Executive Estates Pty Limited v Lake Macquarie City Council - [2004] NSWLEC 54

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Executive Estates Pty Limited & anor v Lake Macquarie City Council [2004] NSWLEC 54

PARTIES:
FIRST APPLICANT SECOND APPLICANT
Executive Estates Pty Limited Callday Pty Limited
RESPONDENT
Lake Macquarie City Council
.

FILE NUMBER(S): 11219 of 2003

CORAM: Moore C

KEY ISSUES: Development Application - Subdivision :-
Transmission line easements
.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Model Provisions 1980
Lake Macquarie Local Environment Plan 1984
Lake Macquarie City Council Development Control Plan No 16
.

CASES CITED: Manzie v Willoughby City Council 96 LEC 26;
Newbury District Council -v- Secretary of State for the Environment (1980) 1 All E R 731;
Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167;
.

DATES OF HEARING: 18, 19 and 20 February 2004

DATE OF JUDGMENT: 02/26/2004

LEGAL REPRESENTATIVES:
APPLICANTS
Mr C McEwen, barrister
INSTRUCTED BY
Michell Sillar
RESPONDENT
Mr J Aitkin, barrister
INSTRUCTED BY
Peter Rees, Solicitor

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11219 of 2003

Moore C

26 February 2004

Executive Estates Pty Limited

First Applicant

Callday Pty Limited

Second Applicant

v

Respondent

Introduction

1 This is an appeal pursuant to s97 of the Environmental Planning and Assessment Act 1979 (“the Act”) against a deemed refusal (and subsequent actual refusal) by Lake Macquarie City Council ("the council") of Development Application DC/04/002001/3B to subdivide broadacre land at Edgeworth into 50 residential allotments, 3 large residue allotments and a drainage reserve.

2 The land involved is Lots 59 and 114 DP 755262. It is ~ 8.8 hectares in area. It is zoned Residential 2(a) pursuant to the Lake Macquarie Local Environment Plan 1984 ("the LEP"). The proposed subdivision is permissible with consent. The site is affected by two transmission line easements. The first, and more northern, is in favour of Transgrid and is 60m wide for a 330kV transmission line. The second is ~ 30.5m wide for a 132kV transmission line and is in favour of EnergyAustralia. The two transmission line easements are separated by an unaffected corridor which varies between ~ 39.5m, at its north eastern end on the site, and ~ 43m at the rear boundaries of Lots 115 to 117.

3 For the purposes of this decision, it is convenient to regard the proposed subdivision as comprising six distinct elements. These are, generally from west to east:

· Element 1 - 14 lots being Lots 100 to 114 proposed to be at the western end of a presently unformed existing Crown Road. This element of the subdivision is some 150 m from the nearest element of the remaining portions. Two allotments, Lots 101 and 114, are affected by the Transgrid easement but it is agreed by the parties that there are no issues with respect to this transmission line easement affectation and that there are no matters of concern relating to this element of the subdivision.

· Elements 2 and 3 - these substantially comprise allotments proposed to be developed between (or adjacent to) and affected by one or other of the two transmission line easements. Element 2 comprises Lots 115, 116 and 117. Element 3 comprises Lots 118 to 123 and Lots 142 to 150.

· Element 4 - this element is in the eastern portion of the site toward its centre and comprises Lots 136 to 141. There is no dispute between the parties as to the acceptability of these allotments.

· Element 5 - this element comprises the allotments along the southern boundary of the site and generally abutting the existing residential area – an area which was subdivided and developed in the 1970s. This element of comprises Lots 124 to 135.

· Element 6 - this element comprises the three large allotments which are described as "residue allotments" and the drainage easement. For the purposes of these proceedings, there are no issues between the parties concerning the residue allotments or the drainage easement. It is anticipated that the residue allotments will be the subject of some future application to the council when a new LEP and a new DCP 1 come into force.

4 The land is located on the southern side of the Northlakes release area. The Lake Macquarie City Council Development Control Plan No 16: Northlakes Urban Release Area ("the Northlakes DCP") was prepared by the council to provide a framework within which land within the Northlakes release area would be developed. The Northlakes DCP was on public display for the period 29 May to 26 June 1996 and came into effect on 11 September 1996. The council also has a Subdivision Code (“the Subdivision Code”) which applies to the site. The Subdivision Code was adopted on 10 December 1990.

