Yass Valley Developments Pty Limited v Yass Valley Council
[2007] NSWLEC 347
•13 June 2007
Land and Environment Court
of New South Wales
CITATION: Yass Valley Developments Pty Limited v Yass Valley Council [2007] NSWLEC 347 PARTIES: APPLICANT:
Yass Valley Developments Pty Limited
RESPONDENT:
Yass Valley CouncilFILE NUMBER(S): 11147 of 2006 CORAM: Watts C at 1 KEY ISSUES: Development Application - Subdivision :- Likely adverse impact on views down slope of the proposal
Likely adverse effect on the scenic qualities of the area
Adverse heritage impactsLEGISLATION CITED: Yass Local Environmental Plan 1987, (YLEP)
Environmental Planning and Assessment Act 1979, ss79C and 97DATES OF HEARING: 23/04/2007 and 13/06/2007 EX TEMPORE JUDGMENT DATE: 13 June 2007 LEGAL REPRESENTATIVES: APPLICANT:
Mr C McEwen, SC, with
Mr M Staunton, barrister, instructed by
Mr A Whealy, solicitor
SOLICITORS:
GadensRESPONDENT:
Mr A Bradbury, solicitor
SOLICITORS:
Minter Ellison
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
13 June 2007
11147 of 2006 - Yass Valley Developments Pty Limited v Yass Valley Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Yass Valley Council (the council) of an integrated development application to subdivide Lot 34, DP 1045621, being No 7 Irvine Drive Yass, into 24 residential allotments, that was amended before the hearing commenced to twelve. However, there are fourteen lots in total proposed.
2 I visited the land in company with the parties on the morning of the hearing and heard from local residents.
3 I have concluded that the consent orders now sought by the parties are appropriate and the application may be approved when considered under the Environmental Planning and Assessment Act 1979.
The land
4 The land is situated near the intersection of Rossi Street and Irvine Drive, Yass. It has an area of 6.083 hectares (by deduction) and is linked to Irvine Drive via a battle-axe handle about 20m wide.
5 The land has an overall fall of about 50m, with the battle axe entrance to the land on Irvine Drive being at a level of 526m AHD and at the banks of the Yass River to the north at 475m AHD. The higher undulating elevations with slopes of between 15 and 20 degrees in the area proposed to be developed. The lower part of the land below the proposed subdivision falls about 23m. Near the northeastern boundary the land slopes at about 35 degrees. The northern part of the land fronts the Yass River, where the riverbanks in part form a narrow gorge. There are numerous rock outcrops in the northern half of the site.
6 In the southern portion of the land near the battle-axe handle linking to Irvine Drive there is ‘Laidlaw’s Grave’, an historic cemetery. This gravesite is square in plan, with boundaries of around 15.5m. This gravesite has separate title being Lot 1, DP 702749, held by Yass Valley Council, and is accessed by a 5m-wide right-of-carriage way linking directly to Irvine Drive.
7 Previously there was a larger historic cemetery surrounding the present day ‘Laidlaw’s Grave’. This cemetery was also square in plan and had boundaries of about 35.2m. The location of this cemetery is still shown on DP 1045621 as a dotted line.
8 There are LPG tanks on land adjoining the eastern boundary of the subject to the west of Dutton Street.
9 Scattered trees mostly near the eastern boundary grow on the land and there are as well as significant patches of exotic shrubs.
Relevant planning controls
Yass Local Environmental Plan 1987, (YLEP)
10 Under the provisions of the YLEP the land is partly zoned Zone No 2(a) (Residential Zone), and partly Zone No 6(a) (Open Space Zone) and the proposal is permissible with consent. The open space land fronts the Yass River and extends to the rock outcrops near the centre of the land.
11 There is no relevant development control plan for residential subdivision or dwelling house development that applies to the land, and the Yass Shire Council Development Control Plan for Multi-unit Residential Development, (MUDCP) does not apply to the proposed development.
