Land and Environment Court New South Wales Medium Neutral Citation: Greenfields Development Company No. 2 Pty Ltd v Camden Council [2019] NSWLEC 1412 Hearing dates: 22 July 2019 Date of orders: 03 September 2019 Decision date: 03 September 2019 Jurisdiction: Class 1 Before: Dixon SC Decision: The Court orders: (1) The appeal is dismissed. (2) The exhibits are returned apart from Exhibits A and 1. Catchwords: DEVELOPMENT APPLICATION – application for subdivision and dedication of public roads - including stratum subdivision – precedent – public interest Legislation Cited: Environmental Planning and Assessment Act 1979 Growth Centres (Development Corporations) Act 1974 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 Texts Cited: Oran Park Development Control Plan 2007 Category: Principal judgment Parties: Greenfields Development Company No. 2 Pty Ltd (Applicant) Camden Council (Respondent) Representation: Counsel: A Seton (Solicitor) (Applicant) Dr J Smith (Respondent) Solicitors: Marsdens Law Group Pty Ltd (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2018/146880 Publication restriction: No Judgment 1. COMMISSIONER: Greenfields Development Company No. 2 Pty Ltd (Greenfields) has appealed against Camden Council's deemed refusal of a development application for subdivision and dedication of public roads at G -South Circuit and 62-68 Central Avenue, Oran Park (site). 2. The development comprises: 1. subdivision of proposed Lot 15 in existing Lot 4 DP 270899 into two residue lots (Lots 16 and 17); 2. subdivision of existing Lot 9066 DP 1229619 into two residue lots (Lots 9080 and 9079); and, 3. dedication of roads approved under DA 2016/1534/1 and DA/2016/1535/1 being: 1. part of Dick Johnson Drive west of Oran Park Drive to be a public road dedication. 2. part of Oran Park Drive between Podium Way and Dick Johnson Drive to be dedicated in stratum, limited in height to 5.4m above the road surface level and limited in depth to a minimum of 2m or sufficient depth to contain all services within the public road. 3. part of Dick Johnson Drive between Oran Park Drive and Central Avenue to be dedicated in stratum, limited in height to 5.4m above the road surface level and limited in depth to a minimum of 2m or sufficient depth to contain all services within the public road. 1. The proposed stratum subdivision (Part Lot 17) under and above the road section of Oran Park Drive between Podium Way and Dick Johnson Drive between Oran Park Drive and Central Avenue is the reason for the Council's deemed refusal of the DA and the only matter of contention in the appeal. 2. The Council contends that the timing of the proposed stratum subdivision is problematic because there is no approved development on the sites adjoining the lengths of public roads proposed for stratum subdivision and therefore no understanding of the likely impacts of the proposal in that planning context. The Council argues that the stratum element of the DA should be considered more holistically when there is greater certainty about adjacent land uses. To do otherwise, it submits, sets a bad precedent in the LGA (which has to date resisted stratum subdivision of public roads) and frustrates the orderly and economic development of the Town Centre. 3. For the reasons that follow, I have also decided that the proposed stratum subdivision is premature and that the application is unacceptable after a merit assessment. The Evidence 1. Greenfields is the principal developer of the Oran Park Precinct. This Precinct is relatively large – spanning approximately 440m in a north south direction and 600m in an east west direction. Most of the Town Centre is located within the area bounded by higher order roads that include Oran Park Drive and Dick Johnson Drive. Together with the Council, and other stakeholders, Greenfields has been active in making representations to the State government for an extension of the Sydney rail network – the North South Rail Line (NSRL), to the Oran Park Town Centre. 2. To some extent, these representations have proved fruitful. Although the development of the NSRL corridor is yet to be confirmed by State government and the exact location of any train station – whether above or below ground level is undecided, Transport NSW has identified Oran Park Drive in the Transport for NSW's Infrastructure Plan "Future Transport 2056 and the Greater Sydney Services and Infrastructure Plan" as a "City Serving Corridor" and recommended a "station box" adjoining this public road. (A "City Serving Corridor" is defined as a higher density corridor located within 10km of a metropolitan centre). 3. The state plan below shows the proposed stratum subdivision in relation to the future NSRL corridor alignment. 1. The NSRL corridor is also identified in the Oran Park Indicative Layout Plan (ILP) which forms part of the Council's DCP for Oran Park, and within Greenfield's Master Plan of the Town Centre (which is yet to be adopted by the Council). 