Jamison Investments Pty Ltd v Penrith City Council - [2010] NSWLEC 1194

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Jamison Investments Pty Ltd v Penrith City Council [2010] NSWLEC 1194

PARTIES:
APPLICANT
Jamison Investments Pty Ltd
RESPONDENT
Penrith City Council

FILE NUMBER(S): 10986 of 2009

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT APPLICATION :- childcare centre

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan No 13- Mulgoa Valley
Draft Penrith Local Environmental Plan 2008

CASES CITED: Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195 at [57].

DATES OF HEARING: 31 May 2010 and 1 June 2010

DATE OF JUDGMENT:
23 July 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Mantei (solicitor)
of Planning Law Solutions Pty Ltd
RESPONDENT
Mr M Fraser (barrister)
instructed by
Mr M Bullivant (solicitor)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

23 July 2010

10986 of 2009 Jamison Investments Pty Ltd v Penrith City Council

JUDGMENT
Introduction

1 The applicant seeks approval to consolidate lots 12,13,43,44, and 45 in DP 2721 and to construct a 56-place childcare centre on the consolidated allotment also known as no 341a Littlefields Road, Mulgoa (the site).

2 The council is of the opinion that the proposed development is inconsistent with the objectives of Sydney Regional Environmental Plan No 13 Mulgoa Valley (SREP 13) and the zone within which the development is to be carried out. It contends that if the Court forms the same opinion after a consideration of the evidence then it has no power to approve this development because clause 8(3) of SREP 13 provides:

“(3) Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless it is of the opinion that the carrying out of the development is consistent with the objectives of the plan and of the zone within which the development is proposed to be carried out.”

3 It is also council’s contention that the development does not satisfy the development criteria in clause 12 of the SREP 13 or clauses 1.2(2)(d) and 6.10(3)(f) of the Draft Penrith Local environmental Plan 2008; or satisfactorily deal with the drainage issues raised by clause 6(4)(b) of Sydney Regional Environmental Plan No 20. Hawkesbury –Nepean River (No 2-1997). For those reasons the council submits the development is not suitable for the site and the Court should dismiss the appeal.

4 The applicant, however, invites the Court, based on its evidence, to form a different opinion. It contends that the development is consistent with the objectives of the plan and the zone within which it is proposed to be the carried out. It submits that the development is appropriate for this site and that development consent can and should be granted under section 97(1) of the Environmental Planning Act 1979 (the Act)

5 After a consideration of the evidence, and the relevant matters under section 79C of the Act, I have formed the opinion that the development is inconsistent with the objectives of the SREP 13 and the zone within which the development is to be carried out. Because of that opinion, clause 8(3) of the SREP 13 precludes the Court from approving this application. I also find, based on the evidence, the development does not satisfy the development criteria in clause 12 of the SREP 13 and therefore on that ground the Court should not grant development consent to this application. It is also the fact that the development is prohibited under the proposed future zoning of the land under the Draft Penrith Local Environmental Plan 2008 and therefore it is at odds with the desired future planning for the site. For all of the above reasons I have decided to dismiss the appeal.

The Proposal

6 The agreed statement of facts and contentions filed on 27 January 2010 describes the proposal in the following terms:

“…The childcare centre would contain; three (3) activity rooms, an outdoor play area, an administration office, a cot room, a sick bay/sleeping room, a staff respite area, a meeting room, a kitchen, a laundry, storage areas, two (2) staff water closets, an accessible sanitary facility, and eight (8) children’s toilets in a common area.

The proposed childcare centre is to be single storey with a maximum external wall height of 3. 7m and a predominantly flat roof with the exception of a 10-degree skillion extension to enable the placement of north facing windows. The building will be constructed from selected face brickwork with render highlights and be clad with metal roof sheeting.

There will be a 45 metre building setback from Littlefields Road, and a 20.5m building setback to 'Frederick Street' (paper subdivision). The proposal incorporates a 2m setback from the northern boundary (side), a 4m minimum setback to the southern boundary (side), and a minimum 4m setback from the eastern boundary (rear).

