Micallef v Hawkesbury City Council

[2021] NSWLEC 1410

Land and Environment Court

New South Wales

Medium Neutral Citation:

Micallef v Hawkesbury City Council [2021] NSWLEC 1410

Hearing dates:

28 June 2021

Date of orders:

21 July 2021

Decision date:

21 July 2021

Jurisdiction:

Class 1

Before:

Morris AC

Decision:

The orders of the Court are:

(1) The appeal is upheld.

(2) Development application DA0540/19 for demolition of existing structures, tree removal and the construction of a one storey centre based childcare facility accommodating a total of 115 children with 46 at grade parking spaces at Lot 60 DP 1070588, No 542 Windsor Rd, Vineyard is approved subject to the conditions in Annexure A.

(3) The exhibits, other than exhibits A, B, D and 1, are returned.

Catchwords:

DEVELOPMENT APPLICATION – childcare centre

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.46, 8.7

Environmental Planning and Assessment Regulation 2000, cl 276(1)

Hawkesbury Local Environmental Plan 2012, cll 2.3, 4.3(2), 6.1, 6.4(2),

Roads Act 1993, ss 25, 26

Rural Fires Act 1997, s 100B

State Environmental Planning Policy No 55—Remediation of Land, cl 7

State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017, cl 23

State Environmental Planning Policy (Infrastructure) 2007, cll 101, 102

State Environmental Planning Policy (Sydney Region Growth Centres) 2006, cll 16, 17

Texts Cited:

North West Priority Growth Area, Land Use Infrastructure and Implementation Plan 2017

Category:

Principal judgment

Parties:

Victor George Micallef (Applicant)
Hawkesbury City Council (Respondent)

Representation:

Counsel:
N Eastman (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Ritchie & Castellan (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2020/80125

Publication restriction:

No

Judgment

1. COMMISSIONER: Mr Micallef lodged Development Application DA0540/19 with Hawkesbury City Council (Council) on 12 December 2019 seeking consent for demolition of all existing structures and construction of a 115 place childcare centre at 542 Windsor Road, Vineyard.

2. The Council had not determined the application within the prescribed period and Mr Micallef is appealing its deemed refusal pursuant to the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).

The proposal

3. The application seeks consent for the demolition of existing structures, removal of 50 trees and the construction of a one storey centre based childcare facility of approximately 850 square metres in area accommodating 115 children and 22 staff with hours of operation from 6:30 AM to 6:30 PM Monday to Friday and at grade parking containing 46 car parking spaces including 17 spaces specifically allocated for parents and 7 for staff and one delivery bay.

4. The 115 places are proposed to be allocated to the following age groups and serviced by the following numbers of staff:

5. The applicant has amended the application to delete signage details that were the subject of a contention in the case. Agreed conditions of consent have been imposed to address any proposed signage.

6. The proposed building would be constructed in the western corner of the Site with the outdoor play areas located along the site’s north western boundary and the car parking area to the northeast and southeast of the building accessed from a driveway crossing off Bandon Rd. That crossing provides separate entry and exit points, and would be subject to left in and left out restrictions in accordance with agreed conditions of consent. Pedestrian access would also be from Bandon Rd.

7. The site would be fenced along its street boundaries with a post and rail fence with a 3 metre wide landscaping strip around all those boundaries. A 2.1 metre high acoustic wall would be erected along the north-western and north-eastern boundaries of the outdoor play area to address acoustic requirements. That wall would be screened by the proposed landscape setback to Windsor Rd.

The site and locality

8. The site is legally described as Lot 60 in DP 1070588, with a street address of 542 Windsor Rd, Vineyard. A portion of the adjoining property legally described as Lot 4 in DP 220236 (532 Windsor Rd, Vineyard) is proposed to be used as a Bushfire Asset Protection Zone (APZ) for the proposed development.

9. The site is irregular in shape and has a total area of approximately 3662 square metres. It is located on the north-western corner of the intersection of Windsor Rd and Bandon Rd, with a frontage to Bandon Rd of approximately 66.99 metres and a frontage to Windsor Rd of approximately 56.065 metres.

10. The site presently contains a dwelling, ancillary home office/workshop building, storage shed and approximately 75 trees.

