Limousin No. 1 Estate Pty Ltd v Liverpool City Council

[2022] NSWLEC 1222

Land and Environment Court

New South Wales

Medium Neutral Citation:

Limousin No. 1 Estate Pty Ltd v Liverpool City Council [2022] NSWLEC 1222

Hearing dates:

1-2 March 2022 and 25 March 2022

Date of orders:

2 May 2022

Decision date:

02 May 2022

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development consent for Development Application No DA-295/2021 for integrated housing including the staged construction of 35 attached dwellings, 2 semi-detached dwellings and 29 detached dwelling houses, staged subdivision to create 68 Torrens Titles residential lots and 1 residue lot, demolition of existing structures removal of trees, bulk earthworks and associated civil works including road construction, drainage works, services and temporary stormwater management facilities at 105 Edmondson Avenue and 100 Seventh avenue, Austral is refused.

Catchwords:

DEVELOPMENT APPLICATION: subdivision of land – whether residential density is excessive – minimum residential density –lot width – principal private open space

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

Land and Environment Court Act, s 39

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, App 8, cll 2.3, 4.1B

Cases Cited:

Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472

Texts Cited:

Liverpool Growth Centre Precincts Development Control Plan 2021

Category:

Principal judgment

Parties:

Limousin No.1 Estate Pty Ltd (Applicant)
Liverpool City Council (Respondent)

Representation:

Counsel:
A Perkins (Solicitor) (Applicant)
S Berveling (Respondent)

Solicitors:
Project Lawyers (Applicant)
Liverpool City Council (Respondent)

File Number(s):

2021/216713

Publication restriction:

No

Judgment

1. COMMISSIONER: The suburb of Austral, in the south-west of metropolitan Sydney, is undergoing transition from a semi-rural setting to what is known as a growth centre through urban development that includes the subdivision of land, construction of dwellings, upgrade of roads, and other infrastructure.

2. The Applicant in this matter, Limousin No 1 Estate Pty Ltd, seeks consent for integrated housing, including the staged construction of 35 attached dwellings, 2 semi-detached dwellings and 29 detached dwelling houses, staged subdivision to create 68 Torrens Titles residential lots and 1 residue lot, demolition of existing structures, removal of trees, bulk earthworks and associated civil works including road construction, drainage works, services and temporary stormwater management facilities at 105 Edmondson Avenue and 100 Seventh avenue, Austral (the site).

3. To this end, Development Application No DA-295/2021 (the DA) was lodged with Liverpool City Council (the Respondent) on 29 March 2021.

4. Following a period of time after which refusal of the DA was deemed, the Applicant lodged a class 1 appeal under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

5. The arrangement of the lots, roads and dwellings are perhaps most succinctly depicted in the Structure Plan on Dwg DA03, Exhibit B, Tab 2, re-produced below:

6. In essence, it is the proposed density and its consequences that are the primary focus of these proceedings.

The site and its context

7. The site is legally described as Lot 1007 and 1008 in DP 2475, having a frontage to Edmondson Avenue of 150.885m, and a frontage to Seventh Avenue of 160.92m, resulting in a total area of 2.4ha.

8. The site slopes from a high point of 73.5m AHD on the north-east corner along Edmondson Avenue to a low point of 68.5m AHD on the south-west corner of the site adjoining Seventh Avenue.

9. Edmondson Avenue to the east of the site is proposed as a major transit corridor and is subject to widening.

10. The site is zoned R2 low density residential according to App 8 of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP).

11. The objectives of development in the R2 zone are identified by the Land Use Table at cl 2.3(2) of the Growth Centres SEPP as follows:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours.

•  To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.

12. The proceedings commenced with an onsite view during which the Court, in the company of the parties and the experts visited the subject site, and three other locations in the local area, including:

1. Attached housing in an R3 zone at the intersection of Sixth Avenue and Edmondson Avenue, including a view of dwellings fronting both Sixth Avenue and Edmondson Avenue and of an onsite detention basin (OSD) at the corner site.

2. Detached housing with a rear lane at the corner of Hydrus Street and Pisces Street, including an OSD.

3. Leppington Station, located around 1.3km from the site, that was viewed by ‘drive past’.

Expert evidence

13. The Court was assisted by planning experts, Mr Matt Cooper for the Applicant and Mr Emmanuel Torres for the Respondent, who conferred on the preparation of a joint expert planning report marked Exhibit 3.

