Smid Pty Ltd and Darien Estates Pty Ltd v Blue Mountains City Council

[2003] NSWLEC 311

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Land and Environment Court

of New South Wales

CITATION:	Smid Pty Ltd and Darien Estates Pty Ltd v Blue Mountains City Council [2003] NSWLEC 311
PARTIES:	APPLICANT Smid Pty Ltd and Darien Estates Pty Ltd RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	10670 of 2003
CORAM:	Brown C
KEY ISSUES:	Development Application :- Subdivision - loss of views- loss of privacy - impact on bushland setting - impact on vegetation units - traffic
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Blue Mountains Local Environmental Plan 1991
CASES CITED:
DATES OF HEARING:	12/11/2003 13/11/2003
DATE OF JUDGMENT:	11/26/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr S Berveling, barrister SOLICITORS A R Walmsley & Company RESPONDENT Mr I Hemmings, barrister SOLICITORS Marsdens

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10670 of 2003

Brown C

26 November 2003

Smid Pty Ltd and Darien Estates Pty Ltd

Applicant

v

Blue Mountains City Council

Respondent

Judgment

Introduction

1. This is an appeal against the refusal by Blue Mountains City Council (the council) of a development application to subdivide the property at 33 to 35 Orama Road, Hazelbrook (the subject site).

2. A view of the subject site and some surrounding properties was undertaken on the morning of the first day of the hearing with representatives from both parties. With the agreement of the parties a number of residents provided their evidence on the view. A summary of their evidence was later tendered.

3. For reasons set out in the judgment, I have concluded that the appeal should be upheld and development consent granted subject to conditions.

The subject site

4. The subject site consists of lot 1262 in DP 880084. It has a battleaxe configuration with a 39.55 m frontage to Orama Road and a total area of 8.338 ha (see Attachment 1). The land to the west and south of the subject site comprises largely natural bush land. The eastern and northern boundaries generally adjoin residential development along Orama Road and and Railway Parade respectively although the location of the proposed subdivision is some distance from Railway Parade.

5. The subject site is located on the south western side of the main ridgeline that separates the catchment of the Grose and the Coxs Rivers. It drains generally to the west into a tributary of Bedford Creek.

The proposal

6. The proposal seeks to subdivide the subject site into 12 lots (see Attachment 2) with lot sizes ranging from 750 m2 to 1.59 ha. A 6 m wide internal road is to be constructed and dedicated as public road to provide vehicular access. A 3.5 m wide pavement is also provided to gain access to some lots. The proposal also provides for building platforms, Asset Protection Zones (APZ) for bushfire protection, a fire trail and buffer zones for vegetation units. No dwellings are proposed as part of this development application.

Relevant planning controls

7. The subject site is zoned part Residential Bushland Conservation (RES-BC) and part Environmental Protection (EP) under the provisions of Blue Mountains Local Environmental Plan 1991 (LEP 1991) although the proposed subdivision is located totally within the RES-BC zone. Clause 9.3 states that consent must not be granted unless consideration has been given to the objectives of the plan and the objectives of the zone and that the development "complies" with the relevant objectives. The objectives of the plan are found in cl 3 and the objectives of the zone are found in cl 6.3.

8. Clause 10.5 deals with Environmental Impact and contains specific provisions for bushfire protection, ”development excluded land” and mitigation of environmental impacts (cl 10.5(c), cl 10.5(ca) and cl 10.5(db)). "Development excluded land" is defined within Schedule 4 of LEP 1991 and means any part of a lot "on which any Schedule 3 environmentally sensitive vegetation unit is located, together with any buffer is required to protect that unit" (c) and "that compromises a watercourse or any buffers required by the council to protect that watercourse" (f). In this case, the Schedule 3 environmentally sensitive vegetation units (the vegetation units) consist of Closed Sedgeland (Hanging Swamps, Sedge Swamps). A watercourse is also located on the subject site. The location of these features are shown on Attachment 2.

9. Clause 30 defines the subject site as a Principal Development Area. Clause 30(5) states that consent shall not be granted unless it is or will be screened from view from outside the lot by existing or proposed vegetation.

10. Clause 34 provides specific requirements for subdivision, including density (cl 34.1(b)) and minimum area (cl 34.1(c)). There was no dispute that the proposed subdivision satisfies these numerical requirements. This clause also requires that the lots be configured so as to be capable of accepting a dwelling house and any development ordinarily incidental and ancillary to a dwelling house.

11. Blue Mountains Development Control Plan No. 27 – Subdivision (DCP 27) also applies and provides specific controls for the subdivision of land. The relevant parts are Aims, Flora and Fauna, Watercourse Protection and Bushfire Management.

12. Blue Mountains Town Character Guidelines - DCP 10 (DCP 10) is a series of brochures that provide development guidelines on a number of specific elements. The relevant brochures are Site Planning and Subdivision Design and Infill Development.

