Aristides v Bayside Council

[2017] NSWLEC 1248

Land and Environment Court

New South Wales

Medium Neutral Citation:	Aristides v Bayside Council [2017] NSWLEC 1248
Hearing dates:	20-21 April 2017
Date of orders:	23 May 2017
Decision date:	23 May 2017
Jurisdiction:	Class 1
Before:	O’Neill C
Decision:	1.   The appeal is dismissed. 2.   Development Application No. 2016/177 for construction of two dwellings and subdivision of the land into two lots at 32 Beauchamp Road, Hillsdale is refused. 3.   The exhibits, other than exhibit 9, are returned.
Catchwords:	DEVELOPMENT APPLICATION: two lot subdivision and construction of two dwellings; whether the location of the site within an area identified as a hazard risk from the Botany Industrial Park is suitable for residential intensification; whether the proposal is inconsistent with the subdivision pattern and character of existing development.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	BGP Properties v Lake Macquarie (2004) 138 LGERA 237
Category:	Principal judgment
Parties:	Aristos Aristides (Applicant) Bayside Council (Respondent)
Representation:	Counsel: Mr A. Whealy solicitor (Applicant) Mr R. White barrister (Respondent)   Solicitors: Mills Oakley (Applicant) Houston Dearn O’Connor Lawyers (Respondent)
File Number(s):	2016/377255

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of Development Application No. 2016/177 for construction of two dwellings and subdivision of the land into two lots (the proposal) at 32 Beauchamp Road, Hillsdale (the site) by Bayside Council (the Council).

2. The appeal was subject to mandatory conciliation on 20 April 2017, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979 (LEC Act). As agreement was not reached, the conciliation conference was terminated and the hearing held forthwith, pursuant to s 34AA(2)(b)(i) of the LEC Act.

3. Leave was granted by the Court on 18 April 2017 for the applicant to rely on an amended proposal.

Issues

4. The Council’s contentions can be summarised as:

• The site is not suitable for residential intensification due to it being within the consultation region defined in the 2001 Botany Randwick land use safety study; and

• The proposal for a battle axe block is inconsistent with the subdivision pattern and character of the existing development fronting Beauchamp Road.

5. The Council’s contention regarding the potential flooding affectation of the site was addressed to the satisfaction of Council’s expert by the raising of the floor level of the dwellings and changes made to the levels of the driveway and parking spaces (exhibit F). Leave was unopposed and granted by the Court for the applicant to rely on the further amended proposal in exhibit F.

6. The parties agreed to a condition requiring the subdivision of the site to be imposed on the consent.

The site and the proposal

7. The site was previously owned by Sydney Water and was kept as open grassland. The site has been remediated and is currently vacant and devoid of any vegetation.

8. The site area is 548.3sqm, with a frontage to Beauchamp Road of 14.835m. A drainage reserve adjoins the site along its western boundary running north-south.

9. The proposal is to construct 2 two-storey dwellings and subdivide the site into two allotments, with a driveway accessing the rear allotment adjacent to the western boundary.

Planning framework

10. The site is zoned R3 Medium Density Residential pursuant to the Botany Bay Local Environment Plan 2013 (LEP 2013). The objectives of the R3 zone, to which regard must be had at cl 2.3(2), are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To encourage development that promotes walking and cycling.

11. The floor space ratio (FSR) development standard for the site is 1:1 (Floor Space Ratio Map FSR_005 LEP 2013) and the height of buildings development standard is 10m (Height of Buildings Map HOB_005 LEP 2013). The nearby properties on the eastern side of Denison Street and fronting Beauchamp Road towards the corner of Denison Street have a FSR development standard of 0.55:1 and height of buildings development standard of 9m.