The issues

5 Essentially, there are three issues in contention between the parties together with three additional issues raised by resident objectors.

6 Issues between the council and the applicants are:

7 The additional issues raised by the resident objectors related to:

8 In addition, given the more general access to decisions in Class 1 of the Court's jurisdiction and of the ubiquitous nature of Internet search engines, it is appropriate to note, expressly, that no issues relating to the possibility of adverse impacts from electromagnetic radiation are raised in these proceedings by the council and there is agreement between the relevant experts that there is no concern of this nature.

Evidence

9 Evidence was given on behalf of the council by:

10 Evidence was given on behalf the applicants by:

Structure of this judgment

11 During the course of proceedings, Mr McEwen, for the applicants, requested that I provide comments which might assist the parties in further discussions should I conclude that the proposed subdivision would be acceptable if modified. This course of action was not opposed by Mr Aitkin for the council. Such commentary, of course, in no way binds the Court in its consideration of any application in subsequent proceedings involving the same site and essentially the same issues if negotiations are unable to resolve the outstanding issues: see Manzie v Willoughby City Council 96 LEC 26.

12 The scope of statutory power to impose conditions on the grant of development consent was settled by the decision of the House of Lords in Newbury District Council -v- Secretary of State for the Environment (1980) 1 All E R 731.

13 In Newbury it was held that, for a condition to come within the relevant statutory power, it must fulfil three conditions:

14 I have considered, in light of the conclusions which I have reached that the proposed subdivision would be acceptable if modified, whether or not it would be appropriate for me to invite the parties to be heard on whether or not I should impose the modifications I considered desirable by additions or alterations to the council's without prejudice conditions of consent. I have concluded, on balance, that this would be an inappropriate course to follow as it would deny the council the opportunity to notify and consult, further, with residents if that were appropriate.

15 I have, therefore, included a range of comments in the sections of these reasons dealing with Elements 2, 3 and 5 of the proposal in order to provide Manzie assistance to the parties. I intend to follow a procedural course, subject of the views of the parties on what I propose, which would provide the parties with an opportunity to consider these reasons and have further discussions in light of the conclusions which I have reached.

16 For what I consider to be proper jurisprudential purposes, I have tested my reasoning against the Newbury tests where it was appropriate to do so.

Consideration of the issues
The size of the allotments in Element 5

17 The allotments in the existing residential subdivision to the south are substantially larger than those proposed in Element 5. For the most part, those abutting Element 5 are fan shaped allotments at the head of two cul-de-sacs. There are also two council pathways, one for each cul-de-sac, leading from the head of a cul-de-sac to the southern side of the site.

18 The applicants originally proposed to continue these pathways through to the nearest roadway proposed for the site. However, during the course of the proceedings, after a number of the residents had expressed their concerns at the creation of such through pathways, the applicants and the council agreed that the extension of the pathways proposed by the applicants should not proceed and that the land freed up be redistributed amongst the allotments in Element 5. It is likely that the two existing pathways will be disposed of by the council to various neighbours of those pathways.

19 Essentially, the contention of the council with respect to the allotments in Element 5 (when juxtaposed with the existing subdivision to the south) is that they are too narrow. As a consequence, it is contended that the visual impact on the residences in the existing subdivision is likely to be unacceptable. These concerns were echoed by the neighbouring residents who gave evidence.

20 The applicants have proposed that there should be a public positive covenant imposed on the allotments in Element 5. This covenant would require a 12 m setback, from the rear boundary, of any two-storey portion of any dwelling constructed on these allotments. The town planning experts agree that, if this public positive covenant were imposed on these allotments, there would be no privacy or overshadowing impacts on the existing residences to the south.

21 It was the evidence of Mr Fox that, although such a covenant was a desirable protection, it did not go far enough to ameliorate the impact of the development which might take place in Element 5. He expressed the opinion that the allotments between Lot 125 and Lot 134, inclusive, should have frontages of between 16 m and 18 m. This, he said, would increase the possibility that single storey dwellings might be developed on one or more of these allotments thus reducing the likelihood of a “wall of development” being presented to the existing residents.