12 The Yass Shire Council Development Control Plan for Community Consultation is applicable in the assessment of the application in that it requires that the community be consulted in relation to the proposed subdivision.
The proposal and its history
13 Integrated development application No 312/2005 was lodged with the respondent council on 22 August 2005, to subdivide the land at Irvine Drive Yass, into 24 residential allotments ranging in size from 715m2 to 1,781m2 (the original application).
14 The proposed subdivision also included the creation of a 1,137m2 reserve around an existing cemetery known as ‘Laidlaw’s Grave’ and the creation of two allotments for open space purposes, having areas of 3,440m2 and 24,200m2 respectively.
15 The application was accompanied by supporting documentation, which included:
· a Statement of Environmental Effects,
· plans,
· Survey Report in Relation to Indigenous Heritage,
· Geotechnical. Site Assessment Report,
· Subsurface Ground Penetrating Radar (GPR) Testing Report, and
· Environmental Report containing Eight Part Tests of significance.
16 On 11 September 2006 the applicant submitted an amendment to DA 312/2005 that reduced the proposed allotment yield from 24 residential allotments to 12 residential allotments ranging in size from 1,319m2 to 3,782m2. This amendment also included one allotment containing ‘Laidlaw’s Grave’ with an area of 2,441m2 and a large residual allotment fronting the Yass River (proposed to be dedicated as open space) with an area of 26,814m2. The access to the proposed allotments was also amended resulting in access being provided by a single split-level road, linked to Irvine Drive. It was also proposed to contain reticulated water (potable) and sewer lines and a stormwater main within the road reserve. The amended application was accompanied by supporting documentation, which included:
(a) Revised Statement of Environmental Effects,
(b) Archaeological Assessment of the Area Surrounding ‘Laidlaw’s Grave’, and
(c) Subsurface Ground Penetrating Radar (GPR) Testing Report. (Note: This report is in addition to the report that accompanied the original application and applies to a different area).
Notification
17 The original application was advertised and notified and the council during the advertising period received sixteen (16) submissions.
18 The first revised application was advertised and notified and the council received six (6) submissions.
19 The first revised application was also referred to the NSW Heritage Office for critical technical comment in relation to heritage issues. A response from the NSW Heritage Office was provided on 8 November 2006.
20 The first revised application was also referred to the NSW Rural Fire Service under the provisions of s 91 of the Environmental Planning and Assessment Act 1979 (NSW) as integrated development. The NSW Rural Fire Service granted (on 5 December 2006) a Bushfire Safety Authority under the provisions of s 100B of the Rural Fires Act 1997 (NSW).
21 Before the hearing commenced on 13 June 2007 the parties had further amended the plans. These Issue D plans became Exhibit J.
The council’s decision
22 When the appeal was filed with the Court the council had not determined the application and it was deemed refused. The council did consider the application at its Planning Policy and Review Meeting of 14 February 2007. The council did formally refuse the application.
23 By letter dated 16 April 2007 the council’s solicitor stated:
- Following submission of additional material by the applicant, we are instructed that the Council no longer opposed the granting of development consent in this matter. Accordingly, we are writing to inform the Court that the matter will no longer be proceeding as a fully contested hearing on all the issues.
The Council has prepared without prejudice conditions of consent and these were provided to the applicant on 5 April 2007 in the form of draft consent orders. The applicant has objected to some conditions of consent and discussions are continuing between the parties in an effort to resolve outstanding differences. It is possible that there will still be unresolved issues concerning some of the conditions when the matter comes on for hearing. However apart from that, the matter has been resolved between the parties and is likely to now come before the Court for consideration of consent orders.
As the application is for integrated development, the Council is unable to deal with the matter under section 82A of the Environmental Planning and Assessment Act 1979 .
