Planning Direction Pty Ltd v Palerang Council - [2009] NSWLEC 1219

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Planning Direction Pty Ltd v Palerang Council [2009] NSWLEC 1219

PARTIES:
APPLICANT
Planning Direction Pty Ltd
RESPONDENT
Palerang Council

FILE NUMBER(S): 11019 of 2008

CORAM: Bly C

KEY ISSUES: DEVELOPMENT APPLICATION :- subdivision of land, character and density, open space and playground facilities,conditions of consent, road works.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Yarrolumla Local Environmental Plan 2002
Yarrolumla Development Control Plan - 2V Village Zone

DATES OF HEARING: 15 June 2009, 16 June 2009 and 24 August 2009; (Findings 3 July 2009)

DATE OF JUDGMENT:
26 August 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Robson (barrister)
SOLICITOR
Harris & Company Solicitors
RESPONDENT
Mr A Bradbury (solicitor)
SOLICITOR
Williams Love & Nicol Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

26 August 2009 (Findings 3 July 2009)

11019 of 2008 Planning Direction Pty Ltd v Palerang Council
JUDGMENT

Introduction

1 This appeal relates to a three-stage development application for the demolition of number of existing buildings and the subdivision of land at 70-74 Trucking Yard Lane, in the village of Bungendore about 25 km to the east of Queanbeyan. The triangular shaped site comprises lots 19, 20, 21 and 22 in DP 1062506 and is located within and at the southern relatively narrow projection of the Bungendore Village. It is bounded by Hoskinstown Road, Trucking Yard Lane and the Goulburn-Bombala Rail Line. Water and sewerage services are available for connection to the site.

2 The existing subdivision pattern in the village contains a range of average lot sizes within what can be described as sub-precincts (reflecting the different coloured areas on Exhibit 1) that have average lot sizes ranging between 1,200 sq m and 15,000 sq m.

3 The proposed subdivision is to divide the approximately 8.75 ha site into 82 residential allotments that vary in size between approximately 700 sq m and 1,720 sq m with an average lot size of approximately 830 sq m. The larger lots (around 1,000 sq m) are generally located along the site's frontages to Hoskinstown Road and Trucking Yard Lane

Planning controls

4 The site is included in Zone No 2 - Village Zone pursuant to the provisions of the Yarrolumla Local Environmental Plan 2002. Clause 16(1) of the LEP requires that before granting development consent the consent authority must be satisfied that the carrying out of the development is consistent with the objectives of both the LEP and the applicable zone.

5 The objectives of the LEP are divided into two categories: "rural land" and "urban land". The objectives for rural land include principles of ecologically sustainable development and the management development and conservation of agricultural and horticultural land and do not apply to land in the Village Zone. Instead, the objectives for urban land are applicable:

6 The objectives of the Village Zone are:

7 Lands adjoining the site to the west south and east are included in Zone No 1(a) - General Rural Zone that has objectives including the protection of agricultural and rural land including viable rural holdings. The minimum lot size in this zone is 8 ha with a minimum average lot size of 80 ha. Other zones in the LEP of some relevance to this application are Zone No 1(d) - Rural Residential Zone and Zone No 1(g) - Rural Small Holdings Zone. The minimum lot sizes for the Rural Residential Zone is 8 ha and for the Rural Small Holdings Zone is 1 ha.

8 In the Village Zone subdivision is, subject to cl 22 of the LEP, permissible with development consent. Clause 22 (1) relevantly provides that in the Village Zone, lots created in a subdivision must have "an area of 450 sq m or more". Section 10.2 of the Yarrolumla Development Control Plan - 2V Village Zone also requires that new lots have a minimum size of 450 sq m with a minimum frontage of 20 m. Whilst several lots do not meet the minimum frontage requirement, they all comfortably meet the requirement of 450 sq m or more.

9 Also, clause 16(2)(f) of the LEP requires the consent authority to consider the future expansion of urban areas in the locality and the impact on any existing village. Other than possible impacts on the character of Bungendore these matters are not said to be of concern. However, central to the concerns of the council is cl 21(a) of the LEP that, in relation to the subdivision of land, relevantly provides that the consent authority must not grant consent unless it is satisfied:

"That the subdivision is consistent with the character of the area in which it is proposed having regard to existing density, landscape and nearby development".

