Land and Environment Court of New South Wales CITATION : Zanbell Pty Ltd v Blue Mountains City Council [2007] NSWLEC 260 APPLICANT Zanbell Pty Ltd PARTIES : RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 10899 of 2006 CORAM: Murrell C KEY ISSUES: Development Application :- s. 97 appeal deemed refusal, subdivision of the 4 lots into 15 lots, streetscape, impact on natural environment and adjoining uses, headlight glare, stormwater and flooding, adequacy of reports, probity. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Blue Mountains Local Environmental Plan 2005 DATES OF HEARING: 07/02/2007, 01/03/2007 and 13/04/07 EX TEMPORE JUDGMENT DATE : 13 April 2007 APPLICANT Mr A. Pickles, barrister instructed by Ms Furlonger of Yates and Beaggi LEGAL REPRESENTATIVES: RESPONDENT Ms P. Hudson, solicitor of Marsdens JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 13 April 2007 10899 of 2006 Zanbell Pty Limited v Blue Mountains City Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act by the applicant, Zanbell Pty Limited and the respondent, Blue Mountains City Council. 2 The appeal is in respect of a deemed refusal of the development application for the subdivision of the current 4 lots into 15 lots on a parcel of land approximately 2.3 ha on the corner of Pauline Avenue and Waratah Road, Wentworth Falls. 3 The subject site is currently vacant. There has been some clearing of vegetation and evidence of part of the site being used for BMX bikes. The site adjoins the Wentworth Falls Golf Course on two boundaries. The northern boundary common boundary is some 235 m and on the western common boundary 67 m. There is a fall in the land of 7.5 m from north to north-west. 4 Opposite the subject site on Pauline Avenue there is residential development and similarly opposite the site on Waratah Road there is residential development. Generally, the area is characterised by a leafy backdrop and the allotments are relatively large with single dwelling houses in landscaped settings. 5 The proposal, as I stated, is for fifteen lots and it is noted that the street corner parcel of land already has a subdivision approved for six allotments. The subject subdivision has lots ranging in size from 1200 to 1470 sq m. The lots all comply with council's requirements in terms of minimum size. Objectors 6 The Court met on-site on the first morning of the hearing, 7 February, and heard from a number of resident objectors to the application. 7 Those persons who gave evidence to the Court on the 7th include Mr and Mrs Bennett of 23A Toulan Avenue, Wentworth Falls. They are not within the visual catchment of the subject site and their concerns relate to the flooding of the area. The Court was taken to their property. Concern was expressed about further development within the catchment which would exacerbate, in their opinion, flooding that they have been subjected to over the years. 8 Mr Matt Lark, the secretary of the Wentworth Falls Golf Club, gave evidence to the Court advised that the concerns of the golf club have generally been addressed to their satisfaction. There was discussion about the need for a buffer between the residential lots and the golf course and now a 10 m vegetated buffer is provided. 9 Mr Lark also advised the Court that the golf course would benefit by the drainage to its dam and considered that generally the proposed development would not adversely impact on the golf course or the safety of the golf course, that there would be a likely low impact because there would be a buffer of trees retained between the golf course and the residential allotments. 10 I am satisfied that this buffer is appropriate and a fence is not required between the golf course and the proposed residential lots. 11 The Court also heard from Mr John McAlary of 7 Waratah Road. He is concerned about the flooding within the area and the proposed development would only exaggerate or increase the impacts of flooding within the area in his opinion. He is concerned about the gun barrel road and the built upon component of the lots. 12 Ms Sylvia Beresford of 74 Waratah Road is concerned about the size of the development and the cost that would be incurred to the golf course in terms of stray balls hitting the residential allotments. She is also concerned about the traffic and the tree scape being retained within the area. 13 Mr and Mrs Ann and Derek Hodge of 4 Mimosa are concerned about the proposed development in that it would be the precursor of McMansions being built on the new lots and also they express concern about the flooding being exacerbated by the proposed development. They are of the opinion that the development is out of character with the area. 14 Ms Wendy Ashcroft-Wares of 17 Waratah Road is concerned about flooding within the area and the volume and intensity of water. 15 Mr Champley, opposite the subject site at 55 Waratah Road, has lived there for some eight years and is concerned about the headlight glare into his dwelling house from the new road proposed to service the subdivision. He also expressed concern about the volume of traffic, the safety concerns about the width of roads and generally the ambience of the area with cheek by jowl blocks of land. He considers that the conditions should ensure that if the development is approved that construction be confined to Monday to Friday. 