Betop Holdings Pty Ltd v Blacktown City Council

[2020] NSWLEC 1511

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Betop Holdings Pty Ltd v Blacktown City Council [2020] NSWLEC 1511

Hearing dates:

10, 11 and 12 August 2020

Date of orders:

30 November 2020

Decision date:

23 October 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders:

(1) The Applicant is granted leave to amend its development application and to rely on amended plans;

(2) The appeal is upheld;

(3) Development Application DA-18/01433 for the construction and dedication of a public road and the construction of a multi dwelling housing development containing 34 dwellings at 72 Junction Road, Schofields, is determined by the grant of consent, subject to the conditions in Annexure A;

(4) The exhibits are returned, with the exception of Exhibits A, B, C, D and 1.

Catchwords:

DEVELOPMENT APPLICATION – multi dwelling housing – whether road design is acceptable

Legislation Cited:

Blacktown Local Environment Plan 2015

Biodiversity Conservation Act 2016

Environmental Planning and Assessment Act 1979

Land and Environment Court Act 1979

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Threatened Species Conservation Act 1995

Cases Cited:

Elite International Development Pty Ltd v Blacktown City Council [2020] NSWLEC 1020

Orion Consulting Engineers v Blacktown City Council [2020] NSWLEC 1054

Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1084

Texts Cited:

Blacktown City Council, Engineering Guide for Development, 2005

Blacktown Development Control Plan 2015

Blacktown City Council Growth Centre Precincts Development Control Plan 2018

Category:

Principal judgment

Parties:

Betop Holdings Pty Ltd (Applicant)
Blacktown City Council (Respondent)

Representation:

Counsel:
T To (Applicant)
C Morton (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
Sparke Helmore Lawyers (Respondent)

File Number(s):

2019/106062

Publication restriction:

No

Judgment

1. COMMISSIONER: Betop Holdings Pty Ltd (the Applicant) has appealed the deemed refusal by Blacktown City Council (the Respondent) of its development application DA-18/01433 which sought consent for the construction and dedication of a public road and construction of a multi-dwelling housing development containing 34 dwellings (the Proposed Development) at 72 Junction Road, Schofields (the Subject Site).

2. The appeal is made under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction. The hearing is conducted pursuant to s 34C of the Land and Environment Court Act 1979 (the LEC Act),

3. The Subject Site is zoned R3 Medium Density Residential under the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP) and the Proposed Development is permissible with consent in that zone.

4. Due to the COVID-19 pandemic, and consistent with the Court’s COVID-19 Arrangements Policy the hearing was conducted by video conferencing technology and a site inspection was not undertaken.

5. By notice of motion, the Applicant sought leave to amend its development application on 11 June 2020, and leave was granted by the Court.

6. The Proposed Development, as amended, now seeks consent for:

1. the removal of all existing vegetation on the Subject Site, including all trees, except for one tree (tree no. 12 identified as a Eucalyptus tereticornis), which is proposed for retention. By dint of an order dated 11 December 2007, biodiversity certification was conferred on the Growth Centres SEPP for the purposes of the Threatened Species Conservation Act 1995, and as a consequence, pursuant to s 8.4(3) of the Biodiversity Conservation Act 2016, the Applicant is not required to undertake any assessment of impacts upon threatened species, populations or ecological communities or their habitats that might otherwise be required under Part 4 of the EP&A Act.

2. construction    of the proposed development over two stages, comprising

1. stage I for construction of the exhibition home and temporary car parking area; and

2. stage II for removal of the temporary car parking area and construction of the remainder of the multi-dwelling housing development;

3. reconfiguration of shared driveways and provision of an internal loop road to provide each townhouse with its own driveway and front access to the street;

4. provision of waste pick-up zones and additional visitor car parking spaces along a proposed loop road (referred to as utilising proposed roads identified as road MCL01 and road MCL03);

5. amendments to the built form originally proposed for the townhouses, as follows:

1. a reduction in Gross Floor Area (GFA) of 976m², and a maximum height of 11.05m, reduced from 11.582m;

2. a mix of dwellings consisting of:

1. 26 three-bedroom dwellings;

2. 8 four-bedroom dwellings;

3. a range of further refinements to the proposed built forms of dwellings, and related landscaping and civil works, which were detailed in the Respondent’s amended statement of facts and contentions.

7. The Subject Site had previously included a dwelling house along with associated outbuildings, structures and driveways and landscaping. However, the site is currently vacant.

8. The Subject Site is located within the so-called Riverstone precinct, which forms part of the Northwest Growth Centre pursuant to the provisions of the Growth Centres SEPP, and it is situated generally within an area of land that is zoned R3 Medium Density Residential. The Proposed Development is permissible consent within its R3 land use zoning.

9. The lot located to the south of the Subject Site is identified under the Growth Centres SEPP as a transport investigation area corridor and may, in the future, contain a rail connection from Cudgegong Road Station to Schofields Station.

10. The Proposed Development was placed on public exhibition by Blacktown City Council between 8 and 22 May 2019, and no public submissions were received in response to that notification.

11. The contentions in this appeal fell into the following broad areas:

1. car and visitor parking;

2. landscaping and tree retention;

3. amenity of private open space areas;

4. insufficient information concerning road and drainage engineering;

5. insufficient information concerning the assessment of stormwater and drainage issues;

6. insufficient information concerning planning matters;

7. insufficient information concerning the management of waste.