In accordance with Practice Direction No 23 we have informed each person who objected to the proposal of the content of the proposed consent orders, the date of the hearing by the Court to consider the making of the proposed consent orders and the opportunity for each such person to seek leave of the Court to be heard pursuant to s 38(2) of the Land and Environment Court Act 1979 .
The hearing
24 The appeal was filed on 27 November 2006 as a deemed refusal. However, before the hearing commenced the council had decided to seek a consent award.
25 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr P L A De Szell, Manager - Development and Environmental Services, Yass Valley Council,
· Mr John and Carol Casey, residents of No 11 Irvine Drive, Yass;
· Ms C Cleary, resident of No 9 Irvine Drive, Yass;
· Mr D Clarke, resident of No 5 Irvine Drive, Yass; and
· Ms Trish Brewer, resident of No 13 Irvine Drive, Yass.
26 On behalf of the applicant Mr P Grech, consultant town planner, gave evidence.
27 Mr De Szell, prepared the statement of basic facts dated 31 January 2007.
The issues
28 On 1 February 2007 the council filed a statement of issues.
1. Whether the proposal will have negative impact on the conservation of water resources.
- PARTICULARS
(a) The impact of the development on water resources is a relevant consideration under s 79(C)(1)(b) of the
Environmental Planning and Assessment Act 1997 (NSW) (the Act).
(b) The Council considers that proposed development will have a negative impact on water resources because:
(i) the proposed development will create extra demand on the town water supply;
(ii) the existing town water supply does not have the capacity to cater for the extra demand; and
(iii) the proposal does not include any innovative water conservation measures.
Yass Local Environmental Plan 1987 (NSW) (the LEP).
- PARTICULARS
- PARTICULARS
(a) The likely impacts of the proposed development in respect to the context and setting of the site is a relevant consideration under s 79C(1)(b) of the Act.
(b) The Council is also required to take into account the aesthetic impacts of the development where development is proposed to be carried out on land that is within view of 'any waterway or adjacent to any main or arterial road, railway, public reserve or land zoned as open space' (cl 5(1) of the Model Provisions 1980, adopted by cl 6 of the LEP).
(c) The site of the proposed development is prominently visible from adjacent land zoned as open space and is also prominently visible from the adjacent Yass River.
(d) The creation of residential allotments in the location proposed is likely to result in residential development that is inconsistent with the scenic qualities and features of the landscape.
(e) The applicant has not demonstrated that the views and vistas enjoyed by existing adjacent developments in the locality can be preserved.
(f) The applicant has not demonstrated that the visual impact of the construction road and reticulated infrastructure including potable water, sewer and stormwater piping and facilities will not adversely affect the scenic qualities and features of the landscape.
- PARTICULARS
(a) The impact of the development on heritage value is a relevant consideration under s 79C(1)(b) of the Act.
(b) The site the subject of the development application contains a cemetery called 'Laidlaw’s Grave.'
(c) The cemetery is of high heritage value.
(d) The area immediately around Laidlaw’s Grave was once also a cemetery, but the exact area of this burial ground has not been determined.
(e) The burial ground around Laidlaw’s Grave is also of high heritage value.
(f) There is insufficient information in the development application to enable a determining of the effect of the proposed development on the heritage value of Laidlaw’s Grave and the surrounding burial ground.
- PARTICULARS
(a) The suitability of the site for development is a relevant consideration under s 79C(1)(c) of the Act.
(b) The slope of the land on which the development is proposed makes the site unsuitable for development of the kind proposed.
(c) For the reasons particularised at paragraphs 3(c) to (f), and for the reasons particularised at paragraphs 4(b) to (e), the site is not suitable for the proposed development.
- PARTICULARS
The Council considers that the development application is not in the public interest because:
(i) the proposal will result in extra demand on the town water supply beyond the supply’s current capacity;
(ii) the development proposed will adversely affect Laidlaw’s Grave and the area surrounding it; and
(iii) the Council considers that maintaining the scenic qualities and features of the site of the proposed development is in the public interest, and the Council considers that this proposal does not maintain those qualities and features.