A total of 18 car parking spaces are to be provided as well as a turning circle and a paved space for emergency and service vehicles.

It is outlined that 11 mature Eucalypt trees are to be removed as part of the proposal.

Witnesses

7 The Court heard planning evidence from the applicant’s planner, Mr Hardy, and the council’s planner, Mr Wood, onsite and at the resumed hearing in Court. Each spoke to their written statements of evidence and their joint report (exhibit G).

8 The Court also heard oral evidence from two of the eight objectors: the President of the Mulgoa Progress Association, and the Director of the Mulgoa Preschool. The objectors’ concerns include: permissibility; vegetation loss; traffic generation and safety; use of a pump-out sewage system; storm water run-off and lack of on-site detention; noise; amenity impacts and the need for an additional childcare centre in this locality.

9 In an attempt to address the issues at the hearing the applicant tendered additional information about the design of the retaining walls, the tree removal and landscaping, the driveway access and parking layout and drainage (exhibits B, C and E).

The Site

10 The site is located on the northern side of Littlefields Road, approximately 320m north-east of Mulgoa Village and contains a rural shed. Adjoining the site to the north is a dwelling house and beyond that is the Mulgoa Preschool.

11 To the north and east of the site is predominantly low scale rural/residential development that contains pockets of remnant native vegetation.

12 To the west of the site is Mulgoa Park, and approximately 320m to the south-west is Mulgoa Village.

13 The topography is undulating and the site and immediate surrounds falls significantly to the south-east.

14 To the south of the site is a recent 21 lot rural-residential subdivision, with lot sizes ranging from 676m² to 1332². A number of dwellings are now under construction on the newly established lots.

15 The prevailing built form in the area is low density residential with a mixture of single and two storey dwellings.

16 The established development pattern of single detached dwellings with significant separation distances, together with ample distances creates a low-density rural/residential character with ample landscape buffers.

17 According to the evidence, the 5 lots, which are to be consolidated to form the site, are part of a paper subdivision dating back to the late 1800s comprising 90 lots of between 406 m² and 644 m² in area. The applicant owns 34 lots in the paper subdivision with a total area of about 18,5542m² or 1.85 hectares.

18 The site is an irregular hatchet shaped allotment with a frontage of 21.3m to Littlefields Road, a depth of 80.9m, and a total area of 3047m². It contains a relatively flat portion to the north, which gradually slopes back down towards Littlefields Road, with significant grade changes adjoining the southern boundary of the proposed allotment.

19 The site contains approximately 11 advanced Eucalypt Trees, being Eucalyptus tereticornis or 'Forest Red Gum' which need to be removed to accommodate the development. These trees are identified as associated with the Cumberland Plain Woodland community. The under storey has already been cleared.

20 The site does not currently have access from Littlefields Road or Frederick Street. However, the existing dwelling to the north is currently accessed via the unformed Frederick Street.

The statutory controls

21 The site is subject to the provisions of SREP 13.

22 The aims and relevant objectives of the SREP 13 are set out in clause 3 and identified in paragraph [31] below.

23 The land is zoned 1 Rural Conservation under Sydney Regional Environmental Plan No.13 Mulgoa Valley (SREP 13).

24 The relevant objectives to the Zone No. 1 Rural Conservation are detailed at paragraph [32].

25 The SREP 13 adopts the definitions contained within the Act’s Model Provisions and the proposed development for a childcare centre is permissible with consent under the current zoning.

26 State Environmental Planning Policy No.55- Remediation of Land (SEPP 55) applies to the site.

27 Sydney Regional Environmental Plan No. 20 - Hawkesbury Nepean River (SREP 13 20) applies to the site.

28 Draft Penrith Local Environmental Plan 2008 applies to the site.

29 The site is proposed to be zoned E3- Environmental Management under Draft Penrith Local Environmental Plan 2008 (Draft PLEP 2008).