12. Within its statement of facts and contentions, the Respondent had identified that a further contention concerning the provision of asset protection zones for the purposes of bushfire protection was able to be resolved through imposition of a condition of consent.

13. The contentions identified above at [11], were considered by the following experts and groups of experts, who had prepared joint expert reports to assist the Court in its consideration of the above matters in contention:

1. town planning experts, Mr Aaron Sutherland, for the Applicant, and Ms Julie Horder, for the Respondent;

2. landscape expert Ms Kate Luckraft, for the Applicant;

3. traffic experts, Mr Tim Lewis, for the Applicant, and Ms Julie Horder, for the Respondent, who considered the car and visitor parking;

4. traffic engineering experts, Mr Tim Lewis, for the Applicant, and Mr David Yee, for the Respondent, who considered the requirements for a turning head within the Proposed Development;

5. the waste management experts, Mr Tim Lewis, for the Applicant, and Mr Mariano Polisciuk, for the Respondent;

6. the engineering and drainage experts, Mr Phillip Cornish, for the Applicant, and Mr Tony Merrilees and Mr David Yee, for the Respondent.

14. The Respondent noted within its opening submissions that:

1. having regard to the evidence within the joint reporting of the traffic experts, the contention concerning car and visitor parking was resolved and a condition of consent was proposed for imposition should consent granted to the proposed development;

2. having regard to the evidence with the joint reporting of the landscape and town planning experts, the contention landscaping and tree retention was resolved as a consequence of the Applicant’s amended landscape plans, and the fact that the Subject Site is subject to biodiversity certification and does not require further assessment of biodiversity impacts as provided under section 8.4(3) of the Biodiversity Conservation Act 2016;

3. having regard to the evidence of the town planning experts in their joint report, together with the Applicant’s amended plans, the contentions concerning the amenity of private open space areas and in relation to planning more generally were resolved as a consequence of the Applicant’s amended architectural plans and amended landscape plans;

4. having regard to the evidence of the waste experts within their joint expert report, the contention concerning the insufficiency of information in relation to waste was resolved and a condition of consent was proposed by the experts for imposition should the court be minded to grant consent to the proposed development.

15. As a consequence of the matters addressed above at [14], and the resolution of contentions on the basis of joint conferencing and reporting of the various experts (see above at [11]), either outright or through the proposed imposition of conditions of consent, the Respondent confirmed that the remaining contentions in the appeal centred on:

1. contention 4 concerning the sufficiency of information in relation to roads and drainage engineering; and

2. contention 5 concerning the sufficiency of information in relation to the assessment of stormwater and drainage.

Statutory context

Environmental Planning and Assessment Act 1979

16. The objects of the EP&A Act are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

17. Section 4.15(3A) of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

…

State Environmental Planning Policy (Sydney Region Growth Centres) 2006

18. The Subject Site is situated within lands subject to the Growth Centres SEPP, and it is zoned R3 Medium Density Residential under that instrument. The objectives of the R3 zone 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 support the well-being of the community, by enabling educational, recreational, community, and other activities where compatible with the amenity of a medium density residential environment.

19. Multi-dwelling housing developments are a permissible form of development within the R3 zone.

20. The subject site is also located within the Alex Avenue and Riverstone Precinct within the north-western growth centre and it is subject to the provisions of Appendix 4 of the Growth Centres SEPP, and in relation to this:

1. Clause 4.1B which provides controls in relation to residential density within the Alex Avenue and Riverstone Precinct, and in relation to which the Subject Site is subject to a minimum density of dwellings development standard of 25 dwellings/Ha, with which the Respondent, and the planning experts, agreed the Proposed Development complied;

2. Clause 4.3 which provides a height of buildings development standard applicable to the Subject Site, which is 16m, and with which the Respondent, and the planning experts, agreed the Proposed Development complies;

3. Clause 4.4, which provides a floor space ratio development standard applicable to the Subject Site of 1.75:1 with which the Respondent, and the planning experts, agreed Proposed Development complies.

Biodiversity Conservation Act2016

21. As noted above (at [6(1)]), as the Subject Site is situated within land that is subject to the Growth Centres SEPP, and which is biodiversity certified, the Proposed Development is subject to the provisions of s 8.4(3) of the Biodiversity Conservation Act 2016 which states:

(3) A consent authority, when determining a development application in relation to development on biodiversity certified land under Part 4 of the Environmental Planning and Assessment Act 1979, is not required to take into consideration the likely impact on biodiversity of the development carried out on that land.

Blacktown Local Environmental Plan 2015

22. As the Subject Site is situated within lands subject to the Growth Centres SEPP, under cl 1.8(1) of Appendix 4 of the SEPP, the provisions of Blacktown Local Environment Plan 2015 do not apply to the Subject Site.

Blacktown City Council Growth Centre Precincts Development Control Plan 2018

23. The Proposed Development is subject to the provisions of Blacktown City Council Growth Centre Precincts Development Control Plan 2018 (BGCDCP), and in particular:

1. Part 2 – Precinct Planning Outcomes

2. Part 3 – Neighbourhood and subdivision design;

3. Part 4 – Development in the residential zones;

4. Schedule 2 – Riverstone Precinct;

Engineering Guide for Development 2005

24. The Blacktown City Council’s Engineering Guide for Development 2005 (the EGD) provides engineering guidelines for the subdivision and development of land within the Blacktown City Council area.

