Thomas Paul Construction Pty Ltd v Gosford City Council

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Thomas Paul Construction Pty Ltd v Gosford City Council [2006] NSWLEC 507

PARTIES:
APPLICANT
Thomas Paul Construction Pty Ltd
RESPONDENT
Gosford City Council

FILE NUMBER(S): 11266 of 2005

CORAM: Hoffman C

KEY ISSUES: Development Application :- Town houses and villa homes, consent orders, narrow street, highway intersection, riparian zone to a watercourse, bushland conservation, site contamination, aesthetic character, boundary setbacks, vehicle access to site

LEGISLATION CITED: Rivers and Foreshores Improvement Act 1948
Environmental Planning & Assessment Act, 1979
Gosford Planning Scheme Ordinance
State Environmental Planning Policy No 55 - Site Remediation
State Environmental Planning Policy No.11 - Traffic Generating Developments
Contaminated Land Management Act 1997
Local Government Act 1993
Development Control Plan CP No 127 - Cluster Development
Development Control Plan No. 128 - Public Notification of Development Applications
Development Control Plan No. 159 - Character
Development Control Plan No. 108 Energy Smart Homes
Development Control Plan No. 106 - Controls for Site Waste Management
Development Control Plan No 165 - Water Cycle Management

CASES CITED: Carstens v Pittwater [1999] LEC 249

DATES OF HEARING: 22-23/03/2006 and 30/03/2006

DATE OF JUDGMENT:
08/16/2006

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Johnson, barrister
RESPONDENT
Mr P Wright, solicitor
SOLICITORS
P J Donnellan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

16 August 2006

11266 of 2005 Thomas Paul Constructions Pty Ltd v Gosford City Council

JUDGMENT

1 This is a Class 1 Appeal No. 11266 of 2006 between Thomas Paul Constructions Pty Ltd and Gosford City council against the refusal of a proposal to construct a cluster development over three stages comprising fifty (50) townhouses and villas, single to two storey in height, all three - bedroom "large" sized dwellings on the development site (Lot 242 DP 790483) and adjoining Council surplus operational land (Lot 241 DP 534760). On site car parking is provided for 86 vehicles, consisting of 61 covered resident garage spaces and 25 uncovered resident and visitor spaces.

2 The proposal is an integrated development requiring approval (i.e. Part 3A Permit under the Rivers and Foreshores Improvement Act 1948) from the Department of Planning (previously DIPNR).

3 The parties negotiated before and during the hearing and tendered Consent Orders for an agreed approval. Revised negotiated conditions were substituted into the Consent Orders at the end of the hearing.

Zoning
Lot 242 - Residential 2(a)
Lot 241 - Special Use 5(a) - Sewage Treatment Works

Area

The Site

4 The site comprises two allotments having a total area in excess of 2.8 hectares located at the northern end of Prings Road. The eastern side of Prings Road is Zone 4(a) Industrial and is occupied by light industrial uses with commercial type buildings and open car park areas set in landscaped surroundings. The eastern side of the road contains residential development (detached dwellings and townhouse developments), which is predominantly single to two-storey in height.

5 Lot 242 DP 790483 is a largely cleared, vacant allotment with relatively flat to moderate slope. Development Application No10680/89 for a proposed cluster development comprising 32 units on Lot 242 DP 523760 was granted consent on 20 April 1989.

6 A minor boundary realignment has subsequently taken place and Lot 242 DP 790483 was registered on 26 September 1989. The previous consent for a 32-unit cluster development under DA0680/89 remains valid as physical commencement has been established.

7 Lot 241 DP 534760 is surplus "operational land" owned by Council, is zoned 5(a) Special Use and previously contained Lisarow sewage treatment works which has subsequently been decommissioned and is identified as being contaminated land in Council's Contaminated sites register.

8 The land immediately borders the Great Northern Railway line and Peak Road watercourse that drains into the upper reaches of Narara Creek. The lower portion of the land is liable to flooding, while part of the site is also identified as being bush fire prone land under the bushfire risk management plans.

9 A transmission line easement runs along the property's southern boundary. Land zoned for industrial purposes is located to the immediate east, and to the north, on the opposite side of the railway line.

The Locality

10 The immediate locality is characterised by low density neighbourhoods of residential allotments situated on gentle to moderate slopes with gardens planted with shrubs and trees to provide an open parkland character.