10 The DCP contains a tier of controls in addition to those in the LEP and divides the Village Zone into six precincts (Exhibit A). The site is located in Precinct 2 - Residential that extends from the site for the full width of the village to Turallo Creek (excluding the relatively small Precinct 1-Commercial, Precinct 3 - Light Industrial and Precinct 4 - Special Uses). It is to be noted that Precinct 1 - Commercial is located in the midst of Precinct 2. Medium density development is indicated for Precinct 2 adjacent to Precinct 1.

11 The relevantly applicable objectives of Precinct 2 are to preserve and enhance the residential amenity and character of the precinct; and to provide for a range of housing types. Apart from these objectives there are no character statements for the precinct in the DCP.

12 The application was advertised and the council received 14 submissions objecting to the subdivision proposal. Matters of concern identified in the objections include:

The proposed subdivision would be an overdevelopment of the site and at the density proposed would be detrimental to the character of the village of Bungendore.
It would lack residential amenity, would have insufficient open space and is too far away from existing village facilities.
The subdivision would adversely affect the existing water supply to the village.
It would adversely affect the rural landscape of this locality.
The site is subject to flooding.

13 When the hearing began on-site I heard from three resident objectors from Trucking Yard Lane and nearby Ellenden Street. They elaborated upon the above-mentioned concerns especially in relation to character, services, traffic and loss of trees.

14 The appeal was lodged on the basis of council's deemed refusal of the development application.

15 The statement of facts and contentions identifies the following contentions:

16 As the matter progressed, contentions 1 and 3 became less important with contention 2 and cl 21(a) of the LEP becoming the central determinative issue in the case.

Expert evidence

17 In addition to the materials contained in council's bundle of documents and the applicant's statement of environmental effects I was provided with the combined town planning reports of Miss S. Francis (respondent) and Mr D. Jones (applicant). Miss Francis and Mr Jones also gave concurrent oral evidence during the hearing.

Previous approvals

18 There are two consents for the subdivision of the site. One of these subdivisions (49 lots - minimum size approx. 1000 sq m) was considered in detail in a report prepared by a council town planner (Mr M Glen) who recommended that the application should be conditionally approved. This report essentially dealt with what is now the central issue in this case and concluded that, inter alia, that development complies with the requirements of clause 21 of the LEP. Mr Jones quotes and adopts Mr Glen’s report extensively.

Consistent with the character of the area?

19 As indicated above the principal issue in this case is whether the proposed subdivision would be inconsistent with the existing character of Bungendore, particularly considering the requirements of cl 21(a) of the LEP that requires that the consent authority be satisfied as to the consistency of the subdivision "with the character of the area"

20 To answer the question of whether the "consistent with" test is satisfied by the proposal the first step involves consideration of the character of the area taking into account "density, landscape and nearby development". To this end it is necessary to decide what is the relevant "area" to which the subdivision is associated.

21 According to Miss Francis the relevant area comprises the lands in the General Rural Zone to the east, south and west of the site together with the lands to the north between Trucking Yard Lane and King Street.

22 Mr Jones disagreed with Miss Francis arguing that the relevant area occupied a more extensive area within the village and did not include the surrounding lands in the General Rural Zone. Instead the relevant area is all of Precinct No 2 in the DCP. Precinct 2 not only includes the site and the lands to the north as far as King Street but also beyond that to the north and northeast (excluding the town centre and industrial areas) as far as Turallo Creek.

23 Mr Jones also refers here to Mr Glen’s report:

“The land to the east, west and south of the subject property is zoned Rural with the scale and density of development on this land reflecting that zone. The rural land cannot be viewed in the same category as the subject property, in that the subject property is zoned Village. There are clear differences between the densities that exist between the two zones, but this does not mean that the proposed development is not compliant to the requirements of clause 21."

24 In my opinion the relevant "area" in which the subdivision is proposed is, as suggested by Mr Jones, Precinct No 2 and should not include lands in the Rural Zone, that are outside the Village Zone and are presently utilised for farming (grazing) purposes. This is firstly because the surrounding farmlands are fundamentally different in terms of their character, lot sizes, land use and their Rural Zoning by comparison with the urban character and land use of lands within the Village Zone. Also, the inclusion of the surrounding farmlands within the "area" for the purposes of clause 21(a) of the LEP would, I accept, have unintended and unreasonably constraining consequences upon opportunities for development in the Village Zone generally. This does not however mean that in dealing with the merits of the proposal, these farmlands cannot be taken into account.

