Gandangara Local Aboriginal Council v Sutherland Shire Council

[2009] NSWLEC 1105

Land and Environment Court

of New South Wales

CITATION:	Gandangara Local Aboriginal Council v Sutherland Shire Council [2009] NSWLEC 1105
PARTIES:	APPLICANT Gandangara Local Aboriginal Council RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	11057 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- subdivision of land into 39 residential lots including access roads, a local park and bushfire asset protection zones - headlight glare - amendment to asset protection zone
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	18/03/09
EX TEMPORE JUDGMENT DATE:	18 March 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr A Stafford, solicitor SOLICITORS Baker & McKenzie RESPONDENT Mr J Cole, solicitor SOLICITORS HWL Ebsworth

JUDGMENT:

- 4 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

18 March 2009

11057 of 2008 Gandangara Local Aboriginal Council v Sutherland Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal of Development Application DA 07/1431 by Sutherland Shire Council (the council) for the subdivision of Lots 42 and 43 in DP 1061416, Timbrey Circuit, Barden Ridge into 39 residential lots including access roads, a local park and bushfire asset protection zones. The subdivision is Stage 2 of the Gandangara Estate residential development.

2 Lot 42 is 3.513 ha in size. It is located on top of a ridge and is largely cleared. Most of the lot was previously used as a quarry and has since been reshaped and rehabilitated in parts. Remnant bushland occupies the northern extremity of the lot. Lot 43 is 8.255 ha in area. The lot is covered in bushland for most part and features a number of significant elements including aboriginal heritage sites, a natural watercourse, sandstone rock escarpments and significant flora and fauna.

3 To the west and south of the site are areas of remnant bushland and The Ridge sporting complex. To the east of the site is Stage 1 of the Gandangara Estate with most lots developed with residential dwellings.

4 The proceedings were conducted as a Conciliation Conference under s 34 of the Land and Environment Court Act 1979. As no agreement was reached between the parties the Conciliation Conference was terminated in accordance with s 34(4). The parties consented to me disposing of the proceedings forthwith (s 34(4)(b)(i)) and on the basis of what had occurred at the Conciliation Conference (s 34(4)(b)(ii)).

5 A number of local residents provided evidence on-site opposing the subdivision. The main area of concern was that the layout of the subdivision should be amended to eliminate streets that run in an east/west direction and intersect with Timbrey Circuit so there is no potential for the headlights of vehicles travelling in an easterly direction to shine into houses on the eastern side of Timbrey Circuit. The residents provided an amended subdivision layout to indicate an alternate layout that addressed their concerns. Other issues raised by involved changes to the subdivision layout and the change in location of the existing local recreational facilities since the purchase of their properties, the potential for the new subdivision roads to be used as "race tracks" during construction and prior to dwellings being erected on the new lots and the impact on access to existing properties brought about by changes to the existing road alignment.

6 The Statement of Facts and Contentions of the council raises a number of issues including the subdivision design (Contention 1), drainage (Contention 2), heritage (Contention 3), undersized lot (Contention 4), matters raised by objectors (Contention 5) and inadequate information (Contention 6). Following further discussions between the parties and the provision of additional plans and documentation, the remaining matters in dispute related to the proposed street layout and the location of an Asset Protection Zone (APZ) in part of the proposed subdivision. A number of conditions of consent were satisfactorily addressed through further discussion between the parties, including the adjustment of existing access points to existing dwellings required by the realignment of the existing roads. Directions were given for the filing of amended conditions of consent based on the agreed changes and those matters determined by the Court on site. The agreed conditions were filed on 2 April 2009.

Proposed street layout

7 The councils sought an amendment to the subdivision layout consistent with that proposed by the local residents.

8 In considering the advantages and disadvantages of the two subdivision layouts, I am satisfied that the applicant’s layout is acceptable for a number of reasons. This layout represents a more efficient and more orderly development of land in that a greater number of lots can be provided from the same area. Also, the advice from the council staff was that the resident’s layout did not satisfy the minimum lot size for a significant number of the proposed lots.

9 Importantly, I am not satisfied that the potential impact of headlights on dwellings in Timbrey Circuit is likely to create any meaningful concern. There are two east/west streets that potentially could impact on dwellings in Timbrey Circuit through headlight glare. These two streets however are relatively short and vehicles using the access with Timbrey Circuit are likely to come from only a maximum six or seven dwelling for each street. Given the residential use of the lots, the small number of lots involved and the likely low frequency of vehicles using this intersection, there is no valid planning reason why the applicant’s layout should be amended.

10 There are benefits in terms of access for emergency vehicles, including bushfire vehicles, as the applicants layout provides a more direct route to a number of the proposed lots however it is not a significant advantage. The applicant’s layout provides for a narrowed carriageway on the to the east/west streets near the intersection with Timbrey Circuit to discourage the use of this intersection. I agree that this is an appropriate treatment and this treatment could be reinforced with a raised threshold or similar to further discourage the use of the intersections.

Asset Protection Zone -

11 The council sought an amendment to the APZ for Lot 1 that is located in the north-east corner of the proposed subdivision. Lot 1 was described as the lot most vulnerable to bushfire attack because of its orientation and location in relation to any likely fire front. The northerly APZ is 35 m and satisfies the numerical requirements of Planning for Bushfire Protection 2006. The council maintained that there should be an increased APZ in this location because of its vulnerable location in terms of bushfire risk. The applicant offered to extend the APZ by a further 5 m however the council sought a greater increase.

12 On this issue I am satisfied that the additional 5 m setback is appropriate given compliance with the requirements of Planning for Bushfire Protection 2006 and the endorsement of the Rural Fire Service for the original location of the APZ.

13 Of the other matters raised by local residents, I am not satisfied that they are matters that are valid planning considerations or need to be addressed through any further amendments to the proposed subdivision.

14 The Orders of the Court are:

1. The appeal is upheld.
2. Development Application DA 07/1431 for the subdivision of Lots 42 and 43 in DP 1061416, Timbrey Circuit, Barden Ridge is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit E.
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G T Brown
Commissioner of the Court