Wirrabara Village Pty Ltd v The Hills Shire Council (No 2)
[2020] NSWLEC 1097
•05 March 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Wirrabara Village Pty Ltd v The Hills Shire Council (No 2) [2020] NSWLEC 1097 Hearing dates: 18-21 November 2019; written submissions filed 3,11 and 16 December 2019, final conditions filed 26 February 2020 Date of orders: 05 March 2020 Decision date: 05 March 2020 Jurisdiction: Class 1 Before: Morris AC Decision: The Court orders that:
(1) The appeal is upheld.
(2) Development Application DA 1035/2018/JP for demolition of existing structures, removal of existing vegetation, construction of a seniors living development comprising a 36 bed residential aged care facility and 97 serviced self-care dwellings; provision of resident services including home delivered meals, personal care and home nursing, assistance with housework and a bus service providing access for residents to a local centre; bushfire mitigation works; construction of roads; provision of resident and visitor car parking; earthworks and civil engineering works at Lot 1 DP 534265, Lots 1 and 2 DP 560912 and known as Nos 3 and 5 Pellitt Lane and No 9 Wirrabara Road, Dural is approved subject to the conditions in Annexure A.
(3) The exhibits, other than Exhibits B, C and 1 are returned.Catchwords: DEVELOPMENT APPLICATION — seniors living development – dispute regarding conditions Legislation Cited: Rural Fires Act 1997 Cases Cited: Wirrabara Village Pty Ltd v The Hills Shire Council [2020] NSWLEC 1043 Texts Cited: NSW Rural Fire Service, Planning for Bushfire Protection (2006) Category: Consequential orders (other than Costs) Parties: Wirrabara Village Pty Ltd (Applicant)
The Hills Shire Council (Respondent)Representation: Counsel:
Solicitors:
C Ireland (Applicant)
J Lazarus SC (Respondent)
Dentons (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s): 2019/104980 Publication restriction: No
Judgment
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COMMISSIONER: In my principal judgment delivered on 14 February 2020 in Wirrabara Village Pty Ltd v The Hills Shire Council [2020] NSWLEC 1043, I made the following Orders:
The parties are to file agreed conditions of consent that reflect the findings of this Judgment within 7 days of these Orders being made.
On receipt of these conditions, final orders, granting consent to Development Application DA 1035/2018/JP for demolition of existing structures, removal of existing vegetation, construction of a seniors living development comprising a 36 bed residential aged care facility and 97 serviced self-care dwellings; provision of resident services including home delivered meals, personal care and home nursing, assistance with housework and a bus service providing access for residents to a local centre; bushfire mitigation works; construction of roads; provision of resident and visitor car parking; earthworks and civil engineering works at Lot 1 DP 534265, Lots 1 and 2 DP 560912 and known as Nos 3 and 5 Pellitt Lane and No 9 Wirrabara Road, Dural will be made in Chambers.
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The parties had not finalised agreed conditions by the 21 February 2020 as required by these Orders and sought an extension of time. Final conditions were filed on 26 February, 2020 however the parties were unable to agree on all of those conditions and therefore I must adjudicate those that remain in dispute.
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In filing the conditions, the parties have highlighted those that remain in dispute and give reasons for the positions each have taken. I address each of these matters and make my findings in relation to those issues.
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The Council submits the consent should be granted on the basis of a deferred commencement consent and proposes the following terms:
“1. A civil design concept plan demonstrating the proposed pedestrian refuge on Pellitt Lane maintaining the standard 3.5m footpath verge is required. Amended site plans illustrating the existing and future site boundaries are also required.
2. The required strip of road widening due to item (1) above is to be dedicated at no cost to Council. An annotation in this respect is required.
3. Amended site plans illustrating the following are required:
a) Turpentine Way is to be widened to facilitate manoeuvring of 12.5m long garbage collection service Vehicle (Heavy Rigid Vehicle).”
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In addition to these provisions, draft conditions 38, 54(a), 116 and 118 (as proposed by the Council) and 110 h) (as proposed by the Applicant), also address the issue of road widening and reads as follows:
“38. Subdivision Certificate Preliminary Review
Prior to the submission of a Subdivision Certificate application a draft copy of the final plan, administration sheet and Section 88B instrument (where included) must be submitted in order to establish that all conditions have been complied with.
Street addresses for the lots within this subdivision will be allocated as part of this preliminary check process, for inclusion on the administration sheet.