14. With respect to civil engineering matters, the Applicant engaged Mr David Gerardis and the Respondent engaged Mr Charlie Carballo who conferred in the preparation of the expert report marked Exhibit 4, in which all matters in contention were agreed to be resolved.

15. To this end, the Applicant tendered an amended Concept Stormwater Management Report and amended Concept Stormwater Management Plans (Exhibit C) that are said by the Applicant to incorporate the agreement of the engineering experts in preference to conditions of consent.

16. The Respondent did not oppose the amending of the application by the grant of leave for the plans and report in Exhibit C, but absent positive agreement required by cl 55 of the Environmental Planning and Assessment Regulation 2000, the Court, exercising power under s 39(6) of the Land and Environment Court Act 1979, agreed to the Applicant amending the original application, and the Court directed the Applicant to lodge the amended application on the NSW Planning Portal within 7 days and advise the Respondent of the same.

The issues

17. While the parties have approached the contentions as four distinct issues, in my view the issues identified by the Respondent may be initially distilled as follows:

1. Firstly, the proposal, at a residential density of 28 dwellings/hectare is excessive and contrary to the R2 Low Density Residential zone, and the nominated residential density of 20 dwellings/ha.

2. Relatedly, that density is achieved by relying upon an excessive number of lots having less than the minimum lot frontage width of 10m, and a lack of appropriate Principal Private Open Space (PPOS).

3. Secondly, the laneways proposed are suitable only in R3 Medium Density Residential Zones, and where a minimum of 25 dwellings/ha precincts is preferred.

Whether the residential density is excessive

18. It is helpful at this stage to now place the Indicative Layout Plan (ILP) in its statutory context.

19. Section 1.4 of the Liverpool Growth Centres Development Control Plan 2021 (LDCP) states it should be read in conjunction with the Growth Centres SEPP, and in particular the Precinct Plans that are included as Appendices of the SEPP.

20. Section 2.1 of the LDCP contains outcomes to be achieved for each Precinct by reference to the ILP. The ILP for the Austral and Leppington North Precincts is found at Section 2.2 of Sch 1 (Exhibit 5, Folio 180).

21. The Respondent contends that as the nominated residential density for the proposal is 28 dw/ha, it does not strictly meet the minimum density target requirement, and the exceedance will place additional burden on the precinct’s projected infrastructure capacity beyond that which was originally planned, and will be out of character with the intended vision for the location and its surrounding area.

22. Schedule 1, Section 2.1 provides Precinct Planning Vision for the Austral and Leppington North Precincts in the following terms:

“The vision for the Austral and Leppington North Precincts is that a range of housing types will develop to meet the needs of a diverse community, supported by local services, infrastructure, facilities and employment, in an environmentally sustainable manner.

The Austral local centre will be the main focus of activity and daily life for the Precinct, providing for community interaction and delivering services and facilities to meet the needs of all residents.”

23. Section 3.1 of the LDCP states development is subject to minimum residential density targets in the Residential Density Maps contained in the Growth Centres SEPP, where the calculation of density is defined in the following terms:

“Net Residential Density means the net developable area in hectares of the land on which the development is situated divided by the number of dwellings proposed to be located on that land. Net Developable Area means the land occupied by the development, including internal streets plus half the width of any adjoining access roads that provide vehicular access, but excluding land that is not zoned for residential purposes.”

24. The site is identified on the South-West Growth Centre Residential Density Map - Sheet RDN_007, in the Growth Centres SEPP, re-produced in part below (site marked), with a density value of ‘Q’ being 20 dwellings/ha.

­­

25. The residential density map is the same residential density map cited in cl 4.1B of the Growth Centres SEPP, which is in the following terms:

(1)  The objectives of this clause are—

(a)  to establish minimum density requirements for residential development, and

(b)  to ensure that residential development makes efficient use of land and infrastructure, and contributes to the availability of new housing, and

(c)  to ensure that the scale of residential development is compatible with the character of the precinct and adjoining land.

(2)  This clause applies to residential development of the kind referred to in clause 4.1AB or 4.1AC that—

(a)  is carried out on land to which this Precinct Plan applies that is shown on the Residential Density Map, and

(b)  requires development consent, and

(c)  is carried out after the commencement of this Precinct Plan.