11. The intersection of Windsor and Bandon Roads is a signalised intersection and Transport for New South Wales (TNSW) has previously resumed and dedicated a strip of land as road along the site’s Bandon Rd frontage, with a further strip of land dedicated as public road along the Windsor Rd frontage. Surrounding development is characterised by a range of rural residential, business and agricultural activities. A hardware, building and landscaping supplies business is located to the northeast of the site on the eastern side of Windsor Rd with a childcare centre located diagonally opposite the site. Vineyard Public School is situated to the south of the site on the opposite side of Bandon Rd. The land at Nos 1 and 3 Bandon Rd, immediately to the west of the site, is occupied by detached dwellings, with a retirement village development situated further to the west of the site at No 7. Further along Bandon Rd to the west is the Vineyard Children Early Learning Centre. The land to the north of the site is semi cleared and vacant.

12. Windsor Rd is classified as a main arterial road.

Planning controls

13. The site is situated within the North West Growth Centre (NWGC) pursuant to the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (SEPP 2006). Specifically, the site is within the boundaries of the Vineyard Precinct and is within the future stage 2 release of that precinct. The Hawkesbury Growth Centres Precinct Plan (HGCPP) in Appendix 13 of SEPP 2006 does not apply to the site because it is not identified on the Land Applications Map referred to in clause 1.3 of Appendix 13.

14. The land to the southeast of the site is situated within the Vineyard Precinct within the NWGC and is subject to the provisions of the HGCPP in Appendix 13 of SEPP 2006. The land to the south of the site across Bandon Rd is situated within the Alex Ave and Riverstone Precinct within the NWGC and is subject to the provisions of the Alex Ave and Riverstone Precinct Plan in Appendix 4 of SEPP 2006.

15. Clause 16 of SEPP 2006 contains a list of matters which must be taken into consideration in granting consent to development on land within a Growth Centre unless provisions have been specified in a precinct plan in relation to development of the land. Those provisions are as follows:

(1) Until provisions have been specified in a Precinct Plan or in clause 7A with respect to the development of the land, consent is not to be granted to the carrying out of development on land within a growth centre unless the consent authority has taken into consideration the following—

(a) whether the proposed development will preclude the future urban and employment development land uses identified in the relevant growth centre structure plan,

(b) whether the extent of the investment in, and the operational and economic life of, the proposed development will result in the effective alienation of the land from those future land uses,

(c) whether the proposed development will result in further fragmentation of land holdings,

(d) whether the proposed development is incompatible with desired land uses in any draft environmental planning instrument that proposes to specify provisions in a Precinct Plan or in clause 7A,

(e) whether the proposed development is consistent with the precinct planning strategies and principles set out in any publicly exhibited document that is relevant to the development,

(f) whether the proposed development will hinder the orderly and co-ordinated provision of infrastructure that is planned for the growth centre,

(g) in the case of transitional land—whether (in addition) the proposed development will protect areas of aboriginal heritage, ecological diversity or biological diversity as well as protecting the scenic amenity of the land.

16. Clause 17 of SEPP 2006 requires referral of a development application within a Growth Centre which has been released but to which no provisions in a precinct plan apply to the Director General of the Department of Planning for comment. This site is within a precinct that was released for Urban Development by the Minister pursuant to the declaration published in Gazette Number 97 of 2 August 2013, in accordance with clause 276(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) and therefore the provisions of clause 17 of SEPP 2006 apply to the application. The Council referred the application in accordance with these provisions and the reply received is addressed later in this judgment. Subclause (3) requires that the consent authority must take any comments received from the Director General into consideration when determining whether to grant consent to any such application.

17. The Land Use Infrastructure and Implementation Plan (LUIIP) for the North West Priority Growth Area was issued in May 2017. The LUIIP updates the planning framework for the Growth Area in light of the extent of urban development and demand for housing that has occurred since the release of the 2006 Structure Plan. The LUIIP identifies the opportunities for urban growth and recommends a planning pathway to realise the area’s potential. It also builds on the framework set in the draft West and West Central District Plans released by the Greater Sydney Commission in late 2016. The LUIIP replaces the North West Structure Plan of 2006 and guides the direction for growth and development within the growth area which is underpinned by major and local infrastructure commitments and improved planning processes to help expedite the delivery of new homes and jobs in the region. In doing so it provides a revised long-term vision for the area, introduces new delivery mechanisms, and outlines the coordination of infrastructure with housing and employment development. Of specific relevance to the application is section 6.2.1 Roads which identifies Bandon Rd as a key access spine which will provide access to the wider local and regional road network.

