Skyton Developments Pty Ltd v The Hills Shire Council

[2009] NSWLEC 1299

Land and Environment Court

of New South Wales

CITATION:

Skyton Developments Pty Ltd v The Hills Shire Council [2009] NSWLEC 1299

PARTIES:

APPLICANT
Skyton Developments Pty Ltd

RESPONDENT
The Hills Shire Council

INTERVENOR
Rainbowforce Pty Ltd

FILE NUMBER(S):

11151 of 2008

CORAM:

Brown C

KEY ISSUES:

DEVELOPMENT APPLICATION :- demolish all existing structures and construct four apartment buildings - non compliance with DCP requirements for building height, building length, setbacks, and density - access to and from the site - capacity of nearby intersection - satisfactory arrangements for access across the site for adjoining development

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 65
Baulkham Hills Local Environmental Plan 2005
Baulkham Hills Development Control Plan

CASES CITED:

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472
Zhang v Canterbury City Council (2001) 115 LGERA 373
Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986)

DATES OF HEARING:

31 August 2009 and 1, 2 September 2009

 
DATE OF JUDGMENT: 

11 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Rigg, solicitor
SOLICITORS
Deacons

RESPONDENT
Mr J Kildea, barrister
SOLICITORS
The Hills Shire Council

INTERVENOR
Mr D Briggs, solicitor
SOLICITORS
DG Briggs and Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

11 September 2009

11151 of 2008 Skyton Developments Pty Ltd v The Hills Shire Council

JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application No 1167/20008/HC by The Hills Shire Council (the council) to demolish all existing structures and construct four apartment buildings at 27 - 33 North Rocks Road, North Rocks (the site).

The site and locality

2 The site comprises Lots 2 and 3 in DP 22931, Lot 1 in DP 127003, Lot 101 in DP 617754, Lots 2 and 3 in DP 247452, Lot 1 in DP 617754 and Lot 2 in DP 721567. It is irregular in shape with a 98.705 m eastern frontage to North Rocks Road, a southern boundary to James Ruse Drive and a northern boundary to Darling Mills Creek, a residential development and a council reserve. Darling Mills Creek bisects the site. The site has a total area of 15,745 sq m.

3 The locality contains a varied range of land uses. Adjoining the site to the north and on the opposite side of North Rocks Road are residential developments consisting of single dwellings and townhouse style developments. To the south, and on the other side of the James Ruse Drive overpass, the character is predominantly commercial and industrial.

The proposal

4 The proposal provides for the demolition of the remaining industrial buildings on the site and the construction of 4 separate apartment buildings (Blocks A, B, C and D) between 5 storeys and 11 storeys in height above a three level basement car park for 408 spaces. The proposal has been modified since considered by the council and currently provides for a total of 175 apartments, consisting of 13 x 1 bedroom apartments, 138 x 2 bedroom apartments and 24 x 3 bedroom apartments.

Relevant planning controls

5 The site is zoned Residential 2(a1) under Baulkham Hills Local Environmental Plan 2005 (LEP 2005). The proposed development is defined as an "apartment building" and is a permissible land use within this zone. Clause 13 (2) provides that consent must not be granted unless the consent authority is satisfied that the development is consistent with one more of the aims of the plan and any relevant objectives for development (cl 13(2)(a)) and is not contrary to achieving the objectives of the zone (cl 13(2)(b)).

6 The relevant zone objectives are:

( b) to identify those localities that are capable of supporting an increase in housing density and population, and
(c) to increase housing density in locations adjacent to the main activity centres of the local government area, and
(f) to ensure that any development carried out:
(i) is compatible with adjoining structures in terms of elevations to the street and building height, and

7 Baulkham Hills Development Control Plan –Introduction - Part A (DCP Pt A) applies. Clause 1.3 provides aims and objectives for the DCP. Clause 1.7 provides objectives, performance criteria and development controls and relevantly states:

An applicant may request a variation to any development control, provided that the objectives of the specific development control and the relevant section of the DCP as a whole can still be achieved. The applicant must submit written documentation to support any request for a variation to the DCP.

