Land and Environment Court of New South Wales CITATION : Culars No. 68 Pty Ltd v Baulkham Hills SC [2006] NSWLEC 484 APPLICANT Culars No. 68 Pty Limited PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 11058 of 2005 CORAM: Hoffman C KEY ISSUES: Deemed Refusal :- subdivision containing 16 lots, dedication of public road, low density, heritage and environmental character, drainage, boundary control walls, stormwater, signage, traffic, streetscape and landscape. The Environmental Planning and Assessment Act 1979, The Baulkham Hills Local Environmental Plan 2005, LEGISLATION CITED: Development Control Plan Number 3 Residential, The West Pennant Hills Valley s 94 Contributions Plan Number 2 The New South Wales Threatened Species Conservation Act 1995. DATES OF HEARING: 16/06/2006 and 26/06/2006 EX TEMPORE JUDGMENT DATE : 07/26/2006 APPLICANT Ms Z. Baker, solicitor of Deacons LEGAL REPRESENTATIVES: RESPONDENT Mr G. Jones, solicitior of PricewaterhouseCoopers Legal JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 26 July 2006 11058 of 2005 Culars No. 68 Pty Limited v Baulkham Hills Shire Council JUDGMENT 1 This is a Class 1 Appeal No. 11058 of 2005 between Cular No. 68 Pty Limited and Baulkham Hills Shire Council in regard to the deemed refusal of a subdivision containing 16 lots on land that has frontage to Oratava Avenue Gottwald Place, Maralinga Place and Timberline Avenue in West Pennant Hills. 2 The application seeks approval for the 16 lot residential subdivision including the dedication of public road with the extension of Timberline Avenue. The proposed residential allotments range in area from 700 sq m to 1800 sq m with proposed Lots 1 and 2 fronting Oratava Avenue; proposed Lots 3 to 6 with access to Gottwald Place; proposed Lots 7 to 10 with access to Maralinga Place and proposed Lots 11 to 15 with frontage to the extension of Timberline Avenue and proposed Lot 16 fronting Maralinga Place, all at West Pennant Hills. 3 The site is Lot 33, DP10149, Lot 74, DP815016 and Lot 43, DP707471. The subject site has a total area of 1.689 ha and is burdened by an easement for transmission line that cuts across the north-western corner of the site which will be across the north-western corner of proposed Lot 2, covering almost half its total area. Water, sewer, power and telephone services are available. The site has frontage to Oratava Avenue on the north for a distance of 60.35 m. The east boundary is about 250 m, the south about 68 m and on the west a total distance of 297 m. 4 The majority of the site is vacant, however, an existing dwelling is located at the western side of the site, on Lot 43, DP707471 Maralinga Place with a scattering of trees across the northern and southern areas. A natural watercourse cuts diagonally across the southern area of the site. The site has an average slope of 20% falling away from Oratava Avenue to a slope of 10% over the central area giving way to an average slope of 17% to a watercourse across the rear of the site. 5 The character of the surrounding area consists of residential housing on individual lots. The site is zoned Residential 2(b) under the Baulkham Hills Local Environmental Plan 2005. The objectives of the zone, is to identify residential areas of predominantly single dwellings, low density character and to ensure new housing respects and complements the heritage and environmental character of the surrounding low density development. 6 The applicable statutes and controls are: + The Environmental Planning and Assessment Act 1979, + The Baulkham Hills Local Environmental Plan 2005, + Development Control Plan Number 3 Residential, + The West Pennant Hills Valley s 94 Contributions Plan Number 2 and + The New South Wales Threatened Species Conservation Act 1995. 7 There were a considerable number of objections to the proposal when exhibited for public comment. There were negotiations to some extent at a conciliation conference in October 2004. With ensuing specialist consultant reports and further negotiation, the proposal has been amended. Following the deemed refusal, the council did consider the application and resolved that it would be acceptable with certain conditions attached. The conditions were disputed by the applicant. The issues in that dispute were: 1. Whether condition 12(iii) of the consent is necessary and reasonable. Particulars: The condition is impossible to understand, it appears to require the applicant to upgrade drainage works within existing council drainage easements and for existing roads to cope with the one in 100 year storm event. Such a condition is manifestly unreasonable. 2. Whether condition 12(xv) is reasonable and necessary. Particulars: It is unreasonable and unnecessary to require that there is no overland flow to adjoining lots and boundary control walls are not reasonably required at subdivision stage. 3. Whether condition 23 is reasonable and necessary. Particulars: Whether it is necessary and reasonable to require that all lots and roads be clear by the one in 100 year AEP flood level of the adjacent drainage land and drainage reserve. 4. Matters raised in conditions 38(e),(f),(h) to (k) ought to be subject to appropriate conditions imposed on any later consents for dwelling houses. Is unreasonable and unnecessary to require that these matters be included in a s 88B instrument. 5. Whether condition 38(e) is reasonable and necessary. Particulars: Given that the consent is for subdivision only and not for dwelling houses, it is unreasonable and unnecessary to require the creation of a positive covenant to ensure the maintenance of on-site stormwater detention system. An on-site stormwater detention system is not proposed as part of the subdivision. Such a condition is more appropriately imposed on any consent for dwellings. 6. Whether condition 38(f) is reasonable and necessary. Particulars: Given that the consent is for subdivision only, matters relating to fill ought to be addressed in later applications for individual dwellings. 