25 Turning now to the question of character, Mr Jones quotes Mr Glen’s report that suggests:

"The logical way to assess the character of the village is to look at the whole of the village, taking into consideration the maximum densities permitted under the LEP."

26 In essence this is correct but in my opinion this should be constrained to Precinct No. 2. As noted above there are a number of identified sub-precincts in Precinct No. 2 that describe the range of average lot sizes and the existing subdivision pattern. The sub-precinct immediately to the north of Trucking Yard Lane is mainly utilised for residential purposes with single dwellings on large lots having areas ranging between 4000 sq m and 20,000 sq m with an average area of about 13,000 sq m. The areas north of King Street in Precinct No 2 are also developed mainly for residential purposes but on lots having approximate average areas ranging between 1,500 sq m and 2,000 sq m. More particularly there is a considerable range of lot sizes many having areas of more than 3,000 sq m with some lots as small as 650 sq m. For the purposes of this application these are relevant aspects of character that can be taken into account for the purposes of cl 21(a) of the LEP.

27 In dealing with the question of "consistent with" test, Miss Francis emphasised that the 450 sq m development standard is a minimum and is not indicative of the desired future character of the village. This is where clause 21 must be utilised as a means of identifying locations where "appropriate" subdivisions can occur that would be consistent with the character of existing and nearby development. Also, on the basis of the fact that the existing lot sizes increase with distance away from the village centre, the proposal is contrary to this characteristic of the village. Also, by comparison with the sub-precinct immediately to the north of Trucking Yard Lane, the proposed subdivision having average lot sizes of 830 sq m cannot be considered to be consistent with the character of the area.

28 As already indicated, Mr Jones did not agree with Miss Francis as to her emphasis on the sub-precinct immediately to the north of Trucking Yard Lane explaining that for the purposes of clause 21 lot sizes and the subdivision pattern of the whole of the precinct needs to be taken into account. He said that Precinct No 2 is predominantly low-density considering that the DCP provides by comparison, for medium density development in and around the village centre.

29 As for the sub-precinct between King Street and Trucking Yard Lane he explained that this “more pronounced low-density development” exists as a result of the (then) unavailability of water and sewerage rather than a deliberate strategic planning objective/outcome to provide particularly larger allotments. In this context he notes the aim of DCP 2009 to "establish criteria to be applied which will determine the allotment density achievable in any area with regard to the subdivision of land" and concludes that:

"Had the intent been that the southern area of Precinct No 2 have a different density character to the rest of the precinct, then such provisions would have easily (been) included in DCP 2009 that specifically considered residential densities in the precinct (in a similar way to which the higher density is identified for the town centre area). No such provision was inserted into DCP 2009."

30 According to Mr Glen’s report "the character and density of the village south of King Street is set to change, to development of increased residential density".

31 On this basis Mr Jones also disagreed with Miss Francis' approach in suggesting that the proposed subdivision would be contrary to the existing character indicated by the increase in lot sizes with distance away from the village centre. In this regard I also note that (leaving aside the rural-residential subdivision (formerly Zone No 1(d) - Rural Residential) in the northwest corner of the Village Zone) the subdivision sub-precincts to the north and east of the village centre have average lot sizes of 1,200 sq m and 1,500 sq m respectively, that are less than the 2000 sq m average lot sizes in and around the town centre.

32 Accepting as I do the arguments presented by Mr Jones, I am satisfied that this sub-precinct should attract little weight as a basis for determining existing density and development for the purposes of cl 21(a) of the LEP.

33 More generally, Mr Jones pointed out that visually the proposed subdivision would not be significantly different to the approved and commenced subdivision on the subject land. In this context and relation to landscape I note that the applicant has now agreed to retain the significant row of trees along Trucking Yard Lane and provide an increased landscaped setback along Hoskinstown Road.

34 In the absence of any further constraints on density Mr Jones argues that if a subdivision of land meets the 450 sq m minimum lot size it must be low-density. Hence the proposal is low-density and therefore consistent with the expectations of the DCP. Moreover by providing a diversity of low-density residential allotments ranging in area from 700 sq m to 1,721 sq m this is consistent with the applicable planning controls and is a good town-planning outcome. There is no relevantly applicable density control in the LEP or the recently adopted DCP.

