Land and Environment Court of New South Wales CITATION : PBS Homes (ACT) Pty Limited (ACN 128 913 968) v Palerang Council [2009] NSWLEC 1175 APPLICANT PBS Homes (ACT) Pty Limited (ACN 128 913 968) PARTIES : RESPONDENT Palerang Council FILE NUMBER(S) : 11331 of 2008 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Multi - unit housing - compatibility with character of area, overdevelopment, distance to facilities. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Yarrowlumla Local Environmental Plan 2002 CASES CITED: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472 DATES OF HEARING: 11 May 2009 DATE OF JUDGMENT: 5 June 2009 APPLICANT Mr A Perkins (Solicitor) SOLICITOR Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENT Mr A Bradbury (Solicitor) SOLICITOR Minter Ellison JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 5 June 2009 11331 of 2008 PBS Homes (ACT) Pty Limited (ACN 128 913 968) v Palerang Council JUDGMENT Background. 1 This appeal is against the refusal of a development application for the demolition of an existing dwelling and the construction of a multi-unit development comprising 10 dwellings at 108 Molonglo Street, Bungendore. 2 The main issues identified for the appeal concern: o Whether the development is consistent with the objectives of the LEP and DCP. o Overdevelopment of the site, o Compatibility with the character of the area. o Suitability of the site for the development relative to its distance to the town centre facilities. o Consistency with the Water Management Plan and servicing requirements. The site 3 The site is described as Lot 3 DP 800153. It has a road frontage of 31.8m and a total area of 6020sq m. The topography is relatively flat, with a slight fall from the rear of the property to the street frontage. 4 There are a number of mature trees on the site including evergreens along the frontage, cypress pine trees along the front and side boundaries and other deciduous trees further within the site. 5 The site is located approximately 1.2km from the village centre. Seven sites adjoin the site to the south. These are oriented north-south facing onto King Street and have existing dwellings erected thereon. 6 Two lots adjoin the site to the north. They are oriented east-west, front onto Molonglo Street and have existing dwellings erected thereon. The proposal 7 This proposal involves the demolition of the existing dwelling on the land and the subsequent construction of the 10 units comprising: 1x4 bedrooms, 4x3 bedrooms, 4x2 bedrooms + study, 1x1 bedrooms. All units are single storey, except the front unit (Unit 1). 8 Access to the new dwellings is via a shared driveway of 4-6m variable width, which connects onto Molonglo Street on the northern side of Unit 1 and then is re-aligned to follow the southern boundary of the property. In this location, it provides for a general side boundary setback in the order of 1-2m. 9 The internal drainage for the development includes the construction of an infiltration trench (600mm wide x 1200mm deep), with an alignment indicated at a 4m minimum clearance, from the rear of the new dwellings. It is also proposed to construct an OSD/OSR tank, but the final location and detailing is not shown. Planning controls 10 Yarrowlumla Local Environmental Plan 2002 (YLEP). Under this YLEP, the site is within the Zone No 2(v) (Village Zone). Whilst the development is not a land use specifically identified in the LEP, it is permissible with consent pursuant to cl 11(2), subject to it being consistent with the objectives of the plan and the zone. 11 The relevant objectives of the plan are those stated for urban land, as follows: (i) to ensure that urban land is developed in accordance with the principles of ecologically sustainable development. (ii) to encourage commercial, retail and professional services in established urban locations; (iii) to provide flexibility in residential living styles and increased urban amenity for residents; (iv) to protect and conserve places of natural, historic and cultural significance ;… 12 The associated objectives for the Zone No 2(v) are: (i) to set aside areas in which a range of residential accommodation and urban facilities can be provided for the rural community; (ii) to recognise the natural and physical features of each village and to prevent development in unsuitable areas, such as flood-prone land; and (iii) to control village development so as to achieve the most efficient use of existing utility services ( such as water supply and sewerage services), roads and streets. 13 Clause 21 contains the controls for subdivision of land and clause 22(1) contains the development standards restricting lots to a minimum allotment size of 450sq m in the sewered areas. 14 Clause 36 requires consent before there is any specified interference with trees and native vegetation and clause 38 lists a number of matters that must be considered in relation to the impact on vegetation. 