Land and Environment Court of New South Wales CITATION : Evri Group Pty Limited v Palerang Council [2009] NSWLEC 1181 APPLICANT Evri Group Pty Limited PARTIES : RESPONDENT Palerang Council FILE NUMBER(S) : 11222 of 2008 CORAM: Hussey C KEY ISSUES: DEVELOPMENT APPLICATION :- Housing development, consistency with character of area, amenity, drainage, landscape. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Yarrowlumla Local Environmental Plan 2002 BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 CASES CITED: Architectural Property Services Pty Ltd v Rockdale City Council BC9902136 Seaside Property Developments Pty Ltd V Wyong Shire Council [2004] NSWLEC 117 DATES OF HEARING: 1 June 2009 DATE OF JUDGMENT: 5 June 2009 APPLICANT Mr R O'Gorman-Hughes (barrister) SOLICITOR Goodman Law 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 11222 of 2008 Evri Group Pty Limited 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 8 single-storey, 3-bedroom townhouses with strata subdivision at 124A Ellendon Street, Bungendore. 2 The main issues identified for the appeal are summarised as follows - Overdevelopment of the site resulting in poor internal amenity. - Whether the development is consistent with the character of the area. - Suitability of the site in terms of noise, privacy, proximity to adjoining industrial use and distance to town centre facilities. - The proposal is contrary to the Water Management Plan. - Consistency with the objectives of the LEP and DCP, particularly the objectives of Zone No 2(v). - Compliance with the requirements of section 8.2 and section 9.5 of the DCP The site 3 The site is described as Lot 101 DP 835461. It is a relatively narrow, elongated lot having a road frontage of 30.45m and a total area of 6633sq m. The site falls from the rear towards Ellendon Street and there is an open drain along the northern side boundary, within a 3m wide drainage easement. 4 The site contains some mature perimeter tree plantings. Along part of the north-western boundary, the adjoining property contains a concrete batching plant. The property to the south contains a dwelling and a number of nursery sheds in its rear yard area. 5 The site is located approximately 1km from the village centre. The proposal 6 This proposal involves the demolition of the existing dwelling on the land and the subsequent construction of 8 single-storey, 3-bedroom townhouses. It is proposed to strata subdivide the development, with the minimum lot size being 483sq m. The development layout is shown in Figure 1. 7 Access to the new dwellings is via a shared driveway, which has a straight alignment approximately 170m long and 6m wide. It is located on the southern side of the land with a predominant setback of 1m to the boundary. 8 There is an open rectangular culvert of approximate dimensions 2400mm wide x 550mm deep is located within the front portion of the site adjacent to Ellendon Street. 9 The proposal recognises the existing 3m wide easement along the northern boundary and proposed the installation of a low-flow system comprising 2 x 375mm diameter pipes within the easement. Over this, the land is to be contoured to form a swale to carry overland flows up to the 100 year ARI storm. Due to the existing invert levels of the culvert, it is proposed to lay 3 x 375mm pipes in the lower part of the site from Unit 3 and past Units 2 and 1. However this will necessitate the widening of the drainage easement to 4m in this section. 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 characterised as 'dwelling houses' and is permissible with consent. Clause 16(1) of the LEP provides that before consenting to the development of land, the council must be satisfied that the carrying out of the development is consistent with the objectives of the plan and the objectives of the zone in which the land is situated. 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: (a) to set aside areas in which a range of residential accommodation and urban facilities can be provided for the rural community; (b) to recognise the natural and physical features of each village and to prevent development in unsuitable areas, such as flood-prone land; and (c) 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. It provides that consent must not be granted to a subdivision of land within the Zone No2(v) unless the consent authority is satisfied: (a) that the subdivision is consistent with the character of the area in which it is proposed, having regard to existing density, landscape and nearby development; (b) that the subdivision does not take in unsuitable areas such as floodplain land; (c ) that the development achieves the most efficient use of existing utility services (such as water supply and sewerage services), roads and streets; and … 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. 