18. The upgrade of Bandon Rd is in two parts, the first Richmond Rd up to approximately 2km being the responsibility of TNSW/Roads and Maritime Services (RMS) and the section west of Windsor Road being a matter for the Council. A timeline of 2026 is foreshadowed with funding from the Special Infrastructure Contribution or other satisfactory arrangements.

19. The site is situated within Zone RU4 Primary Production Small Lots pursuant to the provisions of Hawkesbury Local Environmental Plan 2012 (LEP).

20. Development for the purposes of centre based childcare facilities is permitted with consent within that zone.

21. The site is marked affected by Class 5 acid sulphate soils pursuant to the acid sulphate soils map referred to in cl 6.1 of the LEP. The works proposed do not require any application of the provisions of that clause.

22. Pursuant to the height of buildings map referred to in cl 4.3(2) of the LEP, the maximum permissible height of buildings on the site is 10 metres. The development complies with this development standard.

23. The site is marked as containing “significant vegetation” pursuant to the terrestrial biodiversity map referred to in cl 6.4(2) of the LEP. The applicant has addressed the provisions of this clause to the satisfaction of the Council through the provision of a Flora and Fauna Assessment report dated 18 March 2021 and included in Tab E of Exhibit B. For consent to be granted the following provisions apply:

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider—

(a) whether the development—

(i) is likely to have any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii) is likely to have any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii) has any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv) is likely to have any adverse impact on the habitat elements providing connectivity on the land.

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

24. Clause 6.7 of the LEP is in the following form:

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required—

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable road access.

25. Subject to imposition of agreed conditions of consent, the Council advises the proposed development will be adequately serviced to meet the requirements of this clause and that the provisions of cl 6.4 are satisfied. I accept that submission.

26. State Environmental Planning Policy No 55–Remediation of Land (SEPP55) applies to the application. Clause 7 requires site investigation and preparation of a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines. The applicant has prepared such a report (Tab B, Exhibit B), and such report concludes that the site can be remediated to a state which would be suitable for its use as a childcare centre. The agreed conditions reflect the relevant requirements of SEPP55 to ensure compliance with the policy. I accept those findings.

27. State Environmental Planning Policy (Educational Establishments and Child Care Facilities) 2017 (SEPPCCF) applies to the application. It is common ground that the relevant provisions of the policy have been addressed and conditions of consent are agreed to ensure compliance with those provisions.

28. State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) applies to the application, in particular cll 101 and 102 which are in the following form:

101 Development with frontage to classified road

(1) The objectives of this clause are—

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—

(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of—

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

102 Impact of road noise or vibration on non-road development

(1) This clause applies to development for any of the following purposes that is on land in or adjacent to the road corridor for a freeway, a tollway or a transitway or any other road with an annual average daily traffic volume of more than 20,000 vehicles (based on the traffic volume data published on the website of TfNSW) and that the consent authority considers is likely to be adversely affected by road noise or vibration—

(a) residential accommodation,

(b) a place of public worship,

(c) a hospital,

(d) an educational establishment or centre-based child care facility.

(2) Before determining a development application for development to which this clause applies, the consent authority must take into consideration any guidelines that are issued by the Secretary for the purposes of this clause and published in the Gazette.

29. In relation to the provisions relating to noise, the applicant has prepared an acoustic report (Tab F, Exhibit B) that addressed those issues of design and impact. The issue of access and whether the safety, efficiency and ongoing operation of the classified road (Windsor Rd) will be adversely affected by the development as the result of the design of the vehicular access to the land or the nature, volume or frequency of vehicles using the classified road to gain access to the land is addressed later in the judgment.

30. The development application is Integrated Development within the meaning of s 4.46 of the EPA Act as approval and a Bushfire Safety Authority (BSA) is required pursuant to s 100B of the Rural Fires Act 1997. The Rural Fire Service (RFS) issued its final BSA on 2 June 2021(Folio 48, Exhibit 2). The applicant submits that in the event consent is granted, the terms of the conditions in the BSA should be varied. This matter is discussed later in the judgment.

