots provided for in council's DCP for the 2(d) zone could be the subject of a further application for integrated housing. I am satisfied after working through the instrument that the proposed development will not provide any greater density or any greater built upon area than an integrated housing development. Whilst the amalgamation of certain lots would satisfy council's requirement of 2,000 sq m, the proposed subdivision with community title provisions and special restrictions over certain land provides for greater certainty for long term management and building footprints for the subject land. I recognise that this is sensitive land in a geotechnical sense, and the importance of protection against hillside creep and slippage is most important for the adjoining lands. In this regard, Mr Rannard's additional advice to the Court in exhibit 11, provides a more comprehensive analysis for the ongoing controls that would be required for residential development of this land as shown on the amended subdivision plan. Mr Rannard recommends a progressive review of the underground services and also monitoring to ensure that the stability of the land is carefully monitored. And the conditions as agreed to between the parties have incorporated the need for a neighbourhood management plan to be adopted to include his recommendeations. It has also been agreed to by the applicant that the monitoring and reports be the subject of a s 88B instrument to be submitted to council. 17 The development standards in the DCP are prescribed for achieving outcomes consistent with the objectives of the DCP. These may either be numerical requirements or specific site controls such as restricted development areas. Variations to the performance standards may be considered by the council, where the applicant is able to demonstrate that the variation to the standard does not compromise the objectives of the particular control or element. 18 This subject land is unique and it does require careful consideration. I am satisfied during the processes of this hearing that the sensitivity of the land has been addressed and the issue of stability is one that can be satisfied by the continuing conditions. This does not take away from the fact that council considers that the lots should be 2,000 sq m, however, in my merits assessment, and I have had central consideration and regard to the DCP and given it genuine and proper consideration in my assessment, I have concluded the amended proposal warrants approval. I have taken a holistic reading of the DCP and had regard to providing balance in my assessment and I am satisfied that the proposed development is appropriate for this parcel of land, especially having regard to the fact that community title has now been agreed to, which will ensure that the sensitive land is very carefully monitored. 19 The 2,000 sq m standard is one that council considers should be complied with. However, in the circumstances of this site, with its opportunities and constraints, I am of the opinion that the proposed subdivision will provide for one that has regard to those constraints as well as its opportunities. I do not consider the subdivision as now proposed is an overdevelopment of the site. And in my overall assessment there is no reason why approval should not be granted to the application. 20 The issue of trees. The subject site is heavily vegetated and it is clearly an important asset for the amenity of the area generally. The proposal has a landscape plan and the landscape plan forms part of the subdivision application to be implemented. It also provides for revegetation of certain areas. The vegetation goes hand in hand with the issue of stability in terms of the geotechnical issues. The applicant has provided a plan that shows platforms for the various lots and I am satisfied that those platforms can accommodate a dwelling house and ancillary uses for a dwelling commensurate with the size of the lots and commensurate with the area. 21 I am satisfied the proposed development would be one that 'fits' with the area in terms of its juxtaposition to other residential development in the vicinity of the subject site, but clearly the proposal provides for larger lots and a more vegetated nature. 22 The development standards, as I said in the DCP, also include not only building platforms but also site coverage. That is, that there should not be more than 30% site coverage of built form leaving 70% for landscaped area. The proposed subdivision will allow for the standard to be achieved. The development standard required for landscaped or naturally vegetated area for residential development as a percentage of the total site area in the case of the 2(d) zone is 70% of the land. The proposed application satisfies this requirement. 23 The application also includes a garage for the existing dwelling, excavated from the road. There was discussion during the proceedings as to whether in fact sufficient detail was provided. I agree with the council, sufficient detail has not been provided, and therefore additional conditions are imposed to require the submission of further details. There is also the need for submission of further details for the retaining wall adjoining the internal road shown on the subject subdivision application. 24 In this matter the parties have examined the need for appropriate title for the subject land, and it is one that is most important for development on sensitive lands. The 'neighbourhood title' under the Community Titles Act has been agreed to as the most appropriate. And it will also provide for further monitoring and certainty in the process for the future development of this subdivision. The titling does allow for an identifiable body to be responsible for the vegetated area and the sensitive land slip areas on the subject site. 25 On the basis of my assessment and having the benefit of the evidence of the expert witnesses in this matter, the formal orders of the Court are: 1. The appeal under s.97 of the Environmental Planning and Assessment Act 1979 for the property known as No. 391-393 Old Northern Road, Castle Hill is upheld. 2. The development application submitted to Baulkham Hills Shire Council, and as amended, for a community title subdivision of 9 lots is determined by the granting of consent subject to the conditions contained in Annexure 'A'. 3. The exhibits are returned except for 10, 11, G, H and J. 4. As agreed between the parties, the applicant is to pay the respondent's costs to the amount of $3,000.00 and also the respondent's share of the Court appointed expert's costs of $1692.30 within 90 days from the date of this Order. J S Murrell Commissioner of the Court Ljr/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.