Land and Environment Court New South Wales Medium Neutral Citation: Landmark Group Pty Ltd v Lane Cove Council [2011] NSWLEC 1303 Hearing dates: 16 September 2011 Decision date: 30 September 2011 Jurisdiction: Class 1 Before: Hussey C Decision: Findings made Catchwords: Development application; capacity of local road network to accommodate evacuating vehicles in a bushfire event. 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 Urban Link Pty Limited v Lane Cove Council [2011] NSWLEC 1279 Category: Principal judgment Parties: Landmark Group Pty Ltd (applicant) Lane Cove Council (respondent) Representation: Susan Hill & Associates (applicant) Marsdens Law Group (respondent) Mr I Hemmings - Barrister (applicant) Mr A Seton - Solicitor (respondent) File Number(s): 10587 of 2011 Judgment Background 1This appeal was lodged against council's refusal of a development application for a five storey residential flat building (RFB) containing 60 dwellings over basement carparking for 104 vehicles. The property is located at 31 - 39 Mindarie Street, Lane Cove. 2The proposal is for: * 18 x 1 bedroom dwellings. * 38 x 2 bedroom dwellings. * 4 x 3 bedroom dwellings. 3The site is located within a residential R4 precinct that was recently rezoned to permit this form of development. However, it is also partially within a designated bush fire prone area where 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. 4The 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. 5Notwithstanding 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. 6However, following discussions between the parties in the lead up to the hearing and considerations of the Court decisions in other similar appeals in the precinct, the parties agree to consent orders. 7The objectors were notified of this outcome and given the opportunity to further express their objections at the view. These objections are summarised as follows: * Dissatisfaction with the current R4 Residential zoning and on the basis that the DPI has notified its intension to undertake an enquiry, then a decision on the application should be deferred. * Unacceptable traffic impacts due to additional traffic generated by the high density zoning, particularly during a bush fire event. * Loss of amenity for existing residents. * Possible adverse environmental impacts on the bushland in Batten Reserve. 8The full details of the proposal and planning controls are contained in the Statement of Facts and Contentions on which I rely. The site 9The site is located at the northern side of Mindarie Street between Hatfield Street and Willandra Street in Lane Cove North. It has a frontage to Mindarie Street of 76.2m with a depth of 36.575m and falls from its north western corner at the rear of the site to the south eastern corner at the front of the site by approximately 9.5m. The site is rectangular in shape and has an area of 2787.02 sq m. 10Five existing dwelling houses are located on the site. Surrounding development consists predominantly of single and two storey dwelling houses. Towards the east is a single storey dwelling house located at 29 Mindarie Street owned by NSW Department of Housing. Towards the west is a single storey dwelling house located on 41 Mindarie Street. Towards the north are five dwelling houses at 624-632 Mowbray Road. Towards to the south across Pinaroo Place is a bushland area (Batten Reserve). 11The land adjacent to the east, the west and the north of the subject site is zoned R4 - High Density Residential. The site is partly mapped as being Bush Fire Prone Land - Vegetation Buffer 100m and 30m. Planning controls 12The primary control in this matter is the Lane Cove Local Environmental Plan 2009, under which the subject site is zoned R4 - High Density residential. The proposed development is permissible with consent 13The other relevant controls include: * Lane Cove Development Control Plan 2010 * State Environmental Planning Policy (SEPP) No. 19 - Bushland in Urban Areas. * State Environmental Planning Policy (SEPP) No. 55 - Remediation of Land * State Environmental Planning Policy (SEPP) No. 65 - Design Quality of Residential Flat Development * Planning for Bush Fire Protection (PBP) The evidence 14The evidence presented in this case included a detailed joint report by the following experts: * Mr M Bridgman; council's traffic consultant, * Mr R Dowsett; applicant's traffic consultant, * Dr D Wotherspoon; council's ecology/bushfire consultant, * Mr B Eadie; applicant's bushfire consultant. 15A comprehensive set of objections is contained in the council bundle of documents and they have been considered along with the oral and further written objections presented at the view. 16As noted, the parties now agree to consent orders and consequently there was no examination of the witnesses. However I understand that there was further conferencing by these experts subsequent to the joint report, which has resulted in their substantive agreement. In this regard I note that whilst the original development application had some non-compliances with the development controls, these have been amended to the point where council is satisfied with urban design considerations. 17Therefore in order to deal with the objections I consider it appropriate to refer to the other similar appeals for seven RFB development applications as shown on the map in Exhibit 4 because of the same or very similar circumstances. To date the following appeals have been heard: (1)Appeal No 10412/11; Landmark Group Pty Ltd, appeal upheld by Hussey C on 22/8/11/ (2)Appeal No 10465/11; Hinset Pty Ltd, appeal upheld by Morris C on 13/9/11. (3)Appeal No 10431/11; Urban Link Pty Ltd, appeal upheld by Hussey C on 27/9/11. (4)Appeal No 10578/11; Landmark Group Pty Ltd, current consent orders appeal. (5)Three remaining appeals pending. 