13. The council filed a Statement of Issues containing seven individual issues and a number of sub issues. These can be conveniently grouped into the following areas:

1) whether the proposed development will have an adverse effect on the amenity of nearby residential properties by way of loss of views, loss of privacy and increased traffic (Issues 1, 5, 6 and 7) and,
2) whether the proposed development will have an adverse effect on vegetation units (Issues 2, 3 and 4).

Amenity impacts

14. Evidence for the council was provided by Mr Paul Hume, a town planner. In relation to views and privacy, he raises concern over the relationship between proposed lots 1 to 4 and the adjoining premises at 31 Orama Road. The proposed subdivision creates four lots that have a common boundary with this property. The shallow depth of lots 1 to 3 will result in buildings being located closer to the common boundary than would normally occur if a more conventional deeper lots were proposed. He notes the substantial elevated deck at the rear of 31 Orama Road that has the potential for overlooking into the rear yards of proposed lots 1 to 3. A similar deck is located at the rear of 29 Orama Road. The erection of dwellings on lots 1 to 3 will unreasonably affect the outlook from properties along Orama Road where built form will dominate the natural environment.

15. The views expressed by Mr Hume was supported by a number of residents including Mrs Sally Blefari of 39 Orama Road, Mrs D Taylor of 29 Orama Road, Ms Kim Willis of 30 Orama Road, Mr Lee Wilkinson of 3 Forbes Road, Ms Jacqueline Weatherly of 25 Orama Road and Ms Avis Bowman of 1 Valley Road. A consistent concern of the residents who gave evidence and also in the submissions received when the development application was advertised was the effect on the character of the area. The number and location of the dwelling houses and the consequent loss of trees was seen as being inconsistent with the bush land character of the Orama Road area when viewed locally or from more distant locations.

16. Evidence for the applicant was provided by Mr Glenn Falson, a town planner. He states that the subdivision will maintain, to the extent that subdivision of land is inevitable given the zoning of the subject site, very reasonable levels of privacy and views. Based on the zoning of the land, 22 lots could be achieved. He states that the size and shape of the lots together with the nominated future dwelling sites has maintained views or at least, a reasonable sharing the views. As the subject site slopes away from the existing properties, future buildings will be below and some distance from the existing dwellings.

17. In considering this issue it must be remembered that the proposed development seeks only the subdivision of the land and not the erection of any dwellings. Notwithstanding this, cl 34.1(c) requires an assessment to be undertaken on whether the lots are capable of accommodating a dwelling house and ancillary development. The impact of the proposed subdivision on adjoining properties was assessed on the site view. Some adjoining properties were inspected and an estimate made of the potential impact by marking the location and height of likely future dwellings on lots 1 to 4.

18. With the benefit of the site view, I agree with the evidence of Mr Falson. In coming to this conclusion I accept that the proposed subdivision and the future construction of dwellings on the lots will create an environment with less trees and more built form. The outlook of natural vegetation from many dwellings in Orama Road will be changed, particularly in the foreground where dwellings or parts of dwellings are likely to be visible. I accept that the current outlook is highly prized by residents however this outlook must be balanced against the expectation of development as envisaged by the council’s planning control. In this regard, the subject site has been designated for residential development prior to LEP 1991. I note that the density of development is also considerably less than the maximum achievable under cl 34.1(b). While I do not place significant weight on this as the land is subject to other environmental constraints, the density is still 55% of that permitted under the RES-BC zone.

19. I also accept that the proposed development is responsive to its residential context. The applicant has proposed conditions that restrict any future dwelling on lots 1 to 4 to single-storey construction where it adjoins existing residential development. Buffers containing vegetated screens and designated setbacks are also proposed in areas adjoining existing residential development.

20. The access location, increased traffic, inadequate road width and safety were issues raised by a number of residents. The applicant provided an expert report from Mr John Coady, a traffic engineer. He addresses the concerns of the residents through the appropriate Australian standards, RTA Guidelines and Austroads publications and concludes that there are no traffic related grounds that would warrant the refusal of the development application. As Mr Coady was not challenged on his conclusions and no corresponding expert report was provided by the council, I accept his conclusions.

21. For the reasons mentioned in the preceding paragraphs, and pursuant to cl 9.3 I find that the proposal complies with the relevant plan objectives being cl 3.1(a) cl 3.1(c)(i) and cl 3.1(e) and the zone objective in cl 6.3 (d). In consideration of cl 10.5(a)(ii), I accept that the proposal avoids unnecessary clearing of indigenous plants. While the effect of cl 30.5 is limited by the subdivision of the land only, I accept that sufficient consideration has been given to this clause in the design of the subdivision to allow its requirements to be satisfied when applications for dwellings are submitted in the future. In consideration of cl 34.1(c), I accept that each lot is capable of accommodating a dwelling house and incidental development.

