Mirvac Homes v Baulkham Hills Shire Council

[2004] NSWLEC 460

Land and Environment Court

of New South Wales

CITATION:	Mirvac Homes v Baulkham Hills Shire Council [2004] NSWLEC 460 revised - 10/09/2004
PARTIES:	APPLICANT: Mirvac Homes (NSW) Pty Ltd RESPONDENT: Baulkham Hills Shire Council
FILE NUMBER(S):	10397 of 2004
CORAM:	Roseth SC
KEY ISSUES:	Development Application - Subdivision :- appeal against conditions minimum allotment size
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	19/08/2004
DATE OF JUDGMENT:	08/31/2004
LEGAL REPRESENTATIVES:	Mr J Bingham, solicitor Deacons Mr C Drury, solicitor Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

31 August 2004

10397 of 2004 Mirvac Homes (NSW) Pty Ltd v Baulkham Hills Shire Council

JUDGMENT

1 SENIOR COMMISSIONER: This is an appeal against conditions of a development consent, issued by Baulkham Hills Shire Council (the council) for an environmentally integrated housing project containing 64 dwellings on lot 1001 DP 1046728 and part of lot 1002 DP 1046728, Old Castle Hill Road, Castle Hill.

2 The appeal is against Deferred Commencement Conditions A1(i) and A1(ii), and Conditions 23 and 38.

The site and proposal

3 The site is irregular in shape, bordered by Old Castle Hill Road to the south and Heritage Park Drive to the west. To the north the site adjoins the Castle Hill Heritage Park.

4 The applicant proposes to erect a housing project containing 64 detached dwellings on allotments varying in size from 406 to 910m2. The proposed lots are to be created under the Community Land Management Act. The project is divided into three stages, ie

• Stage 1 will comprise 25 dwellings
• Stage 2 will comprise 17 dwellings
• Stage 3 will comprise 22 dwellings

Relevant planning instruments

5 The Baulkham Hills Local Environmental Plan 1991 (the LEP) zones part of the site Residential 2(d) (Protected) and part Rural 1(a). Environmentally integrated housing is a permissible use in the zone. Draft Local Environmental Plan 200X (the draft LEP) does not propose any relevant changes from the LEP.

6 Development Control Plan 25 – Land adjoining Heritage Park (DCP 25) includes a plan that identifies 700m2 as the minimum allotment size for the majority of the site. The exception is a small area at the southeast extremity of the site, where the minimum allotment size is 1000m2.

The issues

7 The applicant filed a Statement of Issues containing ten issues, of which six were resolved at a case management meeting on 6 July 2004. All but one of the remaining issues was resolved during the hearing. The unresolved issue related to three proposed allotment of around 700m2 in the area in which DCP 25 requires 1000m2 minimum allotment size. The issue relates to Deferred Commencement Condition A1(i).

Condition A1(i)

8 The first part of this condition requires ten indented parking spaces on the internal roads of Stages 2 and 3. Mr T Rogers, who is a traffic engineer retained by the applicant, and Mr A King, the council’s traffic engineer, came to an agreement in the witness box on a cross section of internal road that allowed the parking of cars on one side with two-way traffic passing.

9 The second part of the condition requires an amalgamation and redistribution of lots 2, 3, 4 and 5 in Stage 1 into three lots, so that the lots reach 1000m2 in area. The council proposed a layout, which would have made unviable another allotment, lot 25. The Court suggested creating two lots out of proposed lots 2, 3 and 4; a solution that does not affect lot 25. Mr J Swan, a council planner told the Court that the solution satisfied council. He said that DCP 25 requires the higher minimum allotment size for this small part of the subdivision in order to match development on the other side of Old Castle Hill Road. Another purpose was to compensate for the steepness of the land. Mr G Smith, a town planner retained by the applicant, said that the 1000m2 minimum allotment size served no purpose, as the difference could not be perceived. A wider allotment would only invite a larger house to be built on it.

10 In my opinion, Mr Smith’s last statement is not correct. Since this application is for integrated development with the houses already designed at subdivision stage, the applicant has full control over the choice of house on the large lots. It can choose not to place large houses on them.

11 I accept that the requirement of DCP 25 serves a planning purpose. Compliance with the DCP would cause the loss of one allotment out of 64. In view of the fact that many other allotments do not comply with the DCP’s minimum of 700m2 (about which the council does not raise a concern), the proposal should comply with the 1000m2 minimum that applies to a small portion of the site. In addition, there should be a requirement of a minimum of 3m-side setback for the two large allotments, to avoid the possibility that houses are built near the boundary, thus not achieving the open character normally associated with large sites.

Condition A1(ii)

12 This condition requires a geotechnical assessment of the site. The Court appointed expert, Dr F MacGregor and the applicant’s expert, Mr R Jeffery, agreed on a condition to replace Condition A1(ii). Condition 24 relates to the monitoring of the landslip to the north of the site. Despite the agreement between the experts, there remained a dispute between the parties on the wording of the condition. The council wanted to include two requirements that, in my opinion, are inconsistent. The first requirement was that the obligation to monitor the landslip should remain with the applicant (ie Mirvac) even after the land is sold. The second requirement was that the obligation should be transferred to the future owners. I have included the first requirement but not the second. I accept that there is a risk that the applicant cannot carry out its obligation forever because it may go bankrupt, but the risk is small and no consent can be entirely risk-free.

Condition 23

13 This condition requires the applicant to construct a roundabout at the intersection of Old Castle Hill Road and First Farm Drive. Mr King and Mr Rogers agreed that a roundabout is desirable to reduce speeding traffic. They also agreed that the proposed subdivision contributes about 10% to the traffic on Old Castle Hill Road. While they were in the witness box giving concurrent evidence, Mr King and Mr Rogers agreed that a contribution of 10% of the estimated cost of a roundabout would be a fair requirement.

Condition 38

14 The parties agreed on a replacement condition for this condition.

Orders
1. The appeal is partly upheld.
2. Development application No 1915/2004/HC for 64 environmentally integrated housing lots, one Community Association lot and a minor boundary adjustment to incorporate Area Q into the site for private recreation on lot 1001 DP 1046728 Old Castle Hill Road, Castle Hill, is determined by the granting of consent subject to the conditions in Annexure A.
3. The exhibits are returned.
_________________
Dr John Roseth
Senior Commissioner