Wallis & Moore Pty Limited v Sutherland Shire Council
[2006] NSWLEC 713
•8 November 2006 ex tempore
Land and Environment Court
of New South Wales
CITATION: Wallis & Moore Pty Limited v Sutherland Shire Council [2006] NSWLEC 713 PARTIES: APPLICANT:
Wallis & Moore Pty Limited
RESPONDENT:
Sutherland Shire CouncilFILE NUMBER(S): 10109 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Bushfire protection;
Owners’ consent;
Permissibility;
Matters raised by objectorsLEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000, (SSLEP)
Development Control Plan for Residential Subdivision, (DCPRS)
Regional Environmental Plan - Georges River Catchment, (REPGRC)
State Environmental Planning Policy No 19 - Bushland in Urban Areas, (SEPP19)
Draft Sutherland Shire Local Environmental Plan 2004, (DSSLEP)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 08/11/2006
DATE OF JUDGMENT:
11/14/2006EX TEMPORE JUDGMENT DATE: 11/08/2006 LEGAL REPRESENTATIVES: APPLICANT:
Mr S Austin, SC, instructed by
Mr G P Cummins, solicitor
SOLICITORS:
G P CumminsRESPONDENT:
Mr C R Mathieson, solicitor
SOLICITORS:
Principal Environmental Lawyer, Sutherland Shire Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
8 November 2006
10109 of 2006 - Wallis & Moore Pty Limited v Sutherland Shire Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Sutherland Shire Council (the council) to refuse an integrated development application to subdivide, now under community title, five (5) existing allotments and part of a Crown road to create thirty-five (35) new lots, amended before the hearing, [originally fifty-five (55) Torrens title lots], one community title allotment and a residue allotment in two (2) stages. The proposal also includes fire trails, drainage, underground bushfire protection water storage tank, the transplantation of endangered Melaleuca deanii and landscaping at Lot 10, DP 712194; Lot 103, DP 702011; Lot 41, DP 831159; Lot 11, DP 580388; Lot 1, DP 854796; Part of a Crown road being the residue of the land in Vol 8414, Folio 4, [Lot 100, DP 1046783], being No 343 Alfords Point Road, Illawong and No 333 Alfords Point Road, Menai, NSW 2234.
2 I visited the land in company with the parties on the morning of the first day of the hearing.
3 I have concluded that the consent orders are satisfactory and are made.
The land
4 The land is situated off the eastern end of Monash Road, Menai and shares an eastern boundary with Alfords Point Road for a distance of about 344 metres. It is almost trapezoidal in shape with a short length of about 136 metres and a long length of about 310 metres, and an area of 5.845 hectares.
5 The southern part of the land slopes from the eastern boundary to the edge of a north/west facing gully that intrudes into the south western corner. The northeastern corner of the site slopes into a north-facing gully. There are scattered rock ledges and the land slopes generally from about 5% up to about 25% in parts.
6 The land is vacant covered with native bushland, with some large trees and some threatened plant species, the shrub Melaleuca deanii.
7 The land is within a bushfire prone area on the council’s map prepared under s 146 of the Environmental Planning and Assessment Act 1979.
8 The land abuts, to the southwest, an undulating residential area characterised by detached single-storey and two-storey dwellings, mostly of brick and tile construction, with an open streetscape.
9 As explained by Ms Pinfold, the subject land and the adjoining sites to the north, owned by Mr C Wong and Landcom, comprise the last significant area of undeveloped and residentially zoned land in this part of Sutherland Shire. These lands collectively are known as the Monash Road Development Site.
10 The Monash Road Development Site has been zoned for residential development since the gazettal of Interim Development Order 23 - Shire of Sutherland that provided for the development of the entire Menai, Alfords Point, Illawong and Bangor areas.
11 The land is located to the west of Alfords Point Road, which is an access denied road. The existing development pattern to the north of the land precludes vehicular access from this direction. Therefore, the only practical permanent access to both the subject land and adjoining properties is along an extension of Monash Road.
