Riordans Consulting Surveyors Pty Limited v Lismore City Council

[2010] NSWLEC 1333

Land and Environment Court

of New South Wales

CITATION:	Riordans Consulting Surveyors Pty Limited v Lismore City Council [2010] NSWLEC 1333
PARTIES:	APPLICANT Riordans Consulting Surveyors Pty Limited RESPONDENT Lismore City Council
FILE NUMBER(S):	10726 of 2009
CORAM:	Moore SC
KEY ISSUES:	DEVELOPMENT APPLICATION - SUBDIVISION - THREATENED SPECIES :- Steepness of roads; koala habitat and necessity for plan of management; s 94 contributions
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
CASES CITED:	Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266; (2003) 58 NSWLR 159; (2003) 129 LGERA 165
DATES OF HEARING:	7 and 8 October and 3 November 2010
DATE OF JUDGMENT:	1 December 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr P Rigg, solicitor Norton Rose RESPONDENT Mr M Young, solicitor McCartney Young Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

1 December 2010

09/10726 Riordans Consulting Surveyors Pty Limited v Lismore City Council

JUDGMENT

Introduction

1 SENIOR COMMISSIONER: The Bruxner Highway (the Highway), running east from Lismore toward the coast, has a ribbon of residential development of varying depths on the northern side of the Highway forming the eastern suburbs of the city. In the midst of that ribbon of urban development, one house removed to the north of the Highway, is a former grazing property that is partly comprised of a single domestic scale frontage to the Highway; a substantial element of steep and gullied land falling to the north and a residual agricultural area, on flatter land running to the north toward Bangalow Road. The steep and gullied portion of this land comprises the site that is the subject of these proceedings.

2 On each side of the proposed subdivision are presently located residential developments of comparatively recent vintage. That development is located on the spur lines descending toward the flat agricultural lands to the north of this ridge.

3 The application that is the subject of these proceedings sought consent from Lismore City Council (the council) for a residential subdivision on the steep and gullied land leading up the ridge upon which the Highway is located – with a residual allotment that was proposed to be in three parts. The first of them was the existing residential scale element with an existing dwelling located on it with a direct frontage to the Highway; the second is an element in the south-western corner of the existing land holding (which element is the subject of an existing development consent for a link road to the residential area to the west); and the flat land, zoned for rural pursuits, that is proposed to be retained for those pursuits.

4 It is not necessary, for the purposes of determining the issues in these proceedings that any further description be made of the second and third elements of the proposed residual allotment. Aspects of the proposed subdivision and the possible future use of the element of the residual allotment with a frontage to the Highway are discussed in more detail later.

The progression of these proceedings

5 The proceedings initially commenced as a conciliation conference conducted pursuant to s 34 of the Land and Environment Court Act 1979 (the Court Act). Although considerable progress was made in resolving a range of issues between the applicant and the council, agreement was unable to be reached and the conciliation phase was terminated. The parties agreed that, having been involved in the conciliation process, they did not object to me proceeding to hear and determine the matter pursuant to s 34(4)(b). In addition, the parties agreed, conformably with s 34(12), that those matters that were discussed during the course of the conciliation process should be carried forward for consideration as evidence, as relevant, in the determinative proceedings.

6 As the conciliation process had resulted in the applicant agreeing to amend the plans of the proposed subdivision, at the commencement of the determinative process leave was granted to amend the plans to reflect that matters discussed during the conciliation phase and an order for costs pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 (the Planning Act) was made in an agreed sum – as it was accepted by the applicant that the amendments to the plans were not minor.

7 The matter then proceed at two further hearings at Lismore and Ballina courthouses.

8 These hearings were separated by a period of time during which the applicant submitted further revised plans that were, in general terms, responsive to matters arising out of the concurrent evidence given by the planners, Mr. Mallam for the council and Mr. Fletcher for the applicant.

9 At the commencement of the final day of the hearing, in the final procedural analysis, the applicant was granted leave, on two occasions, to amend the proposal further. These involved the redesign of elements that were responsive to allotment size; building envelope identification; and driveway access viability raised by Mr. Mallam during the first phase of the determinative hearings. A tentative proposal to add two additional allotments (on land in common ownership with the site but principally outside the perimeter of the original proposal) were not pursued by Mr. Rigg, solicitor for the applicant, as part of this amendment process. As a consequence, with respect to each of these two amendments, Mr. Young, solicitor for the council, did not suggest that any further order pursuant to s 97B of the Planning Act was required.

The site inspections

10 A site inspection was made at the commencement of the conciliation phase and a further site inspection was undertaken at the commencement of the determinative phase. During the course of the first site inspection, a number of areas of vegetation importance were inspected and several potentially significant trees were agreed to be retained, by the applicant, if development consent were to be granted. As this site inspection was during the conciliation phase, a phase which was dealing, largely, with technical issues, no resident participation occurred.

11 However, at the commencement of the determinative phase, a number of objectors gave evidence during the course of the second site inspection. This site inspection took a different form to that which had occurred during the conciliation phase and involved a limited repeat visit to the entrance to the site from Cavendish Road, a location which had been inspected on the first occasion, but did not involve revisiting of any other elements of the site inspected on the first occasion.

12 However, in addition to this on-site element, where some evidence was taken concerning objections relating to loss of koala habitat, further evidence was taken from the residences of two of the neighbours who objected to the proposals.

