Legacy Property Pty Ltd v Blacktown City Council

[2016] NSWLEC 1206

Land and Environment Court

New South Wales

Medium Neutral Citation:	Legacy Property Pty Ltd v Blacktown City Council [2016] NSWLEC 1206
Hearing dates:	4, 5, 6 May 2016
Date of orders:	06 May 2016
Decision date:	06 May 2016
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	Paragraphs [25] and [26]
Catchwords:	DEVELOPMENT MODIFICATION: Residential subdivision – Pedestrian access – Pedestrian bridge
Legislation Cited:	Environmental Planning and Assessment Act 1979 Blacktown Local Environmental Plan 1988 Blacktown Local Environmental Plan 2015
Category:	Principal judgment
Parties:	Legacy Property Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: Mr M Fraser (Respondent)   Solicitors: Mr A Perkins, Colin Biggers & Paisley (Applicant) Mr P Couch, Sparke Helmore (Respondent)
File Number(s):	11035 of 2015; 11036 of 2015

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. These two appeals are brought under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the respondent Council's refusal of two applications made on 13 May 2015, initially under s 96(1A) of the Act, later clarified to be s 96(2) of the Act, to modify two development consents granted in respect of a residential subdivision at 799 Richmond Road, Marsden Park (the site), which is part of the Colebee Release Area within the North West Growth Centre.

2. Appeal 11036 of 2015 is against the refusal of Modification Application No. 15-1086 to modify Development Consent No. 10-1631 granted on 29 July 2011, for Stage 1 of the residential subdivision. Appeal 11035 of 2015 is against the refusal of Modification Application No. 15-1085 to modify Development Consent No. 10-2842 granted on 19 December 2011 for Stage 2 of the subdivision.

3. The appeals were the subject of a conciliation conference under s 34 of the Land and Environment Court Act 1979, conducted by another Commissioner. No agreement was reached and the conciliation was terminated, and the matter set down for hearing. On the second day of the hearing, the parties advised that they had reached agreement and were now seeking consent orders from the Court.

Background

4. The site has an area of 28.4ha with frontage to Richmond Road. Development Consent No. 10- 1631 approved Stage 1 of the development for the portion of the site located closest to Richmond Road, west of Bell's Creek which runs roughly north to south through the site, with 34 lots for residential development, residue lots, a lot for drainage purposes, one lot for a future public reserve, and new public roads. The proposal included a collector road (Alderton Drive) to provide access from Richmond Road on the northern side of the development, with a bridge over Bell's Creek, proposed initially as a 7.5m wide carriageway with 2m wide footpaths on either side, and a combined pedestrian/rail barrier. There was discussion between the developer and the Council in relation to the development application, which included discussion as to the widths of the footpaths on the bridge. The consent when ultimately granted required two separate footways, one 2.5m and one 2m wide. The proposed development included maintenance of a riparian corridor along Bell's Creek, with significant revegetation. Development Consent No. 10-2842 approved Stage 2 of the development on the eastern side of Bell's Creek, with 71 residential lots, one residue lot, one lot for drainage purposes and a public park.

5. The development consent for Stage 1 was modified in 2011, and that for Stage 2 in 2012, in respect of matters not material to the present applications. In June 2013, applications were made to modify Development Consents 10-1631 and 10-2842. Those modifications had the effect of increasing the number of residential lots from 34 to 68 in Stage 1, and 71 to 95 in Stage 2; relocating the public park approved in Stage 1 on the western side of Bell's Creek to the eastern side of Bell's Creek; and relocating the park originally approved in Stage 2 to be consolidated with the other park, alongside the Bell's Creek corridor. The consolidated park area adjacent to Bell's Creek was approved with an area of 11,186sqm. The documents in support of the modification applications made in 2013 stated:

A new pedestrian bridge is proposed across the riparian corridor to ensure access to the consolidated open space is suitable and also to provide improved access to the future neighbourhood centre for future residents to the east of Bell's Creek.