11 The Pacific Highway is uphill of the site on the other side of houses and villa homes adjoining the southern boundary of the site. The highway is an arterial thoroughfare, which carries a significant and growing volume of traffic. The highway is flanked by sloping embankments with tall forest remnants set close to the roadway, providing scenically distinctive landmarks that are remnant of the former semi rural setting.

12 Adjoining back boundaries of residential properties and the southern boundary of the site are narrow corridors of bushland supporting tall forest remnants. The forest also borders creek lines and watercourse reserves, providing visually prominent backdrops to major roads.

13 The following statutory instruments apply to the site:

Gosford Planning Scheme Ordinance - Clause 49BA Development near boundary of certain adjoining zones

14 The application has been submitted pursuant to Clause 49BA of the Gosford Planning Scheme Ordinance. Clause 49BA applies to land within 50 metres of a boundary defining Zone 2(a) land and allows the provisions of the 2(a) zone to be applied to that land, provided certain criteria are satisfied.

15 The application was lodged in May 2004, and exhibited for public comment and notified to the relevant authorities such as DIPNR, RTA, NSW Railcorp, NSW Fisheries, Council Traffic committee, Rural Fire Service. Discussions and negotiations took some months.

16 The application was considered by Council at its meeting held on 4 October

2005. Following consideration of the issues involved, it was resolved that the application be refused for the following reasons:

1 Prings Road is too narrow to accommodate the increase in traffic from the proposed development.
2 The intersection at the Pacific Highway is inappropriate to cater for the development and is a safety concern.
3 The proposal does not comply with DCP 127 - Cluster Development.
4 Approval of the proposal would not be in the public interest.
5 Elimination of the right hand turn into Prings Road.

THE ISSUES

1 Whether the proposed road access to the site is adequate to accommodate the increased traffic created by the proposed development.

Particulars

2. Whether the traffic generated by the proposed development will be subject to and cause an increased safety hazard at the intersection of Prings Road and the Pacific Highway.

Particulars
a. Prings Road intersects with the Pacific Highway on a bend which limits the sight distances to the east and west of the intersection, which will give rise to a safety hazard for traffic travelling on the Pacific Highway and traffic travelling to and from the proposed development.

3. Whether the proposal complies with Gosford City Council's

Development Control Plan 127 - Cluster Development (DCP 127).

Particulars

External Appearance

Locational Characteristics

Clause 3.2 of DCP 127 requires that sites considered for cluster development are to be located not more that 400m distance from a shopping centre containing a supermarket, a State Government primary school, a public transport pickup/set down point (i.e. railway station or bus stop). The proposed development is located a greater distance from all of these facilities.

Setbacks from Boundaries

Open Space and Landscaped Areas

Clause 3.6 of DCP 127 requires that the useable private outdoor living space for each dwelling shall have a minimum width of 6m. A number of the courtyards do have a minimum width of only 5m.

4. Whether the proposed development would be in the public interest.

Particulars

5. Whether the proposed development is in character with the surrounding locality, having regard to the provisions of clause 10(4) of the Gosford Planning Scheme Ordinance (GPSO) and Gosford City Council DCP 159 - Character (DCP 159) and the existing and desired character for Niagara Park 9: Scenic Buffers (Floodway) and Niagara Park 2: Open Parkland (Hillside).

Particulars

a. Clause 10(4) of the GPSO stipulates that the Council must not grant consent for development unless it has taken into consideration the character of the development site and the surrounding area.

b. Niagara Park Character Statements became operative on 12 October 2005. Lot 242 falls within the Niagara Park 2: Open Parkland (Hillside) locality as identified in DCP 159 and Lot 241 in DP 534760 is within the Niagara Park 9: Scenic Buffers (Floodway) Character locality as identified in DCP 159.

17 The respondent’s evidence was heard from:

Mr J.A. Cofre, representing NSW Railcorp

Mr R. Salmon, financial controller for objector Print National and Heritage Press, 872 Pacific Highway, Lisarow.

Ms. C. Dowman objector, #7-1 Prings Road.

Ms. D. Spithill, town planner for the council

Mr. B. Ronan, Senior Land Use Planner for the Council.

Mr. S. G. Green, Senior Transport Planner for the Council.

18 The parties had agreed that the Court should appoint two experts for independent evidence:

Mr. L. Fletcher, consultant town planner.

Mr. C. Hallam, consultant traffic engineer.