13 First, evidence was heard on koala observations on a portion of the south-western element of the proposed subdivision and the loss of koala habitat resulting from the then proposed design of the subdivision.

14 Evidence was also taken, at a different location adjacent to and on the eastern side of the element of the residual allotment containing the dwelling with a frontage to the Highway. This objection related to the council's proposal for a link road between the existing residential subdivision along the ridge line to the west of the site, diagonally to the south through the proposed subdivision to link up with the Highway at its present intersection with Rous Road, a T intersection regulated by a roundabout. This objection was based not upon the proposed subdivision but upon the impact that any construction of the council's proposed link road would have on the amenity of that objector’s residence.

15 It is convenient to deal with this objection immediately as it requires but a short response. It is clear, from documents provided in response to a direction requiring the presentation of material outlining the history of council’s evolution of this proposed link road, that the council has had a corporate view of the desirability of such a link road for a number of years and predating the lodgement of this application.

16 That proposed link road has been adopted by the council as part of a broader strategic road planning framework. The proposal for a link road capability to be incorporated in the design of this subdivision arises not from any desire of the applicant to provide such capability as an essential part of its subdivision design but to do so only in order to accommodate the strategic aspirations of the council. This aspect of the road design within the proposed subdivision is discussed in more detail later concerning roads and traffic issues.

17 However, for the purposes of responding to this objection, it is clear that the accommodation of a future link road by this subdivision is designed solely in response to the council's planning objectives and any complaints concerning that broader strategic planning should properly be directed to the council and are not appropriate for me to take into account in these proceedings (as there is not proposed to be any construction arising out of this proposal that would create the amenity impacts that the objector that envisages would arise).

18 After hearing this objector evidence, a number of locations in the road network to the immediate east and west of the site were also inspected.

The final proposal

19 The finally proposed subdivision is one seeking consent for 75 allotments with an internal road network. A simple plan showing the general nature of the final version of the proposed subdivision appears below:

20 Two observations should be made with respect to this plan. These are:

• those allotments shown as Lots 1 and 68 and which are subject to the notation in red and initialled by me as excluded – these being in the north-eastern corner of the proposed subdivision – are the allotments for which incorporation in amended plans was not sought; and
• in the centre of the plan, at the intersection of Woodlawn Avenue and Cavendish Road, across the intersection and through proposed Lot 60, are pen markings made by Mr. Riordan, the principal of the firm that is acting as the applicant in these proceedings of behalf of the owner of the site, during the course of his evidence during the second phase of the proceedings. The significance of those markings is dealt with later in this decision concerning road design issues.

21 As earlier indicated, matters of access and building envelope concern arose because of the significantly steep nature of the land upon which the subdivision is proposed to be located. Although this information was available on the topographic map with contoured intervals, the best visual explanation of the nature of the slope of the various elements of the site comes from a slope steepness plan, computer-generated by interrogation of the topographic information, that colour codes the steepness of the various elements of the site in 5% slope increments. A copy of this slope mapping appears below:

22 At the commencement of the proceedings, as noted earlier with respect to the conciliation phase, a number of matters were resolved. It is also appropriate to note that, during the determinative phase, some further issues, primarily of a planning nature, were also able to be resolved. Those incorporated in the revised design were responsive to:

• council and resident concerns relating to protection of a stand of koala habitat trees that, in the final design, are proposed to be incorporated in a public reserve dedicated to the council on Lot 45;
• the resolution of a large number of lot sizes; building envelope identification; and adequate driveway access detail being provided to demonstrate that practical access to the allotment was, in fact, available;
• dedication as a public reserve of a small area, proposed Lot 2 – an area where some potentially contaminated fill requires removal resulting in what would be, essentially, the only flat allotment in the proposed subdivision. This allotment is to be dedicated to the council in satisfaction of its requirement for an area of public reserve capable of development is a satisfactory children's playground;
• a rearrangement of a significant number of allotment boundaries so that the minimum allotment size considered appropriate by the council (having regard to the slope of each proposed allotment) was resolved in all but one instance. That single instance, Lots 35 and 36 on the south-eastern corner of the intersection of Woodlawn Avenue and Nigel Place required determination as a contested issue; and
• the provision of a turning circle at the south-eastern end of Woodlawn Avenue to make it possible for the allotments in that vicinity to be serviced by garbage trucks and other heavy delivery vehicles.

23 As a consequence, at the conclusion of the final day’s hearing, the issues that remain in contention between the parties were:

• three remaining planning issues of comparatively minor compass, these being Lots 35 and 36, as earlier noted together with the questions of whether it was possible to have an adequate building envelope on proposed Lot 48 (because of the location of the gully and drainage line through the centre of this allotment) and on Lot 52 (because of the steepness of this allotment);
• whether the proposed subdivision site comprised core koala habitat thus triggering the provisions of State Environmental Planning Policy 44 (SEPP 44) requiring the preparation of a koala plan of management needing to be approved by the Director of the National Parks and Wildlife Service (NPWS) as a necessary precursor to any consent in these proceedings; and
• whether the proposed road design (for Woodlawn Avenue, particularly, and the approaches in Cavendish Road to its intersection with Woodlawn Avenue) were acceptable or not.