8 Baulkham Hills Development Control Plan –Target Site 27-33 North Rocks Rd, North Rocks– Part E – Section 5 (the Site DCP) applies specifically to the site. Clause 2 provides objectives and development controls and relevantly states that this Target Site Section is to be read in conjunction with Baulkham Hills Development Control Plan – Apartment Building – Part C – Section 7. Clause 2.2 provides objectives and development controls for setbacks and cl 2.5 provides requirements for access and states:

OBJECTIVES
(i) To ensure that vehicular access can be gained to the site based on sound traffic management principles.
(ii) Access arrangements must be made in relation to the adjacent site (21 Windsor Road)

DEVELOPMENT CONTROLS
(a) the principal access to the site should be from North Rock's Road, in a location that provides adequate site (sight) distances.
(b) the internal road layout must be designed to provide the opportunity for access to adjoining sites to prevent this sterilisation of those sites. These sites include:

· Lot 3 DP 247452

· No 21 Windsor Rd (Lot 4 DP 247452).

SUBMISSION REQUIREMENT
Documentation indicating that access arrangements have been approved by the Roads and Traffic Authority and have had regard for the development of other sites in the locality.

9 Baulkham Hills Development Control Plan – Apartment Building – Part C – Section 7 (the Apartment DCP) applies. Clause 3.4 provides requirements for building height. The objectives are:

( i) To ensure that buildings reflect the existing land form of the neighbourhood, including ridgelines and drainage depressions.
(ii) To protect privacy and amenity of surrounding allotments and residential development in accordance with Councils ESD objective 7.
(iii) To minimise overshadowing of adjoining properties.

10 The development controls provide for a maximum building height of 13 m to the eave and to the ridge of 16 m. This height would generally equate to a 4 storey building. The proposed development is between 5 storeys and 11 storeys.

11 Clause 3.7 provides requirement for building length. The objectives are:

(i) To reduce the visual bulk and scale of apartment buildings.
(ii) To ensure that developments will enhance and contribute to the streetscape and desired character of the future and existing neighbourhood.

12 The development controls provide for a maximum linear length of any apartment building to be 50 m. Blocks A, C and D comply however Block B has a maximum linear length of around 59 m.

13 Clause 3.10 provides requirements for density. The objectives are:

( i) To ensure apartment building development does not pay the tax existing services and facilities.
(ii) To provide opportunities for raised suitable density housing form that is compatible with existing surrounding development.

14 The development controls provide for a maximum population density of 175 persons per hectare within a desirable range between 150 and 175 persons per hectare. The clause further states that the maximum density should not be considered as a desired yield for each site. The yield will be dependent on identifying designs that address the objectives of this section of the development control plan (DCP). The proposed development has a density of 234 persons per hectare.

15 State Environmental Planning Policy No. 65 - Design Quality of Residential Flat Development (SEPP 65) applies to the proposed development. Clause 30 requires consideration to be given to the design quality principles in Part 2 (cl 30(2)(b)) and the publication Residential Flat Design Code (cl 30(2)(c)). The relevant principles are:

· Principle 1: Context

This principle states that "good design responds and contributes to its context. Context can be defined as the key natural and built features of an area. Responding to context involves identifying the desirable elements of a locations current character or, in the case of precincts undergoing a transition, the desired future character as stated in planning and design policies. New buildings will thereby contribute to the quality and identity of the area."

· Principle 2: Scale

This principle states that "good design provides an appropriate scale in terms of the bulk and height that suits the scale of the street and the surrounding buildings. Establishing an appropriate scale requires a considered response to the scale of existing development. In precincts undergoing a transition, proposed bulk and height needs to achieve the scale identified for the desired future character of the area" .

· Principle 3: Built Form

This principle states that "good design achieves an appropriate built form for a site and the buildings purpose, in terms of building alignments, proportions, building type and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, and including the views and vistas, and provides internal amenity and outlook".