25. Clause 3.27 of that guideline:

1. states:

“A temporary turning head will be required for all dead end roads.

On part road construction the turning head shall be offset to meet the above

criteria. This will usually require an appropriate temporary easement over the

affected lot(s).

The turning heads must provide for the safe movement for vehicular and

pedestrian traffic.”

2. provides further guidance for the design and construction of turning heads, and also notes that:

“Council may require higher or additional requirements to the above subject to

consideration of the nature and volume of traffic anticipated and expected

timeframe for the use of the turning head.”

Blacktown Development Control Plan 2015

26. The Proposed Development is also subject to the provisions of Blacktown Development Control Plan 2015 (BDCP), and the provisions of Part J of BDCP concerning Water Sensitive Urban Design and Integrated Water Cycle Management, are also of particular relevance to the Proposed Development.

Contentions

27. As noted above at [15], the remaining contentions for resolution in this appeal concern the sufficiency of information in relation to certain engineering matters (contention 4) and the assessment of stormwater and drainage impacts (contention 5). I will address these remaining contentions in that order.

28. During the hearing the engineering experts, Mr Cornish, Mr Merrilees and Mr Yee, produced a further joint report that was tendered into evidence as Exhibit 8.

29. As a consequence of that further joint reporting, the Parties agreed that, should the Court be minded to grant consent to the Proposed Development, the remaining stormwater and drainage contentions could be resolved through the imposition of conditions of consent that would give effect to the recommendations of the expert engineers.

30. As a consequence of the Parties’ advice above at [14] to [29], the Parties agreed that the Applicant’s Development Application, as amended, should not be refused, and the remaining matters requiring consideration by the Court concerned the finalisation of conditions of consent for the Proposed Development.

31. The Parties also agreed that, following the conclusion of the hearing, they would file agreed conditions of consent providing for resolution of the remaining contentions, including in relation to stormwater and drainage issues, along with submissions should there be any conditions upon which they were not agreed.

32. The Parties also confirmed that the remaining engineering contention, to be resolved through imposition of conditions of consent, concerned the acceptability, or otherwise, of the Applicant’s alternative solution for the short term movement of vehicles into and out of the Proposed Development along its northern boundary road, proposed road MCL01. The Respondent has said that this traffic movement should be managed by construction of a temporary turning head at the end of proposed road MCL01. The Applicant’s alternative was that that movement of vehicles would be managed through use of an internal loop road arrangement using proposed roads MCL01 and MCL03, and this alternative would be used until such time as roads associated with the future development of an adjoining lot were completed.

33. This remaining contention is now addressed, following which I will consider some final matters concerning conditions of consent.

Should the Applicant’s proposal for management of traffic into and out of the Proposed Development via proposed roads MCL01 and MCL03 be adopted?

34. The Parties agreed that:

1. a significant consideration in resolving this final contention was the BGCDCP and the specific requirements of section 3.4.1 of that guide concerning street layout and design, the objectives of which are as follows:

“a. To establish a hierarchy of interconnected streets that give safe, convenient and clear access within and beyond the Precinct;

b. To assist in managing the environmental impacts of urban development including soil salinity and stormwater;

c. To facilitate energy efficient lot and building orientation; and

d. To contribute to the creation of an interesting and attractive streetscape”

2. the specific controls within section 3.4.1 of BGCDCP that are of relevance in this appeal are controls 1 and 16 within that section, as follows:

“1. The design of streets is to be consistent with the relevant typical designs in Figure 3-10 to Figure 3-15 and council’s Engineering Guide for Development.

…

16. Any private road is to be designed and built in accordance with council’s Engineering Guide for Development. Details must be shown on the engineering design plans and must be submitted prior to the issue of the occupation or subdivision certificate (whichever occurs first).”

3. the provisions of the Blacktown City Council’s Engineering Guide for Development (EGD) called up by controls 1 and 16 of section 3.4.1 of the BGCDCP were those within section 3.27 of that guide. These require as follows:

“3.27 Temporary Turning Heads

A temporary turning head will be required for all dead end roads.

On part road construction the turning head shall be offset to meet the above criteria. This will usually require an appropriate temporary easement over the affected lot(s).”

35. Section 3.27 of the EGD also provides specific guidance in relation to the design of temporary turning heads.

36. As discussed above, the Parties confirmed that this remaining contention turned on the acceptability or otherwise of the Applicant’s use of its proposed internal road network as an alternative to the construction and use of a temporary turning head, required under section 3.27 of the EDG.

37. Under its proposed alternative solution, a public vehicle that had proceeded along the northern boundary road within the Proposed Development, referred to as road MCL01, would, in the short term, exit the Subject Site, by use of a private loop road arrangement utilising proposed roads MCL01 and MCL03. This arrangement is illustrated in the figure below, which was tendered as part of Exhibit D at the hearing. An arrow has been added to indicate the approximate direction of north.

38. The Respondent had said that:

1. the Applicant should be required to provide a temporary turning head at the western extremity of road MCL01, just beyond the location of the proposed concrete barrier on MCL01, to facilitate the turnaround of any vehicles at that point such that they could exit the Subject Site by returning on road MCL01;

2. the Applicant’s proposed use of a private internal loop road for short-term management of traffic through the Subject Site was unacceptable.

39. The Applicant’s acknowledged that its proposed use of the internal loop road arrangement to resolve the short-term management of traffic through the Subject Site would require that public vehicles travel on proposed road MCL03, which has been planned as a private road.

