Neometro v Maitland City Council [2006] NSWLEC 95

Land and Environment Court of New South Wales

CITATION : Neometro v Maitland City Council [2006] NSWLEC 95

APPLICANT Neometro Architects & Planners PARTIES : RESPONDENT Maitland City Council

FILE NUMBER(S) : 10498 of 2005

CORAM: Brown C

KEY ISSUES: Development Application :- construction of a housing development for older persons or persons with a disability - neighbour amenity - streetscape - visual amenity - acoustic privacy - bushfire risk

Environmental Planning and Assessment Act 1979 Rural Fires Act 1997 LEGISLATION CITED: Rural Fires Regulations 2002 State Environmental Planning Policy (Seniors Living) 2004 Environmental Planning Policy No 5

DATES OF HEARING: 26/07/05, 07/02/06

DATE OF JUDGMENT: 03/07/2006

APPLICANT Mr A Pickles, barrister SOLICITORS Avendra Singh Strati & Kam LEGAL REPRESENTATIVES: RESPONDENT Mr G Williams, solicitor SOLICITORS Thompson Norrie Solicitors

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Brown C

7 March 2006

10498 of 2005 Neometro Architects & Planners v Maitland City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Application No. 03/3614 by Maitland City Council (the council) for the construction of a housing development for older persons or persons with a disability at 24 Mitchell Drive, East Maitland (the site). The site 2 The site is Lot 72 in DP 777281. It is slightly wedge shaped and has a frontage on the northern side of Mitchell Drive of 38.8 m, a maximum depth of 140.16 m and an area of 4,111 sq m. The site is presently well vegetated with some 43 mature trees. It is relatively level and is currently vacant. 3 The site is one of nine lots created in subdivision bounded by Mitchell Drive, Stronach Avenue and The Boulevarde, Greenhills. The average lot size is 4,566 sq m. The site is one of two remaining undeveloped lots within this subdivision. The Greenhills retail shopping complex is located on the opposite side of Mitchell Drive with its closest boundary being approximately 400 m from the site. The proposal 4 The proposal seeks the construction of nine self-contained two-bedroom residential units specifically for older people or people with a disability. There is no subdivision envisaged by the proposal. It is intended that the buildings will be of one and two storey construction. Relevant zoning controls 5 The site is zoned 2(a) Residential under Maitland Local Environmental Plan 1993. At the time of the hearing, State Environmental Planning Policy (Seniors Living) 2004 (Seniors Living SEPP) applied having come into effect on 31 March 2004. Clause 6 contains savings provisions and provides that the planning instrument in force immediately before its repeal by the Seniors Living SEPP continues to apply to and in respect of the development application if undetermined on 31 March 2004. 6 The development application was lodged on 19 September 2003 and was undetermined on 31 March 2004 so the development has been designed and is to be considered in accordance with the provisions of State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP 5). This was the planning instrument in force prior to the coming into effect of the Seniors Living SEPP. 7 Maitland City Development Control Plan 13 - Low Density Residential Greenhills Development (DCP 13) applies to the site. DCP 13 provides requirements for development however in the event of any inconsistency with SEPP 5 the State policy must prevail. The issues 8 The council filed a Statement of Issues containing 11 issues and a number of sub-issues. These can be conveniently grouped into the following main areas: (1) whether the proposed development has adequate regard to neighbour amenity and streetscape, and (2) whether the proposed development has adequate regard to visual amenity and acoustic privacy. 9 At the hearing Mr Williams, the council advocate, indicated to the Court that following amendments to the proposal that increased the front setback to 15 m (to be in accordance with DCP 13), the council accepted the conclusions of Mr Fielding that there were no grounds to refuse the development application. Because of the late arrival of the Court-appointed town planning experts report, insufficient time was available for the council to enter into Consent Orders. 10 The proceedings were heard on 26 July 2005 and extempore findings given on the above two issues. These findings are set out in pars 15 to 25. 11 There was disagreement between the parties on conditions relating to fencing and bushfire requirements, particularly the appropriate setback. The proceedings were adjourned for further discussion between the parties and the preparation of an additional bushfire report. Directions were given for the preparation, submission and response to this report. Notwithstanding the Directions, the bushfire issue involved protracted discussion between the parties and ultimately no agreement was reached. This necessitated further evidence being provided by both parties and a further hearing on 7 February 2006. The bushfire issue between the parties is: 3) whether the proposed setback of 50 metres is appropriate considering the requirements in Planning for Bushfire Protection. The evidence 12 The parties agreed to the appointment of Mr Garry Fielding as the Court-appointed town planning expert. Mr Garry Warnes provided additional expert town planning evidence on behalf of a number of local residents adjoining and nearby the site. The local residents also provided oral evidence at the site view. 13 Notwithstanding the concession made by the council on the planning issues, the objectors maintained their concerns individually and through the evidence of Mr Warnes. Their concerns related to the impact on the character of the area, including the streetscape, overlooking, overshadowing and acoustic privacy. Mr Warnes raised an additional concern over the internal amenity of the proposed dwellings. 14 Ms Elizabeth Ashby, an ecological consultant and Mr Daniel Copland, a bushfire consultant provided evidence for the applicant on the bushfire issue. Mr John Delaney and Mr Brian Milsom, Development Control Officers with the Rural Five Service (RFS) and Ms Rebecca Maroney, a council town planner provided evidence for the council on this issue. Character/streetscape 15 The principal planning instrument for the proposal is SEPP 5. This document provides a range of numerical standards however there was no dispute that the proposed development satisfies these standards. The issues of the residents relate principally to the qualitative controls in cl 25 and principally cll 25A, 25B and 25C. As I understand, the concerns of the local residents relate substantially to the change in character to that anticipated by DCP 13.