Williams v Blue Mountains City Council

[2010] NSWLEC 92

Land and Environment Court

of New South Wales

CITATION:	Williams v Blue Mountains City Council [2010] NSWLEC 92
PARTIES:	APPLICANT: Ralph Douglas Williams RESPONDENT: Blue Mountains City Council
FILE NUMBER(S):	11243 of 2008
CORAM:	Biscoe J
KEY ISSUES:	DEVELOPMENT APPLICATION :- residential subdivision - applicant and council agree that development application be approved subject to conditions - objectors object - whether proposal breaches density control provision of local environmental plan - merit considerations
LEGISLATION CITED:	Blue Mountains Local Environmental Plan 1991 Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1- Development Standards
CASES CITED:	Agostino v Penrith City Council [2010] NSWCA 20, 172 LGERA 380 Blue Mountains City Council v Williams [2009] NSWLEC 223 Issa v Burwood Council [2005] NSWCA 38, 137 LGERA 221 Williams v Blue Mountains City Council [2009] NSWLEC 1261
DATES OF HEARING:	15 February 2010, 21 April 2010, 31 May 2010
DATE OF JUDGMENT:	8 June 2010
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Pickles SOLICITORS: Yates Beaggi RESPONDENT: Mr I Hemmings SOLICITORS: McPhee Kelshaw

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

8 June 2010

11243 of 2008

RALPH DOUGLAS WILLIAMS v BLUE MOUNTAINS CITY COUNCIL

JUDGMENT

1 HIS HONOUR: This is a merits appeal under the Environmental Planning and Assessment Act 1979 (EPA Act) by the applicant, Ralph Williams, against the respondent Blue Mountains City Council’s deemed refusal of his development application for a subdivision and associated works at 53 Coughlan Road, Blaxland.

2 The development application described the location as Lot 5 in DP 103697, which has a total area of approximately 133,690.12m². The proposed subdivision in its final form, as amended during the hearing, is to create three new adjacent residential lots on a relatively small part of the land.

3 Two of the proposed lots - Nos 1002 and 1003 with areas of, respectively, 1624m² and 1255m² – are at the western cul-de-sac end of, and have vehicular access to, Coughlan Road. The third proposed lot – No 1004 with an area of 1984m² – is at the western cul-de-sac end, and has vehicular access to, Rock Wallaby Way. Those two streets and a third cul-de-sac, Honeyeater Crescent, are roughly parallel and form the head of a trident running in a general east to west direction. Coughlan Road is the central prong of the trident, Rock Wallaby Road is the southern prong and Honeyeater Crescent is the northern prong. There are existing residential lots between these three streets which, towards their cul-de-sac ends, are not dissimilar in area to the area of the three new proposed lots. The surrounding area is bushland.

4 Originally in the proceedings the proposal was to create four new residential lots. At that time, one of the council’s contentions was that this breached the density control provisions of cl 34.1 of the Blue Mountains Local Environmental Plan 1991 (LEP) and was prohibited by cl 34.4. The applicant contended that there was no breach of cl 34.1. Alternatively, the applicant submitted that (a) the breach was only to the extent of one residential lot; (b) cl 34.1 was a “development standard”; and (c) the applicant’s objection under State Environmental Planning Policy No 1 – Development Standards (SEPP 1) that compliance with the development standard was unreasonable or unnecessary in the circumstances of the case was well founded and development consent should be granted. There was an issue whether, as the applicant submitted, part lots should be ignored for the purposes of deriving the maximum number of lots per hectare required by cl 34.1, which involved consideration of Issa v Burwood Council [2005] NSWCA 38, 137 LGERA 221.

5 A preliminary question whether cl 34.1(b) of the LEP is a development standard was answered in the affirmative by a commissioner of the Court: Williams v Blue Mountains City Council [2009] NSWLEC 1261.

6 On the council’s appeal on a question of law, the parties agreed that the commissioner’s decision was based on assumed facts which were erroneous and, by consent, Preston CJ upheld the appeal, set aside the commissioner’s determination and remitted the whole of the proceedings to be heard by a judge: Blue Mountains City Council v Williams [2009] NSWLEC 223. That is how the matter came before me.