40. However, the Applicant submitted that because the loop road arrangement had been assessed as suitable for the purpose of waste collection it should be acceptable for low level use by other non-local public traffic because any such traffic use would be low volume, low speed and temporary until the entirety of road MCL01 was complete.

41. The Applicant also said that construction of a temporary turning head would require the use of one future residential lot and, as a consequence, development of that lot would be delayed.

42. The Court was assisted in its consideration of this matter, and assessment of the differing positions of the Parties, by the engineering experts, Mr Lewis, for the Applicant, and Mr Yee, for the Respondent, who had provided a joint expert report on this matter.

43. Within their joint expert report, the engineering experts had provided the following opinions:

1. Mr Yee said that the provision of a temporary turning circle was necessary for the safe operation of the Proposed Development because:

1. the provision of a temporary turning head is required and the provisions of section 3.27 of the EGD;

2. the requirement for a temporary turning head had been a consistent condition of consent imposed by the Respondent for all dead-end roads whether full width or half road widths within developments;

3. as a consequence of the fragmented ownership of land in the Blacktown City Council area it was common practice that a staging of developments was required to facilitate the construction of turning heads until such time as they were no longer required at the completion of developments, and that this was particularly the case in relation to half road construction that occurred at the boundary of adjoining development lots;

4. the proposal to direct public traffic onto a private internal access road was not considered to be a suitable option as it would give rise to amenity and safety issues for residents by directing all traffic from a public road, in this case road MCL01, into the non-public sections of the Subject Site;

5. the Applicant’s proposed use of roads MCL01 and MCL03 as an alternative solution to the provision of a turning head would also require the approval of the Blacktown Local Traffic Committee as it would require the installation of regulatory signage on the public road, and My Yee said that it was conceivable that such an approval may not be granted. He concluded that should the required approval not be granted a turning head would then be required within the Proposed Development.

2. Mr Lewis said that:

1. he accepted Mr Yee’s evidence that the requirement for a temporary turning head had been a consistent condition of consent imposed by the Respondent in relation to all dead-end roads in new development areas in the Blacktown City Council area;

2. notwithstanding his acknowledgement of My Yee’s submission, the proposed development represented a unique situation which was not typical of arrangements encountered in developments and it warranted special consideration in his opinion;

3. it was his opinion that construction of a temporary turning head at the end of proposed road MCL01 was unnecessary for the following reasons:

1. it was unlikely that any vehicles would need to use the western end of road MCL01 to turn as traffic volumes on the road would be low and signage could be provided to deter traffic from the need to turn;

2. there was no destination at the end of proposed road MCL01 to which traffic would require access;

3. construction of a temporary turning head would be contrary to sustainable design principles as it would require the application resources to build a “sacrificial pavement” that would later require replacement;

4. the Applicant’s proposed use of road MCL03 was a reasonable alternative to the construction of a turning head as that road was of a width that was designed to support circulation of a 12.5m long heavy rigid vehicle for waste collection and it provided a low speed environment of less than 10 km/hr posted speed;

5. in the rare event that a vehicle did proceed towards the end of proposed road MCL01, and past the eastern intersection with road MCL03, such a movement would be illegal and contrary to a proposed “No Entry” sign. He added that sufficient space would be available for such a vehicle to execute a three-point turn in order to return on road MCL01 should it be required.

44. In their oral expert evidence at the hearing:

1. Mr Lewis said that, as confirmed in his written evidence (see above at [44(2)(c)(iv)]), that the proposed roads MCL01 and MCL03 had been assessed as capable of use by waste collection vehicles, and he said the Applicant had provided an easement over these roads for that purpose. He said that it was his opinion that this easement could be extended to facilitate movement of non-resident, public vehicles through the Subject Site for the purpose of short-term traffic management;

2. Mr Yee confirmed that:

1. in his opinion, directing public traffic from proposed road MCL01 onto a private road such as MCL03 was not appropriate;

2. in his experience:

1. the circumstances of the Proposed Development in needing to address the short-term management of traffic until adjacent developments had been completed was not unique within areas of new development within the Blacktown City Council area;

2. proposals of a similar nature, made in the context of other developments within the Blacktown City Council area, had also not been accepted by Respondent;

3. the provision of a turning head at the western end of proposed road MCL01 would require that the Applicant stage its development of the Subject Site as at least one lot would be required for the purpose of providing the temporary turning head;

4. the Applicant’s proposed use of proposed roads MCL01 and MCL03 as a loop road for use by public vehicles moving through the Subject Site would require approval of the Respondent’s traffic committee which was, in his opinion, unlikely to be provided.

45. In closing submissions, the Parties stated as follows:

1. the Applicant said that:

1. road MCL01 is not a dead-end road of the sort contemplated by section 3.27 of the EGD;

2. there would be a low likelihood of a vehicle continuing to the end of proposed road MCL01 in contravention of the Applicant’s proposed signage;

3. as a consequence of the submissions above (at [(a)] and [(b)]), there would be no demand for the use of the western end of proposed road MCL01 and so there would be no utility in the construction of a temporary turning head at the end of that road;

4. even if a vehicle did proceed to the end of proposed road MCL01:

1. there was adequate space available for that vehicle to safely manoeuvre such that it would have safe, convenient and clear access in satisfaction of objective (a) of section 3.4.1 of BGCDCP;

2. the Court should apply flexibility as required under s 4.15(3A) of the EP&A Act, and accept that the Applicant’s proposed use of the MCL01/MCL03 loop road as it represented a reasonable alternative solution that would achieve objective (a) of section 3.4.1 of the BGCDCP in relation to street layout and design.