30 Under Draft PLEP 2008 the proposal is a "childcare centre" as defined in the Draft PLEP 2008 and Childcare centres are prohibited in the E3 Environmental Management zone (Draft PLEP 2008).

2006 applies to the site.

Actions of the respondent consent authority

32 The integrated development application was lodged with the Council on 4 August 2009 and referred to the Rural Fire Service on 4 August 2009. The application was advertised and notified to adjoining property owners, and placed on public exhibition from 19 August 2009 to 2 September 2009.

33 The application is currently undetermined by council.

34 The contentions raised by the council as set out in the statement of facts and contentions filed on 27 January provides:

Contention 1 - Inconsistent with the SREP 13 and Zone Objectives

35 Council’s primary contention is that the proposed development is inconsistent with the objectives of the plan and the objectives of the 1 - Rural Conservation Zone under SREP 13 and as such Council is not able to grant consent.

Particulars

(a) The council has formed the opinion that the carrying out of the development is inconsistent with the objectives of the plan and of the zone within which the development is proposed to be carried out, consequently there is no power for the council to give consent: cI 8(3) SREP 13 13.

(b) The Court as the consent authority will not form the requisite opinion required by cI 8(3) SREP 13 13.
Instruments and controls relevant to this issue
1. SREP 13 cl 13(3)
2. Plan Objectives cl 3(2)

Objectives of the zone:

Contention 2 - Site not suitable

36 The site is not suitable for the proposed development. The development does not satisfy all provisions of CI 12 of SREP 13. Consequently the consent authority "shall not grant consent".

Particulars

Instruments and controls relevant to this issue

1. Section 79C(1)(c) of the Environmental Planning and Assessment Act, 1979.

2. Clause 12 of SREP13 provides:

Contention 3 - Overdevelopment

37 The proposed development is an overdevelopment of the allotment comprising 34 titles.

Particulars

(a) The addition of a second commercial land use and built form at this location on the same allotment or landholding would represent an overdevelopment of the site impacting on rural setting and amenity to the detriment of adjoining residents.

(b) The proposal would establish an inadequately serviced commercial precinct at odds with the existing Mulgoa commercial village further south west fronting Mulgoa Road and zoned 1 (vc) - Village Centre under Penrith Local Environmental Plan 2002 - Villages of Mulgoa and Wallacia.

(c) The allotment of 34 lots has the environmental capacity for only one commercial development in addition to the existing dwelling house having regard to the circumstances and planning instruments applying to the allotment, such that only one of these developments ought proceed:

Contention 4 - Inconsistent with future planning direction

38 The proposed use will be prohibited on this land under the E3 Environmental Management zoning of the land proposed under Draft PLEP 2008.

Particulars

Instruments and controls relevant to this issue

Contention 5 - Visual impact

39 The proposal will have an unacceptable adverse visual impact, as viewed from Littlefields Road and residences fronting Littlefields Road to the south.

Particulars

Instruments and controls relevant to this issue

1. Clause 3 (2)(e)(f) & 3(2)(g) of Sydney Regional Environmental Plan No.13 - Mulgoa Valley;

2. Clause 8 (3) of Sydney Regional Environmental Plan No.13 - Mulgoa Valley, specifically objectives (a) and (c) of Zone No 1 Rural Conservation;

3. Clause 12(a), 12(d), 12(g), 12(k), 12,0), 12(p), 12(q) & 12(r) of Sydney Regional Environmental Plan No 13 - Mulgoa Valley;

4. Clause 1.2(2)(d) & 1.2(2)(g) of Draft Penrith Local Environmental Plan 2008;

5. Clause 2.3(2) Objectives of Zone and Clause 6.5(3) of Draft Penrith Local Environmental Plan 2008;

6. Clause 6.10 (3)(a) & 6.10 (3)(c) & 6.10(3)(f) of Draft Penrith Local Environmental Plan 2008.

Contention 6 - Road Safety

40 The sight distances to the west of Littlefields Road from the proposed driveway are poor, and may compromise the safety of motorists and users of the childcare centre.

