Land and Environment Court New South Wales Medium Neutral Citation: Warriewood Vale Pty Ltd v Northern Beaches Council & Anor (No. 2) [2017] NSWLEC 1220 Hearing dates: 27, 28 February 2017, 1 March 2017, submissions on conditions 3 April 2017 Date of orders: 03 May 2017 Decision date: 03 May 2017 Jurisdiction: Class 1 Before: Brown C Decision: 1.The appeal is upheld. 2. Development Application N0440/15 for the construction of a residential development, comprising 81 dwellings at 8 Forest Road, Warriewood is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits A, B and C. 4. Pursuant to s97B of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondents costs in respect of the amended plans filed as exhibits A, B and C in the agreed amount of $5000. . Catchwords: DEVELOPMENT APPLICATION: construction of a residential development comprising 81 dwellings – apportionment of dwelling yield over two properties Legislation Cited: Environmental Planning and Assessment Act 1979 Pittwater Local Environmental Plan 2014 Cases Cited: Warriewood Vale Pty Ltd v Northern Beaches Council, [2016] NSWLEC 77 Texts Cited: Landscape Concept Masterplan (2006) Proposed Lot Detail Plan (2006), Warriewood Valley Urban Design Study (2011) Warriewood Valley Strategic Review Report 2012 Warriewood Valley Strategic Review Addendum Report 2014 Category: Principal judgment Parties: Warriewood Vale Pty Ltd (Applicant) Northern Beaches Council (Respondent) Teresa Gualtietri, Peter Gualtietri, John Peter Cigliotti and Vincenzo Sacco (Interveners) Representation: Counsel: Mr M Staunton with Ms J Reid (Applicant) Mr A Stafford (Respondent) Ms A Tibbey (Interveners) Solicitors: Pikes & Verekers Lawyers (Applicant) King & Wood Mallesons (Respondent) LC Muriniti & Associates (Interveners) File Number(s): 16/151186 Publication restriction: No Judgment 1. COMMISSIONER: This appeal relates to Development Application N0440/15 for the construction of a residential development, comprising 81 dwellings (including an existing dwelling) at 8 Forest Road, Warriewood (Lot 1 DP 5055) (the site). Specifically, the application proposes: 1. demolition of the existing glass houses and outbuildings, 2. earthworks and excavation, 3. easements for access, 4. stormwater infrastructure, 5. landscaping, 6. tree removal, 7. Torrens Title subdivision of the site into 4 lots being: * Lot 11 with an area of 1.576 ha to accommodate 66 apartments within a three-storey residential flat building, * Lot 12 with an area of 2.216 ha to accommodate 14 dwellings in multi-unit housing form, * Lot 13 with an area of 0.5895 ha of creek line to be dedicated to the council, and * Lot 14 with an area of 1.297 ha to accommodate the existing dwelling and associated structures. 1. The council filed a Statement of Facts and Contentions that identified the following contentions: * failure to amalgamate and disproportionate dwelling density, * inappropriate access and road design, * inadequate water management, * inappropriate landscape outcome, * heritage impact, * unacceptable design, built form and resultant amenity impacts, * inadequate provision of essential services, * impact of bushfire measures and impacts on existing vegetation, and * fragmentation of rural land. 1. Following the submission of further plans and additional information, the council accepted that the only contention in dispute was the failure to amalgamate and the disproportionate dwelling density over the site and the adjoining property (4 Forest Road). 2. On 17 June 2016, Teresa Gualtietri, Peter Gualtietri, John Peter Cigliotti and Vincenzo Sacco, the owners of 4 Forest Road, were granted limited right of intervention (Warriewood Vale Pty Ltd v Northern Beaches Council, [2016] NSWLEC 77). The Court ordered that: (1) Pursuant to s 38(2) of the Land and Environment Court Act 1979 the interveners Teresa Gualtieri, Peter Gualtieri, John Peter Gigliotti and Vincenzo Sacco can participate on the matter of dwelling density (contention 1) through the making of legal submissions and calling town planning evidence in the s 34 process to the extent such an issue remains for consideration and also at any hearing on the merits, subject to the following conditions: (a) the Applicants on the motion agree to keep confidential all matters discussed in the s 34 conference; and (b) they will not at any time be entitled to make a claim to costs against any party to, or any other person in connection with the proceedings. 1. The Intervener has lodged a development application for concept approval for 28 dwellings on 4 Forest Road. The Intervener has filed a Class 1 application against council's deemed refusal of the application with the first directions hearing on 8 March 2017. At the time of the hearing, the council has not filed a Statement of Facts and Contentions in relation to this appeal. No further details were provided on the status of this application prior to the final orders being made in this appeal. The site 1. The site is an irregular shaped allotment, with a 201.17m southern boundary, 275.20m eastern boundary, 324.48m western boundary and an irregular northern boundary that follows the centreline of Narrabeen Creek for a total area of 5.678 ha. 2. To the north, the area around Jubilee Avenue is characterised by industrial and business park development, including warehouses, offices, wholesalers, and a number of childcare centres. 3. An unmade public road reserve (Boundary Street) adjoins the western side property boundary, with large vegetated parcels of E2 Environmental Conservation zoned land to the west and south-west. Mater Maria Catholic School is situated to the south, separated from the site by an unmade public road reserve (Forest Road). Relevant planning controls 1. The site has split zonings; with 2.855 ha zoned R3 Medium Density and the remaining 2.823 ha zoned RU2 Rural Landscape under Pittwater Local Environmental Plan 2014 (LEP 2014). The division between the two zones is consistent with the boundary of the "Warriewood Valley Release Area" (the Release Area) and the portion of the site zoned R3 forms part of Sector 501 (sometimes referred to as Sector 5) of the Release Area, as shown on the Urban Release Area Map of LEP 2014. 