15 Yarrowlumla Development Control Plan – 2(v) Village Zone (DCP) 2005. The proposed development is characterised as 'multi-unit housing' and 'town houses' for the purposes of the DCP. This DCP was amended in December 2008 and formally adopted in May 2009. However council resolved that any development applications already lodged would continue to be assessed against the unamended DCP- 2005 version. 16 The subject land is within Precinct 2, which comprises the existing residential areas of the villages. Clause 6.2 of the DCP states the following objectives for this precinct: (i) to preserve and enhance the residential amenity and character of the precinct; (ii) to provide for a range of housing types; (iii ) to permit other uses than residential uses only where such uses are compatible with and incidental to the residential use;… 17 Section 8.2 of the DCP imposes controls in relation to multi-unit housing development with the aim of 'achieving development having an attractive and varied appearance', and to ensure that an appropriate standard of amenity and environment is maintained for the occupants of individual buildings and those adjacent. Accordingly, it allows for: (i) one small dwelling unit (one bedroom) per 250 sqm lot area; (ii) one medium dwelling unit (two bedroom) per 350sqm lot area; (iii) one large dwelling unit (three or more bedrooms) per 450sqm lot area. The evidence 18 Detailed evidence in this matter was presented by: o Ms S Francis; Consulting planner for council; o Mr N Pelle; Architect/urban designer for applicant; o Mr K Davies; Development engineer with council; o Mr B Cusack; Consulting engineer for applicant. 19 The threshold issue in this case concerns the suitability of this site to accommodate the scale and density of the proposed development and achieve an acceptable environmental outcome, which is consistent with the LEP and DCP objectives. The other issues concerning servicing were considered by the engineers and it was agreed that these matters, including the control of stormwater run-off could be covered by conditions of consent. 20 The evidence presented for the determination of this threshold issue was focussed on the Precinct 2 objectives "to preserve and enhance the residential amenity and character of the precinct". It is apparent from the controls that they allow and encourage flexibility in residential living styles, such as town houses, on the basis of maintaining and enhancing urban amenity for residents. Consequently, Mr Pelle supports the proposal because of the variety of housing designs that will provide additional choice for future residents. 21 However, Ms Francis disagrees, mainly on the basis that the proposal represents an over-development of the site by proposing an excessive number of units, with limited separation, that compromises the private open space areas, compared to the current amenity experienced by residents in this area. She says that this scale of development would also necessitate the substantial removal of most of the mature vegetation on the site reducing the visual amenity and therefore it does not adequately satisfy the aforementioned objectives, regarding improved and enhanced amenity. 22 Insofar as the controls envisage some change in the form of new development, including increased density, nevertheless reasonable compliance with the qualitative controls is also required. In order to address this concern, the planners undertook an assessment of the locality in order to determine what features of the precinct should be given particular consideration so as to reasonably satisfy the objectives. 23 Firstly, the planners assessed the existing subdivision pattern of the area, which includes a diversity of allotment sizes and agreed that the road system primarily adopts a grid system. From this, Ms Francis says that there is a consistency of smaller lot sizes closer to the village centre, with the lots being generally larger with further distance from the centre. She says this lot pattern has probably evolved as a function of servicing, where the larger previously un-serviced lots were located towards the southern end of the village, i.e. where the subject lot is located some 1.2km from the village centre. 24 More specific consideration was then given to the subject 'block' bounded by King, Ellenden and Forster Streets, as shown in Figure 3. 25 The lots within this block have an average area of 1700sqm (excluding the 2 multi-unit developments). Accordingly, the planners agree that the lot orientation within this block can be mainly classified as 'traditional' where the dwellings are characteristically located towards the front of their lot, regardless of the lot size. This leaves relatively large open areas in the rear yards. 26 They acknowledge however the unique building siting within the subject block due to the 2 more recent medium density developments. In these cases, the buildings are generally located towards the side boundaries, so as to form a 'carriageway' type of development, which presents internally to the individual site rather than the street address. 