Particulars

Sight distance at access driveway exits

Instruments and controls relevant to this issue

Sydney Regional Environmental Plan NO.13- Mulgoa Valley

Contention 7 - Trees

41 The extent of tree removal is unclear based on site observations, with several trees not depicted on the plans or potentially plotted inaccurately.

Particulars

Eucalyptus tereticornis,

Instruments and controls relevant to the issue

1. Clause 3 (2)(c) of Sydney Regional Environmental Plan No.13 - Mulgoa Valley;

2. Clause 8 (3) of Sydney Regional Environmental Plan No.13 - Mulgoa Valley, specifically objective (a) of Zone No 1 Rural Conservation;

3. Clause 12 (g) & 12 (r) of Sydney Regional Environmental Plan No.13 - Mulgoa Valley;

4. Clause 1.2(2)(d) and Clause 6.10 (3)(e) & Clause 6.1 0(3)(f) of Draft Penrith Local Environmental Plan 2008.

Contention 8 - Drainage

42 The current drainage design concept is unsatisfactory and does not demonstrate that the site can be drained adequately. In particular, no provision has been made for on-site detention of stormwater.

Particulars

Instrument in its current form does not comply with the following controls:

1. Clause 6(4)(b) of Sydney Regional Environmental Plan No 20 Hawkesbury-Nepean River (No 2: 1997).

Contention 9 -

Public Interest

43 The proposed development is not in the public interest. The objectors’ issues are detailed earlier and the Council shares several of the concerns raised by the objectors. In accordance with Section 79C(1)(d) and Section 79C(1)(e) of the Act Council contends that the current proposal is not in the public interest. Mr Wood, discusses the public interest and the objectors’ concerns in his evidence at [Para 54] of the judgment

44 In accordance with Section 79C(1)(c) of the Act, and in light of the above, Council contends that this is another reason why the site is unsuitable for the current proposal.

Applicant’s evidence

45 In addressing the above contentions, Mr Hardy gave evidence that the proposed development is of a modest scale and is not inconsistent with the objectives of SREP 13.

46 In support of that assessment he refers to The Mulgoa Valley Regional Study (RES), which he says identifies the site as having “…low conservation value…[and therefore in his opinion] …could accommodate development and hence incur the modification of the landscape with a minimum impact ”(p2 exhibit G). He interprets the above comment in the RES as evidence that the site does not possess any significant ecological or cultural features.

47 Mr Hardy defines the existing rural landscape of the Mulgoa Valley as characterised by a variety of built forms including farm houses, rural sheds, large contemporary dwellings, community buildings, churches, and schools - all set within an open landscape and park like environment. On the view, he asked the Court to observe when approaching the site along Littlefields Road and also when leaving the village the existing built form in large open areas around the site. In particular, he showed the Court a variety of long retaining walls, fences and ornate gates, which, he says are indicative of the rural landscape character of the Valley. In support of the development he writes in his statement of evidence that “…visually strong fencing, driveway and vehicle entry features are a key element of the existing rural landscape of the Mulgoa Valley and, therefore, the proposed driveway engineering is not out of character with the existing rural character of the Mulgoa Valley.”

48 In Mr. Hardy’s expert opinion, this “development simply seeks to insert another built form into that existing rural landscape and provides generous curtilages to adjacent development, particularly when viewed from Littlefields Rd”. He is of the opinion that the childcare development is very similar to the existing built form in the surrounding rural landscape and its addition to the landscape would “…assist in the conservation of the rural landscape of the Valley and provide a density of rural settlement similar to that already found in the Mulgoa Valley.”