12. There is no minimum lot size for the site in LEP 2013.

13. The Botany Bay Development Control Plan 2013 (DCP 2013) includes, at 3E.2.2 Residential Torrens Title, the following relevant objectives and controls:

O1 To ensure that the proposed subdivision is consistent with the Desired Future Character of the area;

O2 To ensure the proposed subdivision is consistent the existing or prevailing subdivision pattern;

C1 Development Applications shall demonstrate that the proposed subdivision or amalgamation is consistent with the Desired Future Character of the area (refer to relevant sections in Part 8 - Character Precincts, Part 9 - Key Sites Part 5 - Business Centres and Part 6 – Employment Zones).

C2 Proposed subdivision or amalgamation must have characteristics similar to the prevailing subdivision pattern of lots fronting the same street, in terms of area, dimensions, shape and orientation.

Note: Council generally considers the ‘prevailing subdivision pattern’ to be the typical characteristic of up to ten allotments on either side of the subject site and corresponding number of allotments directly opposite the subject site. Properties located in the surrounding streets do not usually form part of the streetscape character and are therefore not taken into consideration when determining the prevailing subdivision pattern.

Battle-axe Subdivision

C10 Battle-axe subdivision patterns will not be permitted within residential zones unless it can be demonstrated that it is part of the prevailing subdivision pattern.

C11 Battle-axe subdivision patterns must result in one (1) or more allotments fronting the street and only one (1) allotment being serviced by a driveway access corridor.

C12 Any proposed battle-axe allotment without a frontage to the street must have a minimum site area of 450m² and width of 12 metres.

Note: Battle-axe lots which are serviced via an access corridor are considered to be allotments without a frontage to the street. Where the access corridor is less than 8m wide, it shall not be included in the calculation of the minimum allotment area for either lot.

C13 The width of an access corridor to a battle-axe lot shall be at least:

a. 4.5 metres for lengths less than 30 metres; and

b. 5 metres for lengths exceeding 30 metres.

C14 Access corridors are to be located to ensure existing street trees are retained.

14. The site is located within the Hillsdale Character Precinct as defined by DCP 2013. The existing local character is described at 8.2.1 including the following relevant extracts:

Residential flat buildings (RFB) ranging from two and three storeys are the dominant building type of multi unit residential style in the Precinct. There are approximately 210 flat buildings in this Precinct, with the majority being walk-up flat buildings with car parking located within the ground level and residential units located in the two and three storeys above. The sites were traditionally detached dwelling sites redeveloped for flat buildings in the 1960s-1970s. This resulted in undersized allotments producing narrow buildings with limited internal amenity to individual units. The size of the allotments has also impacted on the amenity of the building by providing limited building separation and minimum site area for landscaping and open space. Car parking also provided at ground level (around the building) results in the majority of the site being paved. Any open space provided, typically at the rear of the buildings, is also used for clotheslines and garbage bin storage, which further reduces usable open space. The building style and nature of development reflects the provisions of the era in which they were built. The buildings in many cases have been strata subdivided and have been poorly maintained.

Villa and townhouse developments occupy the western side of Nilson Avenue and are in the vicinity of Flint Street, Unsted Crescent and Jauncey Place. Dwelling Houses are scattered throughout the Precinct, however a larger cluster of dwellings are located on Rhodes Street, (south of the Rhodes Street Reserve) and along Beauchamp Road/Denison Street.

The allotment sizes and subdivision patterns created in the 1960-70s have resulted in numerous strata subdivided RFBs with a lack of redevelopment potential. Subdivision patterns in the area are an issue due to the creation of irregular shaped allotments around cul-de-sac street layouts. These irregular (triangle-shaped) allotments are difficult to redevelop because they cannot accommodate an RFB with adequate separation between adjoining sites and setbacks to rear and side boundaries for the provision of communal open space and deep soil zones. There is potential for redevelopment for multi-unit housing in Flint Street, Nilson Avenue and Rhodes Street.

The Precinct presents an average quality public domain that is impacted by heavy traffic volumes particularly along Denison Street, Beauchamp and Bunnerong Roads and Wentworth Avenue and to a lesser extent Rhodes & Smith Streets. Open space areas include disjointed pocket parks with poor connections through the public domain and limited ability to service the public. Rhodes Street Reserve is one large linear park that bisects Hillsdale however this park lacks the facilities for public use as a recreation area and is owned by a State Government Authority which impacts on the ability of Council to provide equipment and undertake upgrade works.