12 Supported by the council, the owners of these properties, which constitute the Monash Road Development Site, had prepared a Master Plan to facilitate co-ordinated development. That has now been amended by the proposal.
Relevant planning controls
Sutherland Shire Local Environmental Plan 2000, (SSLEP)
13 Under the provisions of the SSLEP the land is zoned partly 2(al) Residential, partly 7(b) Environmental Protection (Bushland) and partly 5(d) Special Uses (Future Arterial Road) and the proposal is permissible as ‘dwelling houses’, ‘roads’, ‘subdivision’, within the 2(a1) zone with consent.
14 The objective of the 2(al) zone under the SSLEP is
- A residential environment:
15 Clause 30 of SSLEP states:
- When assessing the impact of residential land uses proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone concerned, the consent authority must take into consideration the following matters and must not grant consent unless it is satisfied that those matters have been adequately addressed by relevant documentation submitted to it:
16 Clause 32 - Bushland Considerations in SSLEP states:
- Consent must not be granted to residential development unless the consent authority is satisfied that the proposed development will not have a significant adverse effect on:
17 Clause 37 of SSLEP - What minimum allotment sizes apply in residential zones for 2(al) Residential zones states:
- For creation of new allotments:
Standard allotment - 550m2,
Internal allotment - 700m2, except as provided below: 600m2 for the site of 2 dwellings,
1200m2 for the site of 3 or more dwellings
18 Clause 38 of the SSLEP - What minimum allotment dimensions apply in residential zones for 2(al) Residential zones states:
- 15m for creation of a new allotment, except as provided below: 25m for the site of 3 or more dwellings.
19 The objective of the 7(b) Environmental Protection (Bushland) zone is
20 Development that requires development consent in the 7(b) zone includes
- Development for the purpose of works to enable pedestrian access to facilitate recreational use of the bushland. Subdivision.
21 Development that is allowed without development consent in the 7(b) zone includes
- Development for the purpose of works (other than buildings) associated with bushland regeneration or bushfire hazard reduction.
22 The objective of the 5(d) Special Uses (Future Arterial Road) zone is:
- To provide for an arterial road link to serve the future needs of Sutherland Shire and the metropolitan area of Sydney.
23 Development that requires development consent in the 5(d) zone includes: Development for the purpose of subdivision.
Development Control Plan for Residential Subdivision, (DCPRS)
24 The council adopted the DCPRS on 19 March 2001 and it came into effect on 27 March 2001.
25 The objectives of the DCPRS, in clause 3, are:
- to enable the orderly subdivision of residential land to enable the development of land for residential uses to protect the environment to enable equitable distribution of open spaces.
26 Clause 10 of the DCPRS contains controls for environmental impact. It states:
- Objectives:
- Controls
a. The environmental impact of a proposed subdivision is to be assessed by the applicant prior to lodging a Development Application. A Statement of Environmental Effects is to be carried out and submitted with a Development Application.
b. Existing trees, watercourses or cliff faces are to be identified on the submitted plans; the layout of lots and the proposed vehicular access is to take account of the preservation of these features.
c. Cuts and embankments higher than 3m are to be treated to reduce the visual impact. The cuts/embankments (and the proposed treatment) are to be identified on the submitted plans.
d. Consultation with the National Parks and Wildlife Service prior to the submission of an application regarding the protection of aboriginal sites; an archaeological survey may be required.
e. A Geotechnical Report is to be submitted for any unstable lands. Refer to the Engineering Division for details.
f. Applicants should also refer to the Bush Fire DCP for details of requirements in peripheral residential areas of the Shire.
27 Clause 11 of the DCPRS contains the same standards for minimum allotment sizes and shapes as in the SSLEP and precedes them with the following objectives:
1. Sufficient allotment area available for
· a dwelling house and ancillary facilities;
· outdoor recreation and service space;
· vehicular access to/from the site;
· on-site parking for two cars;
2. Adequate area for building setbacks to reduce the effect of radiated heat in areas with bush fire risk (peripheral areas of development).
28 Clause 12 of the DCPRS contains controls for parking. It states:
- Objectives:
Adequate area on site for car parking.
