> Land and Environment Court of New South Wales CITATION : FEV Mono Pty Limited & Kenna Real Estate Pty Limited v Penrith City Council [2003] NSWLEC 184 APPLICANTS: FEV Mono Pty Limited & Kenna Real Estate Pty Limited PARTIES : RESPONDENT: Penrith City Council FILE NUMBER(S) : 10120 of 2003 CORAM: Lloyd J KEY ISSUES: Development Application :- subdivision - merits LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C(1) and s 97 Penrith Local Environmental Plan No. 96 cl 2 and cl 15 CASES CITED: DATES OF HEARING: 14/07/2003 EX TEMPORE JUDGMENT DATE : 07/14/2003 APPLICANT: Mr A E Galasso (barrister) SOLICITORS: Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT: Mr A M Pickles (barrister) SOLICITORS: Marsdens Law Group JUDGMENT: - 4 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10120 of 2003 Lloyd J 14 July 2003 FEV MONO PTY LIMITED & KENNA REAL ESTATE PTY LIMITED Applicants v PENRITH CITY COUNCIL Respondent EXTEMPORE JUDGMENT HIS HONOUR: 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") in relation to a proposed residential subdivision of lot 1 in deposited plan 27233 at Nos. 104-110 Gipps Street, Claremont Meadows. The subject land has an area of I understand a little over three hectares. It is proposed to create from the land fifteen lots plus a residue lot. 2 As a result of conferences between experts, only two issues remain. They might be described as firstly, the requirement both under the EP&A Act and the relevant local environmental plan, namely Penrith Local Environmental Plan No. 96 gazetted on 3 February 1984 ("the LEP"), of a subdivision pattern which leads to the orderly and economic development of land. The second issue is an acoustic issue arising from a requirement of cl 15 of the LEP. 3 The subject land is within Zone 2D (Residential 2(d)) of the LEP. The proposed subdivision for residential purposes is permissible with consent under cll 9 and 10 of the LEP. The LEP has a number of aims and objectives and in particular the following in cl 2 of that instrument: "(a) to make further provision for the orderly and economic development of the land to which this plan applies for residential purposes". This objective gives rise to the first issue. 4 The proposed subdivision has been prepared in accordance with a road layout in the council's current development control plan for subdivision. It provides for an access road easterly off Gipps Street and opposite Sunflower Drive. The access road then at some point turns south and then returns in a westerly direction. 5 On 23 June 2003, three weeks before this appeal came in for hearing, the council adopted what might be described as key design principles for the area to be developed, following the discovery on the land and on the adjoining land of an ecological community known as Cumberland Plain Woodland. This discovery had the effect that the council decided to re-assess its planning for the area. 6 In adopting the key design principles the council did not rescind or withdraw the current development control plan, with which the proposed subdivision conforms. It is said that because the current development control plan does not reflect the latest key design principles, the subdivision layout would not conform with proposed changes to the development control plan that the council now has in mind. 7 The subdivision layout as proposed does not appear to conflict with the newly adopted key design principles. It would still allow development of the adjoining land to the south of the subject site in conformity with the council's revised planning for the area. That is to say, the council's new planning for the area would not be prejudiced if the present proposed subdivision were to proceed. In my opinion the development ought to not be refused on that basis. Moreover, as already noted, it also conforms with the present development control plan. 8 Under s 79C(1) of the EP&A Act the consent authority is required to take into account all relevant and environmental planning instruments, draft planning instruments and any development control plan. The section does not require the consent authority to take into account any draft development control plan. In any event, the council has not yet adopted any revised draft development control. The first issue is thus resolved in favour of the applicant. 9 The second issue raises for consideration cl 15 of the LEP, which is as follows: 15 (1) This clause applies to land within Zone No. 2(d) in the vicinity of The Great Western Highway, the Western Freeway and Gipps street. (2) A person shall not - (a) subdivide land to which this clause applies; or (b) erect a dwelling on land to which this clause applies, unless- (c) the L10 (18 hour) traffic noise level when measured at any point on the external facade of any habitable room contained an any dwelling erected or at the position where the external façade of any habitable room contained in any dwelling proposed to be erected would be erected on the land is less than 60dB(A); and (d) where the L10 (18 hour) traffic noise level when measured at any point on the external façade of any habitable room contained in any dwelling erected or proposed to be erected on the land exceeds 50dB(A) - (i) that room is so designed as to ensure interior noise levels satisfactory to the council; or (ii) other measures satisfactory to the council have been taken to reduce noise levels to less than 60dB(A). (3) For the purposes of this clause, "habitable rooms" means bedrooms, living rooms and the like, but does not include bathrooms, kitchens, laundries, hallways and the like. 10 It can be seen that cl 15 of the LEP requires a noise measurement to be made from the external facade of any habitable room contained within the development. The difficulty, and it is a self evident one, is that one does not know at this stage what form the buildings will take when they are ultimately constructed on the subdivided lots. As was pointed out during submissions, the built form of any building may be such as to not require any acoustical barrier at all: it will depend entirely on the design of the buildings. 11 This does not mean that cl 15 will never have any work to do. When the built form of any building is known it may be possible to apply cl 15 to it at that stage, but I do not see it as necessary to require an acoustical barrier at this stage where none may be required in any event. 12 Accordingly both issues are decided in favour of the applicant. It follows that the development consent may be granted and the appeal allowed subject to the conditions set out in exhibit 5 (the draft conditions of consent) as amended during the hearing, but with the deletion of condition 9 relating to the provision of an acoustical barrier. 13 The formal orders will be issued once the final set of draft conditions is supplied. The exhibits other than exhibits A, D and 1, 5 and 8 may be returned. I thank the parties for the expeditious way in which the case has been conducted and I thank the experts for their co-operation in narrowing the issues. I hereby certify that the preceding 13 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd. Associate Dated: 14 July 2003 ********** 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.