Land and Environment Court New South Wales Medium Neutral Citation: Baxter v Northern Beaches Council [2016] NSWLEC 1390 Hearing dates: 27 June 2016 Date of orders: 06 September 2016 Decision date: 11 July 2016 Jurisdiction: Class 1 Before: Fakes C Decision: Appeal upheld - see [70] Catchwords: MODIFICATION APPLICATION: Residential subdivision; lot comprises two zones; boundary adjustment; water management; zone objectives; conditions Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Conveyancing Act 1919 Pittwater Local Environmental Plan 2014 Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 King & ors v Bathurst Regional Council (2006) 150 LGERA 362 Newbury DC v Secretary of State for the Environment [1981] AC 578 Category: Principal judgment Parties: Thomas Baxter (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: Applicant: Mr N Eastman Respondent: Ms J Reid Solicitors: Applicant: Storey & Gough Respondent: King & Wood Mallesons File Number(s): 155894 of 2016 Judgment 1. COMMISSIONER: In June 2014 Development Application N0209/14 was lodged with Pittwater Council for a residential subdivision and associated civil works at 2 Fern Creek Road, Warriewood (the site). Before the DA was fully assessed by council, the applicant lodged an appeal against council's deemed refusal with the Land and Environment Court. Pursuant to s 34 of the Land and Environment Court Act 1979, the parties reached an agreement and the Court granted the orders sought by the parties. 2. Development consent N0209/14 for a 22 residential lot subdivision under Community Title, and associated civil works, was issued on 2 June 2015. A modification application under s96 of the Environmental Planning and Assessment Act 1979 (EPA Act) modifying a condition of consent concerning s 94 contributions has already been approved. Proposal 1. Modification Application N0209/14/S96/2 seeks to modify the original consent by: * Deleting the detention basin servicing the subdivision and constructing individual on-site detention systems described as 'rain gardens' on all residential lots, * Creating a new residential lot on the site of the deleted detention basin thereby increasing the number of residential allotments from 22-23, * Deleting the approved "Community Property" allotment along the western or rear boundary of the subdivision, * Deletion of the 3.0m wide drainage easement within proposed lot 16, * Reconfiguring lots 20 to 22 to permit an east-west orientation of those lots, and * Adjusting the rear boundaries of lots 15-19. The rear of lots 15-22, if modified as proposed, would incorporate the approved "Community Property" allotment. The site and its locality 1. The site is identified at Lot 2 in DP 736961, otherwise known as 2 Fern Creek Road, Warriewood. The site is oriented to Fern Creek Road to the east. 2. Civil works in accordance with the approved development are underway. 3. The site is affected by flood, biodiversity considerations, acid sulphate soils, and by a geotechnical hazard. The western portion of the site is steep and vegetated. 4. The majority of the site is zoned R3 Medium Density Residential zone under Pittwater Local Environmental Plan 2014 (PLEP). The western portion is zoned RU2 Rural Landscape and is incorporated into the approved "Community Property" lot. This community lot adjoins the western or rear boundaries of lots 15-22. 5. The RU2 zoned portion of the site is elevated above the rest of the lot and adjoins a steep and vegetated property to its west. A number of locally indigenous trees remain near the boundary with the adjoining property to the west. The RU2 land is relatively narrow at its southern end and widens at the northern end. A steep embankment defines the eastern boundary between the RU2 and R3 zones. 6. The R3 zoned portion of the site is within the Warriewood Valley (Land Release) Locality; the RU2 zone is outside the release area. The site is surrounded by a number of large sites that are mostly undeveloped and or contain single detached dwellings. Within the broader area are a number of lots used for small-scale rural operations. Other lots have been subdivided into small allotments containing residential dwellings. Further to the west and adjoining the RU2 zone is a broad area of land zone E2 – Environmental Conservation. Assessment framework 1. The following objectives of the RU2 zone are relevant: To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. To maintain the rural landscape character of the land. To provide for a range of compatible land uses, including extensive agriculture. To minimise conflict between land uses within this zone and land uses within adjoining zones. 