Controls:
1. Each lot is to be provided with space for the parking of two vehicles, generally behind the building line (generally measured 7.5 m from a public road).
29 Clause 13 of the DCPRS contains controls and design standards for road widths. The objectives for these are:
- Objectives:
30 The relevant clauses in this REPGRC are in Part 1 Introduction - cl 5; Part 2 Planning Principles - cll 7, 8 and 9 (5), 9(9) and 9(10); Part 3 Planning Requirements and Consultation - cll 10 and 11; Section 8 - Housing Development.
State Environmental Planning Policy No 19 - Bushland in Urban Areas, (SEPP19)
31 The relevant clauses in SEPP19 are cl 2 - Aims, objectives etc and cl 9 - Land adjoining land zoned or reserved for public open space.
Draft Sutherland Shire Local Environmental Plan 2004, (DSSLEP)
32 The provisions of DSSLEP apply to the land that is partly zoned Environmental Housing (Bushland); partly zoned Arterial Road and partly uncoloured, edged red and marked "B", cross-referenced to the provisions of cl 31.
33 The DSSLEP applies to the whole of the Shire (except for the Kurnell Peninsula) and was originally exhibited from 18 February 2003 to 3 May. It was again exhibited, this time, as Draft Sutherland Shire Local Environmental Plan 2004, from 1 December 2003 to 18 January 2004.
34 On 11 April 2005, the council resolved to make amendments to the DSSLEP and forward it to relevant public authorities for consultation. It was also decided that the Department of Infrastructure, Planning and Natural Resources, (now DOP) be requested to issue a s65 certificate to enable further public exhibition but the certificate has not yet been issued. However, the Minister has subsequently met with representatives of the Council and has stated he will not support the latest DSSLEP.
35 Clause 31 of the DSSLEP states:
- 31. DEVELOPMENT ON UNCOLOURED LAND ON THE MAPS MARKED A, B, D AND E
(1) This clause applies to land at West Menai, Menai, Barden Ridge and Woronora Heights that are uncoloured and edged red on the maps.
(2) The objectives of this clause are:
(a) to ensure future land uses are consistent with the Sutherland Shire Structure Plan 2003 objectives and matters for consideration in this Plan, (b) to ensure future land uses of Site A must have regard for the ongoing operation of Commonwealth Defence land use purposes.
(3) Council cannot consent to any development on land shown uncoloured and outlined in red unless:
(a) it has first considered a local environmental study for the whole of the land outlined in red and identified as Site A or B or D or E,
(b) the scope and detail of the local environmental study and Environmental Statement shall be subject to Council's agreement and satisfaction having regard to the requirements of relevant public authorities,
(c) where the local environmental study recommends and justifies the zoning of the land, Council will require preparation of an Environmental Statement for the whole of the site A or B or D or E, prepared by or on behalf of all property owners that form that site, for consideration in conjunction with a draft local environmental plan to be prepared by Council,
(d) the land is zoned and the development is permissible with consent.
(4) Regardless of subclause (3), Council may consent to development for the purposes of any of the following on land subject to this clause:
· ancillary development
· demolition
· drainage
· recreation areas
· roads
· subdivision
· utility installations (other than gas holders or
· generating works), and
· exempt development.
36 Roads are permitted without development consent in the Arterial Road zone. The Environmental Housing (Bushland) zone permits dwelling houses, roads and subdivision only with development consent.
The proposal and its history
37 Integrated development application No 05/1460 was lodged with the respondent council on 17 November 2005 to subdivide under Torrens title five (5) existing allotments and part of a Crown road to create fifty-five (55) new lots in three (3) stages on the land.
38 Before the hearing commenced the application was amended and the proposal is now to community title subdivide the five (5) existing lots and part of a Crown Road to create thirty-five (35) residential allotments, one community property allotment and a residue development lot, in two stages. The proposal also includes fire trails, drainage, underground bushfire protection water storage tank, the transplantation of endangered species Melaleuca Deanii and landscaping. The amendments delete Stage 3, which is retained as a residual allotment for future development. The number of allotments in Stage 2 has also been reduced from 18 to 9 allotments.