2. The R3 zoned portion of the site contains multiple outbuildings and dilapidated glass houses. An existing dwelling straddles the zone boundary and the Release Area boundary, but is primarily situated on R3 zoned land. 3. The land at 4 Forest Road is owned by the Interveners and is an undeveloped R3 zoned allotment. This land adjoins the south-eastern portion of the site, forming the remainder of Sector 501 of the Release Area. The remainder of properties along Forest Road comprise an existing medium density residential development. 4. Clause 6.1 of the LEP 2014 applies to the Release Area. Clause 6.1(1)(a) states: 6.1 Warriewood Valley Release Area (1) The objectives of this clause are as follows: (a) to permit development in the Warriewood Valley Release Area in accordance with the Warriewood Valley Strategic Review Report and the Warriewood Valley Strategic Review Addendum Report, 1. Clause 6.1(2) of LEP 2014 prohibits consent for the erection of dwellings unless they meet the density requirement referred to in Column 2 of the Table. Relevantly, Sector 501 permits "Not more than 94 dwellings or less than 75 dwellings" 2. Pittwater 21 Development Control Plan (DCP 21) applies. The R3 portion of the site is shown as being located within the "Warriewood Valley Land Release Area Locality" 3. Clause A4.16 (Warriewood Valley Land Release Area Locality) of DCP 21 states that the locality will be developed into a desirable urban community in accordance with the adopted planning strategy for Warriewood Valley, and will include a mix of low to medium density housing, industrial/commercial development and open space and community services. 4. Other relevant planning documents include a Masterplan comprising a Landscape Concept Masterplan (2006) and Proposed Lot Detail Plan (2006), Warriewood Valley Urban Design Study (2011) (Urban Design Study), Warriewood Valley Strategic Review Report 2012 (Strategic Review Report) and Warriewood Valley Strategic Review Addendum Report 2014 (Strategic Review Addendum). Failure to amalgamate The evidence 1. Expert town planning evidence was provided by Mr Greg Boston, for the applicant, Ms Rebecca Englund, for the council and Mr Tony Robb for the intervener. 2. Ms Englund accepts that the word "amalgamate" is not specifically used in the relevant provisions of LEP 2014 or DCP 21. The Strategic Review Report specifically nominates that Sector 501 should be developed together as a sector. This 'sector-based' development approach for Sector 501 differs from other sectors within the Release Area where pro-rata dwelling yields have been nominated for individual sites. Ms Englund states that, in her opinion, no real attempt to develop the sites together was made in advance of the lodgment of the application, with any offers to the owners of 4 Forest Road made as an afterthought, well after the establishment of the development concept for the site. Furthermore, the offers were not supported by an independent valuation, and did not appear to cover other reasonable expenses likely to be incurred by the owner of the adjoining site in the sale of the property. 3. Overall, Ms Englund maintains that the sites should be developed together and is concerned regarding the timing of amalgamation attempts by the applicant and a lack of information regarding the basis of the applicant's offers to purchase 4 Forest Road. 4. Mr Boston states, having reviewed the documentation relating to the attempted purchase of 4 Forest Road, including an understanding of the basis for the offer, that reasonable attempts appear to have been made by the applicant to purchase the property and secure a right of access across that site (including an offer to construct and pay for the road through 4 Forest Road). Mr Boston agrees that it would be desirable for both properties to be developed concurrently in terms of servicing, roadway design and drainage however he does not agree that there is a statutory requirement for this to occur particularly where reasonable attempts have been made to amalgamate the properties. 5. Mr Robb states that he has not been involved in the dealings between the parties regarding the sale of 4 Forest Road to the owners of 8 Forest Road and is not in a position to give evidence on the matter however he agrees that the two properties should be developed together as this is consistent with the Strategic Review Report. Even if the two parcels were to be developed in a coordinated fashion but without lot consolidation; this still raises the issue of what percentage of the overall available yield under LEP 2014 should be available to the owners of 4 Forest Road. The findings 1. The experts agree that neither LEP 2014 nor DCP 21 provide any statutory requirement to consolidate/ amalgamate 4 and 8 Forest Road to facilitate the development of Sector 501 although such an outcome is highly desirable. They also agree that the attainment of the maximum Sector 501 density of 94 dwellings is not contingent upon the amalgamation of the allotments and that the Planning Principles established by the Land and Environment Court going to the issue of site isolation do not strictly apply. I concur with these comments from the experts. 2. The Court was provided with extensive details of the discussions and offers between 4 and 8 Forest Road however unsurprisingly, no amalgamation could be achieved, largely I suggest for the reason described by Mr Robb. In my view, he is totally correct when he states that "given the way the LEP yield provision is drafted to cover both 4 and 8 Forest Road and, (which is further evident with this case), the diverging expert opinions as to what the highest and best use and yields on each of these properties might be, then there has been no common ground as to what would constitute a "reasonable offer". 3. Put simply, there could be no reasonable basis for any amalgamation because the owner of 4 Forest Road had a different view of the appropriate yield (and consequently the value of the property), presumably based on the recent development application submitted to the council. Similarly, the owner of 8 Forest Road had a different view (with a lesser yield and consequent value) based on this application before the Court. 