The referrals

31. As required under cl 17 of SEPP 2006, the Council referred the application to the Director General for comment. The reply received is provided at Folio 33 of Exhibit 2. The following extract is relevant to determination of the application:

“I note the department comments provided on 8 January 2019 in relation to a previous application for similar development on 542 Windsor Rd, Vineyard which confirmed no issues raised in regards to SEPP2006 however drew attention to concerns Roads and Maritime Services/Transport for New South Wales may have with the development.

The Department provides the following comments for the consent authority's consideration :

Precinct planning for Vineyard Stage 2 has not commenced, there is no precinct plan in place therefor a referral to the Department for comment under clause 17 (2) of is SEPP2006 is appropriate.

clause 17 requires that an assessment of consistency of the proposed development with the relevant growth centre structure plan is required prior to determining the application. It is unclear from the application whether this has been provided. It is noted that within the provisions of clause 17(2), references made to the EPA Regulation 2000 stating that a development application referred to under this clause cannot be made unless it is accompanied by an assessment of the consistency of the proposed development with the relevant Growth Centre structure plan.

The 2017 Land Use Infrastructure and Implementation Plan (LUIIP) for the North West Growth Area updates the 2006 North West Growth Centre Structure Plan. The precincts within the North West Growth Area are forecasted to contribute approximately 12% of the homes needed to meet Sydney’s demand over the next 20 years. The rezoning of Vineyard Stage 2 is part of this. The LUIIP sets the context for the North West Growth Area, new communities are to be grow in line with the provisions of infrastructure.

The LUIIP identifies Bandon Road as a key access spine to the North West Growth Area which will provide access to the wider local and regional road network. It is noted the LUIIP contains references to upgrading Bandon Road under infrastructure required to 2026.

The Department notes Transport for NSW’s submission dated 17 February 2020 which does not support the development application.”

32. The Council also referred the application to TNSW for comment. The following are relevant extracts from the comments made in a letter dated 17 February 2020 (Folio 17, Exhibit 2):

“TNSW advises that the subject property is within an area under investigation for the proposed Bandon Rd corridor between Richmond Rd and Windsor Rd, identified as part of the North West Growth Centre Road Network Strategy. The investigation has now advanced to the stage where TNSW has identified acquisition requirements for land to be zoned as SP2 – Classified Road, as shown by red colour on Attachment B.

Therefore the design is to be updated to ensure that all buildings and structures, together with any improvements integral to the future use of the site are to be outside the land required for road purposes (unlimited in height or depth , along the Windsor Road and Bandon Road boundaries.”

33. The plan provided as Attachment B is provided below.

34. It is common ground that the development as proposed could not be constructed as proposed in the event that the road widening anticipated by TNSW were to occur.

35. NSW Department of Planning, Industry and Environment (DPIE) has advised, in relation to the timing and certainty of the road works that it is essential for TNSW to secure funding prior to commencement of a concept design. No timeframe for funding can be provided at this stage. TNSW has compiled a strategic business case for Bandon Rd, however, to date no funding has been allocated to progress the design past the identification of land. In response to a specific question as to whether there is any certainty that this land will be zoned and marked for acquisition as part of the delivery of Stage 2 Vineyard, the Department advises it will take into consideration TNSW's plan for Bandon Rd as part of precinct planning for Vineyard Stage 2 when it commences. No date for the commencement of that planning was provided.

Bandon Road Corridor

36. The latest information provided to the Court in regard to planning of the Bandon Rd Corridor was issued by RMS on 1 July 2019 (Exhibit 2, Tab 33) and is entitled Bandon Rd Corridor Finalised.

37. The following are extracts from that document:

“The NSW Government is planning for the future by finalising the new Bandon Road corridor between Richmond Road, Marsden Park and Windsor Road, Vineyard. Bandon Road is part of the North West Growth Centre Road Network Strategy.

Community information

Project information

The Bandon Road corridor would connect Richmond Road, Marsden Park to Windsor Road, Vineyard.

This corridor would deliver an additional road connection between Richmond Road and Windsor Road providing alternative access across the North West Growth Area and reducing traffic congestion within Riverstone. A new Bandon Road corridor is one of a number of projects in planning that are part of the North West Growth Area Road Network Strategy. You can find a copy of the North West Growth Area Road Network Strategy map within this update.