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54 a) Pellitt Lane Road Improvement Works
A full width reconstruction of the existing roads listed below is required, including any necessary service adjustments and ancillary work required to make the construction effective:
Road Name: Formation:
(Footpath/ Carriageway) (m)
Pellitt Lane
(Full width reconstruction Fronting the site) Road Type: Access Road
3.5m footpath/ 8.5m carriageway/ 3.5m footpath verge (total road reserve 15.5m)
Pavement Design:
Access Road (Design Guidelines Section 3.12)
The design must be consistent with the civil design concept accepted pursuant to the deferred commencement consent.
Detailed design for construction drawings must document the following:
i. The new pedestrian refuge on Pellitt Lane.
ii. Road pavement widening on both sides of Pellitt Lane to accommodate the new pedestrian refuge.
iii. Street drainage, kerb and gutter along the northern side of Pellitt Lane.
iv. The proposed new footpath, to be constructed on Council land, along the northern side of Pellitt Lane.
v. A 3.5m grass footpath verge along the northern side of Pellitt Lane partly on Council land.(A strip of road widening that to be dedicated to Council.)
The full width reconstruction including road pavement widening, street drainage, and kerb and gutter on both sides of Pellitt lane is required because the property opposite is Ellerman Park Reserve (public reserve) that does not have a potential for future redevelopment.
The road design is to have a two-way cross fall with a crown in the middle of the carriageway.
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110 h) Public Positive Covenant – Maintenance of verge
A public positive covenant shall be created on the title of the land requiring the owner of the land, from time to time, to maintain that part of the verge partly on the Applicant’s land, along the northern side of Pellitt Lane, as required by Condition 54.
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116. Public Asset Creation Summary
A public asset creation summary must be submitted with the WAE plans. A template is available on Council’s website.
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118. Final Plan and Section 88B Instrument
The final plan and Section 88B Instrument must provide for the following. Council’s standard recitals must be used.
a) Dedication – Road Widening
The dedication of the proposed road widening must be included on the final plan in accordance with the undertaking submitted relating to dedication of a strip of road widening associated with the road widening on Pellitt Lane.”
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In relation to the deferred commencement conditions, the Council submits that, as evidenced in the Court, the proposed road widening on the northern side of Pellitt Lane reduces the footpath verge by approximately 2 metres to accommodate the pedestrian refuge; accordingly relevant civil plans and a subdivision plan is required to accurately detail the land to be dedicated as public land (verge) at no cost to Council (refer Plan prepared by Traffix Project No. 18.565 Drawing No. SK.C1 Revision A dated 11 Nov 2019).
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Turpentine Way is amended to facilitate Council’s garbage truck (12.5m HRV). Both matters shall be addressed prior to an active consent being issued to demonstrate they are able to be complied with.
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The Applicant’s position is that there is no basis for deferred commencement conditions, as the operative conditions proposed by the Applicant addresses all relevant matters. The verge will be accommodated partly on the Applicant’s land (see Applicant’s condition 54(a)), to be maintained by the Applicant and a covenant on the title will make this clear (see Applicant’s condition 110(h)). There is no need for any land to be dedicated. In relation to the garbage truck, the Council’s engineer gave evidence during the hearing that the Council has an 8.9m garbage truck. The operative conditions of consent have been amended by the applicant to provide for an 8.9m truck consistent with the Council’s evidence during the hearing.
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In regard to draft condition 38, the Council submits the condition relates to the subdivision plan required to delineate the road widening on Pellitt Lane and the Applicant submits that because the application is not for subdivision, the condition is not required and should be deleted as, consistent with its proposal for no road widening, the condition is not relevant.
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Council’s draft condition 54 requires full width reconstruction of Pellitt Lane adjacent to the site including the pedestrian refuge. That is because the site is opposite a public reserve and the upgrade will provide for appropriate road infrastructure given the intensification on the site and road improvements to an urban standard whereas the Applicant says that only a partial upgrade is required as there was no evidence a full upgrade was required and that the Council’s position that Ellerman Park does not have potential for future redevelopment is not a proper planning matter that would provide a lawful basis for a full road upgrade.
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Condition 110 would only be required in the event that the Court was to accept that no road widening in Pellitt Lane was required and condition 116 is relevant if the road widening was to occur.