(3)  The density of any residential development to which this clause applies is not to be less than the density shown on the Residential Density Map in relation to that land.

(4)  In this clause—

density means the net developable area in hectares of the land on which the development is situated divided by the number of dwellings proposed to be located on that land.

net developable area means the land occupied by the development, including internal streets, but excluding land that is not zoned for residential purposes.

26. Section 3.1.1 of the LDCP deals with residential density in the following terms:

“Objectives

a. To ensure minimum density targets are delivered.

b. To provide guidance to applicants on the appropriate mix of housing types and appropriate locations for certain housing types.

c. To establish the desired character of the residential areas.

d. To promote housing diversity and affordability.

Controls

1. All applications for residential subdivision and the construction of residential buildings are to demonstrate that the proposal meets the minimum residential density requirements of the relevant Precinct Plan and contributes to meeting the overall dwelling target in the relevant Precinct.

2. Residential development is to be generally consistent with the residential structure as set out in the Residential Structure Figure in the relevant Precinct Schedule, the typical characteristics of the corresponding Density Band in Table 3-1.”

27. Table 3-1, which contains the ‘density bands’ referred to in Control 2 above, is re-produced below:

28. According to the Applicant, the clear object of cl 4.1B of the Growth Centres SEPP, and of Section 3.1.1 of the LDCP is to achieve a minimum residential density of 20 dwellings/hectare, which has been achieved.

29. The objectives of Section 3.1.1 at [26] contemplate a degree of latitude in applications, so long as the minimum density requirement is achieved, in support of which:

1. The first objective is expressed as a minimum, and not a maximum, density target.

2. The second objective seeks to do no more than provide ‘guidance’ on what is described as an appropriate mix of housing types and locations.

3. The third objective must be read in the context of a rapidly transforming precinct, shaped by both development controls and development approvals.

4. The fourth objective should be understood to encourage the housing mix proposed, which includes two, three and four bedroom dwellings on smaller lots in order to provide an affordable housing option.

30. Likewise, the first control in Section 3.1.1 requires all development applications to demonstrate that minimum density levels are achieved, while the second control seeks only ‘general consistency’ with density bands that are expressed in numerical ranges, between which are evident gaps suggesting flexibility or, in the words of Mr Torres, discretion.

31. That discretion is evident in nineteen previous development applications identified by Mr Cooper in the R2 zone, with a residential density requirement of 15 dwellings/hectare, but for which consent was granted by the Respondent with a higher residential density of between 16.97 and 23.48/hectare (Exhibit 3, Attachment 9), and two development approvals on Seventh Avenue contained in Exhibit D that are also within that range.

32. The proposed development demonstrates some typical characteristics for development in the 15-20 dwellings/hectare density band, such as small lot dwelling houses in high amenity locations, double storey dwellings and urban streetscapes, depicted in Figure 3-2 as re-produced below:

33. Having a density greater than the minimum of 20 dwellings/hectare, the proposal also exhibits characteristics typical of the higher density band of 25-30 dwellings/hectare, such as being within a walking catchment of centres, corridors and Leppington railway station and incorporating laneways.

34. The Respondent submits that as the subject site is in excess of 1km in walking distance from the Leppington Railway station, it is not within the commonly accepted distance of 400m so the site does not demonstrate a typical characteristic that would support higher density such as attached housing, which is not a characteristic of the lower density band of 15-20 dwellings/hectare and so does not achieve objective (c) of Section 3.1.1 of the LDCP.

An excessive number of lots are less than 10m wide

35. Section 3.1.2, Control 8 of the LDCP ‘Block and Lot Layout’ limits the number of residential lots with frontages less than 10m in width to no more than 40% in development in the 20dw/ha density band.

36. The experts agree that the three blocks located in the north-west of the proposed development, fronting Edmondson Avenue, Seventh Avenue and Pacer Street, exceed the threshold of 40%, with all of the lots in the three blocks being less than 10m in width.

37. The experts also agree that it is the choice of dwelling typology that has determined the lot size and width evident in the proposed development.

38. According to Mr Cooper, the choice results in an improved outcome as it relies on a rear lane to eliminate garages from Seventh Avenue to deliver a smaller, more affordable ‘product’ that promotes housing diversity and affordability in accordance with objective (d) of Section 3.1.1 of the LDCP and increases opportunities for tree planting and on street parking.

