Universal Property Group v Blacktown City Council

[2016] NSWLEC 1623

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Universal Property Group v Blacktown City Council [2016] NSWLEC 1623
Hearing dates:	14-15 December 2016
Date of orders:	21 December 2016
Decision date:	21 December 2016
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is upheld. 2. Development application 14/2630 for a medium density housing development at 490 Quakers Hill Parkway, Quakers Hill is approved subject to the conditions set out in Annexure “A”. 3. The exhibits, other than Exhibits 1, A, B and C, are returned.
Catchwords:	DEVELOPMENT APPLICATION: Medium density development in low density zone; integrated development; drainage works in riparian corridor; approval body GTA’s; biodiversity impacts; waste collection; resident objections; parking; permeability
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Water Management Act 2000 Blacktown Local Environmental Plan 1988 Blacktown Local Environmental Plan 2015
Category:	Principal judgment
Parties:	Universal Property Group Pty Ltd (Applicant) Blacktown City Council (Respondent)
Representation:	Counsel: Mr Clay SC and Mr Staunton (Applicant) Mr Seymour (Respondent) Solicitors: Ms Fleming, E J Fleming Legal (Applicant) Mr Loether, Bartier Perry (Respondent)
File Number(s):	2016/00152783
Publication restriction:	No

Judgment

The site and locality

1. COMMISSIONER: This is an appeal under section 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Blacktown City Council (the Council) of development application no. 14/2630 (the application).

2. The application, as amended, proposes a medium density housing development comprising 122 dwellings including driveways, car parking, tree removal, landscape work and drainage works on a site known as 498 Quakers Hill Parkway, Quakers Hill (the site).

3. Subdivision is not proposed as part of the application.

4. The development includes proposed public benefit works on Council land being road works and drainage and flood mitigation infrastructure within a riparian corridor bisecting the site. These public benefit works are subject to a proposed Voluntary Planning Agreement (VPA) offered by the applicant under s93F of the Act. In return, a proposed condition of the VPA is that the Council will grant the applicant access to Lot 162 to carry out and maintain the approved works. Should the appeal be upheld, the applicant sought that the requirement for the VPA be a Court imposed condition in the terms provided for in s93F.

5. The issues contended by the Council as grounds for refusal were addressed by the applicant prior to or at the hearing leaving only issues raised by nearby residents to be addressed and final conditions to be agreed.

The site

6. The site comprises five lots owned by the applicant being Lots 160, 161, 163, 164 and 166 in DP829032 and one lot, a drainage reserve, owned by the Council being Lot 162.

7. Lot 162 dissects the privately held parcels and is the portion of the riparian corridor contained within the site which is subject to the proposed VPA. It comprises a drainage reserve containing a drainage channel that runs between the lots in an east-west direction. The lots fall towards the drainage channel, are an irregular shape and have a total area, excluding Lot 162, of 3.5643ha.

8. The site has frontages to Pye Road and to two unfinished streets; Woldhuis Street and Summerfield Avenue.

9. The site was formerly a poultry farm however is largely now cleared with the exception of remnant native and exotic trees and grasses.

10. Surrounding development comprises single dwelling houses with some commercial uses and schools fronting Quakers Hill Parkway.

Background to the amended proposal

11. The refused application lodged in December 2014 proposed 140 dwellings. During 2015, amended plans and additional documentation was provided in response to Council requests.

12. The development is integrated development pursuant to Division 5 of Part 4 of the Act as it proposes works on riverfront land (being the drainage reserve) requiring a controlled activity approval pursuant to s91 of the Water Management Act 2000. The relevant approval body is the NSW Department of Primary Industries Office of Water (WaterNSW) and general terms of approval (GTA’s) were issued by WaterNSW on 20 February 2015.

13. In August 2015 the application was notified and 34 objections were lodged. One submission was signed by 32 residents of Woldhuis Street, another by 22 residents of Summerfield Avenue and Brigid Place, and a third by 46 residents of the surrounding community.

14. Submissions raised concerns with the density of the development claiming it was not in accordance with the zoning of the land or the character of surrounding development. Concerns were also raised in terms of impacts on the environment and local drainage, on local roads with increased traffic and parking, and on local residential amenity.

15. In August 2015 the appeal was filed with the Court against Council’s deemed refusal of the application.

16. The appeal was the subject of conciliation under section 34 of the Land and Environment Court Act 1979 in November 2015. The Council raised 14 contentions which were the subject of the conciliation. The contentions included the appearance of the development to Quakers Hill Parkway and Pye Road, the proposed works on Council land, the extent of cut and fill, biodiversity and salinity impacts, traffic and engineering issues, and concerns with the development layout including internal setbacks, location of communal open space, fencing, garage dimensions, and waste management.

