Land and Environment Court of New South Wales CITATION : Belcrib v Baulkham Hills Shire Council [2006] NSWLEC 216 Applicant: Belcrib Pty Ltd PARTIES : Respondent: Baulkham Hills Shire Council FILE NUMBER(S) : 10100 of 2004 CORAM: Roseth SC - Watts C KEY ISSUES: Development Application :- stabilisation of land DATES OF HEARING: 05/10/2006, 06/10/2006, 06/02/2006, o7/04/2006, 11/04/2006 and 20/04/2006 DATE OF JUDGMENT: 05/02/2006 Applicant: LEGAL REPRESENTATIVES: Mr G McKee, solictor of McKee Legal Solutions Respondent: Mr C Drury, solicitor of Phillips Fox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Roseth SC Watts C 2 May 2004 10100 of 2004 Belcrib Pty Limited v Baulkham Hills Shire Council JUDGMENT 1 Commissioners: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Baulkham Hills Shire Council (the council) of a development application to erect housing for aged and disabled persons under State Environmental Planning Policy No 5, (SEPP 5), comprising seventy-two (72) dwellings on Lot 1002, DP 1046728 located at the north west corner of Old Northern Road and Old Castle Hill Road, Castle Hill. 2 We visited the site accompanied by the parties on 5 October 2005. In this judgment we conclude that the application should be approved subject to the conditions in Annexure A to the Orders. The site 3 The site is on the northwest corner of Old Northern Road and Old Castle Hill Road, Castle Hill. It has an area of 8.6 hectares; however, the proposed development would occur within an area of 6 hectares. The land is vacant and has an average grade of 16%. Adjacent to the north are rural residential properties; to the east the Australian Catholic University and Oakhill College; to the west is an approved integrated housing development on a site owned and developed by Mirvac. Further to the northwest is the Castle Hill Heritage Park. The proposal and its history 4 The proposal comprises nine separate buildings, each with a basement and two habitable storeys and each containing eight units. Car parking is provided in double garages for each unit. One hundred and forty-four resident spaces and fourteen visitor spaces are proposed. Access to from the basement to the apartments is by lifts and stairwells. 5 Community facilities are proposed at the northern end of the site, in a two-storey building with indoor pool/spa on the lower level and dining, kitchen, sports and balcony/roof terrace on the upper level. A tennis court, BBQ area and garden area are proposed next to the community building. 6 Vehicular access is proposed off a new road to link with Old Northern Road at the site's northeast corner. The new road extends down the northern boundary of the land and has a central cul-de-sac branching off parallel to Old Northern Road. Six of the nine (9) residential buildings have driveways to the cul-de-sac. 7 The proposal is to be constructed in two stages and to be subdivided under a community title scheme. The applicant intends to further subdivide the community lots under Strata title; however there was not enough detail before the Court to grant development consent to the Strata subdivision. Stage 1 comprises Buildings 3 – 6 at the southern end of the land and includes the common road, common drainage, common recreation room/pool and tennis court and landscaping. Stage 2 comprises Buildings 1, 2, 7, 8 and 9 and driveways. 8 The land is unstable and has been the subject of various geotechnical studies since 1975. The applicant proposes to stabilise it by a method referred to as the "drainage" option (see below). 9 The applicant lodged the application in May 2003 and amended plans in July 2003. Following notification, the council received twelve submissions. In October 2003 the council refused the application under delegated authority. The applicant lodged the appeal in February 2004. Relevant planning controls 10 The proposal is permissible under State Environmental Planning Policy No 5 (SEPP5). Baulkham Hills Local Environmental Plan 1991 (BLEP1991) zones the site Rural 1(a). Under the Baulkham Hills Local Environmental Plan 2005, (BHLEP), gazetted on 26 August 2005, the land remains Rural 1(a). Development Control Plan No 12 - Parking (DCP12) now applies to the land in relation to car parking, although at the time of lodgement of the application DCP102, which also related to car parking, applied. The issues 11 The council submitted a Statement of issues containing ten issues. At the hearing on 6 February 2006 the council's advocate, Mr C Drury, re-defined the issues as follows: · Geotechnical constraints; · Heritage impact; · Non-compliance with the height standard; · Site gradients; · Non-compliance with cll 25(a), (c), (d) and (f) of SEPP 5, · Parking; · Measures against dust and noise during construction; · Issues raised by objectors. 12 At the hearing on 20 April 2006 Mr Drury indicated that the main issues were the geotechnical constraints and the impact on the Mirvac site to the west. He also mentioned that the applicant provided no certification that the amendments proposed in Condition 48A of the consent could be achieved. Geotechnical constraints 13 The site is unstable. The applicant's geo-technical consultants, Jeffery & Katauskas investigated two methods of stabilising the site, referred to by the geotechnical experts as the "dig-out" option and the "drainage" option. The council's expert was Ms F MacGregor. It was common ground among the experts that the "dig-out" option is superior; however, it was also common ground that the site can be suitably stabilised with either option. For reasons that have nothing to do with geotechnology (or common sense), the "dig-out" option is prohibited by BHLEP 1991. The applicant has no reasonable choice other than rely on the less favoured "drainage" option. 