2. At the hearing the applicant sort to firm up the State government's commitment to the location of the NSRL proximate to Oran Park Drive by tendering various emails from Transport NSW addressing the future realignment of the NSRL corridor in this area. None of this correspondence however changed the fact that the proposed NSRL remains at this stage very much a long term strategic plan. 3. Greenfields submits that the planning intent behind its proposal is to provide the company flexibility and control of the land (airspace and subterranean corridor) required for any future connections across the subject roads. Future connections, that it submits are necessary in order to maximise pedestrian connectivity from the main part of town to peripheral support uses and the proposed future train station. Connections intended to minimise potential pedestrian conflict with vehicular traffic. 4. This planning objective for pedestrian connectivity is supported by the applicant's planning consultant, Mr Paul Grech, and the Council's consultant planner, Mr Glen Apps. In their joint planning report (Exhibit 7), they agree that the Oran Park Precinct has been designed to place the commercial/retail uses within an area bounded by higher order roads including Peter Brock, South Circuit, Oran Park Drive and Dick Johnson Drive – within which pedestrian activity will be substantially focused internally. They also agree that preserving the opportunity for the provision of pedestrian connections across Oran Park and Dick Johnson Drives as proposed does not necessarily generate any adverse impact because all future development(s) will be the subject of a separate DA planning assessment. 5. They also accept that the Oran Park Development Control Plan 2007 (DCP) does not expressly preclude the opportunity for pedestrian connections across or below roads which may be undesirable to cross at grade because of traffic. In short, their evidence is that the stratum subdivision does not of itself derogate from the functioning of roads and, subject to assessment, may provide pedestrian connections that will encourage walking to and from the main Town Centre area to the train station and support uses/open space located in the Precinct. 6. In giving this evidence, the planners rightly acknowledge that the proposed stratum subdivision of parts of Dick Johnson Drive and Oran Park Drive in the B2 Local Centre zone under Appendix 1 (Oran Park and Turner Road Precinct plan) of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growths Centre SEPP) is not only permissible with consent but also consistent with the relevant B2 zone objectives, namely: • To provide a range of retail, business, entertainment and community uses that serve the needs of people who live in, work in and visit the local area. • To encourage employment opportunities in accessible locations. • To maximise public transport patronage and encourage walking and cycling. • To ensure that mixed use developments present an active frontage to the street by locating business, retail and community uses at ground level. • To minimise conflict between land uses within the zone and land uses within adjoining zones. • To enable other land uses that are complementary to and do not detract from the viability of retail, business, entertainment and community uses within the zone. 1. It is also agreed that the roads as built have been properly constructed to appropriate standards. Furthermore, that the proposed height of the stratum at 5.4m above the road surface (with easements for access and maintenance of the street lights and trees) will meet the clearance requirements for structures over the roads, so as to allow for all potential vehicles to pass safely. Similarly, the proposed depth of 2m is sufficient depth to contain all services (and easements for support) to satisfy the requirement to ensure services can be accommodated in the road corridor. The dimensions of the proposed road to be dedicated would therefore satisfy the primary pedestrian, cyclist and vehicular traffic conveyance) and secondary (services corridor) functions. 2. Finally, the planners also agreed that any future connections across or under the proposed roads would need to be the subject of a development application(s) to Council under the provisions of the Growths Centres SEPP because they would be outside of the road proposed to be dedicated in stratum, and any potential alternate approval pathway available for development for the purpose of a road or road infrastructure facilities would not be available under State Environmental Planning Policy (Infrastructure) 2007. 3. In relation to the applicable DCP controls, the evidence is that the subdivision of proposed Lot 15 in existing Lot 4 DP 270899 meets the minimum lot size of 125m2 and 1000m2 as required by cl 4.1 of the Growth Centres SEPP and that the minimum subdivision lot size does not apply to this portion of the site. Furthermore, existing Lot 9066 DP 1229619 also achieves the minimum lot size. Lot 9080 is 2.54ha and Lot 9079 is 0.15ha. And, as this is a paper subdivision, no works are proposed under the subject application however, the Council has assessed the application as generally consistent with the ILP in accordance with Part A2.1 in the DCP. Additionally, it is accepted that each residue lot will be subject to future development application which will address the future community needs as required by Part A2.2 of the DCP. 4. Part A6.3 deals with salinity and soil management and no issues are raised in this case and any future applications for works will consider this application. 