Notification
39 The original integrated development application was notified to nearby owners and occupiers and the council received sixteen (16) responses. Concerns were expressed in relation to:
· road design;
· traffic management;
· master plan;
· bushfire;
· impact on the natural environment and Aboriginal heritage;
· amenity.
The council’s decision
40 On 1 December 2005, the council wrote to the applicant requesting additional information to enable a proper assessment of the proposal.
41 On 7 December 2005, the applicant advised the council that the information submitted with the development application was comprehensive and the council was asked to assess it on the basis that all relevant information had been submitted.
42 On 9 December 2005 the council wrote to the applicant advising in more detail the information that is lacking.
43 On 23 January 2006 the council under delegated authority refused the integrated development application for reason:
1. The data provided with the DA is incomplete and unsatisfactory.
2. The lack of information and its incomplete nature gives rise to concerns that the development of the site in isolation, and without a Master Plan agreed by all parties, is not in the best interests of the community with regard to the establishment of an adequate access network and emergency access/egress to the external road network.
The hearing
44 The appeal was filed on 13 February 2006.
45 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr P Wells, Secretary of the Menai West/Barden Ridge Precinct Residents’ Association, and resident of No 30 Monash Road, Menai, [Note: Exhibit 4, Fol 79].
· Mr P Towell, Chairman of the West/Barden Ridge Precinct Residents’ Association, and resident of No 113 Hall Drive, Menai, [Note: Exhibit 4, Fol 80];
· Mr G Dean, resident of No 11 Monash Road, Menai;
· Ms D Pinfold, town planner of Sutherland Shire Council.
46 On behalf of the applicant evidence was given by, Mr C J Weatherby, town planner and surveyor.
47 Ms D Pinfold, town planner of the Legal Services Department prepared the development assessment report and Mr G Hand town planner prepared the statement of basic facts.
The issues
48 On 3 July 2006 the council filed a statement of issues.
- BUSHFIRE
- OWNERS CONSENT
- PERMISSIBILITY
- MATTERS RAISED BY OBJECTORS
5. Matters raised by objectors.
49 The following emerged as the salient issues:
· Bushfire protection
· Owners’ consent
· Permissibility
· Matters raised by objectors
Bushfire protection
50 Bushfire protection was addressed by the parties and agreed to by the Rural Fire Service. The RFS has supplied general terms of approval and these have been included as conditions of consent.
51 To protect future dwellings from bush fire attack uphill from the west, a 60m Asset Protection Zone is proposed within Stages 1 and 2 of the subdivision,. I am satisfied that this is a reasonable requirement and one that may be endorsed by the Court.
Owners’ consent
52 Before the hearing the owners’ consent to the lodgement of the subdivision application was provided and this issue was not pressed.
Permissibility
53 No future residential development is proposed on land, zoned 7(b) Environmental Protection (Bushland) under SSLEP.
54 An existing fire trail located within proposed lot 1 links the existing perimeter fire trail network below Von Nida Place, with the public road network. This proposed northern fire trail is located within land that is zoned 7(b) Environmental Protection and under the provisions of SSLEP would be prohibited. The applicant relies on existing use rights to allow for the upgrade and continuing use of the fire trail.
55 The council accepts this position and this issue was not pressed in the hearing. I accept the council’s position in this regard.
Matters raised by objectors
Bushfire threat
56 Mr Wells was concerned that the land would be vulnerable to bushfire threat and cited three severe bushfires 1994, 1997 and 2002, that have impacted the land. Also he pointed out that as the subject land sits atop a steep western slope, above dense bushland, special care needs to be taken to protect life and property. He was particularly concerned for proposed Blocks Nos 19-24, 31 and 32) which he said would be “…in a very dangerous position”. He said that “…the asset protection zone and fire trail will be of little benefit to houses on these blocks if a fire roars up the gully, being blown by a strong north westerly wind”.