…

Following the relocation of the open space and the imminent gazettal of the rezoning to enable the future neighbourhood centre along Richmond Road, it is proposed to modify the approved development to include a pedestrian bridge across the riparian corridor, linking the east and west sides of the site. This will improve access for residents walking from the west of the site to access the neighbourhood centre, as well as residents walking from the east of the site to access the open space. The bridge is proposed to be suspended with minimal ground disturbance and will not have any adverse impacts on the environmental qualities of the riparian corridor and will not impede water flows.

6. The modification applications were approved by the Council, with Notices of Determination dated 23 December 2013 for Modification Application No. 13-1100, and 23 January 2014 for Modification Application No. 13-1101. The approved plans show the pedestrian bridge across the riparian zone (DA-1-LA05, DA-1-LA07; ex 1 pp 276, 278).

7. The conditions of both development consents were amended to reflect the pedestrian bridge. The amended conditions required details of the pedestrian bridge to be included in the application for a construction certificate; a minimum clearance height under the pedestrian bridge for the full width to be 3.3m; and a positive covenant requiring ongoing responsibility for maintenance for the pedestrian bridge to be with the owner and not the Council.

8. Modification Applications 15-1086 for Stage 1 and 15-1085 for Stage 2, the subject of these appeals, sought approval for removal of the pedestrian bridge, stating:

Removal of pedestrian bridge across Bell's Creek, as access is now provided via a pathway connected to collector road

…

The need for the pedestrian bridge is now redundant as the collector road will now provide a pedestrian pathway across Bell's Creek providing connectivity between eastern and western residential areas.

9. The modification applications sought amendments to the conditions of both consents relating to the pedestrian bridge: for the Stage 1 consent, conditions 4.3, 6.13.7.2, 6.13.7.35, 10.18.4.5 and 10.18.4.19; and for the Stage 2 consent, conditions 6.14.9.31, 10.18.2.4, and 10.18.2.7. The officers’ report to Council recommended approval of the applications. On 30 December 2015 the Council notified the applicant that both applications were refused, on the grounds that the objectives of the 6(d) Recreation zone under the Blacktown Local Environmental Plan 1988 (the 1988 LEP) were not satisfied; the modification would result in adverse social and environmental impacts with particular regard to safety hazards, loss of connectivity and impacts on the creational values; and on the basis of submissions made as a result of public notification approval would not be in the public interest.

Planning controls

10. At the time the original development consents were granted, the 1988 LEP was in force, and the site had a mix of zonings, including 2(a) Residential “A”, and 6(d) Recreation-Environmental Protection, 5(a) Special Uses General (drainage), and 6(a) Public Recreation for the riparian corridor and the detention basin areas on both sides of the creek and the neighbourhood park. Clause 50 of the 1988 LEP imposed particular matters for consideration for development of land in the Colebee Release Area.

11. The Blacktown Local Environmental Plan 2015 (the 2015 LEP) commenced on 7 July 2015, after the modification applications the subject of these proceedings were lodged. The site has a mix of zoning under the 2015 LEP, including R3 Medium Density Residential, B1 Neighbourhood Centre, E2 Environmental Conservation, SP2 Infrastructure (Drainage) and RE1 Public Recreation.

12. The Blacktown Development Control Plan 2006 (the 2006 DCP) was replaced from 29 July 2015 by the Blacktown Development Control Plan 2015 (the 2015 DCP). There are no savings and transitional provisions in the 2015 DCP. It was common ground that while the numbering has changed, in substance the relevant provisions for roads, including collector roads; pedestrian pathways; and the development of the part of the Colebee Release Area in which the site is located, remain the same.

Issues

13. The Council contended (ex 4) that the application should be refused on the following grounds:

1. non-delivery of the pedestrian bridge is inconsistent with the provisions of the 1988 LEP and the development outcomes defined in the 2015 DCP;

2. the alternate pedestrian access on Alderton Drive is not satisfactory;

3. the pedestrian bridge does not present adverse outcomes in terms of crime prevention through environmental design principles, as contended by the applicant;

4. non-delivery of the bridge is inconsistent with the objects in s 5(a)(i) and (ii) of the Act; and

5. non-delivery of the pedestrian bridge is not in the public interest pursuant to s 79C(1)(e) of the Act.