5. the Court should give weight to the evidence of Mr Lewis (see above at [44(2)]) and [45(1)] which supported its closing submissions;

6. the imposition of a condition requiring the construction of a temporary turning head would not be orderly development of the Subject Site as it was not consistent with the indicative road design for the Riverstone Precinct as provided within Schedule 2 of BGCDCP and it would be an impingement on the development of some or all of ‘Block E’ within the Proposed Development as it would require the development to be staged in circumstances where staging otherwise would not be required.

2. The Respondent said that:

1. the provisions of the BGCDCP, which call up the provisions of section 3.27 of the EGD, are a fundamental consideration to the determination of this remaining contention in the appeal;

2. the evidence of Mr Lewis did not demonstrate that the circumstances of proposed road MCL01 were exceptional or atypical, and, in any case, the existence or otherwise of exceptional or atypical circumstances was not the test that should be applied in relation to whether the provisions of section 3.27 of EGD should not be applied;

3. the arrangement of roads in the Proposed Development, specifically in relation to the potential for use of a loop road arrangement through proposed roads MCL01 and MCL03 was not unique in relation to developments within the Blacktown City Council area;

4. the evidence of Mr Yee (see above at [44(1)]) and [45(2)] confirmed:

1. proposed road MCL03 would be a private road and was inappropriate for use by public vehicles;

2. proposed road MCL01 would be a public road that would be available for all road users and neither the Applicant’s proposed signage nor the lack of destination would restrict or prevent public vehicles using the western end of that road;

3. the Respondent’s requirement for a temporary turning head is not predicated on traffic volume but rather is a “fundamental requirement of all dead-end roads in general and throughout the growth centres of Blacktown LGA in particular, in order to provide a safe road environment”.

5. that the provision of a temporary turning head at the end of proposed road MCL01 would satisfy the objective of section 3.4.1 of BGCDCP concerning the establishment of a hierarchy of interconnected streets that give safe, convenient and clear access within and beyond the Precinct, and it should be required of the Applicant;

46. Having considered the submissions of the Parties and the evidence of the experts, my conclusions on this question are that:

1. the Applicant’s proposed use of the loop road configuration of proposed road MCL03 for temporary management of traffic through the Subject Site is, self-evidently, not compliant with the provisions of section 3.27 of EGD, which is identified as a requirement of development within the BGCDCP;

2. given my observation above at [(1)], the provisions of s 4.15(3A)(b) of the EP&A Act must be applied, and the achievement of the objectives of the relevant provisions of the applicable development control plan by the Applicant’s proposed alternative must be determined;

3. the relevant development control plan for consideration in relation to s 4.15(3A)(b) of the EP&A Act is the BGCDCP, and the relevant objectives applicable to the Applicant’s proposed alternative are those within section 3.4.1 of that DCP (see above at [34(1)]);

4. my assessment of the Applicant’s alternative proposal’s achievement of the objectives in section 3.4.1 of BGCDCP is as follows:

1. the Applicant’s alternative does not achieve objective (a) of section 3.4.1 because:

1. notwithstanding the Applicant’s submission that the numbers of public vehicles that would utilise its proposed alternative would be low, and that this might be contrary to its proposed signage, I accept the evidence of Mr Yee that there would inevitably be public vehicle use of that proposed road network;

2. as the timeframe for the temporary use of the Applicant’s proposed loop arrangement has not been defined by the Applicant, and as this would not be possible in any case owing to the Applicant’s lack of control over development on the adjoining lot to the north of the Subject Site, the period of use of the alternative solution cannot be defined, and, as a consequence, the potential risk to the safety of future residents along road MCL03 cannot be established, and is, therefore, open ended;

3. as a consequence of [(i)] and [(ii)], the Applicant’s proposed alternative solution cannot, in my assessment, be confirmed as establishing a hierarchy of interconnected streets that give safe and clear access within the Subject Site and beyond within the Precinct;

2. the Applicant’s alternative proposal does not achieve objective (b) of section 3.4.1 because:

1. the use of the proposed alternative solution, even on a temporary basis would involve public vehicles using the proposed MCL01/MCL03 loop road which would give rise to environmental impacts on the amenity and safety of future residents along road MCL03;

2. as the timeframe for the temporary use of the proposed alternative solution cannot be defined, the scale of the proposal’s environmental impact on the amenity and safety of residents along road MCL03 would be open ended;

3. as a consequence the points above at [(i)] and [(ii)], the Applicant’s alternative solution would not assist in managing the environmental impacts of urban development.

5. as the Applicant’s alternative solution does not achieve objectives (a) and (b) of section 3.4.1 of BGCDCP, it does not represent an alternative that satisfies the provisions of s 4.15(3A)(b) of the EP&A Act and so it is not an alternative to which the flexibility requirements of that section should be applied.

47. As a consequence of my findings above (at [47]), I conclude that the Respondent’s submission that a condition be imposed requiring the Applicant to construct a temporary turning head at the western end of proposed road MCL01, consistent with the provisions of section 3.27 of the EGD, should be adopted.