27 The other characteristic elements of this part of the precinct identified, include: o Streetscape; within the diversity of development of the subject block, there is a landscaped frontage street presentation including significant trees; o Landscape quality; this is generally characterised by flat undulating pastures, with private garden plantings presented to the street and large native trees present in the generally expansive rear yards of properties; o Building character and scale; there is a diversity of building types, with the form found in the immediate vicinity comprising individual cottages with some historical value based on the Australian Vernacular, later examples of 'suburbia dwellings", large colorbond sheds located within the backyards and some industrial/retail sheds. 28 From this, the planners described the residential character of the village as predominantly one of single dwelling houses on large lots, which are generally larger the further the distance from the centre of town. The subject lot is located a relatively large distance from the centre, within the aforementioned "block" that comprises mainly other traditional larger lots. 29 However the planners disagree about the desired future character of the area. Ms Francis does not consider that this area within Precint 2 is to ultimately contain a series of multi-unit dwellings, resulting in a significant character change. Instead, she says that some guidance is provided in the recent DCP adopted by council in May 2009. It establishes that the preferred location for multi-unit housing to be in the designated Bungendore North area and within 400m walking distance of the town centre. Consequently, it is unlikely that new multi – unit housing of the form proposed will occur in the vicinity of the subject property because of its 1.2km distance to the town centre and the predominantly lower density development is likely to remain of the periphery of the village. 30 Against this, Mr Pelle says that the desired future character is derived from the provisions of the July 2005 DCP, which is the prevailing control. It allows the location for multi-unit housing in Precinct 2 without any distance criteria to the centre. Therefore, as the subject property complies with the locational criteria and is near 2 other similar forms of housing, it satisfies the designated future character of this area. Discussion of evidence 31 It is apparent from the evidence that the LEP allows appropriate multi-unit developments in the subject area. DCP-2005 then contains the prevailing development controls and it allows various forms of residential development, which achieve the outcome of preserving and enhancing the residential amenity and character of the precinct. 32 In this regard, I note that whilst the development controls have been amended by way of the recent adoption of the Village Zone DCP in May 2009, nevertheless the subject site is still located within the Precinct 2. The main difference relative to the subject proposal is that it would now not be permitted because it is approximately 1.2km from the town, which exceeds the 400m walking limit. Whilst I am aware that the detailed controls in this DCP are not the prevailing controls, nevertheless I consider it appropriate to note the qualitative objectives, which gives an indication of the location of future development anticipated in this area. 33 More importantly however, I have considered the varying evidence concerning the character of the area. From my observations at the view, I am satisfied the subject land being approximately 1.2km from the centre is situated towards the outer part of the village area. As such the lot sizes area generally larger (average1700sq m) than those in closer proximity to the town centre. Consequently the houses on these lots are predominantly located towards the front of these larger, well-vegetated lots. This results in a level of amenity, which encompasses relatively large private open space areas at the rear of these properties, that provides an outlook that is includes a large proportion of natural vegetation. 34 It seems to me that the proposal will make a significant change to this predominant existing character, notwithstanding the existence of the 2 nearby recent multi-unit developments. Whilst the front dwelling appears to be generally consistent with the streetscape character, the access way to the rear 9 lots is via the common drive located approximately 1-2m off the common boundary with neighbouring 7 lots. 35 As there is a significant stand of mature cypress pines along the southern boundary, their removal will be required to enable construction and maintenance of the driveway and future passage and turning of vehicles. In this regard, I accept Ms Francis's opinion that the loss of these trees will cause a negative outcome in terms of vegetative character and visual amenity of the immediate area. I do not consider the minimal boundary setback of 1-2m allows for suitable compensatory replanting, considering the root zone for trees of this general height. 36 Furthermore, I accept that the removal of these trees and construction of the driveway, allowing a considerable increase in traffic and pedestrian movements will most likely result in a reduced level of privacy, loss of outlook to natural features and other amenity for the neighbouring residents. 