Australian Properties v Blacktown City Council

[2013] NSWLEC 1028

Land and Environment Court

New South Wales

Medium Neutral Citation:

Australian Properties v Blacktown City Council [2013] NSWLEC 1028

Hearing dates:

13,14 February 2013

Decision date:

21 February 2013

Jurisdiction:

Class 1

Before:

Brown C

Decision:

1. The appeal is upheld.

2. Development Application DA 11-2334 for the construction of a multi-dwelling housing development at 118-120 Bridge Street, Schofields is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 7 and A.

Catchwords:

DEVELOPMENT APPLICATION: construction of a multi-dwelling housing development - savings provisions - weight to be given to the Schofields Precinct Plan

Legislation Cited:

Blacktown Local Environmental Plan 1988
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Sydney Region Growth Centres)

Cases Cited:

Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289

Category:

Principal judgment

Parties:

Australian Properties (Sydney) Pty Ltd (First Applicant)
Australian Properties (NSW) Pty Ltd (Second Applicant)
Blacktown City Council (Respondent)

Representation:

Mr I Hemmings, barrister (Applicants)
Mr M Bonano, solicitor (Respondent)
Solicitors
Hunt & Hunt (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

10743 of 2012

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application DA 11-2334 by Blacktown City Council for the construction of a multi-dwelling housing development comprising 14 dwellings, open space, car parking and Strata title subdivision at 118-120 Bridge Street, Schofields (the site).

The site

1. The site comprises Lots 27 and 28 in DP 12445. It is rectangular with each lot having a street frontage of 30.175 m and a depth of 67.095 m and an area of 2024.6 sq m. The total site area is 4049 sq m. Lot 28 (118 Bridge Street) is occupied by a single storey dwelling of fibro and timber construction with outbuildings including a garage, aviaries and sheds. Lot 27 (120 Bridge Street) is occupied by a single storey dwelling of brick and tile construction with outbuildings, including a stable.

1. The surrounding land comprises a mix of single dwellings of various ages and construction types to the east and rural properties to the west.

Relevant planning controls

1. The Schofields Precinct was released as an urban development precinct of the Sydney Region Growth Centres on 23 October 2009. The draft Precinct Planning Package was publicly exhibited from 31 August 2011 and 28 September 2011. Appendix 7-Schofields Precinct Plan (that includes the site) was included in State Environmental Planning Policy (Sydney Region Growth Centres)(SEPP Growth Centres) on 11 May 2012 and included an Indicative Layout Plan to guide future development of the precinct.

1. Clause 10(2) of SEPP Growth Centres states:

(2) The consent authority must have regard to the objectives for development in any such zone when determining a development application in respect of land within the zone.

1. The aims of the Precinct Plan are:

(a) to rezone land to allow for development to occur in the manner envisaged by the growth centre structure plan, and the indicative layout, for the Schofields Precinct,

(b) to deliver housing choice and affordability by accommodating a wide range of residential dwelling types that cater for housing diversity,

(c) to guide the bulk and scale of future development within the Precinct,

(d) to protect and enhance riparian corridors and areas of significant native vegetation by establishing development controls that prevent the clearing of existing native vegetation within the Precinct,

(e) to protect and enhance areas of local heritage significance by establishing development controls in order to maintain and respect the relationships between heritage sites and uses of adjacent sites.

1. Under the Precinct Plan, the site is zoned R2 Low Density Residential. The proposed development is defined as "multi-dwelling housing" and is a prohibited use in this zone. The R2 Low Density Residential zone objectives are:

1 Objectives of zone

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

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

• To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

• To support the well-being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

1. It was agreed that the first zone objective was the relevant objective.

1. Clause 1.8A of the Precinct Plan states:

1.8A Savings provision relating to pending development applications

If a development application has been made before the commencement of this Precinct Plan in relation to land to which this Precinct Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Precinct Plan had not commenced.

1. The savings provisions apply as Development Application DA 11-2334 was lodged with the council on 27 October 2011 and had not been finally determined before that commencement of the Precinct Plan on 11 May 2012. Consequently, the application must be determined as if this Precinct Plan had not commenced.