22 In addition, the residents who gave evidence expressed concern at the number of rear boundaries in Element 5 which would abut each of their private open spaces. This view was expressed, most strongly, by Mr and Mrs Chandler, the residents of 4 Tona Close and Mr Hicks, a resident of 6 Tona Close. Each of these households have their principal private open space areas adjacent to the boundary with Element 5.

23 A number of the residents also expressed concern that they would lose their distant rural landscape views and that the width of the proposed allotments in Element 5 would diminish the likelihood of any gaps which would permit retention of part of these views.

24 The evidence of Ms Laidlaw was that an increase of the allotments sizes in Element 5, unless made dramatically larger, would be unlikely to have any significant impact on the presentation of development on the site to the residences to the south. It was her evidence that the proposed covenant comprises an appropriate and satisfactory method of addressing the interface between the existing and proposed developments.

25 The Northlakes DCP provides a minimum usable lot size of 450 m². This is significantly smaller than the allotments sizes which applied at the time of development of the existing residential area to the south of the site.

26 The issue with respect to Element 5 boils down to whether or not as it is appropriate to require a transition between the existing residential area and a proposed subdivision to be developed under a significantly different planning framework.

27 Mr Aitkin submitted that the course to follow to effect an appropriate transition would be to require the deletion of two of the allotments from and including Lot 125 to and including Lot 134. Mr McEwen, whilst not conceding that any such transition was required, provided plans of two alternative layouts based on the deletion of one allotment. One of these alternative designs provided a virtually uniform distribution of the additional width of allotments whilst the other created a varying pattern of distribution of revised frontages.

28 It is well settled law that the provisions of any relevant DCP should be the focal point for consideration of a development application: see Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167.

29 The relevant provision of the Northlakes DCP, in this regard, is contained in 2.2.16 Impact on Adjoining Development. This reads:

Where proposed development adjoins existing residential development, consideration is to be given the impact of the proposed development on the residential amenity of the area. Where adverse impacts are identified, measures to ameliorate this impact are to be included in subdivision design to the satisfaction of Council.

30 In addition, although the DCP provides the focal point of such consideration, other elements are also brought into play by virtue of s79C of the Act. In this instance, as I apprehend it, the concerns of the council and the residents of the existing development also fall under the umbrella of s79C(1)(b) as relating to the likely impacts of that development, including environmental impacts on …………. the ………. built environments, and social ……….. impacts in the locality.

31 There is no doubt that the proposed allotments in Element 5 comply with the numerical control for the minimum allotment area provided for in the Subdivision Code. Although there is no specific minimum road frontage mandated, the Subdivision Code suggests that a minimum frontage of 15 m is appropriate for residential allotments of 450 m² or more in size. The allotments in Element 5 comply with the suggestion. The Subdivision Code suggests that 15 m is the minimum appropriate frontage. It is therefore logical to infer that the Subdivision Code also envisages circumstances when longer frontages would be appropriate.

32 In addition, the proposed public positive covenant to restrict second-storey development will provide a limited degree of amelioration of the perception of bulk from the residences to the south.

33 However, under all the circumstances, I am persuaded that it is appropriate to prefer the evidence of Mr Fox as to the desirability of a transition (in addition to the second-storey restriction) despite the compliance with the suggested minimum frontage. I have reached this conclusion as I am persuaded that wider frontages for these allotments will increase the likelihood of construction of single storey dwellings on these allotments - even if only to a limited extent. Increasing the possibility, even if only modestly, of this occurring is sufficient benefit, in my view, to outweigh the detriment to the applicant of lowering the yield from this element of the proposed subdivision. Such a conclusion is consistent with the taking of measures to ameliorate adverse impacts pursuant to 2.2.16 of the Northlakes DCP.

34 Further, I am not persuaded that achievement of a reasonable outcome for the residences to the south on the issues of both the presentational bulk of what is likely to be developed and the less significant matters of privacy occasioned by the number of private open space areas on the site which will abut the private open space areas to the south warrants the removal of two of the allotments in Element 5.

35 Adoption, for example, of the proposed possible layout of virtually uniform 17 m frontages for Lot 125 to Lot 133 would put the frontage of each of these allotments squarely within the range suggested by Mr Fox as being a desirable. On the other hand, removal of two allotments and an even redistribution of frontage across the remaining eight allotments would give frontages for each of them in excess of 19 m.