29 The following emerged as the salient issues:
· Likely adverse impact on views down slope;
· Likely adverse effect on the scenic qualities of the area;
· Adverse heritage impacts.
The evidence and findings
Likely adverse impact on views down slope
30 During the hearing the plans were amended to better protect the views of those living in Irvine Drive to the west of the proposal. These plans were Issue D in Exhibit J.
31 The side boundaries were changed in plan to better reflect and to orient with the view lines from these properties to the west. The building envelopes were amended to reposition them parallel to the side boundaries and to better open up the views to the east over the land.
32 The slope of the land mitigates protecting the views to the east fully, as the view line from the Brewer’s verandah at No 13 Irvine Drive, Yass, for example is parallel to and less than 2m above the natural ground level. This would mean that even if a view could be maintained between the future houses if the spaces between the new dwellings were planted to a height of more than 2m there would be a loss of view to the Yass River to the west of the railway bridge. However, as far as possible the spaces between the proposed new envelopes have been located to provide a view between future dwellings.
33 The Brewers attended the Court in Sydney, on the second day of the hearing and when the proposal as shown in the Issue D plans had been explained to them, they did not wish to give any further evidence. Mr Bradbury on their behalf, submitted that these residents were satisfied that their interests had been taken into account. I am also satisfied that the parties have located the side boundaries and building envelopes to maximise views from the uphill properties. Despite this, views will be lost and will be impinged upon by future development, but to a reasonable extent considering the land has been zoned for residential purposes.
Likely adverse effect on the scenic qualities of the area
34 The height of future dwellings has been limited to two storeys and a specified height in order to ensure, as far as possible, that the future dwellings would sit into the hillside and hug the landscape when viewed from the east. Also, the pitch of roofs has been conditioned to be 30 degrees for the main two-storey section of the dwelling. By this means some uniformity of elevation hopefully would result.
35 Lot 14, the area to the north bordering the Yass River would remain undeveloped and appear as open space.
36 Also Lot 13 of 2441m2, the area around the council owned Laidlaw’s Grave is to be dedicated to the council as per Condition G13 and would appear as open space.
- (13) Lots 13 & 14 of the subdivision shall be dedicated to Yass Valley Council free of cost for public open space purposes. These provisions are to be put into effect prior to the release of the Linen Plan.
37 I am satisfied that the visual impact on the scenic qualities of the area has been carefully considered at the subdivision stage however, whether a satisfactory scenic quality is finally achieved, will depend much on careful preparation of the individual house designs at the next stage of development.
Adverse heritage impacts
38 Laidlaw’s Grave is to be protected under this proposal. Conditions 3 and 4 are relevant:
(4) The applicant, or any other party acting on the consent, must apply to the Heritage Council of NSW, for all necessary approvals required under the Heritage Act 1977 or an exception under Section 139(4) in accordance with advice provided by the NSW Heritage Office.(3) Unless the Heritage Council of NSW advises that it is not required, a comprehensive Archaeological Assessment of the Laidlaw’s Grave precinct is to be prepared by a suitably qualified historical archaeologist, and submitted to and approved by the Heritage Council of NSW. The historical archaeologist must meet the requirements of the Excavation Director Criteria established by the Heritage Council of NSW.
39 I am satisfied that this aspect of the proposal has been properly addressed.
40 For the above reasons, the appeal is upheld by consent.
Conditions
41 The conditions are those in Exhibit 9.
Consent orders
42 The consent orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 312/2005 for the subdivision of Lot 34, DP 1045621 Irvine Drive Yass into 14 lots (including 12 residential lots) is determined by the granting of development consent subject to the Conditions A1 to G18 and notes as set out in Annexure A.
3. The exhibits except for Exhibits A, J, B, 1, 2, 3 and 9 are returned.
4. No order as to costs.
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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