Maxwell v Warringah Council (No 1)

[2004] NSWLEC 74

Land and Environment Court

of New South Wales

CITATION:

Maxwell and anor v Warringah Council (No 1) [2004] NSWLEC 74

PARTIES:

FIRST APPLICANT
S Maxwell

SECOND APPLICANT
M Corbett

RESPONDENT
Warringah Council

INTERVENOR
Duffys Forest Residents Association
.

FILE NUMBER(S):

11195 of 2003

CORAM:

Moore C

KEY ISSUES:

Development Application - Subdivision :-
Desired future character of locality
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Threatened Species Conservation Act 1995
.

CASES CITED:

Manzie v Willoughby City Council 96 LEC 26;
.

DATES OF HEARING:

25 and 26 February 2004

DATE OF JUDGMENT:

04/02/2004

LEGAL REPRESENTATIVES:

APPLICANTS
Mr J Cole, solicitor
Abbott Tout

RESPONDENT
Mr K Webber, solicitor
Wilshire Webb

INTERVENOR
Mr R Smallwood, agent

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11195 of 2003

Moore C

2 April 2004

S Maxwell and M Corbett

Applicants

v

Warringah Council

Respondent

Duffys Forest Residents Association

Intervenor

Introduction

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal (and subsequent actual refusal dated 6 February 2004) of an application to Warringah Council ("the council") to subdivide a parcel of land at Bibbenluke Ave, Duffys Forest ("the site"). The site is Lot 447 DP 48649.

The location and features of the site

2 The site is an irregular shaped allotment of ~ 23.3 hectares. It has an irregular and lengthy frontage to Ku-ring-gai Chase National Park on its western and southern boundaries. It has a street frontage to Bibbenluke Ave and to a section of the unformed part of Joalah Road.

3 The site is partially on (at the southern and western escarpments of) the Duffys Forest Plateau with the predominant portion comprising ground which falls away from the Plateau proper. There are two joined knolls and part of a third separate knoll, which are away from the Plateau proper but are within the site. The first two knolls are located in an extension to the southwest along the Bibbenluke Fire Trail and the partial knoll is in an extension, generally to the west, at approximately the midpoint of the western boundary of the site.

4 Immediately opposite the site, across the unformed portion of Joalah Road, is located a triangular allotment of ~ 5 acres with a frontage to Bibbenluke Avenue. An examination of the aerial photograph on page 4 of the submission of the Duffys Forest Residents Association ("the association") shows a range of ancillary buildings in addition to the primary dwelling on it. From the view, internal fencing and cleared pastures were able to be seen on this allotment although there was a degree of vegetation retained along its western boundary. This development is generally reflective of the nature of development elsewhere in the Boorallie Road locality.

5 For the purposes of the Warringah Local Environmental Plan 2000 ("the LEP"), the site is within Locality A2 - Boorallie Road.

The proposed subdivision

6 The plan of subdivision for which consent is sought proposes the creation of seven residential allotments. For the purposes of the present proceedings, the applicant provided a plan of subdivision which became Exhibit A. Relevantly to the matters dealt with in this decision, the plan shows the arrangement of the allotments, existing and proposed fire trails, a building limit line, inner and outer fire protection zones and proposed building envelopes for each allotment.

7 Although Exhibit A is shown as having a scale of 1:1500, the drawing details show that this is based on the drawing being presented on an A1 sheet. In fact, as tendered, the drawing has been presented on an A3 sheet. As best I am able to measure it, Exhibit A is actually scaled at ~ 1:3125. For the purposes of this decision, I have taken my measurements from Exhibit A at approximately this scale.

8 Lot 1, at the northern end of the site, is 2.8 hectares. This lot is to be generally rhomboidal in shape. Approximately one-third of this lot is to be within the outer asset protection perimeter. Its configuration is generally consistent with the subdivision pattern of the Boorallie Road locality.

