Urban Link Pty Limited v Lane Cove Council [2011] NSWLEC 1279

Land and Environment Court New South Wales

Medium Neutral Citation: Urban Link Pty Limited v Lane Cove Council [2011] NSWLEC 1279 Hearing dates: 25, 26 & 31 August 2011 Decision date: 27 September 2011 Jurisdiction: Class 1 Before: Hussey C Decision: Appeal upheld, development consent granted subject to conditions Catchwords: Development application - capacity of road system to cope with traffic in a bushfire emergency. Legislation Cited: Environmental Planning and Assessment Act 1979 Lane Cove Local Environmental Plan 2009 Cases Cited: BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; 138 LGERA 237 Category: Principal judgment Parties: Urban Link Pty Limited (Applicant)

Lane Cove Council (Respondent) Representation: Ms S Duggan SC - Barrister (Applicant)

Mr A Seton - Solicitor (Respondent) Gadens Lawyers (Applicant)

Marsdens Law Group (Respondent) File Number(s): 10431 of 2011

Judgment

Background 1This appeal was lodged against council's refusal of a development application for a four storey residential flat building (RFB) containing 46 dwellings over basement parking for 80 vehicles, located at 532 - 534 Mowbray Road with connection to 72 - 74 Gordon Crescent, Lane Cove. 2The site is located within a residential precinct that was recently rezoned to permit this form of development. However, it is also within a designated bush fire prone area and the council has initiated steps for a review of this zoning. According to the Fact Sheet issued by the NSW Department of Planning & Infrastructure (DPI) in August 2011 the strategic review is to: * Identify the opportunities and constraints to medium or high density development in the precinct; * Examine the existing LEP controls to determine the likely dwelling yield of the precinct; and * Identify any necessary infrastructure works to support the precinct's development. 3The Fact Sheet notes that a number of applications have been made and states that development applications for residential flat development in the area will continue to be assessed in accordance with the provisions of the Environmental Planning and Assessment Act 1979 . 4Notwithstanding that the review was announced after the appeal was lodged, the council identified one contention for this appeal, which is: The development application should be refused because inadequate information has been provided to demonstrate that the existing road network in the Mowbray Road Precinct is able to adequately and safely cater for emergency vehicle ingress and evacuating vehicular egress in a bush fire emergency in circumstances where the cumulative effect of the proposed development and likely future development, in terms of increase in population density, will result in an increase in vehicle movements and reliance on the existing road infrastructure. 5Another matter referred to in the appeal concerns the Urbanhorizon's " Lane Cove Bushfire Accessibility " report dated March 2011. This was commissioned by the DPI to review the existing road infrastructure in the precinct for its ability to cater for vehicular movement during a bushfire, resulting from the planned increase in density of the area. 6The review found that there would likely be an increase in the order of 1200 - 1500 potential dwellings, which could be accomodated subject to some road improvements. They include the option of widening perimeter roads such as Gordon Crescent to an 8 m carriageway. The report also noted council's preference for a "comprehensive traffic study" and suggested that this could be best achieved as part of council's update of their Displan. This could incorporate any changes to government policy, account for take up rates of development and any appropriate s 94 contribution plans.