5. Part A6.6 deals with tree retention and biodiversity to ensure the protection and enhancement of existing significant trees. As this is a paper subdivision and no works or tree removal is proposed under the application, the proposal does not offend this provision. Nor is there any issue raised at this stage concerning remediation and the DCP provisions in that regard. 6. The planners also agree that the provision of pedestrian connections across Oran Park and Dick Johnson Drives will not necessarily undermine the objective of creating a people orientated and pedestrian friendly environment. Accepting that this is ultimately a matter for consideration when, and if, a future development application(s) is lodged. Council's position 1. Despite the above, the Council maintains that the timing of this application is ill conceived. 2. While the Council accepts that it is not uncommon for roads around commercial centres to be subject to stratum subdivision in order to separate aerial and subterranean pedestrian connections and arcades from a public road, the Council is concerned that the dedication of the roads in stratum as proposed will create potential for future planning issues that will not be able to be managed when assessing applications for connections across the road. 3. In particular, the Council is concerned that the position and design of future connections, together with the possibility of including commercial development within the connections, might undermine the site specific objectives of the Oran Park Development Control Plan which seeks to create a town centre with a "…people orientated and pedestrian friendly environment" by prioritizing vehicular traffic over pedestrian traffic. It submits that the creation of a stratum subdivision under and above the road sections of Oran Park Drive and between Podium Way and Dick Johnson Drive and the road section of Dick Johnson Drive between Oran Park Drive and Central Ave to facilitate potential future connections between developments on either side of the roads – while not prohibited, is not envisaged by the DCP. And, until there is sufficient information provided to understand the planning impacts on known uses, this form of subdivision should be avoided. 4. The Council submits that this type of built form will not have a human scale at street level as anticipated and encouraged by the DCP. In support of this submission, the Council referred the Court to the site specific controls in the DCP. In particular, DCP B1.2.1 which sets out the Vision and Development objectives relevant to the site: "In its transition from a working dairy farm and raceway into a modern thriving community, the Oran Park Town Centre is founded on a healthy respect for its rich and varied history, while forging a new and interesting history for the future community. Elements of traditional town centre design are balanced with new creative and unique directions for town centre design. It has an architectural quality that is attractive, diverse and interesting, utilising innovative and sustainable design. Together, the blending of the old and new will create a unique Oran Park Town Centre experience for all. This experience will be one that establishes character and identity, provides excellent legibility, offers a wide mix of land uses and encourages appropriate niche marketing, and combines the comfort of an arcaded shopping experience with traditional elements of a main street type centre. The vision for the Oran Park Town Centre is to create a people orientated and pedestrian friendly environment, where the built form has a human scale at street level, with cultural and civic expression. The Town Centre forms the heart of the new community, and becomes a place that welcomes everybody to live, shop, work, learn and play. Providing employment opportunities in a range of industries and professions is a critical element to ensure success of the Town Centre. A key focus of the Town Centre is education, integrating surrounding educational establishments and offering a range of opportunities for life-long learning. Quality residential opportunities are available for people to enjoy all of the benefits of town centre living. The Town Centre is prosperous and vibrant during the day and at night and all people feel safe and comfortable moving through the Town Centre at any time. The Oran Park Town Centre is not only a shopping centre, it is a true community hub providing all of the services and facilities that a community needs. At the heart of the Oran Park Town Centre itself is the community. Public open space, civic and community buildings, pedestrian friendly streets, shared ways and car-free areas are significant elements of the Town Centre. The design of the public and private realms is integrated to provide a sense of openness and space, with strong views and vistas. The Town Centre is designed to be used. A variety of spaces are located and designed for community interaction in large and small groups. Places are provided for recreation and entertainment, including community activities and cultural events. Centre is designed to be used. A variety of spaces are located and designed for community interaction in large and small groups. Places are provided for recreation and entertainment, including community activities and cultural events." 