16 Mrs Stephens of 78 Waratah Road is concerned about the number of dwelling houses on this subject site together with the six lots already approved, that is twenty-one dwelling houses and the amount of vegetation that would be lost by the construction of dwellings on the land once subdivided. She expressed concern about the fact that this is a wilderness heritage area and the impact of the proposed development on the tourism of the area and the effects on employment in that the proposed development is not in sympathy or in keeping with the area. She also expressed concern about the golf course and the impacts of the proposed development constraining the use of the golf course. Mrs Stephens also raised the issue of on-site drainage or rather the flow of drainage off-site. 17 Mrs McKay of 85 Blaxland Road is concerned about the headlights from the proposed development, from the street that serves the proposal she is also concerned about wood ducks within the area and the greenbelt that this currently provides would be impacted. 18 Mr Graham Bennett of 23A Toulan Avenue is concerned about drainage of the area and the need to alleviate flooding and that there is insufficient retention provided on-site for the proposed subdivision. He considered that the flood management study that council engaged consultants to prepare should be a matter that is taken into consideration. He gave evidence on behalf of Mr and Mrs Bennett who reside at the above property. 19 Mrs Champley of 11 Beatty Road is concerned about the drainage and the bad flooding that occurs in the area from time to time. She is also concerned about buses that use the street and the conflict with people and vehicles. 20 Mrs Monica Foltin-Ruppect of 9 Beatty Road is concerned about the flooding and the capacity of the golf course dam. She is also concerned about the proposed development not being consistent with the character of the area, the ambience of the area, and the fear of 'McMansions' being erected on the lots. She expressed concern about the size of the turning circle of the road an the destruction of the vegetation. 21 Mr and Mrs Mark and Sheila Haegel of 31 Toulan Avenue are concerned about the loss of amenity for recreational purposes and the golf course as well as the issue of stormwater. 22 Mr Casey of 48 Waratah Road is concerned about the impact of potential traffic from the subject development and the need for a buffer of trees to be retained for the character of the area and concern about swales for stormwater during heavy storm events. 23 Mrs Evelyn Hamilton of 23 Toulan Avenue is concerned about the drainage of the subject development and the impact of stormwater flow. 24 Mrs Abrahams of 45 Waratah Road is concerned about the issue of flooding, insufficient stormwater management and the volume of the water with the additional dwelling houses in the catchment. She is concerned about the loss of trees on the subject site and the impact on the ambience of the area. 25 Mr Richard Porter of 37 Toulan Avenue is concerned about the outlook from the golf course and club house to the proposed development. 26 Mr Ruston of 79 Blaxland Road is concerned about the effect on the community and in his opinion an unsympathetic development which threatens the lifestyle of the residents. He has also expressed concern about the drainage and the assessment of the stormwater information. Traffic was a concern that he also raised and the safety of children within the area. 27 Mr Champley gave further evidence when the Court sat at the Blue Mountains City Council. He expressed concern about the landscape plan and further concerns about the glare from head lights. 28 Professor Blake of 55 Waratah Road also expressed concerns about the glare of headlights when the Court resumed in Macquarie Street and stated he would withdraw his objection to the proposal if the applicant would agree to payment for the installation of plantation shutters for the windows along the boundary, the western boundary of his property. Hearing and Assessment 29 When the Court first heard from council's solicitor at the Blue Mountains Council Chambers the Court was advised that the council has no outstanding issues on the development application, subject to certain conditions being accepted. The Court adjourned the proceedings to allow for a written assessment of the stormwater material that had been provided to the council because Mr Koen, the council's engineer, had not at that stage prepared a written report. And in fact there was no comprehensive assessment report that could be provided to the Court despite the fact that all of the issues raised in the Statement of Issues were no longer contested by the council. 30 When the hearing resumed in Macquarie Street on 1 March 2007 the residents raised a number of issues including concern about the appropriateness of the development application being assessed by a council officer who was also the engineer at the time that one of the applicants was previously the Mayor of the Blue Mountains City Council. 31 Mr Koen advised the Court that council does not require independent assessments of development applications submitted by councillors. It was submitted on behalf of the applicant that there are no probity issues in the matter and that Mr Koen had objectively and independently assessed and was not beholden to the applicant in terms of his assessment of the development application. 32 Following the hearing on 1 March 2007 the Court reserved judgment in the matter. Subsequently the council commissioned an independent engineer, Cardno Willing, to prepare a report on the subject development application, that is, the stormwater/flooding matters. This independent Review of the Proposed Drainage Scheme for Proposed Subdivision, Waratah Road, Wentworth Falls has been tendered today. 33 Dr Brett Phillips, Director of Cardno Willing makes a number of recommendations to amend a number of conditions proposed by the council. He concludes in his report as follows: It is my opinion that the detail provided on the proposed stormwater drainage system is just adequate for consideration at the development application stage and that it does not demonstrate conclusively that the stormwater drainage from the proposed subdivision can be controlled such that it does not worsen the present downstream flooding situation. It is also my opinion that stormwater drainage from the proposed subdivision can be controlled such that it does not worsen the present downstream flooding situation based on the outcomes of my initial hydrological assessment using the Jamison Creek hydrological model". 