4. Unfortunately, this issue (as well the separation of dwelling yield issue) could have been simply addressed by allocating each lot a proportion of the 94 dwellings rather than providing this number as a combined yield over both lots. The separate allocation of a yield for each lot would have no impact on the future development of Sector 501and would have likely facilitated the development of the sector given that there would be a solid base for negotiation for the sale of one of the lots. I have little trouble in concluding that the coordinated development of 4 and 8 Forest Road, in separate ownerships, is a relatively simple planning task when compared to the development of other multi ownership lots in other urban release areas of Sydney. 5. For this reason, the absence of the amalgamation of 4 and 8 Forest Road is not a matter that would warrant the refusal of the application. Residential dwelling yield The evidence 1. Ms Englund states that the Key Outcomes of the Strategic Review Report (p 78) is that the maximum density for undeveloped land in the Warriewood Valley Release Area is 32 dwellings per hectare. Prior to the adoption of the Strategic Review Report, the maximum density for undeveloped land in the Warriewood Valley Release Area was 25 dwellings per hectare. The dwelling yield prescribed by cl 6.1(3) of LEP 2014 is a reflection of these maximum densities, whereby future development should be developed at a minimum density of 25 dwellings per hectare and a maximum density of 32 dwellings per hectare. 2. Ms Englund acknowledges that there is a calculation error in relation to the density yield for Sector 501 that is not explained by the Strategic Review Report, and unfortunately, the error has been carried over to the dwelling yield prescribed by cl 6.1(3) of LEP 2014. The maximum yield prescribed by cl 6.1(3) of LEP 2014 for Sector 501 is 94 dwellings, and she agrees with Mr Boston that this figure does not correlate to 32 dwellings per hectare multiplied by the nominated developable area of Sector 501. However, Ms Englund disagrees with Mr Boston's reasoning why the maximum yield of 94 dwellings has come about. She states that Mr Boston's reliance on the findings of the Urban Design Study, which indicates that 8 Forest Road should be developed to accommodate 90 dwellings at a dwelling density of 42 dwellings per hectare and 4 Forest Road, should be developed to accommodate 4 dwellings at a dwelling density of 4 dwellings per hectare. While the reasoning offered by Mr Boston may be convenient in relation to the maximum dwelling yield of 94 dwellings, it does not explain the minimum dwelling yield of 75 dwellings, noting that this figure is also inconsistent with the 25 dwellings per hectare minimum density multiplied by the developable area nominated by the Strategic Review Report. 3. Ms Englund also notes that the calculations to which the Urban Design Study relies upon are also incorrect, as 42 dwellings per hectare multiplied by the nominated developable area for 8 Forest Road is equal to 89 dwellings, as compared to 90 dwellings, as nominated in Appendix 5 of the Strategic Review Report. Ms Englund considers that the errors in the calculations are not attributed to council's adoption of the Urban Design Study as suggested by Mr Boston, but rather due to an incorrect/inconsistent nominated developable area. This would explain why all calculations appear to be incorrect in relation to Sector 501 (and not just the maximum dwelling yield as suggested by Mr Boston). 4. Overall, Ms Englund is of the opinion that the subject application, in addition to the separate application relating to the development of 4 Forest Road, does not represent the integrated and orderly development of Sector 501. She notes the information presented by Mr Boston in relation to the development potential of 4 Forest Road, if anything, emphasises the importance of why the sites should be developed together. This is important when 8 Forest Road is reliant upon access via 4 Forest Road and the primary concern arising from the information presented by Mr Boston is the design and layout of the connecting road through 4 Forest Road. This may not necessarily be required if 4 Forest Road was to be developed independently. 5. Mr Boston states that the anticipated dwelling density of 32 dwellings per developable hectare of site area is misguided as the dwelling densities prescribed at cl 6.1(3) of LEP 2014 are expressed as a maximum and minimum number of dwellings for Sector 501 and not as a dwelling density per hectare. There is no correlation between the maximum sector dwelling density of 94 and a dwelling density of 32 dwellings per developable hectare as identified at Appendix 5 to the the Strategic Review Report. Mr Boston notes that the maximum dwelling yield for Sector 501 reflects the findings of the Design Study and as detailed at Section 7.2 of the the Strategic Review Report. In his opinion, the only reasonable explanation for council adopting a maximum dwelling yield for Sector 501 of 94 (90 + 4) dwellings is that they adopted the findings of the Urban Design Study which has a yield of 4 dwellings for 4 Forest Road and 90 dwellings for 8 Forest Road. 6. This approach is entirely consistent with the objectives of cl 6.1 of LEP 2014 as the dwelling density proposed of 81 dwellings sits within the maximum and minimum dwelling prescribed dwelling density for the sector. Further, based on the identified developable area for 8 Forest Road of 21,210.3 sq m, the 81 dwellings proposed represents a density of 38.188 dwellings per hectare which is well below the 42 dwellings per hectare (90 dwellings) anticipated by the Design Study. Such density leaves a potential dwelling density on 4 Forest Road of 13 dwellings which is significantly greater than the dwelling density of 4 dwellings per hectare (or 4 dwellings) anticipated by the Urban Design Study. Such density outcomes across the sector are not inconsistent with those anticipated by the the Strategic Review Report and not antipathetic to the cl 6.1 LEP 2014 objectives. 