24 Mr. Young did not suggest that the residual planning issues would warrant refusal but did submit that each of the koala and road issues warranted refusal in its own right. In addition to these matters raised by the council, Mr. Rigg also raised the question of whether or not the contributions proposed by the Council in response to its contributions plan made pursuant to s 94 of the Planning Act were reasonable or whether some further discounting, beyond the sum of $100,000 proposed by the council in response to the applicant's objection to the contributions, was warranted.

25 Mr. Rigg also raised a number of detailed objections to the council's proposed without prejudice conditions of consent. As his letter of objection was not expansive of the reasons for those objections and as some of the conditions to which objection was raised are ones that are likely to have been resolved by the further agreement about the planning aspects of the subdivision design, it is not appropriate for me to consider and determine those objections in this decision but to defer them for further discussion between the parties in light of the overall conclusion to which I have come.

26 With modifications that I require to be made within the scope of the present application, the proposal is capable of being given development consent if (nd only if) a koala plan of management is approved by the Director of NPWS, within the time envisaged by Mr. Rigg as being necessary for this purpose. As a consequence, if there remained any further disagreed conditions and of the Director does give an appropriate approval to the required koala plan of management, a short supplementary hearing can be held to adjudicate on any such contested conditions.

Amber light approach

27 I have approached my consideration of the issues in these proceedings by adopting the “amber light approach” now taken in merit proceedings in the Court.

28 This approach has me first ask myself this initial question – “On the merits, is the application capable of being approved as applied for?” If this question is answered in the affirmative, I must then proceed to approve the proposal.

29 If I were to conclude that it is not capable of being approved as applied for, I do not automatically refuse the proposal. In the alternative to refusal, I then proceed to address a second question – “Is the proposal capable of being given development consent within the scope of the present application but with amendments or changes that are defined by me with sufficient precision as to be incorporated in either plans or in conditions of consent?”

30 If this second question is answered in the affirmative, I should then proceed to specify the amendments or changes; require their incorporation in the proposal; and approve the proposal as so modified.

31 However, if this second question is answered in the negative, I am obliged to proceed to reject the proposal and dismiss the appeal.

Planning issues

32 The three remaining planning matters that were in dispute between the parties related to the size of Lot 35 and the appropriateness of approving Lot 48 given that there is a drainage gully running generally north-south through the centre of it. Mr. Mallam also questioned whether an appropriate building envelope could be provided on Lot 52 because of the slope of the land.

33 I turn, first, to the question of Lot 35. The proposition that is advanced by Mr. Mallam is that, to conform to the aspirations in the relevant part of the council's Development Control Plan, allotments with a steepness of the slope that exists in this lot should be a minimum of 1000 m². Whilst it was not pressed that this minimum allotment area was an absolute and inflexible standard, it has been Mr. Mallam’s consistently expressed opinion that conformity or near conformity with this allotment size is more than merely desirable for providing an appropriate exciting opportunity for a dwelling. In addition, Lot 35, currently proposed to be about 850 m², has a tree that was identified, as part of the ecological assessment of the site, as being desirable to be retained.

34 The adjacent allotment to the south-east, Lot 36, has an area significantly greater than that nominated as desirable, having an area of over 1100 m². Although transferring some area to Lot 35 from Lot 36, along the common boundary in the vicinity of the intersection of Woodlawn Avenue and Nigel Place is likely to create minor breaches of boundary setbacks for a revised building envelope on Lot 36, the building envelopes that are specified for the allotments within this subdivision are of a generous size, larger than might conventionally be required, and provide a degree of flexibility to ensure that, in a practical sense, appropriate boundary setbacks can be achieved.

35 As a consequence, I am satisfied that Lot 35 can be rendered acceptable by making a boundary adjustment that transfers approximately 100 m² in area from the larger allotment to the smaller allotment by adjusting the boundary between them – whilst retaining, as a swinging point for the boundary, the present fixed rear boundary point but transferring a wedge by rotating the Nigel Place end of the boundary an appropriate distance toward and Woodlawn Avenue. Whilst this may not entirely guarantee protection of the tree that it may be desirable to preserve, given the additional area to be added to Lot 35 and, as previously noted, the generous size of the required building envelopes, a requirement by the council at the time of any development application for a house on this allotment may make it possible for this tree to be preserved (if that is also a desirable outcome).

36 With respect to Mr. Mallam’s concerns about an appropriate building envelope on Lot 52, it was Mr. Riordan's evidence, in response to a question, that flipping the building envelope on the adjacent allotment to the south onto Lot 52 would provide an appropriate building envelope for this allotment.

37 Whilst portion of such a designated building envelope would be on a slope in excess of 30°, from the slope mapping shown earlier, this would comprise a comparatively small portion of the designated building envelope. I do not consider that this area, if it is necessary to be utilised given the already noted generous size of the designated building envelope, would provide insurmountable or inappropriate construction difficulties. Whilst utilization of this steep section as part of a dwelling footprint would be likely to increase construction costs, I do not consider that it is either insurmountable, in a practical sense, or unreasonable, in a planning sense, to permit that portion of a designated building envelope to be of such a slope. Lot 52 is thus acceptable.

38 Mr. Mallam’s concerns about the north-south running drainage gully through Lot 48 do not, in my view, warrant a rejection of the applicant's proposal for the creation of an additional allotment in this area of the proposed subdivision.