1. Prior to the commencement of the Precinct Plan, the site was zoned Residential 2(a) under Blacktown Local Environmental Plan 1988 (LEP 1998). The proposed use was permissible in this zone with consent. The zone objectives are:

1 Objectives of zone

The objectives are:

(a) to make general provision to set aside land to be used for the purpose of housing and associated facilities,

(b) to identify existing residential areas of a predominantly single dwelling character, and to maintain that character by prohibiting residential flat buildings,

(c) to enable sensitive infill development of other housing types if the infill development is of a bulk, scale and appearance that does not adversely impact on adjoining development or the amenity of the locality,

(d) to enable development for a variety of housing forms, including townhouses, villas, integrated housing, dual occupancies and the like, if such development does not interfere with the amenity of surrounding residential areas by way of overshadowing, overlooking, or loss of privacy,

(e) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours, and

(f) to allow within the zone a range of non-residential uses which:

(i) are capable of visual integration with the surrounding environment,

(ii) either serve the needs of the surrounding population or the needs of the City of Blacktown without conflicting with the basic intent of the zone, and

(iii) do not place demands on public services beyond the level reasonably required for residential use.

1. The weight to be given to the Precinct Plan in the assessment of the development application was the principal contention in the proceedings. The parties disagreed on whether the proposed development will preserve the character anticipated by Zone R2 Low Density Residential and whether the proposed development will substantially undermine the objectives of this zone.

1. Blacktown Development Control Plan 2006 applies although the council raised no contentions in relation to this planning document notwithstanding variations to some requirements.

What weight should be given to the Schofields Precinct Plan?

The assessment framework

1. The parties agree on the relevant authorities for considering the question of what weight should be given to the Precinct Plan, although they ultimately come to different conclusions. They agree that the weight to be attributed to a draft environmental planning instrument (or the Precinct Plan, in this case) will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that:

6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect.

7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.

1. There was agreement that the Precinct Plan must be regarded as imminent and certain given that it has been gazetted.

1. The parties rely on the findings in Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, where Lloyd J relevantly states:

30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193).

31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls.

32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan.

33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case.

34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]):

Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve.

35. His Honour further stated (at par [35]):

...If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected.

36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.

The expert evidence

1. Expert town planning evidence was provided by Mr Lindsay Fletcher for the council and Mr Paul Grech for the applicant. Mr Fletcher's principal position is that the proposal is not consistent with the built form character of "a low density residential environment" (objective (a) of the R2 zone) given the imminence and certainty of the Precinct Plan. In accepting that the words "low density residential environment" is not defined, Mr Fletcher states that the words "low density" can only be assessed by reference to the type or form and site layout of residential development in comparison with the existing and likely future forms of residential development in the same zone. In this regard, the proposed development fails to be characteristic of both existing and the likely future residential development in the R2 zone. In his opinion, the proposed development will appear as "multi-dwelling housing" which is now a prohibited type of development. There is no disguising the fact that the proposal will appear as a group of detached and attached dwellings clustered around a common central driveway in a manner that is typical of villa and townhouse multi-dwelling housing. The issue of compatibility with the form, site layout, density and character of future development under the Precinct Plan is best addressed through the controls found in the relevant planning instruments where the proposed development is clearly in excess of that which can reasonably be anticipated in this zone in the future.

1. Mr Grech comes to the opposite conclusion. He states that the expectation of what is "low density residential" in a Sydney Growth Centres Release Area is markedly different to that for an established residential area. For example, the Residential 2(a) the zone that previously applied under LEP 1989 provides for "a predominantly single dwelling character" but is based on minimum 450 sq m lots. These need to be compared to the density set by the minimum lot size and housing form requirements for the R2 zone in cl 4.1A. The requirements range from 200 sq m for semi-detached dwellings, 400 sq m for a semi-detached dwelling defined to include two or more dwellings dwellings, and 250 sq m for dual occupancy dwellings or single dwelling house. If the site was developed in accordance with the Indicative Layout Plan, the site could accommodate 14 dwellings, being 7 dwellings facing Bridge Street and 7 dwellings facing the new road at the rear of the site with average lot sizes of 289 sq m. Consequently, the Precinct Plan provides for a density of 14 dwellings for the site.