34 The changes to the conditions recommended by the independent engineer have been incorporated into council's amended conditions of consent tendered today. 35 The conclusion of the above report is that "the proposed subdivision could be designed such that there is no adverse impact on the flows from the site within the catchment". This conclusion is as assessed by Mr Koen, council's executive principal engineer, who subsequently prepared or had input to a further assessment report tendered today as exhibit 18 that also addresses other issues initially identified by the council. 36 The Court now has the benefit of reading the independent report and also has the benefit of the amended conditions and the council's officers further report. 37 In cases such as this it is very important that 'justice is not only done but justice is also seen to be done'. The Court raised questions about the issue of stormwater and probity. I am not in any way making an inference that there has been a conflict of interest as such but nonetheless when a significant issue such as this has been brought to the Court's attention I must give proper consideration to the issue in the processing of the application. 38 I am now satisfied with the independent report tendered today and subject to a deferred commencement for stormwater design plans. However, previously I will say when the Court first met the issue of stormwater had not been comprehensively addressed and in fact the council was disadvantaged in that some of the information was not submitted for a proper assessment of the application until some time after the development application was lodged with the council. 39 The submissions of both the applicant and the council identify when certain information was provided. I note the application was also required to be referred to the Sydney Catchment Authority where further information or details were required and that also then allowed for other issues to be addressed and satisfied by way of conditions. 40 The Court is now satisfied with the independent report that has been received and come into evidence today that the proposed development will not adversely impact on runoff to warrant refusal of the development application. The conditions of consent, however, are to be amended to include a deferred commencement condition to ensure the design for the stormwater achieves the required goal. This deferred commencement condition to be satisfied prior to the consent for the subdivision becoming operative. 41 Stormwater is clearly a very important issue for the local residents within the area who appear to be suffering from flooding within the catchment. Clearly it is not the role of this applicant, and this was submitted on behalf of the applicant, to ameliorate or mitigate all of the flooding issues within the catchment. Nonetheless, it is important that this particular development does not worsen the downstream flooding situation and manages stormwater flow from the site in terms of the before and after test for development. As such, the Court will issue a consent subject to a deferred commencement which will require plans to be submitted to the council for council's approval prior to the consent operating. 42 This course of action for a deferred commencement is necessary as opposed to referring to the current drainage concept plans which appear not to be consistent with certain conditions and recommendations. This will allow for a holistic comprehensive set of plans to deal with the issue of stormwater and drainage. I rely on the independent report tendered today that concurs with council's engineer that the subdivision can be designed to ensure that it does not worsen the present downstream flooding situation. A deferred commencement is not only necessary but a prerequisite to the subdivision proceeding to ensure that the drainage stormwater issue meets the design requirement prior to the consent operating. 43 The residents raised concerns about flora and fauna impacts, including the black glossy cockatoo. In this regard the Court has the benefit of the study prepared by Dr Trevor Hawkeswood and submitted with the development application wherein he provides an executive summary as follows: A detailed flora and fauna survey has been undertaken and the vegetation of the site has been determined as Sydney Sandstone Ridgetop Woodland. No threatened flora or fauna species or threatened ecological communities were detected on the site. The seven part tests was carried out for: the Blue Mountains Shale Capped Forests; the Sydney Turpentine Ironbark Forest; the glossy black cockatoo; and the squirrel glider are provided although none of these were detected within the site or nearby. Other scheduled plant and animal species known from the Blue Mountains region are listed and discussed. Various clauses of the Blue Mountains LEP are addressed in terms of flora and fauna. Based on flora and fauna concerns there appear to be no impediments to the development as proposed. 44 It is noted in the fauna assessment seven part test for the glossy black cockatoo, it will be necessary to remove the several Casuarina trees from the subject property, "But due to the small numbers involved and the relatively small site the loss of food for the glossy black cockatoo in the Blue Mountains area would be negligible. In addition, there is no evidence for this endangered bird species on the site or ever visited the site, although vagrants may fly through the general area from time to time. Hence it is most unlikely that the proposal will have any effect on the glossy black cockatoo in the Blue Mountains…the proposal will not affect the life cycle of the species such that local or migrant populations will be placed at a risk of extinction." 