1. Clause 4.1AA PLEP sets the development standard for minimum subdivision lot size for community title schemes. The objective of the clause is to ensure that land to which this clause applies, which includes Zone RU2, is not fragmented by subdivisions that would create additional dwelling entitlements. Subclause 4.1AA(3) states: The size of any lot resulting from a subdivision of land to which this clause applies (other than any lot comprising association property within the meaning of the Community Land Development Act 1989) is not to be less than the minimum size shown on the Lot Size Map in relation to that land. 1. The Lot Size Map shows the minimum lot size on the RU2 land is 1.0 ha. 2. As this is a modification application, cl. 4.6 - Exceptions to development standards, does not strictly apply. However council notes cl. 4.6(6), which states that development consent must not be granted under this clause for a subdivision of land in, amongst other zones, Zone RU2 Rural Landscape, if the subdivision will result in two or more lots of less than the minimum area specified for lots by a development standard, or one of the allotments has an area of less than 90% of the control (in this case, 0.9 ha or 9,000m2). 3. Pittwater 21 Development Control Plan 2014 (PDCP) applies. The western RU2 zoned portion of the site is included in Part A4.14 Warriewood Locality. The majority of the site, zoned R3, is included in the Warriewood Valley Locality and release area described in Part A4.16 PDCP. Relevantly: Warriewood Valley Release Area continues to be developed as a desirable urban community in accordance with the adopted planning strategy for the area and will include a mix of low to medium density housing, industrial/commercial development, open space and community services. The creekline corridors, roads and open space areas form the backbone of the new community, complimented with innovative water management systems, the natural environment, pedestrian/ cycle path network, public transport, and recreation facilities. 1. PDCP Part B2.1 Subdivision – Rural and Large Lot Residential Land applies to the RU2 zoned portion of the site. Council presses the outcome of 'maintenance of the existing environment'. The following control applies (nil variations permitted): Any lot (or lots) to be created by a subdivision of an existing lots (or lots) zoned RU2 shall have a minimum width of 80 metres, except in Warriewood, where they shall have a minimum width of 60 metres. 1. Other Parts of PDCP included in Council's bundle of evidence and which apply to the Warriewood Valley locality, including C6.1 – Integrated Water Cycle Management, C6.2 – Natural Environment and Landscaping Principles, C6.7- Landscaped Area (Sector, Buffer Area or Development Site) and C6.8 - Residential Development Subdivision Principles, amongst other things, require retention of native vegetation where possible and lot layout to respond to the physical conditions of the site. Contentions 1. The council contends that the Modification Application should be refused for the following reasons: 1. Not orderly development 2. Inconsistent with the objectives of the RU2 zoned land 3. Inconsistent with the objectives and controls relating to the subdivision of land zoned RU2. 4. Circumvents the planning controls that apply to the RU2 zone, existing zoning pattern and relevant provisions of PDCP. 5. Inappropriate reliance on a section 88B instrument to control the use of the RU2 zoned land. 6. Insufficient information in the applicant's Water Management Plan to assess compliance with PDCP, including in regards to: stormwater drainage, water balance, on-site detention, water quality, operation and maintenance of on-site detention systems, flooding, overland flow, and flood risk. Water Management evidence 1. The applicant's expert Mr Michael Shaw of Civil Certification and council's expert Ms Louise Collier of Cardno prepared a joint report (Exhibit 4). The experts agree that updated information in further documentation prepared in part by the applicant, and in part during the joint conferencing, demonstrates compliance with council's controls. 2. There is no objection to removing the detention basin designed to manage the entire site and incorporate on-site detention systems into each individual lot. Council does not object to that lot being redeveloped as a residential lot. 3. During the site inspection undertaken as part of the hearing, the experts indicated that a swale drain/ drainage easement would be required at the top of the slope within the RU2 zoned land and that its installation may necessitate the removal of up to two trees. The water management experts prepared a sketch plan of its approximate location. It was agreed that some further details may be required and conditions drafted. 4. The applicant stated that the maintenance of the drainage easement would remain the responsibility of the Neighbourhood Association. 5. As a consequence of this agreed position, council does not press contention 6 and has no objection to the conversion of the on-site detention basin allotment to a residential allotment. Planning evidence 1. Council has no objection to the re-orientation of lots 20 - 22. The remaining planning issue is the incorporation of the RU2 community lot into the rear yards of the adjoining allotments. 2. The parties' consultant planners, Mr David Haskew for the applicant, and Mr James Lovell for the council, prepared a joint report (Exhibit 3). 3. The planners disagree on the merits of incorporating the RU2/ community lot into the rear yards of the eight adjoining allotments. 