1. Mr Grech notes that the development has been amended to incorporate only housing forms permitted under the Precinct Plan, that is one and two-storey single detached or semi-detached (dual occupancy) housing. The appearance of the development from Bridge Street would be predominantly of two-storey detached or semi-detached housing typical of what could be expected in the future in this part of the street. To the extent that a single driveway will be visible within the centre of the site and limited aspects of additional housing at the rear, Mr Grech does not consider that this would cause the development to be so out of place as to warrant refusal.

Findings

1. The findings in Blackmore Design and Terrace Tower provide that notwithstanding that the proposed development is prohibited under the Precinct Plan, it is a permissible development because of the savings provisions in cl 1.8A. Even if the Precinct Plan is imminent and certain, it does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development undermines the relevant aims and objectives, in a substantial way. In this case, the council maintains that the proposed development undermines the relevant objective of the R2 Low Density Residential zone in a substantial way whereas the applicant claims the opposite.

1. In considering the approach in Blackmore Design and Terrace Tower, I am satisfied that development consent should be granted for a number of reasons. First, there was no disagreement that the proposed development is permissible by way of cl 1.8A in the Precinct Plan.

1. Second, there was no disagreement that the proposed development satisfies the relevant requirements of DCP 2006 or where there was a breach of the requirements, the breach would not be a reason to refuse the application. The council accepted that if the application was not subject to the Precinct Plan but considered only under LEP 1998, then there would not be a valid planning reason to refuse the application.

1. Third, there was no disagreement that the character against which the proposed development should be tested is not the character displayed by the existing residential development given the large difference in the planning controls that established this character and the character anticipated by the Precinct Plan.

1. Fourth, I am satisfied that the proposed development will not substantially alter the "low density residential environment" objective and resultant character anticipated by the Precinct Plan. The term "low density residential environment" is not defined in the Precinct Plan however it is a general town planning term that can be used to describe different forms of residential development. To give the term meaning, in this case, it is practical and sensible to relate the term to the planning requirements that regulate residential development in the R2 zone as it must be accepted that the relevant planning controls reflect the form of development anticipated by the objective of providing a "low density residential environment". In this regard, I agree with Mr Grech (and which was also accepted by Mr Fletcher) that the site can accommodate 14 dwellings that could be made up of single dwellings or attached dual occupancies of 2 storeys in height.

1. Mr Fletcher identified characteristics of the proposed development, such as the central driveway, common letter boxes, uniform design and landscaping, that could give "the appearance and feel" of a medium density development (being a prohibited use in the R2 zone). I am, however not satisfied that these characteristics are sufficient to conclude that the proposed development will be inconsistent with the "low density residential environment" objective, in a substantial way, given that the overall form of the proposed development is not that dissimilar to the form of development that could be constructed under the R2 Low Density Residential zone.

1. Fifth, and while Mr Fletcher may be correct in stating that future development may not seek to develop at the density, height and form permissible under the R2 Low Density Residential zone, in my view, it would be unreasonable to assume that it would not, for the purpose of assessing future character of the area.

1. Sixth, the proposed development is consistent with Precinct Plan aims (a), (b) and (c).

Resident concerns

1. The concerns expressed by the resident objectors on site related to:

• the uncharacteristic form of the proposed development compared to the existing residential development, particularly the height and density,
• breaches of DCP 2006, and
• the inability to store garbage bins on site and the location of the bins on the street for collection.

1. With the benefit of the site inspection and the expert evidence, the following comments are appropriate in response to the concerns raised by the residents:

• the agreed position of the experts, and which I concur, is that the existing form of residential development is not the appropriate bench mark to assess the proposed development given the significantly different planning requirements in the Precinct Plan,
• the agreed position of the experts, and which I concur, is that the breaches of DCP 2006 can be supported, and
• there was no expert evidence to support the conclusion that there was a problem with the storage of garbage bins for the development.

Orders

1. The orders of the Court are:

1. The appeal is upheld.

2. Development Application DA 11-2334 for the construction of a multi-dwelling housing development at 118-120 Bridge Street, Schofields is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 7 and A.

____________

G T Brown

Commissioner of the Court

Decision last updated: 21 February 2013