Proust and Gardner Consulting Pty Ltd v Camden Council

[2015] NSWLEC 1082

Land and Environment Court

New South Wales

Medium Neutral Citation:	Proust & Gardner Consulting Pty Ltd v Camden Council [2015] NSWLEC 1082
Hearing dates:	26, 27 March 2015
Date of orders:	07 April 2015
Decision date:	07 April 2015
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1. The appeal is upheld. 2. Development Application 735/2014 for subdivision to create 87 residential lots, 3 residue lots, 2 public reserves and associated site works at 103, 103B and 155 Lodges Road, Elderslie is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 4 and C
Catchwords:	DEVELOPMENT APPLICATION: subdivision to create 87 residential lots, 3 residue lots, 2 public reserves and associated site works – breach of minimum width, minimum lot size and minimum average area requirements - whether inconsistent with the planning approach for the release area
Legislation Cited:	Camden Development Control Plan 2011 Camden Local Environmental Plan 2010 Environmental Planning and Assessment Act 1979
Category:	Principal judgment
Parties:	Proust & Gardner Consulting Pty Ltd (Applicant) Camden Council (Respondent)
Representation:	Counsel: Mr I Hemmings SC (Applicant) Mr D Loether, solicitor (Respondent) Solicitors: Allens (Applicant) Bartier Perry Lawyers (Respondent)
File Number(s):	11080 of 2014
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Camden Council of Development Application 735/2014 for subdivision to create 87 residential lots, 3 residue lots, 2 public reserves and associated site works at 103, 103B and 155 Lodges Road, Elderslie (the site).

2. The proposal involves:

• subdivision to create a total of 87 residential lots (Lots 301-386). The proposed lot sizes range from 300 sq m to 625 sq m;

• subdivision to create 3 residue lots (Lots 296, 297 & 298);

• the creation of 2 public reserves (Lots 299 & 300);

• the construction and dedication of new local roads, drainage and utility services;

• works within the Oxley Rivulet riparian corridor; and

• vegetation removal.

3. The proposal is Stage 3 in a five stage development. Stages 1 and 2 of the residential subdivision were approved in 2014 under DA 209/2014 and DA 298/2014. Construction work has commenced on lands the subject of those consents which are located to the immediate west of Liz Kernohan Drive.

4. The council maintains that the proposal should be refused as it is inconsistent with the planning approach for the site in that the subdivision does not:

• satisfy the minimum lot size requirements,

• satisfy the minimum width requirements, and

• satisfy the average lot size requirements.

5. The council also raised contentions relating to the stormwater management plan, vegetation management plan and requirements of the NSW Rural Fire Service although these contentions were not pressed following the submission of further information.

The site

6. The site comprises Lot 100 DP 1059355, pt Lot 46 DP 1180185 and Lot 10 DP 1185037. The total site area measures 20.84 ha. It is vacant and is undulating with two natural depressions extending into the site. The site falls away from the Camden By pass towards the Oxley Rivulet riparian corridor which is located to the south east of the site.

7. The site is located within the Elderslie Urban Release Area. The general area is characterised by a mixture of residential and recreational land uses within the developing Elderslie Urban Release Area.

Relevant planning controls

8. The site is zoned R1 General Residential under Camden Local Environmental Plan 2010 (LEP 2010). The subdivision of land is permitted with consent in this zone.

9. Camden Development Control Plan 2011 (DCP 2011) applies. Part C6 of DCP 2011 relates to the Elderslie Release Area. Part C6.1 contains the Elderslie Planning Principles, the Elderslie Urban Release Area Master Plan (Figure C12) and the Elderslie Residential Density Targets. Part C6.2 contains Neighbourhood and Subdivision Design.

10. The overall dwelling yield for the Elderslie release Area is 1,978 dwellings. Stage 3 is further dived into specific areas (Areas 1, 2 and 3) with the overall target to be achieved by planned housing provision within generally three different density areas as well as planned medium density and small lot housing sites.

11. Elderslie Master Plan nominates the residential lots within Area 3 as being between 450 sq m and 540 sq m with lot widths between 15m and 18m. The Elderslie Master Plan nominates the residential lot within Area 2 as being between 300 sq m and 450 sq m with lot widths of between 8m and 15m.