4. Mr Haskew assessed the proposal against the relevant zone objectives and applicable s 79C matters. In his opinion, the modified development will perform equally, if not better than, the approved development. He opines that the community lot was not proposed to be used for primary production and nor would it contribute to the natural resource base; this will not change under the modified proposal. The physical features will not change, as there will be no fences or buildings, nor changes in surface levels allowed. 5. Mr Haskew considers that the modified proposal will enable the land to be used for passive recreation purposes by the individual owners; given the elevated position of this land – about 2m above the private open space of each of the individual lots, there is the potential for privacy impacts arising from its use if maintained as community land. He also states that it is quite likely that anyone building on the lots will locate their principal living areas onto this area of private open space, thus suggesting additional privacy impacts. 6. In summary, Mr Haskew considers that the only relevant issue is privacy and in his opinion, the modified proposal performs better. He disagrees with Mr Lovell in regards to relevance of whether or not the RU2 land is outside of the Warriewood Release Area or that PLEP otherwise prohibits the proposed changes. He also disagrees that a fence along the eastern boundary of the community lot would provide adequate privacy. 7. Under questioning from Ms Reid about the risk of an ad-hoc approach to maintenance of the RU2 land by individuals, Mr Haskew considered that by-law 1.6 of the Neighbourhood Management Statement, which requires the proprietor or occupier of a lot to keep the landscaped areas clean and tidy and in good repair and condition, will apply to any RU2 land incorporated into the adjoining individual lots. 8. Mr Lovell maintains that orderly and co-ordinated development of land is generally best achieved by the consistent implementation of the applicable development controls. He considers that the anticipated lot sizes and land uses provide context to the zone objectives and inform the likely and desired future character of the locality. In Mr Lovell's view, irrespective of whether numerical controls specifically apply to s 96 modifications, the proposal seeks to further subdivide an already undersized RU2 zoned allotment into eight smaller ones, effectively removes the boundary between the two zones, moves land currently not in a release area into such an area, and effectively removes the potential for the potential for the land to be used now or in the future for any form of sustainable primary industry or any other permissible use within the RU2 zone. 9. Mr Lovell notes that PLEP is a relatively contemporary environmental planning instrument, which did not adopt cl. 5.4 of the Standard Instrument; in addition, a 2014 review of the boundaries of the Warriewood Valley Release Area did not result in the inclusion of the RU2 land on the site. He considers that if the further subdivision had been the subject of a separate development application, and not a modification, it could not be approved. 10. In regards to privacy concerns for the individual allotments, Mr Lovell opines that this did not appear to be an issue when the applicant and council agreed on the terms of the original approval. In his view a fence along the eastern boundary of the community property would prevent the majority of any overlooking and that sensitive landscaping and building design could be expected to achieve reasonable privacy. 11. In oral evidence, Mr Lovell stated that the proposal only benefits the owners of the individual lots and not, as originally intended, all residents. Council's position 1. As summarised from its amended Statement of Facts and Contentions, and reiterated in oral submissions by Ms Reid, council contends that the approved subdivision was designed to reflect the existing zoning pattern by designating the RU2 land as community or neighbourhood property to be managed by the Neighbourhood Association. 2. In pressing the Internal Referral Assessment included in council's bundle of evidence, Ms Reid contends that the proposed modifications will change the nature and use of the RU2 zoned land from being one communal area of passive open space to fragments under private ownership that are likely to be used as domestic back yards. 3. In council's view, this does not respect the integrity or legibility of the zone boundary and this fragmentation does not represent orderly or economic development. In addition, the proposed fragmentation will reduce the already undersized RU2 zoned allotment into eight lots with areas ranging from 80m2 to 600m2. Ms Reid contends that the lot size of RU2 zoned land is reinforced by clauses 4.1AA(3) and 4.6(6) PLEP and Part B2.1 PDCP. The point at which any further flexibility can be applied to the size of the RU2 zoned allotment has been reached. 