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Having regard to the evidence and the submissions of the parties, I consider that it is not necessary for the consent to be granted on the basis of deferred commencement. That is because all of the matters can be satisfactorily addressed through the application of the conditions of consent.
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I do consider that it is necessary for Pellitt Lane to be widened, that all of the roadworks, pedestrian refuge, footpath and verge must be in public ownership and the works be of appropriate width in accordance with the Council’s standards. For that reason, a plan of subdivision would be required and that must be finalised prior to any construction certificate being issued. The land must be dedicated to the Council at no cost and all works paid for by the Applicant.
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The proposed development is for seniors housing and the issue of accessibility is an important consideration. The experts have identified a need for a pedestrian refuge in Pellitt Lane and the verge on the reserve side of the road is such that it would not be readily accessible. It is the development that generates the demand for this to be amended to facilitate the access and accordingly, the onus is on the applicant to fund the necessary works. Accordingly, I find that the full width reconstruction of Pellitt Lane is required.
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The issue of garbage collection was considered by the engineering experts but no actual experts in this matter were called. The Council advised that it does have a small truck, however I am not satisfied that this truck is one that would ordinarily service the site. It would not be appropriate to require the Council to provide a separate service to the site for one collection as this practise would not be sustainable and therefore, the Applicant’s position that the site should be designed to accommodate these smaller vehicles is not supported. This matter also relates to other conditions of consent that are in dispute. I am, however, satisfied that adequate area would be available within the site to accommodate the manoeuvring of the larger truck in Turpentine Way. This is another matter that should be resolved prior to the issue of any construction certificate.
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Other conditions relating to waste collection are draft conditions 26 (last dot point), 48, 54 g) and 102.
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The last dot point in the Council’s draft condition 26 reads as follows:
“• A flat or ramped bin transfer path leading directly from the bin storage area(s) to the approved bin collection point along the internal streets must be provided. Bins must not be transported via residential lifts. Bins are to be transported via ramp or dedicated in-shaft goods personnel hoist with a minimum 3m x 2.4m platform that complies with AS1418.8. The path must have a minimum clear floor width of 820mm, must not exceed a grade of 7% (1:14), be free of steps and must be external to the dwelling (excluding garage).”
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The Applicant proposes that after the word ‘ramp’ the following words are inserted and the specific reference to the in-shaft hoist and dimensions deleted:
“and or hoist with any hoist to comply with AS1418.8”
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The Council submits that further clarification is provided in relation to the relevant Australian Standard whereas the Applicant submits that reference to the Standard is sufficient.
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Provided the means of transporting bins to the collection point is compliant with the Standard, I do not consider that it is appropriate to stipulate the precise design of the facility as there could be a range of suitable options. Accordingly, I accept the Applicant’s proposed condition.
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Draft conditions 48 and 102 relate to the size of the garbage truck and I have already addressed this issue so the larger 12.5m truck must be accommodated.
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The Council says condition 54 g), which requires the provision of temporary turning heads to facilitate waste vehicle turning would address any staging of the development. The Applicant submits that the development is not to be staged and therefore the condition should be deleted. I made my original findings in relation to the development being completed in one stage as, having regard to many of the jurisdictional provisions relating to provision and availability of services, staging would not be appropriate. Therefore, the development must be completed in one stage and condition 54 g) would not be required. I have added a condition that prevents the staging of the work.
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The last dot point in draft condition 32 relates to internal roads and the parties disagree whether these roads are required to have a minimum width of 6.5m of 6.0m. The Council submits that compliance with the Rural Fire Services (RFS) publication Planning for Bushfire Protection 2006 is a jurisdictional requirement and therefore all internal roads must be 6.5m and perimeter roads 8.0m. The Applicant submits the evidence of Mr Travers is that the RFS agreed that the road widths could be 6m.
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The RFS did not issue a Bushfire Safety Authority under s 100B of that Rural Fires Act 1997 and accordingly, the Court is required to determine the matter in the absence of such authority and advice. As it is a jurisdictional matter, I consider that it is appropriate that the roads have a minimum width of 6.5m and perimeter roads 8m and note that this can be accommodated within the design of the development.