The residential setbacks within the Precinct are consistent. The setbacks for the newer industrial sites are over 15 metres to allow for car parking and truck manoeuvring within the front setback.

Fences are varied in height and style but the majority of residential fences are of a low-scale, whilst industrial properties have either a low brick or high wire fencing.

The Hillsdale Precinct has experienced an encroachment of industrial land uses into the residential setting along Denison Street, Smith Street and Rhodes Street. This expansion of industrial land uses has intensified the industrial and residential land use conflict in this part of the Precinct.

The Hillsdale Precinct is not affected by ANEF noise contours, Acid Sulfate Soils or a low lying groundwater table thereby reducing the environmental issues that are commonly experienced in other parts of the LGA. There is however an overland flow path that runs from Smith Street between Denison Street and Rhodes Street which may constrain development in its path.

Risk

The Botany / Randwick industrial area forms a significant industrial complex of State and National significance. The location of the industrial area, within the vicinity of residential areas, has required that safety studies into the cumulative risk of industrial activity be undertaken to quantify and measure hazard risk associated with such activities. The Department of Planning & Environment has released three studies that investigate industrial operations and make land use planning recommendations. Studies released to date include the ‘Risk Assessment Study for the Botany / Randwick Industrial Complex and Port Botany’ (1985), the ‘Port Botany Land Use Safety Study’ (1996) and the ‘Botany / Randwick Industrial Area Land Use Safety Study’ (2001).

A Risk Assessment Study for the Botany / Randwick Industrial Complex and Port Botany - 1985

Analysis of hazard risk implications within the Botany / Randwick Industrial area was first examined in 1985 by Planning NSW (formerly the Department of Environment and Planning) within a report titled ‘A Risk Assessment Study for the Botany / Randwick Industrial Complex and Port Botany’. The risk assessment study was initiated by the Department in response to concerns expressed by community groups and local councils about the intensification of potentially hazardous installations and associated facilities in the area and their risk implications on nearby residential land uses.

The recommendations from the 1985 study that relate to residential risk implications and land use controls under recommendation 12, state that:

- No intensification of residential developments should be allowed within areas identified in the study;

- Provisions within a planning instrument that permit an increase in existing residential dwelling density should be reviewed;

- New residential intensification within the cumulative risk areas identified within the study should be the subject of the Director’s concurrence.

The study had no status under the Environmental Planning and Assessment Act 1979 and subsequently relied on the support of Council to implement the recommendations contained in the study. Council has supported the recommendations of the study relating to land use planning and has in practice referred residential development applications, which aim to intensify development to Planning NSW for concurrence.

Botany / Randwick Industrial Area Land Use Safety Study

Planning NSW in 2001 published the ‘Botany / Randwick Industrial Area Land Use Safety Study’ with the objectives of:

- Updating the 1985 cumulative risk study for the Botany / Randwick industrial area;

- Developing a framework for the efficient assessment and decision making for future developments; and

- Formulating a strategic land use safety framework for future developments in the Botany / Randwick Industrial Area and surround land uses.

The review investigated two cases based on two industrial scenarios. The cases were aimed at identifying the cumulative risk levels resulting from the industrial area under the current conditions (pre – 2001) and a predicted future case (2001). An explanation of the cases are as follows:-

- The Existing Case (Pre-2001): The Orica mercury cell chlorine plant and chlorine liquefaction facilities and associated bulk chlorine storage. Risks associated with the chlorine plant include incidences such as a chlorine vapour cloud release due to equipment failure or due to fire / radiation impacts on the plant and storage from a fire in the vicinity.

- The Future Case (2001): The Existing Orica chlorine plant being replaced with membrane production facilities. The bulk storage of chlorine has ceased. The removal of chlorine liquefaction and storage on site will reduce the likelihood of chlorine releases occurring.