57 Ms Pinfold was satisfied that “…the amended plans… provide for an adequate level of bushfire protection to the new residents”. In addition, she said, “…the proposed development will also improve the level of bushfire protection to current dwellings at the northern end of Monash Road and Travis Place by increasing the separation between the bushfire hazard and these dwellings”.
58 Ms Pinfold also stated:
- The asset protection zone includes both the fire trail and lands between the fire trail and the future dwellings. The size of the asset protection zone complies with the requirements of Planning for Bushfire Protection, 2001. The asset protection zones are of greater width than those existing in the Ferrier Drive locality, which have already proven effective in the 1997 and 2002 bushfires.
59 The Rural Fire Service has assessed the amended plans and as previously outlined, has proposed general terms of approval and expressed satisfaction for the proposal’s site planning.
60 I am satisfied that the proposed 60m Asset Protection Zone, (APZ), would reduce the threat from bushfires approaching from the west. I would not refuse this application for reason of bushfire threat. In coming to this conclusion I have taken into account the shelving topography within the APZ on the western side of the proposal.
Vehicular access
61 A number of the residents that attended the hearing on-site and Mr Wells in particular, expressed concern for the width of the proposed extension of Monash Road (Spine Road 1) within the land. He pointed out that this road would have a width of 16m-road reserve and 9m carriageway, and would provide a carriageway 2m less in width than the existing section of Monash Road that has a 20m-road reserve and 11m carriageway. This Mr Wells considered inadequate in bushfire emergencies and argued that Spine Road 1 should be maintained at a carriageway width of 11 metres.
62 Mr Wells expressed concerns that the 9m-carriageway width would:
· be not consistent with the established roads (Monash Road and Ferrier Place);
· be inadequate for emergency vehicle access and for residents to evacuate safely in a bushfire. He pointed out that smoke and limited vision is a cause of panic and could contribute to unsafe conditions especially if exacerbated by narrow roads. He maintained that the conditions found in major bushfires in 1994, 1997, and 2002 support the necessity of an 11m carriageway;
· be inadequate as Spine Road 1 provides the only exit via Monash Road to Illawarra Road;
· increase congestion in Monash Road;
· cause conflict at the emergency access point via Travis Place; and
· be inadequate to cater for buses using this road.
63 Mr Wells was concerned that the extension of Monash Road at the entrance to the proposal, would be dangerous as a result of its steepness and sweeping bend. He was also concerned that there is no guarantee that the Travis Place emergency access would be available during emergencies.
64 Mr Wells also urged the council representatives and the Court to take into account the existing access to Monash Road from Old Illawarra Road and asked that new roads be designed to allow for easy access and egress for emergency vehicles.
65 Ms Pinfold considered the evacuation routes in time of bushfire and stated:
- In issuing its general terms of approval for the proposed development, the Rural Fire Service has assessed the adequacy of the road design and emergency evacuation routes.
The proposed development provides for a separate evacuation route in an emergency through Travis Place, Menai. Upon completion of development on the Wong and Landcom sites, an additional emergency access point will be provided to Alfords Point Road. Keys to these gates will be made available to all emergency service vehicles based in the Shire. Arrangements for opening of these gates in times of emergency form part of the emergency management-planning regime.
It should also be noted that the NSW Bush Fire Coordinating Committee Evacuation Policy does not encourage mass evacuation of residents from bushfire-affected areas. Instead, where dwellings are properly prepared, residents are encouraged to remain with their dwellings during a bushfire so that they can extinguish spot fires (which are the primary cause of house loss in bushfires). Residents wishing to evacuate are encouraged to do so well in advance of the impact of the bushfire front. Therefore it is unlikely that a mass evacuation will occur of the 130 or so households that will ultimately be located upon the Monash Road Development Site as the fire is impacting.
Further, the asset protection zone, and the construction standards that will be applied for future dwellings under the provisions of s79BA of the EP&A Act are designed to provide residents with the properly prepared dwellings mentioned in the Co-ordinating Committee Policy, subject to ongoing maintenance of these facilities.