7. In relation to the question of whether such densities unreasonably limit the development potential of 4 Forest Road; Mr Boston notes that Section 1.2.2 of the Strategic Review Report contains a detailed Land Capability Assessment which identifies land with potential for intensification of development. The Land Capability Assessment considered environmental, economic and social characteristics that influence land use allocation decisions, such as biodiversity, topography, proximity to water courses, ridgelines, foreshores and waterbodies, cultural heritage, bushfire risks, geotechnical issues, coastal and estuarine processes, acid sulphate soils, reticulated sewer and water availability. Such assessment informed the potential for intensification of development in Sector 501 as an integral component of the Strategic Review Report. To challenge the validity of the Land Capability Assessment upon which the cl 6.1 of LEP 2014 maximum dwelling density standard was determined would, in his opinion, derogate from the numerical standard and give objective (a) of the standard no work to do. 8. Mr Robb states that his interpretation of the relevant objective in cl 6.1 is that development in the release area should be in accordance with the Strategic Review Report, specifically, the findings and recommendations, and not necessarily the separate findings of the consultant reports which lead to the overall findings. To justify the inequitable distribution of density across the sector, the applicant is relying heavily on the findings of the Design Study which is included in the Section of the Strategic Review Report entitled "Outcomes of the Consultants' Studies" as opposed to the "Recommendations for Residential Densities" which contains the conclusions of the the Strategic Review Report as a whole but importantly does not include the findings of the Urban Design Study. 9. According to the Urban Design Study; this report was undertaken in an extremely short time frame with the assistance of other experts specialising in flooding; traffic and economic feasibility. No experts were involved in the two areas which the authors consider to constrain development at 4 Forest Road to 4 dwellings, being geotechnical and bushfire. The Strategic Review Report refers to the Urban Design Study as an "initial examination". 10. In terms of density the Strategic Review Report includes criteria for "Assessing Land Capability". It is agreed that most of 4 Forest Road is shown to have a "moderate" level of capability. Such a designation means that "Existing" development forms require generic management prescriptions to achieve sustainable land use. Any intensification needs site specific investigation and must address constraints." The site was therefore identified in the "sieve process" for further "testing" 11. Mr Robb states that it is his opinion that the single main constraint identified for this site, being slope, (which also has implications in relation to stormwater management, built form; and bushfire) were not properly assessed (as the Strategic Review Report suggests in the form of a site-specific investigation) in these specialised fields but rather in the fields of Flooding; Urban Design; Transport and Economic Feasibility. This may be a reason why the council ultimately decided not to include the findings of the Urban Design Study for 4 Forest Road in the Recommendations related to Residential Densities however it really does not matter why the findings were not adopted. 12. Mr Robb agrees with Ms Englund in so far as if it was intended to attach determinative weight on the findings of the Urban Design Study then the Recommendations for Residential Densities in the Strategic Review Report (Map 11) and cl 6.1(3) of LEP 2014 would be quite different as Sector 501 would be divided to indicate different minimum and maximum yields, which is clearly not the case. 13. Furthermore, with respect to the weight to be attached to the findings of the Urban Design Study, the experts agree that "the development potential of 4 Forest Road could potentially exceed the potential yield of 4 dwellings as outlined in the l/lA/L/DS." This is extremely important as it goes to show that with the benefit of further testing, the yield for 4 Forest Road is not merely considered to potentially exceed the yield of 4 but rather, significantly exceed this yield. Without getting into the merits of the concept application for 4 Forest Road, Mr Robb states that it is his opinion that the methodology followed in the preparation of the concept application is in accordance with the Strategic Review Report in terms of the identification of constraints; site and issue specific testing and investigations and the means of addressing such constraints. 14. In assessing the distribution of density across Sector 501, Mr Robb states that the starting point is cl 6.1(3) which requires development across the entire Sector to have a yield of between 75 and 94 dwellings. The next consideration is the objectives of this clause which requires development to be in accordance with (as relevant to this matter) the Strategic Review Report. In his opinion, the proposal needs to accord with the conclusions and recommendations of the Strategic Review Report and not the outcomes of separate consultant reports. Specifically, the Urban Design Study was ultimately not adopted, for whatever reason. It is further submitted that by complying with the yield range, one accords with Strategic Review Report because reading the whole document leads to the conclusion that its very purpose is to determine sector yields. What is the combined dwelling yield for 4 and 8 Forest Road? 1. Clause 6.1 of the LEP 2014 applies to the Warriewood Valley Release Area. Clause 6.1(1)(a) states: 6.1 Warriewood Valley Release Area (1) The objectives of this clause are as follows: (a) to permit development in the Warriewood Valley Release Area in accordance with the Warriewood Valley Strategic Review Report and the Warriewood Valley Strategic Review Addendum Report, 1. The Strategic Review Report is a fundamental document in the consideration of the dispute between the parties. It was adopted by council on 12 June 2013. The relevant parts of the resolution are: 2. That Council, subject to correcting of the typographical mistakes detailed in 7.8 of this report and noting that the attached Planning Proposals are to be amended to reflect the dwelling yields nominated in actions 5 and 6 of this recommendation, adopt the Warriewood Valley Strategic Review Report. . . 