17. Conciliation was undertaken between November 2015 and August 2016 in an attempt to resolve the contentions. Following termination of the conciliation conference in August 2016, an amended proposal arose which reduced the number of dwellings to 122 and proposed a number of initiatives to address the environmental impacts of the development.

18. The amended proposal was notified and 8 objections were lodged in response. In September 2016, Leave was granted by the Court to amended plans and documentation which sought to reduce the number of contentions. Leave was also granted in October 2016 to amended engineering plans to address a number of engineering contentions. The amended proposal was renotified in October 2016.

19. Revised contentions were filed by the Council in November 2016 which reduced the number of contentions from 14 to 8 and the complexity of the issues in the remaining contentions.

20. The remaining contended issues were: the appearance of the development to Quakers Hill Parkway and Pye Road; the proposed works on Council land; the extent of cut and fill; biodiversity impacts; the internal setbacks to two dwellings and two courtyard fences; and waste management.

21. Subsequent to the granting by the Court of Leave to rely on the amended plans as comprising the application as amended, the applicant and the Council continued to conciliate outside the formal conciliation process to address the remaining contentions. During the hearing it was confirmed by the parties that these matters had all been satisfactorily resolved by further minor amendments to the plans, by the proposed VPA, or by conditions of consent.

Resident Objections

22. The hearing commenced on site and the Court heard from four residents; two who reside in Summerfield Avenue, one in Woldhuis Street, and one in Sampson Crescent.

23. The two residents of Summerfield Avenue were concerned at the completion of that street as a cul de sac as part of the development with 10 new dwellings fronting the cul de sac. They believed the dwellings should instead face into the development and be accessed off Pye Road or Quakers Hill Parkway, and were concerned the proposal would result in additional parking and traffic in Summerfield Avenue, with resultant safety implications, decreased property values and adverse impacts on their way of life. Concern was also expressed with medium density development in a low density area and the amount of fill required given the current levels. Finally, the residents wanted to preclude pedestrian access between Summerfield Avenue and the new development.

24. The resident of Woldhuis Street raised similar concerns in terms of parking and access. She indicated the residents of her street enjoyed a lifestyle which would be diminished by the proposed development. She also did not want to see the completion of her street as a cul de sac as part of the development (with 6 new dwellings to front the new section of Woldhuis Street). She raised particular concerns that emergency vehicular access was proposed from the development into Woldhuis Street, preventable only by removable bollards, and queried how this would be managed. She was also concerned with the safety of Pye Road, the density of the development, and the indicative location on the plans of a number of rubbish bins in the cul de sac head of Woldhuis Street to service the new dwellings. She also believed the dwellings should face into the development and be accessed off Pye Road or Quakers Hill Parkway.

25. The resident of Sampson Avenue had a concern to ensure that there would be no net loss of trees on the site as a result of the development.

26. The Court viewed the appeal site including from the adjoining streets and drove down Summerfield Avenue and Woldhuis Street.

Statutory controls

27. At the time of lodgment of the application in October 2014, the land was zoned Residential 2(a) under the provisions of the Blacktown Local Environmental Plan 1988 (the 1988 LEP). The riparian corridor was zoned Drainage 5(a). The proposed development was permissible with consent in the zone under the 1988 LEP with drainage and roads permissible in the 5(a) zone.

28. At the time of lodgment of the application, the Council had exhibited a draft local environmental plan that proposed to zone the private landholdings R2. However, it was not until April 2015 that the Council forwarded the draft LEP, being Blacktown Local Environmental Plan 2015 (the 2015 LEP), to the Minister to be made. The 2015 LEP did not take effect until July 2015. Pursuant to the provisions of the 2015 LEP, the site is now zoned R2 with the proposed development prohibited in that zone.

29. Clause 1.8A of the 2015 LEP contains saving provisions for development applications lodged prior to the 2015 LEP taking effect as follows:

If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.

30. Therefore the application is to be determined under the provisions of the 1988 LEP which permits the proposal.

31. The following provisions of the Blacktown Development Control Plan 2015 (the DCP) also apply to the development, namely Part A - General Guidelines and Part C - Development in Residential Zone.

32. As previously indicated, the development is also integrated development pursuant to Division 5 of Part 4 of the Act as it proposes works on riverfront land (being the drainage reserve) which requires a controlled activity approval pursuant to s91 of the Water Management Act 2000. The GTA’s of the relevant approval body, being WaterNSW, were issued in 20 February 2015 with respect to the original application. The amended application was referred to WaterNSW on 24 June 2016 but a response has yet to be received.