39. The Respondent submits that as the dwelling type on these three blocks is uniformly attached dwellings, there is no diversity and no valuation evidence is provided by the Applicant to support the assertion that, in effect, smaller is more affordable. Furthermore, as the non-conformance is to all blocks, no attempt or argument has been made to address the terms of Control 8.

40. Relatedly, the Respondent contends that the housing type and density proposed for Lots 214-226 are inconsistent with the objectives and controls in Section 4.2.7 of the LDCP ‘Private Open Space’ that are:

“Objectives

a. To provide a high level of residential amenity with opportunities for outdoor recreation and relaxation.

b. To enhance the spatial quality, outlook, and usability of private open space.

c. To facilitate solar access to the living areas and private open spaces of the dwelling.

Controls

1.Each dwelling is to be provided with an area of Principal Private Open Space (PPOS) consistent with the requirements of the relevant Tables Table 4-2 to Table 4-6.

2.The location of PPOS is to be determined having regard to dwelling design, allotment orientation, adjoining dwellings, landscape features, topography.

3.The PPOS is required to be conveniently accessible from the main living area of a dwelling or alfresco room and have a maximum gradient of 1:10. Where part or all of the PPOS is permitted as a semiprivate patio, balcony or rooftop area, it must be directly accessible from a living area.

4.Open space at the front of the dwelling can only be defined as PPOS where this is the only means of achieving the solar access requirements of control 1 above. PPOS at the front of a dwelling must be designed to maintain appropriate privacy (for example raised level above footpath or fencing or hedging) and be consistent with the streetscape design controls in clause 4.2.2.”

41. In the relevant density band, Tables 4-2–4-4 require the PPOS to be a minimum of between 16m²-20m² with a minimum dimension of between 3m-4m.

42. Importantly, there is a requirement for at least 3 hours of sunlight between 9am and 3pm at the winter solstice (21 June) to 50% of the required PPOS of both the proposed development and the neighbouring properties.

43. A summary of solar compliance, prepared by the Applicant’s architect, MPS, is found on Dwg DA96 (Exhibit B, Tab 2).

44. Mr Torres believes the PPOS shown to the rear of dwellings on Lots 214-336 does not achieve 3 hours of sunlight in midwinter and regards the PPOS in the front setback to be subject to acoustic and privacy impacts from busy roads that will encourage, in effect, ad hoc screening in the form of planting and fencing to ameliorate those impacts in a manner that will be out of character with the area.

Laneways are proposed

45. Mr Torres considers the addition of laneways in this proposal to be firstly inconsistent with the ILP, as laneways are not shown in the location of the site, and secondly to contribute to the excessive density on the site.

46. Part 3.3.4 of the LDCP deals with laneways in the following terms:

“Objectives

a. To provide vehicular access to the rear or side of lots where front access is restricted or not possible, particularly narrow lots where front garaging is not permitted.

b. To reduce garage dominance in residential streets.

c. To maximise on-street parking spaces and landscaping in residential streets.

d. To provide opportunities for affordable housing options.

e. To reduce vehicular conflict through reduced driveway cross overs and focusing of traffic to known points.

f. To enable garbage collection.

g. To facilitate the use of attached and narrow lot housing to achieve overall higher neighbourhood densities.

h. To create a slow speed shared zone requiring co-operative driving practices for the very low volume and frequency of vehicle movements that is distinctly different in character and materials to residential streets.

Controls

1. The design and construction of laneways is to be consistent with Figure 3-22 and Department of Planning and Environment Delivery Note: Laneways.”

47. The Applicant submits that there is nothing in the wording of Section 3.3.4 that precludes laneways, and the Respondent has approved 14 developments comprising laneways beyond those depicted in the ILP (Attachment 2, Exhibit 3).

48. Where laneways departing from the ILP have been approved by the Respondent, Mr Torres states it has been in higher density zones, or where laneways have been considered an alternative solution to address access issues particular to that site or local area, such as in the vicinity of a school on Gurner Avenue where provision of a laneway avoided driveways in a highly pedestrianised environment.

49. Relatedly, the road hierarchy for the precinct is dealt with in Section 3.3.1 of the LDCP ‘Street Network Layout and Design’, by reference to the “Precinct road hierarchy figure in the relevant Precinct Schedule”, shown at Fig 2-13 of the LDCP.