19 The applicant’s evidence was heard from:

Mr R. Kingdom consultant aborist.

Amended Plans and Consent Orders

20 The parties had negotiated just before the hearing and tendered consent orders in Exhibit 13 for approval of the development subject to a number of conditions amongst which are 3 Stages of construction. Revised negotiated conditions were substituted to the Consent Orders at the end of the hearing.

21 The council had notified the objectors to the proposal of its intention to enter into consent orders, so that they could give evidence if they wished. At the Court inspection of the site, a large number of residents, mainly from Prings Rd attended, and gave oral evidence in support of their written objections. No notes of their names or what they said was taken by the parties for tender in Court. I shall outline their principle concerns from their written objections that were in evidence.

Stage 1

22 Stage 1 is for Units 1-10 and Unit 16 that are a row of 2-storey townhouses with 3-bedrooms each. The upper storey is in the form of attic rooms with dormer windows, so that the experts regarded them as appearing to be 1-storey with “rooms in the roof”.

23 The row of townhouses is along the north side boundary of the site being the downhill side closest the creek and the railway. Each unit has an attached double car garage and the master bedroom on the ground floor giving disable person access capability. The location of the row is controlled by the 1 in 100 year AEP flood line of Narrara Creek.

24 Each townhouse has a private courtyard on the downhill (northern) side about 5-6m deep for the width of the unit. This leaves a considerable distance of 30-60m variable to the northern boundary along the railway. Within this area is the Narrara Creek and its embankments, and the 1 in 100 AEP flood line. The units maintain about 10m or greater clearance from the flood line. Below the flood line is the riparian zone of the creek that contains dense native trees and vegetation, along with a considerable amount of weed infestation.

25 The remainder of Stage 1 construction, are the weed removal and vegetation works to upgrade the riparian zone, and stabilise the creek embankments, drainage and landscape works, the entry off Prings Road with associated internal driveways, garbage collection area and visitor carparks, together with off-site widening and kerb and gutter and drainage works to Prings Road, and upgrading of the intersection of Prings Road and the Pacific Highway.

Stage 2

26 Stage 2 comprises Units 13-15 and Units 19-46, associated driveways and landscaping, and communal outdoor swimming pool and ancillary structures.

27 The pool and units 13-15 are at the far west end of the site, and units 19-28 are a row along the middle of the site. Units 29-46 are a row along the southern (uphill) boundary of the site.

28 Units 13-15 are full 2-storey townhouses of 3 bedrooms and a study each, again having an internal garage, and courtyards on the western side.

29 Units 19-28 are single storey split-level townhouses with 3 bedrooms, an internal garage and living rooms and courtyards on the northern side.

30 Units 29-46 are full 2-storey townhouses but split-level on both floors due to the slope of the site beneath them. They also have internal garages and 3-bedrooms each, and courtyards on both their northern and southern sides. The courtyards on the southern side have a retaining wall on the boundary due to the excavation necessary for the proposal.

31 Uphill are the side yards of medium density units off Prings Rd, and the back yards of houses fronting the Pacific Highway. Very large eucalypt trees grow on the adjoining uphill properties near the boundary.

Stage 3

32 Stage 3 is for the last row of units being Nos.47-54 along the Prings Road boundary. These units are designed like 2-storey terrace houses with living rooms and courtyards facing east towards the street and garages accessed from driveways behind within the site. They also have 3-bedrooms each. The terraces step down the slope of Prings Road. The main driveway entry to the site is between townhouses 50 and 51 in the centre of the row.

33 It became clear during the hearing that the dead end of Prings Road needed to have a turn around or cul-de-sac, and engineering evidence was that it had to be above the 1 in 100 AEP flood line. That being the case, part of the private courtyard of unit 47 would need to be reduced to provide for an 85% -ile sized car to turn in a cul-de-sac.

34 In support of the proposal the parties brought the following studies:

1. Subject plans in Exhibit A and landscape plans in Exhibit D.

2. A survey of pegs on the ground locating the various buildings to facilitate the Court inspection of the site.

3. Cardno MBK Engineers analysis of stormwater sheet flow down the hill to design catch drains above the retaining wall along the southern boundary to prevent local flooding of courtyards and units in the 1 in 100 AEP storm event. This includes overland flow paths should the drains block up.

