S J Connelly Pty Ltd v Byron Shire Council (No. 3)

[2009] NSWLEC 1243

Land and Environment Court

of New South Wales

CITATION:

S J Connelly Pty Ltd v Byron Shire Council (No. 3) [2009] NSWLEC 1243

PARTIES:

APPLICANT
S J Connelly Pty Ltd

RESPONDENT
Byron Shire Council

FILE NUMBER(S):

10868 of 2008

CORAM:

Hussey C - Taylor C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Subdivision, flooding impacts, filling, ecological impacts, conditions

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Byron Local Environmental Plan 1988

DATES OF HEARING:

25 June 2009

EX TEMPORE JUDGMENT DATE:

25 June 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Tomasetti (barrister)
SOLICITOR
McCartney Young Lawyers

RESPONDENT
Mr A Seton (solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C
Taylor C

25 June 2009

10868 of 2008 S J Connelly Pty Ltd v Byron Shire Council

This determination was given extemporaneously
and it has been edited prior to publication


JUDGMENT

1 These proceedings arise form this Court’s findings, which were published 9 March 2009, relative to a subdivision application for 17 residential lots and associated community lot, to be contained within a community title at Dengha Place, Baywood Chase Estate, Byron Bay.

2 Subsequent to these findings, the Applicant was granted leave to rely on amended plans that responded to the findings. The amended plans reduce the lot yield to 14 residential lots, to be created within a Torrens Title subdivision. It also amends the new access road configuration, which is to be dedicated as a public road and this now generally conforms with the council’s subdivision road standards.

3 Notwithstanding this, the subdivision will result in some environmental impacts, which had been assessed in the following manner.

Flooding

4 This was a threshold issue in the original proceedings and findings were made about the appropriate computer modeling to determine acceptable level of flood risks.

5 Consequently the amended plans have been reviewed by the hydraulic engineers Mr S. Doolan and Mr M. Gibson who have agreed on critical flooding issues as follow:

3. In regards to the matters specifically directed to be addressed by the Court we provide the following information.
a As the development is located above the 100 year ARI climate change level and contains retention basins, it is unlikely to modify the catchment's hydrology for runoff events up to an event of 100 year ARI magnitude,
b. The flood impacts of the amended development using current flood modelling data is less than 0.5 mm and is effectively zero. That is that the development will have no measureable effect on peak flood level adjacent to or upstream or downstream of the proposed development for events up to the 100 year ARI flood event (with climate change effects incorporated).
c. The portion of the new road proposed for the development which fronts the parkland/wetland corridor is to be constructed at the natural ground level of 5.0 m AHD. This level is below the 100 year ARI flood level and would mean that the road would be inundated in a 100 year ARI event by an average 0.167 m. This will not impact on road trafficability but safety barriers would be essential to ensure no cars are driven into the creek corridor by accident. Such a flood depth in the 100 year ARI flood event is not considered to present a hazard to the public.
d. The tolerance of the TUFLOW model is approximately 1 mm when considering the impact of a proposed catchment change to a pre-change condition. Differences in water levels of less than 1 mm are usually considered to be beyond model tolerances.
e. The difference in 100 year ARI water levels shown in Figure 4 of exhibit "NOM A" (being the "Detailed Flood Study Report" prepared by Mark Gibson of MRG Water Consulting Pty Ltd dated April 2009) is below the 1 mm tolerance which is considered to be the accuracy of the model.
f. It is our opinion that the effects of the amended development are below model tolerances and the impacts are not statistically significant.
g. There is a small amount of fill being placed along the edge of the flood inundation extent but the modelling predicts no deleterious effects on flooding at the site or in the locality.
4. In summary, the proposed development is considered acceptable from a hydraulics and hydrologic perspective where the proposed modifications as detailed above in point 2 are incorporated into the site design.

6 The Court relies on this agreement by the engineers that the amended proposal will result in an acceptable level of flood risk that is consistent with councils development controls.

Ecology

7 The original findings expressed some concerns about the proposed interface of the subdivision with the adjoining open space/watercourse, particularly the proposed retaining wall.

8 However, the ecological impact of the revised subdivision application has been assessed in a joint ecologists report by Mr P. Parker and Mr D. Milledge. They assessed the existing stand of native vegetation comprising a Broad-leaved Paperbark community located along the sites eastern boundary and its status as an endangered ecological community (EEC) as listed under the Threatened Species Conservation Act (TSC Act).

9 From this they agreed:

“that the Western Broad-leaved Paper bark community does not represent an EEC, although it is clearly vegetation of high conservation significance as reported by Parker (2006)”.

