Yass Valley Developments Pty Limited v Yass Valley Council [2007] NSWLEC 347

Land and Environment Court of New South Wales

CITATION : Yass Valley Developments Pty Limited v Yass Valley Council [2007] NSWLEC 347

APPLICANT: PARTIES : Yass Valley Developments Pty Limited RESPONDENT: Yass Valley Council

FILE NUMBER(S) : 11147 of 2006

CORAM: Watts C at 1

Development Application - Subdivision :- Likely adverse impact on views down slope of the proposal KEY ISSUES: Likely adverse effect on the scenic qualities of the area Adverse heritage impacts

LEGISLATION CITED: Yass Local Environmental Plan 1987, (YLEP) Environmental Planning and Assessment Act 1979, ss79C and 97

DATES OF HEARING: 23/04/2007 and 13/06/2007

EX TEMPORE JUDGMENT DATE : 13 June 2007

APPLICANT: Mr C McEwen, SC, with Mr M Staunton, barrister, instructed by Mr A Whealy, solicitor LEGAL REPRESENTATIVES: SOLICITORS: Gadens RESPONDENT: Mr A Bradbury, solicitor SOLICITORS: Minter Ellison

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Watts C

13 June 2007

11147 of 2006 - Yass Valley Developments Pty Limited v Yass Valley Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Yass Valley Council (the council) of an integrated development application to subdivide Lot 34, DP 1045621, being No 7 Irvine Drive Yass, into 24 residential allotments, that was amended before the hearing commenced to twelve. However, there are fourteen lots in total proposed. 2 I visited the land in company with the parties on the morning of the hearing and heard from local residents. 3 I have concluded that the consent orders now sought by the parties are appropriate and the application may be approved when considered under the Environmental Planning and Assessment Act 1979. The land 4 The land is situated near the intersection of Rossi Street and Irvine Drive, Yass. It has an area of 6.083 hectares (by deduction) and is linked to Irvine Drive via a battle-axe handle about 20m wide. 5 The land has an overall fall of about 50m, with the battle axe entrance to the land on Irvine Drive being at a level of 526m AHD and at the banks of the Yass River to the north at 475m AHD. The higher undulating elevations with slopes of between 15 and 20 degrees in the area proposed to be developed. The lower part of the land below the proposed subdivision falls about 23m. Near the northeastern boundary the land slopes at about 35 degrees. The northern part of the land fronts the Yass River, where the riverbanks in part form a narrow gorge. There are numerous rock outcrops in the northern half of the site. 6 In the southern portion of the land near the battle-axe handle linking to Irvine Drive there is 'Laidlaw's Grave', an historic cemetery. This gravesite is square in plan, with boundaries of around 15.5m. This gravesite has separate title being Lot 1, DP 702749, held by Yass Valley Council, and is accessed by a 5m-wide right-of-carriage way linking directly to Irvine Drive. 7 Previously there was a larger historic cemetery surrounding the present day 'Laidlaw's Grave'. This cemetery was also square in plan and had boundaries of about 35.2m. The location of this cemetery is still shown on DP 1045621 as a dotted line. 8 There are LPG tanks on land adjoining the eastern boundary of the subject to the west of Dutton Street. 9 Scattered trees mostly near the eastern boundary grow on the land and there are as well as significant patches of exotic shrubs. Relevant planning controls Yass Local Environmental Plan 1987, (YLEP) 10 Under the provisions of the YLEP the land is partly zoned Zone No 2(a) (Residential Zone), and partly Zone No 6(a) (Open Space Zone) and the proposal is permissible with consent. The open space land fronts the Yass River and extends to the rock outcrops near the centre of the land. 11 There is no relevant development control plan for residential subdivision or dwelling house development that applies to the land, and the Yass Shire Council Development Control Plan for Multi-unit Residential Development, (MUDCP) does not apply to the proposed development. 12 The Yass Shire Council Development Control Plan for Community Consultation is applicable in the assessment of the application in that it requires that the community be consulted in relation to the proposed subdivision. The proposal and its history 13 Integrated development application No 312/2005 was lodged with the respondent council on 22 August 2005, to subdivide the land at Irvine Drive Yass, into 24 residential allotments ranging in size from 715m2 to 1,781m2 (the original application). 14 The proposed subdivision also included the creation of a 1,137m2 reserve around an existing cemetery known as 'Laidlaw's Grave' and the creation of two allotments for open space purposes, having areas of 3,440m2 and 24,200m2 respectively. 15 The application was accompanied by supporting documentation, which included: · a Statement of Environmental Effects, · plans, · Survey Report in Relation to Indigenous Heritage, · Geotechnical. Site Assessment Report, · Subsurface Ground Penetrating Radar (GPR) Testing Report, and · Environmental Report containing Eight Part Tests of significance.