4. Cardno MBK Engineers sediment and erosion controls, on-site drainage systems and detention tanks. The same consultant carried out the upper Narrara Creek – Peck Road watercourse flood study and set floor level necessary above the flood level.

5. Asquith de Witt surveyors proposed improvements to the Prings Road/Pacific Highway intersection and Traffic Assessment Report by B J Bradley & Associate.

6. Vegetation Management Plan by consultant Louise Turner for the riparian zone of Narrara Creek in accordance with Part 3A of NSW Rivers and Foreshores Improvement Act 1948 and Noxious Weeds Act 1993 and the requirements of DIPNR.

7. NSW Rural Fire Service endorsement of the Bushfire Threat assessment Report by Nicole Gerrard of “Bushfire Consulting Specialists”.

8. Aboriculturalists report by Russell Kingdom on health and safety of 22 trees on adjoining properties south of the site and the impact of the proposal upon them and measures to protect them.

9. Report by Steven Green, Senior Transport Planner for the council on the feasibility of a pedestrian pathway from Prings Road to Niagara Park Railway Station.

10. At the on-site inspection by the Court, some objectors referred to expectations for a road at the back of their properties parallel to Pacific Highway. Mr Fletcher could not assist; he said he had not been briefed to investigate that. The parties brought a report by Bruce Ronan Senior Landuse Planner of the council in regard to the Lisarow Development control Plan 1983 and the Development Control Plan No.8-Lisarow 1992. These show a future road along the southern boundary of the site within Lot 242. It would have given rear access to the properties fronting the highway in the event that the RTA denied access in future roadworks. It would also have provided more direct access from Prings Road to Kathleen Morreau Road and Niagara Park Railway station. Despite the obvious advantages of this future road the council had given consent to the development of Lot 242 for 32 residential units in 1989. That development was agreed by council as having legal commencement, although no dwellings were yet constructed. Many of the approved units are located within the future road. In addition, the council has also approved 6-storey high units on an existing sawmill property located between lot 242 and Kathleen Morreau Road. The option of constructing the road in the development control plans has passed by.

11. At the on-site inspection by the Court the objectors complained that the council had sold lot 241 off without community consultation, and the local residents had expected lot 241, the old sewage treatment site, to become available as parkland, and to provide a shorter and safer pathway to Niagara Park Railway station. The parties brought an Affidavit by Alan Ford solicitor for the council confirming the council’s decision in 1994 to make lot 241 of the site into “operational land” and the public notification of that decision and the 1998 resolution to sell a number of properties including lot 241. Council resolved to sell the land to the applicant in 1993. Mr Ford wrote that council was entitled to do so under Local Government Act 1993 without a public tender process, and without further public notification.

12. At the on-site inspection by the Court the plans indicated that a full size garbage truck of the type intended to be used, and a full size furniture pantechnicon could use the on-site turning circle for manoeuvring. It became apparent that the same size trucks could not enter the site due to the narrowness of Prings Road and the narrowness of the entry driveway to the site. Any cars parked on the opposite side of Prings Road to the entry would further restrict any ability of such trucks to enter the site. Mr Hallam said he was not briefed to investigate that. However he produced at the hearing, plans in Exhibit 15 to show the truck access could only be obtained by widening Prings Road outside the site, reducing the private courtyards of Units 50 and 51 and making the east side of Prings Road opposite the entry a “NO Parking” area. The same exhibit had a plan to show a 85% -ile sized car turning circle at the dead-end of Prings Road and the reduction of the private courtyard of Unit 47.

13. Contamination and remediation report by Brink & Associates and review by Mr I Gregson, EPA accredited site auditor of GHD Consultants.

14. NatHERS report and recommendations by Assessor Mr J. Rizzo.

15. Geotechnical Investigation Report by Brink and Associates.

16. Requirements of NSW Railcorp to be imposed as conditions of any consent.

17. Rail Noise and Vibration Impact Report by reverb Acoustics.

18. Waste Management Report by M. Cassidy.

Considerations

35 Existing consent. The applicant already has the benefit of a development consent for 32 units on Lot 242, which has commenced. That consent was granted by the Council in 1989. It is a development, which the parties say is far less preferable than the proposed development in many respects. The issue arises as to whether the Court can have regard to the existence of this consent in deciding whether to grant consent to the development the subject of these proceedings.

