CB Richard Ellis (V) Pty Ltd trading ass CBRE Town Planning v Palerang Council [2009] NSWLEC 1450

Land and Environment Court of New South Wales

CITATION : CB Richard Ellis (V) Pty Ltd trading ass CBRE Town Planning v Palerang Council [2009] NSWLEC 1450

APPLICANT CB Richard Ellis (V) Pty Ltd trading ass CBRE Town Planning PARTIES : RESPONDENT Palerang Council

FILE NUMBER(S) : 10684 of 2009

CORAM: Murrell C

KEY ISSUES: APPEAL :- S.96 Modification application for 5 lot subdivision, whether use of right of carriageway will have an adverse impact on adjoining propeties.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Yarrowlumla Local Environmental Plan 2002

DATES OF HEARING: 18 December 2009

EX TEMPORE JUDGMENT DATE : 18 December 2009

APPLICANT Mr T To (solicitor) SOLICITOR Tetlow Tigwell Watch, Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr A Bradbury (solicitor) SOLICITOR Williams Love & Nicol

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C

18 December 2009

10684 of 2009 CB Richard Ellis (V) Pty Ltd t/as CBRE Town Planning v Palerang Council

JUDGMENT 1 The applicant in these proceedings is seeking to modify a development consent granted by the respondent, Palerang Council, on the 7th May 2009. The consent is for the subdivision of some 40 hectares of land Macs Reef Road, Bywong into five lots. 2 The subject site is known as No. 786 Max Reef Road, Bywong and is located on the northern side of Max Reef Road west of Bankers Road. The proposed five lot subdivision of the subject land being lot 51 DP 700408 is shown at Figure 1, the site has an area of 40 ha and the lots range between 2.5 ha to 16 ha. Figure 2 the aerial photograph shows the subject site in relationship to Hideaway Place. 3 The matter was set down for an On-site Hearing and prior to this the parties advised that they were seeking consent orders. That is, the Council no longer contested the matter. 4 The Court however must be satisfied that the matter is one that should be approved despite the parties agreement to enter into consent orders. On the site I heard from a number of resident objectors and had the opportunity of inspecting their properties in relationship to the proposed access way for the subdivision. 5 The subject site is zoned Rural Residential 1(d) under the Yarrowlumla Local Environmental Plan 2002. Clause 17 allows subdivision with consent and cl 11(2) requires development to be consistent the objectives of the plan and the zone. Zone No 1 (d) (Rural Residential Zone) The objectives of this zone are as follows: (a) to provide the opportunity for development of integrated rural residential communities, (b) to promote an innovative and flexible approach to rural residential development, (c) to ensure that development is compatible with the environmental capabilities of the land and to encourage the conservation and enhancement of natural resources by means of appropriate land management techniques, (d) to assist in meeting the demand for rural residential development where it is consistent with the conservation of rural, agricultural, heritage and natural landscape qualities, (e) to ensure that attractive views from main roads and other vantage points are protected and enhanced, (f) to ensure that adequate provision has been made for water supply and disposal of effluent, (g) to ensure that development does not create unreasonable demands, now or in the future, for the provision or extension of public amenities or services, (h) to ensure that traffic-generating development is suitably located so as not to adversely affect the safety and efficiency of roads, (i) to ensure that development will not lead to excessive soil erosion or run-off, (j) to ensure that the form, siting and colours of buildings, building materials and landscaping complement the natural scenic quality of land within this zone, (k) to ensure that any effect development will have on threatened plant and animal species or regionally significant grassland and grassy woodland communities is taken into account, (l) to ensure that sites of Aboriginal archaeological significance in the zone are identified and protected. 6 The subject land has access from Macs Reef Road along the southern boundary and access from a right of carriageway at the end of Hideaway Place. The applicant seeks a modification that, amongst other things, would allow access to proposed lots 4 and 5 to use the easement for right of way rather than the consent that requires access to all lots from Macs Reef Road. The applicant states that access only to Macs Reef Road would require significant engineering works including crossing a creek at a higher cost and with greater environmental impacts requiring a significant cut in the land of 7 metres and clearing of vegetation for the cul-de-sac with a 15 metre radius.The conditions sought to be modified are those numbered 4, 6, 10, 14, 15, 16, 17 18, 19, 20, 21, 23, 24, 30, 31, 34, 40 and 41. 