5. That Council endorse the progression of the statutory rezoning process to rezone Sectors 901A (including 9 Fern Creek Road) and Orchard Street Road Reserve (north-east portion), 901B, 901C, 901F and 9 Fern Creek Road to 2(f) (Urban Purposes - Mixed Residential); and to increase the maximum dwelling yield permitted for the sectors listed below which have a Flood Planning Level free evacuation route but are isolated during the PMF event, subject to the NSW Government agreeing to emergency flood response being facilitated by an evacuation route at the 1% AEP, as set out in the attached Planning Proposal which is to be forwarded to the Department seeking Gateway Determination (see Attachment 8). * Sector 301, having a maximum 53 dwellings * Sector 302, having a maximum 84 dwellings * Sector 303, having a maximum 29 dwellings * Sector 501 (also known as Sector 5), having a maximum 94 dwellings (my emphasis) * Sector 801, having a maximum 38 dwellings * Sector 901A (excluding 9 Fern Creek Road) and Orchard Street Road Reserve (north-east portion), having a maximum 192 dwellings * Sector 901B, having a maximum 36 dwellings * Sector 901C, having a maximum 22 dwellings * Sector 901F, having a maximum 14 dwellings * Sector 10B, having a maximum 45 dwellings * Buffer 2a, having a maximum 29 dwellings; and * Buffer 3b, having a 9 dwellings. 1. While Mr Boston and Ms Englund highlighted the inaccuracy in transferring the density from dwellings per hectare to an overall dwelling yield for Sector 501and have different preferred versions on how this best suited their respective positions, I see no need to delve into this matter or make any specific findings. It is only necessary, in my view, to simply adopt the Strategic Review Report recommendation by council on 12 June 2013 that allows for a combined yield of a maximum of 94 dwellings for 4 and 8 Forest Road. 2. The experts agreed that the combined dwelling yield for 4 and 8 Forest Road is 94 dwellings, including the existing dwelling on 8 Forest Road that is to be refurbished. The experts and the submissions from the advocates also accept that as cl 6.1(2) of LEP 2014 prohibits consent for the erection of dwellings unless they meet the density requirement. Consequently, the 94 dwellings requirement cannot be varied through cl 4.6 of LEP 2014. What is the appropriate dwelling yield for each 4 and 8 Forest Road? 1. Mr Boston states that the Land Capability Assessment reports prepared by himself and Ms Gabrielle Morrish indicate that between 10 and 13 dwellings could potentially be accommodated on 4 Forest Road. This figure could however be reduced if the evidence of Mr Graham Swain is accepted by the Court as the 20m APZ required to the western boundary does not, in his opinion, satisfy the requirements in Planning for Bushfire Protection. Other constraints that may further reduce available land for residential use relate to roadway geometry adjacent to the driveway of Mater Maria College to the south and the location and design of any required drainage basin. 2. In relation to the assertion that development should occur in accordance with the approved Landscape Concept Masterplan for Sector 501 (2006), Mr Boston endorses the position that the Landscape Concept Masterplan has now been superseded by LEP 2014 given that the Concept Masterplan was not implemented prior to the gazettal of LEP 2014, and prior to the more detailed site specific land capability assessment contained within Urban Design Study. In his opinion,this informed the densities adopted by the Strategic Review Report and ultimately prescribed at cl 6.1 of LEP 2014. Further, the Landscape Concept Masterplan is not called up by LEP 2014, DCP 2014 or any other current statutory planning document. 3. Accordingly, Mr Boston forms the opinion that the Landscape Concept Masterplan is an irrelevant consideration for the current application. 4. Ms Morrish disagrees with Mr Robb that the Urban Design Study referred to in the Strategic Review Report should be given little or no weight. The Urban Design Study sets out the process that was followed. This being; * Step 1 - preliminary review of land parcels to investigate their development potential, * Step 2 - a land capability assessment, which identified land with the potential for intensification of development. The capability study considered environmental, economic, and social characteristics eg topography, geotechnical issues etc. This study identified Sector 501 as having potential, which includes both 4, and 8 Forest Road. At that time both lots had a potential density of 25 dwellings per hectare, and * Step 3 - a detailed investigation to determine the "appropriate level of development" for the identified sectors. Independent studies were undertaken including hydrology, urban design to determine recommended density. The Urban Design Study is stated as taking into account each "individual sectors environmental attributes and locational context". 1. The Strategic Review Report and the consultant studies were exhibited for 8 weeks and received submissions and are directly referenced within the Strategic Review Report that has been adopted and are still referenced in the same manner within the amended report without being changed. 2. The Urban Design Study determined that 4 Forest Road was capable of accommodating 4 dwellings and that 8 Forest Rd was able to accommodate 90 dwellings. The study process undertaken to arrive at this conclusion (Section 1.3) involved an initial site visit and briefing, then desktop analysis to determine the constraints and opportunities including "bushfire protection zones, context of adjacent development, land slope, geotechnical characteristics, flooding and biodiversity". After this work, a second site visit was undertaken for a more detailed site inspection and context inspection. The final conclusions were then work-shopped at a meeting with the rest of the study team to discuss the assumptions and test the footprints against traffic and flooding constraints. 