36 Section 39(4) of the Land and Environment Court Act 1979 provides:

(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

37 This not only permits, but requires the Court to have regard to the existing consent, both as part of the "the circumstances of the case" and in the public interest.

38 There is no conflict between this obligation and that contained in s.79C. Section 79C does not purport to limit the matters to which the Court may have regard as stated by Lloyd J in Carstens v Pittwater [1999] LEC 249 par 22 and 23.

39 The 'public interest' test is applied in the assessment of applications. This test is consistent with the aims and objectives of the Act. The 'public interest' test will provide necessary flexibility for a consent authority to consider matters that may not be covered in the considerations.

40 The existing consent allows 32 units to be constructed on lot 242 on the site. The evidence before the Court is that the proposed development is far better than the development for which consent has already been granted for the following reasons:

It is better architecturally and better complies with Council's Character Statement in the Character DCP

The southern dwellings are set back from the southern boundary a further 2-3 metres

The road layout permits traffic to circulate, and relocates the entry to the development away from existing dwellings next to the site.

It provides for the remediation, retention and maintenance of extensive vegetation along the riparian zone of the existing creek

It provides for extensive on-site communal open space, with 69% of the site being landscaped

It provides for the intersection with the Pacific Highway to be made safe

It provides for the construction of a footpath and kerb and gutter from the development for the length of Prings Road to the junction with the Highway.

Currently there is no pedestrian access along Prings Road.

It provides for the upgrading of Prings road to a width of 6.5 metres to enable trucks to enter and leave the site safely. Currently the Council garbage truck has no way of turning around and the 1989 consent does not remedy this problem. The proposal will use the Council garbage truck and it will enter and use the roundabout on-site.

It provides a turning circle for cars to be able to turn at the end of Prings Rd.

It provides for the remediation of contaminated land.

It provides for construction of dwellings to a suitable bushfire protection level.

It provides for construction of dwellings to a suitable acoustic level.

The preservation of the bushland beside the railway maintains and improves the scenic values of the area from that major transport route.

41 These matters form part of the circumstances of the case.

42 The Council proposed in 1985 to provide an alternative access for all residents living on the Highway bounded by Prings Rd and Kathleen Morreau Rd via a road along northern boundaries. That proposed road was carried over into the 1992 DCP 8. The DCP is a matter to which regard must be had. However, in the circumstances of the case, the non-compliance with the indicated road reserve on the DCP plan ought not be a reason for refusal:

Council had already approved a 32 unit development, which it recently modified to 31 units, which is squarely in the path of the road dwellings have been approved and built along Prings Rd, in the path of the road.

3 developments along the Pacific Highway have been approved with no requirement for dedication of land from existing houses close to boundary and in the DCP road reserve, no setback has been required.

Current DA for 6 storey residential developments on saw mill land to the west.

In view of those comments the option to give the Pacific Highway houses rear access and prohibit entry from the highway as in the DCP cannot be achieved.

The disused treatment works site Lot 241 is not shown on the DCP as being required for public parkland. Very large parks are shown and have been provided around the Lisarow shops and schools.

The buffer area in Lot 241 was shown on the DCP to screen the treatment works that existed at that time. Since its removal Mr Ronan said the buffer is no longer needed.

43 In the circumstances of the case, those parts of the DCP should be given no weight.

Pacific Highway Intersection

44 The proposal to provide a left in – left out only at Prings Road will result in the intersection with the Pacific Highway being made safe. Current sight distances are inadequate for right turn out of Prings Road at the intersection and for people using driveways near the intersection. The local printing business has already complained to the RTA about the intersection.

45 The construction of the slip lane together with the median strip for a right turn into Prings Road is the only solution acceptable to the RTA, the authority responsible for the whole of the Pacific Highway. It is the safest option according to Mr Hallam if a right turn in is to be provided.

46 The upgrading of the intersection has been marked as a priority by Council since 1992. The proposed upgrading of the intersection with only left in – left out will result in a degree of inconvenience to the local residents until the RTA upgrades the intersection further. This is not uncommon as urban areas become more developed and more heavily trafficked and safety requirements demand measures such as one way streets and road closures where they join major traffic routes.

47 The proposal for the additional creation of a passing lane on the southern side of the highway, together with the slip lane on the northern side, would be a great additional expense. It was apparent on the view that it would involve the removal of large trees, excavation and a retaining wall on the south side of the intersection and the reconstruction of significant drainage works. It would be unreasonable (in the Newbury sense) to impose the whole of the burden of these significant works on the applicant, simply because it is the next development applicant in line. It became apparent from the evidence of Mr Salmon, that the land occupied by the printing business is zoned industrial will be developed in the future because only a small fraction of the available land has been developed to date.