7. Whether condition 38(h) is reasonable and necessary. Particulars: the condition requires the restriction of excavation of lots 4, 5, 8 and 9 to ensure that the floor level of any dwelling and/or garage thereon is a minimum of 500 mm above the one in 100 year AEP flood level of the adjacent drainage land and reserve. The one in 100 year flood level is an excessive criterion and in any case this issue ought to be addressed in later applications for individual dwellings. 8. Whether condition 38(i) is reasonable and necessary. Particulars: Given that the consent is for subdivision only, a condition restricting residential development of all lots with a grade of 6% or more to be split-level design with a ground floor level no greater than one metre above existing ground level, it is unnecessary and unreasonable and in any case ought to be addressed at the time of any later application for dwellings on the site. 9. Whether condition 38(j) is reasonable and necessary. Particulars: The restriction of development on all lots, except Lot 6, untill an on-site stormwater system has been constructed or provision made for the construction of such a system is unreasonable and unnecessary given that the consent is for the subdivision only, is premature to construct such a system in the absence of any design or dwelling. Such a condition ought to be addressed at the time of any later application for dwellings on the site. 10. Whether condition 38(k) is reasonable and unnecessary. Particular: The condition relates to the placement of letterboxes and signage over the first 2 m of the right of carriageway proposed over Lots 9 and 4. It is unnecessary and unreasonable given that this consent is for subdivision only. Signage and letterbox placement is more appropriately dealt with at the time of any later application for dwellings on the site. 11. Whether condition 41 is reasonable and necessary. Particulars: If the Court finds condition 23 is unreasonable and unnecessary then this condition requiring the provision of a plan of survey showing all lots and roads are clear of the one in 100 year AEP flood level for adjacent drainage system is also unnecessary and unreasonable. 12. Whether the s 94 contributions required by conditions 49 and 50 are reasonable. Particulars: s 94(4) of the Environmental Planning and Assessment Act 1979 provides that a s 94 contribution may be imposed only to require a reasonable contribution towards recoupment of the costs concerned. Section 94(b)(3) provides that the Court may disallow or amend a contribution or condition because it is unreasonable in the particular circumstances of the case. The contribution rate of $24,439.19 per lot is unreasonable. 13. Whether condition 51 is reasonable and necessary. Particulars: The condition requires the applicant to undertake a review of traffic flows to verify the need for traffic calming devices within three months of the opening of Timberline Avenue, West Pennant Hills. The proposed subdivision does not generate a need for such a study and accordingly the condition is both unreasonable and unnecessary. 8 The evidence tendered in the appeal included: (a) A review by Theresa James, Botanist and Conservation Expert. (b) The flora and fauna reports by Konacher Travers October 2003. (c) The tree survey by David Thomas October 2003. (d) The statement of environmental effects by Craig & Rhodes of July 2004. (e) The traffic impact statements and survey by Thomas Stanbury Associates Engineer. (f) The one in 100 AEP flood study and inter allotment drainage study Craig & Rhodes. (g) Preliminary contamination report, October 2003 Geo-Enviro Consultancy Pty Limited, reviewed by Craig Bourke, Council's Environment Protection Co-ordinator. (h) Department of Infrastructure and Planning and Natural Resources requirements for development near a watercourse. 9 When the matter came to Court in 2006, recent negotiations had resulted in consent orders by agreement between the parties, however, that agreement had not been notified to the objectors. An adjournment was granted to allow notification. 10 On resumption, none of the objectors chose to appear except that three had written objections and they have been considered by the Court. The applicant has proposed exhibit H to satisfy objections by Mssrs. Otmar and Steer whose properties drain onto the subject development above Timberline Avenue. Drainage easements and piping have now been provided to prevent overland flows. The objection by Vince and Jan Gee also related to drainage in conditions 38(d) and (g) and that is also now satisfied. 11 There are other concerns in regard to tree preservation condition 5. Condition 12, has also been considered regarding on-site detention. Condition 6, 7 and 48 on tree preservation have also been dealt with by amendments to the consent orders in exhibit 1. 12 Overall, I have come to the conclusion that all relevant matters under s 79(c) of the Environmental Planning and Assessment Act 1979 and other matters under council statutes and controls have been dealt with satisfactorily by the expert's reports and the amended conditions now proposed and the development is suitable for approval. 13 Therefore the orders of the Court by consent of the parties are: 1. The appeal is upheld. 2. Development consent is granted to the subdivision of Lot 33 DP 10149, Lot 11 DP 707461 and Lot 74 DP 815016 (also known as 48-52 Oratava Avenue, 11 Maralinga Place and 19-25 Timberline Avenue, West Pennant Hills), in accordance with the conditions in Annexure "A". The subdivision is to be carried out in accordance with Drawings 19100L2, Amendment 6 by Craig & Rhodes Surveyor and Job No. 050956 Drawing L01 and L02 both Issue A by Mather Associates Landscape Architects. 3. Annexure "A" to be amended by Exhibit H and Exhibits 7 and 8. Parties to forward updated electronic copy by 4 pm this afternoon. 4. The exhibits are returned to the parties, except Exhibits A, H, 1, 2, 3, 7 and 8. Note : Each party is to pay its own costs. ___________________ K G Hoffman Commissioner of the Court ljr 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.