The Bandon Road corridor has now been finalised (see Map 1 below). RMS commenced consultation with the community on the preferred Bandon Road corridor in August 2016. Finalising this corridor is the result of ongoing consultation with community members and other stakeholders over several years. This finalised corridor has been sent to NSW Department of Planning, Industry and Environment (DPIE) to include in the precinct plans for Marsden Park North, Riverstone West, Riverstone and Vineyard Precincts.

Map 1

By creating a new connection between Windsor Road and Richmond Road via Vineyard Station, Bandon Road will create an alternate route to using the Riverstone town centre.

Bandon Road will connect the new planned precincts in the North West Growth Area to Vineyard station along with Richmond Road and Windsor Road.

Features of the new Bandon Road

• A new four lane divided road including a central median to allow for future widening

• Flood plain storage excavation areas to compensate for embankments required for Bandon Road

• An upgrade and realignment of the existing flood evacuation route on Wallace Road.

Work completed to date

Roads and Maritime has finalised the Bandon Road corridor. This means the corridor will be reserved for a road to be built at some point in the future.

We have also identified where we will need space around the corridor for floodwaters and asked the NSW DPIE to include these areas in their precinct plans.

Further development of the Bandon Road corridor is subject to funding availability. Currently funding is not allocated for design and construction work.

Community and stakeholder input has been a key component in developing the Bandon Road corridor.

What are the next steps?

Subject to funding availability, we will carry out concept design and environmental assessment in the future.”

38. The document identifies that the reservation of the preferred corridor is where the project is currently as far as the planning process has advanced.

39. The plan provided by TNSW to the Council has been interposed on a plan prepared by the traffic experts to show the extent of affectation in the event that the land was acquired. That plan is show below.

The contentions

40. The contentions in the case are detailed in the Council’s Amended Statement of Facts and Contentions filed on 28 April 2021 (Exhibit 1). Mr Seton, for the Council, advised the Court that as the result of the applicant accepting all of the proposed conditions of consent with the exception of draft conditions 1, 16 and 18, the respondent would only be making submissions on those conditions. The conditions relate to the RFS conditions for the APZ on the adjoining land.

41. The Council is satisfied, absent the comments of TNSW and DPIE in relation to the widening of Bandon Rd, that the design of the childcare centre as proposed is satisfactory and there would be no reason, other than if the Court was not satisfied of the matters for consideration under SEPP 2006, that consent should not be granted.

42. The Council would maintain a neutral position on those contentions that relate to the views of the DPlE and TNSW in relation to the widening of Bandon Rd.

43. Accordingly, the contentions that remain are contentions 1 and 3 which have regard to whether or not consent should be granted as the proposed development will not provide suitable access arrangements to this site as required pursuant to cl 6.7 of the LEP following acquisition of land by TNSW, and whether adequate parking would remain after acquisition of the land required. Also, whether the proposed development is inconsistent with the proposed future construction of the Brandon Rd corridor and whether the consent authority can be satisfied of the matters set out in cl 101(2) of SEPP Infrastructure.

44. Contention 2 related to the failure of the RFS to issue the BSA however this has subsequently been issued and the Council seeks to impose a condition of consent that requires registration of an easement over the adjoining land which is required under the terms of the BSA to be maintained as an APZ. The applicant objects to this provision and submits that a licence that is in place (Tab H, Exhibit B) is sufficient. Alternate conditions 1, 16 and 18 are proffered by the parties in relation to this matter as follows:

1. Integrated Development - General Terms of Approval

Applicant’s version

The development is to be carried out in accordance with conditions 16 and 18 below to reflect the general terms of approval issued by the Rural Fire Service dated 2 June 2021, as modified by this consent.

Respondent’s version

The general terms of approval from the NSW Rural Fire Service (Reference DA20200119000231, dated 2 June 2021) incorporated at Annexure “A” and outlined further below form part of this consent.

1. NSW Rural Fire Service Requirements

Respondent’s version

Plans and supporting documentation must be submitted to the certifier prior to issue of a Construction Certificate demonstrating that the development can comply with the general terms of approval from the NSW Rural Fire Service at Annexure “A” to this consent subject to the other conditions of this consent.

Applicant’s version

Plans and supporting documentation must be submitted to the certifier prior to the issue of a Construction Certificate demonstrating that the development in accordance with condition 18 below, subject to other conditions of this consent.