7 During the hearing before me, the applicant amended its proposal to reduce the number of residential lots to three. The council accepted that this satisfied cl 34.1, consistently with the decision on the earlier appeal.

8 All other issues between the parties having been resolved, the parties jointly proposed that development consent should be granted on certain conditions.

OBJECTORS

9 I am satisfied that the council has given reasonable notice to all persons who objected to the proposal.

10 Upon being given notice of the amended proposal, the following objectors made submissions and some gave evidence:

Steven Beard and Rachel Beard. They reside on Lot 4 at the south-western corner of Coughlan Road adjoining the proposed new Lots 1003 and 1004;
Christopher Milburn and Karen Milburn. They reside on Lot 6 at the north-western corner of Coughlan Road, separated from the proposed Lot 1002 by a right-of-carriageway;
Mark Daley and Yvonne Anderson. They reside on Lot 1 on the northern side of Rock Wallaby Way, separated by one existing lot from the proposed new Lot 1004;
Mr W Taylor, submissions dated 6 and 15 May 2010.

11 This intervention by objectors resulted in the parties agreeing to the following four additional conditions which satisfactorily meet a number of their submissions:

“39. To ensure that any dwelling house or outbuilding erected on proposed Lots 1003 or 1004 is not erected within 5m of the boundary between each of those lots and Lot 2 in DP 1000095 and Lot 4 in DP 1000095 there shall be registered against the title to each of new Lots 1003 and 1004 a restriction as to user, drawn in terms acceptable to the Council (acting reasonably) and providing that no dwelling house or out building shall be erected within the area concerned. The proprietors from time to time of each of Lot 2 DP 100095 and Lot 4 1000095 shall be nominated as the parties having the power to release, vary or modify the restriction. The s88B instrument creating the restriction shall be submitted to and approved by the Council prior to the applicant submitting the subdivision certificate application to the Principal Certifying Authority for the development.

40 To ensure that there is no further subdivision of the land within the proposed residue Lot 1005, there shall be registered against the title to that lot a restriction on the use of land, drawn in terms acceptable to the Council (acting reasonably) providing that there shall be no further subdivision of Lot 1005 without the prior written consent of Blue Mountains City Council. Blue Mountains City Council shall be nominated as the authority having the power to release, vary or modify that restriction. The s88B instrument creating the restriction shall be submitted to and approved by the Council prior to the applicant submitting the subdivision certificate application to the Principal Certifying Authority for the development.

41. To ensure that emergency access is available between Coughlan Road and Rock Wallaby Way, a right of carriageway 5 metres wide along the boundary of Lots 1003 and 1004 with Lots 2 and 4 in DP 1000095, drawn in terms acceptable to the Council (acting reasonably) is to be registered against the title to each of new Lots 1003 and 1004. The terms of the right of carriageway are to provide for emergency pedestrian and vehicular access for bushfire fighting and for bushfire emergency access (both pedestrian and vehicular) to the owners from time to time of lots 1 to 6 of DP1000095. The Council shall be nominated as the party having the power to release, vary or modify the right of carriageway. The s88B instrument creating the right of carriageway shall be submitted to and approved by the Council prior to the applicant submitting the subdivision certificate application to the Principal Certifying Authority for the development.

42. To ensure that emergency access is available between Coughlan Road and Rock Wallaby Way, a restriction as to user is to be registered against the title to each of new Lots 1003 and 1004, drawn in terms acceptable to the Council (acting reasonably). The terms of the restriction are to provide that the right of carriageway 5 metres wide required by condition 41 is to remain free of obstruction by:
(a) fencing between Lot 1003 and 1004 for a width of at least 3.5 metres except by a gate accessible to the NSW Rural Fire Service and the owners from time to time of lots 1 to 6 of DP 1000095; and
(b) trees and vegetation that would prevent NSW Rural Fire Service vehicles or vehicles owned by the proprietors of Lots 1 to 6 DP 1000095, from passing between the cul-de-sac heads in Coughlan Road and Rock Wallaby Way.
The Council shall be nominated as the party having the power to release, vary or modify the restriction. The s88B instrument creating the restriction as to user shall be submitted to and approved by the Council prior to the applicant submitting the subdivision certificate application to the Principal Certifying Authority for the development.”