3. Ms Morrish states that the report has undertaken more than just a "preliminary" consideration of the likely constraints such as topography and the proposed yield been tested and proofed by other expert consultants including council staff and Department of Planning representatives. In addition, the Strategic Review Report (Table 3) in the Key Outcomes concludes that Sector 501B (or 8 Forest Road) was individually suitable for a higher density. This density is listed as 42 dwellings/hectare whereas the study recommended a reduced density for 4 Forest Road at 4 dwellings/hectare. The Strategic Review Report conclusions and the figures for the development capacity of each land parcel in Sector 501 should be given some weight and not discounted as only high level and preliminary. 4. Ms Englund notes the recommended residential densities highlighted on Map 11 of the Strategic Review Report shows both 4 Forest Road and 8 Forest Road coloured green, with a maximum dwelling density of 32 dwellings per hectare. Based on this map, and the general summary statements of the Strategic Review Report, Ms Englund understands why the owners of 4 Forest Road would consider that their site, if developed independently, could be developed at the same rate of the adjoining site at 8 Forest Road, at 32 dwellings per hectare. Ms Englund notes that Map 11 and Table 4 of the Strategic Review Report are in contrast to the recommendations of the Urban Design Study, which recommended a maximum dwelling density of 42 dwellings per hectare for 8 Forest Road and 4 dwellings per hectare for 4 Forest Road. If council had in fact adopted such recommendations, Map 11 and Table 4 of the Strategic Review Report would have been presented quite differently, as other sites have been, with different colours demonstrating different densities for each respective site in Sector 501. 5. Ms Englund notes also that Sector 501 has an approved Masterplan which was developed to justify the rezoning of the sites in 2006. The Masterplan was produced prior to the adoption of the Warriewood Valley Planning Framework in 2010, when the 25 dwelling per hectare maximum dwelling density was adopted for the majority of the undeveloped residential allotments within the Release Area. The Masterplan is in the form of both a Landscape Masterplan and a Proposed Lot Detail Plan. The approved Masterplan provides for 18 dwellings at 4 Forest Road, in the form of semi-detached dwellings and individual dwellings. Ms Englund considers that if the sites were to be developed independently, 4 Forest Road could be reasonably developed in the manner depicted on the approved Masterplan, with at least 18 dwellings on this portion of Sector 501. If the subject application were to be approved with the proposed density, the development of 4 Forest Road would be limited to 13 dwellings, despite the fact that it has been demonstrated that 4 Forest Road can reasonably accommodate at least 18 dwellings by the Masterplan. Ms Englund maintains that the review of the concept application submitted for 4 Forest Rd demonstrates that there are significant topographic, hydraulic and bushfire constraints on achieving development on this site. It is likely that the urban design report recognised the potential impact of these constraints and therefore was conservative in its estimate of the likely final yield possible 6. Mr Robb states that to justify the inequitable distribution of density across Sector 501, Mr Boston and Ms Morrish rely on the findings of the Urban Design Study which is included in the section of the Strategic Review Report entitled "Outcomes of the Consultants' Studies" as opposed to the "Recommendations for Residential Densities" which contains the conclusions of the Strategic Review Report as a whole but importantly does not include the findings of the Urban Design Study. According to the Urban Design Study "Study Process", the Study "has been undertaken in an extremely short timeframe" with the assistance of other experts specialising in flooding; traffic and economic feasibility. No experts were involved in the two areas which the authors consider to constraint development at 4 Forest Road to 4 dwellings -geotechnical and bushfire. The Strategic Review Report refers to the Design Study as an "initial examination". 7. Mr Robb maintains that the single main constraint identified for this site, being slope, (which also has implications in relation to stormwater management; the built form; and bushfire) were not properly assessed (as the Strategic Review Report suggests in the form of a site-specific investigation) in these specialised fields but rather in the fields of Flooding; Urban Design; Transport and Economic Feasibility. This may be a reason why council ultimately decided not to include the findings of the Urban Design Study for 4 Forest Road in the Recommendations related to Residential Densities. 8. Mr Robb agrees with Ms Englund that if it was intended to attach determinative weight on the findings of the Urban Design Study then the Recommendations for Residential Densities in Map 11and cl 6.1(3) of LEP 2014 would be quite different as Sector 501 would be divided to indicate different minimum and maximum yields, which is clearly not the case. Findings 1. There are a number of matters that the experts agree on in relation to density or the yield for 4 and 8 Forest Road. Importantly, they agree that the pro-rata method based on lot size, as suggested in the pre-lodgment process, is not appropriate. 2. The experts disagree on the appropriate distribution of the maximum 94 dwellings over the two lots with the applicant allowing 13 dwellings for 4 Forest Road (based on the proposed yield of 81 dwellings). The Intervener has lodged a development application for a concept approval for 28 dwellings on 4 Forest Road (leaving 66 dwellings for the applicant or the need to reduce the number of dwellings by 15 dwellings over that submitted with this application). The council maintains that the appropriate number of dwellings is around 18 dwellings for 4 Forest Road based on the Masterplan for the two properties (leaving 76 dwellings for 8 Forest Road). 