It should be noted that Council received a letter from the then Planning NSW dated 31 October 2002 advising that the recommendations in the Land Use Safety Study for the Future Case now apply. The Future Case applied from 31 October 2002.

The key findings of the Botany / Randwick Industrial Area Land Use Safety Study has been a significant improvement in the cumulative risk areas that result from the industrial operations located within the Botany / Randwick industrial area.

Recommendations that resulted from the study were:

1. Future developments in the Botany / Randwick industrial area should be subject to early risk assessment and comprehensive environmental impact processes to conclusively demonstrate they will not contribute to risk impacts outside the industrial area that are inappropriate for surrounding land uses.

2. Effective land use safety planning should be implemented to allow future developments in the area, and to reconcile any potential land use planning conflicts.

3. A process of regular reviews and updates for site safety management systems should be undertaken.

4. Emergency plans and procedures, and fire prevention and protection systems should be kept up-to date.

5. Industrial facilities should adopt community right-to-know principles to ensure the community is adequately informed about activities, associated risks and safety management measures adopted within the Botany / Randwick industrial area.

Implementation of recommendations 1, 3, 4, and 5 listed above are the responsibility of State, Local Governments and industry to administer through consultation and development approvals. Implementation of recommendation 2 is achieved by the City of Botany Bay Council through the preparation of this Development Control Plan to give the Study status under the Environmental Planning and Assessment Act 1979.

15. The desired future character, at 8.2.2 of DCP 2013, includes encouraging the amalgamation and redevelopment of older housing stock in the precinct, retaining the residential rectilinear grid pattern within the precinct and encouraging the amalgamations of allotments for the redevelopment of existing residential flat buildings.

16. In relation to ‘risk’, 8.2.2 includes the following:

Recognise that development within the ‘Consultation Region’ identified in Figure 4 that will result in ‘residential intensification’ or ‘sensitive use intensification’ will require the concurrence of the Department of Planning & Environment.

17. The consultation region shown in Figure 4 includes the site. The parties agreed that the concurrence of the Department is not required. In response to a request from the Council to provide any comments regarding the proposal, the Department of Planning response relevantly includes the following (exhibit 1, tab 7):

On this basis [that the site is located within the consultation region identified by the 2001 study], the Council is advised to carefully consider the following during its assessment of the development proposal:

The development proposal does not comply with the injury risk criterion for new residential developments in the vicinity of potentially hazardous industry; and

while the existing residual risks at the site are acceptable for industrial and commercial land uses, intensification of residential population is not recommended.

18. Residential intensification is defined in Part 8 of DCP 2013 as ‘an increase in the number of dwellings or an increase in the number of rooms providing temporary or permanent accommodation’.

Whether the site is suitable for ‘residential intensification’

19. It is an agreed fact that the site is located within the extent of the area identified as the cumulative acute toxic injury risk contour and cumulative acute toxic irritation risk contour, identified by the 2012 Quantitative Risk Assessment undertaken by Sherpa Consulting for the Botany Industrial Park (the 2012 BIP QRA). As a consequence, the Council submits that the proposal does not comply with the relevant risk criteria stipulated in the ‘Hazardous Industry Planning Advisory Paper No 10 Land Use Safety Planning’ prepared by NSW Department of Planning in January 2011 (HIPAP No 10) (exhibit 1, tab 12) at section 5.5.3 for new residential developments and it is not suitable for residential intensification. HIPAP No 10 includes the following at 5.5.3:

5.5.3 Individual Injury Risk

•In the case of proposed development for residential and sensitive uses, possible injury and irritation impacts should also be considered. The suggested criteria are as for new industrial development set out in section 5.4.1.2:

•Incident heat flux radiation at residential and sensitive use areas should not exceed 4.7 kW/m2 at a frequency of more than 50 chances in a million per year.

Incident explosion overpressure at residential and sensitive use areas should not exceed 7 kPa at frequencies of more than 50 chances in a million per year.