9 Lots 2 through to 6 are each to be of two hectares.

10 Lot 2 is, broadly speaking, Y-shaped with a ~ 59 m frontage to Joalah Road at the foot of the Y; a width across the mouth of the Y of ~ 200 m and a depth, from the street frontage to the centre of the Y, of ~ 172 m. Approximately 40 percent of this allotment is within the outer asset protection perimeter. Although of a somewhat unusual shape compared to the general subdivision pattern in the Boorallie Road locality, it is not so unusual as to be out of character with this pattern.

11 Lots 3, 4 and 5 are, in general terms, all very long narrow allotments with their length along their east west axes. The shape of each of these allotments is significantly inconsistent with the subdivision pattern of the Boorallie Road locality.

12 Lot 3 has a frontage to the unmade portion of Joalah Road of ~ 72 m. It has a total depth of ~ 447 m of which ~ 356 m is beyond the outer asset protection zone limit. At its narrowest, Lot 3 is only ~ 16 metres wide. Although difficult to calculate as a consequence of the shape of the allotment and the lack of an accurate scale on Exhibit A, it would appear that ~ 25 to ~30 percent of this allotment is within the outer asset protection perimeter.

13 Lot 4 has a frontage to the unmade portion of Joalah Road of ~ 65 m. It has a total depth of ~ 431 m of which ~ 347 m is beyond the outer asset protection zone limit. At its narrowest, Lot 4 is only ~ 25 metres wide. Although difficult to calculate as a consequence of the shape of the allotment and the lack of an accurate scale on Exhibit A, it would appear that ~ 25 percent of this allotment is within the outer asset protection perimeter.

14 Lot 5 has a frontage to the unmade portion of Joalah Road and to Bibbenluke Ave. Its frontage has a length of ~ 86 m. It has a total depth of ~ 412 m of which ~ 281 m is beyond the furthest point of the outer asset protection zone limit. At its narrowest, which is at its rear boundary, Lot 5 is only ~ 15.6 metres wide. Lot 5 tapers in a generally uniform fashion from the end of its developable area. Lot 5 also includes portion of a saddle connecting a knoll to the north. Although difficult to calculate as a consequence of the shape of the allotment and the lack of an accurate scale on Exhibit A, it would appear that ~ 33 percent of this allotment is within the outer asset protection perimeter.

15 Lot 6 is shaped like an inverted boot. It has a frontage to Bibbenluke Ave of ~ 55 m. It has a total depth of ~ 225 m of which ~ 90 m is beyond the outer asset protection zone limit. It is ~ 216 metres across its western boundary. Although difficult to calculate as a consequence of the shape of the allotment and the lack of an accurate scale on Exhibit A, it would appear that ~ 40 percent of this allotment is within the outer asset protection perimeter. Although of a somewhat unusual shape compared to the general subdivision pattern in the Boorallie Road locality, it is not so unusual as to be out of character with this pattern.

16 Lot 7, at the southern end of the site and extending somewhat toward the east, comprises the remainder of the site and would be of ~ 10.5 hectares. Lot 7 also includes two knolls and the saddle connecting them and the saddle connecting these knolls to the Plateau. Although difficult to calculate as a consequence of the shape of the allotment and the lack of an accurate scale on Exhibit A, it would appear that ~ 5 percent of this allotment is within the outer asset protection perimeter. Although also unusually shaped compared to the general subdivision pattern in the Boorallie Road locality, the size of Lot 7 is so great compared to others in the Boorallie Road locality that it would not be appropriate to say that it is out of character with this pattern in a fashion which is unacceptable.

17 Of these proposed allotments, three are to be accessed from Bibbenluke Ave with the remainder to be accessed from a to be constructed portion of the presently unformed Joalah Road. It is proposed that part of this construction of Joalah Road be as a concrete driveway and part of it as a formed cul-de-sac extension to the existing Wyong Road. Although issues relating to this becoming a through road were raised by several of the residence objectors, it is not necessary to deal with these matters in this element of the appeal.

18 As a consequence of the topography, the seven identified building envelopes are located, generally, in proximity to the frontage of the site from the cul-de-sac end of Bibbenluke Ave through to the proposed portion of Wyong Road where it turns toward the south.