50. Mr Cooper believes the proposal is consistent with the preferred road hierarchy by virtue of the continuation of Pacer Street and Dun Road that both align to the road layout of adjoining development.

51. Additionally, the requirement for the laneway identified in the proposal as Road 4 is consistent with the Road Hierarchy because vehicular access to Lots 226-236 is not permitted due to access from Edmondson Avenue being denied.

Conclusion

52. Whilever the focus of cl 4.1B of the Growth Centres SEPP, and the provisions of Section 3.1.1 of the LDCP, are on demonstrating that minimum density targets are achieved (emphasis added), and the residential density bands on Table 3-1 are expressed in such broad terms, some latitude may be expected in the assessment of the actual residential density proposed in a development application.

53. That said, the residential density provisions in the LDCP are not read in isolation, but alongside other provisions that are also intended to be achieved. Where conformity with the provisions is not achieved, but reasonable alternative solutions are proposed that achieve the objects of those provisions, s 4.15(3A)(b) of the EPA Act permits flexibility in the application of those provisions.

54. To that end, whether or not the residential density proposed in the circumstances of this case is excessive is ultimately determined, in my view, by the degree to which the proposal achieves the relevant provisions of the LDCP, or proposes an alternative solution consistent with the relevant objectives.

55. The Respondent identifies the provision of laneways, lot width and solar access to PPOS to be three grounds on which the proposal fails to achieve the provisions of the LDCP, and so to unreasonably exceed the density requirements on the site.

56. Accordingly, it is appropriate to consider these three grounds first in order to arrive at a finding as to whether the residential density is reasonable in the circumstances of the case.

57. As stated at [51], Edmondson Avenue is identified as a transit corridor, and is subject to widening, and it is for that reason parties agree the laneway marked Road 4, while a departure from the ILP, is required.

58. Whether or not Road 3 is a reasonable departure from the ILP is based, in my view, on an assessment as to whether the provision of the laneway would inhibit conformity with other provisions of the LDCP such as solar access, lot width and, ultimately, residential density.

59. For the reasons that follow, I find that Road 3 does inhibit conformity with the provisions of the LDCP.

60. Firstly, I accept Mr Torres’ opinion that the laneway marked Road 3 plays a role in achieving a greater density because, absent the lane, vehicular access would be required to be achieved at the lot frontage addressing Seventh Avenue.

61. Providing vehicular access to Lots fronting Seventh Avenue would, in turn, require a greater lot width than the 4.7m proposed for Lots 215-218, and 221-224.

62. A consequence of wider lots in this location would be, quite simply, fewer lots on the land between Dun Road and Road 4. Fewer lots in this location would have the effect of reducing the residential density from that proposed.

63. I state here that the greater density evident in Lots 214-225 is not, of itself, a disqualifying factor in my assessment. I have considered the Applicant’s argument that the site is within walking distance of Edmondson Avenue that is an identified transit corridor. I agree that it is, and that this is a characteristic of the higher density band.

64. However, it is the effect of the greater density that is, in my view, consequential.

65. An example of the lot layout derived as a consequence of the alternative described at [61]-[62] is evident in Lots 25-28, located to the south of Pacer Street. Lots 25-28 provide vehicular access at the lot frontage, with a lot width of 9m (Exhibit B, Tab 2, Dwg DA05).

66. Relevantly, Lots 25-28 adopt the same north-south orientation as Lots 215-218 and 221-224 and demonstrate conformity with solar access provisions to the PPOS at the rear of these Lots.

67. For completeness, I note here that other Lots also provide vehicular access at the lot frontage such as Lots 8, 15 and 201 with a lot width of 7m.

68. By contrast, the combination of the lot width of 4.7m on Lots 215-218 and Lots 221-224, their north-south solar orientation, and the two-storey built form proposed on those lots results in failure to achieve 3 hours of direct sunlight to 50% of the PPOS on the winter solstice between certain hours (Section 4.2.7 of the LDCP).

69. That said, the solar access requirement at [42] is achieved in the front PPOS of Lots 215-225, according to the compliance table on Dwg DA96.

70. Control 4 of Section 4.2.7 permits PPOS to be located at the front of the dwelling where it is the only means of achieving the solar access requirements and where designed to maintain appropriate privacy (for example raised level above footpath or fencing or hedging), and where consistent with the streetscape design controls in clause 4.2.2 which deals with Streetscape and urban design.