1. Asset Protection Zone

Respondent’s version

An Asset Protection Zone (APZ) is to be provided on the adjoining land legally described as Lot 4 in DP 220236 as depicted on the plan referenced in Condition 1 as “Proposed Area to be Maintained Around: Lot: 60, DP: 1070588 542 Windsor Road (Cnr Bandon Road), Vineyard, 2765”.

Prior to the issue of a Construction Certificate, an easement allowing the maintenance of the proposed APZ on the adjoining land is to be created over Lot 4 in DP 220236 in favour of the site (Lot 60 in DP 1070588) in accordance with the requirements of section 3.3(b) of Planning for Bushfire Protection 2006 and the NSW Rural Fire Service’s document “Community Resilience Practice Notes 1/12: Establishment of Easements for the Purpose of Asset Protection Zones”.

Hawkesbury City Council is to be nominated as the authority having the power to release, vary or modify the easement.

The entirety of the site and the APZ on the adjoining land shall be managed by the person with the benefit of this consent as an Inner Protection Area in perpetuity as outlined in Appendix 2 of Planning for Bushfire Protection 2006 and the NSW Rural Fire Service’s document Standards for asset protection zones.

To the extent of any inconsistency, this condition prevails over Conditions 1 and 2 in the general terms of approval of the NSW Rural Fire Service at Annexure “A”.

Applicant’s version

The proponent must maintain a license or other right of the adjoining land (Lot 4 in DP 220236) in order to comply with (2) below.

2. The entire property (Lot 60 DP 1070588) and proposed APZ on the adjoining land (Lot 4 DP 220236) shall be managed as an Inner Protection Area (IPA) in perpetuity as outlined within Appendix 2 of Planning for Bushfire Protection 2006 and the NSW Rural Fire Service’s document Standards for asset protection zones.

Construction Standards

The intent of measures is that buildings are designed and constructed to withstand the potential impacts of bush fire attack. To achieve this, the following conditions shall apply:

3. New construction shall comply with Sections 3 and 5 (BAL 12.5) Australian Standard AS3959-2009 Construction of buildings in bush fire-prone areas of NASH Standard (1.7.14 updated) National Standard Steel Framed Construction in Bushfire Areas – 2014 as appropriate, and section A3.7 Addendum Appendix 3 of Planning for Bush Fire Protection 2006.

4. Any new Class 10 structures as defined per the National Construction Code shall be non-combustible or hardwood.

Water and Utility Services

The intent of measures is to minimise the risk of bush fire attack and provide protection for emergency services personnel, residents and others assisting fire fighting activities. To achieve this, the following conditions shall apply:

5. The provision of water, electricity and gas shall comply with section 4.2.7 of Planning for Bush Fire Protection 2006.

Landscaping

The intent of measures is for landscaping. To achieve this, the following conditions shall apply:

6. Landscaping of the site, and any new landscaping within the proposed APZ on the adjoining property, shall comply with the principles of Appendix 5 of Planning for Bushfire Protection 2006.

Emergency and Evacuation Planning

The intent of measures is to provide suitable emergency and evacuation (and relocation) arrangements for occupants of special fire protection purpose developments. To achieve this, the following conditions shall apply:

7. A Bush Fire Emergency Management and Evacuation Plan shall be prepared consistently with NSW Rural Fire Service’s document: A Guide to Development a Bush Fire Emergency Management and Evacuation Plan.”

45. Contention 4 is resolved through the applicant preparing amended plans that setback the acoustic wall on the northeast side of the outdoor play area in line with the remaining landscaped setback to Windsor Rd. Appropriate consent conditions have been agreed which ensure adequate landscape treatment and compliance with the provisions of SEPPCCF in relation to outdoor play areas.

46. Contention 5 was resolved through the deletion of that part of the application that related to advertising signage.

47. Contention 6 remains however is not pressed by the Council. It is a matter for the Court to determine whether the proposed development will hinder the orderly and coordinated provision of planned infrastructure in the Vineyard precinct within the NWGC.

The evidence

48. Expert reports were prepared by:

49. The traffic experts agree that, other than the issue of the road widening, the development as designed and subject to the agreed consent conditions, is acceptable. They also agree that the site would not be capable of continuing operation should TNSW acquire the land earmarked for road widening along Bandon and Windsor Roads. The extent of the road widening is shown on a plan included in their Joint Report, Exhibit 4 and shown above at [39].