18The determination of the Urban Link matter involved the consideration of detailed evidence on density projections for the precinct and traffic modelling in response to the predominant contention. I mention this because the council now raises no issue in these proceedings and I therefore consider it relevant to refer to my previous findings, insofar as they address some of the objections. 19In summary, the objections concern: * Planning issues; in terms of the "inappropriateness" of LEP 2009 with the submission that the determination of the DA should be deferred pending the outcome of the DPI Review. * Non - compliance with the DCP provisions. * Excessive fire risk. * Impact on safety and efficiency of local road network. * Impacts on Batten Reserve. Planning issues 20Despite the widespread neighbourhood dissatisfaction with LEP 2009, it is the current control and the subject development is permissible consent. My finding in Urban Link relevantly deals with this as follows: [81] As noted previously, this matter attracted considerable public interest both in the form of written and oral objections. In considering these objections I note that a universal concern is that the R4 Residential zoning is inappropriate and that a decision on the application should be deferred until the DPI enquiry into the planning issues is determined. However, the Fact Sheet acknowledges the existing development applications and states that they should be considered on the basis of the current controls. I have followed that path. [82] In addition to this, Ms Duggan's submissions refer to the findings in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; 138 LGERA 237 where McClellan CJ said: [117] In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened. [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. [83] Following this authority, I considerate appropriate to determine the application on the basis of the current zoning. I note that had the DPI wanted to suspend consideration of development applications, other courses of action were available. I therefore consider the Enquiry is a neutral factor in the determination of this application DCP provisions 21This development application was subject to a detailed s79C consideration, which initially identified some non-compliances with the DCP. However amendments were undertaken resulting in council being satisfied with the urban design issues subject to the imposition of appropriate conditions of consent. 22The main non - compliances concerned solar access and cross ventilation. However amendments were made and reviewed by Mr S King in terms of compliance with SEPP 65 provisions. This review involved a check on the 3 - D modelling of the proposal. From this he concludes that: 7.2 Solar Access The proportion of dwellings which achieve projected solar access of 3 hours between 9am and 3pm June 21 is 44 units from a total of 60, being 73%. The RFDC Rules of Thumb nominate as a minimum 70%. The proposed development is therefore fully compliant with the RFDC Rules of Thumb. The effect of a development to the north of the subject site has been investigated by digital modelling. I am satisfied that complying solar access can be maintained for the north facing apartments, albeit reduced from the 'all day' amenity to one more applicable in the closely built up context which such a scenario represents. In my considered opinion, while the design of this subject building imposes some constraint on the design of a future building to the north, in order to maintain complying solar access for the current proposed development, the analysis described above demonstrates that the development potential of sites to the north is not unreasonably limited by this constraint 7.3 Natural Ventilation The design has been amended to ensure that six apartments previously unable to be included as complying with respect to cross ventilation can now be safely characterised as cross ventilated. The numerical controls of the RFDC Rules of Thumb are now fully satisfied: the proportion of apartments that are projected to be cross ventilated is 65%. 23I rely on these conclusions that the amendments are acceptable. 24It is apparent that the R4 zoning envisages significant changes to the character and amenity in the precinct because of the up zoning to permit high density units in this area where there is a predomination of separate low density dwellings. But the DCP states in section 1.4: Nevertheless Council will assess development applications on a merit - based, flexible basis, taking into account factors including the realistic redevelopment potential/timeframe of other sites in the vicinity. A priority will be the achievement of the floor space in the LEP, notwithstanding the DCP's provisions and controls. 25There was no other technical evidence presented to the court for assessment regarding any non-compliance with the controls for the amended proposal. In the situation where the Court is not a design authority, I consider that considerable weight would be given to the (agreed) expert evidence before it. Whilst there were some non-compliances identified by the JRPP, I understand they have been satisfactorily amended. Fire risk/traffic 26Several concerns were raised about various aspects of the bush fire risk in this area and they are consistent with the sole contention initially identified by council concerning the cumulative effect of evacuating traffic. With respect to the fire risk, the subject property is only impacted to a minor extent on the northern boundary and development is set back from this. 27However this overall matter was comprehensively addressed in Urban Link wherein Mr Darroch assessed the probable density increase scenarios, which were then modelled by Mr Hazell, including input from the traffic experts. My findings as follows are relevant in the current matter: [75] Insofar as Mr Hazell undertook detailed traffic modelling for the precinct roads and intersections, there was no objection from Mr Bridgman to this methodology. Instead, there