12. The site is primarily within Area 3 (58 lots of the proposed 87 lots). A small part of the proposed development relates to Area 2. This land is:

• north of Kingsman Avenue east of Road 31 (containing 9 lots);

• a residue lot north of Kingsman Avenue west of Road 31 (proposed lot 298 with potential for 15 lots);

• a residue lot south of the park (proposed lot 300 with potential for 5 lots)

The dispute

13. Expert evidence for the council was provided by Mr David Haskew, for the council and Mr Peter Lawrence for the applicant. Put simply, Mr Haskew maintains that the dispute centres on the inability of the proposed development to satisfy the minimum lot size, lot width and average area requirements of the Elderslie Master Plan. He acknowledges that to achieve the overall yield of 1,978 dwellings, there is a deficit of 3 lots from Stages 1 and 2. Mr Haskew states that these 3 lots can be accommodated in Area 3 of the proposed development without affecting the integrity of the Elderslie Master Plan. As the applicant is seeking to include a further 5 lots in Area 3, Mr Haskew concludes that the total of 8 lots unacceptably impacts on the intent of the Elderslie Master Plan in that the character/streetscape anticipated for Area 3 will be significantly changed by the additional lots that will result in some lots smaller lot areas, smaller widths and a smaller average lot size.

14. Mr Lawrence states that the 8 additional lots for Area 3 will have no impact on character/streetscape anticipated for the Elderslie Release Area, given the flexibility provided by DCP 2011, the compliance with overall yield of 1,978 dwellings and the increased area of public reserve (lot 300) from 4000 sq m to 5600 sq m in Stage 3 that effectively results in the loss of 5 lots.

15. While the dispute formally centres on the inability of the proposed development to satisfy the minimum lot size, lot width and average lot size requirements of the Elderslie Master Plan, the dispute involves a number of separate issues, being:

• the increased area of the public reserve area (lot 300) and

• the impact on the anticipated character/streetscape of Area 3, including the flexibility available in DCP 2011.

The increased area of the public reserve area

16. The question over the increased area for the public reserve was not fully resolved at the hearing although Mr Haskew and Mr Lawrence generally accept that the increase in area of the public reserve from 4000 sq m to 5600 sq m is a worthwhile benefit for the future residents of the area. Mr Lawrence provided an explanation on the increased area in the joint planning report that stated (Exhibit 3, p17, pars 59-61):

59. The area and configuration of the proposed public open space is in response to the re-master planning of the Precinct that occurred following adoption of DCP 124. The area of public open space required to be provided in DCP 124 was previously 1.06ha. The Open Space and Recreation Facilities Works Schedule in the current Camden Contributions Plan 2011 specifically notes that this was "a deduction area of 0.5ha", and hence requires the provision of public open space in this part of the site of 5,600m2, as is proposed in the Stage 3 application.

60. The area of Proposed Lot 300 does not revert to the area of DCP 124 of 1.06ha, but rather proposes 5,600m2 thereby responding to the re-master planning and reference in the Section 94 Works Schedule that the area of public open space has been reduced by 0.5ha.

61. The land nominated as Area 2 in the DCP on land now proposed as open space is approximately 1,910m2 and would yield 5 lots. I note that the increase in the size of the park from 4,000m2 to 5,600m2 as proposed has also reduced the composite Area 2 land shown on the DCP from 4,000m2 to 1,913m2. The quantum of Area 2 land at 4,000m2 is required to at least achieve the overall target density. The loss of yield from the reduced Area 2 land needs to be made up to meet the dwelling targets.

17. While there was an acceptance by Mr Haskew and Mr Lawrence that the additional area of open space was beneficial, they disagreed on the ramifications of the additional area. Mr Haskew stated that the need to relocate the 5 lots results in significant harm to the fundamental planning outcomes which are intended under the Elderslie Master Plan. Mr Lawrence on the hand, states that the additional lots are to be located to the south of the open space consistent with the Elderslie Planning Principles, which provide for smaller lots to be located near parks. Mr Lawrence describes the additional lots as a relatively minor change and better responding to the opportunity provided by the open space in this part of the site.

18. I accept Mr Lawrence’s explanation for the increased area for the public reserve. The question of whether the 8 additional lots creates a situation where the proposed development significantly erodes the distinction between Area 2 and Area 3 in the Elderslie Master Plan is discussed in the following paragraphs.