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 Insofar as the development is characterised as dwelling houses for the purposes of the DCP, it is within Precinct 2, which comprises the existing residential areas in the village. Clause 6.2 of the DCP states the following objectives for this precinct: (a) to preserve and enhance the residential amenity and character of the precinct; (b) to provide for a range of housing types; (c) 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: (a) one small dwelling unit (one bedroom) per 250 sqm lot area; (b) one medium dwelling unit (two bedroom) per 350sqm lot area; (c) one large dwelling unit (three or more bedrooms) per 450sqm lot area. 18 The relevant controls for subdivision are found in Part 5 of the DCP. Section 9.5 provides for the following minimum setbacks for townhouses: (a) front boundary – 7m; (b) side boundaries – 3m; (c) rear boundaries – 6m The evidence 19 Detailed evidence in this matter was presented by: - Ms L Meday; Director Planning & Environmental Services; - Mr M Grayson; Consulting planner for the applicant; - Mr N Hobbs; Consulting landscape architect; - Mr W Ellison; Director Infrastructure Planning. - Dr I Joliffe; Consulting engineer. Character of the area 20 The planners conferred and agreed that the extent to which the development is consistent with the character of the locality, having regard to existing density, landscape and nearby development (as provided for by clause 21 of the YLEP) is the main point of contention. However they were unable to agree on what constitutes the 'area', so as to express a common character statement. 21 Mr Grayson assessed the character of the locality as that part of the Bungendore village south of King Street. In this area he observed many of the existing houses being sited towards the street frontage of each lot with 'domestic' front yards. He notes that: In terms of overall density and extent of development on the site, the density equates to 28 persons per hectare. This is half the maximum of 60 persons per hectare that Council's own DCP allows. Similarly, the site coverage is 22.8% which is also considerably less than the permitted 33%. By these two key measures the proposed development could not be described as an over development of the site. 22 Mr Grayson also says that the consent for a multi unit housing development opposite the site should be taken into account when assessing the character of the area. Consequently, his opinion is that: The existing character is also that of an area that has been identified by zoning as appropriate for urban development. In this instance, it is reasonable to assume and indeed likely that Ellenden Street will be even further developed for urban and village uses consistent with the aims and objectives of both the LEP and DCP and range of uses that arte permissible. It is not reasonable to assume that the existing form and level of development will not change over time. 23 Against this approach, Ms Menday says that the character of the locality is a reflection of density, lot size and orientation, siting of buildings, landscape, streetscape, building character and scale. She states that the locality consists of the area south of King Street excluding the industrial area on the corner of King and Ellerdon Streets. As the subdivision pattern is an essential part of this approach, she calculated the 'average lot size' in this locality to be approximately 13000sq m. 24 With regard to the landscape element, Ms Menday says there is a substantially larger proportion of unbuilt on area relative to built on area, and a larger proportion of soft landscape to hard landscape, that creates a feeling of openness and rural character. The vacant and substantial front and rear yards and significant amount of unbuilt upon area allows for the growth of large canopy trees, which are prevalent above rooftops, and significant understorey. 25 For my assessment of this competing evidence, and taking into account observations at the view, I am inclined to rely on the locality identified by Ms Menday for characterisation purposes. The application of the subdivision development standards for the minimum lot size of 450 sq m primarily relates to the residential area. 26 On this basis, I consider it reasonable to exclude the adjoining industrial area from the lot size assessment. From the evidence of Ms Menday, all of the land within the village has the common zoning of 2(v) and the various land uses are differentiated by the separate precinct designations. In this regard, the adjoining land to the north is in the Industrial Precinct 3 and I particularly note Ms Mendays evidence that this is the only industrial area in the village and it is important to retain it for these purposes. Consequently it is likely to retain a character substantially different to the surrounding residential precinct. 27 Accordingly, the nominated locality has an average lot area in the order of 13000sq m and contains somewhat randomly placed dwellings and other out structures that generally front the road and are screened by natural vegetation. 28 In my assessment of the proposal, I initially accept that the overall effect of the controls is to allow changes to the land use by way of development and subdivision to create some smaller lots to facilitate a broader choice of dwelling and amenity. But such development should show reasonable consistency with existing characteristic features. I also note that the overall zoning in the village is for 2(v) and development is controlled within the various precincts. 