Conduct of the hearing

19 A site inspection was undertaken in the company of the legal representatives of the parties on the morning of 25 February 2004. Also in attendance were a large number of objectors to the proposal, a significant proportion of whom were members or office bearers of the association.

20 Although the formal Statement of Issues filed by the council dated 8 December 2003 raised the issue of compliance with provisions of the LEP relating to the desired future character of the Boorallie Road locality, this issue was effectively deleted by the council's solicitors by letter dated 11 February 2004. As a consequence, the expert town planning witnesses retained by the parties did not deal with this matter in their joint report.

21 During the course of the inspection, carried out under difficult climatic circumstances, it became apparent that, in addition to the association supporting the council on a number of its points of objection to the proposal, the association also wished to press the issue of compliance or, in its view, non-compliance, with the desired future character statement in the LEP for the Boorallie Road locality.

22 In light of this, by consent of the parties, the association was granted leave to intervene in the proceedings and Mr R Smallwood, who is a member of the association, was granted leave to appear as the association's agent.

The evidence

23 Formal evidence was given on behalf of the association by:

• Mr B Anschau, a resident of 1 Bibbenluke Ave;
• Ms M Newling, a resident of 376 Joalah Road; and
• Mr R Smallwood, a resident of 311 Weemala Road.
  

24 Two other objectors also gave formal evidence. They were:

• Ms A Sharp of 77 Brighton Street, Harbord; and
• Mr P White of 14 Woodbine Street, Balgowlah

25 In addition, during the course of the view, evidence was also taken informally from a number of the objectors. The council tendered formal written statements from a wide range of objectors.

26 For the council, formal planning evidence on this issue was given by Mr P Robinson, Team Leader - Local Approvals.

27 For the applicants, formal planning evidence on this issue was given by Mr P Grech, a consultant town planner.

The scope of this decision

28 As a consequence of the manner in which the hearing was conducted, I indicated to the parties that I intended to give a reserved decision on the issue, as pressed by the association, as to whether or not the proposed subdivision satisfied the provisions of the LEP as being consistent with the desired future character of the Boorallie Road locality.

29 Although this is not the only issue in contention, it is, nonetheless, potentially determinative of the appeal.

30 Effectively, the time available in the hearing following the site inspection was confined to dealing with this issue and all other issues were deferred for further hearing should I determine that application did not fail on this issue. This decision, therefore, is essentially of a separate issue in the proceedings.

31 In particular, matters relating to the biodiversity protection and to dealing with bushfire risk issues remained to be dealt with if the applicants’ proposal satisfied the desired future locality character test.

32 A number of other issues will also fall to be determined in the eventual resolution of subdivision of the site. These include possible issues relating to the retention of public pedestrian and equestrian access to the Bibbenluke Fire Trail.

The planning framework

33 Relevantly to this application, cl 21(1)(a) of the LEP provides that land can be subdivided if the resulting allotments can be developed in accordance with the LEP.

34 The controls for the Boorallie Road locality, with respect to housing density, require that there be a maximum housing density of one dwelling per two hectares of site area where such site area excludes any access corridor. Although there are a number exceptions to this provision, they are not relevant to the present application. The proposed subdivision satisfies this test. The application, therefore, is permissible with consent.

35 As noted earlier, for the purposes of the LEP, the site is within the Boorallie Road locality. For this locality, development for the purposes of housing and/or agriculture are classified as category 1 development pursuant to the LEP.

36 Clause 12(3)(3) of the LEP requires that, for category 1 development, before granting consent for such development, the consent authority must consider the desired future character described in the relevant locality statement.

37 This test is more permissive than that which is provided for category 2 or 3 development where, before granting consent for such development, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant locality statement.

38 Clause 14(2) of the LEP expressly deems subdivision to be category 2 development unless it is subdivision of a type classified as exempt development. Schedule 1 to the LEP sets out, in a table of definitions of exempt development, what forms of subdivision are so classified.

39 The present application does not fall in any of these. The present application therefore is within the deeming provisions of cl 14. As a consequence of this deeming, the stricter of the tests is to be applied.