The impact on the Elderslie Master Plan – the evidence

19. Mr Haskew states that the Elderslie Master Plan identifies three areas of distinctly different density and lot width which in turn deliver areas of distinctly different residential character. The proposal to replace 5 lots from Area 2 to Area 3 has the effect of increasing the density of development within Area 3 with consequent non-compliances with lot width and average lot size provisions of DCP 2011. This, coupled with the proposal to provide fewer and larger lots in Area 2 than the DCP 2011 targets, leads to an erosion in the discernible distinction of characters between the two areas. This results in significant harm to the Elderslie Master Plan objectives. The resultant outcome is that across the site, Areas 2 and 3 are unnecessarily merged into a more homogenous single density area.

20. Mr Haskew rejects Mr Lawrence's position that the subdivision is consistent with the principles of the Elderslie Master Plan and concludes that it is completely antithetical to one of the most fundamental and significant aspects of the Elderslie Master Plan. As an alternative, Mr Haskew suggests that the additional lots be included in Stage 4.

21. However, if the Court considers that the location of the 8 lots in Area 3 is acceptable, then Mr Haskew accepts that the proposal has merit in that it locates those additional lots opposite proposed public open space.

22. Mr Lawrence’s initial response is that the minimum sizes in DCP 2011 are inconsistent with LEP 2010 and as such, should be given no weight. Notwithstanding this, he deals with the matters raised by Mr Haskew but also notes that there is nothing in the contentions that raises “neighbourhood character” as a contention.

23. Mr Lawrence disagrees that the average lot size is a control or tool to be applied in the assessment of the application. The average lot size appears only once in pt C6 of DCP 2011 as a number in the key on the Master Plan at Figure C12 where it used in a formula to calculate the resulting target yields. There is no reference to the average lot size in the two stated controls contained in the section on Elderslie Residential Density Targets of DCP 2011. These controls provide only for:

1. the trading between development blocks; and

2. variations within a development block.

24. In both cases, these matters can be used as long as the proposed subdivision achieves the dwelling targets and the objectives of DCP 2011 and Elderslie Master Plan. Mr Lawrence notes that both of the controls will, if required, result in variations to the minimum lot sizes, average lot size and minimum lot widths to deliver the target dwelling yield identified in DCP 2011 for the area in which the street block or stage is located. In effect, the controls themselves anticipate some dilution of the different lots within different areas to ensure the dwelling targets are achieved.

25. Mr Lawrence states that Mr Haskew’s conclusions do not recognise that DCP 2011 anticipates that variations may occur within individual street blocks within a specific stage or as reflected in approvals in previous stages by the council.

26. Also, the proposal by Mr Haskew to relocate the 8 lots to Stage 4 results in a poorer planning outcome, in the opinion of Mr Lawrence than if located in Area 3 of Stage 3.

27. Overall, Mr Lawrence concludes that the proposal is consistent with the Elderslie Master Plan and the Elderslie Planning Principles

The impact on the Elderslie Master Plan – findings

28. In considering the different approaches of Mr Haskew and Mr Lawrence, I comfortably agree with the conclusions of Mr Lawrence. I am satisfied that Mr Haskew has overstated the implications of the proposal on the Elderslie Master Plan. Under any assessment I cannot accept Mr Haskew’s evidence that the variations sought are “significant”.

29. Part C6 deals specifically with the Elderslie Release Area. The Elderslie Planning Principles (at pt C6.1) are:

1. Development of the Elderslie release area will be in the form of an urban village, adjoining and connected to the existing suburban development in Elderslie and Narellan. The village will consist of a variety of housing forms, in landscaped garden and natural settings and a small neighbourhood centre.

2. The new suburban area shall integrate with the existing Elderslie and Narellan communities and with Kirkham Park by suitable low level road, pedestrian and cycle links. Internally, the subdivision pattern will promote accessibility by pedestrians and cyclists. The areas of higher residential densities will be located close to the public transport corridors and in close proximity to the local commercial and educational facilities and the open space corridors.

3. The urban village will be serviced by local and regional public transport services that provide a viable alternative to private vehicles. The Camden Valley Way—Camden By-pass link road will facilitate improved access to the Camden Bypass and form a natural extension linking with the Macarthur Centre.