35 In my opinion cl 21(a) of the LEP should not be interpreted in isolation of the other planning controls in the LEP. It can also be interpreted in the light of the DCP bearing in mind that development control plans can make more detailed provisions than are contained in a local environmental plan. These controls relevantly include the lot size requirement of “450 sq m or more” and objectives that include: flexibility in residential living styles and a range of residential accommodation; increased urban amenity and urban facilities; and efficient use of existing utility services (notwithstanding that some residents were concerned - but not the council - as to the water supply capacity in the village).

36 Plainly the proposed subdivision significantly exceeds the 450 sq m minimum lot size and I see no material inconsistency between the proposal and the aims of the LEP and the Village Zone. It is also relevant to note that the LEP provides no breakdown into density or character areas for the Village Zone. That is left to the DCP that, as described above, divides the village into six precincts. Precinct 2 contains the site and despite the fact that there exist theoretical sub-precincts with different average lot sizes it does not provide for any such delineation. Similarly the Village Zone is not a Rural Residential Zone or a Rural Small Holdings Zone that have different (higher) minimum subdivision sizesm again pointing to the direct relevance of the 450 sq m standard. It is also to be noted here that there is no draft local environmental plan to amend the present planning controls and the council adopted the applicable development control plan in May 2009. It is not for the court to speculate whether these controls are appropriate or otherwise and can only interpret and apply them.

37 Whilst the proposed subdivision will add another dimension to the Village Zone by providing different sub-precinct with average lot sizes not otherwise found in the village I am satisfied that it will be consistent with the character of the Precinct No 2 within the Village Zone. In this regard I accept that the term "consistent" does not require the subdivision to be "the same as" or even "much the same as" other subdivisions in the village but instead requires reasonable compatibility that I conclude has been achieved.

38 I therefore find that for the purposes of cl 21(a) of the LEP the proposed subdivision is consistent with the character of the area in which it is proposed.

Other matters

39 As for the remaining contentions I am satisfied that the proposed reduced frontage and hatchet shaped lots do not raise any matters of determinative concern. I am also satisfied that with the provision of additional setbacks and landscaping along Hoskinstown Road and the retention of existing trees in Trucking Yard Lane the presentation of the development to the north and west will be satisfactory. Here I recognize that the proposed fence along the Hoskinstown Road boundary could be unattractive by comparison with an open rural style fence but with appropriate landscaping this impact will be mitigated. More generally, I am satisfied that the proposal does not represent an overdevelopment of the site.

40 As for the provision for open space and playground facilities for the future residents, the experts agreed that provided the appropriate contribution pursuant to s 94 of the Environmental Planning and Assessment Act 1979 is required by condition of consent the provision of public open space does not warrant refusal of the application. They did not however agree in relation to the provision of open space on site rather than the making of a financial contribution.

41 Miss Francis contended that should the development application be approved it is paramount that communal open space be provided on site to satisfy the recreational needs of the increased population. Whilst Mr Jones did not agree, arguing that the applicant should only be required to make a monetary contribution in accordance with the council's Contributions Plan, I agree with Miss Francis. Despite this it would not be fair to require that the applicant make a monetary contribution as well as providing both land and works. Hence I have decided that if the council so requires the applicant should, in lieu of a monetary contribution, dedicate and develop an appropriate area of land for public open space purposes. Such a park needs to be sufficiently sized and appropriately located and not unreasonably constrained by the present subdivision configuration. This matter can be finalised in conjunction with the settlement of the conditions of consent.

Conditions

42 On 3 July 2009 I provided to the parties the above reasons and indicated that I had decided that the appeal should be upheld and development consent granted. I did not make orders because the conditions of consent have not yet been finalised. The parties have since considered appropriate conditions and have now provided a set of conditions together with amended plans. These conditions are agreed except for condition 18 that deals with a monetary contribution for the upgrading of the nearby Trucking Yard Lane intersection with Kings Highway.

43 Council asks that condition 18 as follows be imposed:

18. The intersection of the Kings Highway and Trucking Yard Lane is to be upgraded to an AUR/BAL (as specified in the RTA Design Guide) as recommended by the Local Traffic Committee.