14. The Council's position at the hearing was that as a matter of discretion:

1. there has been no material change in circumstances so as to warrant deletion of the requirement for a pedestrian bridge, as the Alderton Drive bridge was originally approved with a footway of 2m on one side, and 2.5m on the other, and as built is just under 2.5m on both sides;

2. the applicant has taken the benefit of the changes that were made at the time the pedestrian bridge was proposed, in the form of the increase in lot numbers and the consolidation of the original two parks into one; and

3. the proper administration of planning legislation requires that there be no modification.

15. On the merits, the Council's position was that the social impact of not having the pedestrian bridge is unacceptable; the applicant's case is based on a false premise, namely that the Alderton Drive bridge is adequate; and the applications do not meet the objectives and substantive requirements of the DCP.

16. The applicant's position is outlined in its Statement of Facts and Contentions in Reply (ex A). In summary, the existing shared pathways on the Alderton Drive bridge currently drive safe pedestrian and bicycle connectivity and accessibility between the residential areas on the western and eastern sides of Bell's Creek; and shared pedestrian and cycle paths are now provided whereas the original approval only required footpaths. The applicant contends that whilst the pedestrian bridge was originally envisaged as a flat and low-slung bridge directly linking each side of the creek, in order to comply with Council requirements to provide clearance for maintenance vehicles accessing the detention basin on either side of the riparian zone, the bridge has been raised and includes a ramp aligned at an angle to achieve an accessible gradient on the western side. In that regard, the applicant relies on a draft construction certificate plan, prepared as part of its discussions with the Council (ex F). The pedestrian bridge does not provide clear sightlines across the creek, both due to the clearance required and the angled ramp, and will not provide a safe path of travel in low light conditions. The applicant contends that the removal of the pedestrian bridge would not be inconsistent with the objectives and requirements of the DCP, or with the objects of the Act, or be contrary to the public interest.

Evidence

17. The hearing commenced on site with a view. Evidence was given on site by three residents objecting to the modification applications, and by one resident who spoke in support. The objectors raised concerns that they had purchased their properties based on the advertised provision of a pedestrian bridge; a pedestrian bridge is needed for residents on the eastern side to access the neighbourhood centre shops proposed on the western side, and for residents on the western side to access the park; and that the Alderton Drive shared pathway is not safe, being less than 2.5m wide. The resident who spoke in support of the applications stated that she is concerned for safety and behaviour of people in the park at night, and the pedestrian bridge will result in noise, safety issues and pollution. The view included a view of a public park with pedestrian walkway at The Ponds.

18. The parties' planning experts, Mr Adam Coburn on behalf of the applicant and Mr Vince Hardy on behalf of the Council, conferenced and prepared a joint report and gave oral evidence. The experts agreed (ex 5, p 3):

• The Alderton Drive bridge is most likely to operate as the primary pedestrian accessway for east-west movements within the precinct, in terms of ease of movement, capacity and safety;

• The proposed pedestrian bridge would be the secondary pedestrian accessway throughout the precinct;

• The pedestrian bridge, if constructed to Council’s engineering and zero maintenance requirements as required as part of the Construction Certificate approval process, would have a greater visual impact than that of the bridge constructed (at a height of 1.5m above) the originally approved bridge height;

• For the bridge to be acceptable in its current location, it would need to be lit to the appropriate Australian Standards, for the full length of the pedestrian bridge, including its entry points and at the park end (eastern end) leading from its entrance through the park to the nearest adjacent road/footpath;

• A pedestrian bridge constructed to contemporary urban development standards and as dictated in the DCP/LEP, would need to have an ongoing maintenance obligation and a zero maintenance expectation is unreasonable and not supported;

• A pedestrian bridge constructed at a lower height than that proposed by Council’s engineers would assist and encourage ease of pedestrian movement across the estate and use of the bridge;

• The pedestrian bridge provides the shortest route for some residents within the estate to access to proposed retail area on Richmond Road and the park area on the eastern side of the bridge; and

• The removal of the bridge results in an additional travel path for up to 145m for some residents when accessing the proposed retail area on Richmond Road and the park area on the eastern side of Bell’s Creek.