12 The objectors’ submissions were the subject of a response, which I accept, by the council in a document filed on 20 May 2010 entitled “Respondent’s Response to Submissions”. The objectors’ submissions overlapped. It is sufficient that I identify and address the following submissions.

WHETHER BREACH OF CL 34.1 OF LEP

13 Some objectors submit that the proposed development breaches cl 34.1(b) of the LEP. In view of the decision in the earlier appeal in these proceedings, this submission cannot be accepted: see [6] above.

14 Clause 34.1 of the LEP is a control on development. It is a density control provision. Clause 34 relevantly provides:

“ 34.1 General Provisions

(a) The Density Control Provision shown on the Map specifies the maximum number of lots per hectare into which land may be subdivided with the consent of the Council.
(b) The Council may consent to subdivision of any land covered by a Density Control Provision shown on the Map only if the total number of lots (other than lots for a public purpose) existing after the subdivision will not exceed the product of the notional development area of the original lot, in hectares, multiplied by the maximum number of lots per hectare specified in the Density Control Provision in respect of the original lot, rounded down to the nearest whole number.

34.4 Residential Bushland Conservation Zone—Special Provisions

(a) Where a Density Control Provision is shown on the Map, subdivision of the land, in accordance with clause 34.1, to a density exceeding that shown is prohibited.”

15 Lot 5 in DP 103697 was created by a subdivision in 1998 of an original land parcel being Lots 281 and 282 in DP 703293, then owned by Mr and Mrs Williams.

16 There followed a number of subdivisions yielding a total of 39 lots. They comprise 38 residential lots and one large residual lot largely zoned Environmental Protection. Of the 39 lots, the original Lot 281 contains 7 whole lots and 8 part lots, and the original Lot 282 contains 24 whole lots and 8 part lots.

17 The provisions of cl 34 of the LEP turn on the concepts of “the original lot” and “notional development area”, which are defined in cl 19 Schedule 4 as follows:

“ Notional development area means that part of a lot not zoned Environmental Protection and not designated on the Map as a Protected Area—Environmental Constraint Area.

Original lot means a lot in a current plan (within the meaning of section 327AA (1) of the Local Government Act 1919) existing as at 27 December 1991.”

18 The date of 27 December 1991 in the definition of “original lot” was when the LEP was gazetted.

19 As at 17 December 1991 there were two lots on the Williams’ land: Lots 281 and 282 in DP 703293. Consequently, each is an “original lot” within the meaning of cl 34.

20 In 1998 Lot 5 in DP 103697 was created by a subdivision of original Lots 281 and 282.

21 The LEP Map identifies the land to which the LEP applies and its zoning. Lot 5 in DP 103697 is zoned partly Residential Bushland Conservation (RES-BC) zone and partly Environmental Protection zone. Subdivision is permitted with consent in the former zone but is prohibited in the latter zone. The proposed three residential lots are in the former zone.

22 Clause 8 of the LEP explains abbreviations and symbols used on the LEP Map. Clause 8(a) lists the zones. Clause 8(b) is headed “Zone Subscripts” under which are listed (inter alia) “Density Control Provisions shown as lots per hectare” and “Consolidation Requirement”.

23 By reference to the LEP Map, the relevant density control provision for the original Lots 281 and 282 is four lots per hectare, which yields 18 lots for original Lot 281 and 19 lots for original Lot 282. Thus, the total yield is 37 lots under the current density control provisions for Lots 281 and 282.

24 Those yields are calculated pursuant to the rounding down provision at the end of cl 34.1(b). Previously, that rounding down provision was absent from the clause which thereby permitted a yield of 19 lots on original Lot 281 and 20 lots on original lot 282, a total of 39 lots. This explains why there are a total of 39 existing lots on original Lots 281 and 282.

25 The proposed subdivision is to create three new residential lots on a relatively small part of the original Lot 281.

26 At the time of the earlier appeal in these proceedings, Blue Mountains City Council v Williams [2009] NSWLEC 223, the proposal was to create four new residential lots on Lot 281. After referring to cl 34.1(b) and 34.4(a), Preston CJ held:

“6 It can be seen that these provisions turn on the concept of the ‘original lot’. This is defined in cl 19 and the interpretation provisions in Schedule 4 in the LEP to mean ‘a lot in a current plan (within the meaning of s 327AA(1) of the Local Government Act 1919 ) existing as at 27 December 1991.’