45 Indeed the report addresses all parts of the seven part test and I am satisfied that, whilst there from time to time glossy black cockatoos may be seen in the area and within the vicinity of the subject site, I am satisfied the proposed development would not place at risk these species or any of the other listed species that were identified by Dr Hawkeswood. 46 Council assessed the development application in terms of threatened species and this was tendered. Based on the evidence I am satisfied in terms of the Environmental Planning and Assessment Act that the no threatened species or community would be adversely impacted by the proposed development. 47 The proposed subdivision on the subject site is for fifteen lots and each lot complies with council's requirement for the size of allotments being larger than average residential lots in the area. The proposed lots range in size from 1200 to 1472 square metres. The assessment report tendered today provides a compliance table and the subdivision generally satisfies council's planning regime. 48 The subject site is zoned under the Blue Mountains Local Environmental Plan 2005 as 'Living-Bushland Conservation' and the objectives include: (a) To allow for residential development in the form of single detached dwellings where this development is within the capacity of the environment to sustain such development and he has undertaken a matter that minimises impact on environmentally sensitive areas. (b) To preserve and re-establish native bushland in areas that exhibit a predominantly bushland character, where consistent with the protection of assets form bush fire. (c) To permit only low density residential land uses and to retain large allotment sizes in fringe urban locations or locations that do not have reasonable access to services and facilities. 49 I am satisfied that the proposed development is consistent with the objectives of the zone. It would appear form the residents' concerns that the zoning of the subject site is a matter they take issue with. However, these proceedings are not an inquiry into the zoning of the site. The subject site is zoned to permit the proposed development and whilst this does not necessarily man approval is automatically granted, on a merits assessment, I am satisfied the proposed development is one that is satisfactory. I am also satisfied that the character of the area will not be impacted to warrant refusal of the development application. 50 The applicant has agreed to an increase in the buffer provided to the golf course which will have the effect of mitigating the activities of the golf course on the development itself but it will also provide for a vegetated buffer. I am also satisfied that it will not be an environmental or visual impact when viewed from the golf course and clubhouse or that the proposed development is out of character with the objectives of the zone or, indeed, with the character of the area. 51 With the respect to the concerns of residents about the building of dwelling houses being out of keeping with the area, I note that all dwelling houses will require separate approval under the Blue Mountains planning regime and these are identified in council's 'Better Living Development Control Plan'. 52 I am satisfied that the size of the allotments will allow for dwelling houses and ancillary facilities to be accommodated and such dwelling houses would be the subject, as I stated, of a separate development application assessment. For the subdivision application before the Court I am satisfied that the size and configuration of lots are capable of accommodating dwelling houses. 53 One of the concerns of the residents is the bushland on the site. I am satisfied the proposed development will allow trees to be retained and it will continue to provide for a backdrop of a vegetated buffer to the golf course. I am also satisfied that with careful siting of the dwelling houses these can be accommodated with appropriate landscaping and trees on these large allotments. 54 On the question of the residents' concerns about the traffic generated by the proposed development, council has assessed this aspect of the application and is satisfied that the road capacity, the design of the proposed road and the existing roads will not be adversely impacted by the additional traffic that is generated by a relatively small number of allotments, an additional fifteen allotments and 21 in total with the 6 approved lots on the corner. The Court accepts the council's assessment in terms of the impacts of the proposal being satisfactory in terms of additional traffic. 55 With respect to the issue raised about headlight glare, the Court is in receipt of a statement by Mr Terry Byrne's, the applicant's planning consultant concerning the assessment of the headlight glare on the property opposite the subject site at 55 Waratah Road. The Court must also assess the application on its merits and the fact that development generally brings some changes is not the test for the Court. It is whether that change or impacts are reasonable or unreasonable that must be assessed. While the applicant is prepared to accept council's condition requiring hedge landscaping of the verge in Waratah Road I note the occupants of the dwelling adjoining 55 Waratah Road are not desirous of any landscaping being placed within the verge adjoining their property. As I said earlier, the owners suggest that plantation shutters should be installed at a cost to the applicant. 