29 In my assessment this imposes some limitations on the location of more dense type developments. It seems plain from reference to the average lot size map, there is a distinct pattern of smaller lots closer to the village centre and larger lots towards the outer perimeter. Under these circumstances compliance with the numeric controls alone, would not guarantee approval. Instead the individual constraints and environmental capacity of each lot, in its locational context needs specific merit assessment. 30 Accordingly, my assessment of the critical character features, with particular reference to the DCP controls, which are endeavouring to achieve the preservation and enhancement of the residential amenity and character is as follows. Development form 31 It appears to me from the aerial photo that the subject land is noticeably narrower and smaller in area than the majority of other surrounding lots. Consequently, the development of 8 new dwellings on this relatively narrow lot will significantly alter the relationship between built upon area as compared to unbuilt upon area, which is an important feature of the character. 32 Even though the overall development achieves a lot density of approximately 830 sq m, it is considerably less than the existing average of approximately 13000sq m. I therefore accept Ms Menday's opinion that this is not consistent with the existing lot area characteristic. 33 In my opinion, this inconsistency in area restricts the proposed lot layout because the limited lot width restricts the development to a "carriageway type" development. This results in a consistency of dwellings aligned to a new straight 6m driveway, practically adjacent to the southern common boundary fence. As the driveway has a minimal setback of approximately 1m, opportunities for side boundary planting are severely constrained, so only a formal hedge can be planted for the 170m (approx) length of the driveway. 34 This is not a common characteristic feature of this locality and I do not think it preserves and enhances the residential amenity of the area. It seems to me however that a reduced number of dwellings could result in an acceptable balance. This would allow some variation in the straight alignment of the driveway to incorporate some larger canopy trees along the side boundary that are characteristic of this area. 35 I also agree with Ms Mendays concerns that the new dwellings are relatively close together, which results in a comparatively much lower level of amenity for privacy and outlook than currently exists and this is a negative aspect of the proposal, in my assessment. This concern may not be so critical in the closer, more built-up residential areas where the outlook relationship is different to that of the more residential/rural character of the outer, perimeter location lots. Therefore, I consider the imposition of the scale of this proposed development is likely to reduce the amenity of neighbouring properties. Private open space 36 Another obvious feature of this particular area is the "openness" that allows the residents are able to experience a high standard of outdoor open amenity. Obviously the area for private open space in more dense developments as proposed will be much smaller. However, I then consider this is more reason to ensure that the provision of this smaller area of open space has high amenity value. 37 I do not consider this to be the case with this proposal. Even though the private open space is located primarily on the northern side of the dwellings, it is mainly 6m wide. However the utility of this area is severely compromised by the 3m -4m wide drainage easement for the overland flows and containing the low flow pipes as shown in Figure 1. 38 According to the cross section in exhibit C, a retaining wall of approximately 500mm – 600mm is required along the edge of the easement, parallel to the fence. This significantly restricts any improvements and use of this area, together with any substantive perimeter landscaping opportunities, in my opinion. 39 But it appears this open space area is further compromised by the levels of the land. Considering the minimum floor levels imposed to satisfy the 100 year ARI flood, this then leaves a width of approximately 1m at a slope of 1:3 from the back of the dwelling. The inability to provide a reasonably flat, accessible and useable open space area is a significant negative aspect of this proposal. Drainage 40 According to Dr Joliffe's drainage investigation, the construction of the twin 375mm diameter pipes within the drainage easement, adjacent to units 4 - 8 is required to contain the 1:5 stormwater low flows. However this needs to be augmented to 3 x 375 mm diameter pipes adjacent to units 1-3, due to the restricted outlet levels imposed by the existing open channel, within the property, to restrict regular surcharges. A consequence of this is that the drainage easement needs to be widened to 4m in this section, which consequently restricts the landscaping and recreational use of this area. 41 Given the aforementioned restrictions on the use of this drainage easement, including the retaining wall and the possibility of regular