•Toxic concentrations in residential and sensitive use areas should not exceed a level which would be seriously injurious to sensitive members of the community following a relatively short period of exposure at a maximum frequency of 10 in a million per year.

•Toxic concentrations in residential and sensitive use areas should not cause irritation to eyes or throat, coughing or other acute physiological responses in sensitive members of the community over a maximum frequency of 50 in a million per year.

20. Botany Bay Council commissioned the ‘Review of Planning Controls, Denison Street, Hillsdale’ Study undertaken by Arriscar Pty Limited, dated 16 August 2016 (“the Arriscar Study”) (exhibit 1, tab 10). The Arriscar Study considers the impact of the BIP as well as the transport of dangerous goods along Denison Street on a study area that includes either side of Dension Street (shown in Figure 1, p 13), including the site, and makes findings in relation to the ‘implications of future redevelopment in the study area’ (p 3). The Arriscar Study uses the risk criteria established by ‘HIPAP No 4 (exhibit 1, tab 12). The Arriscar Study maps areas requiring specific risk-based planning controls (Figure 25, p 76) which includes the site within the area identified as Q:

Part of Figure 25 from the Study

21. In relation to residential uses in the Q zone, the Study recommends prohibiting residential developments and places of continuous occupancy (hotels and tourist resorts) on the following basis:

The cumulative LSIFR is ≥1 pmpy at this Area (principally to the west of Nilson Avenue). The cumulative acute toxic injury risk is ≥10 pmpy and

the cumulative acute toxic irritation risk is ≥50 pmpy, at this Area.

22. HIPAP No 4 includes the following:

2.3 Risk Criteria for Strategic Planning

When considering strategic planning, the primary emphasis needs to be on the suitability of land for the proposed range of uses, having regard to existing risk exposure and the sensitivity of the current land use.

For example, it would be inappropriate for land to be zoned for residential or move sensitive uses if there was already a significant risk exposure from nearby industrial activities.

2.5.4 Societal Risk

Societal risk criteria particularly focus on multiple fatality situations. Hence, it is generally not meaningful to address societal risk when considering development applications for single dwellings in the vicinity of a potential hazardous facility. However, where a development proposal involves a significant intensification of population in the vicinity of such a facility, the change in societal risk needs to be taken into account, even if individual risk criteria are met.

Examples of such situations would include medium to high density residential development (although this would normally be considered to be appropriate in such a location)… In such instances, the incremental societal risk should be compared against the indicative criteria of Figure 3.

23. The applicant relied on the expert evidence of Ms Jenny Polich and the Council relied on the expert evidence of Mr Philip Skinner in regard to the risk posed by the nearby BIP and the transport of dangerous goods route along Denison Street. Both experts are qualified and experienced chemical engineers with expertise including risk assessment.

24. The experts agreed on the following:

• The site is located within the cumulative acute toxic injury risk and cumulative acute toxic irritation risk, identified by the 2012 BIP QRA. This is the most recent publicly available risk assessment for the BIP.

• The most recent publicly available risk assessment for the movement of dangerous goods along Denison Street Hillsdale is the Scott-Lister Transport QRA dated 12 February 2015 and the addendum in relation to LPG.

• The site is located within the consultation region identified by DCP 2013. The consultation region does not match any particular risk contour available in any of the risk studies.

• The site is located outside the individual fatality risk contours for both the BIP and the movement of dangerous goods along Denison Street and complies with the HIPAP Nos 4 and 10 individual fatality criteria for residential development.

• The indicative societal risk criteria as per HIPAP Nos 4 and 10 is negligible.

• The risk is the potential for a “chlorine incident” which would occur as a result of a loss of containment of chlorine at the nearby plant. The loss of containment would occur as a result of a mechanical or operational error which could happen at any time of the day or night. According to Ms Polich, the odour of chlorine is strong and provides an effective warning of a chlorine incident prior to the level of concentration rising to the extent that it would cause irritation or injury.

• The risk associated with the location cannot be mitigated by any way by the application, although Mr Skinner notes that a commercial or industrial use would be preferable on the site from a risk perspective.