50. The Council proposes and the applicant accepts the imposition of proposed condition 3 as follows:

“3. Cessation of Development Authorised by this Development Consent

The use of the site and building that is authorised by this development consent must cease if any part of the land to which the consent relates is acquired for the purpose of widening the adjoining public road.”

51. The traffic experts agree that the site as proposed could not operate in a satisfactory or safe manner if the land identified for road widening was acquired due to the issues associated with queueing and lack of onsite parking. They agree that the location of access to the site is appropriate and is likely to be in a similar location, that is, as far to the south west of the signalised intersection as possible, in the event that further land is acquired by TNSW to widen Bandon Rd.

52. The traffic experts were not required for cross examination.

53. The planning experts agree, subject to the relocation of the acoustic fence at the north eastern side of the outdoor play area, that the landscaping contention is resolved with consent conditions agreed.

54. Mr Pillon says that, because of the future acquisition, the provision of cl 6.7(e) of the LEP are not met as suitable road access would not be available.

55. The planning experts agree that a planning report, dated 25 January 2021, was prepared and submitted to the Council as part of the additional information relating to the development application. Such report addresses the requirements of cl 275 of the EPA Regulation. Mr Kennan says that the conclusions of that report demonstrate that the proposed development would be consistent with the relevant growth centre structure plan. Mr Pillon disagrees and says that because the proposed car parking areas, waste storage areas, outdoor unencumbered areas, building, access and landscape areas are located on land identified to be acquired for future road infrastructure the application does not account for the impacts of planned infrastructure and would put further pressure on the potential childcare places available in the locality where it can be avoided. He concludes the proposal is likely to hinder the orderly and coordinated provision of planned infrastructure and the development should be redesigned in order to take into account the future strategy for the growth centre. He also notes that the childcare centre diagonally opposite the site is subject to similar provisions with regard to road widening and is concerned of the cumulative impact on childcare places.

Conclusion and findings

56. Absent the issue of road widening along the Windsor Rd and Bandon Rd frontages of the site it is common ground that the amended plans, filed after the conclusion of the hearing, in response to the agreed position of the planning experts and which increase the landscaped setback to Windsor Rd and relocate the proposed acoustic wall to that frontage, provide for a form of development that is appropriate for this site.

57. Having regard to the evidence and the relevant planning controls, apart from the provisions of SEPP 2006, I would accept this decision and consent could be granted. I am satisfied that the safety, efficiency and ongoing operation of the classified road (Windsor Rd) will not be adversely affected by the development as a result of the design of the vehicular access to the land or the nature, volume or frequency of vehicles using the classified road to gain access to the land.

58. However, for consent to be granted, the provisions of clause 16 must be considered and the comments received from the Director General in response to the referral under the terms of clause 17 of SEPP 2006 must be taken into consideration.

59. Mr Seton took a neutral position in regard to these matters, saying it is a matter for the Court. Mr Eastman, for the applicant, submits that there is no certainty that the area identified in the plans provided by TNSW will actually be implemented in the absence of any final design plans. He also submits that the earliest this will occur is 2026 and that it would be unreasonable to sterilise his client’s site until the design was finalised. Whilst he accepts, at the time a Structure Plan is prepared, the road widening would be incorporated into a SP2 Infrastructure Zone, he submits that no one knows if and when this will occur or the extent of affectation.

60. Mr Eastman also submits that no action has been taken since 2019 to procure the land and that, pursuant to the provisions of s 25 of the Roads Act 1993, TNSW could have made a Road Widening Order. The effect of such Order would be, under the terms of s 26, to prevent the construction, replacement or repair of a building or work on land to which a road widening order applies.

61. He submits that without either the advancement of the Structure Plan/ LUIIP or the making of a Roads Order, there is no statutory power to hinder the development of the land and to refuse consent does not provide for the orderly or economic use of the land.

62. Having regard to those matters specified in cl 16 of SEPP 2006, I consider that only subcll 1(a), (b), (e), and (f) are relevant to the proposed development.

63. Will the proposed development preclude the future urban and employment development land use is identified in the relevant growth centre structure plan?