14 The joint report of the geotechnical experts deals with the "drainage" option as follows: As discussed above this option is also considered suitable for stabilisation of the site. It was noted by all experts that the option relies almost completely on maintaining low groundwater levels even through high daily and antecedent rainfall events. All experts agreed that it is a less favourable option because development will not be able to commence until it has been adequately confirmed that the drainage measures recommended are performing in accordance with the groundwater models. This will require additional monitoring and possibly and extended period of time in gaining an adequate degree of confidence. Also longer-term monitoring by the ultimate owners/community will be necessary. 15 Conditions 2, 8, 9, 12, 13 and 14 of this consent require that the site stabilisation works be carried out according to the guidelines set down by the joint experts. 16 Mr Drury submitted that the council would prefer the applicant to wait until the council amends the LEP and makes the "dig-out" option permissible. In our opinion, this is an unreasonable position. The applicant lodged the application in May 2003. A period of more than three years should have been sufficient for the council to change the definition of extractive industry in its LEP so as to permit the "dig-out" option to proceed. Heritage impact 17 The heritage impact relates to the nearby Heritage Park. The Court-appointed expert on planning issues, Ms D Laidlaw, did not consider that this was a valid issue. There was no other expert evidence on the matter before us. Non-compliance with the height standard 18 Non-compliance with the 8m height standard in cl 13(2) of SEPP 5 occurs in the southwest corners of some buildings. The applicant submitted an Objection under State Environmental Planning Policy 1 (SEPP 1) to the development standard on the basis that the site has a significant slope and non-compliance is minor and occurs in only a few locations. Ms Laidlaw considered the Objection well founded and the non-compliance to be justified. We accept her evidence. Site gradients 19 When the council first formulated this issue, the proposal did not fully comply with the grades required by cl 13A(2) of SEPP 5 (ie grades appropriate for manual wheelchair travel). Following amendment of the plans, Mr T Beardsmore, the council's access consultant, and Mr M Relf, the applicant's access consultant, agreed that the access complied and was acceptable. Mr Drury reformulated the issue, saying that, while the paths were now suitable for wheelchair travel, they were too far off the ground. 20 It seems to us that as long as the site, which is admittedly steep, is used for SEPP 5 housing, the pedestrian paths will inevitably be high above the ground in some locations. We do not consider this to be a reason for refusal. Non-compliance with cll 25(a), (c), (d) and (f) of SEPP 5 21 Our understanding of the council's position is that it contends that the proposal offends subclauses 25(a)(ii) and (vii) of SEPP 5. Subclause 25(a)(ii) requires proposals to harmonise with relevant heritage items, in this case with the Castle Hill Heritage Park. We dealt with this issue above. 22 Subclause 25(a)(vii) requires the front of buildings to be set back in sympathy with, but not necessarily the same as, the existing building line. There is no existing building line in Old Northern Road. The council contends nevertheless that Block 4 and the Community Building have insufficient setbacks from the road. Ms Laidlaw did not agree that this was a valid issue. We note that noise from the road is unlikely to disturb the calm of the residents in those buildings, partly because of the difference in levels between the road and the buildings, and partly because the Community Building has oriented the common rooms in a western direction. 23 Subclause 25(c) deals with solar access. The applicant supplied information on the number of hours of solar access to each living room. In Ms Laidlaw's opinion, solar access is acceptable. We accept her evidence. 