56 I do not consider either course of action is appropriate. I must first of all look at whether the glare would be an unreasonable impact on No 55 Waratah Road. 57 There was evidence to the Court from Mr Byrnes about the level of the road, the level of the sills and also the Court could observe onsite the location of the proposed road and the windows to various rooms along the western boundary of No. 55 Waratah Road. 58 The Court in imposing conditions should first have regard to whether the impact is unreasonable to require either refusal or the imposition of conditions. Furthermore, if the impacts are first of all not considered to be unreasonable would the imposition of conditions would be a precedent. 59 In my assessment the glare from the headlights would not warrant conditions being imposed on the applicant, whether that be by way of the payment of shutters or landscaping on the verge not immediate to the subject site. I am also of the opinion that it would be unfair to impose landscaping against the wishes of the occupants of No. 55 who have a boundary with the verge to be landscaped. 60 The impact is not unreasonable in my assessment and could be reasonably expected from development envisaged by the zone. Furthermore given the number of vehicles generated by the proposed development is low. 61 I note the condition for landscaping was a condition of the council, however, I do not have an assessment supported by facts or explanation as to why it is appropriate to impose such a condition. I am satisfied with Mr Byrne's evidence and, having regard to my own assessment in terms of the level of the road and the sill height and the separation distances, the frequency of traffic, that it should not be imposed. 62 I do recognise and appreciate that some people are more sensitive to glare or lights as such but the headlights leaving the proposed new road is not unreasonable or a matter that would warrant the imposition of a condition. Owners of properties may find from time to time that they wish to manage circumstances resulting from new development on adjacent lands and make changes to their own premises by way of landscaping, curtains or other measures. This, however, is a matter for the owners of individual properties. 63 The Court has had a holistic regard to the impacts of the proposed development and I am satisfied that the development meets the objectives the LEP and the proposed development is one that could be contemplated and anticipated by the planning regime. 64 As I stated earlier, many of the objectors were concerned about the zoning or the permissibility of such a development on the subject site, however this is not a matter for the Court in this appeal. The site is zoned to permit the development and the role of the Court is to assess the merits of the application and whether the impacts would be unreasonable. I am satisfied the subdivision, to allow with approval future dwelling houses, warrants approval and will not cause adverse impacts on the catchment, the environment, the character of the area, or in a wider sense assessed against the objectives of the Blue Mountains City Council LEP. 65 By way of comment, and I state this because it was submitted on behalf of the applicant that the applicant was seeking a just quick resolution of the matter, and clearly that is a right of any applicant to this Court. However, with respect to the timeliness of information that came forward with the development application, it is noted that, the Council requested additional information before advertising the application and some further material was also submitted just prior to the hearing. 66 It should be recognised that the Court must be in receipt of adequate information on which to assess development applications. Furthermore, that once issues have been raised the Court must be satisfied in an appeal that all the issues are addressed and not outstanding to allow a proper comprehensive assessment of the application to be undertaken. Such information should be submitted in a timely manner to facilitate an efficient and effective assessment of the application. 67 I note that when the application was submitted in July 2006, Mr Koen said that it lacked the crucial information to place it on exhibition. It was then placed on exhibition in September 2006. Further additional information was also received from the applicant in January. 68 Applicants often feel aggrieved in terms of the time period and the processing of development applications but the onus is on the applicant to provide sufficient information in a timely manner to allow a thorough and proper assessment. 69 With the benefit of the independent engineer's assessment tendered today as exhibit 17 and on the receipt of the amended conditions to reflect the Court's requirement for a 'deferred commencement' condition for stormwater design I am satisfied the application should be approved. 70 Accordingly the formal orders of the Court will be: 1. The appeal in respect of the property known as 49 Pauline Avenue and 59 to 79 Waratah Road, Wentworth Falls, is upheld. 2. The development application submitted to Blue Mountains City Council and as amended is determined by a 'deferred commencement' and subject to the conditions contained in annexure 'A'. (It is noted that the general conditions are agreed to and the condition concerning the landscaping of the verge outside number 55 is to be deleted.) 3. The exhibits are returned with the exception of 16, 17, 18, A and E. 71 A copy of the Council's approved stormwater plans and documentation, required by the 'deferred commencement, shall be forwarded to the Court for its file. _____________________ J S Murrell 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.