· Principle 4: Density

This principle states that "good design has a density appropriate for a site and its context, in terms of floorspace yields (or number of units or residents). Appropriate densities are sustainable and consistent with the existing densities in the area or, in precincts undergoing a transition, are consistent with the stated desired future density. Sustainable densities respond to the regional context, availability of infrastructure, public transport, community facilities and environmental quality" .
The contentions

16 The council raised the following contentions:

• the proposed development is an overdevelopment of the site given the relevant principles in SEPP 65 and the breaches of the DCP requirements relating to building height, building length, setbacks, and density,
• access from the site and the capacity of the intersection of North Rocks Road and Windsor Road to accommodate the additional traffic, and
• whether satisfactory arrangements have been made for access across the site for the adjoining development at 21 Windsor Rd.
The evidence

17 On the overdevelopment issue, Mr Lindsay Fletcher, a town planner and Mr Nigel Dickson, an architect and urban designer provided evidence for the applicant and Mr Stuart Harding, a town planner and Ms Gabrielle Morrish, an architect and urban designer provided evidence for the council.

18 On the traffic and access issues, Mr Graham Pindar, a traffic engineer provided evidence for the applicant and Mr John Coady, a traffic engineer provided evidence for the council. On 12 August 2009, a Notice of Motion was heard by Biscoe J to allow limited intervention in the appeal by Rainbowforce Pty Ltd, the owners of 21 Windsor Road. A deferred commencement approval had been granted by the council for this property requiring access over the site of this appeal as access is denied to Windsor Road. The issue of this access is addressed later in the judgement. His Honour made the following order in relation to traffic and access:

3. The parties traffic experts together with Mr Dean Brodie (for the intervenor), confer and file a joint report by 12 August 2009.
Background to planning controls

19 The council adopted an approach of identifying specific sites for increased density to allow the council to gain an exemption from the provisions of State Environmental Planning Policy No 53 – Metropolitan Residential Development. These specific sites were identified as Target Sites. A Target Sites Panel was constituted by the council to provide recommendations on appropriate sites. The site of this appeal is a Target Site, as is the adjoining site at 21 Windsor Rd (Target Site 7). Target Site 7 is subject to Baulkham Hills Development Control Plan – Target Site No 7, 19-21 Windsor Road, Northmead. It is a site-specific DCP that provides specific controls for the development of the site rather than rely on the generic controls within DCP Pt C, that apply to the site. For example, cl 4.1.9 provides for no more than 300 apartments on the site with cl 4.1.10 providing the appropriate mix of 1, 2, and 3 bedroom apartments. The equivalent density in persons per hectare is greater than that applies to the site.

20 The evolution of the planning controls, and particularly the specific controls for Target Site 7 was a common thread through much of the evidence in the proceedings. For this reason it is necessary to provide a brief chronology of the events that relate to the site, Target Site 7 and the existing planning controls.

7/12/2001 DCP No. 33 adopted by Council. DCP No. 33 comes into force on 28 March 2002. (This DCP ultimately renamed the Site DCP).

28/03/2002 Gazettal of BHLEP 1991 (Amendment No. 89) which rezoned the site from Part Light Industry 4(b) and Residential 2(a) to Residential 2(al).

20/04/2004 Council resolved to re-number Council's existing Development Control Plans, including DCP No. 33 (the Site DCP) and DCP No. 23 - Apartment Buildings. These DCPs were re-numbered as DCP No. 23 and DCP No. 6 respectively.
08/03/2005 Council granted a Deferred Commencement Consent to DA 933/2004/HC for the construction of four apartment buildings for Target Site 7. The deferred commencement related to the creation of a Right of Carriageway over an adjoining site (the site) and site remediation. The applicant lodged a Section 82A Request for Review to delete the deferred commencement conditions on 15/03/06.

07/04/2006 Council staff advised the consultant to prepare a detailed planning justification for proposed amendments to former DCP No. 33 (now the Site DCP) which would result in an alternative outcome on the site, particularly increased density.

22/08/06 The applicant for Target Site 7 lodged a Section 96 modification application to DA 933/2004/HC on to delete the deferred commencement conditions but was refused by Council in part, on the grounds that the modification being sought is contrary to the aims and objectives of the Target Site DCP in relation to orderly development and sterilisation of other sites

30/08/2006 A concept was presented to Council's Target Site Panel for the site.