49 In his assessment, the driveway is designed to meet accessibility standards and as such requires a degree of engineering to achieve those standards. However, in his opinion, this is consistent with the existing rural landscape. The built form, in his opinion, is well set back from Littlefields Road and amongst existing, mature vegetation. In his opinion, it is not dominate in the landscape and will have “limited visibility from key domain places - inclusive of Mulgoa Road and Mulgoa Park”(p4 joint report). He is of the opinion, it meets the development criteria set out in clause 12 of the SREP 13. He refers to the Design Management Guidelines requiring a setback of 30m from public roads (other than Mulgoa Road); and his evidence is that the development is compliant because it will be setback more than 30 m from the public road.

50 His evidence is that the building setback, although close to the adjoining dwelling, is not dissimilar to other separation distances for built forms in locations on the fringe of Mulgoa Village. He believes the proposed landscaping would reduce the visual impact of the driveway, which will require cut and fill over much of its length and will be raised 1m over 14m of its length. According to his evidence, the development is acceptable and the development will not generate any significant amenity or visual impacts.

51 Mr Hardy concedes that the Draft PLEP will prohibit this development; but does not accept that the proposal is in any way inconsistent with the objectives of the SREP 13 and its zone objectives or the Draft PLEP, which he says adopts much of the development criteria in clause 12 of the SREP 13.

52 With respect to the acceptability of the removal of trees and vegetation, Mr Hardy ‘s evidence is that the proposed tree removal is limited and will have limited ecological significance because the trees to be removed are isolated and fragmented groupings of trees. In his assessment, the tree removal will not have any adverse impact on the endangered Cumberland Plain Woodland ecological community.

53 In Mr Hardy’s assessment the development provides a “…much-needed community facility in the local area” (p14 joint report) and therefore the development is in the public interest and the development consent should be granted.

Council’s Evidence

54 Mr Wood does not agree with Mr. Hardy’s opinion about the development’s consistency with the objectives of the SREP 13 and zoning Table. Consistent with his written evidence, Mr Wood confirmed in concurrent evidence that in his opinion the Court is not able to grant consent to this development because it is inconsistent with the objectives in cl 3(2)(c), (e), (f), (g) of SREP 13 and the objectives in the 1 - Rural Conservation Zone under cl 8(1) and (3) and the Table to of the SREP 13 specifically, (1) and (3) (a), (b), (c), (e).

55 Mr Wood’ evidence is that the development is not “…orderly and economic development, which is compatible with the rural and natural landscape and heritage of the valley”. His evidence is that a childcare centre of this scale would be more compatible with the existing urban forms in the adjoining village and it is incompatible with the existing rural landscape setting of this site.

56 In his opinion, the view taken by the Court confirmed the fact that the development does not “conserve the rural landscape of the valley” as is required by the objective in cl 3(e) of the SREP 13 or protect the “setting of the Mulgoa village within the rural landscape” as is required by objective cl 3 (f) of the SREP 13.

57 Mr Wood describes the development as “perched” approximately 10m above Littlefields Road between the rural areas of Mulgoa defined by the area to the north of Littlefields Road and the Muloga Village to the south of Littlefields Road. In his opinion the built form, the high and long retaining walls, the carpark for up to 18 cars, the centre itself with the adjoining outdoor play area and the long dual carriage driveway will be prominent in the rural setting and inconsistent with the surrounding built form, and the objectives of SREP 13 and the zoning of the site. Furthermore, his evidence is that the siting and scale of the development does not provide adequate setback to any boundaries. He states in the joint report “…Separation distances are inadequate to provide any effective visual buffer to the existing residential development to the north, the approved veterinary surgery to the south, the proposed art gallery/café and vacant lots immediately to the south.” He is of the opinion that the development would have a “detrimental impact on the rural setting of the village of Mulgoa by fragmenting the clear precinct removed from Mulgoa Village” (p3 Joint report).