Existing development

40 Although there has been substantial clearing of land on the Duffys Forest Plateau for residential development, the location of the site on the southwest corner of the Plateau bounded by Ku-ring-gai Chase National Park together with the steep nature of the fall from the escarpment, when coupled with modern planning approaches, means that the scale of vegetation clearing permitted and undertaken in the locality in the past is no longer appropriate or permissible.

41 This means that, in the discussion later in this decision relating to the desired future character of the Boorallie Road locality, consideration of the present proposal must be undertaken in a slightly broader context as to compatibility and permissibility rather than one of strict conformity to the existing development pattern.

The desired future character for the Boorallie Road locality

42 I therefore turn to consider the desired future character for the Boorallie Road locality.

43 The general pattern of subdivision in the Boorallie Road locality is one of significantly more regular allotments than those proposed - although not a subdivision pattern of complete regularity as might be expected in some more traditional and older inner urban areas.

44 Generally speaking, development on Boorallie Road locality allotments is characterised by houses in varying styles accompanied by outbuildings of one form or another together with a significant degree of involvement, throughout the locality, of semi rural activities such as horticultural activities or stabling and grazing for horses which are used for recreational equestrian activities.

45 The desired future character statement the Boorallie Road locality contained in the LEP reads as follows:

The Boorallie Road locality will remain a non-urban area consisting of houses in distinctly non-urban settings and occasionally low intensity, low impact business or community uses that are compatible with non-urban nature of the locality and the predominant scale of existing development.

The impact of new development on views from the adjacent National Park will be minimised by the use articulated building forms, generous landscaped spaces around buildings and building materials that blend in with the colours and textures of the natural landscape.

Emphasis will be given to protecting and where possible enhance in the natural landscape, including landforms and vegetation. Increased planting of indigenous canopy trees will be strongly encouraged.

46 The proposed subdivision identifies seven building sites and envelopes which are, essentially, confined to the eastern boundary of the site immediately adjacent to either Bibbenluke Ave or Joalah Road. Although each of the allotments to which a housing site attaches satisfies the housing density requirement for the Boorallie Road locality, the context of the developed parts of the site will be distinctly different from that which characterises the pattern of development for the remainder of the Boorallie Road locality.

47 This variation in context arises from the necessity, for the subject site, to provide appropriate bushfire protection for the house sites and, for two of the allotments, to provide protection for broad biodiversity conservation purposes.

48 It also necessary to confine development to the portion of the site which is on the Duffys Forest Plateau as a consequence of the presence on the site of several hanging swamps, an Aboriginal rock carving site and the presence on the site of a stand of eucalyptus canfieldii, a species which is listed as vulnerable pursuant to the Threatened Species Conservation Act 1995.

49 In addition, it is clear that, as noted later in this decision, the scale of land clearing which has occurred in the past in the locality would no longer be acceptable.

50 There will be a greater concentration of housing along the Bibbenluke Ave and Joalah Road frontage than there is in the general pattern of development in the Boorallie Road locality.

51 Finally, as a consequence of the necessity to provide appropriate asset protection zones around the proposed dwelling areas, the evidence is that there is likely to be little or no effective opportunity for the construction of ancillary buildings or structures on any of these allotments.

The association’s position - not " houses in a distinctly non-urban setting "

52 Evidence given on behalf of the association, by its several witnesses, was to the effect that the present character of the Boorallie Road locality was one of five acre blocks where all or most of the land was available for development.

53 In particular, Mr Smallwood gave evidence that the nominated footprint for the housing envelopes, being generally 20 m by 20 m, would inevitably result in two-storey houses being constructed – this being, in his view, a development pattern inconsistent with the houses generally in the Boorallie Road locality which he described as being of single storey construction.

54 It was also his evidence that, given the size of the proposed housing envelopes, they were not capable of satisfying the requirement in the desired future character statement that such housing should be articulated in order to break up any view of these from Ku-ring-gai Chase National Park.