03/10/2006 Letter to applicant sent by Council's Forward Planning Coordinator with reference to 30/08/06 meeting held with the Target Site Panel. A copy of the Panel comments was attached to the letter. It advised that "subject to the achievement of good urban design outcomes and the satisfactory resolution of traffic/vehicular access (taking into account the likely generation from the adjoining target site) and other site constraints, it may be possible to achieve a higher built form and yield on the site. Accordingly, a report to Council will be prepared that recommends DCP No. 23 - Nos. 27-33 North Rocks Road (the Site DCP) be amended. "

16/03/2007 Applicant was advised regarding the outcome of briefing that increased density and amendments to the DCP for this site would not be supported. The applicant was requested to advise Council of his intentions to proceed or to withdraw interest in this matter. By correspondence received on 19 March 2007, the applicant indicated that he wish to proceed with the proposed amendments to the DCP.

15/05/2007 Council at its meeting considered the proposed amendments to DCP No. 23 - Target Site 27-33 North Rocks Road, North Rocks and it was resolved as follows: -
Council not to proceed with amendments to Development Control Plan No. 23 - Target Site Nos 27-33 North Rocks Road, North Rocks and advise the applicant accordingly.

11/09/2007 Baulkham Hills Development Control Plan (BHDCP) consolidating all existing DCPs came into force (BHDCP now refers to former DCP No. 23 - Target Site 27-33 North Rocks Road as BHDCP Part E Section 5 and to former DCP No. 6 - Apartment Buildings as BHDCP Part C Section 7).

24/12/2007 Subject development application lodged.

17/11/2008 Appeal lodged.
Overdevelopment
The applicant’s evidence

21 Mr Fletcher relies on cl 1.7 of DCP Pt A to provide the mechanism to vary the requirements in the Site DCP for building height, building length, setbacks, and density. He gives weight to the fact that the proposed variations relate to a single development controlled by a site-specific DCP and as such could not be seen as creating a precedent that would have more general application. Mr Fletcher states that the extent of variation in cl 1.7 is unfettered and is limited only by the test in the clause that states "the objectives of the specific development control in the relevant section of the DCP as a whole can be achieved". In his opinion, the proposed variations satisfy this test.

22 In terms of the planning merits of the proposed variations, Mr Fletcher argues that the site and Target Site 7 must be considered together to facilitate a coordinated and integrated approach to the development of the land. Given the linkages between the two sites, there is no logical reason why one site is better placed than the other in terms of access to facilities so that the density of the development that is appropriate for the total site area should be more equitably distributed. Mr Fletcher relies on the positive comments and recommendations from the council's Target Sites Panel and councils professional staff who were broadly in agreement that increased density of development was appropriate and could be supported from a planning and urban design viewpoint providing that the traffic implications could be accommodated by the surrounding road network.

23 Mr Fletcher further states that in his understanding of the elected council's rejection of the Target Sites Panel’s support to increase the density on the site, the issue of traffic was the only reason for the council's decision. In his understanding, the elected council's decision did not involve any urban design issues.

24 On the basis of the traffic evidence presented at the hearing (see pars 49 to 56), this concern is now unfounded. In his opinion, the process unfairly gives the council the power of veto and renders decisions on development that depart significantly from a DCP development control non-appealable. In essence, this elevates the controls in a DCP above the status of development standards in a LEP. On a merit assessment, there is no reason why the proposed development should not proceed.

25 Mr Dickson states that the development proposes a harmonious building form with the existing and future development capabilities on adjoining the sites zoned Residential 2(a2). The majority of the development mass has been located at the western end of the site to respond to the high-density development on Target Site 7. Smaller building masses address the North Rocks Rd frontage.