overland flows, I consider this an unacceptable feature of the development, which is an indicator of the over development of the site. It does not in my opinion maintain or enhance the amenity of private open space in the area, notwithstanding the significantly reduced size. 42 Another negative aspect concerns the location of the existing open 2400mm culvert inside the front boundary. With its depth of 550m, it is apparent that this should be fenced in order to provide a reasonable level of safety, particularly if there is a significant increase in the population from the development, including children. I do not consider it an enhancement of the area or a feature that makes a positive contribution to the amenity of this immediate area. 43 Instead, it seems to me that overland flows are not an uncommon feature in this area, however they are contained in natural watercourse through the properties and generally well separated from the main open space areas. This would not be the case for the front drain and overland flows in the 'expanded' drainage easement. Landscaping 44 Insofar as the landscaping conferencing agreed that the existing landscape in the area is of a relatively informal mix of plantings, they did not agree that the proposed landscaping would be consistent with the provisions of clause 21. 45 It is apparent to me that the initially proposed landscape theme is to provide a much more formal scheme with Photinia (or the like) hedging along the frontage and along the extended driveway, adjacent to common boundary. I agree with Ms Menday that this 'formalised landscaping treatment' is not a common feature of this part of the precinct. 46 I note Mr Hobbs reference to the landscaping theme of the recent multi unit development at No 113 Ellendon Street, but do not consider it should be given such weight as to rely on it as some form of benchmark. Instead, it seems to me that clause 21 requires a reasonable degree of consistency with the predominant 'existing' characteristic features. 47 I note that some alternative plantings were suggested during the hearing, but I rely on the opinion of Ms Menday that the intensity of this development is such that it looses the existing "open vegetated" character and other planting do not satisfy clause 21. Neighbouring developments 48 Clause 21 also requires the consent authority to be satisfied regarding character of the neighbouring development. Insofar as there was disagreement between the planners on this aspect, I consider a practical application is appropriate. In my opinion this application is to recognise that the adjoining land is within the industrial Precinct 3, which is the only such area for industrial development. I rely on Ms Menday's opinion that future industrial uses should not be compromised. 49 Adjacent to the northern part of the site, opposite units 7 and 8 there is the recently approved concrete batching plant. Whilst it is subject to operational conditions of consent regarding noise, dust and operating hours, nevertheless it is a very obvious operation. 50 Consequently the subject land being of narrow width and adjoining the concrete plant is somewhat constrained in development opportunities, if a reasonable level of amenity is to be maintained and ideally enhanced for the proposed increase in population. 51 As noted previously, there is a characteristic element of openness and outlook of vegetated screened dwellings in the locality, which contributes to its attractive residential amenity. However the concentration of the 2 dwelling (units 7 and 8) in much closer proximity to the concrete plant i.e with 6m setback from a 2.4m boundary fence, with direct northerly outlook towards the plant and with restricted landscaping opportunities within the yard areas of the unit due to the drainage easement, result in my conclusion that the placement of these units does not satisfy the requirements for maintenance and enhancement of amenity. This aspect is a clear indicator of the over development of this constrained site in my assessment. Site suitability 52 The issues concerning the suitability of the site arise because of its location in excess of 1km from the village centre facilities. According to Ms Menday, this distance is excessive for a medium density type development. She supports this contention by reference to DCP 09, which now restricts this form of development outside a 400m radius of the centre. On this basis the proposed form of development would not now be approved and contribute to the future character of the area. 53 More relevantly however, Ms Menday says that it is accepted planning practice to limit the spread of medium density type developments to within 400m radius of the centre. She supports this contention by reference to the DIPNA publication " Planning guidelines for walking and cycling ." Clause 4.3 states: "Creation of accessible centres can be assisted by mapping walking catchments or ped sheds. Walking catchment maps show the difference between potential and actual walkabilty. Potential walkability is defined by a circle of radius 400m or 5 minutes walk around the centre, and 800m or 10 minute walk around the centre that includes a public transport stop…" 54 As I have commented previously, I accept that the controls allow various forms of more dense development. However I also consider that these more compact and likely more economical dwellings will appeal to a variety of the people in the community. Therefore it is also likely some of these people would expect reasonable accessibility to the centres facilities by way of convenient walking or possibly cycling. 