7 It is agreed between the parties that as at 27 December 1991, on Mr Williams’ land, there were two lots, Lot 281 and Lot 282 in DP 703293. Hence, in order to determine the number of lots that can be yielded by a subdivision of the original lot pursuant to cl 34.1(b) of the LEP, two sets of calculations need to be done, one, for the original of Lot 281 and the other for the original lot of Lot 282. Unfortunately, the hearing and determination of the separate questions proceeded on the erroneous basis that there was only one amalgamated original lot rather than on the correct basis that there were two original lots. This error had important consequences because, over time, the original lots of Lot 281 and Lot 282 had been subdivided, but with different numbers of lots in each of the two original lots. This affects the determination of whether there is any spare capacity for further subdivision and creation of lots.

8 In these proceedings, Mr Williams is proposing a further subdivision of what was originally the original lot of Lot 281 to create a further four lots. In order to understand whether this further subdivision would cause the number of lots to exceed the maximum number of lots in the control in cl 34.1(b) of the LEP, it is necessary to do the calculation using the original lot of Lot 281 and not an amalgamation of Lots 281 and 282.

9 As I have said, Commissioner Hussey determined the separate questions that had been fixed for trial on the basis of the assumed fact that the original lot was an amalgamation of Lots 281 and 282 rather than the correct fact that the original lot was only Lot 281 and then assessing what would be the consequence in terms of the control in cl 34.1(b) of the LEP if there were to be the subdivision proposed by Mr Williams.

10 In these circumstances, the parties now agree that it is appropriate that the decision of Commissioner Hussey be set aside as being based upon erroneous facts. The matter should then be redetermined on the basis of the correct facts.”

27 Following that decision and during the hearing before me, the applicant amended his proposal to reduce the number of proposed new residential lots from four to three. Accordingly, the proposal for three new lots does not breach cl 34(1) even assuming that part lots should be counted. It is unnecessary to decide whether part lots should be counted now that the proposed number of new lots has been reduced to three.

28 As there is no breach of cl 34.1, it is also unnecessary to consider the applicant’s alternative SEPP 1 objection that cl 34.1 is a development standard, compliance with which is unreasonable or unnecessary in the circumstances of the case. The vexed question of what is a “development standard”, as defined in s 4(1) of the EPA Act (see also s 26(1)(b)), to which SEPP 1 applies, was most recently considered by the Court of Appeal in Agostino v Penrith City Council [2010] NSWCA 20 where different opinions were expressed by the majority (Tobias JA, Giles JA agreeing, at [27]–[36]) and the dissentient (McClellan CJ at CL at [64]–[74]).

VISUAL IMPACT

29 Some objectors submit that the subdivision will have a very significant visual impact at the cul de sac ends of Coughlan Road and Rock Wallaby Way in that, they say, the open bushland view will be lost.

30 The submission is partly met by additional condition 40 set out at [11] above, which prohibits further subdivision of the residue lot without the prior written consent of the council. This condition preserves views to the north and west from the western end of Rock Wallaby Way.

31 The applicant’s Statement of Environmental Effects records that to minimise the impact of the additional driveways in the head of the cul-de-sac in Coughlan Road, the existing exposed aggregate fire trails are to be utilised as the means of access to the new lots leaving the head of the cul-de-sac a fully landscaped nature strip, thus minimising the visual impact. A new driveway to the residue lot at the end of Rock Wallaby Way will have a backdrop of trees and should not much change the streetscape at that location. A submission by objectors is that on the new Lot 1002, the building envelope is set back only four metres. However, that is the closest point, the building envelope otherwise being angled significantly away. Further, the building envelope is only indicative and does not mean that the council will necessarily give development consent to a future dwelling in that location.

32 I accept the parties’ submission that the loss of bush outlook is not of such significance as to warrant refusal of the amended application.

33 Some objectors refer to apprehended diminution in the value of their property as a result of loss of bush outlook. This is not supported by valuation evidence and I do not think that it is a weighty consideration.