26 Mr Dickson states that Target Site 7 is an important consideration, as the site does not solely relate to North Rocks Road. It is part of a precinct defined by James Ruse Drive, Windsor Road and North Rocks Road. Both the site and Target Site 7 are visible from James Ruse Drive and the fact that the approval on Target Site 7 contained similar building heights to that proposed on the site is not the only justification for exceeding the height and density control. Mr Dickson identifies the following matters that support his position that the breaches of the controls are appropriate:

• Target Site 7 has a small frontage to Windsor Road with the predominant frontage to James Ruse Drive,
• buildings on Target Site 7, when approached from both directions on Windsor Road, do not constitute a "gateway" because of its limited visibility,
• the landscaped character of the site and Target Site 7 will form a physical and visual separation barrier between the sites.

27 As I understand Mr Dickson's evidence, he sees no conflict with the relevant principles in SEPP 65.

The council’s evidence

28 Mr Harding acknowledges that cl 1.7 allows for variations to development controls but does not accept that the use of cl 1.7 is appropriate for variations that seek major amendments to the DCP. He states that the council correctly developed a process of creating "target site" DCP’s which put in place more significant amendments to the general "apartment building" outcomes provided for in the Apartment DCP. This process allows for development that is "different" from the regular controls to be considered in its context and to have a series of detailed controls that relate to the specific site and its circumstances. This process is far superior than allowing significant variations to the controls that would have delivered a much more modest built form outcome in accordance with the controls in the Apartment DCP.

29 In this case, the proposed 34% increase in population density has been undertaken without due regard to the orderly and economic development of land and without consideration to the councils adopted strategic planning process for target sites. Also, to adopt the process suggested by the applicant’s experts would be to alienate important consideration of issues from the proper planning process, such as the need to review the s 94 outcomes based on a greater population than anticipated.

30 Ms Morrish disagrees with the conclusions of Mr Dickson. She rejects any reliance on the adjoining Target Site 7 to support the variations to the standards in the Site DCP. The site has an address and access from North Rocks Road and has no access or substantial visual connection to Windsor Road. Target Site 7 has a frontage to Windsor Road. Also, the sites are separated by a creek, which offers visual and physical separation. The character of the two sites are also different with Windsor Road being a significant arterial route into Parramatta whereas North Rocks Road is clearly finer in scale and grain, requiring a different response to its context.

31 In the opinion of Miss Morrish, the two different planning requirements for the two sites clearly indicates the different roles of the two sites as seen by the council. The process that led to a review of the planning controls by the council and its ultimate rejection, indicates that, in the opinion of the council, the site is not appropriate for higher density development similar to that of Target Site 7.

32 Ms Morrish she does not accept that the proposed development is consistent with the relevant principles in SEPP 65.

Findings

33 There can be no doubt that the proposed development proposes significant changes to the planning controls within the Site DCP. The proposed density is some 34% greater than that permitted and the 4 storey height controls is exceeded, in part, by up to 7 storeys. The proposed variations to the setbacks and building length requirements are not excessive and, in my view, would not be a reason to refuse the development application.

34 The thrust of much of the evidence of Mr Fletcher and Mr Dickson is that the planning controls for the site are inappropriate given the higher density controls for the adjoining Target site 7, the proximity of the two sites and that the need for access over the site for access to Target Site 7. In their opinion, this conclusion is reinforced by broad agreement by the council's Target Sites Panel and council’s professional staff of increased density for the site. Mr Fletcher is of the view that cl 1.7 of DCP Pt A can be used to overcome the breaches of the DCP.

35 Mr Harding and Ms Morrish placed some considerable reliance on the provisions of the Site DCP to support the rejection of the proposed development although Ms Morrish does not necessarily accept the evidence of Mr Dickson that the sites are so closely related that there is any basis for the sites to have similar planning controls. Mr Harding does not accept that cl 1.7 of DCP Pt A can be used to overcome the breaches of the DCP because of the extent of the breaches.

36 While cl 1.7 of DCP Pt A provides a mechanism to vary the requirements in the Site DCP, I do not accept Mr Fletchers evidence that it is unfettered and is limited only by the test in the clause that requires that "the objectives of the specific development control in the relevant section of the DCP as a whole can be achieved". There are other important considerations in considering how a DCP should be applied, beyond the requirements in cl 1.7.

