Jefferson M Robinson and Associates Pty Ltd v Sutherland Shire Council
[2004] NSWLEC 261
•03/18/2004
Land and Environment Court
of New South Wales
CITATION: Jefferson M Robinson & Associates Pty Ltd v Sutherland Shire Council [2004] NSWLEC 261 PARTIES: APPLICANT
RESPONDENT
Jefferson M Robinson & Associates Pty Ltd
Sutherland Shire CouncilFILE NUMBER(S): 11128 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- Caravan park with existing use rights - seeks conversion to community title subdivision with detached house on each lot - beneath flight path to Sydney Airport - ANEF 25-30 noise zone - beside flora and fauna habitat - near potential disaster risk industry. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan No. 17
Sutherland Local Environmental Plan 2000CASES CITED: Russo v Kogarah 86 LGERA 300 DATES OF HEARING: 15,16 and 19/03/2004 EX TEMPORE
JUDGMENT DATE :03/18/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr A Galasso, barrister
SOLICITORS
Hannaford Lawyers
Mr D Parry, barrister
SOLICITORS
Abbott Tout
JUDGMENT:
- Mr Challis, acoustic engineer,
- Mr S Gibb, social and community planner,
- Mr G Hand, town planner.
- Mr D Craig, acoustic engineer,
- Ms M Harvey, social planner and
- Mr D Franklin, risk engineer.
- Mr C Blythe, town planner,
- Mr D Wotherspoon, faunal expert, and
- Dr P Bacon, wetland aquatic habitat and groundwater and stormwater expert, but they were not required for cross-examination.
11128 of 2003 Hoffman C 19 March 2004IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
v Sutherland Shire CouncilJefferson M Robinson and Associates Pty Ltd
Applicant
Respondent Judgment
1. This was a class 1 appeal 11128 of 2003 between Jefferson M Robinson and Associates Pty Ltd and Sutherland Council regarding the deemed refusal to consent to convert to another use, an existing use under Div 10 of the Environmental Planning andAssessment Act 1979 being a caravan park and motel, at a site known as 228 to 294 Prince Charles Parade at Kurnell.2. The new use was to subdivide off the motel component and to remove the caravans and to further subdivide the land to provide 15 lots and detached dwellings in an integrated development with a private access road under community title subdivision. The existing caravan park and motel fronted Prince Charles Parade at the western end of the village of Kurnell facing Botany Bay on the northern side of the property. The motel and three new house lots would continue to front the parade which had the Silver Beach Public Reserve on its northern side running along the edge of the waterfront.
3. The proposal incorporated Lot 17 Ward Street where an existing house was to be demolished and the land used for the private road access to 12 of the new lots and houses and also to the rear of the motel units. Each lot had an individual two-storey house, designed as shown in the application, each house had three bedrooms and all except four had a nominated spare room or second living room that the council speculated gave a potential fourth bed room. The appeal papers actually stated that the proposal was a mixed three and four-bedroom house proposal.
4. The lot sizes varied between 797 m2 and 556 m2 in area. The two lots containing the existing motel units are the two largest lots with about 22 to 24 m long frontages and 32 to 36 m depth. The motel lots had dual access with their carparking being off the private internal road. The house lots varied between 774 m2 and 582 m2 in area with most in the 600 to 700 m2 category with widths of 15 to 17 m and depths of 30 to 35 m. This was a matter of some concern to the council as the applicable statute under the council's understanding required new house lots to be a minimum of 900 m2 and a minimum width at the front at the start of the house of 18 m and a minimum depth of 30 m. Battleaxe lots were said to have to have a minimum area of 1000 m2.
5. The applicable statute in the council's mind was Sydney Regional Environmental Plan No. 17 for the Kurnell Peninsula, however it was drastically affected by the existing use rights status of the caravan park. The caravan park was a prohibited use on the subject property but motels were permissible, with consent. The subject land was zoned 6C Open Space Private Recreation with a 5 m wide strip along its southern boundary, as a 9C Open Space Regional Reservation. This latter zone was intended to create a buffer to Quibray Bay, which was also known as the Taren Point Acquatic Reserve, zoned 7A Environmental Protection.
