Landmark Group Pty Ltd v Lane Cove Council [2011] NSWLEC 1286

Land and Environment Court New South Wales

Medium Neutral Citation: Landmark Group Pty Ltd v Lane Cove Council [2011] NSWLEC 1286 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: Procedural and other rulings Parties: Landmark Group Pty Ltd (applicant) Lane Cove Council (respondent) Representation: Mr I Hemmings - Barrister (applicant) Mr A Seton - Solicitor (respondent) Susan Hill & Associates (applicant) Marsdens Law Group (respondent) File Number(s): 10578 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 car parking 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 three contentions for this appeal, which are summarised as: .1 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. .2 Unsatisfactory design in terms of amenity. .3 Excessive visual bulk. 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 council no longer pursues any issues and the parties now consent to orders being granted subject to conditions. 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. * Non - compliance with the DCP controls. * 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.