4. The visually and culturally significant “Rheinberger’s Hill”, the gateway to Camden from the north, shall remain a not encroach on to Rheinberger’s Hill. Large lot housing may be sympathetically located behind the hill to the east of the saddle in the ridgeline. It shall be of a density that provides a transition from the Studley Park Golf Course to the suburban housing area. Studley Park and Rheinberger’s Hill will form a significant open space break between Narellan and Elderslie.

5. Hilder Street and Lodges Road continue to provide evidence of the historic development of the area. While land in the vicinity of these roads will undergo development and change, the alignment of the roads shall be maintained.

6. Visually and ecologically significant vegetated areas shall be preserved, by inclusion in the open space network, based principally on the creek lines as significant biological corridors.

7. District views and view corridors between historic items and culturally significant places shall be preserved.

8. Stormwater management shall be ecologically sustainable by using local control measures, which will relate strongly to the creek line corridors.

30. Pt 6.1 of DCP 2011 also includes the density targets and controls for the Elderslie Master Plan. These are:

Elderslie Residential Density Targets

A variety of lots sizes and types are to be provided to facilitate housing diversity and choice and meet the requirements of people with different housing needs. Smaller lots and medium density developments are to be located near the village centre, parks and areas of highest amenity proximity to facilities. In order to achieve this, lots must be consistent with the dwelling densities shown at Figure C12 and the residential lot types detailed below.

Controls

1. The residential dwelling target for Elderslie is 1978 dwellings. In order to ensure this, subdivision applications are to demonstrate to Council that the dwelling targets shown in Figure C12 will be achieved. Subject to the agreement of Council and consultation with relevant landowners, dwelling yield may be ‘traded’ between development blocks as long as it meets the overall targets and objectives of this DCP and Master Plan.

2. Where variation to the block dwelling targets is proposed, an applicant is to demonstrate that:

(a) the overall dwelling target of 1978 dwellings for Elderslie can still be achieved.

(b) the proposed variation is consistent with the principles of the Elderslie Master Plan and provisions of this DCP.

Area 1:

Shop Top Housing – Village Centre (180/300m2)

This provides scope for shop top housing above retail or commercial uses. Demand is unknown at this time but building forms must contain sufficient flexibility for later change of use as Elderslie develops.

Area 1:

Attached and Semi-Detached Dwellings (6-8m Wide Lot) from 180/240m2 to 200m²) This provides opportunity for dwellings in small groups, duplexes or triplexes. They are located in areas of high amenity along the central village spine. They may contain home work/business opportunities.

Areas 1 & 2:

Dwelling House (8-12.5m Wide Lot) (300/375m2) This provides a small lot housing form generally with north facing (good solar access) rear yards and with rear lane car access or single stacked parking. These are generally free standing are encouraged to have a zero lot line on one boundary.

Area 2:

Dwelling House (12.5 - 15m Wide Lot) (375/450m2) This type comprises housing suitable for free standing small family housing. This is a flexible and efficient housing form.

Area 3:

Dwelling House (15 - 18m Wide Lot) (450/540m2) These are free standing traditional one and two storey dwellings often in prime or feature locations. In some cases they could sustain a duplex or a ‘big house’ (which contains 3 or 4 apartments) which fit comfortably within a large single house context.

Area 3:

Dwelling House (20m Plus Lot) (600+m2) These are large lots that occupy prime sites (corner sites and avenues). They provide opportunity for large family dwellings and could also include some discreet multi-unit housing in ‘big home’ form.

Multi Dwelling Housing Site:

A multi dwelling housing site has been identified on Lodges Road overlooking the riparian corridor. The site has the potential for 78 dwellings in a two storey development with a third storey located within the roof structure

31. While Mr Haskew maintained that he had adopted a flexible approach to the consideration of the application by accepting that 3 of the 8 lots in question could be accommodated in Area 3, I am not convinced that his concession reflects the reasonable level of flexibility that could be adopted without impacting on the integrity of the planning for the Elderslie Release Area.