7 The applicant's Statement of Facts and Contentions states the applicant is seeking the following changes to the conditions. Condition 4 (a) The modification deletes the requirement for evidence that all conditions of consent have to be complied with prior to an application being made for a subdivision certificate. (b) The reason for the modification is that condition 9 of the consent expressly requires such evidence to be provided prior to release of subdivision linens, ie. it permits compliance to be secured after application being made for a subdivision certificate. (c) The applicant notes that condition 39 is in the same terms as condition 4. The same modification is sought. Condition 6. (a) The modification deletes the requirement for a restriction on user to be created that prevents its future development for dual occupancy or other form of multiple occupancy. (b) The reason for the modification is that the condition: (i) seeks to fetter the future planning discretion of the respondent in relation to dual occupancy and/or multiple occupancy development, which is permissible development in the zone; and (ii) does not fairly and reasonably relate to the development approved by the consent (subdivision); and (iii) is unreasonable. 8 Condition 10. (a) The modification deletes a requirement for creation of landscaping buffers on the eastern side of the nominated building envelopes of Lots 3-5. (b) The reason for the modification is that the condition does not fairly and reasonably relate to the development approved by the consent (subdivision). Further consent will be required if and when new building within the nominated building envelopes is proposed. Assessment of landscaping requirements is only appropriate at that future time. 9 Conditions 14-19, 21, 31, 34 and 41. (a) This condition, in conjunction with conditions 15-19, 21, 31, 34 and 41 impose a substantially different regime for access to the subdivided lots than proposed by the consent. (b) Proposed Lots 1-3 have a frontage to Macs Reef Road. Lots 4 and 5 have a frontage to Hideaway Place. Hideaway Place is presently a private road, subject to a registered right of carriageway in favour of the subject land. (c) The applicant proposed in the development application that Lots 1-3 continue to be accessed off Macs Reef Road, and that Lots 4-5 be accessed via Hideaway Place, through the registered right of carriageway. (d) The access regime imposed under the consent requires access to Lots 4 and 5 to occur indirectly from Mac's Reef Road. The conditions contemplate that such access will be achieved by: (i) Construction of a new public road, cul-de-sac and a new private road across Lots 3, 4 and 5. The public road is to be 6.5m width for approx. 250 metres and the private road 3m width for over 300 metres. (ii) Construction of a high level crossing over Donnelly Creek which is generally situated within Lot 3. Such a crossing requires further approvals from RFS, DWE and DPI. (iii) Creation of a registered right of carriageway over Lot 4 in favour of Lot 5 for the private road. (iv) Consequential upgrading of the entrance to Lot 3 at Macs Reef Road to cater for access to 3 lots instead of 1. (v) Requirements for road naming and security bonding for the public road. (e) The modification seeks to restore the access regime to that proposed in the development application, that is, for access to Lots 4-5 from Hideaway Place. This will be proposed by amendment of condition 14, and deletion of conditions 15-19, 21, 31, 34 and 41. (f) The reasons for the modification are: (i) Access to Lots 4-5 via Hideaway Place creates less environmental impact from new roads, in terms of the extent of road required and avoiding the need to build across the riparian zone (Donnelly's Creek). (ii) Access to Hideaway Place was contemplated when the respondent granted consent to the community plan development adjacent to Lots 4 and 5, through the requirement for the registered right of carriageway in favour of the subject land. (iii) The conditions do not fairly and reasonably relate to the development and are unreasonable in the circumstances. Condition 20 (a) The condition requires the applicant to provide a bus bay and bus turning bay within the road reserve of Macs Reef Road. (b) The reason for the modification is that the condition does not fairly and reasonably relate to the development approved by the consent (subdivision), is not required as a consequence of the subdivision, and is unreasonable in the circumstances. Condition 23. (a) The condition specifies standards for intra-lot and inter-allotment fencing. (b) The reason for the modification is to clarify that the standards apply