10 Consequently, they considered the following potential impacts:

(a) Impact of bio-detention swales; concluding that taking into account the design and location of these swales, they would not impact or affect the volume of run off reaching the Paperbark community.
(b) Management of swales vegetation; no specific concerns were raised in this regard, providing the other proposed construction elements, e.g. proposed dense planting of additional Broad – leaved Paperbarks, particularly west of the cycle-way, are incorporated into conditions of consent.
(c) Wetlands design; in the proposed circumstances no specific requirements.
(d) Likelihood of deletion impact of the development on adjoining vegetation; It seems from the assessment that the proposed construction incorporating the on-site detention and diversion of direct run-off into the vegetation area is likely to result in an improvement in conditions of this adjoining vegetation, subject to compliance with the suggested conditions of consent. These conditions include the removal and control of invasive weed systems

11 The Court then accepts that the suggested conditions can reasonably address any ecological impact concerns, and more likely result in an improvement and protection of this environment vegetation along the watercourse.

12 Obviously a subdivision of this nature involves new road and drainage works to service the proposed lots. These engineering impacts have been considered by:

• Mr T Emery and Mr G Steel, engineers for the applicant, and
• Mr J. Begovic, engineer for the council.

13 In a joint report (“Exhibit 19”) they assessed the revised proposals compliance with council’s DCP and whilst there is a “minor” variation in the width of the proposed 14 m wide access road, nevertheless they are satisfied it is adequate in the circumstances.

14 They also undertook additional investigations to assess the stormwater controls, including the bio-retention basins. From this, they agreed:

It was agreed that the proposed bio-retention basins 1 and 2 should be modified and the bio-retention swale running alongside the proposed road removed. Details of the modifications are included in the Stormwater Management Report prepared by Geolink, dated 3rd June 2009 and referenced 428625, which is included in this report at Appendix E. The modifications to bio-retention basins 1 and 2 include raising the surface levels of the bio-retention basins, reducing the thickness of the filter media to 400mm, and providing an impermeable liner around the sides of the bio-retention filter media. The bio-retention swale running alongside the road, adjacent to Lot 8, is proposed to be deleted and the area adjacent to the roadway regarded and profiled to slope uniformly from the edge of the roadway to the edge of the vegetation in the drainage reserve. The roadway is to have no longitudinal grade with stormwater drainage being discharged from the roadway by sheet flow to the drainage reserve. Appropriate scour protection will also be required at the ends of the kerb and gutter.

15 The engineers concluded that the revised subdivision layout is acceptable subject to the compliance with agreed engineering conditions.

16 The Court relies on this agreement that the general engineering consideration.

Planning issues

17 Mr. S Connelly and Mr. J Begovic in Exhibit 17 jointly assessed the planning considerations arising from the revised application, on the following basis.

18 These considerations were in respect to:

a) Whether the amended development application complies with the provisions of relevant Development Control Plans.

19 The planners applied the provisions of Part B of DCP 2002 and Sections 4 and 5 of Development Control Plan No. 9 - Suffolk Park and agreed that the amended proposal is generally in accordance with these provisions.

20 They noted that proposed Lot 1 is a corner lot with an area of 656 sq m. Section 5.1 of DCP No. 9 prescribes a minimum lot area of 800 sq m for a corner lot. However, the proximate Lot 288 DP238199, which is situated on the corner of Lasiandra Close and Dehnga Place is a corner lot of an area of 718 sq m. They agreed that given the proposed corner lot is unchanged from the un-amended layout and as it fronts only the road that provides access to the proposed subdivision, the degree of amenity loss will be minimal and the non-compliance is supported.

b) Any other town planning issues that arise in respect of the amended development application.

21 The original application was assessed by Council as being compliant with the following planning provisions:

• State Environmental Planning Policy No. 71 Coastal Development
• North Coast Regional Environmental Plan clause 43
• Byron Local Environmental Plan 1988 clause 9 Zone 2(a) Objectives

22 The amended development does not raise any new issue that would bring the amended application into non-compliance with any of these provisions, according to the planners They further noted that proposed Lots 8, 9, 10 and 14 have areas greater than 800 sq m. This is above the threshold for the minimum lot area for dual occupancy development as specified in Council’s DCPs. They could see no constraints that would inhibit the granting of consent to a well designed dual occupancy in accordance with the relevant DCP provisions.