48. Finally, I note for completeness that the following points were raised during the hearing, and while I have considered each of them, I have not relied upon them in resolving the question concerning the requirement for a temporary turning head at the end of road MCL01:

1. the Respondent said, and I accept, that the arrangement of roads MCL01 and MCL03 within the proposed development did not represent a unique and special case that warranted an exception to the provisions of section 3.27 of the EGD, as suggested in evidence by Mr Lewis, and would not, in any case, provide a basis for setting aside the requirement under that clause for a temporary turning head at the end of a dead end road;

2. I do not embrace the submission of the Applicant that road MCL01 was not the sort of dead-end road contemplated by the provisions in the EGD that should require a temporary turning head. Section 3.27 of the EGD does not differentiate between, nor contemplate, differing types of dead-end roads;

3. within his oral evidence Mr Lewis had accepted Mr Yee’s evidence that the requirement for a temporary turning head at the end of dead-end roads had been a consistent condition of consent imposed by the Respondent for dead-end roads in similar circumstances within proposed developments and as a consequence, the decision in this matter is consistent with the usual practice of the Respondent in such circumstances.

Further consideration of conditions of consent

49. Following the completion of the hearing in this matter, the Parties were directed to file agreed conditions of consent to include conditions that would reflect the recommendations made by engineering experts for resolution of drainage and stormwater management matters. In so directing, I noted that should the Parties be unable to reach agreement in relation to any condition, the Parties should file their differing conditions along with submissions in relation to those conditions.

50. The Parties held differing positions in relation to conditions of consent concerning the Applicant’s proposed alternative solution concerning traffic management using roads MCL01 and MCL03, and in relation to certain drainage issues, as follows:

1. deferred commencement condition 1, which the Parties agreed should be deleted if the Applicant’s proposed alternative solution for short term traffic management in relation to proposed road MCL01 was not approved;

2. deferred commencement condition 5(g)/4(g), concerning the use of so-called ‘OceanGuard’ pit baskets designed to capture pollution that runs into stormwater drains;

3. condition 2.6.3.2, concerning a requirement to register a drainage easement within one lot to convey water through part of the Subject Site;

4. condition 2.6.9, concerning a requirement that the future location of water quality devices must be on common areas;

5. condition 6.1.10, concerning the Applicant’s proposed alternative use of roads MCL01 and MCL03 as a loop road for traffic management;

6. condition 15.4.2, concerning the requirement for an easement in gross for drainage in relation to proposed road MCL01;

7. condition 15.10.4.5, concerning the quantum of a “Temporary OceanGuard Security” to be provided to the Respondent.

51. As the Applicant’s proposed alternative solution for traffic management is not approved, the originally proposed Deferred Commencement Condition 1 (see above at [51(1)]), by agreement of the Parties, should not be imposed. However, a condition requiring the construction of the temporary turning head at the western end of proposed road MCL01 should be imposed as part of any grant of consent. I propose that this be given effect through an amended version of proposed condition 6.1.10 (see below at [68] to [71]).

52. My consideration of the Parties submissions on each of the remaining proposed conditions, and matters is as follows:

Deferred commencement condition 5(g)/4(g)

53. Proposed condition 5(g)/4(g) is:

“g) All the OceanGuards are to be annotated as having been relocated into the common property and outside any private open space areas. A new pit B2/1A (say) is to be provided for the OceanGuards in the common area southern drainage easement clear of the adjacent townhouse private open space”

54. The Applicant proposed that this condition should not be imposed because:

“as no subdivision is currently proposed and there are practical concerns regarding relocation of pits and final location of any private open space / common open space. Any concern about location can be fully resolved through the imposition of a condition requiring positive covenants to maintain infrastructure. At the time of subdivision (if this occurs), the question of common property can be dealt with”.

55. The Respondent submitted that the condition should be imposed as it required that OceanGuard pit baskets should not be located within the Proposed Development’s private open space as these would be too difficult to maintain and too difficult for Council to inspect.

56. Having considered the submissions of the Parties, and noting that the Applicant’s plans, upon which it relies, include within plans DAC04.01 and DAC04.02 that formed part of Exhibit D at the hearing, proposed locations of drainage pits with details for the location of certain OceanGuard pit baskets, I am satisfied that it is reasonable to impose the proposed condition as part of a consent for the Applicant’s Proposed Development.

General Condition 2.6.3.2

57. Proposed condition 2.6.3.2 is:

“A drainage easement in gross is to be registered over the 3m drainage easement within Lot 2052 DP1234896 to convey the upstream flows and public flows through the easement. The drainage easement must be registered with Land Registry Services NSW. Such easement shall remain in place until the dedication of an extension of proposed Road MCL01 and associated road drainage conveys stormwater flows to an alternate discharge point or as otherwise approved by Blacktown City Council. The maintenance of these systems shall be the responsibility of the registered proprietor of the lot burdened. Council shall not accept any maintenance of these systems”.

58. The Applicant submitted that this proposed condition should be deleted because:

“The easement to drain water currently applies to the whole of the subject lot and benefits every square metre of it for the purpose of draining water. The lot is proposed to be subdivided under the proposed development and the ‘road’ area will be dedicated to Council. Upon subdivision, the benefit of the easement will still apply to the area on which the proposed road is to be located. After subdivision, the benefit of the easement will still show as being appurtenant to both parcels of land – being areas benefitted by the current easement.

No new easement is required as the area which Council will own as road already has the benefit of an easement to drain water through the adjoining lot to the south. The Applicant can register easements to get water to that point and then the easement which benefits the road area will take over.”