to new, but not existing inter-allotment fencing. The existing fencing is in good condition and of a higher standard than the standard specified in the condition. Condition 24. (a) This condition requires fencing along road reserves. (b) The reason for the modification is to clarify that existing fencing may be retained. Condition 30. (a) This condition requires application to be made for closure of a paper Crown road with the subject land. (b) The reason for the modification is to clarify that the applicant's obligation is to make an application for closure which, in conjunction with condition 9, is required to occur before release of subdivision linens. As drafted the condition is susceptible of being read as requiring the closure of the public road occur before release of subdivision linens. Such a requirement would be outside of the applicant's control (depending on the time taken by the Department of Lands) and is not fairly and reasonably required. Condition 40. (a) This condition requires creation of a restriction as to user, preventing access from the subject lands to the Federal Highway. (b) The reason for the modification is that such a restriction already exists in DP 700408 and the condition is redundant and thereby unreasonable. 8 The Court met the parties and resident objectors on site and heard the residents concerns. The applicant seeks that proposed lots 4 and 5 in the subdivision gain access via a right of carriageway at the end of the cul-de-sac known as Hideaway Place between lots 3 and 4 in DP 270429. 9 The owners of lot 3 in Hideaway Place, expressed concern about the access road and its proximity to their recently constructed dwelling house. They are also concerned about the pollutants from passing traffic, in particular that may affect their drinking water and the drainage from the road surface of the right of carriageway onto their property. They also expressed concern to the Court that the right of carriageway was to a single property and the subdivision with the possibility of dual occupancy development on each lot would generate additional traffic and the impacts of this on their privacy and amenity of their residential property would be impacted including headlights from vehicles using the right of carriageway. 10 The owner of lot 4 in Hideaway Place expressed concern about the existing condition No. 10 for the subdivision approval requiring consultation for the landscaping. They are of the opinion that a 5 metre wide buffer of landscaping of local indigenous species would be required for the length of the access way that adjoins his property. They are also concerned about the construction of the type of private road and the location within the easement and the cost maintenance of the road and the public liability insurance. They also expressed concern about the fact that dual occupancy development could occur on all the lots once subdivided. 11 The owner of lot 6, Hideaway Place informed the Court that the subdivision of Hideaway Place was a community title development that requires the land owners of the lots to be bound by the community title rules, in particular, the protection of certain land the subject of the community lot. She expressed concern that the same principle should apply to the subdivision of the subject land. She also questioned the proposed access in terms of the right of carriageway and is of the opinion it would have an adverse environmental impact. 12 The owner of lot 7, Hideaway Place referred the Court to the terms of the right of way and the fact that the owners of the subject site only have the right to pass and re-pass. She also expressed concern that there should be a condition preventing the individual lots being developed for dual occupancy. 13 The Court also has the benefit of council's bundle of documents that includes the resident objections made in response to notification of.this s96 modification application 14 The owners of the properties in the Hideaway Place community title development prepared a submission in response to the consent orders prior to the hearing and their comments on the conditions proposed by the Council in the consent orders are as follows: Sutton Hideaway Community Association comments on proposed conditions of the consent orders dated 16 December 2009… Members of the Sutton Hideaway Community Association, being joint owners of the land (Lot 1) over which the right of carriageway exists, maintain their opposition to the upgrading and use of the right of carriageway for residential access to the proposed Lots 4 and 5. While maintaining our opposition, Community Association members consider that the following changes and additions to the proposed conditions of the consent orders should be made if the Land and Environment Court rules in favor of the applicant.