1. Accepting the agreed planning evidence that the provision of pedestrian connections across Oran Park and Dick Johnson Drive will not necessarily undermine the objective of creating a people orientated and pedestrian friendly environment and that the development itself does not offend this objective (Exhibit 7 at p 6 par 36) – the Council asks me at this point of time not to entertain the risk of undermining these objectives by approving the stratum subdivision. The train station and the location of the train corridor are uncertain and the development adjoining the stratum subdivision is simply unknown. 2. The Council is also concerned about setting an undesirable precedent in the LGA. Up until now, all roads in Oran Park have been wholly dedicated to the relevant road authority and none have been dedicated in stratum. In those circumstances and in the absence of a proper planning basis to break with its adopted practice of refusing stratum subdivision the Council invites the Court not to risk the possibility of undermining of the objectives of the DCP by approving this DA. It contends that an approval of this stratum subdivision without an understanding of the potential impacts on adjoining development will not promote the orderly and economic development of the land in accordance with the aims of the Environmental Planning and Assessment Act 1979 (EPA Act). 3. The Council emphasises the key vision for the Oran Park Town Centre, stated in Sections B1-2.1 Vision for the Oran Park Town Centre of the Oran Park DCP namely; to create a people-orientated and pedestrian friendly environment. To that end, the Oran Park DCP control B7.7 requires active street frontages to be maximised in the Town Centre. This outcome, the Council submits is particularly important for the mixed use and retail area of the Town Centre in which the stratum subdivision will be located. 4. The suitability of the extent and location of the proposed stratum cannot be established since there are no details available of the built form of any future connections. Mr Grech does not think this is a relevant consideration at this time. Mr Apps disagrees. He does not understand the need to provide opportunities for crossings above and below the entire road length. While he accepts that the Council would control the final form of development including location and extent of pedestrian access through the DA process, he questions why there is a need to provide pedestrian access above or below ground at all. 5. Oran Park Drive and Dick Johnson Drive are to be both 4 lane roads, and given their location in the Town Centre are likely to have a 60km/h speed limit. In that environment, Mr Apps believes that a mid-block at grade pedestrian crossing would not prove problematic to traffic flow if a signalised crossing was provided which could be synchronised with intersection traffic lights. For that reason he is of the opinion that there is simply no planning need for the above or below ground crossing as proposed. Alternately, he would support an amendment to reduce the stratum subdivision along Dick Johnson Drive to provide for one above or below ground crossing at the mid-block location only. 6. At par 56 of the joint report, Mr Apps expert assessment is recorded as follows: "… The stratum subdivision creates the potential for the provision of commercial outlets alongside future pedestrian connections across Oran Park and Dick Johnson Drives. Notwithstanding that the subject DA does not propose such floor space and that any such floor space would be the subject of future DAs … It is GA's preference that no commercial space is provided other than at grade and that the stratum subdivision is used solely for pedestrian movement's mid-block." 1. The Council relies on Mr Apps' evidence to make good its submission that the better option is for a consideration of the stratum subdivision element when there is greater certainty about the adjacent land uses and the chance to assess the likely impacts of the proposal from an urban design perspective. The Council shares Mr Apps' reservations about the need for the entire road to be stratum subdivided and accepts his expert assessment that an approval of this DA affords an opportunity for the creation of multiple crossings and the potential to reduce pedestrian movements along the streets rather than maximise pedestrian activity at the street frontage. 2. For those reasons, the Council submits that the stratum subdivision as proposed should be refused. Applicant's position 1. Greenfields contends on the evidence of Mr Grech that the timing of this application is sensible and a good planning initiative. It provides flexibility by allowing for a determination of the nature and location of any pedestrian crossing of Oran Park and Dick Johnson Drives based on the uses which eventuate on either side of the road. 2. Greenfields also submits that opportunity for these potential crossings and the provision of commercial developments which provide active street frontages are not mutually exclusive. These roads are proposed to have a 5.4m verge or greater on both sides incorporating tree planting and a 2.5m shared path to create pedestrian friendly streets in accordance with the objectives of the DCP. Moreover, an approval of these stratum dedications does not put the Council in a position where they would be required to approve possible future pedestrian connections that were unacceptable. The impacts of such possible future development applications will be assessed when and if they are lodged. 