39 Whilst it will undoubtedly be necessary for the council to consider, carefully, how stormwater flows are to be accommodated by any dwelling that might be proposed for this allotment, there are a range of construction techniques, including piping and over channel construction that can appropriately accommodate stormwater flows whilst still permitting the construction of a dwelling. In addition, I again note the generosity of size of the building envelopes, a provision that will assist in ensuring an appropriately designed resolution of any drainage issues on this allotment at the time of assessment of a building proposal.

40 Mr. Shrimpton, the council’s roads and traffic expert, in his assessment of road classification, made an assumption that, as the proposal presently envisages a tapering extension to Cavil Place towards the residual, flatter agricultural land to the north, provision should be incorporated in this road network for future urban expansion in that direction despite there being no strategic plan by the council for this to occur.

41 It was Mr. Riordan's evidence that the taper out of Cavil Place to the north was designed purely for access for agricultural management purposes. Mr. Riordan agreed that it did not need to be such a taper out and that such access could be achieved by a footpath crossing and the continuation of the northern side of Jane Place in an unbroken fashion with the footpath crossing leading to an access gate in an agricultural fence.

42 Given that there is no prejudice to the applicant's land management of the residual agricultural land by this occurring, the plans should be amended to reflect this and make it clear that these plans are not designed to facilitate or accommodate any further urban development toward the north. If that were ever to become the position, the state of the local road network would necessitate consideration in any such strategic planning process in such an eventuality.

43 I also note, at this conclusion of my discussion of the planning issues that remain in contention, that Mr. Mallam accepted that the allotments surrounding Magnus Place were, in the final version now proposed for approval, adequate in size. He, however, also expressed the view that some further increase in the size of these allotments would be preferable but was not strictly necessary to be required.

44 As discussed later in this decision, when dealing with road and traffic issues, I am of the view that a redesign of the intersection of Woodlawn Avenue and Cavendish Road is necessary to render the road design acceptable. This involves the deletion of one proposed allotment, Lot 60, from the subdivision. The allotment that is to be deleted is 1361 m² in area. Whilst I expect that a portion of this area will be consumed in accommodating the redesign of the intersection (as an addition to the area currently necessary for road design at this point on the presently proposed road layout), it is also obvious that a significant area of land will be available to be redistributed amongst existing allotments.

45 Some of that will be to the south-west and can be distributed amongst the allotments commencing with Lot 52. However, I would expect that the larger portion of such land will be available for redistribution amongst the allotments in the Magnus Place precinct and such redistribution will go, at least in some measure, towards satisfying Mr. Mallam’s concerns about the appropriateness of providing additional area on these various allotments.

Koalas

46 I turn, now, to the question of koalas and whether or not, if the terms of SEPP 44 are engaged and the land is core koala habitat, what should be done with respect to the requirement for the concurrence by the Director of the NPWS to a koala plan of management.

47 With respect to this issue, I earlier described a deal of informal evidence that was given to me during the course of the second site inspection. Part of that evidence comprised photographic evidence of koalas in trees on the site in the area proposed to be conserved by the creation of the public reserve known as Lot 45. There is no doubt that many of the trees on the site comprise koala food trees. The uncontradicted evidence given by a resident was that the koalas of which she had provided photographs were not the same koala photographed on multiple occasions but were a number of different koalas able to be distinguished, one from the other, by their physical characteristics such as size or colouring.

48 Although none of this observational evidence or any documentary material in evidence demonstrated conclusively that there was more than one koala in occupation of the site at any given time, the evidence of koala activity in the vicinity as well as the specific evidence of koala activity on the site is such that I could not have the necessary degree of comfortable satisfaction to accept Mr. Riggs submission that I should conclude there was not a resident koala population on the site – he submitting that such a population required two or more koalas at the same time. I accept that I do not have any evidence of the presence of breeding female koalas on the site but that is not the sole determinant for satisfaction of the relevant provision in SEPP 44, a provision that is in the following terms:

core koala habitat means an area of land with a resident population of koalas, evidenced by attributes such as breeding females (that is, females with young) and recent sightings of and historical records of a population.

49 As I am satisfied that I cannot conclude that there may not have been two (or more) koalas resident on the site at any time (thus constituting a resident population and the finding of the site being core koala habitat for the purposes of triggering the protective provisions in SEPP 44), I am satisfied that I must conclude that I should treat the site as core koala habitat in accordance with the definition set out above.

50 The consequence of that finding is that, prior to me granting development consent for the proposed subdivision, there must be a koala management plan approved by the Director of NPWS.

51 I put the proposition to Mr. Rigg and to Mr. Young that, if I were to reach the conclusion that I have with reached and there were no other substantive impediments granting of development consent, the appropriate course of action would be for me to adjourn the case for a sufficient period of time for the applicant to commission such a document that might be anticipated to receive the Director’s approval and sufficient time within which to seek that approval. I did not understand that Mr. Young strongly resisted that course as, although he objected to the applicant not having dealt with this matter properly, in the council's view, prior to this late stage of the proceedings.

52 As my overall decision will require the preparation of a further revised version of the subdivision plan in order to:

• incorporate the changes to the road design at the intersections of Woodlawn Avenue with Cavill Avenue and Cavendish Road together with the attendant land redistribution caused by the elimination of Lot 60 and the redistribution of the surplus of that allotment after the redesign of that intersection; and
• make the boundary readjustment necessary between lots 35 and 36,

it is not unreasonable for me to permit this additional time to the applicant to seek the Director's approval of a koala plan of management.