4. As a consequence, the proposal does not achieve or support the RU2 zone objectives as it does not maintain and enhance the natural resource, base, maintain the rural character of the land, or minimise the conflict between land uses within adjoining zones. Further, Ms Reid notes that the relevant zoning map shows RU2 zoned land adjoining land zoned E2 – Environmental Conservation; she maintains that the RU2 land is effectively a buffer between residential land and environmentally sensitive land. 5. By not adopting the optional cl. 5.3 – Development near zone boundaries, from the Standard Instrument – Principal Local Environmental Plan council maintains that PLEP is not intended to provide flexibility at zone boundaries. Clause 5.3(1) states: 1. The objective of this clause is to provide flexibility where the investigation of a site and its surroundings reveals that a use allowed on the other side of a zone boundary would enable a more logical and appropriate development of the site and be compatible with the planning objectives and land uses for the adjoining zone. 1. By extending the R3 zoned lots into the RU2 zoned land, council contends that this transfers land outside the Warriewood Valley Release Area into the Release Area. 2. Further, council contends that the proposed use of an instrument under s 88B of the Conveyancing Act 1919 to regulate the management of the RU2 land is inappropriate given that there is a regime of planning controls in place to do that. 3. Ms Reid maintains that while s 96AA of the EPA Act is the source of power to grant a modification, s 96AA(1A) requires consideration of relevant matters under s 79C of the EPA Act. To this extent, some consideration could be given to cl. 4.6(6) PLEP which protects RU2 zoned land by protecting a 1 ha control. While there is still some scope for flexibility, it is very limited for RU2 land and, in this case, the allowance for flexibility has already been accommodated. 4. Regarding Mr Haskew's statement that the primary reason for the proposed incorporation of RU2 land into the residential lots is privacy, Ms Reid presses Mr Lovell's evidence that there is nothing to prevent individual owners from planting trees if they consider privacy is a concern. She maintains that given the terrain and limited access, the community lot is only capable of being used for passive recreation. Ms Reid asserts that the best way to ensure consistent maintenance is to keep it as community land as individual management could result in inconsistencies which will be difficult to police. 5. Ms Reid also stresses the fact that PLEP 2014 is a relatively new planning instrument and its intent should not be disregarded. Applicant's position 1. Mr Eastman for the applicant presses Mr Haskew's approach to focussing attention on the only RU2 zone objective which has any work to do, which is the maintenance of the rural landscape character of the land. 2. He maintains that the approved designation of the RU2 land as 'community' land has effectively removed its potential for primary industry production, and in any event, its topography and size would not be conducive for that purpose. 3. Mr Eastman submits that to all intents and purposes, all that will happen will be changes to lines on a plan. The proposed s 88B instrument, and the Neighbourhood Management Statement, will ensure that the RU2 zoned land is used and managed appropriately, albeit by separate owners. The applicant maintains that incorporating the RU2 land into the eight adjoining residential lots will provide better amenity for those residents as removing community access from that lot will avoid potential privacy issues. Findings 1. On the basis of the expert evidence and the parties' submissions, I am not satisfied that there is a proper planning basis for the further fragmentation of the RU2 zoned land, and nor can the proposal be approved on its merits. I find the applicant's contention that incorporating this land into the individual adjoining allotments improves the amenity of these lots by affording more privacy, does not outweigh council's proposition that the land should remain as a community allotment. 2. I agree with the parties that s96AA(1) of the EPA Act is the source of power for the modification of a consent granted by the Court. Section 96AA(1A) requires the consent authority to consider relevant matters in s 79C – including any applicable environmental planning instrument and any development control plan. 3. Relevant here is the consistent approach in PLEP and PDCP in regards to the minimum lot size for RU2 zoned land. While it is clear that the minimum lot size is already non-compliant, the non-compliance appears to be as a consequence of the site straddling two zones. The site inspection highlighted the fact that the zone boundary is reflected in the topography of the site. There is a natural boundary between the RU2 and R3 zones provided by the steep embankment. From the physical characteristics of the site it would appear that the original agreed pattern of subdivision retained this natural boundary and achieved the relevant control in Part C6.8 PDCP in regards to Residential Development Subdivision Principles requiring lot layout to respond to the physical characteristics of the site such as slope and existing vegetation. Further, the topography of the RU2 land, its retention of remnant canopy trees and its position relative to the adjoining vegetated and rocky escarpment of the adjoining lot to the west, reinforces the apparent logic of the original approval for its designation as 'community land' for the purpose of passive recreation and its consequential maintenance as a separate entity. I accept that on a broader level, the RU2 land forms a buffer between residential zones and environmental conservation zones. This complies with the desired outcomes in PDCP Part C6.1 and C6.2 in addressing water quality and conservation by conserving remnant vegetation along escarpments. 