19. The planning experts provided in Figures 1, 2 and 3 of their joint report an analysis of the walking distances from the development on the western side of Bell's Creek, which includes the proposed neighbourhood centre, to the open space and park on the eastern side, as envisaged in the DCP Structure Plan (which provides areas of open space on both sides of the creek); as approved in the modified development consents; and as proposed in these modification applications without the pedestrian bridge. Fig 3 confirms an increase in the number of residential lots with a walking distance of above 400m, including an increased number above 600m.

20. The experts remained in disagreement as to whether the pedestrian access on the Alderton Drive bridge is satisfactory; whether the pedestrian bridge would present safety issues; and the application of the planning controls.

Consent Orders

21. After the planners had concluded their evidence, the parties informed the Court that they had reached agreement on proposed orders. The agreed outcome is that the modifications as originally sought by the applicant should be refused; and that the two development consents should be modified to:

1. remove the requirement for a 3.3m clearance under the pedestrian bridge;

2. insert a requirement that the pedestrian bridge be constructed generally in accordance with the plan supporting the modifications in 2013 that incorporated the pedestrian bridge, subject to the requirement that two removable breaks or mechanical openings be included to allow Council trucks to pass through at existing ground level, one at each detention basin on the east and west side; or an alternative solution providing access for maintenance vehicles to be approved in writing by the Council's Director of City Services;

3. require approval of details by Council prior to an application for a construction certificate; and

4. require construction of the pedestrian bridge before 30 October 2016.

22. The parties have now provided consent orders proposed in both proceedings. In accordance with the Court's Practice Note for Class 1 Development Appeals where the parties seek orders by consent, at the request of the Court, the applicant's legal advisors have spoken to the objector who gave evidence on site in support of the modification applications, and advised her of the outcome now agreed. The advice received from that individual is that she did not wish to make any further statement or contribution to the proceedings.

23. The parties have addressed the requirements of the applicable planning controls. While the expert planners did not reach agreement on all the substantive issues raised, their agreed evidence in the joint report provides a sufficient basis on which I can be satisfied that it is appropriate to approve the modifications in the terms now proposed. The effect of those modifications is to meet the Council's desire to have pedestrian access as proposed by the applicant in the 2013 modifications in the more restrained form, as originally proposed, while maintaining access for Council maintenance purposes in the two detention basin areas adjacent to the riparian zone.

24. On that basis I am satisfied that it is lawful and appropriate to approve the modifications to the development consents, in the terms on which the parties have agreed.

Orders

25. In Appeal 11035 of 2015, by consent, the Court orders:

1. The appeal is upheld;

2. Development Consent DA 10-2842 is modified in accordance with the amendments contained in Annexure A;

3. By 13 May 2016 the parties are to provide to the Court in hard copy and electronic format consolidated modified conditions of consent for Development Consent DA 10-2842, as a consequence of the modifications approved in order 2; and

4. The exhibits are returned except for exhibits 4, A and pp 276 and 278 of exhibit 1, and pp 206 and 209 of exhibit 2.

26. In Appeal 11036 of 2015, by consent, the Court orders:

1. The appeal is upheld;

2. Development Consent DA 10-1631 is modified in accordance with the amendments contained in Annexure A;

3. By 13 May 2016 the parties are to provide to the Court in hard copy and electronic format consolidated modified conditions of development consent for Development Consent DA 10-1631, as a consequence of the modifications approved in order 2; and

4. The exhibits are returned except for exhibits 4, A and pp 276 and 278 of exhibit 1, and pp 206 and 209 of exhibit 2.

Linda Pearson

Commissioner

11035 of 2015 - Annexure A (233 KB, pdf)

11036 of 2015 - Annexure A (232 KB, pdf)

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Decision last updated: 31 May 2016