Impact on vegetation units

22. A flora and fauna assessment was undertaken by Mr John Travers, the applicant's ecological consultant. Following the presentation of additional documentation there was agreement between Dr Peter Smith, the council’s ecological consultant and Mr Travers that the ecological issue in these proceedings is limited to the potential impact on the hanging swamps and heaths, identified in the Schedule 3 of LEP 1991 and the setback to a watercourse on the subject site. The location of the hanging swamps, heaths and the watercourse is shown on Attachment 3.

23. Dr Smith's position is that a 60 m buffer is required from the edge of the APZ. He relies on the requirements in DCP 27 that states that fire protection zones, fire trials and perimeter roads are not acceptable on land zoned under LEP 1991 on which any Schedule 3 vegetation unit is located, together with any buffers required to protect that unit. The 60 m buffer arose from studies he jointly carried out on 50 sites within the Blue Mountains. The studies found that weed invasion, incidental rubbish, dumped garden prunings, dumped building refuse, walking tracks, visits by dogs and other forms of disturbance extended into the bush land to a maximum recorded distance of 60 m. A total of 11% of surveyed sites showed obvious disturbance in the 51 m to 60 m zone. In Dr Smith's opinion the 60 m buffer should be native vegetation, not cleared or built areas and where previously cleared, should be restored to native vegetation. He rejects the use of the Management Plan to control this area. In his opinion, the only effective means of protecting the vegetation units is to deny all access to all people.

24. Mr Travers disagrees and states that a buffer of 20 m to 25 m is appropriate. This can be accommodated outside the APZ however he sees no reason why the APZ could not form part of a buffer to the vegetation units. While the under storey and some larger vegetation will need to be removed from within the APZ, he estimates that approximately 20% of the canopy can be retained. The management of this area is subject to the preparation of a management strategy and the approval of council. Further conditions were offered by the applicant to erect a fence around lots 6 to 12 to limit access to the vegetation units and also provide an on going Bushland Monitoring and Management Plan for the excluded lands to the satisfaction of the Council’s Director Environmental Services.

25. On this issue, I am not persuaded that the need for Dr Smith’s 60 m buffer is justifiable on a number of grounds. Firstly, the 60 m buffer is not contained within any of the relevant planning instruments applicable to the subject site although the evidence indicated that it was contained within a draft local environmental plan for another area. Clause 1.8 of DCP 27 deals with buffers and advocates a merit based approach. The clause states that buffers "are to be of sufficient size to protect threatened species, population and ecological communities from impact of development". Secondly, the buffer adopts a worst case scenario with the presumption that all future occupiers will not respect the relationship between residential use and the vegetation units. The survey found contamination in only 11% of surveyed sites between 50 and 60 m. Thirdly, the land is in private ownership and the suggestion by Dr Smith that access to the buffer area by all people (and presumably even the owners of the property) should be denied is unrealistic and impractical. Fourthly, no regard has been given to the particular characteristics of this application and the measures proposed by the applicant to protect the vegetation units.

26. As is the case in most competing evidence in planning appeals, it is a question of finding the appropriate balance. In this case, I accept that the applicant has endeavoured, and successfully achieved an appropriate balance through the subdivision layout and the additional measures relating to fencing and the on going Bushland Monitoring and Management Plan. The buffers exceed the maximum 25 m suggested by Mr Travers in all cases without the need to rely on the APZ, although I acknowledge that these areas will provide an added (but not necessary) degree of protection to the vegetation units.

27. The definition of development excluded lands in Schedule 4 of LEP 1991 also includes any part of a lot "that comprises a watercourse or any buffers required by the council to protect that watercourse". Watercourse is defined in Schedule 4 of LEP 1991. Clause 1.1.2 of DCP 27 requires a buffer of 20 m from the stream bank.

28. Mr Travers and Dr Smith adopted different locations, some 30 m apart, for the start of the watercourse. The consequence being an encroachment of the buffer if Dr Smith's location was chosen or compliance if Mr Travers location was accepted. The respective locations were pegged and were noted on the site view. In my observation, the two locations differed only marginally in terms of their characteristics and features. In consideration of the definition of watercourse, I must conclude that the differences in the characteristics and features of the two locations are so small that it is not possible to categorically conclude that Dr Smith's location should be preferred above the location suggested by Mr Travers. Consequently, the amendment or refusal of the application for this reason cannot be justified.

29. For the reasons mentioned in the preceding paragraphs, I accept that the proposal incorporates effective measures to ensure that development has no adverse environmental impact on any development excluded land, pursuant to cl 10.5(c) and cl 10.5(db).

Orders

30. For the foregoing reasons, the Orders of the Court are:

1. The appeal is upheld.
2. Development application No. S/01/0080 for the subdivision of lot 1262 DP 880084, 33 – 35 Orama Road, Hazelbrook, into 12 lots is determined by the grant of development consent subject to conditions as set out in Annexure ‘A’.
3. The exhibits, except exhibits 7 and A may be returned.

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