Hammond Smeallie & Co. Pty Ltd v Hornsby Shire Council

[2008] NSWLEC 1473

Land and Environment Court

of New South Wales

CITATION:

Hammond Smeallie & Co. Pty Ltd v Hornsby Shire Council [2008] NSWLEC 1473

PARTIES:

APPLICANT
Hammond Smeallie & Co. Pty Ltd

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

10468 of 2008

CORAM:

Hussey C

KEY ISSUES:

Development Application :- Subdivision, buffer to Blue Gum High Forest, drainage safety

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Hornsby Local Environmental Plan 1994

DATES OF HEARING:

27/10/2008, 28/10/2008 and 7/11/2008

 
DATE OF JUDGMENT: 

10 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. McKee, solicitor
of Mckees Legal solutions

APPLICANT
Mr P. Jackson, solicitor
of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

10 December 2008

10468 of 2008 Hammond Smeallie & Co. Pty Ltd v Hornsby Shire Council

JUDGMENT

Background

1 This appeal was lodged against council's refusal of a subdivision application to create 6 community title lots, 1 community title road access and stormwater infrastructure lot and 6 Torrens title residential lots, on land situated at 13 Ridgemont Close, Cherrybrook.

2 A number of issues were identified for the appeal, which are summarised as follows:

• Adverse impact on Blue Gum High Forest (BGHF) and provision of an adequate buffer.
• Lot layout with particular reference to the utility of private open space areas.
• Road, drainage infrastructure.
• Public interest.

3 Following conferencing between the parties, further amendments were undertaken and this included the deletion of 1 Torrens title lot (Lot 11), so as to provide an effective 6m wide buffer to the BGHF area along the full frontage of this property. These amendments have resulted in the party’s agreement to the amended plans and conditions of consent.

The site

4 The subject land comprises Lot 12 in DP 16975 and Lot 201 in DP 874124 (118 Franklin Road, Cherrybrook – Inala). It has a total area of 13,433 sq m with a frontage of 36m to Ridgemont Close, together with a 50m frontage to Franklin Road.

5 The land is characterised by a slight fall from the north eastern boundary down to the south western boundary. It is dissected by a transmission line easement, which runs along a north-south alignment and is approximately centrally located. A drainage channel ends with the transmission line easement in the vicinity of the south western boundary. A stormwater pipes ends at the drainage channel via a concrete headwall and spillway. The concrete pipe runs from a concrete detention tank, which is located on the adjoining allotment to the north east.

6 The subject site is mostly clear of indigenous vegetation, however sections of the site along the western boundary contain some remnant indigenous tree and under storey species which are characteristic of BGHF. The BGHF is listed as a Critically Endangered Ecological Community under Part 2 of Schedule 1A. of the Threatened Species Conservation Act 1995.

7 The site adjoins low-density residential development to the northeast which fronts Ridgemont Close . There are 2 allotment which adjoin the site to the south west. The lot to the east accommodates a dwelling house, whilst the lot to the west is a battleaxe shape lot (Lot 10 DP 16975, 122 Lakeland Rd Cherrybrook), which contains remnant BGHF that is approximately 0.9ha in size.

8 The amended proposal that the parties have agreed to comprises:

• The community title subdivision of 7 lots, with Lot 1 containing the internal access road – widened in sections to provide manoeuvring areas, drainage and common property, residential lots 2 – 7 ranging in areas from 554 sq m – 668 sq m.
• Lot 8; the residue lot containing Inala and fronting Franklin Road.
• Lot 13; new residential lot fronting Ridgemont Close and having an area of approximately 776 sqm.
• Lots 9. 10, 11 on the western boundary, which front a future new road through Binet development property. Interim access to these lots is to be provided through lot 4, whose development is to be restricted pending construction of the new road.
• The subdivision provides for a 6m wide buffer along the southern boundary to protect the BGHF.
• The removal of the existing above ground stormwater detention tank and its replacement with a stormwater wetland located within the transmission easement.

Planning controls

9 The following controls apply:

• Hornsby LEP 1994; under which the site is zoned Residential A (Low Density) and the development is permissible with consent.

Clause 18(9) of the LEP requires consideration of an assessment of Aboriginal heritage.
• Sydney Regional Plan No 20 – Hawkesbury Nepean River
• State Regional Plan No 44 – Koala Habitat
• State Environmental Planning Policy No 55 – Remediation of Land.
• Residential Subdivision DCP.
• Cherrybrook Precinct DCP
• Dwelling house DCP
• Car parking DCP
• Sustainable Water DCP
• Water minimisation DCP
• Threatened Species Act 1995.
• Development Contributions Plan 2007 – 2011.

The evidence

10 Detailed evidence on behalf of council was presented by:

• Ms C Williams; Council’s town planner.
• Mr C Fraser; Council’s subdivision engineer.
• Mr I Harwood; Council’s operations manager – waste.
• Mr J Slaven; Council ecologist.
• Mr A Fraser; Council ecologist.

11 For the applicant evidence was presented by:

• Mr G Smith; Consulting planner.
• Mr G Skow; Registered surveyor
• Mr M Walters; Consulting ecologist.