71. The architectural drawings at Dwg DA86, and DA87, depict sections through sites at Lot 219 and 221, consistent with the Fencing and Refuse Plan at Dwg DA92 nominating a 1.2m timber fence fronting Seventh Avenue, and on the boundary between the front setbacks of adjoining lots.

72. Reference to the architectural plans and sections identifies no raised level above the footpath or other device to ensure the PPOS achieves an appropriate degree of privacy.

73. Likewise, no assistance is given in this regard by reference to the Landscape plans (Exhibit A, Tab 16).

74. On the basis that a 1.2m high front fence does not afford privacy, and no other device of planning or design is proposed, I accept the Respondent’s submission that the PPOS on Lots fronting Seventh Avenue are not designed to provide appropriate privacy from the public domain, or from adjoining lots that also rely upon the PPOS in the front setback for at least 3 hours of sunlight between 9am and 3pm at the winter solstice.

75. I conclude that there is a nexus between the narrow lot width and rear access from Road 3 that has the effect of limiting solar access to only the front of Lots 215-225, according to the compliance table prepared by the Applicant’s architect, MPS.

76. Absent ways in which privacy can be achieved in the front setback, I accept the Respondents argument that the proposal fails to provide a high level of residential amenity suited to outdoor recreation and relaxation, adversely impacting on the usability of the PPOS in contradiction of the objectives at Section 4.2.7 of the LDCP.

77. Furthermore, I also accept that as no alternative solution to achieve the objectives is demonstrated, that there are insufficient grounds to apply the provisions of the LDCP flexibly.

78. The proposal exceeds the number of residential lots fronting Seventh Avenue to greater than 40%, in contradiction with Section 3.1.2, Control 8 of the LDCP ‘Block and Lot Layout’,

79. It is relevant to record here that all of the Lots that fail to demonstrate 3 hours of solar access are located in the three blocks that contradict the control above, in which all Lots are less than 10m in width.

80. Conversely, those blocks that conform to the lot width control achieve the required solar access to the PPOS on the lots contained therein.

81. In addition to the non-conformity demonstrated by Lots 215-225, I note the following lots also fail to achieve 3 hours of solar access, either in the rear PPOS or at all: Lot 202, Lots 226-230, and Lots 233-235.

82. It is reasonable, in my view, for PPOS to have a degree of privacy and amenity in order to be considered, as its description suggests, a private open space for the purposes of outdoor gathering and recreation of residents of a dwelling, and their guests.

83. In short, I conclude that Lot width is a significant factor in the failure by the proposal to provide PPOS with an appropriate degree of solar access, privacy or amenity.

84. As the controls at Section 4.2.7 and Section 3.1.2 of the LDCP are directly pertinent to the residential density the subject of cl 4.1B of the Growth Centres SEPP, it is appropriate for those provisions to be a focal point of my consideration, and for non-conformance with the same to be given significant weight in my decision.

85. The addition of Road 3 as proposed in the development application is inconsistent with the ILP at Section 2.2 of Sch 1 of the LDCP. For the reasons set out at [59]-[64], I find the addition of Road 3 in turn gives rise to a greater residential density than the minimum sought by cl 4.1B of the Growth Centres SEPP while also departing from the provisions of the LDCP at [82] in material respects and in these circumstances, consent to the subdivision should be refused.

86. The Applicant has not sought to justify grounds on which the provisions at Section 4.2.7 and Section 3.1.2 of the LDCP should be given less weight, or reasons for departing from compliance with the provisions.

87. Here, as in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 at [87], the provisions of the LDCP, operate to confine the intensity of development otherwise permitted by cl 4.1B of App 8 of the Growth Centres SEPP.

Orders

88. The Court orders that:

1. The appeal is dismissed.

2. Development consent for Development Application No DA-295/2021 for integrated housing including the staged construction of 35 attached dwellings, 2 semi-detached dwellings and 29 detached dwelling houses, staged subdivision to create 68 Torrens Titles residential lots and 1 residue lot, demolition of existing structures removal of trees, bulk earthworks and associated civil works including road construction, drainage works, services and temporary stormwater management facilities at 105 Edmondson Avenue and 100 Seventh avenue, Austral is refused.

……………………

T Horton

Commissioner of the Court

**********

Decision last updated: 02 May 2022