36 The economic imposition on the applicants which would be occasioned by removal of two allotments from Element 5 to provide frontages in excess of the maximum frontage considered desirable by the council's expert witness, for the allotments which remain, would be unreasonable. It would also be, in my assessment, contrary to the provisions of s5(a)(ii) of the Act as it would be an unreasonable inhibition of the orderly and economic use and development of land.

37 Whilst I am not in a position to express a settled preference, in this regard, between the options presented on behalf of the applicants should I reach the conclusion which I have reached, the even distribution proposed in Exhibit T would, prima facie, appear more appropriate. However, this may well be a matter upon which the council might wish to consult with the residents.

The size of the allotments in Element 3

38 There is one matter with which I should deal before addressing matters of merit relating to allotment size in Element 3. Mr Skinner suggested that, if the present application were refused, an opportunity may arise to consolidate the Transgrid and EnergyAustralia easements as had occurred in the development to the north east as discussed in more detail below. There is no evidence before me which would suggest that such a position had ever been proposed to the applicants by either the council or by EnergyAustralia. I understand it to be conceded that no such suggestion has been made to the applicants. Although this may be a matter appropriate to be explored if the present appeal is eventually dismissed, I am satisfied that to use the possibility as a basis for refusal, given that this matter has been raised, at the death, as it were, would be contrary to the principles of natural justice.

39 Although, perhaps, counterintuitive, the agreed position of the electricity experts with respect to allotments which include portions of transmission line easements is that it is more desirable to have such easement affected land in the frontage of an allotment than in its rear. The reason which underpins this is that there is a greater pressure from residents to be able to establish recreational facilities or structures in the private open space at the rear of dwellings than in the more constrained and visible areas forward of the building line.

40 The Northlakes DCP has, as one of its objectives, the identification of appropriate uses for the transmission line easements as an integral component of the Northlakes site. The DCP provides, critically, in 2.2.17, that:

The transmission line easements that traverse the site are to be treated in the following manner:

1. [Not relevant].
2. Included in larger lot development and held in private ownership. Unconstrained access to the easement is to be available at all times . [Then follow several other provisions that are not relevant in the present instance].

41 Although these provisions of the Northlakes DCP are expressed in terms which relate to Transgrid's easements, it is obviously appropriate to treat them as applying to all transmission line easements in the Northlakes release area including the EnergyAustralia easement which affects the site.

42 Essentially the dispute between the council and the applicants is confined to what constitutes a larger lot in satisfaction of this provision. The term larger lot is not defined.

43 The applicants contend that, provided the area of transmission easement in any allotment is in addition to the minimum 450 m² required for an allotment, the provision is satisfied. Ms Laidlaw gave evidence that this was the appropriate approach to take to give satisfaction to this provision of the DCP.

44 On the other hand, the council contends that, although the term is not defined, something more is required. Mr Fox gave evidence contesting the conclusions drawn by Ms Laidlaw. He expressed the view that the concept of a larger lot envisaged by the DCP can only be satisfied if the area of an allotment able to be developed would need to be significantly larger than the 450 m² minimum. He did not propose a specific allotment area in excess of 450 m² as being the appropriate minimum for a larger lot. However, the council's submissions on what might be appropriate to comprise such a larger lot, excluding any easement area component of it, are noted below.

45 As the applicants’ position is uncomplicated, a more thorough examination is required of the basis for the council's contention and what would be required of the applicants if I were to agree to this contention.

46 There are, to the north-east of the site, a number of subdivisions where there is, to all intents and purposes, very limited development in the transmission easements except for fencing permitting horse or other animal agistment. The allotments which include the bulk of the transmission line easements are substantial and appear to be in excess of ~ 6500 m². There are a small number of allotments with their rear private open spaces incorporating minor portions of transmission line easement land. These subdivisions were approved by the council prior making of Northlakes DCP.

47 Within these subdivisions, the Transgrid and EnergyAustralia easements are at least contiguous and, for some portion, contain a degree of modest overlap reducing, to a small extent, their combined width. This is in significant contrast to the position involved in the present application.

48 The allotments which adjoin the easements in these subdivisions range in the size from ~ 700 m².

49 The area in Elements 2 and 3 of the present subdivision proposal which is between the easements is somewhat in excess of ~ 6500 m². The council does not suggest that a single allotment of this size is appropriate. The concluding submission made on behalf of the council on this issue is that an allotment size of up to 1200 m² would be appropriate for this section of the proposed subdivision.