32. Even putting aside the statutory obligations for development control plans (for example: s 79C(3A)(b) of the Environmental Planning and Assessment Act 1979 (the EPA Act)) and the case law that guides the use of development control plans (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and Zhang v Canterbury City Council (2001) 115 LGERA 373), DCP 2011 contains a number of explicit opportunities to vary requirements. Part A1.9 of DCP provides a general power for variations subject to demonstrating the grounds for variation and satisfaction with relevant objectives. Specifically, in relation to a master plan, the word “Indicative” is used to describe the master plans for the urban release areas, including the Elderslie Master Plan. The controls require “all development to be undertaken generally in accordance (my emphasis) with the master plan (pt C5, Control 1). Specific reference is made to the availability for variations to a master plan (pt C5, Control 2).

31. More relevant is the specific controls for the Elderslie Master Plan where dwelling yield can be “traded” between development blocks (pt C6.1, Control 1) and the opportunity to vary block dwelling targets is available (pt C6.1, Control 2). Figure C12 Elderslie Master Plan also states:

The Elderslie urban release master plan is shown at Figure C12. It identifies the road connections and indicative lot yield to be achieved. Variations to the master plan may be considered if the principles set out in this DCP are complied with.

34. Given the inherent opportunities for variation in DCP 2011, Mr Haskew’s statement that the nature, extent and consequences of the variations cannot be dealt with under Pt 4 of the EPA Act must also be rejected.

35. I also agree with Mr Lawrence that any significant reliance on the average lot size figures shown in Figure C12 Elderslie Master Plan is inconsistent with the proper operation of DCP 2011. The average lot sizes shown for Areas 1, 2 and 3 confirm the hierarchy of lot sizes but the controls in pt C6.1 should provide the focus for the suitability of the subdivision under DCP 2011. Specifically, Control 2 provides that a variation has to demonstrate that the overall yield of 1,978 dwellings for Elderslie can still be achieved (Control 2(a)) and that the proposed variation is consistent with the principles of the Elderslie Master Plan and provisions of DCP 2011(Control 2(b)). There was no dispute that the yield of 1,978 could be achieved and I accept that there is no conflict with the Elderslie Master Plan, the Elderslie Planning Principles or any other provision in DCP 2011.

36. I am also satisfied Mr Haskew’s concerns over the unacceptable impact on the character and streetscape, as anticipated by DCP 2011, cannot be justified. I do not accept Mr Haskew’s statement that the proposal results in the “merging of Density Areas 2 and 3 into what is effectively a single area of homogenous character”. The effect of the variation is shown in Appendix E of Mr Lawrence’s statement of evidence (Exhibit A). The proposed smaller lots are shown adjoining the proposed public reserves (lots 299 and 300). While Mr Haskew is of the opinion that DCP 2011 seeks to deliver “separate and distinct density areas”, I am not convinced that this is necessarily an accurate description of the likely character for the different areas. While DCP 2011 designates different areas with different densities, inherent in this designation is the flexibility for different lot sizes while still achieving the overall dwelling yield. For example, Control 1 provides that dwelling yield may be ‘traded’ between development blocks as long as it meets the overall targets and objectives of DCP 2011 and the Elderslie Master Plan. This does not suggest a homogenous lot size across a defined area. A further example is the overlap between areas. Based on the controls, it is possible to have a 15m wide lot of 450 sq m in area in both Area 2 and Area 3. Again, this does not suggest a homogenous lot size across a defined area.

37. In any event, the character of an area and the streetscape qualities are not determined solely on street width and lot size. Other factors such as setbacks, landscaping, street trees, building materials and dwelling designs contribute, in a meaningful way, to the character and streetscape qualities of an area. Once established, I have little trouble in concluding that little, or no attention would likely be drawn to the smaller lots proposed in this application when compared to the other residential development in Area 3.

38. For reasons set out in the judgment, I accept that the proposed variation to DCP 2011 is acceptable, in that it satisfies:

1. the relevant objectives in pt C5,

2. Controls 1 and 2 in pt C5,

3. Elderslie Planning Principles in pt C6.1, and

4. Controls 1 and 2 in pt C6.1.

Orders

39. The orders of the Court are:

1. The appeal is upheld.

2. Development Application 735/2014 for subdivision to create 87 residential lots, 3 residue lots, 2 public reserves and associated site works at 103, 103B and 155 Lodges Road, Elderslie is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibits 4 and C.

_______________

G T Brown

Commissioner of the Court

11080 of 2014 gtb (C) (81.4 KB, pdf)

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Decision last updated: 07 April 2015