3. That said, the applicant submits that the provision of a mid-block crossing at grade must have some impact on the intended function of Oran Park and Dick Johnson Drives as sub-arterial roads. These roads have been designed to accord with the cross sections in the DCP. They will have two lanes in each direction and be 30m wide with a posted speed limit of 60km/h but have a design function of 70km/h. In those circumstances, the applicant submits that an appropriately designed and separated pedestrian crossing below or above ground may well provide a safer and quicker access across the Town Centre for pedestrians. An approval of this stratum subdivision leaves this opportunity for such pedestrian connection available. 4. Ultimately, the applicant invites me to accept that an approval of this application does not derogate from the functioning of roads but provides for possible pedestrian connections across roads that may prove undesirable to cross at grade. It provides opportunity for pedestrian connections which encourage walking to and from the main part of town to other areas and the future station and in that regard accords with the Council's planning controls. Consideration/findings 1. Although this stratum subdivision application does not include a proposal for pedestrian connections above and below the roads it seeks to keep that development option available. As such, Greenfields concedes an approval of this stratum subdivision makes any future proposal for such pedestrian connections easier. And, while this does not necessarily mean that such pedestrian connections will in fact be sought or ever approved by the Council there may be an expectation for approval of such development. In any event Greenfields submits if I am concerned about undermining the Council's DCP objective of creating a people orientated and pedestrian friendly environment by approving this DA I can find comfort in the fact that there will always be a need to lodge a further DA before any future connection is approved. Therefore, any planning concern that I may have about undermining the DCP is displaced by the requirement that this will be a matter for consideration when and if a future DA(s) is lodged. 2. The Council submits that the development of the Oran Park Town Centre is in its infancy and the timing of this application for stratum subdivision is premature. The adjoining land uses and built form remain uncertain and the train line and station a prospect in the future - sometime. And, while the potential for future pedestrian connections across or below Oran Park and Dick Johnson Drives may not be contrary to achieving the Council's desired planning outcome of a pedestrian friendly environment with active street fronts it contends on the basis of Mr Apps' evidence that an approval of this application cannot ensure this outcome. 3. Coupled with the fact that there is no satisfactory reason given to support a need for the stratum subdivision along the entire length of the roads the Council submits that an approval of the application does not promote the orderly and economic development of the land. It sets an undesirable precedent. I accept the Council's submissions. 4. While it is true that the Council could decide after assessment to refuse consent to an unacceptable DA for above or below ground pedestrian connections my decision to approve of this stratum subdivision as the applicant agrees makes such an application easier and arguably enlivens an expectation of approval which may have the effect of undermining the Council's DCP objective for active street frontages as discussed. 5. Although the DCP may be silent about below or above ground connections in the Town Centre the objective for active street frontages is clearly and specifically stated. I share Mr Apps' concern that an approval of the entire street as stratum subdivision may be at odds with that active street frontage planning objective. I am not satisfied on the evidence that there is a satisfactory planning basis for an approval of this stratum subdivision at this point of time other than the applicant's desire to retain the control of the land. I am told that this application is intended to provide for the potential for future connections and flexibility in regard to location. However, my decision to refuse consent to stratum subdivision today does not frustrate the opportunity in the future to make such application – at the time when there is greater certainty about the location of the train line and the station box and adjoining development. 6. Mr Apps does not see the need for the crossing below or above ground on Dick Johnson Drive particularly when a signalised crossing would suffice. I accept Mr Apps' evidence that it is not necessary to designate the entire street section as being subject to the stratum subdivision- this was not contradicted by Mr Grech. With regard to the need for crossings above and below ground on Oran Park Drive, this would be a matter to be determined when the railway station is properly planned and designed in which case the proponents for the station would be in a position to seek a subdivision of the stratum at that time to provide either above or below ground crossings as required. In a Town Centre such as envisaged at Oran Park (as outlined earlier), it is desirable to maximise street activation to encourage passing trade along the full extent of commercial streets. 