was agreement by the traffic experts that under various traffic scenarios, the outcome would be reasonable. [76] The scenarios included modelling for the range of dwellings determined by Mr Darroch. Consideration was also given to the findings of Mr Tucker regarding the "late" evacuation in the last hour, whereby the figures of 23% and 50% were modelled. The council's figure of 2357 dwellings with 50% departure was also modelled, which resulted in all intersections performing satisfactorily except Mowbray Road and Kullah Parade. But I consider this outcome is most unlikely because the development density is over estimated. [77] In the circumstances of the agreement by the traffic experts at para 44, I am satisfied to rely on it that the cumulative traffic issue in a bush fire emergency event has been adequately addressed. [78] In reaching this conclusion I have considered the differing evidence before the Court on the possible reaction of residents to evacuating in a bush fire event. The only substantive evidence is that from the Royal Commission in the Victorian bushfires, which Mr Hazell and Mr Tucker considered reasonable to apply. Whilst I accept that there is a significant difference in context, I am nevertheless satisfied to rely on Mr Tucker's opinion concerning the rate of evacuation action because: The subject area including the primary fire source in Batten Reserve is well defined in an urban context, which is relatively small with a "low risk" category, and is reasonably accessible for bush fighting from the perimeter roads. The new dwellings will be built to the Australian Standard so as to be classified as "properly constructed dwelling" whereby most residents would be encouraged to remain in the building during a bush fire event. The new dwellings will be included in strata plans wherein conditions can be imposed for the preparation and communication of emergency planning procedures, including appointment of "fire wardens". There is the opportunity to update an appropriate Displan for this localised area. 28A considerable number of the objections were against the methodology and conclusions of the Urbanhorizon's report that was commissioned by the DPI. Whilst it was included in the council details, neither party relied on it. Nevertheless, its density projections were reasonably consistent with the more detailed analysis of Mr Darroch. 29It is somewhat unfortunate that the objectors did not have access to the more detailed traffic report from Mr Hazell as I consider this more detailed study specifically addresses the traffic issue thereby obviating any concerns with the Urbanhorizon's report. 30In reference to the bush fire risk, I again consider the aforementioned conclusions in para 78 by Mr Tucker are relevant in the subject appeal. Taking into account that the new units will be constructed as "properly prepared dwellings", the main fire source in Batten Reserve is relatively small and with other supporting infrastructure, then the risk associated with evacuating traffic should be manageable. 31Considering the extent of available reports on emergency procedures, it seems reasonable to me for a coordinated emergency Precinct Plan to be updated as soon as possible. This could be facilitated by partial contributions from the developers and result in a positive public interest benefit. Local road network 32The main concern expressed is that the high density development will result in an increase in traffic using the existing roads, which have inadequate capacity. However Mr Hazell's traffic study confirmed that after development, the level of service would be satisfactory. 33An associated component concerns convenient and safe access during a bush fire event. Whilst the traffic study found that on a "performance - based approach" as allowed in PBP, the existing road width of approximately 7.3m would be satisfactory. Nevertheless, I consider the more cautious approach of requiring an 8m carriageway advocated by Mr Young (RFS) is preferable, particularly in the subject case because the road alignment includes curves nearby. However detailed consideration then needs to be given to the carriageway widening strategy and any appropriate parking restrictions. Conditions covering these matters should then result in a satisfactory level of road service and safety. Batten Reserve 34The concerns raised in this respect are the same as those in Urban Link. Importantly, the approval of this development will not require any works in the reserve and should therefore not cause any direct impacts on flora and fauna. If some stormwater outlets discharging into the reserve require upgrading, this could undertaken in an environmentally sensitive manner, in accordance with good engineering practice. 35Insofar as the resident's think that an EIS is required to assess impacts on the reserve, I do not consider the imposition of a condition on this development would be reasonable in the circumstances of the case. Conclusion 36Having considered the evidence, the submissions and undertaken a view, I am satisfied that the proposal demonstrates reasonable compliance with the zone objectives so as to allow the consent orders to be granted subject to the imposition of appropriate conditions. However conditions covering the resolution of the road upgrading/parking strategy and road bonding is required, along with consideration of options for progressing the update of the Precinct emergency plan. Orders 37The Court orders by consent: (1)The appeal is upheld. (2)Development consent is granted to DA No 290/10 for the demolition of five dwelling houses and the erection of a four-five storey residential flat building containing 60 dwellings at 31 - 39 Mindarie Street, Lane Cove. (3)The exhibits may be returned except for 2, 4, 9, 10, A, B and C. R Hussey Commissioner of the Court 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. Decision last updated: 24 October 2011