44 In the alternative council asks that the following be imposed:

18. Payment of a contribution pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 towards the provision of an upgraded AUR/BAL intersection between Trucking Yard Land and the Kings Highway. The calculated contribution is to be determined in accordance with the Palerang Council Section 94 Plan No 9 for Street Upgrading at Bungendore (as amended). Please note that the amount is subject to adjustment on a quarterly basis in keeping with the General Construction Index for NSW as published by the Bureau of Statistics. As at the Sept 2008, the contribution is $167.00 per additional lot created based on a total cost of $150,000 ($2007) divided by a catchment of 980 lots. The Contributions Plan may be inspected at Council’s administrative office (10 Majara Street, Bungendore) during normal office hours. The amount payable will be determined at the time of payment. Payment must be made prior to the issue of a Subdivision Certificate. When paying please quote ledger number RA3543.1.

Reason: To cater for the additional traffic generated by the development.

45 As regards condition 18, the applicant provided a traffic engineering report prepared by Mr J. Coady. That report notes a weekday peak hour traffic generation potential of approximately 70 vtph and assesses the performance of the intersection utilising the results of a SIDRA analysis concluding that:

46 On this basis the report concludes that there is no need to upgrade the intersection to cater for the additional traffic demand generated by the proposed subdivision. The applicant thus submits that neither version of the condition is warranted and it would not be fair or reasonable for either to be imposed.

47 In support of condition 18 the council provided a letter from the Roads and Traffic Authority (22 July 2009) that explains that use of the SIDRA program is not appropriate in this rural environment and instead the RTA Road Design Guide - Warrants for Rural Turn Lanes should be utilised. Notwithstanding that Kings Highway is a main road, because the development is less than 200 lots and is not within 90 m of classified road the RTA advises that the matter would not usually be considered by it. The RTA nevertheless suggests that on the basis of the Road Design Guide some upgrading/treatment of the intersection for right turning vehicles would be appropriate.

48 I am concerned that despite its reference to the Road Design Guide Condition 18 is not entirely clear as to the extent of works that would be necessary if that condition were to be imposed. I have even greater concern that whatever these works entail, the effect of the condition would be to require the applicant to upgrade the intersection at its own cost. Plainly given that the projected traffic generation is, by comparison with existing traffic numbers at the intersection, relatively minor it would not be fair or reasonable to impose such a condition.

49 As regards the alternative condition 18 I was provided with a copy of a proposed amendment to council's Section 94 Development Contributions Plan No 9 for Street Upgrading at Bungendore that will, when adopted, provide for the upgrading of the intersection at a cost of $150,000. However because this amendment is not yet effective the parties agreed that it was not within the power of the Court to impose a condition to this effect.

50 I accept the possibility that the intersection will need to be upgraded as development occurs in this area and that it is proper for the council's contributions plan to be amended so that new developments make appropriate proportionate contributions towards the necessary works. However until the plan is amended I am not satisfied that there is an appropriate mechanism to require the applicant in this case to make such a contribution. Condition 18 (both versions) is therefore deleted.

51 For the above reasons the orders of the Court are:

1. The appeal is upheld
2. The development application for the demolition of existing buildings and the subdivision of land at 70 - 74 Trucking Yard Lane, in the village of Bungendore is determined by the granting of development consent subject to the conditions in Annexure A hereto.
3. Exhibit D is retained.

___________________

T A Bly

Commissioner of the Court

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Planning Direction Pty Ltd v Palerang Council [2009] NSWLEC 1219

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CITATION:	Planning Direction Pty Ltd v Palerang Council [2009] NSWLEC 1219
PARTIES:	APPLICANT Planning Direction Pty Ltd RESPONDENT Palerang Council
FILE NUMBER(S):	11019 of 2008
CORAM:	Bly C
KEY ISSUES:	DEVELOPMENT APPLICATION :- subdivision of land, character and density, open space and playground facilities,conditions of consent, road works.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Yarrolumla Local Environmental Plan 2002 Yarrolumla Development Control Plan - 2V Village Zone
DATES OF HEARING:	15 June 2009, 16 June 2009 and 24 August 2009; (Findings 3 July 2009)
DATE OF JUDGMENT:	26 August 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Robson (barrister) SOLICITOR Harris & Company Solicitors RESPONDENT Mr A Bradbury (solicitor) SOLICITOR Williams Love & Nicol Lawyers