58 Mr Wood is critical of the fact that the development does not utilise the existing access available from Frederick Street. Instead, he says, an imposing and steep access handle from Littlefields Road is necessary for this development. According to Mr. Wood this is unacceptable because it is incompatible with the objectives of SREP 13 and the zone on which the development is to be carried out. His evidence is that the development will result in the loss trees and vegetation and introduce large uncharacteristic hardstand areas and retaining walls, which will be visually prominent from Littlefields Road. On the view the council asked the Court to observe the existing vegetation between the proposed childcare centre and Littlefields Road and accept its submission that it has an existing character of predominantly established, high-canopied trees, with no discernible under storey. It is council’s evidence that the lack of a under storey precludes screening of the site from Littlefields Road, and the introduction of the substantial screen planting proposed by the landscape plan, which would be required to improve the impact of the development, is at odds with the existing open woodland character.

59 Mr Wood is of the opinion that clause 8(3) of SREP 13 precludes approval of the development because of the number of inconsistencies with the objectives of SREP13 and the zone on which the development is to be carried out. He is also of the opinion that the design criteria in clause 12 are not satisfied by this development and on that basis the development should not be approved.

Findings

60 Much of the hearing concerned evidence about the existing character and rural landscape setting of the Mulgoa Village, which the objectives of SREP 13 seek to preserve. Therefore, it was particularly useful that the hearing commenced onsite because it enabled me to observe that existing character and better appreciate the planning evidence about the development’s impacts on that existing setting.

61 Having regard to what I observed during the view of the site and surrounding area, I am persuaded by the evidence of Mr. Wood. I accept that the existing character is that of open woodland with predominantly established, high-canopied trees, with no discernible under storey. I accept that this development does not protect the setting of the Mulgoa village within the rural landscape, which is an objective in cl 3(f) of SREP 13. I accept the council's evidence that the impacts of this development are inconsistent with clause 3(2)(c), (e), (f), (g) and (h) of SREP 13. Furthermore, I accept council’s evidence that the development is inconsistent with the objectives of the 1 Rural Conservation Zone under clause 8(1) and (3) and the Table to the clause of SREP 13 specifically, (a), (b), (c), (e).

62 Council’s evidence is that a childcare centre of this size is at odds with the existing rural setting because it will result in the loss of trees and additional vegetation, introduce large hardstand areas and long retaining walls, which will be visually prominent when viewed from Littlefields Road. I accept that the lack of a under storey on the site precludes screening from Littlefields Road and that the introduction of the proposed substantial screen planting, which would be required to improve the impacts of the development, is at odds with the existing open woodland character. The objective in cl 3(e) is to “conserve the rural landscape of the valley” and this development does not achieve that objective. Nor does the development as is required by cl 3(f) “…protect the setting of the Mulgoa village within the rural landscape.” The evidence is that the extent of the built form, in particular the driveway, parking area and associated retaining walls would present a “significantly more urban form than the existing rural landscape which provides a definite rural setting for the village of Mulgoa to the south. I accept that Littlefields Road provides a clear delineation between urban and rural settings at this location.

63 I accept the evidence of the objector for the progress association and Mr. Wood’s evidence that Littlefields Road is a gateway to the village and this development does not protect the setting of that village within the rural landscape. I accept the evidence of Mr Wood that this is “an extreme overdevelopment of the identified 5 titles. The addition of a second commercial land use and built form at this location on the same allotment or landholding would represent an overdevelopment of the site impacting on the rural setting and amenity to the detriment of adjoining residents.” (P18 Statement of Evidence).

64 I accept that the approval of this additional commercial use on the site would establish an inadequately serviced commercial precinct at odds with the existing Mulgoa commercial village further south-west fronting Mulgoa Road and zoned 1(vc) - Village Centre under Penrith Local Environmental Plan 2002 –Villages of Mulgoa and Wallacia.

65 I accept the evidence of council that the objectives of SREP 13 and the zoning of the site cannot be achieved with this development. I appreciate it is council’s view that the allotment of 34 lots has an environmental capacity for only one commercial development in addition to the existing dwelling house having regard to the circumstances and the current planning instruments. This is supported by the fact that the proposal is inconsistent with the planning controls under the Draft PLEP, which zones the site as E3 Environmental Management and thereby limits the range of permissible development for the site and specifically prohibits the development of a childcare centre.

