Hilley v Blue Mountains Council [2004] NSWLEC 412

Land and Environment Court of New South Wales

CITATION : Hilley v Blue Mountains Council [2004] NSWLEC 412 APPLICANT Hugh Hilley PARTIES : RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 10408 of 2004 CORAM: Brown C Development Application :- erection of townhouses KEY ISSUES: weight to be given to draft plan building design impact on character of area Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Blue Mountains Local Environmental Plan No 4 Draft Blue Mountains Local Environmental Plan No 2002 CASES CITED: Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289; Architects Haywood and Bakker Pty Limited v North Sydney Council (2000) NSWLEC 138 DATES OF HEARING: 26/07/2004 DATE OF JUDGMENT: 08/10/2004

APPLICANT Mr P Crennan, solicitor SOLICITORS McIntosh, McPhillamy & Co LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITORS Marsdens

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Commissioner G T Brown

10 August 2004

10408 of 2004 Hugh Hilley v Blue Mountains City Council

JUDGMENT Introduction 1 This is an appeal against the deemed refusal by Blue Mountains City Council (the council) of Development Application No: X03/1804 for the erection of 12 townhouses at 71-73 Railway Parade, Leura (the subject site) 2 I record that inspection of the subject site and surrounding areas was undertaken on the morning of the hearing with representatives from both parties. A number of residents also took the opportunity to provide their evidence at this time. 3 For the reasons set out in the judgment I have concluded that the appeal should be dismissed and development consent refused. The subject site 4 The subject site is vacant land and consists of Portions 1, 2 and 3 in DP 1175. It is trapezoidal in shape with a northern boundary to Railway Parade of 73.86 m, a western boundary to Wascoe St of 136.4 m, an eastern boundary of 93.75 m and a southern boundary of 60.345 m, giving a total area of 6730 sq m. 5 The subject site falls approximately 30 m from north-east to south-west with the steeper slopes towards the northern end of the subject site. Native and exotic vegetation is located generally over the subject site. Due to the topography, access is not available from Railway Parade. 6 The surrounding area consists of older style single dwelling houses with some multi-unit developments in the immediate area. Leura Village is located approximately 100 m to the east of the subject site. The proposal 7 The proposal seeks the erection of 12 townhouses at the southern end of the subject site. The northern and steeper end is to remain in its natural state. Each townhouse is designated as two-bedroom plus study with a single garage located within the dwelling form. The townhouses are located in three groups of 2 townhouses (Units 1 and 2, Units 3 and 4 and Units 5 and 6) and two groups of 3 townhouses (Units 7, 8 and 9 and Units 10, 11 and 12). A one-way internal road off Wascoe St connects the townhouses with the entry adjoining the southern boundary and the exit some 50 m to the north. Relevant planning controls 8 The subject site is currently zoned Residential 2(b2) under the provisions of Blue Mountains Local Environmental Plan No 4 (LEP 4). The proposed development is defined as a "residential flat building Class 1" and is permissible with council consent in this zone. The relevant requirements in LEP 4 are a 2 storey height (cl 17(b)), landscaped area at the rate of 180 sq m for each dwelling (cl 19(3)) and car parking at the rate of 1.75 parking spaces for each dwelling (cl 20(a)). Clause 42 states that consent shall not be granted unless an assessment has been made of certain factors. The relevant factors are height (cl 42 (d)) and topography, existing vegetation and visual amenity (cl 42 (d)). 9 The proposal is also subject to the provisions of draft Blue Mountains Local Environmental Plan No 2002 (the draft LEP). Under the draft LEP, the subject site is zoned part Living-Bushland Conservation and part Environmental Protection-General. Clause 32 of the draft LEP prohibits the proposed development within both zones. Clause 9 of the draft LEP states that consent shall not be granted unless the consent authority is satisfied that the development satisfies a number of requirements. These include compliance with the locality management provisions in Part 2 (cl 9)(c)), the assessment requirements and provisions in Part 3 (cl 9)(c)) and the relevant development provisions in Part 4 (cl 9)(c)). Clause 13)(1)(a) states that consent shall not be granted unless the development complies with the zone objectives. 10 The draft LEP was placed on public exhibition between 16 October 2002 and 13 December 2002. At its meeting of 7 October 2003, the council resolved that the revised draft LEP be forwarded to the Minister for Infrastructure Planning and Natural Resources and requesting that the draft LEP be made. As part of its considerations, the council specifically addressed a submission on the subject site and resolved that the zonings within the draft LEP be retained (Recommendations Z6.22 and Z6.32). At this meeting, the council also resolved to include savings and transitional provisions within the draft LEP. These provisions state: Local environmental plans (including Blue Mountains Local Environmental Planning No 4) as in force immediately before the commencement of this plan, apply to a development application that was made but had not finally been determined before that commencement as if this plan had been exhibited but had not been made. 11 In April 2004, Parliamentary Counsel sought clarification on a number of matters in the draft LEP, however at July 2004 only two matters remained outstanding; neither of which relate to the subject site or proposed development. 12 The council's Performance Standards for the Design of Multiple Residential Development (the Performance Standards) applies to the proposed development. Requirements are provided for site grading, landscape design, open space, privacy, sunlight and energy conservation and noise. The issues 13 The council provided a Statement of the Issues containing 17 separate issues. The impact on the hanging swamp (Issues 11 and 12) was not pressed by the council following the preparation of a report from a Court appointed ecologist. The energy efficiency of the buildings (Issues 14 and 15) and the grade of the entrance point (Issue 16) were also not pressed following the submission of further details by the applicant. 