53 I have, therefore, at the conclusion of this decision, given directions that will accommodate that (including providing at copy of the proposed plan of management to the council so that it might make any submission that it might wish to for the Directors consideration in the course of that officer deciding whether or not to approve the proposed plan of management).

Road issues

54 I am satisfied, on the basis of material provided in response to a further direction that the council has contemplated of the desirability of a link road through the site (between Trinity Drive at one end and the Highway at the other end) as part of its planning approach to the road network within its urban area. I am also satisfied, on the documents, that such consideration commenced prior to the lodgement of this application to the council.

55 However, to the modest extent that it could have some relevance, I am also satisfied that two design options – one for a straight through road in a similar but by no means identical location to that proposed for Woodlawn Avenue and a second design, of a zigzag variety entirely inconsistent with the present subdivision proposal – were developed by the council and have not, prior to the final day of the hearing, previously been disclosed to the applicant or any persons associated with the preparation of the application.

56 Further, I observe at the commencement of this consideration, that there has been no indication provided in the evidence in these proceedings that the council has sought to acquire a road corridor through the site for the purposes of itsself constructing such a link road. Whilst not determinative, these matters warrant some very minor weight in my consideration of the present road proposed by the applicant (together with any modifications that might be appropriate to it to render it acceptable in the amber light fashion earlier discussed).

57 With respect to the road design, I heard multidisciplinary concurrent evidence from Mr. Shrimpton and Mr. Riordan.

58 In effect, although there was an argument between them as to how Woodlawn Avenue should be classified within a road hierarchy, being an issue that relates to, amongst other things, the nature of the catchment to be served by the road; the types of vehicles expected to use the road; and the volume of traffic expected to use the road, in the end, for the reasons discussed below, I was not greatly assisted by this discussion.

59 Before turning to consider the issues that relate to the design of Woodlawn Avenue, it is pertinent to note one relevant matter concerning the council’s land release strategy. As I understood the evidence, although the release of additional allotments toward the northern end of Trinity Drive had been included in the council's strategic land release program, the release of this land was no longer likely in the short or, perhaps, medium-term. As a consequence, there is considerable uncertainty, in my view, about the extent of the residential catchment at the north-western end of Woodlawn Avenue that would be serviced by the proposed link road.

60 It is also evident to note that, although Mr. Shrimpton, in his oral evidence, indicated that he considered that it was likely that the council would contemplate, at some time in the future, closure of existing roads in the vicinity at the point where they joined the Highway, thus increasing the likely traffic demand on Woodlawn Avenue, he conceded that this was not presently a policy of any specific nature and, as I understood him, had not been incorporated in any council policy documents. Indeed, if I understood him correctly, although it is not critical for the purposes of this decision – being merely a matter of very minor consideration, such closures would be a matter for consideration by the Roads and Traffic Authority, primarily, rather than for the council.

61 There were two matters of particular concern to Mr. Shrimpton relating to the design of Woodlawn Avenue. The first was the extent of the length of this road that had a gradient of 20°. As can be seen from the long section of Woodlawn Avenue reproduced below, that steep section would extend for approximately 400 m from the vicinity of Cavill Place through to, if Woodlawn Avenue were to be connected to the Highway, a point close to that intersection.

62 Pending connection of Woodlawn Avenue to the Highway, this length of that road with a 20° gradient would go from approximately Cavill Avenue to the turning circle proposed for the southern end of Woodlawn Avenue in the vicinity of Lots 37 and 39 as can be seen on the earlier subdivision plan. Second, in addition to the length of Woodlawn Avenue that Mr. Shrimpton considered was excessively steep for the nature of the road use envisaged, he was also concerned that the approach from east to west, in Cavendish Road, to the intersection with Woodlawn Avenue did not provide an adequate sight line, given the slope in Cavendish Road, for vehicles approaching this intersection.

63 Mr. Shrimpton was of the opinion that an acceptable gradient in Woodlawn Avenue would need the present gradient to be reduced to 16% or not much more than that. This would require, as I understood his evidence, either movement of Woodlawn Avenue to reflect the diagonal option considered by the council, an option that looks, in plan, deceptively similar to that of the present design for Woodlawn Avenue but which, on Mr. Shrimpton and Mr. Riordan's evidence would require significantly differing construction. Indeed, as I understood the evidence of these experts, alteration of the presently proposed alignment of Woodlawn Avenue to that in the council's diagonal option would require a complete redesign of the subdivision and, on my understanding of the topography of the land, was likely to impact on the possible development yield of the land based on any such redesign.

64 The council's zigzagging alternative would also similarly require a complete redesign of the proposal, it is clear.

65 Mr. Riordan was asked, given that the long section depicted above shows a significant dipping, low point at the northern end of the present design for Woodlawn Avenue, what would need to be the height to which the low point would need to be filled and contain within retaining walls to achieve the decrease in the slope of the present road design to achieve the lower slope gradient postulated by Mr. Shrimpton. Including the extent to which there is present to fill in this vicinity on the presently proposed design, it was Mr. Riordan's opinion that retaining walls to achieve Mr. Shrimpton's desire slope would need to be, potentially, up to 40 m high – a self-evidently absurd proposition.