55 Further, it was his evidence that he considered that it will be necessary to import soil to the housing site in order to provide an appropriate basis for operating of the efluent disposal systems. In cross-examination, Mr Smallwood indicated that non-urban, in the context of the LEP, meant what he regarded as rural residential subdivision.

The Council and applicants’ evidence as to consistency

56 As noted earlier, the council had raised but subsequently abandoned the issue of compliance with the desired future locality statement for the Boorallie Road locality.

57 The consequence of this is that there was no formal written evidence on this issue from either of the expert town planning witnesses. However, both planning experts were called to give oral evidence.

58 Mr Robinson's evidence was that he had considered the issue of compliance with the desired future character statement for the Boorallie Road locality and had concluded, for a variety of reasons, that the proposal was not inconsistent with the desired future character. In reaching this conclusion, it was his evidence that:

• he had considered the setbacks and separation of the proposed building envelopes;
• he was of the opinion at that the concept of non-urban character included not only rural residential development but also dwellings in bushland settings; and
• there would be about one acre available for development on each of the allotments.

59 It was his evidence that the proposal was consistent even though the allotments would not be of a similar shape to other allotments in the Boorallie Road locality. He conceded that there was, relevantly, no similar subdivision pattern in the Boorallie Road locality. He also conceded that there were no other blocks in the Boorallie Road locality where only one acre would be available for development.

60 Mr Robinson also gave evidence that future residents may not be able to achieve their development expectations as to stables, dressage arenas and the like. He also acknowledged that environmental issues might preclude the keeping of livestock on some sites as a result of lack of space.

61 For the applicants, Mr Grech gave evidence on these town planning issues.

62 It was his opinion that the proposed form of development is appropriate for the site. He said that the subdivision pattern did not lead to a conclusion that the subdivision was not non-urban as it was designed to reflect the natural opportunities available from the site and from the shape of the site itself. He said that the design resulted from a detail and conscientious analysis of what was appropriate for the site.

63 He acknowledged that he was not aware of any other site within the Boorallie Road locality where outbuildings and the like were not readily to be permitted. He expressed the opinion that, on an examination of the individual allotments, if assessed one by one, each of them met the desired future character and, as a consequence, the totality of the proposal must necessarily also achieve this.

64 Both expert town planning witnesses gave evidence concerning future character compliance with the second paragraph of the Boorallie Road locality statement. They were both of the view that a 20 m by 20 m building envelope would provide appropriate opportunities for articulated designs of dwellings, including single storey dwellings.

65 In addition, Mr Grech gave evidence with respect to the third paragraph of the Boorallie Road locality statement. It was his evidence that construction on the site would be highly controlled and managed. As a consequence of the placement of the building envelopes there would be nature conservation based landscaping opportunities to address the interface with Ku-ring-gai Chase National Park. As a result, it was his opinion that there would be a positive outcome arising from the development in compliance with this paragraph of the locality statement despite the need for extensive clearing for bushfire protection zones.

Submissions on complying with the first paragraph of the desired future character statement

66 Quite properly, given its position on the issue, no submissions were made on behalf of the council concerning compliance with the desired future character of the Boorallie Road locality.

67 Mr Cole, for the applicants, submitted that:

• the housing pattern would be consistent with built forms on one acre per 2 hectares;
• as a consequence of the size of the site, the density would, in fact, be less than that which applied elsewhere in the locality;
• I should prefer the evidence of the two expert planners (and, by inference, the agreement of the planning consultant who had earlier advised the council) that the proposal was acceptable;
• the front and side setbacks to the building envelopes assisted in establishing an appropriate characterisation of the development;
• although there would be some clearing, there would remain substantial areas of protected bushland; and
• the front setbacks, the side setbacks and the setbacks from the fire trails would provide for substantial landscaped areas surrounding each of the future dwellings.

68 The applicants put the position that the proposal is, in fact, consistent with the desired future character of the Boorallie Road locality and that, if I am not so satisfied, any inconsistency is so minor as not to warrant refusal of the application.