50 The reasons advanced on behalf of the council for this are:

· such larger allotment would not be constrained as to its development opportunities within its boundaries; and

51 As noted above, the subdivisions to the northeast predate the making of the Northlakes DCP. As a consequence, it is appropriate to conclude that these northeastern subdivision patterns were known to those drafting the DCP and that the decision not to define larger lot was a conscious one.

52 I now turn to apply the Newbury tests to the appropriateness of requiring lot sizes for easement impacted allotments to be greater than the total of the included easement area plus 450 m².

53 In this context, satisfaction of the second of the Newbury tests is, in my view, self-evident.

54 However, the council's contentions do require assessment against the first and third of the Newbury tests.

55 At its most elementary, I understand that the council's argument is that the Northlakes DCP requires the allotments affected by such easements to be larger lots. It therefore follows that requiring the applicants to create such allotments of area in excess of 450 m² excluding any easement area is consistent with and founded upon this planning requirement. The council advances the two reasons set out at (50), above, in support of this.

56 I have considered the question as to whether there is any foundation in the LEP or the Northlakes DCP which might provide support for these contentions. The single potentially relevant issue concerns the FSR provisions contained in the LEP for the zone. This provides, in the Table to cl 15, that the FSR for the 2(a) zone is a maximum of 0.5:1. The FSR is expressed a ratio with one of the elements being the site area of the land upon which the building is to be erected. The term site area is not defined in cl 7 of the LEP.

57 However, cl 8 of the LEP imports, relevantly, the definition of site area contained in cl 4 of the Environmental Planning and Assessment Model Provisions 1980. This reads:

" site area " means the area of land to which an application for consent under the Act relates, excluding therefrom any land upon which the development to which the application relates is not permitted by or under the local environmental plan.

58 Therefore, the only constraint which could arise to exclude any easement affected land in any of the allotments from being included in the site area for the purposes of the permitted floor space when calculated using the table to cl 15 of the LEP would be where it was specifically excluded by or under the local environmental plan.

59 An examination of the provisions of the LEP, itself, discloses no provisions which would support such an exclusion of the easement land component of any allotment from being used in an FSR calculation.

60 However, the conditions of any consent will impose restrictions which would be under the local environmental plan. Although the preambular statement to the General Restrictions contained in condition 14 of the council's draft without prejudice conditions of consent is infelicitously drafted, it appears to impose, in (a), a prohibition upon the erection of houses within easement areas.

61 I am, therefore, satisfied that the question of whether housing in the easement areas of any allotment would be development which is not permitted by or under the local environmental plan would be answered in the affirmative for any future development application for the erection of a house on any of the transmission easements inclusive allotments.

62 Neither the Northlakes DCP or the Subdivision Code contain any provisions which would set aside the above conclusion concerning FSR calculations. The consequence of this is, necessarily, that there can be no support from any enhanced FSR benefit from the inclusion of easement land in any of these allotments to support the council's contentions.

63 Therefore there is no basis upon which FSR calculations might provide some planning purpose to support the imposition of such a condition.

64 However, an examination of the provisions of Appendix B of the Subdivision Code, when dealing with residential subdivision, includes 1.06. This reads:

Allotments will be considered in respect to flood liability, inadequate services, landslip, topography, scenic preservation, etc. Lot sizes may have to be raised with regard to the above. The maximum grade for residential land is 25% or such lower grade as may be specified by council where local circumstances (geotechnical instability), soil erodibility etc) suggest this is appropriate.

65 This is a difficult provision to interpret as a consequence of the jumble of topics dealt with by it. However, it is clear that the first and second sentences comprise a combined element which is separate from the third of the sentences. Seeking an eusdem generis interpretation to the first sentence, I conclude it to be appropriate to read the etc at its conclusion as encompassing that class of lands affected by some other identifiable and special development inhibition not expressly listed earlier in sentence. I am satisfied that a transmission line easement would fall within such a class of lands.

66 I conclude that the provisions of 1.06 of the Subdivision Code, by its second sentence, have the effect of enlivening the possibility of increasing the 450 m² minimum provided for residential allotments by virtue of 1.01 of the Subdivision Code.