12 Other evidence was presented from neighbouring property owners concerning the potential impacts of increased runoff from the subdivision, and the provision and timing of the new internal road to achieve the orderly development of the site and adjoining properties.

13 It is apparent from the evidence that conferencing by parties has addressed the outstanding issues. Whilst there is a raft of controls applying to subdivisions, I understand that the proposal basically satisfies the numeric and qualitative controls and relevant objectives. Notwithstanding this, there was a threshold issue concerning the lot layout and buffer adjacent to the BGHF.

BGHF Buffer

14 In the circumstances of this case, the ecologists have agreed that the provision of a 6m buffer across lots 1 and 5 to 7 would be sufficient to protect the remnants of the BGHF on the adjoining property. Also, to provide reasonable security for the future occupants of these new lots due to the proximity to the existing mature Bluegums and other vegetation to future dwelling locations.

15 In the initial plan, the applicant proposed the creation of lot 11 with a width of approximately 12.6m adjacent to the common boundary with the BGHF. As a consequence, the aforementioned 6m buffer, comprising a 3m wide buffalo strip and 3m wide native vegetation area, was reduced to 2m inside this lot, which Mr Slaven considered inadequate and unacceptable for a number of reasons.

16 The amended plan now reduces the initial 4 lots to 3 lots fronting the future road on the western boundary. Consequently, the revised lot 11 is widened to approximately 17.3m and incorporates an extension of the 6m buffer. I understand from the submissions that the council experts are satisfied that this will result in an acceptable environmental outcome because it allows the consistent width buffer, with much better and safer utility of the adjacent private open space areas. In the absence of any challenge to this amendment, I rely on the ecologists and planners agreement that this is satisfactory.

Access, orderly development.

17 The associated issue concerns the orderly development of the lots fronting the future road. Initially the applicant proposed the ‘staged’ creation of these lots, with interim access arrangements while they were effectively landlocked.

18 The amended plan now is to create only lots 9, 10, 11 fronting this future road alignment and their interim access is secured by a restriction on development of Lot 4 in the community title section. This arrangement is on the basis that a 1.5m strip is to be dedicated for the future road and the agreed conditions cover the land strip dedication and arrangements for a proportional contribution towards the cost of the new road, to which these lots will eventually have their main frontage.

19 Having considered the evidence, including that of Mr Binett, whose development property adjacent to lots 9 – 11 has been delayed because of the inability to obtain satisfactory access for some 17 years, I am satisfied this amended proposal is a positive step in the orderly development of this land, generally in accordance with the Cherrybrook DCP. As this is reflected in the agreed conditions, I do not consider there are any grounds to reject the proposal on the basis of this issue.

Conclusions

20 Having considered the evidence, the submissions and undertaken a view, I am satisfied the relevant controls are reasonably satisfied so as to allow the consent to now be granted. In particular, an Aboriginal assessment as required by clause 18(9) of the LEP was submitted and found to be satisfactory by council. I rely on this determination.

21 As I noted initially, this residential subdivision is permitted on this site and in my assessment, the amended proposal satisfies the following zone objectives and relevant development controls:

(a) to provide for the housing needs of the population of the Hornsby area.
(b) to promote a variety of housing types and other land uses compatible with a low density residential environment.
(c) to provide for development that is within the environmental capacity of a low density residential environment .

22 The amended proposal results in a reduction of 1 lot from that initially proposed and this enables a more acceptable and larger lot layout for lots 9 –11 to facilitate future erection of dwellings that are consistent with the evolving “garden” character of this area, as described in the Cherrybrook DCP. It also incorporates the more sensitive and acceptable on-site drainage detention system, the provision of visitor parking areas and suitable garbage storage/collection area.

23 Importantly, the amended layout includes the extension of the 6m buffer to the BGHF, which the ecologists agree represents a reasonable balance for the development of this land and I rely on this agreement.

24 Other critical matters concern the interim access arrangements for these lots 9 – 11, to prevent them being landlocked and to facilitate their integration with the overall DCP road pattern. This is to be achieved by way of the generally agreed conditions of consent. This includes the conditions regarding proportional road contributions.

25 However, one aspect of disagreement concerns the arrangements to remove the restrictive covenant on Lot 4 when the alternative road access is available. The council prefers the imposition of a positive covenant that relinquishes the future right of access and easement for services on Lot 4. Whereas the applicant submits that this unnecessary and an unreasonable cost burden that should be avoided.

26 In considering these different positions, it seems to me that a more orderly outcome would be achieved by way of the condition requiring the positive covenant. It is apparent from the evidence that there is a considerable degree of difficulty in effectively achieving the construction of internal roads and as the new lots 9, 10, 11 and 4 are capable of independent transactions, the positive covenant should provide better disclosure of this restriction on these lots.

27 I am satisfied the overall conditions of consent address the matters raised by the neighbours and in particular, I consider the amended stormwater detention system to replace the above ground concrete tank with a wetland should result in a better and safer environmental outcome.

28 The Court orders.

1. The appeal is upheld

2. Development consent is granted to Development application DA /1342/2006 for the subdivision of 13 Ridgemont Close and 118 Franklin Road, Cherrybrook in accordance with the conditions in Annexure “A”.

3. The exhibits be returned except M and N.
_______________________
R Hussey
Commissioner of the Court
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