14 The remaining issues can be conveniently grouped into the following main areas: 1) whether sufficient weight should be given to the draft LEP to warrant the refusal of the development application ( Issue 1), 2) whether the design of the proposed development is acceptable in terms of the provision of overlooking, open space, height, excessive slope and cut and fill, accessibility and adaptability, maximum floor area, and usable site area (Issues 2, 3, 4, 5, 6, 7, 8, 9 and 13), and 3) whether the proposed development is compatible with the character of the area (Issue 10). 15 In addition to those matters raised by the council, the local residents raised additional issues relating to traffic, drainage, bushfire, loss of vegetation and loss of privacy and overlooking (Issue 17). The draft LEP What weight should be attributed to the draft LEP? 16 Mr Byron Tully, a town planner with the council provided evidence for the council and Mr Karl Berzins, also a town planner provided evidence for the applicant. 17 Put simply, Mr Tully states that the draft DCP is imminent and certain whereas Mr Berzins states that the imminency and certainty is ultimately a matter for the Court to decide. 18 Section 79C(a)(ii) of the Environmental Planning and Assessment Act 1979 requires the Court to take into consideration the provisions of any draft environmental planning instrument that has been placed on public exhibition. In this case, the draft LEP is a relevant consideration and the Court is required to determine the amount of weight to be placed on its provisions in the assessment of the proposed development. This requires a consideration of whether the making of the draft LEP is imminent and certain and also the savings and transitional provisions. 19 The draft LEP is a comprehensive document consisting of over 400 pages that covers the whole local government area. It has been under consideration since 1994 in various forms and has been the subject of extensive public consultation and consideration by the council staff and elected members (Exhibit 5). It is clearly reaching the end of an exhaustive process. The undisputed evidence is that only two unrelated areas of the draft plan are yet to be finalised with Parliamentary Counsel. 20 The Court was taken to the judgment of Pearlman J in Architects Haywood and Bakker Pty Limited v North Sydney Council (2000) NSWLEC 138 where the question of imminence and certainty was addressed. In this case, a development application for attached dwellings was the subject of a draft environmental planning instrument. It also contained similar savings and transitional provisions to that proposed in the subject application. It was agreed that the proposed development took the form of "carriage development" although the draft environmental planning instrument contained objectives to "avoid carriage development". Her Honour found that this non-compliance was critical and that the proposed development did not accord with the planning approach adopted by the draft environmental planning instrument. 21 If the circumstances in Architects Haywood and Bakker are compared to the subject application, two significant points emerge that support the council's position that significant weight should be given to the draft LEP. Firstly, the consideration of the draft LEP had reached a more advanced stage than the draft environmental planning instrument considered by Her Honour. In Architects Haywood and Bakker the submissions from a second round of advertising were still being considered by the council. Secondly, the proposed development is prohibited by the draft LEP whereas the development proposed in Architects Haywood and Bakker was still permissible under the draft environmental planning instrument although not in the same form provided by the existing environmental planning instrument. I accept that these circumstances provide strong support for the council's proposition that the proposed development should be refused because of its inconsistency with the planning approach of the draft LEP. 22 In my view, the certainty of the draft LEP is of considerable importance in determining how the development application should be considered given that the weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) NSWCA 289, par 5). Mr Tully anticipates that the draft LEP will be gazetted within two or three months although I am not convinced that it is necessary for the draft LEP to be gazetted within this period for considerable weight to be given its provisions. I agree with Mr Tully that there is a high level of certainty that the draft LEP will be adopted in the form presented to the Court and consequently a high level of weight should be given to its provisions. 23 The savings and transitional provisions in the draft LEP do not alter these conclusions. The Court must consider the provisions of the draft LEP as if it had been placed on exhibition, and accordingly give weight to its provisions in the assessment of the development application. 24 The applicant drew the Court's attention to a document produced by the council, titled Environmental Management Plan 2002 - Residential Development Strategy. It was described as a background document to the draft LEP. The applicant submitted that the zoning of the subject site under the draft LEP was predicated on the existence of a hanging swamp (Exhibit 4 ,p 73). As the existence of a hanging swamp has now been investigated and found to be incorrect, the applicant submitted that the zoning under the draft LEP must be questionable. Even if the applicant's submission does have merit, no weight can be given to this submission. It is not the role of the Court to review the zonings in the draft LEP. This is a matter that rests solely with the council. 25 What effect does the weight given to the draft LEP have on the development application? The draft LEP provides a number of provisions that if not satisfied, prohibit development consent being granted. They require an independent assessment and the failure to satisfy any one of these provisions must see the development application refused.