25. According to Ms Polich, in relation to societal risk, the land use category of each site is considered in the scaled risk integral technique used in the studies assessing risk. The number of persons at a site is adjusted by a factor to accommodate different categories of development. In her view, the population on the site has already been modelled because the site is zoned for residential use and the modelling is not sufficiently sensitive to adjust the density for a vacant site at this lot. Mr Skinner disagreed, in his view the vacant lot does not contribute population to the total population modelled in the studies. I prefer Ms Polich’s view that the population densities are an estimate and that the proposal does not represent a significant population intensification in terms of the modelling as it is similar to surrounding land uses. Inevitably population estimates are merely educated guesses of what the likely population is at a given time. As the land use category of each site is considered, the population estimate must presumably account for a residential population on the site commensurate with its medium density zoning.

26. The strategic planning goals for the area embodied in the development standards in LEP 2013 appear to be at odds with the identification of the ‘consultation region’ identified in DCP 2013 and have no relationship to either the cumulative acute toxic injury risk contour or the cumulative acute toxic irritation risk contour. The inherent conflict and consequent risk as a result of the proximity of the BIP to the nearby residential area has been known to Botany Bay Council at least since 1985, based on the information in DCP 2013. By failing to address these issues at a strategic planning stage, the conflict has been inevitably postponed until the development assessment stage for each individual application. It is an issue that is inherently unsuitable for resolution at the development assessment stage for each and every application and should be addressed in a comprehensive strategic plan that balances all the competing considerations. Neither can it be effectively and fairly dealt with by inserting a section into a DCP.

27. If the ‘consultation region’ reflects an area where ‘residential intensification’ is undesirable, then one would expect to see that reflected in the LEP 2013 zoning and development standards. As the following extracts of the maps show, the ‘consultation region’ is not reflected in the LEP 2013 zoning and development standards and is not reflected as an area where it is desirable to avoid an increase in residential population, as the north-south R2 to R3 zone boundary, where the density nearly doubles based on the FSR development standards, cuts through the middle of the ‘consultation region’.

1. 2.

1. Land Zoning Map LZN_005 LEP 2013 The site is within the R3 zone

2. FSR Map FSR_005 LEP 2013 The site is within the “N” maximum FSR 1:1, the “E” fronting Denison St is maximum FSR 0.55:1

3. 4.

3. Height of Buildings Map HOB_005 LEP 2013 The site is within “K” maximum height 10m, the “I” fronting Denison Street is maximum height of 8.5m

4. ‘Consultation Region’ identified in Figure 4 of 8.2.2 DCP 2013

28. Recent consents indicate that the ‘consultation region’ is not necessarily an area considered by the Department of Planning or the Council as unsuitable for an increase in residential densities. The report to the Development Meeting on a development application in 2015 for a residential flat building containing 9 units at 48-50 Beauchamp Road (exhibit G), also within the ‘consultation region’ identified in DCP 2013, includes comments from the Department of Planning that the proposal was acceptable from a ‘hazards and risk view point’ and an assessment by the Council’s officer that the increase in 9 dwellings to the area has not been considered to be a significant residential intensification to the site (exhibit G, p 50). It is difficult to reconcile how the application did not constitute a residential intensification pursuant to the definition in Part 8 of DCP 2013, however, it was approved notwithstanding that it increased the residential density of the two properties.

29. Any residential development of the site will constitute a ‘residential intensification’ according to the definition in DCP 2013, if not the modelling, because the site is vacant and was previously owned by Sydney Water. However, as Council has previously shown, this is not necessarily a reason to refuse an otherwise acceptable application. The zoning of the site as R3 in LEP 2013, which maintains the medium density zoning from the previous LEP 1995 (exhibit E), demonstrates that Council has confirmed that it is possible to develop the site consistent with the R3 zone and its objectives, if it can be achieved in an environmentally acceptable manner (BGP Properties v Lake Macquarie (2004) 138 LGERA 237 [118-9]).