67 As a consequence, I also conclude that this establishes a relevant and appropriate planning purpose in satisfaction of the first of the Newbury tests.

68 I turn, therefore, to consider the third of the Newbury tests – namely whether it is reasonable, in the circumstances of the present application, to require residential allotments in Element 3 to have an area (excluding any easement area) greater than 450 m².

69 In addition, although not creating a specific presumption in favour of such enlargement, I do consider that this provision of the Subdivision Code requires that consideration of the desirability of this is necessary in the circumstances of this application.

70 The reasons advanced by the council for requiring an increase above 450 m2 are that larger allotments would not be constrained as to development opportunities and that larger allotments make it easier to take into account the pressures which arise from the presence of transmission line easements.

71 In the ordinary course of events, affectation by transmission line easements would be similar to that of those affected “normal sized” [my term] allotments in subdivisions to the northeast (for example, some ten such allotments in DP 848408 as disclosed in Exhibit 17) or, more generally, those shown to varying degrees of affectation in the extract from the Hornsby Planning Scheme Map which is Exhibit S.

72 What provides validity, in this case, to the council's contention that there are special circumstances relating to the allotments between the Transgrid and EnergyAustralia easements is precisely the fact that they are proposed to be located in a comparatively narrow corridor between two such transmission lines.

73 I am satisfied that it is probable that there will be additional development demands, as envisaged by the council, as a consequence of this between easement location of these allotments For example, it would be reasonable to expect demands for greater flexibility in dwelling orientation and, possibly, landscape plantings for screening purposes, as a consequence of this corridor location. As a consequence, to require a modest increase in size for these allotments would be reasonable, in a third Newbury tests sense, in these circumstances. However, I do not consider that the council has made out any basis for increases that would require radical reduction in the allotment yield along this corridor.

74 I have carefully considered what allotments within Element 3 should have the benefit of this increase in size. I am satisfied that it is not necessary to apply this to Lot 120 as this is dealt with as a consequence of the conclusions reached below concerning access for the EnergyAustralia transmission line. Lot 122 can achieve a modest improvement at the expense of lot 123 or, perhaps, as a consequence of other matters following from the EnergyAustralia transmission line conclusions dealt with below.

75 The allotments for which it is appropriate to require more significant enhancement in size are those within the corridor between the two transmission line easements.

76 For Lot 115 and Lot 117, although having the unnecessary (but serendipitous) benefit of increasing the size of Lot 116, this could be achieved by moving the rear boundary of these allotments so that they were some 39 m deep.

77 With respect to Lots 118, 119 and 142 through to 150, the reduction in allotment yield for this area from eleven lots to nine lots with the redistributed subdivision pattern of giving an average allotment size of ~ 575 m² -excluding easement land - would provide what I would consider to be a satisfactory larger lot for the purposes of 2.2.17 of the Northlakes DCP.

78 Each of the resultant allotments would need to be close to this average size but I accept that some variation might prove necessary. However, the conclusions discussed below concerning access for the EnergyAustralia transmission line may make it easier to achieve a more uniform subdivision pattern to satisfy this conclusion.

Access for the EnergyAustralia transmission line

79 Both Transgrid and EnergyAustralia have generally consistent conditions that they require for any developments within their easements. These impose restrictions, for example, on the nature and dimensions of structures permitted within the easements.

80 The evidence given by Mr Skinner was, essentially, that EnergyAustralia preferred, if it were practicable, unconstrained access to its transmission line. This is reflected in the terms of 2.2.17 of the Northlakes DCP set out at (40) above.

81 As a consequence, it was Mr Skinner's position, as I understand it, that EnergyAustralia's preferred position would be no allotments intruding into the EnergyAustralia transmission easement. However, he indicated that, if this were to be permitted, a number of conditions, which were acceptable to the applicant, should be imposed. He also preferred that there be no structures or obstacles at all under the lines, although, again, if this were not accommodated there were conditions which could be imposed to deal with this. Such conditions would include appropriately sized gates through fences, limitations on landscaping and the like within the easement.

82 On the other hand, it was Mr Flanagan's evidence that, if subdivision involving elements of the EnergyAustralia easement were to be approved, the conditions dealing development within the easement provided an acceptable resolution of any potential problems.