66 As submitted by council, the difference between the evidence of Mr Hardy and Mr Wood on the future planning direction of the site as Mr Wood states (at p9 of the joint report) is that the council gave express consideration of the exclusion of childcare centres on the site under the Draft LEP. That express exclusion, I accept should be give considerable weight in an assessment of the merits of this application because the Draft PLEP according to the evidence is both certain and imminent. : Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195 at [57].

67 The minimum lot size in the Zone 1 of Rural Conservation Zone is prescribed by cl13 (3)(b) to be 10 ha. It is agreed that the consolidation of the 5 lots as proposed by the applicant results in an area of some 3,047m2 or 0.3ha. Again I accept the council’s submission that the environmental capacity of this part of the 34 lots, which are partly visible from Littlefields Road, is for one commercial use. I accept that in approving the vet clinic on certain of the lots the council relied upon the surrounding open wooded environment to ensure that the existing rural landscape was maintained. On that basis, I agree with the council’s submission, based on the evidence, that it is unacceptable to substantially remove that woodland to facilitate the development of the childcare centre proposed by this application. I agree with Mr Wood that if another commercial use were to be approved on the site then it would be appropriate to require the applicant to relinquish the vet consent because I accept the council’s evidence that more than one commercial use on the 34 lots would have a detrimental effect on the visual catchment from Littlefield Road.

68 Based on the evidence, I accept council’s submission that the siting and extent of the built form - particularly the long, elevated driveway and the long retaining walls would adversely affect the existing rural setting of Mulgoa village, when viewed from Littlefield Road. Furthermore, this adverse impact is inconsistent with the objectives in cl 3(2)(f) and cl12 (k) of SREP 13 that specifically seek to retain the rural setting of Mulgoa village. In addition I accept the council’s evidence that the proposed form and siting of the buildings and proposed landscaping are not appropriate for the rural character of the valley and are inconsistent with the intent of the Design and Management Guidelines which apply to the site by clause 12(d) of SREP 13. The site is, as council submits, a gateway, which provides a definite rural setting for the village of Mulgoa to the south; and the evidence supports a finding that this development would have an adverse effect on that existing character. The clear delineation between the village and rural zones, reflected in the overall objectives of SREP 13 and the Draft PLEP, will be adversely affected if this development were to be approved. Therefore, I am of the opinion that the development is inconsistent with the objectives of SREP 13 and the zone in which the development is to be carried out and clause 3(8) precludes the approval of this development application. In addition I am satisfied that the evidence supports a finding that the development criteria in clause 12 of SREP 13 are not satisfactorily achieved by this development and on that basis the development application should not be approved on a merit assessment under section 79C of the Act.

69 For all of the above reasons, the Court makes the following Orders:

1. The appeal is dismissed.

2. Development consent is refused to development application 09/0737 for the erection of a childcare centre at lots 12,13,43,44 and 45 in DP 2721, known as No 341a Littlefields Road.

Susan Dixon

Commissioner of the Court

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Citations

Jamison Investments Pty Ltd v Penrith City Council [2010] NSWLEC 1194

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Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289

CITATION:	Jamison Investments Pty Ltd v Penrith City Council [2010] NSWLEC 1194
PARTIES:	APPLICANT Jamison Investments Pty Ltd RESPONDENT Penrith City Council
FILE NUMBER(S):	10986 of 2009
CORAM:	Dixon C
KEY ISSUES:	DEVELOPMENT APPLICATION :- childcare centre
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan No 13- Mulgoa Valley Draft Penrith Local Environmental Plan 2008
CASES CITED:	Terrace Tower Holdings Pty Limited v Sutherland Shire Council (2003) 129 LGERA 195 at [57].
DATES OF HEARING:	31 May 2010 and 1 June 2010
DATE OF JUDGMENT:	23 July 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr M Mantei (solicitor) of Planning Law Solutions Pty Ltd RESPONDENT Mr M Fraser (barrister) instructed by Mr M Bullivant (solicitor)