Prings Road Width

48 The expert evidence before the Court is that Pring's Rd will be wide enough to accommodate traffic from the development if the new construction proposed is widened to 6.5 m for the length of the road frontage of the site. The applicant has consented to a condition to this effect. Mr Hallam gave evidence that the road should be wider to the south because of the traffic generated by the printing business. Objectors opposite the industrial site entry complained of trucks driving over the edge of their street front gardens. The Council and the applicant observed that due to the undefined edge of the road on the objector’s side, the gardens appeared to be partially within the road reservation. No footpath is provided on the residential side of the Prings Road probably due to the rise of the ground up to the dwellings and the various drive entries making path construction difficult. The impacts of trucks turning at the printing business are not of the applicant's making.

49 I am concerned about the cul-de-sac shown in Exhibit 15 at the end of Prings Road it is only for an 85%-ile size car. Whilst Council garbage trucks and furniture pantechnicons coming to the site can turn around there, other private vehicles cannot do so. Unit 47 already is required to have a substantial courtyard reduction to provide the cul-de-sac. Mr Hallam said a hammer head turn for 99% -ile size cars would need the deletion of Unit 47. I note the agreed conditions require B99 sized vehicle turning area and dedication of it as public road. That would reduce Unit 47’s courtyard further below the minimum requirement for private open space and bring traffic too close to the living rooms of the unit.

Trees on Neighbouring Land and setbacks to Southern Boundary and the size of Courtyards along the Southern Boundary.

50 There are many shrubs and weeds on the boundary of the neighbours and subject land, which make it hard to see the contours of the land. Upon closer inspection, it has become apparent that the land has already been cut to a depth of more than a metre from the location of tree 6 west to about tree 20 as shown in the plan by Mr Kingdom in Exhibit K. This was not shown on the contour plan of the site, which appears to have assumed a constant gradient from the level taken at the fence line to the level taken five metres in from the fence line.

51 The expert arborist evidence is that this has probably already removed all of the roots on the northern side of the southern boundary. Alternatively, the trees have grown since the cut was made and it is unlikely that there are any structural support roots at the base of or beyond this existing cut.

52 Further, there may be no need, or no significant need, for further excavation along that boundary, because it appears that the cut was made for the purposes of the existing consent on lot 242 and has not been taken into account by the surveyors in the preparation of plans.

53 The proposed development so long as no excavation of the embankment occurs, is unlikely to cause any further damage to the roots of these trees. Mr Kingdom has provided recommended conditions to protect trees in Exhibit K, and upon direction at the end of the hearing the parties filed extra conditions on 13 April 2006.

54 In the applicants submission consent has already been given to damage the roots of the trees, which are on the neighbours' land to the extent necessary to construct the 1989 development, which has buildings 2-3 metres closer to the southern boundary than the proposed development. It is implicit in the consent, which was granted in 1989 that excavation is permitted to the extent required to enable the approved dwellings to be constructed with access via driveways built to the Australian Standard. It seems to me that this new application does not have to be bound by that consent on matters of merit effecting neighbours property and amenity of dwellings on site. .

Size of private courtyards

55 Upon my inquiry an engineers report was tendered proposing a swale drain to catch sheet flow stormwater from up hill. It can be incorporated above the retaining wall proposed along the southern boundary. Given Mr Kingdom’s evidence the wall has to be built downhill of the embankment. This would impinge on the rear courtyards of the southern dwellings. The drain plus the retaining wall could require about 800 mm along the boundary this would reduce the variable 5m – 6m width of the south courtyards of Units 29-46 to 4-5m effectively and less if some screen landscaping to the side boundary is provided within the courtyards. The applicant says it would be possible for compliance with the minimum courtyard 6m-width guideline of the DCP to be achieved, by moving the two southern building blocks to the north by 1 metre. This only achieves technical compliance. The swale and retaining wall would intrude on the space. The applicant says the northern courtyards of the same units range from 5x5 metres to 5x6 metres and provide a second significant area of private open space. The provision of the two areas of open space for each dwelling has been incorporated to provide winter sun and summer shade areas respectively. The applicant submitted the swale drain could be piped to reduce its width but no engineering advice was given for this. If piped it would cut into the exiting embankment and perhaps effect the trees uphill. The evidence is the embankment should not be disturbed. Also the option to pipe the water plus the retaining wall would still need 600 mm minimum compared to 800 mm for the swale and wall. The impact of this had not previously been considered by the parties.