4. I accept that the size and topography of the RU2 land is such that it is unlikely to be usable for primary industry production. However, I consider that by placing the onus for maintenance onto individuals, the proposal has the potential to offend the zone objectives which seek 'to maintain the rural landscape character of the land' and 'to minimise conflict between land uses…within adjoining zones'. 5. Given the terrain, I am not satisfied that the applicant's concerns about privacy are likely to be realised. I prefer Mr Lovell's evidence that future owners of the adjoining lots, if they are concerned about privacy, will design their landscaping and dwellings accordingly. 6. From a practical perspective, the steepness of the embankment in the mid to northern section of the site will make it difficult for individual owners to access that part of their allotments without installing structures to facilitate this; otherwise access may be required across other allotments with the consequential need to obtain permission to do so. In addition, a drainage swale is required on the RU2 land; this is to be maintained by the Neighbourhood Association. It would therefore seem to make more practical sense, and achieve a better planning outcome, for the whole of that land to be managed and maintained by the Neighbourhood Association. Retaining the land in community ownership retains future options for its use and maintenance, including possible re-vegetation works. 7. I also accept the council's position that the fragmentation of the RU2 land challenges the integrity of the planning controls. I note Mr Lovell's evidence, and the internal report to council on 2 December 2015 (Tab 17, Exhibit 2) that the redrawing of zone boundaries has been considered relatively recently in a 2012 Strategic Review and that the boundaries have not been altered. According to council's report, the primary reason for the split zoning was due to the environmental constraints on that part of the site; additionally, no objections to the split zoning were received prior to the adoption of PLEP 2014. Conclusions and directions 1. While consent will not be granted for the incorporation of the RU2 land into the R3 allotments, I note the agreed position that the detention basin can be deleted and that lot converted to a residential allotment, orientation of lots 20 to 22, and that on-site rain gardens are permitted. 2. Therefore, the parties are directed to prepare plans and conditions which reflect these findings and which incorporate the agreed positions of the water management experts. 3. Once these plans and conditions have been provided to the Court, final orders will be made in chambers. Directions 1. The parties are to file and serve, in hard and soft copy, agreed consolidated conditions of consent, and a hard copy of the final plans, by close of business 20 July 2016. Conditions of consent 1. Following the directions made on 20 July 2016, the parties forwarded the proposed conditions of consent. All conditions are agreed except Condition C27 – final dot point, which reads: C27 Prior to the issue of a Construction Certificate, the draft Section 88B Instrument annexed to this consent and marked "A" is to be amended, as follows: · To prevent structures being built on the land zoned RU2 including fences. 1. The council seeks to impose this condition, the applicant opposes it. Given this disagreement, the parties were invited to file brief written submissions on their relative positions. 2. The applicant makes the following submissions: * The condition does not fairly and reasonably relate to the development that was approved by the modification application (as per Newbury DC v Secretary of State for the Environment [1981] AC 578). * The condition does not relate to the same planning matter as the elements of the development that were approved by the modification application. It is not necessary or relevant to the approved development, not does it arise in the assessment of those aspects that were approved (citing 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [51]; King & ors v Bathurst Regional Council (2006) 150 LGERA 362 at [104]). * The condition relates to an aspect of the modification that was refused. * It attempts to restrict development that may be lawfully carried out on the portion of the property zone RU2; there is no planning justification that would require the complete sterilisation of the RU2 land. * The council did not consider it necessary to impose the condition when it assessed the appropriateness of locating a community lot on the RU2 land. 1. Council submits that the condition should be imposed for the following reasons: * The