64. The LUIIP identifies the significant road upgrading of Bandon Rd and seeks to maximise land use opportunities adjacent to such major roads. Other than comments in regard to the upgrading works, the plan does not provide any further guidance on the likely future use of the site. A childcare centre is a use that is likely to be compatible with urban and employment uses and whilst neither have been identified as applying to the site, I consider the development would not preclude future urban or employment land uses.

65. Will the extent of investment in and the operational and economic life of the proposed development result in affective alienation of the land from those future land uses?

66. The development application form submitted with the application indicates the estimated cost of the proposed development at $2.14 million. In the event that consent was granted in accordance with the agreed conditions of consent, condition 3 would require cessation of the use if the land identified by TNSW was acquired. Accordingly, there would be some impact on the operational and economic life of the proposed development however, I do not consider it would result in the effective alienation of the land from those future land uses that may occur. That is because it would be possible to consolidate the proposed building with land adjoining the site to address the shortfall that would arise in relation to car parking spaces and service areas. That is particularly the case as adjoining land is required for APZ purposes in association with the proposal.

56. Whilst the provisions of condition 3 would continue to apply, the applicant would be able to either seek modification of that development consent or lodge a new development application to facilitate such occurrence thereby ensuring the continued operation of the centre. Therefore, I consider that in the event that the road widening does proceed as proposed by TNSW that there will not necessarily be alienation of land in the event consent is granted. Other opportunities may exist.

57. Is the proposed development consistent with the precinct planning strategies and principles set out in any publicly exhibited document that is relevant to the development?

58. Apart from the LUIIP, there are no publicly exhibited documents and therefore, in view of the lack of detail and certainty included in that plan, I do not find that the proposal would be inconsistent with the precinct planning strategies. The traffic experts agree that the access proposed to the site is likely to be the same point of access in the event of the road widening taking place and accordingly the objectives of the plan could still be achieved.

59. Will the proposed development hinder the orderly and coordinated provision of infrastructure that is planned for the growth centre?

60. It is apparent that Bandon Rd will be upgraded in some form however, until such time as funding is provided to advance the design beyond concept stage, it is not possible to ensure that the land identified by TNSW will definitely be required for that upgrade works and, as stated above, in the event that it is required, it may be possible for the childcare centre to continue operation through acquisition of additional lands.

61. For these reasons, I do not consider the provisions of cl 16 of SCPP 2006 prevent the grant of consent. I maintain a similar view in regard to the comments made by the DPIE and TNSW.

62. Whilst I accept that the planning process is a complicated and difficult one, I am not of the view that there is either certainty or constraints that would prevent the grant of consent. Ultimately, the issue will be decided once final design has been completed and the Vineyard Stage 2 precinct is released. Acquisition of the land and the effect of that acquisition will become a matter between the applicant and the acquisition authority with the ability to consider alternate arrangements for the retention of the childcare centre.

63. Having determined that the provisions of SEPP 2006 do not preclude the grant of consent and accepting that the design of the development as proposed is consistent with all of the relevant provisions of the LEP, the only matter that remains is whether or not the licence obtained by the applicant over the adjoining land for APZ purposes is sufficient or whether the alternate conditions imposed by the Council to address the requirements of the RFS should be imposed.

64. In this regard I prefer the submission made by Mr Seton and consider that the licence does not provide an adequate guarantee to ensure that it is legally binding to all future owners of the land. It does not run with the land or bind the parties in any manner that can be enforced legally. Further it does but not bind a mortgagee, and if the property were to be sold under mortgagee in possession circumstances, it would not bind any future purchases of the site. The current licence does not provide for the maintenance of the land as an APZ to accord with the requirements of an inner protection area as defined in the Planning for Bushfire Protection documents published by the RFS and accordingly, I find that the conditions proposed by the Council should apply.

65. The orders of the Court are:

1. The appeal is upheld.

2. Development application DA0540/19 for demolition of existing structures, tree removal and the construction of a one storey centre based childcare facility accommodating a total of 115 children with 46 at grade parking spaces at Lot 60 DP 1070588, No 542 Windsor Rd, Vineyard is approved subject to the conditions in Annexure A.

3. The exhibits, other than exhibits A, B, D and 1, are returned.

…………………….

Sue Morris

Acting Commissioner of the Court

Annexure A (715280, pdf)

Plans (8997179, pdf)

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Decision last updated: 21 July 2021