56 There are however additional considerations. The large trees on the neighbour’s land that the scenic protection guidelines seek to retain have canopy branches that overhang the site. Some of the trees are a type that has branch drop tendency and the bush fire requirements seek to avoid branches above roofs. Mr Kingdom said some pruning would be needed.

57 Although not favoured by the applicant I have formed the opinion all rows of units along the contour line could be moved downhill retaining the offsets within the rows that give articulation between units and retain the size of the northern courtyards. The articulation is part of the design that give the buildings the appearance that complies with the DCP aesthetic character guidelines. Such a change does not bring any buildings into the 1 in100 AEP floodline, nor the riparian boundary of the creek. Revised plans can be dealt with by Council with a deferred commencement condition.

58 Units 54 and 13-15 need not be moved, because they only have side setbacks, not courtyards to the southern boundary. Mr Kingdom’s Report indicated the magnificent tree on the adjoining property at the Prings Road frontage is not endangered by the foundations for Unit 54 so long as a Protection Zone is provided during construction.

Objections

59 The objectors gave evidence of many things. Many of those matters are the understandable concerns of people living in area that is becoming more densely populated in accordance with State Government policy and the Gosford City Council’s LEP, but this hearing is not about zoning or density, those matters are in the hands of the legislators not the Court. These include issues such as the zoning of the land, the desirability of having rear lane access to their land, the desirability of living in an area of low-density housing surrounded by open space.

60 Some of the concerns are not supported by the expert evidence. There is no evidence to suggest that crime or rubbish on the street will increase because of the proposal. The traffic evidence is that Prings Road will readily accommodate the increase in traffic flow.

61 The objectors said that the upgrade of the Prings Road intersection with the highway would create great inconvenience. Being left-in and left-out only as proposed might be safer but it meant those wishing to travel towards Gosford town would need to go north to Lisarow shops, use the roundabout and come back past Prings Road. This would be about 400 m each way additional travel. A greater inconvenience would be for those coming from Ourimbah and wanting to turn into Prings Road. With no right turn they would either have to continue towards Gosford 2.5 km to the Manns Road roundabout and come back; or, divert from the highway at Lisarow and take Christina Avenue or Newling Street to a difficult intersection for a right turn into the highway and come back to Prings Road. Another option is to do a right turn off the highway into Kathleen Morreau Road and do a U-turn there to come back to Prings Road. The Industrial site operator was very concerned about trucks doing these alternate routes due to the difficulty of trucks to turn quickly against oncoming highway traffic and travelling through residential streets. Their correspondence with the RTA showed there is no budget in the foreseeable future to upgrade the Prings Road intersection for a right turn slip lane with the necessary highway widening. The latter would involve loss of huge eucalypts that are characteristic of the area, a large retaining wall and drainage. The objectors said this development should pay the cost of those works because the proposal creates the need.

62 Some of the matters raised cannot reasonably be made the responsibility of the applicant. While the applicant has agreed to undertake significant infrastructure works, it would be unreasonable to require it to construct a footpath all the way to the shopping centre or the railway station, or to construct the ultimate version of the Pacific Highway intersection works, where the marginal increase of the proposed development over that which has been approved (and could be built commencing today) is 18 units.

63 The objectors mentioned existing sewer manholes in the area often surcharge and are concerned the proposal will overload local sewer mains even more.

64 The Council submitted its engineers had amended the proposal and found the surcharging manhole is not on the branch that would serve the proposal and that connections to the proposal are sufficient and would not overload the system.

65 The objectors are concerned the proposal is more than 400 m from the Lisarow shops and school and public transport services as required by the DCP. The Council supports the non-compliance on the basis that the existing consent on Lot 242 predates the DCP, and the proposal adds only 18 units to the existing consent. The zoning of the land has not been changed to restrict medium density residential in conforming with the DCP. The development is about 150 m from the highway where bus services are available, and the wide verge of the Pacific Highway provides a safe pedestrian route to the shops and to Kathleen Morreau Road and the railway station. The provision of a footpath to those destinations along the highway is a facility to serve all the local residents and it is unreasonable to require the applicant to do more than provide the footpath along Prings Road to the highway.