83 Mr Skinner also gave evidence that it was likely that the EnergyAustralia transmission line would be upgraded in the foreseeable future. However, this upgrading, although being somewhat different in structure, would not take up significantly more of the easement and would not require more prescriptive restrictions than will be necessary to accommodate the present transmission line and associated structures.

84 Mr McEwen, whilst adhering to the proposition that the proposed subdivision was acceptable, indicated that, if it would resolve issues of concern of the Court, the applicant were prepared to delete from private ownership that portion of the EnergyAustralia easement under the transmission lines which was proposed to be within Lots 119, 120, 122 and 142.

85 In addition to the preference of EnergyAustralia as expressed in Mr Skinner's evidence, 2.2.17 of the Northlakes DCP proposes that unconstrained access to the easement is to be available at all times. Although 2.2.17 envisages that plantings and landscaping, subject to restrictions and consultation, relevantly, with EnergyAustralia, might take place within the easement, these would not be permissible if they caused any constraint on access to the easement.

86 I am satisfied that the fencing which would be necessary along portions of the various boundaries between Lots 119, 120, 122 and 142 would, even if appropriately sized gates were required in them, act as a constraint on access to the EnergyAustralia easement.

87 Although I accept Mr Flanagan's evidence that the conditions would provide manageable regime, they do not constitute unconstrained access consistent with the terms of the DCP. As a consequence, I accept that it would be preferable that this did not occur.

88 I am satisfied that there would not be, if changed consistent with Mr McEwen's offer, any significant adverse impact on the subdivision proposal if the proposed roadway running northeast to southwest under the EnergyAustralia transmission lines were extended so that there is roadway under the entire length of these transmission lines within the subdivision. In addition, such an alteration to the subdivision design to make this roadway link to the extension of Dunbar Road to the southwest would also have the potential to provide a desirable exit pathway along Dunbar Road thus assisting with traffic issues discussed below.

Fauna issues

89 Mr Boutillier raised, in his evidence, his concern that frogs, in the existing pond located on residue Lot 151, would be adversely affected as a consequence of the development if approved.

90 The applicants had a Flora and Fauna Assessment undertaken by Conacher Travers in June 2003. During preparation of this assessment, a number of surveys were made of the site. During the course of these surveys, it was identified that there were potential foraging and breeding locations for the Green and Golden Bell Frog. However, despite this potential, there were no specimens of this frog observed on the site. The assessment included an 8 part test which dealt, inter alia, with the Green and Golden Bell Frog. It did so in the following terms:

The Green and Golden Bell Frog prefers the edges of permanent water, streams, swamps, creeks, lagoons, farm dams and ornamental ponds where it is often located under debris including corrugated iron, timber and rock. It is considered that the subject site provides potential foraging habitat for this species. Despite the presence of potential foraging habitats, this species was not observed during the fauna survey. It is considered that the proposal is unlikely to disrupt a viable local population of the Green and Golden Bell Frog such that it is likely to be placed at risk of extinction.

91 There is no evidence, apart from the concern expressed by Mr Boutillier, that would contradict this conclusion. As a consequence, there is no basis to reject the Conacher Travers conclusion or require modification of the proposal as a consequence of any fauna impact or reasonable apprehension of any fauna impact.

The widening of Dunbar Road

92 Mr Boutillier expressed concern at the proposal to reconstruct and widen Dunbar Road. He was worried that such reconstruction would include measures, on the western side of Dunbar Road, which would prevent residents who currently used that area of the Dunbar Road reserve for truck parking from doing so in the future.

93 The parties agreed to respond to this concern as part of their negotiations concerning the scope of the applicants’ contribution to the reconstruction of Dunbar Road.

94 I am satisfied that this matter can be addressed by the parties and, even if not resolved to Mr Boutillier’s satisfaction, would not provide any basis for refusal of the application.

Traffic impacts

95 A number of local residents expressed their concern that Durham Road was presently being used as a preferred vehicular exit pathway to George Booth Drive by residents of all sections of the existing subdivision despite the fact that Dunbar Road provided a shorter travel path for many of them. The concern was expressed that similar travel patterns might be adopted by residents of the proposed subdivision. Use of these travel patterns were of concern as there was a preschool and a school located on Durham Drive.