66 It was Mr. Riordan's evidence that an additional 5 m or so of fill, at the low point, would be necessary to achieve approximately a 1° lowering of the slope of the road across its full-length. Mr. Riordan and Mr. Shrimpton were also invited to contemplate, as part of the potential amber light consideration of the proposal, in addition to some modest and acceptable increase in height at the low point and thus a modest amelioration of the slope, what would be the position if proposed Lot 60, at the intersection of Woodlawn Avenue and Cavendish Road, were to be deleted and the present intersection design (which has Woodlawn Avenue being the through movement and Cavendish Road forming the upright of the T intersection), were to be rotated, diagonally across the presently proposed Lot 60, so that the through traffic path would be from Woodlawn Avenue into Cavendish Road, from north-west to east with the south-east extension of Woodlawn Avenue forming a T intersection with that through path.

67 As I understood the evidence in response to this, it was Mr. Shrimpton's opinion that a combination of an increase in height at the low point so as to achieve approximately a 1° reduction in the slope if coupled with such a redesign to the intersection of Woodlawn Avenue and Cavendish Road would provide a degree of amelioration to his concerns but not sufficient to render the road design acceptable. Mr. Riordan, on the other hand, considered that the alteration to the Woodlawn Avenue/Cavendish Road intersection would be purely cosmetic. Mr. Riordan's comment, however, was made concerning the intersection alone and not any combination of the intersection and any adjustment to the low point to the north-west in Woodlawn Avenue.

68 Essentially, Mr. Shrimpton's concerns were that the nature of the slope would preclude it being used as a heavy vehicle access route or as a bus route and that the down-slope would result in unsafe speeds.

69 Although semantic questions concerning the designation of Woodlawn Avenue in the road hierarchy was the subject of discussion in the evidence and submissions, my use of the words collector and local in the following discussion are not used in the same technical senses as the discussion by Mr. Shrimpton but are merely used by me as shorthand functional descriptions.

70 As a consequence I do not need to consider whether the north-western locality at the end of Woodlawn Avenue along Trinity drive when coupled with the proposed residences likely in the present subdivision proposal would require Woodlawn Avenue, if extended to link with the Highway, to be designated as a collector or a local road in a technical sense. Whether or not such technical designation would be appropriate, is certainly clear that it is the council's planning intention (and has been for some time) that this link road would perform a function that went beyond merely servicing the needs of a subdivision on this land.

71 As a consequence, to fulfil the multiplicity of functions that Mr. Shrimpton envisaged the road would perform, it was Mr. Shrimpton's opinion that 16° was the maximum acceptable gradient. This assumed, as I understood his evidence, that the permitted speed along this section of road would be 50 km/h, the now conventional suburban speed limit. It was also his opinion that the maximum length of such a road at 16° should be 230 m or so.

72 On the other hand, it was Mr. Riordan's opinion that the present road design, if the speed was limited at 40 km/h, was adequate to fulfil the necessary local collector servicing of the subdivision and existing development at the northern end of Trinity Drive, even if the connection to the Highway were to be constructed.

73 Mr. Rigg submitted that the proposed lower speed limit in the vicinity was appropriate for a number of reasons consistent with the council's planning controls. These, essentially, comprised the extent of the frontage of the public reserves on Lots 51 and 72 (to Woodlawn Avenue) and the children's play area public reserve to be dedicated to the council at Lot 2 at the intersection of Magnus Place and Cavendish Road. With respect to this latter public reserve, it was Mr. Rigg's submission that the appropriateness of a lower speed limit in this vicinity, as a consequence of the children's play area, meant that Mr. Shrimpton's concerns relating to the sight lines at the intersection of Woodlawn Avenue and Cavendish Road, on its presently proposed configuration, would be rendered acceptable.

74 It was also Mr. Rigg's submission that the presence of koalas in the area and the extent of the koala habitat on the reserves proposed for Lots 45 and 51 rendered such a lower speed limit desirable, additionally, for koala protection reasons. In this context, I note that it was accepted by both Mr. Shrimpton and Mr. Riordan that speed humps would not be an acceptable method of slowing traffic on Woodlawn Avenue given the proposed gradient of the road.

75 Despite the present road proposal not meeting the entirety of the council's aspirations for a link road, I am none the less satisfied, under the circumstances, for the reasons discussed below, that the present proposal for Woodlawn Avenue is capable of being rendered acceptable, on very fine balance, by making two alterations to its design in a fashion that was discussed with Mr. Shrimpton and Mr. Reardon during the course of their evidence.

76 Those changes are requiring the raising of the low point in Woodlawn Avenue by 4 m so as to achieve a modest ameliorating affect on the slope to the south-west from that low point. If this is coupled with the redesign of the intersection of Cavendish Road and Woodlawn Avenue, as they are presently named, by the elimination of Lot 60 and the redesign of the intersection to the form earlier discussed, the degree of improvement, of some significance in my view – although I accept not to the extent Mr. Shrimpton considered desirable or appropriate.

77 As earlier noted, the elimination of Lot 60 and the redesign of this intersection also has some beneficial (although not strictly necessary) town planning outcomes. Indeed, although only of perhaps minor psychological benefit, it would be appropriate, in my view to rename the portion of road from the redesigned intersection through to Trinity Drive as Cavendish Road with the name Woodlawn Avenue being applied only to that length of road from this redesigned intersection toward the south-east toward the Highway.