37 The role of a DCP is set out in some detail by the Chief Judge in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at pars 83 to 92 and includes a review of recent judgements on this issue. Relevantly, at par 87, His Honour states:

A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning.

38 His Honour further states, at par 87, the principles relevant to consideration of DCP’s. These include the matters raised in the preceding paragraph and a number of specific matters that determine weight to given to the development control. These are the level of consultation with interested persons, including the effected community, any inconsistency in which the DCP has been applied by a council, the consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making.

39 The emphasis to be given to a DCP is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

40 While dealing with an objection under State Environmental Planning Policy No. 1 - Development Standards (SEPP 1) to vary a development standard in a LEP, and not a variation to a standard within a DCP, Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (unreported, 2 June 1986) Cripps J makes the following relevant comments on planning standards and the potential impact of any changes on the properly adopted planning regime for an area:

….it now established that is not sufficient merely point to what is described as absence of environmental harm to found an objection. Furthermore, the objection is not advanced, in my opinion, by an opinion that the development standard is inappropriate in respect of a particular zoning. The Court must assume a development standard in a planning instrument has a purpose.

…. it is not be used as a means to effective general planning changes throughout a municipality such as are contemplated by the plan making procedures set out in Part III of the Environmental Planning and Assessment Act.

41 In considering cl 1.7, Stockland Development, Zhang and to a lesser extent Hooker Corporation (as it does not strictly applied to a variation to a DCP), I am satisfied that there are no reasons why the standards in the Site DCP should not be given significant weight in the assessment of the application.

42 The Site DCP should be the fundamental element in and the focal point to for the assessment of the development application. While non-compliance with the requirements of the Site DCP is in itself not determinative, the extent of the non-compliance is a significant matter to be taken into consideration as it goes to the impact on the properly formulated planning regime for the area.

43 There can be no disagreement that the Site DCP was appropriately advertised and formed part of an overall strategic approach to the allocation of specific sites for high-density residential development in The Hills local government area. There was no evidence to suggest that the council had not consistently applied the Site DCP, any Target Site DCP or that any Target Site DCP was inconsistent with the other policy outcomes adopted a State, regional or local level. The evidence, in fact showed that the strategic approach of using Target Site DCP’s was a direct response to State policy. Where the development application was approved on Target Site 7, the requirements of the site-specific DCP were largely complied with and the where there were variations, these variations were minor compared to those proposed in this application.

44 I have given no weight to the fact that the Target Sites Panel and councils professional staff generally supported higher density on the site than was provided for in the Site DCP. Any support at this level is of little consequence when the elected members of the council did not endorse it. The effect was that the density provisions remained the same as set out in the Apartment DCP. In my view, to allow a development of the height and density proposed in this application would be to affect a general change in the planning regime for the site beyond that contemplated by the appropriate planning controls.

45 I also have little trouble in concluding that the proposed development is inconsistent with Principles 1, 2, 3 and 4 of SEPP 65. The site and surrounding areas could be described as a precinct(s) undergoing a transition however the proposed development is clearly not consistent with the desired future character as stated in planning and design policies for context, built form, scale and density. In my view, there is merit in the evidence of Ms Morrish that the site and Target Site 7 have a different context in terms of character and as such, different controls may be appropriate.

46 Much of the applicant's evidence focused on the merits of the proposed development and its relationship with Target Site 7 however it must be remembered that the role of the Court in Class 1 proceedings is not to review the appropriateness of planning controls but to test the development application against the applicable planning controls. Even if the submissions of the applicant are correct, and that the only reason that the higher density was not supported by the council was the traffic implications, and this has consequently been found to be incorrect, then the only appropriate course of action would be to seek reconsideration by the council. It is not appropriate to bypass this procedure through a Class 1 appeal given the extent and wider implications of the variations sought by the application.

47 For the reasons mentioned in the preceding paragraphs, the extent to which the proposed development is inconsistent with the form anticipated by the Site DCP must lead to the conclusion that the appeal should be dismissed and the development application refused.