The remaining issues

33. As previously indicated the parties had largely arrived at a consensus by the time of the hearing that the proposal as amended should be approved. The Court was therefore asked to only have regard to the issues raised by residents, the proposed conditions of consent, and the proposed treatment of the drainage reserve, which varied from the treatment sought by WaterNSW as the approval body.

34. Critical to the Council providing support to the proposal were the amendments undertaken to address the environmental impacts. In particular, the applicant agreed to provide an expanded ‘Snail Reserve’ containing remnants of Cumberland Plain Woodland (CPW), a critically endangered ecological community, and the Cumberland Plain Land Snail (CPLS). Revegetation and enhancement of the Snail Reserve and the riparian corridor reserve, including the planting of some 150 CPW trees, was also proposed. The number of trees to be removed has been substantially reduced relative to that proposed in the original application so that, in conjunction with the proposed planting, there will now be a net increase in the number of trees on the site as a result of the development, as sought by one of the residents who gave evidence.

35. Vegetation Management Plans have been proposed for the Snail Reserve and the Riparian Reserve with the applicant funding management works for at least two years or until measurable targets of rehabilitation are achieved. The vegetation reserves will be vested as community land and ongoing management vested in the owner’s corporation managing the communal areas in perpetuity.

36. I therefore now turn to the matters raised by residents and to the proposed drainage works in the riparian corridor.

Issues raised by residents

37. The residents of Woldhuis Street and Summerfield Avenue did not want their streets extended as culs de sac into the development site with new dwellings fronting the new cul de sac heads as was proposed.

38. Mr Apps, the Council’s Planner, advised the Court that the Council envisaged that Woldhuis Street and Summerfield Avenue would be culs de sac extending onto the site. In fact the original DCP showed these roads connecting but this had been amended so the DCP road pattern now shows them as culs de sac with the cul de sac heads contained on the appeal site and required to be constructed by the developer as part of the development of the land.

39. In Mr Apps’ view, the cul de sac configuration proposed would help disperse traffic from the development and ensure that not all traffic was concentrated over the sensitive drainage reserve which would otherwise have required a substantial bridge structure to Quakers Hill Parkway. It was also a preferred outcome for Council that those two streets be ‘finished off’ rather than end abruptly at the boundary of the site as exists currently.

40. The Council did not raise any concern in relation to off site parking impacts or traffic generation. An updated traffic and parking assessment report had been prepared by the applicant to accompany the amended plans which concluded that the projected increase in traffic activity as a consequence of the development would be minimal and would not have any unacceptable traffic implications in terms of road network capacity including on either Woldhuis Street or Summerfield Avenue.

41. In terms of parking, the DCP requires 290 spaces made up of 241 resident spaces and 49 visitor spaces. The proposal provides 292 off street car parking spaces and therefore complies. The visitor parking is dispersed in visitor parking areas throughout the development. The applicant also agreed that any approval should include a requirement to mark and signpost the off street visitor car parks to ensure they are used for visitors and deter them from parking in adjacent streets. A condition to this effect was proposed accordingly.

42. In terms of the concern expressed by the Woldhuis Street resident in relation to the removable bollards which are proposed to prevent access from the development through to Woldhuis Street, it was reiterated that this was an alternative emergency exit only and would be managed by the owners’ corporation. A condition was agreed by the parties to require that the bollards are only to be removed for emergency access and are to be maintained by the owners’ corporation.

43. Finally, both Mr Apps and Mr Grech for the applicant were in agreement that pedestrian permeability between this development and the existing streets was a desirable planning outcome for an integrated community and would benefit both existing and future residents of the area.

44. In terms of waste management, the applicant advised that waste collection for the entire development, including those dwellings facing Woldhuis Street and Summerfield Avenue, would be by private contractor. The bin locations in the street shown in the plans were indicative only and were for the collection days only. For the majority of the times, the bins would be stored off street.

45. With regard to the proposed level of fill, particularly across the southern portion of the site, the parties advised that this was required in order to achieve habitable floor levels of dwellings above peak flood levels and would also assist with visually integrating development with existing adjacent development.

Works in the drainage basin

46. The parties were in agreement as to a form of treatment of two drainage basins in the riparian corridor, with the work proposed varying from the treatment sought in the GTA’s provided by WaterNSW.

47. In their GTA’s, WaterNSW included a requirement for the base of the drainage channel to be of soil and rock construction. The Council opposed this treatment for the two proposed corridor basins on maintenance grounds requiring instead that the basin floors be concrete.

48. Mr Apps gave evidence that the Council treatment proposed was necessary to ensure effective sediment cleaning of the basins could occur and allow appropriate mechanical maintenance to be undertaken to preserve their drainage function.

49. Mr Apps had also consulted with the environmental experts who had advised that the Council’s proposed treatment of the basins would have no adverse environmental impacts. The applicant also accepted the Council’s proposed treatment.