78 I have reached this conclusion for a number of reasons.

79 First, I am satisfied that, for the reasons submitted by Mr. Rigg, that the extent of the public reserve frontage to the presently proposed Woodlawn Avenue, when coupled with the appropriateness of protective measures for koalas in the vicinity, renders it acceptable to have a 40 km speed limit along this road network. Indeed, it is a matter of public knowledge that, in other areas of urban settlement, consideration is being given, for amenity and safety reasons, to lowering, in appropriate locations, some present 50 km/h speed limits to 40 km/h.

80 Second, although the future possibility of a link road, if realised, will not achieve the degree of functionality desired by the council, I am satisfied that there is a tension between the council’s broader policy position and the aspirations of the owner of this land for its subdivision. Each of these outcomes is, in my view, compatible with the objective of the Planning Act for the orderly economic development of land. Further, in the present context, those aspirations are in conflict in a fashion that makes it impossible to satisfy both entirely.

81 However, in the context of the present position, I am satisfied that, consistent with the evidence of Mr. Mallam, that there is no town planning inadequacy with the present proposal (given my conclusions concerning Lot 35 and 36 and, separately, concerning each of Lots 48 and 52).

82 As a consequence, it is clear that the present proposal does reflect one form of orderly economic development of the land, being the development proposed in the present application. Rendering it acceptable in rounded design fashion, however, requires additional expenditure as part of the development costs to accommodate an increased height in the low point of Woodlawn Avenue and also requires the forfeiture of one allotment from the development yield – thus having an impact of modest significance of the applicant's development proposal. I also note that there has been, as part of the proposal now falling to me to determine, an increase in the number and the area of the proposed public reserves to meet council’s planning objectives.

83 As discussed in more detail, later, concerning the submissions made by Mr. Rigg on the applicant's proposal for a reduction in s 94 contributions, I make it clear that the various elements, in combination, that come together to make Woodlawn Avenue acceptable – including, particularly, the extent of the public reserve frontage to Woodlawn Avenue and Cavendish Road, are all essential to tipping the proposed road design from rejection to acceptance.

84 I also consider it is relevant to take into account (although this is not necessary for considering the altered road design and lower speed limit to be rendered acceptable), the fact that throughout the process and the extensive series of revisions to the subdivision proposal that have taken place during the conciliation and determination phases of these proceedings, although the council has disclosed its general aspiration for a link road, the design options that have been in the council’s “back pocket ", as it were, for some time, these had not been disclosed to the applicant.

85 Indeed, I note that it was Mr. Riordan’s evidence that making some assessment of the subdivision potential of the land (that would be available if either of the council’s design options were to be adopted, incorporating the modifications that Mr. Shrimpton said would be necessary to render the council's options acceptable), was not possible without significant further work and modelling.

86 As a consequence, although I accept that in the link that will now be able to be provided between the north-west and south-east of the site – should the council elected to complete Woodlawn Avenue through to the Highway – will not have the same degree of functionality as the council may desire, this is, in overall terms, a not inappropriate outcome – particularly given that almost the entirety of the link will now be provided at no cost to the council and, indeed, will be accompanied by a significant financial contribution to the council in circumstances where the option has always been open to the council to seek a designated proposed road reserve and to acquire it, if necessary compulsorily, from the present owner of the site.

Contributions arising from the s 94 plan

87 The council proposes the imposition of a number of contributions pursuant to its contributions plan made as authorised by s 94 of the Planning Act. The applicant says that these contributions are excessive and should be reduced in light of the significant in kind contributions and public benefits being provided by the 13,000 m² of open space in the public reserves (being significantly in excess of the required areas for these purposes) and the fact that a significant proportion of the council's proposed link road is to be provided by the applicant, at no cost to the council, by the construction of Woodlawn Avenue. The applicant’s submission is that, as a matter of discretion, I would not consider that the financial contributions were reasonable and should be reduced. It is clear that I have the power to do so (as confirmed by the Court of Appeal in Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266; (2003) 58 NSWLR 159; (2003) 129 LGERA 165).

88 In it is also relevant to note that there is no challenge to the validity of the plan or of any of the individual items and costings contained in it – the argument is simply one of reasonableness under the circumstances of the other contributions being made by the applicant.

89 Although the contributions that are in imposed on this development by the plan, even having regard to the $100,000 reduction in the road contribution element agreed to by the council, might be regarded, as is obviously the case in the applicant's assessment, as double dipping, I am satisfied that it is not unreasonable for the contributions as proposed by the council to be retained.

90 I have reached this conclusion because, as discussed in the earlier consideration of the roads and traffic issues, the length of the frontage of the public reserves between Lots 51 and 72 to Woodlawn Avenue coupled with the creation of the public reserve for a children's playground on the corner of Magnus Place and Cavendish Road are significant elements in tipping the very fine balance of the road issue in the applicant's favour and thus enabling the applicant, subject to the satisfaction of the koala plan of management matter discussed elsewhere to be given development consent rather than failing on the roads and traffic issue.