7. I accept Mr Apps' expert assessment that the appropriateness or planning need for stratum subdivision should be considered more holistically when there is greater certainty about the adjacent land uses so that an assessment of the likely impacts of the proposal can be better understood. This approach, to my thinking, promotes the orderly and economic development of the land and avoids any undesirable precedent for stratum subdivision of public roads which to date the Council has successfully avoided. 8. At the end of the hearing, the Council raised a novel point to further support its case for refusal. While I have decided the matter on other grounds, it is appropriate that I address this issue of the Special Infrastructure Contribution (SIC). 9. The Oran Park Drive Consent includes condition 9 which requires the payment of a SIC in accordance with a Ministerial Direction under s 94EE in respect of developer contributions for the provision of infrastructure. 10. In this case, the applicant has opted to enter into a Works In Kind (WIK) agreement with the Department of Planning rather than make a monetary contribution to satisfy the SIC. 11. That said, the executed SIC WIK before the Court refers to the dedication of the "road work lands" as a public road not stratum subdivision and dedication (Exhibit 2, folio 179). 12. The applicant would like to make a stratum road dedication including the road surface with the shared cycle way, the planted trees and shrubs planted within the shoulder of the road and the centre and the street light infrastructure to a height of 5.4m above the road surface and below the road surface to a depth of 2m. 13. The Council contends that the SIC WIK is a planning agreement under the EPA Act and therefore is a specific consideration under s 4.15(1)(a)(iiia) and a mandatory consideration in my assessment of this DA. As the subject of the SIC WIK Deed is the dedication of the whole of the road, the Court submits that I should not frustrate the operation of the Deed by approving of the proposed stratum subdivision. 14. A planning agreement (or VPA) is dealt with under s 7.4 of the EPA Act and are defined as follows: (1) A planning agreement is a voluntary agreement or other arrangement under this Division between a planning authority (or 2 or more planning authorities) and a person (the developer): (a) who has sought a change to an environmental planning instrument, or (b) who has made, or proposes to make, a development application or application for a complying development certificate, or (c) who has entered into an agreement with, or is otherwise associated with, a person to whom paragraph (a) or (b) applies, under which the developer is required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose. 1. The applicant submits that the Special Infrastructure Contributions SIC WIK agreement is not a VPA under Division 11 of the EPA Act (Exhibit 2, folio 171). 2. The parties to the SIC WIK Deed are the Secretary of the Department of Planning and Environment for and on behalf of the Crown in right of New South Wales and the Developer not the Council. 3. A "planning authority" is defined in s 7.1 to include a Council, the Minister, or the Planning Ministerial Corporation, or a Development Corporation within the meaning of the Growth Centres (Development Corporations) Act 1974 or a public authority declared by the Regulations. 4. Section 7.8 sets out the Court's jurisdiction in relation to a planning agreement. There is no right of appeal to the Court. 5. In this case, the Minister has given a direction for an infrastructure contribution under s 7.17. The Council has imposed a condition in accordance with that Direction and the applicant has decided to enter into a SIC WIK in satisfaction of the condition with the Department. 6. The SIC WIK Deed made between the Department and the Applicant is made in satisfaction of the condition of consent imposed by the Council. The condition is responsive to the Direction of the Minister under s 7.17. 7. Clearly, SIC WIK created is not a Voluntary Planning Agreement VPA entered into under s 7.4 of the EPA Act. The fact that the SIC WIK Deed refers to the whole road is of no particular consequence, as it can be varied and more importantly is not a VPA entered into under s 7.4 and thereby not a mandatory consideration under s 4.15(1)(a)(iiia), it is merely a circumstance of the case under the public interest at its highest. 8. I do not need to say any more about the SIC WIK matter as my decision to refuse consent to the DA is based on the reasons as outlined earlier. Accordingly, the Court orders: 1. The appeal is dismissed. 2. The exhibits are returned apart from Exhibits A and 1. …………………… S Dixon Senior Commissioner of the Court ********** Amendments 04 September 2019 - Correction to typographical errors found at [25]-[26], [31], [38], [42]. 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: 04 September 2019