69 Mr Smallwood, for the association, submitted that:

• the town planning experts had both agreed that there was no other subdivision pattern elsewhere in the Boorallie Road locality similar to that which was proposed;
• the presentation of the dwellings which would be constructed would be of a row of houses along Joalah Road;
• the resultant streetscape appearance was inconsistent with a non-urban setting;
• contrary to the remainder of the Boorallie Road locality (with the exception of the Greenway subdivision which is not relevant in these proceedings), development would be restricted, effectively to one acre allotments and that the remainder of each site should be disregarded from my assessment; and
• the limitation on or effective exclusion of development of ancillary facilities was inconsistent with other housing development within the Boorallie Road locality.

70 The association submits that, if the present application is approved, the resulting subdivision and housing development will not consist of houses in distinctly non-urban settings when they are considered as an aggregation of built forms and curtilages.

71 It submits that the resultant development will present as a much more concentrated and urban housing development than the present housing in distinctly non-urban settings as prescribed by the Boorallie Road locality statement.

72 The association invites me to find that, as a matter of fact, the resulting development would be inconsistent with the desired future character of the Boorallie Road locality and, as a consequence, the application should fail.

Conclusion

73 I am unable to be satisfied that, if the application is approved as presently laid out, the resulting development will be of houses in distinctly non-urban settings. The basis for so concluding a set out below

74 I have carefully considered the pattern of subdivision proposed; the location of the proposed housing envelopes and the nature of the restrictions on or effective prohibition of ancillary buildings that would promote activities of a semi rural nature generally found elsewhere within the Boorallie Road locality.

75 Non-urban is clearly broader than merely rural residential. It would certainly logically encompass the range of activities presently carried out within the existing subdivision pattern in the Boorallie Road locality. I am satisfied that it would also encompass, within the scope of the generally uniform subdivision pattern within the Boorallie Road locality, accommodating the preference of any owner who chose to not to indulge in substantial clearing of their property but who chose to erect a dwelling in what might generally be described as a bushland setting.

76 As a consequence of the restrictions noted above, however, I am satisfied that the presently proposed subdivision would not result in houses constructed on each of the allotments which were in distinctly non-urban settings in either of the forms discussed immediately above.

77 If transposed to a truly urban development, the development within the outer asset protection perimeter would be perceived as houses within generous landscaped curtilages in an obviously urban setting.

78 I am satisfied that, if this application were approved, the resulting residential development, particularly in contrast to the development presently located opposite it (which, as noted earlier in these reasons, is generally typical of that within the Boorallie Road locality), would appear to be houses in an urban setting - albeit a setting of substantially sized allotments.

79 These dwellings could not be described as being in a bushland setting. They would undoubtedly have a bushland backdrop, not only as a consequence of the land outside their developed curtilages which would form part of their allotments, but also as a consequence of each of their allotments being an immediate neighbour of Ku-ring-gai Chase National Park. However, the immediate perception of the context of development would be an urban one.

80 Such appearance and setting is sufficiently contrary to the desired future character of the Boorallie Road locality to warrant refusal of the subdivision application in its present form.

81 These defects arise as a consequence of the numerical yield sought by the applicants. Specifically, in my view, they arise from the attempt to create lots 3, 4 and 5 by proposing the division, into three narrow slivers, of the western protuberance into the boundaries of Ku-ring-gai Chase National Park.

82 There is no topographic imperative or logic to the shape of these allotments save the desire to use the western protuberance into the boundaries of Ku-ring-gai Chase National Park to maximise the lot yield for the subdivision.

83 The proposed resultant highly artificial shapes of these allotments are also not compatible with the present subdivision pattern of the Boorallie Road locality. Although I do not rely on this artificiality as a basis for refusal of the present proposal, it is reflective of a desire to create numerical compliance with the housing density requirement in the locality statement to support a housing development which is itself not consistent with the desired future character of the Boorallie Road locality.

84 Although not binding on the Court in any future proceedings concerning the site, it is sometimes appropriate to offer comment on how such defects might be resolved: see Manzie v Willoughby City Council 96 LEC 26.

85 A lesser numerical yield, which permitted the possibility of ancillary development on at least some of the allotments, would be likely to cure the inconsistency with the desired future character of the Boorallie Road locality.