PROXIMITY

34 Mr and Mrs Beard, whose view would be most affected, were concerned that dwelling houses would be erected on Lots 1002 and 1003 in close proximity to their home. I consider that the 5 metre setback required by conditions 41 and 42 set out at [11] above sufficiently meet this concern. I understood Mr Beard to accept this in oral evidence.

PARKING AND TRAFFIC

35 Objectors submit that, particularly at the end of Coughlan Road, if two new dwelling houses are erected there will be parking and traffic issues.

36 The applicant’s Statement of Environmental Effects estimated that the proposed four new lots would generate approximately eight new vehicular movements per day per lot, with a peak hourly traffic flow of one vehicle movement per lot. That estimate of eight reduces to six now that the number of new lots is reduced to three. Four of the six are in Coughlan Road and the other two in Rock Wallaby Way. This is a small and acceptable increment in overall traffic generation. The proposed new lots are relatively large such that visitors could park on site. Even if they don’t, I think that incremental increase in street parking is acceptable.

FIRE RISK

37 Some objectors have a concern that dwelling houses on the proposed three lots would increase the fire risk at the end of Coughlan Road and Rock Wallaby Way, particularly due to the proposed elimination of the fire trail between those two cul-de-sac heads.

38 In my view, the elimination of the fire trail is now sufficiently compensated for by the proposed emergency access over the new Lots 1003 and 1004 between those streets provided for by additional condition 42 set out at [11] above. The council’s retained bushfire consultant has advised that the amended subdivision plan will provide an appropriate level of protection to residents of the new dwellings. The NSW Rural Fire Service has issued a Bushfire Safety Authority in relation to the proposed subdivision. On the evidence, I am not satisfied that the addition of three new dwellings will increase the bushfire threat.

UNDERSTANDING THAT NO FURTHER SUBDIVISION

39 Some objectors say they understood when they purchased their lots that there would be no further subdivision of Lot 5. This is said to have been the result of oral assurances by the developer. This is not a matter into which this Court can go, or on which it is in a position to adjudicate, in these proceedings.

COVENANT WITH DEVELOPER

40 Mr Daley and Ms Anderson, who reside in Rock Wallaby Way, are concerned that erection of a dwelling house on Lot 1004 could breach a covenant with the developer which benefited their lot. However, it appears on the evidence that they substantially released the developer from the covenant. I understood Mr Daley to say in evidence that the release was a result of oral assurances by the developer to the effect that further subdivision would be restricted. That is not a matter into which this Court can go, or on which it is in a position to adjudicate, in these proceedings.

LOSS OF VEGETATION, FLORA AND FAUNA

41 Objectors submit that loss of vegetation will reduce access to habitat for fauna and flora. The scale of vegetation loss is minor when compared to the undisturbed residue of Lot 5, within the Environmental Protection Zone. The applicant’s Statement of Environmental Effects records that there are some trees remaining on the development site although the understorey has been quite heavily cleared or fully cleared and lawns and gardens laid; and that there are no known endangered flora and fauna on the site. I accept the parties’ submission that the loss of vegetation and any impacts on fauna, are not so significant as to warrant refusal of the application.

42 Taking into account everything that has been put to the Court and all the considerations in s 79C of the EPA Act, by consent of the applicant and the council I make the following orders:

1. The Applicant is given leave to amend the plans the subject of the appeal by substituting the original DA plan for the plan annexed and marked “A”.
2. The appeal is upheld.
3. Development consent is granted in respect of Development Application No. S/45/2008, for the subdivision of Lot 5 in Deposited Plan 1036777 into 4 lots as depicted in the Plan of Subdivision prepared by Stephen Conroy (Surveyors) Pty Limited, dated 2 May 2010, annexed and marked “A”, subject to the conditions annexed and marked “B”.
4. The applicant pay the respondent’s costs in accordance with Section 97B of the Environmental Planning and Assessment Act 1979, of the Council that were incurred in respect of the assessment of, and proceedings relating to the original development application the subject of the proceedings, excluding the hearing before Commissioner Hussey (and costs associated thereto) as agreed or assessed.
5. Liberty to restore on 7 days notice.
6. The exhibits may be returned except for exhibits F and 4.