Conclusions
47 Having considered the evidence, the submissions and undertaken a view, I do not consider either of these applications merit consent. Whilst they are separate applications dealing with different conceptual developments, nevertheless they are subject to the same planning regime.
48 The provisions of LEP 47 for the urban release area encompass this planning regime. However, presumably because of the overall scale of the development, the associated development controls have been implemented by way of a master planning approach, which has not been fully integrated with the other applicable DCPs.
49 This creates difficulties some in characterising various elements of developments, particularly within the neighbourhood centre environs where the subject sites are situated. Nevertheless, it is apparent to me that the proposed development within this centre was planned to incorporate innovative ideas for live/work dwellings and others combining studios in order to achieve "a high quality environment for working, living and recreation".
50 One of the difficulties identified in these appeals concerns the permissibility and subsequent subdivision of the proposed developments. In the case of the studio, this type of development is permissible but restricted in having a separate title. In other cases of 2 separate dwellings, the controls allow "multi unit housing" on a limited basis.
51 Of particular relevance is that the prevailing DCP 2006 limits multi unit housing in the Zone 2(b) to areas designated "Residential 2". The subject sites have not been designated as such, thereby not complying. Whilst I consider that technically the proposed development at No 232 does not comply with the controls, I have nevertheless considered the merits on the aforementioned basis.
52 A separate consideration arises with the proposal for No 234 if the ground floor unit is to become a separate "commercial premises". This would be prohibited except where it was part of a neighbourhood centre or as a home business.
53 Accordingly, the planners addressed this locational constraint concerning the delineation of the neighbourhood centre, as shown on Tallowood Place Master Plan at Folio 178 of exhibit 5. Insofar as Ms Trezise suggested a larger area including most of the surrounding residential properties, I am presuaded to otherwise rely on Ms Morris' opinion of the more restricted area that excludes the subject properties. On this basis the proposal for the separate commercial premises would not be permitted.
54 Notwithstanding this, I have assessed the merits of the proposals on the assumption that they would be permitted. In light of the previously mentioned planning regime, submissions were made regarding the reliance on the policies contained in the masterplan, as compared to the DCP provisions.
55 Particular reference was made to Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 where McClellan CJ said:
91 In my opinion, the weight to be given to a detailed policy will depend upon a number of matters. If the policy has been generated with little, if any, public consultation and was designed to defeat a project which is known to be under consideration by a developer for a particular site, it may be given little weight. Of course, the intrinsic attributes of the policy may be given significant weight, but that weight is not dependent on then being included in a policy. It can be established in other ways. However, the position would be markedly different if the policy is the result of detailed consultation with relevant parties, including the community and the owners of affected land, and reflects outcomes which are within the range of sensible planning options.
92 To my mind, the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:
the extent, if any, of research and public consultation undertaken when creating the policy;
the time during which the policy has been in force and the extent of any review of its effectiveness;
the extent to which the policy has been departed from in prior decisions;
the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;
the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;
whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.
56 In the circumstances of the current matter, I am satisfied to rely on the evidence of Ms Morris that the master plan process adopted here as the policy for implementing the major scale Mt Annan development has involved consultation and that council has substantially adheres to its provisions in order to achieve a range of sensible planning outcomes. Therefore I give the policies contained in the Tallowood Master Plan determinative weight even though the detailed provisions were not integrated into the respective DCPs.
57 Insofar as reference was made to number of other similar type developments in Decora Street, Stipa Lane and Arista Circuit, I think they can be distinguished from the subject developments because of there separation from the neighbourhood centre and time of approval. I do no accord them any precedential weight.
58 Submissions were also made regarding the relevant matters for consideration with particular reference to Carstens v Pittwater Council [1999] NSWLEC 249 where Lloyd J said:
25. I thus conclude that the matters for consideration listed in s 79C(1) are not the only matters to which a consent authority may have regard. The listed matters are those which a consent authority must consider. The consent authority may also take into consideration other matters not included in those which are listed. Those other matters include, in the public interest, any matter which relates to the objects of the Act set out in s 5. This does not mean that the decision-maker may take anything into consideration. The relevant considerations are confined so far as the subject-matter, scope and purpose of the Act and any environmental planning instruments allow. The draft DCPs and the Values Statement in the present case are relevant as documents which relate to the matters described in sub-paras (i), (ii), (vi) and possibly (vii) of para (a) of those objects. In taking those matters into consideration the Commissioner made no error of law
59 I also follow this authority in giving determinative weight to the master plan provisions and particularly addressing the public interest issues that arise in this case.
60 Accordingly, in my assessment both these developments propose a major change in the character of these sites where the one owner is currently able to achieve a flexible use of the facilities on the site to achieve a high standard of amenity, as envisaged by the planning objectives.
61 In both cases, if the separate residential units were be created, my assessment is that they have inadequate, useable private open space. This situation is compounded by the need to transform some of the existing open spaces into parking spaces and increase impervious areas, which the DCP also seeks to avoid. I am satisfied that the negative effects on the amenity of this area warrant refusal of the applications.
62 I have also considered the possible precedential consequences on the basis of the authority in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002]] NSWLEC 75 where Lloyd J said:
29. In the present case the Senior Commissioner noted (at par [42]) that the notion of precedent is treated with considerable caution by the Court. He also found as a fact that one approval would tend to lead inexorably to a further three over time. He also noted the existence of 25 lots that could be seen as benefiting from what seems likely to be an inevitable consequence of approvals in this location. Importantly, the Senior Commissioner found (at par [44]) that the present proposals had an undesirable visual impact. In other words, the present proposals satisfied the criteria identified by Sugerman J which give rise to a valid consideration of precedent: the present proposals were not "unobjectionable" in themselves and there was a sufficient probability for further applications of undistinguishable developments of the same class and in the same locality.
63 The Court was informed that previous subdivision applications had been made in respect of the other similar properties in this neighbourhood. Whilst they have not progressed, this nevertheless indicates to me that there is a reasonable possibility of other similar applications, whose cumulative impact would be objectionable because this would thwart the intent of the master plan for the neighbourhood centre.
64 In the ultimate, it seems to me that there has been a high degree of investigation and planning to achieve the vision of a village centre that is of a character with a high quality environment for working, living and recreation. The approval of the subject developments would not achieve this vision and would most likely result in significant diminution of amenity for the residents. I therefore do not such development represents orderly development, which represents a reasonable balance between the private interests and the competing the public interest in achieving the intentions of the planning vision for the area. Consequently these applications fail on merit.