86 As a consequence, to assist the applicants in the possible redesign of the subdivision on a smaller scale, it is appropriate that I indicate that a subdivision which yielded five allotments would be likely to provide scope for such interspersing of sufficient ancillary development opportunities to render such a subdivision design consistent with the desired future character of the Boorallie Road locality.

87 Such an appropriate reduction in allotments would be achieved by the consolidation of lots 3, 4 and 5 into a single allotment with part of the area inside the outer boundary of the asset protection zones of lots 3 and 5 thus freed up for being added to the developable curtilage of each of lots 2 and 6.

88 The whole of the protruberance, to the west into Ku-ring-gai Chase National Park at about the midpoint of the western boundary, should be included in a single allotment.

89 If it were possible to do so, a modest improvement is also desirable in the developable curtilage of Lot 7 by its extension to the south towards the Bibbenluke Fire Trail.

90 The resulting subdivision pattern, should such an approach be adopted, would remain somewhat different to the general subdivision pattern throughout the remainder of the Boorallie Road locality. In this context, I have considered the evidence given by some of the objectors in support of the proposition that no subdivision should be permitted at all.

91 A variation in the Boorallie Road locality subdivision pattern will inevitably result if any subdivision of the site is permitted. The inevitability of this result arises not merely because of the irregular nature of the site itself but also as a consequence of the altered and more modern approach to planning for such sites. This is reflected in the LEP’s requirement for consistency with the desired future character of the Boorallie Road locality rather than a mere mimicking of the present subdivision and development pattern.

92 I am satisfied that it would be possible to design a subdivision pattern which, in terms of the balance of topography and development (and setting aside undetermined issues including fire safety and biodiversity), would achieve sufficient scope for interspersing of a limited or modest range of ancillary activities whilst still preserving the location of the relevant building envelopes along the strip of Duffys Forest Plateau in the site which fronts Bibbenluke Avenue and Joalah Road

93 I have also considered the objections to the proposal which were based on the second and third paragraphs of the Boorallie Road locality statement. Although pressed by the association, contrary to the matters discussed above with respect of the first paragraph of the Boorallie Road locality statement, these alleged non-compliances are not readily supported from an interpretation of the plan of proposed subdivision or from observation on the view.

94 Although witnesses for the association gave evidence that support these contentions, it was neither detailed or persuasive. The evidence of the expert planners of design opportunities within the defined building envelopes is, under the circumstances, to be preferred to lay opinions on the same subject. I also accept Mr Grech’s evidence as to compliance with paragraph 3 of the desired future character statement for the Boorallie Road locality.

95 Therefore, I am satisfied, on the evidence before me, that it would be possible for housing development within the proposed subdivision pattern to comply with the second and third paragraphs of the desired future character statement. As a result, there is no basis to refuse or require modification of the application founded on consideration of those paragraphs.

Disposition of the proceedings

96 Although I have found that the present subdivision proposal warrants refusal for the reasons set out above, I have also concluded that, contrary to the view put by a number of objectors that no subdivision should be permitted, a less intense subdivision would be able to the consented to as consistent with the desired future character of the Boorallie Road locality. Such conclusion is confined only to the narrow planning issue dealt with in these reasons for decision.

97 Any revised subdivision design would, of course, also be subject to consideration and testing against the unresolved issues including bushfire and biodiversity.

98 However, given my conclusion that a subdivision of a lesser lot yield is potentially approvable, it is not appropriate to have this stage of the proceedings result in a dismissal of the present appeal - unless this is the course preferred by the applicants after their consideration of these reasons for decision.

99 I propose to adjourn these proceedings for mention before me at 9:15 AM on 7 April to enable the applicants and their advisers to consider these reasons for decision.

100 At that mention, I would expect to be informed whether the applicants wished to have me formalise dismissal of the appeal or if they wished a further adjournment (which would be granted) in order to lodge a further revised plan of subdivision to enable these proceedings to remain on foot with respect to such further amended plan of subdivision.

Commissioner of the Court