7. The issues in the case were:6. It was an important wildlife flora and fauna habitat and resting place for migratory birds. The subject land on its southern side had about a 100 m frontage to the mangroves on the edge of the bay. Adding to this complexity, the site was directly beneath the southern approach to the main runway of Kingsford Smith Domestic and International Airport. It was in the ANEF 25-30 Noise Zone. Residential accommodation was not recommended in that zone. Also Sydney Regional Environmental Plan No.17 overrode the Sutherland Local Environmental Plan 2000 on the Kurnell Peninsula and had been prepared by the State Government partly to protect the unique natural environment of the peninsula and because of the risk of disastrous explosions from the nearby Caltex Kurnell Refinery.
- 1. Whether it is reasonable to approve this development proposal having regard to the strategic planning principles outlined in Sydney Regional Environmental Plan No. 17 , short acronym SREP17, particularly;
- (i) objectives (c) and (f) in cl 2(1);
(ii) objectives (c) and (g) in cl 2(2);
(iii) the objective of the 6C Private Recreation Zone in the table to cl 9;
(iv) objective (c) of the 2A Residential Zone in the table to cl 9; and,
(vi) the considerations in cl 25 character of the area.
- (i) the limitations imposed in cl 18;
(ii) development standards in cl 11(1) with respect to new dwelling houses and allotment sizes;
(iii) controls for minimum lot size in cl 11.1 of the Development Control Plan for residential subdivision.
4. Whether the social impact assessment accompanying the development application sufficiently documents the social circumstances of the 16 households who have been residing in the caravan park for longer than six months with a view to assessing their connections with the local community and their demographic profile.
5. Whether the matters raised in the document prepared by the Department of Environmental Planning in 1986 titled "A Risk Assessment Study for the Kurnell Peninsula" and the 1989 document titled "Draft Land Use Safety Review Update for the Kurnell Peninsula" have been satisfactorily taken into account by the applicant in this matter.
6. Whether it is reasonable in the circumstances to segregate the titles of the motel units and shop-office when these uses are dependent on one another.
8 . The Court heard the respondent's evidence from:7. Matters raised by resident objectors.
10 . The applicant's evidence was heard from:
9 . There was an expert report from Mr I Drinnan, senior environmental scientist for the council, but he was not required for cross-examination.
11 . There were expert reports in evidence from:
12 . Previous issues in respect of protection of the Quibray Bay area had been resolved by draft conditions of consent to create swales and vegetation buffers in the zone 9A Land and to treat stormwater on site.
13 . The planning instrument had as one of its objectives for the Residential Zone of Kurnell to control the subdivision and use of land and limit the population growth within the Kurnell Village. Although that objective applied to the Zone 2A land and the site was zoned 6C, the respondent used this objective to say to the Court that one of the overall outcomes of the statute was to prevent development such as the proposal where increased permanent population would result, namely, from 15 new houses minus the one to be demolished on lot 17 Ward Street.
14 . The applicant summarised its case by saying that s 108(3) of the Environmental Planning and Assessment Act 1979 had the effect that wherever a planning instrument derogated from the existing use rights it was of no effect and that the caravan park had valid and subsisting council consents for 80 caravan site of which 33 were permitted to be for permanent resident domiciles.
15 . Some of the caravan sites had prefabricated transportable two-bedroom houses on them and there was a swimming pool and shop on the property and the beach Botany Bay offers it. These appear to be suitable for long-term occupation. There were currently 31 persons on site who had been resident for six months or more. At peak periods the 80 sites were occupied by up to about 300 persons attesting to the acceptability of the site to many people for permanent or temporary residency.
16 . By Kurnell Australian Bureau of Statistics collector district statistics the 15 proposed houses would have 2.82 persons per house giving a total of 43 permanent residents in the development. The permanent residents in the caravan park average 1.5 persons per permanent site, so the potential maximum permanent caravan population exceeded the maximum of the proposed houses, and the potential for 300 persons on the site vastly exceeded the potential of the proposal. As a result, the proposal did have the planning outcome of reducing the potential population of Kurnell Village in accordance with SREP17. This was relevant to cl 28 of SREP17 that required consideration of risk assessment studies for the peninsula.