3. While it does not answer the question of the appropriate distribution of dwellings over 4 and 8 Forest Road, I find it necessary to state that this fundamental issue would not need to be raised if Sector 501 was simply allocated two individual yields that totaled 94 dwellings. Ms Englund and a number of the planning documents seemed to rely on the fact that the sites would be amalgamated so there was no need to distribute the yield over the two lots. The futile efforts to amalgamate the sites was set out in the evidence and failed because of the inability to reasonably value either the two properties because both sets of owners had vastly different views of what percentage of the 94 dwellings each property was entitled to. That said, the Court can make the required distribution based on the evidence provided at the hearing. 4. As a starting point, the council accepted that the yield of 81 dwellings on 8 Forest Road was within the environmental and physical capacity of that site. All concerns relating to the proposed development and identified in the council's contentions have been addressed through amendments to the original plans. This does not mean however that 4 Forest Road is only entitled to 13 dwellings because of the design proposed for 8 Forest Road. The question of the capacity of 4 Forest Road to accommodate residential development must also be considered as part of the potential distribution of the dwelling yield over both properties. The potential yield, from the evidence, can be summarised as: * 4 dwellings - Urban Design Study * 10 dwellings – Ms Morrish * 13 dwellings – Mr Boston, * 18 dwellings – Ms Englund, the Masterplan, and * 28 dwellings – Mr Robb. The potential yield for 4 Forest Road 1. As a starting point, I did not understand there to be any conflict between the experts that 4 Forest Road does not have the same potential for residential development as 8 Forest Road, putting aside the different areas of the two properties. Section 1.2.2 of the Strategic Review Report contains a detailed Land Capability Assessment which identifies land with potential for intensification of development. The Land Capability Assessment considered environmental, economic and social characteristics that influence land use allocation decisions, such as biodiversity, topography, proximity to water courses, ridgelines, foreshores and waterbodies, cultural heritage, bushfire risks, geotechnical issues, coastal and estuarine processes, acid sulphate soils, reticulated sewer and water availability. The map at Figure 2 identified the Level of Capability as largely "Less" for 4 Forest Road and largely "Moderate" for 8 Forest Road. This demonstrates that it terms of the approach to dwelling yield that approximately 85% of 4 Forest Road has development capability one level less than that identified for 8 Forest Road on the Land Capability Assessment. 2. The key environmental constraints to development on 4 Forest Road are identified as: * bushfire and APZ requirements, * geotechnical hazard 1 mapping, * slope 15-25%, * biodiversity, and * proximity to ridgeline (visual impact). 1. The Urban Design Study adopts the physical characteristics of the Land Capability Assessment in the Strategic Review Report under the heading of "Terrain/Topography" and makes the following comments in relation to the preferred urban design outcomes for 4 Forest Road; The preferred urban design outcome for the site comprises a mix of typologies which have been determined based on both the existing adjacent context and the significant slope issues particularly for Parcel A It was determined for Parcel A that due to the steep slopes and the APZ requirement the only building typology that can be accommodated is large lot detached housing with a road along the eastern edge of the site which can also connect through to Parcel B providing both an additional traffic access point for Parcel B and emergency fire services access to the escarpment 1. For comparison, the Urban Design Study makes the following comments for 8 Forest Road; The Parcel B proposal comprises a mix of 2 storey townhouses with rear lane parking access and 3 4 storey apartment buildings The site has a 25 metre creek buffer on the northern edge and a 25 metre APZ buffer on the southern and western edges which limit development The townhouses have been located to the rear of the existing small lot housing to avoid overlooking the rear yards The apartment buildings have been located further into the site with the 3 storey building adjacent the townhouses stepping up to the 4 storey apartment building behind The tree canopy heights will visually absorb the increased height of the buildings. Can 4 Forest Road accommodate 4, 10, 13, 18 or 28 dwellings? 1. It was generally agreed by all the experts that 4 dwellings as set out in the Urban Design Report was too conservative and that 4 Forest Road could accommodate a greater dwelling yield. I agree with their conclusions so the maximum potential yield of 4 dwellings should be rejected. 2. Next, I will deal with Mr Robb's position that 4 Forest Road can accommodate 28 dwellings. This figure is based on the undetermined concept development application submitted to the council. While the experts were careful in not conducting a merit assessment of this application, the application nonetheless must be seen as a genuine attempt provide a development that the owners of 4 Forest Road consider is appropriate given the zoning of this property(including cl 6.1(1)(a)), any DCP requirements and having regard to the many studies undertaken for the Warriewood Valley. 3. I do not accept that a yield of 28 dwellings for 4 Forest Road can be supported for a number of reasons. First, the yield relies on a residential flat building typology. This form of development is not envisaged by the Masterplan, the Urban Design Study or is considered appropriate to Ms Englund, the council's expert town planner. Even Mr Robb raised doubt over the residential flat building typology and suggested other forms of residential development may be used, but without specifying the alternative type of residential development. Second, and even if a residential flat building typology was acceptable, the necessary road location and grades of the site would unlikely to allow a good urban design outcome in relation to streetscape and ingress and egress. Third, and while the concept plan application does not provide the level of detail expected in a development application, I accept that sufficient relevant concern has been raised over the need for retaining and battering of fill by Ms Morrish to question the suitability of the site to accommodate the proposed yield. Fourth, the separation of the proposed townhouses from their allocated car parking is not an acceptable design solution and highlights that the physical constraints of the site restrict residential development, particularly the slope. 