23 The planners also assessed the public submissions made regarding the proposal. The planners comments on these submissions as contained in the neighbors letter of 6 May 2009 are:

.1 Compliance with Byron Shire DCP concerning road width.
The objector is in error quoting the standard for a 15 lot and greater subdivision. The proposed subdivision is for only 14 lots. This matter has been considered in the joint engineering conference.
.2 Inclusion of 4 duplex lots
4 lots capable of development for duplex purposes are included in the subdivision. This does not automatically mean that a duplex will be constructed on these lots. Council will assess the impact on the road system with the Development Application for each lot.
The subject land is designated pursuant to Council’s Development Control Plan for medium density type development. Development in the manner proposed with 14 lots and up to 4 duplex lots, is a much lower intensity than that permitted by the DCP.
.3 Access to sporting fields
The objector is under the mistaken belief that general vehicular access to Council’s sporting fields is proposed via Dehnga Place. This is not correct. Council will have maintenance access to the sporting fields from Dehnga Place and the community at large will have a pedestrian/cycleway but no vehicular access in proposed .
.4 Footpath
The low order road proposed does not require the provisions of road footpaths. Footpaths/cycleway has been provided linking the northern part of the Baywood Chase estate with Council’s recently constructed recreation facility.
.5 Removal of house fences for fire fighting purposes
There will be no need for the removal of fences to provide fire fighting access. [We note the subdivision plan
.6 Poorly maintained stormwater drains
The subject site has been examined comprehensively by both a flooding and stormwater drainage expert. In the main, the drainage from the subject site is not directed to the lake.
.7 2 Storey dwellings should be prohibited
There is not proposed to be any special controls applying to height of dwellings in the subdivision. The standard rules applicable to all dwelling house construction in the Shire is proposed to apply. There is no particular vista or view relevant to properties in the subject locality which will be adversely affected by such an approach.
.8 Intersection standard
The concern about the junction of Dehnga Place and Beach Drive is the subject of the same objection that raised on-site and was the subject of detailed on-site investigations by Council’s engineers and engineers on behalf of the applicant. They formed the view after inspection and measurement that the subject intersection complied with all relevant sight distance requirements.
Having regard to the above, we are of opinion that this objection is not of sufficient weight to warrant a refusal of the subject application.
.9 Bush Fire Safety Authority
Asset Protection Zones (APZ) as required by the Bush Fire Safety Authority can be complied with. An easement for the APZ over the proposed drainage reserve with appropriate wording be included in the conditions of consent.

Conclusion

24 Having considered the revised proposal in the context of the original Court findings and subsequent expert reports tendered today, the Court is now satisfied that the amended application merits conditional consent by way of the consent orders.

25 This application is for the reduced number of 14 residential lots, which are to be created in a Torrens Title subdivision. The new road system is to be dedicated as a public road and it is aligned so as to allow convenient public access and for service vehicles to the adjoining open space area. These changes overcome most of the deficiencies in the original application.

26 As mentioned before, the main issues identified have been resolved in the following manner:

Flooding/drainage

27 The revised subdivision layout now follows the site contours to a more satisfactory extent and does not require a retaining wall barrier adjacent to the estimated 1:100 flood level area. The Court considers this now represents a reasonable level of flooding risk, in terms of the council’s controls and also taking into account the proposed on-site detention proposals.

28 The Court is now satisfied that the construction maintenance measures incorporated into the conditions will likely result in an enhancement of the status and condition of the exiting vegetation area along the water area. This is a positive element of the proposal.

Planning considerations

29 The assessment of the revised plans confirms that this proposal demonstrates reasonable compliance with councils development controls to merit consent.

30 Insofar as concerns were raised about the impact of future dual-occupancy, this development application does not propose any such development and if it is contemplated in the future, on any of the lots longer that 800 sq m, it would then be subject to merit assessment.

Submissions

31 The resident submissions have been assessed by planners/engineers and the Court accepts the explanations given in the joint report. (Exhibit 16).

32 The main concern relates to drainage and possible flooding, but this issue has been the subject of extensive catchments modeling undertaken by the hydraulic experts. The Court accepts their agreed conclusion that with the incorporation of OSD system, the level of flooding risk should be at an acceptable level. Further than the subdivision works are contained outside the estimated 1:100 flood level and should not exacerbate any flooding in the nearby area.

33 With regard to the new subdivision road, we rely on the engineers and planners agreement that the road width is satisfactory to provide a reasonable level of environmental capacity. We note that in terms of traffic planning, it is often desirable to have narrower carriageways to reduce traffic speed in residential precincts, as wider roads often tend to allow greater speed, which increases safety problems.

34 But in any case, one would expect there is reasonable supervision of children playing on the street and wide road carriageway wouldn’t necessarily translate into additional safety. The matter of sight distance at the intersection of Beech Drive was previously addressed by the engineers and is not considered to be of a nature that would warrant refusal of the application or a reduced number of lots.

35 In the ultimate, the Court relies on the conclusion of the aforementioned experts that this revised subdivision application for 14 residential lots now merit conditional consent by way of the agreed consent orders.

36 The Court orders by consent:

1. The appeal is upheld.
2. Development consent is granted to Development Application 10.2006.635.1 for the 14 lot residential subdivision at Dengha Place, Baywood Case Estate, Suffolk Park, subject to the conditions in Annexure A.
3. The exhibits are returned except Q, S, 16, 17, 18, 19 and 20.

___________________ ___________________

R Hussey M Taylor
Commissioner of the Court Commissioner of the Court
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