17 . Mr Franklin's evidence was that he had reviewed the relevant studies in 1986 and 1989 on Kurnell and the 2002 Advisory Paper No.4 on Risk Criteria for Land Use Safety Planning. He had concluded the area of real risk identified by the studies was a 500 m buffer to the refinery where intensification of residential or tourist uses should not be permitted. The subject site was 1.5 km by road from the refinery and about 1.2 km as the crow flies across Quibray Bay. The site was out of the area of restriction and he said the permanent residents would be more familiar with the area and emergency evacuation procedures than transient caravan park occupants. That reduced the risks to individuals and any risk was further reduced by bringing the potential number of on-site occupants from a maximum of 300 down to 43.
18 . Turning to the noise impact concerns the Court saw and heard the evidence on site of aircraft flying directly overhead to land on the main runway across the bay and other planes were flying to the north-east on track for the third runway. Mr Parry, for the respondent, made the observation there were no Boeing 747s passing overhead during the view and the evidence of the acoustic experts was that on take-off over the site one of those aircraft could generate noise up to 85 decibels. The noise monitoring of the site showed the maximum number of overflights had occurred on 26 January 2004 between noon and 2 pm when 25 aircraft exceed 85 decibels in that two-hour period. Obviously at other times and when winds favoured the use of the east-west runway there was less noise and less frequency. The ANEF contours were based on the variables of noise and frequency of aircraft.
19 . One matter that came out of Mr Challis's evidence was that the curfew at Kingsford Smith Airport from 11 pm to 5 am is not a total curfew in flights. There are between nine and fourteen flights during curfew by freight aircraft and others. To keep the rest of Sydney undisturbed these night flights were restricted to the narrow corridor over the site. These planes are permitted as generating less noise than the biggest aircraft but they still could generate up to 70 decibels at the site. Both acoustic experts agreed that when windows at the proposed houses were open for ventilation there would be sleep arousal as each plane flew over the site at night. Mr Challis believed that the construction materials of the proposed houses could not reduce the noise to acceptable levels even with the windows shut.
20 . Mr Craig believed with current day insulation materials and with careful construction techniques to ensure continuity of acoustic insulation the noise could be brought down to the acceptable internal noise levels set down in Australian Standard 2021 table 3.3. He said some amendments would be needed such as the bi-folding glass doors shown on the balconies and terraces would need to be sliding glass double-glazed but the design and external appearances of the houses would remain the same.
21 . Mr Challis said much heavier masonry and concrete construction was needed and mechanical ventilation so that windows could be kept shut to keep the noise out. The ANEF contours, he said, had been reviewed and upgraded. When the design of the houses was done the site was in the ANEF 20-25 forecast up to the year 2010. In December 2003 this was changed and the site is not in the ANEF 25-30 forecast up to the year 2023-24. Residential uses were in the category of unacceptable in the new noise contour and in Mr Challis's opinion should not be allowed.
22 . Even if the houses could be made sound proof the occupants would be bunkered in their houses because the yard areas would be subject to the full noise exposure at up to a maximum frequency of one every six minutes. Even when it was in the ANEF 20-25 contour the site came in under the conditionally acceptable category for residential use, so for strategic long-term planning the use should not be allowed, Mr Challis said.
23 . Mr Craig was of the opinion there was no prohibition of residential use in the ANEF 25-30 contour, only recommendations against it. The houses could be made to meet the internal noise levels for acceptable human occupation and those persons who had greater sensitivity to noise in the yard areas would not buy at the site.
24 . Mr Gibb gave the Court the evidence that the census for Kurnell showed average occupancy of 2.82 per house. The applicant's social planner had used the East Sutherland Shire average of 2.5 and this indicated more persons permanently on site in the proposal than existing. There were 31 persons currently permanently resident. Mr Gibb expected greater occupancy in any case because the proposed houses had three and four bedrooms suitable for families whilst the caravans and prefab transportables were one-bed or two-bed accommodation. He believed there was no where in Kurnell for displaced permanent residents of the caravan park to go. Caravan parks provided one of the important sources of affordable housing for low income persons. There would be uncertainty, the stress of relocation outside the Kurnell community and the cost of relocation. Who was to pay? He thought the impact alone of these matters was sufficient for refusal.