applicant's Statement of Environmental Effects which accompanied the s 96 modification application includes a comment that: "Each of these allotments would be subject of a restriction on use pursuant to s 88B of the Conveyancing Act 1919, prohibiting the erection of any structure or the alteration of any surface level within the portion of each allotment zoned RU2. This restriction would prevent the erection of side boundary fences within each allotment zoned RU2". * The condition relates directly to the development for which approval is sought and which was ultimately approved. * It is necessary from a merit perspective to ensure the RU2 portion of the site is used and maintained for its intended purpose and retains the existing large trees which contribute to the rural landscape character. * The erection of any internal fencing or other structures would diminish its useability as community property. * In their joint report, the parties' planners agreed that any potential incorporation of the RU2 land into the adjoining residential lots would not allow fencing, other than along the eastern boundary where the community lot adjoined residential lots 15-22. Findings on disputed condition 1. Having considered the submissions made by the parties, I make the following findings. 2. As required by s 96AA(1A) of the EPA Act, I considered the relevant matters in s 79C. For the reasons provided in this judgment, the incorporation of the RU2 community lot into the adjoining residential lots was refused. This decision was made on planning, merit and practical grounds. 3. I disagree with the applicant's submission that the proposed condition does not relate, at least in part, to the approved development or is inconsistent with any of the decisions cited. The approved development as modified retains the community lot. During the hearing, the issue of fencing on the RU2 lot was discussed and remains relevant to the approved development. 4. Amongst other things, the modification application sought to modify the original consent by incorporating the RU2 zoned community lot on the western side of the site into the adjoining residential lot. As noted by council, the applicant, of its own volition, proposed a restriction on the erection of any structures, which would include fences, on the RU2 zoned land should the modification be approved. The applicant's position was that while dividing fences could be erected along the side boundaries of the residential lots, they could not be extended into the RU2 portion of the proposed new lots. This proposition was supported by the parties' planners in order to retain the rural landscape character of the RU2 zoned portion of the site. 5. Returning to those practical aspects of this site and the proposed condition and its reasonableness; as described in this judgement, the boundary between the zones and thus the community and residential lots is effectively defined by the topography; this is particularly so in the mid to northern sections. However, as the boundary is irregular and less well defined in some sections, it is not inconceivable that individual owners of the residential lots could inadvertently extend boundary fences onto the RU2 land. This potential problem could be cured by restricting all fencing to individual residential lots. 6. I agree with the applicant that the proposed condition as currently worded may preclude lawful development of the community lot that may be undertaken on behalf of all owners. 7. However, I agree with the council that there should not be any incursion of any private fence or structure from any individual lot onto the community land so as to retain the rural landscape character of the RU2 zoned land. 8. Therefore, I propose to modify the condition as follows: * To prevent any incursion of any structures, including fences, from any individual residential lot onto the land zoned RU2. Directions 1. In order to give effect to this decision, the parties are to provide a clean copy [no headers/ footers/ tracked changes] of both the modified conditions and the consolidated conditions of consent in word.docx by close of business 5 September 2015 and final orders will be made in chambers. Final orders 1. As directed, the parties filed the conditions which incorporate the modified element of condition C27. As a consequence, the orders of the Court are: 1. The appeal is upheld. 2. Application No. N0209/14/S96/2 made under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent No N0209/14 for the subdivision of land at 2 Fern Road, Warriewood is approved subject to the conditions set out in Annexure A. 3. As a consequence of order (2), Development Consent No N0209/14 is now subject to the consolidated, modified conditions of development consent set out in Annexure B. 4. The exhibits except 1 and A are returned. ____________________________ Judy Fakes Commissioner of the Court 155894.16 Annexure A - Modified conditions (63.0 KB, doc) 155894.16 Annexure B - consolidated conditions (462 KB, pdf) 155894.16 Amended Site Detail Plan (816 KB, pdf) 155894.16 Plan of Subdivision (245 KB, PDF) ********** 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: 07 September 2016