50. Pursuant to s39(6A) of the Land and Environment Court Act 1979:

the Court may determine the appeal whether or not the consent authority has obtained the general terms of approval of each relevant approval body within the meaning of section 90A of that Act, and

the Court is not bound to refuse an application for development consent because an approval body has decided not to grant its approval or has failed to inform the consent authority whether or not it will grant its approval, and

the Court may determine the appeal even though a development consent granted as a result of the appeal is inconsistent with the general terms of approval of an approval body.

Section 93 of that Act applies to a development consent granted as a result of the appeal.

51. The parties requested that the Court approve the development with the basin treatment as sought by the Council, notwithstanding the requirement of WaterNSW, under section 39(6)(A).

Findings

52. The application before the Court was substantially modified to that which had been refused by the Council. In particular, the development has evolved in collaboration between the applicant and the Council with the assistance of a number of experts.

53. With the imposition of the conditions as proposed during the hearing, the parties were of the view that the Court should be satisfied that there are no remaining grounds to refuse the application, and that the development is an appropriate response to the planning controls and the constraints of the site.

54. I agree that the appeal should be upheld and the development application as amended, approved subject to the agreed conditions.

55. In coming to that conclusion, I accept that there will be no adverse amenity impacts on any adjoining residential property which would warrant refusal noting also that there were no substantive issues in terms of amenity impacts to neighbours raised by the Council or which arose from expert evidence, notwithstanding the objections of residents.

56. The applicant argued that the proposed development would be a better neighbour than the former poultry farm and I accept that this is likely. The objectors accepted that some form of residential development would occur on the site. What is proposed accords with the permissible density at the time the application was lodged and the size of the site enables a form of medium density development where amenity impacts on neighbours can be minimised.

52. A number of the residents objected to the development on the basis of traffic and parking concerns. However, expert evidence before the Court indicated that the parking provision complied with DCP requirements and that the access and parking arrangements were to the satisfaction of the Council. I therefore must accept the expert evidence that parking and traffic on surrounding streets or within the development is not a ground for refusal. There will however, be a requirement for the visitor parking areas to be clearly designated.

53. Similarly, ‘finishing off’ the two adjoining roads to take the form of culs-de-sac as proposed by the DCP is an appropriate design and traffic distribution outcome and removes the requirement for a more substantive road crossing of the riparian corridor.

54. In my view, and I’m sure the residents would agree, the proposed cul de sac treatment of both Woldhuis Street and Summerfield Avenue is a better outcome for the residents of those streets than the roads being connected at the unfinished end with each other or other roads, as was originally intended. This would have seen substantially more traffic in those streets than will now eventuate albeit that may be more traffic than exists today. Furthermore, I think it unlikely that visitors will park in either of these two streets given the circuitous nature of the network to drive from the development to the far end of these roads to then walk back to dwellings in the development.

55. I also agree with the planning experts that the proposal for new dwellings fronting the cul de sac heads to face those roads is a preferable urban design and passive surveillance outcome than those dwellings being oriented internal to the development with their rear fences at the top of the streets concerned. I further agree that pedestrian permeability between the proposed development and the surrounding existing streets is appropriate and desirable.

56. Finally, I note that the development makes a positive environmental contribution in that it provides protective and enhanced reserves for threatened species and enhances the riparian corridors and vegetation on the site.

57. In terms of the treatment of the drainage basin floors, based on the evidence provided by Mr Apps, including that the Council owns the land, is required to maintain the basins, and has required similar treatments for other basins within integrated developments notwithstanding the GTAs of the WaterNSW to the contrary, I agree that the condition as sought by the Council is appropriate to impose. I have therefore imposed it under the provisions of s39(6A) of the Land and Environment Court Act 1979.

58. I have also imposed the condition requested by the parties requiring a Voluntary Planning Agreement (VPA) as a deferred commencement condition prior to the consent becoming operational. The VPA is to be entered into after the expiry of the required notification period and is for the proposed drainage works and road works associated with the completion of Woldhuis Street and Summerfield Avenue and the provision of the entry road into the development, the VPA being in accordance with the offer made by the applicant.

Orders

64. The orders of the Court are:

1. The appeal is upheld.

2. Development application 14/2630 for a medium density housing development at 490 Quakers Hill Parkway, Quakers Hill is approved subject to the conditions set out in Annexure “A”.

3. The exhibits, other than Exhibits 1, A, B and C, are returned.

__________________

Jenny Smithson

Commissioner

152783.16 - Annexure A - Conditions of Consent (237 KB, pdf)

Amendments

29 December 2016 - Pursuant to UCPR 36.17, amendment made to correct a typographical error in order 2.

Decision last updated: 29 December 2016