59. The Respondent submitted that the condition should be imposed, as proposed, because:

“This condition is required and should stay as the development has now changed the drainage pattern to include stormwater from upstream properties and the public road.

The drainage easement is shown on a number of plans and documents proposed by the Applicant. See, for example, Northrop Civil Engineering Report dated 25 May 2020 at page 10, and in the site survey within Appendix A to that report.

The easement is required by the Council to ensure the proper disposal of stormwater/drainage – having been proposed by the Applicant – although it is to remain in place only until dedication of the extension of proposed Road MCL01 and associated road drainage to convey stormwater flows to an alternate discharge point or as otherwise approved by the Council”.

60. Having considered the submissions of the Parties, I favour that of the Respondent as, in my assessment, it provides a more specific, and more appropriate response to the Applicant’s Proposed Development, as amended, for the reasons provided by the Respondent.

61. As a consequence, I conclude that proposed condition 2.6.3.2 should be imposed as part of a grant of consent to the Applicant’s Proposed Development.

General Condition 2.6.9

62. Proposed condition 2.6.9 is:

“Where this development is subject to a future strata subdivision, all the water quality devices (excluding rainwater tanks) must be located in common areas and not within private open space.”

63. The Applicant submitted that this proposed condition should be deleted because:

“Subdivision is not proposed and the location of pits for the purpose of this application has been assessed as acceptable, subject to Conditions. There is practical difficulty in finalising common open space and private open space areas now and is a matter for any subdivision application. Upkeep of any pits concerned can be addressed by way of positive covenant for their maintenance”.

64. The Respondent submitted that the condition should be imposed, as proposed, because:

“As there is no current strata plan and the Applicant did not to provide one as a deferred commencement condition then Council cannot know for certain which pits containing water quality devices may or may not be in common area particularly where pits may change as (sic).  That is why Council has included this as a general condition, which should remain”.

65. I have considered the Parties submissions, and while I note the Applicant’s submission that it does not propose subdivision as part of its application, and the location of pits for the purpose of this application has been assessed as acceptable, albeit with conditions, I favour that of the Respondent for the following reasons:

1. I do not accept that the imposition of the condition would require the Applicant to finalise its plans for the location of common open space and private open space areas “now”, as it submitted;

2. proposed condition 2.6.9 is condition of principle rather than one of specifics;

3. the specifics concerning finalisation of common open space and private open space areas can, as the Applicant states, remain a matter for any subdivision application; even if the proposed condition were imposed;

4. the proposed condition would guide the Applicant’s planning of any subsequent subdivision application, and it would not, in my assessment, unduly constrain the planning of any such proposed subdivision.

66. As a consequence, I conclude that proposed condition 2.6.9 should be imposed as part of a grant of consent to the Applicant’s Proposed Development.

General condition 6.1.10

67. Proposed condition 6.1.10 is:

“The proposed traffic diversion of Road MCL01 directing traffic through Road MCL03 must be endorsed by the Blacktown Local Traffic Committee (BLTC) and adopted by Council prior to the issue of a Subdivision Works Certificate. If the proposed use of MCL03 is not approved then a temporary turning head, a minimum of 9.0m radius must be provided at the end of Road MCL01”.

68. The Applicant submitted that this proposed condition should be deleted because:

“This condition is unnecessary and unreasonable. A condition requires the form of public easement for access to be provided over that road. It is a private road and does not fall to the traffic committee for determination. An easement is offered and will be provided for access. Imposition of this condition will permit Council to frustrate and undermine the determination that a turning head is not required by not authorising use of the private road.”

69. The Respondent submitted that the condition should be imposed, as proposed, because:

“The LTC will need to approve any regulatory signage directing traffic off a public road. This includes signage such as one-way, no entry, no stopping etc. This signage is necessary to give effect to the safe operation of the proposed diversion. As there is now two separate consents re the turning head then the last sentence may be deleted”.

70. As noted above (at [52]), as I have decided that the Applicant should be required to construct a temporary turning head at the end of proposed road MCL01, the imposition of this proposed condition as drafted is not required, but it should be replaced with a condition that requires the Applicant to construct a temporary turning head at the end of proposed road MCL01.

71. I invite the Parties to redraft this condition to reflect both:

1. my finding that the Applicant is to construct a temporary turning head at the end of proposed road MCL01; and

2. any requirement that the Blacktown Local Traffic Committee may need to approve proposed regulatory signage directing traffic in relation to the final configuration and use of roads MCL01 and MCL03, including, but not limited to, signage such as one-way, no entry, and no stopping signs.

General condition 15.4.2

72. Proposed condition 15.4.2 is:

“An easement in gross for drainage over the new Lot created by the dedication of the Road MCL01 shall be created under Section 88B of the Conveyancing Act 1919 in the following terms:

The entirety of any temporary drainage systems conveying water from the public road through the site. The easements shall show Blacktown City Council as the benefiting authority. Such easement shall remain in place until the dedication of an extension of proposed Road MCL01 and associated road drainage conveys stormwater flows to an alternate discharge point or as otherwise approved by Blacktown City Council. The maintenance of these systems shall be the responsibility of the registered proprietor of the lot burdened”

73. The Applicant submitted that this proposed condition should be deleted because:

“An easement in gross to drain water exists and benefits the subject property. The Applicant cannot amend the easement to benefit Council, however the portion of land to be dedicated to land (road MCL01) will have registered upon it, at the time of subdivision, the benefit of the easement to drain water.