48 Clause 13 (2) provides that consent must not be granted unless the consent authority is satisfied that the development is consistent with one more of the aims of the plan and any relevant objectives for development (cl 13(2)(a)) and is not contrary to achieve in the objectives of the zone (cl 13(2)(b)). I am not satisfied that the proposed development is consistent with the zone objectives (b), (c) and (f)(i). Clause 13 (2) is a condition precedent to the granting of development consent and irrespective of the other matters addressed in the judgement, the inconsistency with the identified zone objectives would be sufficient for the refusal of the development application by itself.

Access and traffic

49 Mr Pindar, Mr Coady and Mr Brodie provided a joint report on the two main issues in dispute, being the access arrangements on North Rocks Road to and from the site and the property on the opposite side of North Rocks Road and the extent of intersection upgrading required to accommodate the additional traffic at the corner of North Rocks Road and Windsor Road. The traffic experts were not required for cross examination. The joint report (Exhibit 4) identified the following areas of agreement:

• parking provision for the proposed development,
• weekday peak traffic generation for the site and Target Site 7,
• assignment of traffic generation between the site and Target Site 7,
• a more efficient intersection design for North Rocks Road and Windsor Road than recommended by Sydney regional Development Committee (SDRAC)
• access arrangements off North Rocks Road, and
• a design for the access road over the site and serving Target Site 7.

50 In relation to the SDRAC conditions, the experts supported a revised intersection treatment for North Rocks Road and Windsor Road prepared by Mr Pindar that will provide an increased Level Of Service (LOS) based on a revised SIDRA analysis, compared to that considered by SDRAC. While approval from SDRAC is required as Windsor Road is a RTA controlled road, my understanding of the evidence was that this would be likely forthcoming because of the increased LOS from the revised intersection treatment.

51 The traffic experts provided agreed conditions (Exhibit 5) relating to:

• the intersection of North Rocks Road and Windsor Road,
• access off North Rocks Road,
• access road serving Target Site 7, including a s 88 Instrument, and
• specific conditions from SDRAC and further modification.


Access road serving Target Site 7

52 The creation of an easement over the site to provide access from Target Site 7 and consequent compensation, is subject to separate proceedings in the Court (Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd & ors, 09/30115) to be heard on 14, 15 and 16 September 2009. The parties sought the determination of this appeal prior to the Class 3 hearing.

53 On the issue of the proposed easement and access from Target Site 7, Mr Briggs, on behalf of Rainbowforce Pty Ltd, tendered a draft s 88B Instrument and survey plan (Exhibit 101) and engineering plans for the access road way and bridge over Darling Mills Creek (Exhibit 102).

54 The experts state that the amended access plan provides uninterrupted entry movements to both sites, with priority given to exiting traffic from the basement of the proposed development on the site. This will be achieved through the introduction of a "stop" sign control and "holding line" for traffic exiting via the road within the easement. The experts agree that this internal "intersection" is the optimal arrangement that accommodates all movement satisfactorily, including garbage collection and service of vehicles. The design also includes a marked foot crossing of the intersection.

55 Mr Pindar notes that the internal roadway within the easement is over designed and that a substantially reduced reservation of maximum with 12 m would readily accommodate all needs. The parallel parking provided within the easement is considered to serve no useful purpose by the experts.

56 I note that the engineering plans provided in Exhibit 102 provide for an overall easement width of 10 m that includes a 2.5 m wide shared footpath and cycle way and a combined carriageway of 6.7 m. The remaining width is to accommodate support structures, handrails and kerbing. While the overall width of 10 m varies from the 12 m width of the easement in the joint report, I understand the experts to raise no issue with the reduced width although the reduced width provides no opportunity for landscaping adjoining the vertical retaining wall of James Ruse Drive on the southern boundary of the easement.

Orders

57 The Orders of the Court are:

1. The appeal is dismissed.
2. Development Application No 1167/20008/HC to demolish all existing structures and construct four apartment buildings at 27 - 33 North Rocks Road, North Rocks is refused.
3. The exhibits are returned.
_____________
G T Brown
Commissioner of the Court