96 During the course of the hearing, I asked the council to consider whether or not the link to the proposed subdivision via the proposed extension to Kinross Ave was necessary as its removal might have the effect of concentrating traffic from the subdivision along Dunbar Road.

97 Mr Field gave evidence that he had made inquiries of the council's traffic engineer who had indicated that it was expected that the main traffic movements from the subdivision would be via Dunbar Road. In addition, it had been indicated to him that Durham Drive might require installation of traffic calming devices in order to deal with the issues raised by the residents. Implicit in his evidence, I consider, was an acknowledgement by the council that there was an existing problem relating to the two educational institutions and that this would, at some stage, need to be dealt with by the council.

98 Although traffic issues were raised in the council's Statement of Issues filed in the proceedings, I was advised during the course of the proceedings that there was now agreement between the traffic experts and these matters were not pressed.

99 In light of the evidence given by Mr Field, I am satisfied that the council is aware of and likely to respond to the residents’ traffic concerns. In addition, the conclusion I have reached with respect to linking the central roadway within Element 3 to the extension of Dunbar Road is likely to provide some traffic amelioration. As a consequence, there is no reason to refuse or seek modification of the proposal for traffic reasons.

Conclusion

100 In essence, I have found in favour of the council on the three issues pressed by it - although not to the extent sought. With respect to the three additional issues pressed by objectors, I have determined that none of these objections would warrant refusal of or modifications to the proposal beyond those modifications which follow from my findings with respect to the council's issues.

101 However, although there are a number of deficiencies in the proposal, there is no suggestion by the council that the site is not appropriate for subdivision. Indeed, the council raises no objection to a number of elements of the presently proposed layout.

102 I have included in this judgment, for the reasons outlined in (11) to (15), what I consider to be sufficient comments on how what would otherwise be reasons for dismissal of the appeal might be appropriately addressed. In summary, they are:

(a) Element 3 should have its allotment yield reduced by two lots to nine lots;
(b) the rear boundary line of Element 2 should be moved slightly to the west;
(c) the proposed roadway running northeast to southwest under the EnergyAustralia transmission lines should be extended to connect with Dunbar Road; and
(d) one allotment should be deleted from Element 5 to increase the frontages of the allotment which would remain within this element.

103 It is likely that the overall result of the measures set out above will be a net reduction in the allotment yield of three allotments. However, I am satisfied that, if adopted, an acceptable pattern subdivision would be the result.

104 As a consequence, I propose to adjourn these proceedings for mention before me in four weeks time to enable discussions between the parties to take place. I indicate that I am also prepared to grant extensions to this time period if it is likely to assist resolution. However, if agreement between the parties is unable to be reached, the orders which I will then be obliged to make will be those necessary to give effect to dismissal of the appeal.

Directions

105 As a consequence, subject to the convenience of the parties, I propose to give the following directions:

1. The matter is adjourned for mention before me at 9:15 AM on 23 March 2004; and
2. Liberty to relist before me at 9:15 AM on two days notice.

Commissioner of the Court

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Citations

Executive Estates Pty Limited v Lake Macquarie City Council [2004] NSWLEC 54

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Statutory Material Cited

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Zhang v Canterbury City Council [2001] NSWCA 167

CITATION:	Executive Estates Pty Limited & anor v Lake Macquarie City Council [2004] NSWLEC 54
PARTIES:	FIRST APPLICANT SECOND APPLICANT Executive Estates Pty Limited Callday Pty Limited RESPONDENT Lake Macquarie City Council .
FILE NUMBER(S):	11219 of 2003
CORAM:	Moore C
KEY ISSUES:	Development Application - Subdivision :- Transmission line easements .
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Model Provisions 1980 Lake Macquarie Local Environment Plan 1984 Lake Macquarie City Council Development Control Plan No 16 .
CASES CITED:	Manzie v Willoughby City Council 96 LEC 26; Newbury District Council -v- Secretary of State for the Environment (1980) 1 All E R 731; Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167; .
DATES OF HEARING:	18, 19 and 20 February 2004
DATE OF JUDGMENT:	02/26/2004
LEGAL REPRESENTATIVES:	APPLICANTS Mr C McEwen, barrister INSTRUCTED BY Michell Sillar RESPONDENT Mr J Aitkin, barrister INSTRUCTED BY Peter Rees, Solicitor