This condition is redundant and Council as owner of a part of the land benefitted by the easement to drain water will also become a beneficiary upon transfer.

If any new easement to drain water is required (which in the applicant’s submission, it is not), this is a matter for Council to obtain or acquire”.

74. The Respondent submitted that the condition should be imposed as proposed because:

“The proposal has changed the drainage pattern and now collects water from an upstream property and a public road. It therefore changes the nature and terms of the existing easement that need to be amended accordingly.”

75. Having considered the submissions of the Parties, I favour that of the Respondent as, in my assessment, the Respondent’s submission that the Proposed Development, as amended:

1. does change the proposed drainage pattern and, this does now propose to collect water from an upstream property and from a public road; and

2. does change the nature and terms of the existing easement such that the easement should be amended to reflect this change.

76. As the Applicant has ownership of the Subject Site, and as the consent would be for development of that Subject Site, I agree with the Respondent that it should be the responsibility of the Applicant to fulfil this proposed condition of consent.

77. As a consequence, I conclude that proposed condition 15.4.2 should be imposed as part of a grant of consent to the Applicant’s Proposed Development.

General condition 15.10.4.5

78. Proposed condition 15.10.4.5 is:

“Provide a Temporary OceanGuard Security to Council equal to 200% of the Temporary OceanGuard Estimate.”

79. The Applicant submitted that this proposed condition should be deleted for the following reasons:

“This condition has been edited because the bond should never be more than 100%. The condition should also clarify that the bond only relates to the public road in the temporary scenario”.

80. The Respondent submitted that the condition should be retained as proposed because:

“it is in accordance with Council’s requirement”.

81. I have considered the submissions of the Parties on this matter and:

1. having noted that development applications recently determined by the Court involving the Respondent have imposed conditions of consent requiring securities for OceanGuard systems or bio-retention systems of between 150% and 200% of their estimated costs, including in the following appeals:

1. Elite International Development Pty Ltd v Blacktown City Council [2020] NSWLEC 1020;

2. Orion Consulting Engineers v Blacktown City Council [2020] NSWLEC 1054;

3. Universal Property Group Pty Ltd v Blacktown City Council [2020] NSWLEC 1084.

2. I am satisfied that:

1. contrary to the submission of the Applicant that a bond ‘should never be more than 100%’, it is a common practice of the Respondent to impose, or to seek to be imposed, conditions of consent that require the payment of a bond equal to between 150% and 200% of the anticipated cost of works related to OceanGuard systems or in relation other water quality related infrastructure;

2. proposed condition 15.10.4.5 is consistent with other conditions imposed by, or sought to be imposed with, the grant of consent for developments in which Blacktown City Council is the Respondent.

82. As a consequence, I conclude that proposed condition 15.10.4.5 should be imposed as part of a grant of consent to the Applicant’s Proposed Development.

Conclusions

83. Having considered the submissions of the Parties, and the testimony of the experts, in this appeal, I conclude that, while the Parties have agreed that the Applicant’s Proposed Development, as amended, should be approved, the grant of consent should be subject to conditions, reflecting my findings above as follows:

1. the Applicant’s proposed alternative solution in relation to the use of proposed roads MCL01 and MCL03 is not approved, for reasons provided above at [47];

2. consistent with the provisions of section 3.27 of the EGD, the Respondent’s requirement that the Applicant construct a temporary turning head at the western dead end of proposed road MCL01 is accepted and should be the subject of a condition of consent as discussed above at [52];

3. the proposed conditions of consent filed by the Parties following the hearing are to be amended to reflect the findings of this judgment in relation to conditions (see above at [54] to [83], are to be imposed as part of the grant of consent for the Applicant’s development application DA-18/01433.

84. In order to make final orders reflecting the conclusions above (at [84]) and so dispose of the appeal, I make the following directions.

Directions

85. The Court directs:

1. the Parties are to file with the Court, by no later than Friday 30 October 2020 final agreed conditions of consent, reflecting the findings in this judgment, including the conclusions above at [84], following which final orders will be made;

2. the matter is listed for mention at 4:15pm on Monday 2 November 2020, by telephone;

3. should the Parties comply with direction (1) above, the mention on Monday 2 November 2020 will be vacated;

4. the Parties are granted liberty to restore on 3 days’ notice.

Addendum made on 30 November 2020

86. On 23 October 2020, the Parties were directed to agree, and file with the Court, by no later than Friday 30 October 2020, settled conditions of consent, reflecting the conclusions in the Court’s judgment in this matter.

87. The Parties have now agreed settled conditions of consent reflecting the conclusions in the Court’s judgment. As the Parties’ agreed conditions of consent have now been filed, the Court is able to make final orders.

Orders

88. The Court orders:

1. The Applicant is granted leave to amend its development application and to rely on amended plans;

2. The appeal is upheld;

3. Development Application DA-18/01433 for the construction and dedication of a public road and the construction of a multi dwelling housing development containing 34 dwellings at 72 Junction Road, Schofields, is determined by the grant of consent, subject to the conditions in Annexure A;

4. The exhibits are returned, with the exception of Exhibits A, B, C, D and 1.

…………………………..

M Chilcott

Commissioner of the Court

Annexure A (4767562, pdf)

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Amendments

30 November 2020 - See Addendum at [86]-[88].

Decision last updated: 30 November 2020