66 Mr Fletcher agreed with the council on this matter, the shops and schools being within walking distance and public transport nearby. Also he believed the amended plans gave reasonable compliance with the DCP requirements for the character of the area, the mix of unit types, the size and amenity of courtyards and compliance with cl 49BA of the Gosford Planning Scheme Ordinance.

67 The objectors were concerned about the potential for adverse impacts of contaminated land. The study found minor traces of asbestos in land fill on the site, but all other contaminates were below levels that would require extensive decontamination and the site is suitable for residential development. The effected areas would have fill removed with appropriate precautions including ground water management during excavation and construction.

Conclusions

68 With some reservations I have reached the conclusion that all relevant matters under s 79C of the Environmental Planning and Assessment Act 1979 have been properly assessed and with suitable conditions the development will have acceptable impacts.

69 My concern is for the verification of the amended drawings required by any approval including the conditions of Consent Orders proffered by the parties. Also I have formed the opinion that if the upgrading of the Prings Road/Pacific Highway intersection is not approved by the Roads and Traffic Authority the consent should not activate.

70 These matters should be dealt with by way of deferred commencement conditions.

71 In reading the conditions the parties proffered I found some requirements for co-ordination between conditions and some numbering errors and I have attended to them. With these changes, the proposal is suitable for approval.

72 Therefore the Orders of the Court are:

1. The appeal is upheld.
2. Deferred Commencement Consent is granted for a 3 Stage development of 49 townhouses and villas, with on-site parking for 85 vehicles including 60 covered resident garage spaces and 25 visitor spaces, a swimming pool and communal facilities on Lot 241 DP 534760 and Lot 242 DP 790483 Prings Road, Niagara Park, as shown on Drawings Nos. A-01 Rev 1, A-02 Rev 8, A-03 Rev 2, A-04 Rev 3, A-05 Rev 3, A-06 Rev 4, A-07 Rev 4, A-10 Rev 3, A-11 Rev 3, A-12 Rev 2, A-13 Rev 2, A-14 Rev 3, A-15 Rev 3, A-16 Rev 2, A-17 Rev 2 and A-18 Rev 2 drawn by Plan 2000 Pty Ltd and The Landscape plan No. 0472 DA Rev 5 by Landscape Group Pty Ltd and other relevant plans and documents identified in Annexure ‘A’ hereto, all as amended by, and built in accordance with the conditions in Annexure ‘A’ hereto.

3. The exhibits are returned to the parties except Exhibits A, B, C, D, E, F, J, K, 1, 2, 3, 4, 8, 13, 15, 17, 19 and 20.

______________________
K G Hoffman
Commissioner of the Court
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Citations

Thomas Paul Construction Pty Ltd v Gosford City Council [2006] NSWLEC 507

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CITATION:	Thomas Paul Construction Pty Ltd v Gosford City Council [2006] NSWLEC 507
PARTIES:	APPLICANT Thomas Paul Construction Pty Ltd RESPONDENT Gosford City Council
FILE NUMBER(S):	11266 of 2005
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Town houses and villa homes, consent orders, narrow street, highway intersection, riparian zone to a watercourse, bushland conservation, site contamination, aesthetic character, boundary setbacks, vehicle access to site
LEGISLATION CITED:	Rivers and Foreshores Improvement Act 1948 Environmental Planning & Assessment Act, 1979 Gosford Planning Scheme Ordinance State Environmental Planning Policy No 55 - Site Remediation State Environmental Planning Policy No.11 - Traffic Generating Developments Contaminated Land Management Act 1997 Local Government Act 1993 Development Control Plan CP No 127 - Cluster Development Development Control Plan No. 128 - Public Notification of Development Applications Development Control Plan No. 159 - Character Development Control Plan No. 108 Energy Smart Homes Development Control Plan No. 106 - Controls for Site Waste Management Development Control Plan No 165 - Water Cycle Management
CASES CITED:	Carstens v Pittwater [1999] LEC 249
DATES OF HEARING:	22-23/03/2006 and 30/03/2006
DATE OF JUDGMENT:	08/16/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr J Johnson, barrister RESPONDENT Mr P Wright, solicitor SOLICITORS P J Donnellan

[2006] NSWLEC 507

16/08/2006