25 . Mr Hand was taken to recent subdivisions in Kurnell approved by council. It was put to him that if the objective was to reduce population in Kurnell they should not have been approved. He said they complied with the minimum lot size and dimensions in SREP17 except for two lots, which do not comply with the minimum width, but a SEPP1 objection had been upheld to permit them. Also he said the recent subdivisions were approved prior to the review of the ANEF noise contours over Kurnell.
26 . One application for a dwelling on a lot next to the oil refinery on one of the allotments had been refused by council. He confirmed the caravan park and motels on the subject site had never paid any s 94 contributions in the past. He said the adopted council s 94 plan did not require contributions for caravan parks although it did for motels. He was not aware of the reasons for this. He agreed s 94 plans were not intended to pay for community facilities and services of existing populations. The contributions were to pay for extra demand caused by additional populations of new developments.
27 . In the joint statements of Mr Hand and Mr Blythe they agreed the permanent population of the site would be less if the development is approved. They also agreed the environmental concerns about the conservation of the wetlands and the protection of groundwater were satisfied by the agreement on conditions of any approval between Dr Bacon and Messrs Wotherspoon and Drinnan. There was no objection to the subdivision being amended to be a community title development. This created a joint responsibility of any future owners for the maintenance of the road, drainage and environmental protection measures. Issues 4, 5 and 8 were deleted as resolved and some matters were deleted from Issues 1 and 2.
28 . In the end the respondent's submission was that the difference between the parties could be summarised as, one party pressed the existing use rights of the caravan park under the Environmental Planning and Assessment Act 1979 as a reason to allow the proposal since it resulted in a less intense use of the caravan park with fewer permanent and transient occupants and that was a central feature of the applicable planning instrument SREP17. Further, the proposal was a high quality architectural design that complied with all applicable standards except the individual house lot areas.
29 . The other parties said that due to the high noise impact of the aircraft using the main runway of the domestic and international airport the site was simply unsuitable for permanent houses and residents under s 79C(i)(c) of the Environmental Planning and Assessment Act . Further, the character of the proposal with lot areas well below the 900 m2 minimum under SREP17 would not produce the intended future character of the residential zone or maintain and enhance the existing character.
30 . Ms Harvey said she had interviewed each of the permanent residents of the caravan park. They were to have 180 days' notice of the park being closed and $800 return of their bond. Persons with their own transportable home would receive more to enable relocation. She said only three saw the need to move as a negative. One was in a poor financial position and the other two had health problems but they were prepared to go. The other 28 permanents did not express significant concern. This was partly because only one mother with children had local links in Kurnell. The others had not become part of the community. The mother was confident she would find local accommodation and she would stay in the area as she had been in Kurnell for five years and her children were at the Kurnell School.
31 . Ms Harvey agreed that Kurnell had more people per dwelling than the Shire average probably because there were no flats in Kurnell, so the houses were occupied mainly by families, and there were few single persons that would reduce the average. It was put to her that families would buy the proposed houses and have more persons than she had predicted. She responded that market demand and demographics were changing and at another similar development at Canada Bay, that she was associated with, the new residents were a mix of singles and families. It was put to her new homeowners would have higher expectations than caravan park dwellers and would expect a higher level of community services. She thought caravan park dwellers would have similar long-term expectations to homeowners but they may have accepted temporary lower expectations by living in the caravan park.
32 . The facts and circumstances of this proposal are quite unusual in the Court's opinion. The existing use provisions of the Environmental Planning and Assessment Act apply. In previous time periods the existing use rights enabled an applicant, with consent of the responsible authority, to change the existing use to another use so long as it was considered to be an equal or lesser use. The new use in those days could be another non-conforming use to those permissible in the relevant zone of the site or it could be a change to a permissible use.
33 . Some years ago the legislation changed and now the Act and regulations allow with consent, the demolition, rebuilding, enlargement, expansion and intensification and change of use of an existing non-conforming use. The caravan park is a non-conforming use, that means prohibited in the open space 6C Zone under SREP17. The motel component is permissible and is to be retained with the two motel buildings each on a separate lot.