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The introduction to Council’s draft condition 45 is in the following form:
“45. Biodiversity Offsetting Requirements
An independent accredited BAM assessor is to review the final Biodiversity Development Assessment Report and the credit calculations associated with the credits listed below and confirm in writing whether or not the calculations are accurate relative to the impacts of the development in accordance with the BAM including those from the Asset Protection Zone, stormwater construction and operation and fill associated with battering. The review should asses the full design of the development and compare to the assumptions of the BDAR. Further surveys in appropriate climatic conditions are to be undertaken for the Dural Land Snail (Pommerhelix duralensis) to determine whether additional credits are required. That certification is to be provided to the Council prior to the issue of a Construction Certificate and is subject to the approval of Council’s Manager – Environment and Health.
To offset the residual biodiversity impacts of the development the class and number of ecosystem and species credits listed in the table below must be retired, but may be increased subject to the outcome of the review. If the independent review increases or certifies changes to the credit requirement then the retirement of credits will reflect that change subject to the approval of Council’s Manager – Environment and Health.”
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In the alternate, the Applicant proposes the following:
“45. Biodiversity Offsetting Requirements
An independent accredited BAM assessor is to review the credit calculations associated with the credits listed below and confirm in writing whether or not the calculations are accurate relative to the impacts of the development in accordance with the BAM. That certification is to be provided to the Council prior to the issue of a Construction Certificate.
To offset the residual biodiversity impacts of the development the class and number of ecosystem and species credits listed in the table below must be retired, but may be increased or decreased subject to the outcome of the review by the independent accredited BAM Assessor. If the independent review certifies changes to the credit requirement then the retirement of credits will reflect that change.”
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It is the Council’s position that the review and its recommendations must be approved by The Hills Shire Council to ensure that it has been carried out according to the instructions above. Without an approval process, there is no purpose to having the review done. The condition sets a minimum level of offsetting required. No decrease in credit retirement will be considered as Council is of the opinion that this level of offsetting is likely to be below that which is required to offset the biodiversity impacts caused by the development. Similarly, it does not support the insertion of the word “or decreased” and says the evidence in Court was that the Dural Land Snail studies were not conclusive and were done at an inappropriate time
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The Applicant submits the purpose of the independent assessor is to verify the credits are accurate. The Council should not have any role in approving the further independent review – that is the point of the independent review. Further surveys are not required because the presence of land snails has already been assumed for the purpose of the credit calculations.
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I accept the Applicant’s position as the calculations are based on the presence of the snail and therefore no further study would be required however, I do agree that the condition should include consideration of the impact of the works on the Asset Protection Zone, stormwater construction and operation and fill associated with battering and that the review should asses the full design of the development and compare to the assumptions of the Biodiversity Development Assessment Report (BDAR).
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The purpose of the independent assessor is to provide “independence” to the process and therefore the Council has no role to play.
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Draft condition 92 as drafted by the Council is in the following form:
“92. Provision of Electricity Services
Submission of a compliance certificate from the relevant service provider confirming satisfactory arrangements have been made for the provision of electricity services. This includes undergrounding of existing and proposed services where directed by Council or the relevant service provider.”
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The Applicant proposes the insertion of the words ‘for the development’ after the words ‘proposed services’. The Council’s position is that the words “existing and” should remain as this is a standard requirement for development such as this which is being converted from ‘rural’ infrastructure to ‘urban’ infrastructure – undergrounding is appropriate. It allows for improvement of the streetscape and the planting of street trees. Again, the intensification of this site warrants undergrounding.
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The Applicant submits the undergrounding of services must only be those services for the development, otherwise, there is no nexus. I consider that it is appropriate that where services adjacent to the site are not already underground, these should be converted and therefore rewording of the condition is appropriate and has been included in the Orders that follow.
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Having found that consent should be granted and resolving those conditions that remained outstanding, I make the following Orders:
The appeal is upheld.
Development Application DA 1035/2018/JP for demolition of existing structures, removal of existing vegetation, construction of a seniors living development comprising a 36 bed residential aged care facility and 97 serviced self-care dwellings; provision of resident services including home delivered meals, personal care and home nursing, assistance with housework and a bus service providing access for residents to a local centre; bushfire mitigation works; construction of roads; provision of resident and visitor car parking; earthworks and civil engineering works at Lot 1 DP 534265, Lots 1 and 2 DP 560912 and known as Nos 3 and 5 Pellitt Lane and No 9 Wirrabara Road, Dural is approved subject to the conditions in Annexure A.
The exhibits, other than Exhibits B, C and 1 are returned.
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Sue Morris
Acting Commissioner of the Court
Annexure A (345 KB, pdf)
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Decision last updated: 05 March 2020
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