R E Charles Pty Limited v Lithgow City Council

[2006] NSWLEC 464

Land and Environment Court

of New South Wales

CITATION:	R E Charles Pty Limited v Lithgow City Council [2006] NSWLEC 464
PARTIES:	APPLICANT R E Charles Pty Limited RESPONDENT Lithgow City Council
FILE NUMBER(S):	10175 of 2006
CORAM:	Brown C
KEY ISSUES:	Development Application :- 28 lot subdivision - traffic/access - amenity impacts
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Lithgow Local Environmental Plan 1994
DATES OF HEARING:	25/07/06
DATE OF JUDGMENT:	07/27/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J Reilly, solicitor SOLICITORS Abbott Tout RESPONDENT Mr S Griffiths, solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

27 July 2006

10175 of 2006 R E Charles Pty Limited v Lithgow City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal by Lithgow City Council (the council) of DA/124/05 for the subdivision of land in 2 stages off Tweed Road, Outer Crescent and Tangent Street, Bowenfels to create residential lots, access roads and open space (the site).

2 The hearing was changed from a Court hearing to an On Site hearing on 25 July 2006. Following the evidence from local residents and an inspection of the site, the hearing was adjourned prior to a decision being made to allow the parties to discuss a dispute over a condition. It was agreed that the parties would advise the Court at a Mention on 26 July 2006 whether additional evidence would need to be called to address the outstanding issue. Prior to the Mention, the parties agreed on all conditions.

The site

3 The site consists of Lot 1 in DP 549480, Lot 11 in DP 815871 and Lot 22 in DP 601501. The lots have an area of 7.41 hectares and adjoin existing residential development to the east and rural development to the west, north and south. The land is generally clear although there is dense vegetation containing a large amount of willows along the creek. The site is undulating to steep and drains directly into Farmers Creek.

The proposal

4 The proposal considered by the council provides for the subdivision of the site into 38 residential lots in 2 stages, being Stages 2 and 3. Stage 1 is a 2 lot subdivision under a separate development application (DA 358/05) that provides access to the subdivision off Outer Crescent. Stage 2 consists of a 30 lot subdivision with lots ranging from 700 square metres to 2146 square metres. Stage 2 also includes an area of 2.549 hectares along Farmers Creek designated as proposed open space. This area provides a 40 metre setback to the new internal road from the riparian zone along Farmers Creek. Stage 3 consists of an 8 lot subdivision of an area of 1.008 hectares with lots ranging from 880 square metres to 1772 square metres.

5 Access is proposed to the majority of new lots via a new road to Outer Crescent. One new lot gains access from Tangent St. A reservation for services is available to Tweed Rd.

6 Following the report of the Court appointed town planning expert, the proposal was amended to provide for a total of 28 residential lots by:

• the deletion of Stage 3 as a residential subdivision,
• the readjustment of boundaries to satisfy council planning controls and reduce impacts on adjoining development resulting in a reduction in the residential lots in Stage 2 from 30 to 28,
• minor amendments to the road design to accommodate the new number of residential lots, and
• the use of the reservation to Tweed Road for pedestrian and the bicycle access.
  
Relevant planning controls

7 The site falls within land zoned Residential 2(a) and Open Space 6 under Lithgow Local Environmental Plan 1994 (LEP 1994). Generally, the land to be subdivided for future residential use in Stage 2 falls within the land zoned Residential 2(a). The proposed open space falls within the land zoned Open Space 6.

8 The land in Stage 3 falls almost exclusively within the land zoned Open Space 6. Clause 24 provides consideration of specific matters before granting development consent in open space zones and cl 31 provides for minor variations to zoning boundaries. These are however, no longer relevant following the deletion of Stage 3 for residential purposes.

9 South Bowenfels Development Control Plan - Residential Development (the DCP) applies. Part Five - Subdivision provides requirements for lot layout and size, street design and benching/cut and fill.

The evidence

10 The parties agreed to the appointment of Mr Kerry Nash as the Court appointed town planning expert.

11 Mr Chris Hallam, a traffic engineer, provided evidence for the applicant.

12 A number of local residents from Outer Crescent and Tangent Street provided evidence on site. The Court also had the benefit of a bundle of documents containing the written submissions of the local residents.