34 . The Court is of the opinion the proposal can be approved under the Act and s 79C considerations apply. The only component of s 79C disputed by the respondent is s 79C(i)(c), the suitability of the site for the development proposed.
35 . The primary reasons for it being said to be unsuitable are two-fold, first, the risk of impact from disaster at the refinery and, second, the noise of aircraft overhead. On the first the Court is satisfied the site is beyond the buffer zone provided by SREP17 to the refinery. On the extent of risk it would seem it is important to be able to evacuate Kurnell if needed. The existing use has the potential for 300 persons on 80 caravan sites on the property. Those persons would mainly be transients, unfamiliar with the area and emergency procedures. The proposal will have in 15 houses about 43 persons and being permanent residents they are likely to be familiar with the area and its risks and the evacuation procedures.
36 . The council advises on its s 149 certificates on each property in Kurnell about the aircraft noise impacts and the whole of SREP17, which refers to the refinery risks, so the proposal reduces potential injury in the event of a disaster to about one-seventh of the current potential persons in danger. The objective of SREP17 in the 2A Residential Zone is not really applicable to this site, however the proposal, by reducing both the number of transient and permanent residents of the site down to 43, supports this objective to limit the population growth within Kurnell. Again the risk factor is greatly reduced by the proposal compared to the existing use.
37 . On the impact of noise one could also make the comparison that the noise impact exists now on a potential 300 persons on the site, reducing that to about 43 persons means fewer persons will be affected and it is reasonable to assume that persons buying house or moving onto the site beneath the flight path would be aware of the noise impact and take that into account in making their decision.
38 . The Court is prepared to accept Mr Craig's assurance that the proposed houses can be constructed to provide the internal noise levels acceptable under Australian Standard 2021 and although the standard did not favour houses in this location it did not prohibit them, and in circumstances of this case and the knowledge that future owners would have of the noise exposure, it should not prevent approval. Otherwise the design of the houses and their orientation is pleasant, commodious and provides good solar access and acceptable vehicle and pedestrian access, parking, manoeuvring space and private yard access in accord with council's and SREP17's normal expectations.
39 . The non-compliance is with minimum lot size under SREP17. The Court understands that this statutory lot size does not apply to a nonconforming use under the existing use provisions of the Act and in any case the lot size requirement under SREP17 is for the 2A Zone and the site is zoned 6C for which there are no subdivision provisions. The proposed lot sizes are sufficient for the houses, which do have the appropriate floor space ratio on landscaped areas and service yard and private open space areas. The houses to Prince Charles Parade are setback from the street at the 7.5 m setback of council and the lots are about the width of other lots in the Zone 9C area where there are existing houses on those other lots. As a result the proposal from the Parade side will not appear out of character with existing development.
40 . The internal private road of the proposed community title subdivision will be a landscaped enclave of architecturally designed houses that have a unifying theme in their appearance whilst no two are the same. Due to the long private driveway in from Ward Street the development will not be so observable that it would appear as contrary to the character of the locality.
41 . The council and the Court are satisfied that the environmental concerns of protection of the flora and fauna in Quibray Bay have been appropriately dealt with. There is no significant vegetation on site but substantial landscaping with indigenous species is proposed. The 9A zoned land for Regional Open Space Reservation is not to be built upon and contrary to its existing state as lawn, it will be landscaped with vegetation appropriate to the locality and its proximity to the mangroves. The 9A zoned land is to be dedicated to council as a buffer to Quibray Bay.
42 . The proposal was notified for public comment only a few were received. The member of Cronulla forwarded a letter from the Kurnell Progress and Precinct Residents Association. The association expressed its support for the proposal because it reduced the number of persons living on the property and would lead to occupation by stable long-term residents. A letter from the Department of Infrastructure Planning and Natural Resources said that the zone did not permit the proposal. In summary the letter said, "If an amendment of the statute were to be considered it could only be supported if the department was convinced that the circumstances of the previous risk assessment studies of the Kurnell Peninsula had changed so that the additional dwellings could be permitted." The letter referred to other considerations but they were not specified.
43 . The Court concludes from the evidence that the department did not take into account the existing use rights of the subject property and the risk assessment evidence and this appeal showed that the proposal was outside the buffer area to the refinery and the reduction of potential occupants of the subject property to one-seventh of the existing situation reduced any risk to residents of Kurnell accordingly.