Sub-division of the site

30. The Council contends that the proposal for a battle-axe block is inconsistent with the subdivision pattern and character of the existing properties fronting Beauchamp Road and that the proposed rear lot will have a site area and width well below the minimum of 450sqm and 12m specified in DCP 2013. The Council contends that the subdivision of the site will create a precedent for further subdivisions.

31. The applicant relied on the expert planning evidence of Mr Anthony Betros and the Council relied on the expert planning evidence of Mr Christopher Mackey.

32. The experts agreed that there are no other battle-axe allotments in this section of Beauchamp Road and the proposal is atypical of the development fronting Beauchamp Road.

33. According to Mr Betros, the provision of two detached dwellings provides a more subtle form of development consistent with the R3 zone and there are examples of battle-axe arrangements to the rear of the site accessed from Denison Street. In his view, the proposal is consistent with the existing and desired future character of the area.

34. According to Mr Mackey, the proposal is inconsistent with the prevailing pattern of lots fronting Beauchamp Road, including their areas, dimensions and proportions. The proposal is inconsistent with the desired future character of the Hillsdale precinct.

35. The battle-axe allotments to the rear of the site, accessed from Denison Street, are within the R2 zone and will achieve a lower density residential character when compared to the future character of the adjoining R3 zone, which constitutes the majority of the Hillsdale Character Precinct identified in DCP 2013. For this reason, I do not accept that the battle-axe allotments along Denison Street provide an example of the prevailing pattern of lots in the vicinity of the site or a precedent that should be followed in the R3 zone.

36. Although there is no minimum lot size in LEP 2013, the proposed subdivision will result in two small allotments, with a rear allotment falling well short of the minimum site area of 450sqm designated by DCP 2013. The proposed lots would be inconsistent with the prevailing lot pattern within the R3 zone.

37. The objectives and controls in DCP 2013 in relation to the Hillsdale Character Precinct envisage the amalgamation of lots to form larger lots suitable for redevelopment for medium density housing. If this site is subdivided and developed, it will negate opportunities for future amalgamations of the allotments zoned R3 fronting Beauchamp Road. For this reason, the proposal to subdivide the site is, in my view, contrary, not to a discrete aspect of DCP 2013, but to the fundamental underlying goal for the precinct of transforming a low density area into a medium density residential environment.

Re-notification

38. The amended proposal was renotified by Council following leave being granted by the Court on 18 April 2017 for the applicant to rely on the amended proposal. The Council submits that the further amended proposal in exhibit F is not required to be notified. The parties agreed to postpone closing submissions until after the notification period closed on 5 May 2017. Three submissions were received by Council. The respondent provided written submissions on 12 May 2017 and the applicant provided written submissions on 15 May 2017.

Conclusion

39. The site is located within the R3 medium density residential zone, which constitutes a portion of the area identified as the ‘consultation region’ in regard to the potential hazard posed by the BIP and the dangerous goods transport route along Denison Street. The zoning of the site as R3 in LEP 2013 demonstrates that Council has confirmed that it is possible to develop the site consistent with the R3 zone and its objectives, if it can be achieved in an environmentally acceptable manner. The position of the site within the ‘consultation region’ defined in the 2001 Botany Randwick Land Use Safety Study and identified in DCP 2013 does not necessarily result in it being unsuitable for residential intensification.

40. I am not satisfied that the proposal to subdivide the site is consistent with the desired future character for the Hillsdale Character Precinct to achieve a medium density residential environment. The proposal is contrary to the objectives of DCP 2013, to ensure that the proposed subdivision is consistent with the Desired Future Character of the area and to ensure the proposed subdivision is consistent with the existing or prevailing subdivision pattern.

Orders

41. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. 2016/177 for construction of two dwellings and subdivision of the land into two lots at 32 Beauchamp Road, Hillsdale, is refused.

3. The exhibits, other than exhibit 9, are returned.

____________

Susan O’Neill

Commissioner of the Court

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Decision last updated: 23 May 2017