4. Next, Ms Englund relies on the 18 dwelling yield for 4 Forest Road from the Masterplan. Ms Englund and Mr Boston provided much evidence on whether the Masterplan or the Urban Design Study should be given greater weight in deciding the question of the yield for 4 Forest Road. Having found that the recommendation of the Urban Design Study for 4 dwellings was not appropriate, I am also not satisfied that the 18 lot yield suggested by the Masterplan is appropriate. The Masterplan is some 11 years old and while it does not need to be specifically stated that the Masterplan has been superseded by the Urban Design Study; the Urban Design Study represents the councils more recent thinking on the yield for 4 Forest Road. The Urban Design Study importantly adds an additional dimension to the consideration of the potential yield for 4 Forest Road by considering, in greater detail, the potential forms of residential development that may be suitable. Presumably, the persons responsible for the preparation of the Urban Design Study were aware of the 18 lot yield suggested by the Masterplan and found that this was not supportable based on their assessment. 5. The 18 lot yield suggested by the Masterplan is also simplistic in its layout and appears to have little regard for topography, availability of building platforms, access grades or other matters that are fundamental to its use for residential purposes. I am satisfied there sufficient reasons to reject the 18 dwelling yield for this property as suggested by Ms Englund. 6. Of the remaining potential dwelling yields of 10 and 13 dwellings; I find it is not necessary or possible to determine one over the other with any accuracy. Even if the larger yield of 13 dwellings is adopted for 4 Forest Road, then cl 6.1(2) of LEP 2014 is satisfied as Sector 501 will have a maximum yield of 94 dwellings. The number of dwellings would be subject to the specific design for 4 Forest Road although not exceeding 13 dwellings. 7. The applicant through its bushfire expert, Mr Swain, questions the proposed 20 m Asset Protection Zone (APZ) for 4 Forest Road and based on the site conditions and the requirements of Planning for Bushfire Protection. He suggests that the appropriate APZ is 32 m thus further reducing the available area to accommodate residential development While Mr Swain may be correct, I have not taken this concern into account as it would be inappropriate to accept his conclusions without further evidence. In any event, I am satisfied there already sufficient reasons to reject the 28 dwelling yield for this property as suggested by Mr Robb. 8. I am satisfied that the development of 8 Forest Road for 81 dwellings is consistent with cl 6.1(1)(a) of LEP 2014 and cconsequently, there is no barrier to the approval of a development on 8 Forest Road that has a dwelling yield of 81 dwellings. Conditions 1. The parties reached agreement on the conditions of approval with the exception of whether a deferred commencement condition should be included (council) or whether the condition should be deleted. (applicant). The condition in dispute states: Council is to be satisfied that as at the date that is 6 months from the date on which this consent is issued that no more than 94 dwellings have been approved under Part 4 of the Environmental Planning and Assessment Act 1979 when taken with any existing dwellings that are not the subject of an approval for demolition, in the area known as Sector 5 marked as 5 on Pittwater Local Environmental Plan 2014, Urban Release Area Map - Sheet URA_012 1. The council maintains that this condition is intended to ensure, if the proposal is approved, that council (when considering whether the deferred commencement condition is satisfied) and the Court (when imposing the deferred commencement condition) can be satisfied that the prohibition in cl 6.1(3) of the LEP 2014 will not be offended before granting consent and without picking favourites in connection with any other application made on other land in the sector (on the assumption that Council would seek to have the same condition imposed on any other consent) - because the condition ensures cl 6 1 (3) will not be breached even if, for example, any other proposal is approved in Sector 5 before this proposal 2. The applicant objects to the imposition of the condition limiting the operation of any development consent for 6 months. The proposed condition obliges the council to be satisfied, at that time that no more than 94 dwellings have been approved in the area known as Sector 501. The condition does not stipulate what is to happen if any intervening consent on 4 Forest Road approved a density greater than 13 dwellings. The council's reason for the imposition is to ensure that the Court is not 'picking favourites' when considering the appropriate densities across the two lots that comprise Sector 501. 3. I accept the applicant's submissions on this condition. The allocation of dwelling yield for Sector 501 is not about "picking favourites" but clearly a matter that has been exhaustively addressed through expert evidence including expert evidence from the owners of 4 Forest Road and the opportunity to make submissions on dwelling yield. Orders 1. The orders of the Court are: 1.The appeal is upheld. 2. Development Application N0440/15 for the construction of a residential development, comprising 81 dwellings at 8 Forest Road, Warriewood is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits A, B and C. 4. By consent, and pursuant to s97B of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondents costs in respect of the amended plans filed as exhibits A, B and C in the agreed amount of $5000. _______________ G Brown Commissioner of the Court 151186.16 Slip Rule (C) gtb (313 KB, pdf) Amendments 20 June 2017 - Conditions Amended - Slip Rule 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: 20 June 2017