24 Subclause 25(d) deals with stormwater. There was no expert evidence before us that the arrangements for stormwater were unsatisfactory. Subclause 25(f) deals with accessibility, which is a matter we dealt with above. Parking 25 It was common ground that the proposal complies with the requirements of cl 14(d) of SEPP 5. SEPP 5 identifies the parking standard as a standard that, when met, cannot be used as grounds for refusal. Measures against dust and noise during construction 26 A temporary 4m high acoustic wall is intended to protect the Mirvac development to the west while the site stabilisation works are carried out. We understand that the council's (and Mirvac's) concern is that there is no certainty how long the wall will remain in place. Condition 44(a) requires the wall to be removed within four weeks after the stabilisation works are complete. Issues raised by objectors 27 The Court heard the evidence of three objectors. Mr D Sommerlad, the chairman of the Castle Hill Historic Site Community Committee had two major concerns. The first was the loss of the vista towards the Blue Mountains from the whole of Old Northern Road. The second was the location of the pedestrian path through the site connecting the lookout at the corner of Old Northern Road and Old Castle Hill Road. This path is not in the location shown in the council's Heritage Park Plan of Management for the Castle Hill Heritage Park. 28 The revised proposal has increased the distances between buildings as well as lowered the buildings in relation to Old Northern Road. In Ms Laidlaw's opinion, much of the vista will be retained. It will diminish from its present state when the site is undeveloped; however, this is a necessary outcome of development. 29 The proposal provides a pedestrian link, though not where shown in the Plan of Management, which predated the proposal. It is not possible to provide the pathway where shown on the Plan of Management without drastically changing the proposal's layout. The Plan of Management's objective to have a pedestrian link is nevertheless met. 30 Mr B Hyland, who lives at 56 Castle Street, Castle Hills, supported Mr Sommerlad's position. He had some concerns with the details of the plans, which are more properly the concern of experts. 31 Mr G Smith, a planning consultant, appeared on behalf of Mirvac, the owner of the site adjoining to the west. While he had seven specific detailed concerns, his objection can be described as generally not having sufficient knowledge of the details of the proposal. We are satisfied that the plans of the application, together with the conditions of consent provide Mirvac with as much certainty as can be reasonably expected in the circumstances of two major developments side by side. Dispute about conditions 32 The parties were in dispute about several conditions. In Condition 30 the council proposed to restrict excavation works from 9am to 1pm. The applicant proposed 8am to 4pm. In our opinion this is reasonable and in line with the council's practice elsewhere. 33 In Condition 44(a) the council proposed that a temporary acoustic barrier be erected both on the western and southern boundaries. There is no requirement for a barrier on the southern boundary in the applicant's acoustic report. We have therefore deleted the requirement. 34 In Condition 76 the council required a pedestrian path between the lookout at the corner of Old northern Road and Old Castle Hill Road and the Castle Hill Heritage Park located where shown in the council's Heritage Park Plan of Management. We have commented on this issue under Objectors' concerns above and have deleted the condition. 35 In Condition 102 the council proposed to require the applicant to submit separate applications for the project's subdivision. The applicant provided a sketch for the Community title subdivision and none for the proposed Strata title subdivision. We have accepted that there is enough information before us to grant development consent to the Community title subdivision, though not for the Strata title subdivision. We not that the applicant intends to subdivide each Community lot into separate ownerships for each apartment under Strata title. We have therefore deleted Condition 102. Condition 125 requires a separate development application for future subdivision of the project under Strata title. 36 In Condition 103 the council proposed to require the applicant to construct a footpath along the Old Northern Road frontage of the site. The RTA proposes to widen Old Northern Road, though there is no date for the widening. Whenever the widening takes place, any constructed footpath would have to be demolished. Given that the applicant is constructing a footpath from the site entrance to the bus stop, and because a footpath along the site's boundary would be expensive to construct because of the slope of the land, we accept that the footpath to the bus stop is sufficient. We have therefore deleted the relevant sections of Condition 103. Conclusion 37 The Court-appointed consultant, Ms Laidlaw, said in her concluding evidence that in her opinion the proposal was acceptable subject to some amendments to the version of the plans prepared for the hearing on 6 February 2006. Those amendments related mainly to the location and treatment of the road next to the northern boundary. Condition 48A requires amendments that would meet her remaining concerns. On that basis we are satisfied that the proposal is acceptable and should be granted consent. The appeal is therefore upheld. Orders 1. The appeal is upheld. 2. Development application to erect housing for aged and disabled persons under State Environmental Planning Policy No 5, (SEPP 5), comprising seventy-two (72) dwellings on Lot 1002, DP 1046728 located at the north west corner of Old Northern Road and Old Castle Hill Road, Castle Hill is determined by the grant of consent subject to the conditions in Annexure A. 3. The exhibits are returned except Exhibits M and P. ________________________ ________________________ Dr J Roseth S J Watts Commissioners of the Court 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.