44 . The Kurnell Catamaran Club owns or leases land adjoining the subject property. It has its clubhouse and boat storage yards on its land. The proposal's driveway off Ward Street bisects the clubs land. The club says that houses are not permitted on the land and if they are permitted other allotments in the 9C Zone adjacent to the club would be allowed houses and that would make the land for boat storage too expensive to purchase or rent and the club's viability would be in danger. The club said the zoning was for recreation and allowing houses was contrary to that intent. The club said it only perpetuated the other nonconforming uses in Ward Street being a block manufacturer, a scaffolding factory and existing houses. Also the club said the land was subject to flooding and that on club sailing days Ward Street was congested and the proposal would increase the congestion.
45 . The council had no issue about the house sites being raised slightly by filling nor concerns over flooding at all. Once again the club does not understand the existing use rights applicable to the subject property and allowing houses on it does not automatically allow houses on other lots. The council engineers had no concerns about the ability of Ward Street to accept the traffic of the proposal and the Court assumes this was in the knowledge of occasional congestion of the street on club sailing days. To the extent that there is inconsistency with the objectives of the zone, as put by the club, those objectives cannot derogate from the existing use rights. The referred case on this matter was Russo v Kogarah 86 LGERA 300, Bignold J.
46 . A Mr and Mrs Williams wrote supporting the proposal and expressing interest in purchasing one of the houses. Waterways, maritime property and assets division, wrote advising that a Pt 3A for works adjoining Quibray Bay would be issued subject to certain conditions that have been incorporated in the design or inserted by council in its draft conditions.
47 . The applicant has agreed to all the conditions except the s 94 plan contributions. The applicant's submission is that the proposal reduces demand for community facilities and services and, even at the best council case, the number of potential permanent residents of the caravan park is about equal to or greater than the potential occupancy of the proposed houses based on the census statistics. Therefore the applicant said that s 94 contributions are not justified, however the Court was invited by the applicant to use its discretion to reduce the amount of the s 94 contributions to whatever the Court felt was a reasonable amount.
48 . The council's submission was that the caravan park and motel had never paid any s 94 contributions when previous consents were granted and that it should be paid now. The Court is aware of Ms Harvey's evidence that the existing permanent residents of the caravan park had not developed connections into the local community except for one family that had been there for five years. It seemed that the residents of the caravan park had previously imposed little demand on council's facilities and services. No doubt the new residents of the proposal would increase demand for those facilities and services. The contributions sought were on the basis of the number of new allotments created and amounted to a total of $194,468, this averaged $12,964 per lot for 15 lots. There was no evidence on what proportion there might be between the existing demand and the increased demand and the s 94 plan was not tendered.
49 . The Court has concluded that a contribution at the rate of approximately $13,000 per new house is not an excessive amount and the condition should remain. The Court has concluded there was no other reason sufficient for a refusal of the proposal and the orders of the Court are:
1. The appeal is upheld.
3. The exhibits except exhibits C, D, E, F, H, L and 4, 5, 6, 11, 12 and 13 are to be retained on the Court file.2. Deferred commencement consent is granted to the change of the existing use caravan park at Nos. 228-294 Prince Charles Parade, and Lot 17 Ward Street, Kurnell, to enable community subdivision into 17 lots, two of which are to contain the existing motel units, and the remainder to have a single house on each lot as shown on the plans by Jefferson M. Robinson & Associates P/L Architects in exhibit D and E and subdivision plan by Wallis & Moore in exhibit C. Exhibit C is Plan No. 23750P4/A. Exhibit D is plan No’s 1B/5, 2B/5, 3B/5, 4A/5, 5A/5. Exhibit E is a book of detailed plans, elevations and perspectives of each individual house. The landscape plan is drawing No. LO1/2-R7203 by Michael Siu, Landscape Architect. The zone 9(a) land adjoining Quibray Bay is to be dedicated to the Sutherland Shire Council upon issue of the subdivision registration. The development is to be as amended by and in accordance with the conditions in Annexure A hereto.
- __________________
K G Hoffman
Commissioner of the Court
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