37 A similar situation exists along the northern boundary where the row of mature cypress will also require removal to accommodate the number of units proposed and provide them with a reasonable level of separation from the tree canopy and solar access. It seems to me that the wholesale removal of these trees also contributes to a reduction in the visual amenity of this area. Considering the intensity of the proposed development, the proposed private open space, whilst complying with the minimum requirements nevertheless does not allow sufficient space for any substantial large vegetation replacement, which is an obvious feature of this part of the precinct. 38 In my assessment, the proposal does not demonstrate reasonable compliance with the zone objectives. Whilst I accept that multi-unit housing is allowed on the site by the prevailing LEP and DCP, this is on the basis that the development recognises the natural and physical features of each village so as to prevent unsuitable developments. It is apparent to me that the mature cypress trees along the common boundaries of the surrounding properties are a significant feature of this particular part of the precinct. Insofar as there was no evidence to the effect that these trees are a nuisance or have little value, I consider a reasonable case should be made for their removal, where it is likely that a significantly different visual character is to be created. 39 Further weight is given to this proposition as cl 16 of the LEP requires consideration to be given to the vegetative cover Then cl 36 requires specific consideration for tree removal. Also, cl 38 (c) requires consideration of the contribution of the tree to the local landscape or streetscape. 40 For my assessment of this application, I have considered the particular vegetation on and in the immediate vicinity of the site, resulting in my conclusion that the removal of most of these feature trees indicates an overdevelopment of the site. It seems to me that that a multi-unit development with fewer dwellings could retain some of these feature trees and maintain a more vegetative environment, rather than replace it with a much more obvious built form, "carriage-way type" of development. Consequently, I do not consider it preserves or enhances the amenity and character of the precinct and this therefore contributes to the failure of this application. 41 This is irrespective of what occurred on the other multi-unit developments, which I do not consider are a benchmark for the desired future character of this part of the precinct. Instead, I have considered the merits of this application in the context of the surrounding area and on the basis of the clause 8.2 provisions, which require multi-unit developments to have an attractive and varied appearance to ensure that both internal and external amenity and environment is maintained. 42 I note that some submissions were made regarding the subdivision controls, which prescribe minimum lot sizes to achieve consistency with the character of the area having regard to existing density, landscape and nearby development. Whilst it allows a minimum lot size of 450sq m, to which the proposal complies, nevertheless I do not consider it necessary to deal in detail with these submissions because this application does not propose subdivision. 43 Another relevant issue concerns the sites suitability due to its 1.2km distance to the village centre. Whilst the proposal substantially complies with the DCP cl 8 parameters, the planners also considered the effects of this separation distance, in terms of multi-unit housing expectations. Ms Francis says that a general planning principle is to encourage the higher density development closer to the centre of town. 44 In the absence of any specific distance controls in the 2005 DCP, I accept the aforementioned planning approach is a realistic consideration for this particular issue. Accordingly, I note that Ms Francis says this form of development likely addresses the housing expectations of a range of people in the community. This includes older persons, couples and families who require access the centre and other services, such as the school. As there is no satisfactory footpath system over this distance to the town centre, it is an undesirable aspect of the proposal. 45 Whilst I accept that the development may appeal to other people, nevertheless I consider that a desirable planning outcome is to locate multi-unit housing in convenient and accessible proximity to established services. In this regard I have considered Ms Francis reference to the DIPNA document "Planning guidelines for walking and cycling". It states: 4.3 Walking and cycling catchments Creation of accessible centres can be assisted by mapping walking or ped sheds. Walking catchment maps show the difference between potential and actual walkability. Potential walkability is defined by a circle of radius 400m or 5 minutes walk around a centre, and 800m or 10 minutes walk around a centre that includes a public transport stop. 46 In the circumstances of this case, I am persuaded to accept the opinion of Ms Francis that the 1.2km separation distance, without a reasonable standard of footpath system does not satisfy section 4.3 and it is a negative aspect of the proposal. Conclusion 47 Having considered the evidence, the submissions and undertaken a view I do not consider this application merits consent. I accept that the prevailing controls, including those in DCP –June 2005 allow suitable multi-unit developments on the subject site. However such development should also demonstrate reasonable compliance with the qualitative controls so as to preserve and enhance the residential amenity and character of the precinct. 