The issues

13 The council filed a Statement of issues containing 8 separate issues. The issues were the use land zoned Open Space 6 (Issue 1), the amount of cut and fill (Issue 2), traffic and street design (Issue 3), lot layout and design (Issue 4 and 5), street design (Issue 6) and the location of the sewerage line (Issue 7). Following the amendments recommended by Mr Nash and the inclusion of these changes into the amended plans, the council accepted that the proposed subdivision was now acceptable.

14 Notwithstanding the amendments, the local residents maintained that the proposed subdivision was still unacceptable for a number of reasons (Issue 8).

Resident concerns

15 The major concerns raised by the residents are:

The unsuitability of the site

16 The site is currently zoned to permit the proposed subdivision and future residential use. A current approval exists for a 34 lot subdivision of the site. As I understand, the amended proposal satisfies the requirements in LEP 1994 and the DCP. This is not a valid reason for the refusal of the development application.

The new intersection with Outer Crescent

17 The subdivision provides for a new intersection with Outer Crescent as part of the Stage 1 approval. The intersection was seen by local residents as being unsuitable and unsafe. Mr Hallam reviewed the access arrangements and did not raise any issue with sight distances or any other issue with the new intersection with Outer Crescent. In the absence of any expert evidence to contradict his findings, I accept that the new intersection is satisfactory.

Excessive traffic in Outer Crescent

18 Based on the Roads and Traffic Authority’s Guide to Traffic Generating Developments Mr Hallam calculates that the original 38 lot subdivision would generate additional 32 vehicles per hour (at a rate of 0.85 vehicles per hour per new dwelling). The projected flows remain substantially within the limits of Local Access Roads. While Outer Crescent has a carriageway of 7 m and is less than the council hierarchy classification of 8 m, the carriageway is wider than the equivalent roads in the AMCORD Guidelines. The 7 m carriageway still allows vehicles to use Outer Crescent even if the vehicles are parked at the kerb, directly opposite each other. Mr Hallam also states there is no proposal to restrict parking in Outer Crescent despite the fears of local residents. Overall, he concludes that the subdivision will have little impact in functional road hierarchy terms.

19 Mr Hallam’s assessment also finds that the extra subdivision traffic will have minimal impact on delays at nearby key intersections based on INTANAL computer modelling.

20 I agree with his conclusions and in the absence of any expert evidence to contradict his findings, I accept that the additional traffic generated by the subdivision will not unacceptably impact on the movement of vehicles on Outer Crescent or any property in this street.

Amenity issues

21 Mr Brian Healy, the owner of 32 Outer Crescent states that the new access will isolate his dwelling as there will be roads on three boundaries. This will increase traffic noise and reduce the level of privacy his family currently enjoys.

22 While the relationship between Mr Healy’s dwelling and adjoining roads is not optimal, I am not convinced that it would warrant any amendment to the subdivision for a number of reasons. The relationship with Tangent Street is largely unchanged with only one additional dwelling having access from this street. In accepting Mr Hallam's evidence that the additional traffic created by the proposed subdivision is not likely to be excessive, I find that the additional traffic is not likely to unacceptably impact on Mr Healy's property. I am also mindful of the relatively large setback of Mr Healy’s dwelling to the new access road and also the realignment of the access road away Mr Healy's property.

23 Mr Healy and other residents that adjoin the site raised concern over the potential overlooking and loss of views of any new dwellings constructed on the new lots. As the proposed development relates only to the subdivision of land, any issues relating to overlooking and loss of views are best left to the time when development applications are lodged for individual dwellings so that any specific issues can be properly addressed. In general terms, and as the land falls relatively steeply from the existing properties in Outer Crescent there is the potential, through good design, to minimise overlooking and loss of views from any new dwellings.

Other issues

24 Other issues raised by the local residents relate to water quality, ground and water pollution, site contamination, inadequate infrastructure, stormwater disposal, flooding and loss of flora and fauna.

25 These additional issues are addressed by Mr Nash in his report and were found to be adequately addressed through expert reports prepared by the applicant, the imposition of appropriate conditions or considered to be adequate by the council. In my view, the conclusions of Mr Nash appropriately address the other issues raised by local residents.

Orders

26 For the foregoing reasons, the Orders of the Court are:

1) The appeal is upheld.
2) DA/124/05 for the subdivision of land off Tweed Road, Outer Crescent and Tangent Street, Bowenfels is approved subject to the conditions in Annexure A.
3) The exhibits are returned with the exception of exhibits 1, 2, and A.
___________
G T Brown
Commissioner of the Court