55 Consequently I agree with Ms Menday that the distance from the site exceeds the usually accepted 400m separation distance to the town centre and I consider this a negative aspect of the proposal. Water management and servicing 56 Insofar as there was some debate about servicing and infrastructure, particularly the size of on-site water tanks and location of OSD, I do not consider it necessary to determine these differences considering the application fails otherwise on the grounds it does not adequately satisfy the consistency with the area character controls. Cases cited 57 Mr O'Gorman Hughes made submissions regarding the authority in BGP Properties v Lake Macquarie City Council [2004] NSWLEC 399 – revised 05/05/2005 where McClellan CJ said: 118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts. 58 As I have noted previously, I accept the zoning and development controls allow the type of development proposed, but for the reasons mentioned, I consider this proposal is an over development of the site, likely to result in unacceptable environmental outcomes. 59 Reference was also made to the matter of Architectural Property Services Pty Ltd v Rockdale City Council BC9902136, which stated at para 16: "…where the relevant development control plan commenced after the application had been made, it should not be given determinative weight…" 60 I have applied this principle by considering the current DCP 2009 provision but given determining weight to the controls in DCP 2005. I have noted that the effect of the current controls is to restrict medium density developments in the perimeter areas and that this is likely to influence the future character of the area. 61 Reference was also made to Seaside Property Developments Pty Ltd V Wyong Shire Council [2004] NSWLEC 117 where at para 25 Bly C stated: 25. As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.For the reasons given, I consider the existing concrete plant represents a significant constraint on the optimal development of this relatively narrow site, forming an interface with this established industrial area. I do not consider the concentration of development in such close proximity to the concrete plant is likely to result in an acceptable environmental outcome. 62 For the reasons given, I consider the existing concrete plant represents a significant constraint on the optimal development of this relatively narrow site, forming an interface with this established industrial area. I do not consider the concentration of residential development in such close proximity to the concrete plant is likely to result in an acceptable environmental outcome. Conclusions 63 Having considered the evidence, the submissions and undertaken a view, I do not consider this application merits consent. I acknowledge that the controls allow for changes in the form and type of development to provide a variety of housing choice. However the approval of development is restricted to the extent that it satisfies the test for consistency with the character features of the area. 64 Within the Bungendore village area, the residential Precinct 2 applies to the entire urban area. However the character within this overall area exhibits distinct features relative to the proximity of the site to the village centre. Also there is a variety of lot shapes, which constraints in some cases maximum lot yield. Consequently, compliance with the numeric standards does not guarantee approval as compliance with the qualitative controls is also required. 65 In the subject case, I am satisfied that this land is a relatively narrow lot, which is located towards the perimeter of the village area where the average size of lots is generally larger and in the area of 13000sq m. Consequently, I consider the lot constraints are such that the environmental capacity of this lot is exceeded by the proposed 8 dwellings. 66 The proposed over development of the site would result in units being placed uncomfortably close to the concrete batching plant resulting in a poor level of amenity and outlook. More importantly I accept the opinion of Ms Menday that the amenity of all the private open space areas is unsatisfactory due to the constraints imposed by 3m-4m wide drainage easement. 67 In the ultimate, I do not consider this application satisfies the prevailing controls, particularly clause 21 of the LEP and the objectives of the DCP to merit consent. Court orders 68 The Court orders that: 1 The appeal is dismissed. 2 Development consent to DA 2006/DEV-00024 for the demolition of the existing dwelling and construction of 8 dwellings at 124A Ellendon Street, Bungendore is refused. 3 The exhibits may be returned except 3, 4, A and J. _______________________ R Hussey 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.