91 As a consequence, rather than regarding the additional public reserve area and the provision of a substantial length of the proposed link road (to be provided to a standard that may occasion some limitations to its long term linking function) as providing a basis for reduction of the s 94 contributions, the location and extent of the frontages of the public reserves are entirely necessary to be provided by the applicant to make the overall subdivision proposal acceptable. They are, as it were, the price of acceptability and do not constitute some entirely gratuitous and non-beneficial to the applicant bonus to the council. A similar position applies with respect to the protection of koala habitat trees on Lots 51 and 45. The extent of these reserve areas, as also discussed in the koala-related portion of this decision, is necessary to render the application acceptable in the context of reducing the potential impacts on local koalas by reducing the speed limit rather than as some element of an open space bonus for the council.

92 In summary, the open space areas are necessary, indeed fundamentally so, elements in rendering the proposal acceptable at a road standard lower than that which would be thought by the council is appropriate for a link road. Indeed, the road, if eventually linked to the Highway as envisaged, will not fulfil the entire functionality envisaged by the council. The road network within the subdivision is, with its redesigned centre section, much more akin to elements of a conventional internal road network for subdivision. As a consequence, it is not unreasonable for the totality of the council's contributions, after allowing for the $100,000 reduction offered by the council, to be maintained in their entirity.

93 I have concluded that there are, subject to an adjustment between the boundaries of Lots 35 and 36, no town planning impediments to the approval of the subdivision. I have, however, concluded that, in order to render the proposed road network – particularly Woodlawn Avenue – acceptable, and only on very fine balance, it is necessary to:

• raise the low point in Woodlawn Avenue by 4 m;
• delete Lot 60 of the proposed subdivision;
• re-orient the intersection of Woodlawn Avenue and Cavendish Road so that the Woodlawn Avenue/Cavendish Road alignment is the obvious through path; and
• rearrange the road names to reflect the resulting travel paths.

94 The deletion of Lot 60 and the realignment of the intersection will enable further planning outcome improvements to be achieved within the subdivision (although these improved planning outcomes are not strictly necessary for acceptability of the overall proposal). I have also concluded that the tail off of the northern end of Cavill Place should be deleted and replaced with a kerb crossover and farm gate (in order to make it clear that this subdivision proposal is not intended to make provision for further urban expansion to the north as that is a matter for future policy consideration rather than for this application).

95 With respect to koalas, I have concluded, for the reasons set out, that the site does, relevantly, require to be regarded as core koala habitat and thus, as a consequence, requires a koala plan of management approved by the Director of NPWS. As the preparation and approval of such a plan is the only significant impediment to the granting of development consent to the proposed subdivision, I have concluded that it would be appropriate to permit a period of 28 days (being at least that period proposed by Mr. Rigg) for the applicant to have such a plan of management prepared; submitted to the Director for approval; and, in Mr. Riggs anticipation, approved within that time. I have, however, allowed modestly more than that time to take into account the Christmas holiday period.

96 I have also concluded, for reasons set out, that there is no basis upon which I could conclude that the proposed s 94 contributions were unreasonable and required to be reduced beyond the $100,000 reduction proposed by the council.

97 I have earlier noted that there remain a number of areas of dispute between the applicant and the council concerning conditions of consent. The conditions of consent proposed by the council should be discussed, further, between the legal representatives of the parties, during the period I have allowed for the applicant to obtain approval of a koala plan of management. This discussion should also encompass the conditions proposed by the Rural Fire Service – conditions that were filed for the respondent after this decision was reserved and have not been considered by me as a consequence. In addition, revised plans will need to be prepared to reflect the outcome that I have required. Such plans, I have assumed, can be prepared within the 28 days proposed by Mr. Rigg as necessary for ensuring an approved a koala plan of management.

98 In order to ensure that the necessary preconditions to the granting of development consent can be met, I give the following directions:

1. the applicant is to file and serve and submit to the Director of NPWS for approval, a draft koala plan of management by the close of business on Wednesday 8 December;
2. the applicant is to file and serve revised plans reflecting this decision and settled with the respondent by the close of business on Wednesday 15 December;
3. the respondent is to file and serve revised, settled conditions of consent (if agreed to with the applicant) by the close of business on Wednesday 15 December. Such conditions are to be filed in hard copy and electronically by e-mail to the court in rich text format;
4. if the applicant and the respondent are unable to agree on conditions consequent on this decision, the respondent is directed to file its proposed conditions of consent reflecting this decision, electronically and in hard copy consistent with direction (3) by the close of business on Friday 17 December;
5. if there is no agreement about the conditions of consent, the applicant use to file, electronically in hard copy consistent with direction (3) by the close of business on Tuesday 21 December, its proposed conditions;
6. the applicant is to file and serve a copy of a koala plan of management approved by the Director of NPWS by the close of business on Friday 14 January 2011;
7. the matter is set down for further hearing on Friday 24 December at 8:45 AM from maximum of one and a quarter hours, for the purposes of dealing with any unresolved conditions of consent. The respondent's participation in this hearing may be by telephone if that is more convenient (provided notification of telephone participation is given to the Listings Manager by the close of business on Wednesday 22 December);
8. liberty to re-list before me on two days notice for re-listing on or after 4 January 2011;
9. the matter is set down for mention before me on Tuesday 18 January 2011 at 8:45 AM and
10. if a koala plan of management and approved by the Director of NPWS; revised settled plans; and revised agreed conditions of consent are filed in accordance with directions (2), (3) and (6), I will make orders in chambers upholding the appeal and granting development consent in terms of the revised settled plans and conditions of consent and I will vacate the mention on Tuesday 18 January 2011.

Tim Moore
Senior Commissioner