66 On the site inspection, Ms Pinfold explained that the proposed width of Spine Road 1 would be 1m wider than required by the council and would be of a width that has been endorsed by the Rural Fire Service as being adequate in emergencies. I am satisfied that the width of proposed Spine Road 1, augmented by the Ferrier Place access, would be adequate to provide for emergencies. I am also satisfied that the additional capacity in time of bushfire, would be in accordance with normal requirements and I would not refuse the application for this reason.
67 Mr G Dean was concerned that the developer might decide to open the emergency access point leading to Travis Place to normal traffic, and this would compound the traffic congestion for Travis Place residents. The present application does not propose the use of this access for anything other than emergency access. Any other use of this access would require further development consent. I would not refuse the application for this reason.
Traffic flows
68 Mr Wells was concerned that with all the sites fully developed, including the subject land, the Wong and Landcom land, there would be “…a 100% increase [in traffic as]- currently there are 145 houses, with perhaps another 145 to be built”, dangerous traffic conditions would be created at the junction of Ferrier Place and Monash Road. He was also concerned for the traffic conditions at the intersection of Monash and Old Illawarra Roads.
69 Also, he asked why are not the road improvements that have been suggested for Old Illawarra Road provided now rather than in the future?
70 Ms Pinfold stated:
- As outlined in the engineering comments [in my] report, the proposed road design, and current road arrangements in Monash Road and Old Illawarra Road are considered to be satisfactory for both the current application and future development of the adjoining site in accordance with the Master plan, subject to conditions of consent to be imposed on the later stages of the Monash Road Development Site.
Further, while the proposed development will result in additional traffic using the existing section of Monash Road, the traffic levels for both the proposed development and the developed envisaged by the master plan are considered to be within the design capacity of the roads. Therefore, the impact is not considered to be unreasonable.
71 I accept that the applicant and the council have carefully considered the environmental capacity of the road system near the land and I would not refuse the application for this reason.
72 I also consider the width of Spine Road 1 to be adequate for normal vehicular movement.
73 For the above reasons, the appeal is upheld by consent.
Planning principle
74 In the interests of good passive solar design of future dwellings, residential subdivision should be designed to maximise the number of allotments with side boundaries oriented in a generally north-south direction. Regard must also be had for topography, views and special natural features of the land and weighed in the balance with passive solar design. This objective is encapsulated in the following planning principle:
- In assessing applications for residential subdivisions the Court places major emphasis on the ease with which future dwellings with good solar access can be erected on the proposed allotments. In general, this condition is best fulfilled when the side boundaries of the majority of the allotments are on or near a north-south axis; however, there may be other solutions. What is important is to think of the subdivision beyond the subdivision stage and strive for a future residential area in which the great majority of dwellings can achieve good solar access.
75 The council and the applicant have worked together to resolve outstanding site planning issues and to maximise passive solar design. I am satisfied that the above planning principle has been taken into account in this matter and that many future dwellings could be oriented with living rooms to the north take advantage of controlled solar access without unduly overshadowing adjoining dwellings.
Conditions
76 The conditions are those in Exhibit 6, as amended during the hearing.
Consent orders
77 I make the consent orders:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Integrated development application No 05/1460 lodged with the respondent council on 17 November 2005, to subdivide under now community title five (5) existing allotments and part of a Crown road to create thirty-five (35) new lots, [originally fifty-five (55) Torrens title lots] one community title allotment and a residue allotment in two (2) stages at Lot 10, DP 712194; Lot 103, DP 702011; Lot 41, DP 831159; Lot 11, DP 580388; Lot 1, DP 854796; Part of a Crown road being the residue of the land in Vol 8414, Folio 4, [Lot 100, DP 1046783] being No 343 Alfords Point Road, Illawong and No 333 Alfords Point Road, Menai, NSW 2234, is approved subject to Conditions 1 to 80 in Annexure A. The proposal also includes fire trails, drainage, underground bushfire protection water storage tank, the transplantation of endangered Melaleuca deanii and landscaping.
3. The exhibits except for Exhibits: Part Exhibit A, red Tab 4, Tab 6, 1, 3, 6 and 7 are returned.
S J Watts
Commissioner of the Court
sw
The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at
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