48 Insofar as reference was made to the matter of Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289, regarding the weight to be given to draft planning instruments, I have given determining weight to the provisions of DCP – 2005. Also reference was made to Stockland Developments Pty Ltd v Manly Council [2004] NSWLEC 472, regarding the weight to be given to detailed council policies. Again this was in regard to the weight, if any to be given to the more recent DCP's. But as I have stated determining weight is given to the prevailing DCP – 2005. 49 As the proposal then is for a density of 10 dwellings, this requires the substantial removal of most of the mature vegetation of the site. Whilst this alone creates a negative impact on the visual character, the number of dwellings also severely restricts opportunities for suitable replacement planting. It seems to me that an appropriate multi-unit development would have due regard for the existing vegetation and accordingly integrate an appropriate level of new dwellings, rather than relying on the maximum numeric unit yield. 50 In the circumstances, it would seem reasonable and appropriate to me that any new development recognises the vegetated character, which provides some screening of the dwellings of the immediate area, and endeavour to maintain some mature trees or provide suitable areas for some suitable large tree replacement. I do not consider this application achieves this environmental outcome. 51 A further character component of this part of the precinct is that residents are able to experience an outlook mainly onto vegetation and screened dwellings. However this application seems to unreasonably emphasise built form over natural form, which I do not consider adequately satisfies the controls and objectives. 52 In the circumstances it is possible that taking into account the relatively narrow width of the lot, then fewer new dwellings would achieve a more appropriate relationship between built and natural form. In reaching this conclusion, I consider the visual assessment should be considered from both within the surrounding residential properties, as well as from the street. 53 The proposed development with its shared drive way, practically adjacent to the common boundary fence with the at least 5 of the neighbouring properties does not maintain or enhance the established privacy and outlook amenity relationship between these properties. As I have stated, a reduced number of dwellings may allow for some variation in the driveway alignment to enable planting of some larger species along the side boundaries, whilst not compromising the turning areas into the garages. 54 On balance, whilst such form of development as proposed can provide positive community benefits, I am not satisfied that the density of this development is not suitable for this site. Whilst it substantially satisfies the numeric controls, nevertheless I note that these controls across the entire Precinct 2 area. It therefore seems to me that a more detailed assessment of the environmental constraints and capacity of each lot needs to be individually assessed. This approach is likely to result in some lots not achieving the maximum allowable density. 55 From the evidence, I consider the narrow lot width, the vegetated character and separation distance to the village centre are such that this proposal does not adequately satisfy the controls to maintain and enhance the character and amenity of the area or to achieve an attractive and varied appearance. As such, I do not consider it satisfies the consistency tests in the LEP and DCP. 56 In reaching this conclusion, I give little weight to the other nearby developments because their specific circumstances were not dealt with and I do not consider they should be taken as some sort of benchmark, considering that the current DCP seeks to avoid this form of development at such separation distance from the village centre. Instead, I have considered the merits of the subject application and consider it should be refused. Court orders 57 The Court orders: 1 The appeal is dismissed. 2 Development consent for DA 2007.0465 for the demolition of the existing dwelling and development of 10 multi-units at 108 Molonglo Street, Bungendore is refused. 3 The exhibits may be returned except for 1, 5 and A. _______________________ R Hussey Commissioner of the Court ljr Attachment 1 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.