Brett Stephen Lord and Marcus William Ayres v The Minister for Planning and... [2014] NSWLEC 1268 | Case summary

Brett Stephen Lord and Marcus William Ayres v The Minister for Planning and... [2014] NSWLEC 1268 | Case summary | Zoe

Judgment

SENIOR COMMISSIONER: The details of the site and the locality that are involved in these proceedings are set out in some detail in the First Respondent's Further Amended Statement of Facts and Contentions. It is convenient to enable an understanding of that with which I am dealing to quote relevantly from that document.
The site is located on the western side of the North Shore rail corridor between Avon Road and Beechworth Road, Pymble within the local government area of Ku-ring-gai Council. It comprises numbers 1, 1A, 3 and 5 Avon Road and 4 and 8 Beechworth Road at Pymble. The site is an irregularly shaped parcel of land with a total area of a little in excess of 24,500 square metres. An air photo showing the relationship of the site in its surrounding street context and adjacent to the railway line was tendered as Exhibit 15 in the proceedings and a copy of that air photo is reproduced below.
The site is currently zoned part R2 Low Density Residential, part R3 Medium Density Residential and part E4 Environmental Living under the Ku-ring-gai Local Environmental Plan (Local Centres) 2012. This local environmental plan came into effect on 8 February 2013. Residential flat buildings which comprise the bulk of what which is proposed in this concept plan are prohibited in each of the zones.
The existing development on the site comprises dwellings at 1 Avon Road, 3 Avon Road, 5 Avon Road and 8 Beechworth Road. 1 Avon Road is a heritage item of local significance under the local environmental plan.
The site has a form that has a valley through its middle, running from the railway line to the south, with slopes into that drainage line; flatter areas located towards the Avon Road and Beechworth Road frontages; and a flatter (but still sloping) area across the railway line element of the site. The slope is approximately 20 metres from the railway line end of the site to its most southern end.
A significant element requiring my consideration in these proceedings is the existence of a significant (but significantly degraded) Blue Gum High Forest element on the site - this forest association being a critically endangered ecological community under the Threatened Species Conservation Act 1995.
The site is located a little distance to the north-west of the Pymble town centre and is within several hundred metres of Pymble Railway Station. There are two significant public facilities in the vicinity. They are the Pymble Ladies College directly opposite the site in the elbow of Avon Road and Avondale Golf Club which is accessed by driving down Avon Road and past the site.
6 Beechworth Road is an item of local heritage and adjoins the site.
The remainder of the area generally to the south and south-west of the site is predominantly characterised by large residential allotments including a significant number of battleaxe accessed allotments with one or two storey dwellings. A residential flat building is also in the vicinity and there is new development happening between the site and Pymble Station.
The applicants in these proceedings are the joint and several receivers and managers of the site appointed, as I understand it, by a mortgagee who is in possession of the site.
It is appropriate to extract from the First Respondent's Further Amended Statement of Facts and Contentions some of the elements of the detailed history that have been set out in that document. I will run through them sequentially.
On 8 October 2008 the Department of Planning and Infrastructure (the Department) received a major project application for the site, plus some additional land, lodged by Mr James Neale. Mr Neale, I interpolate, is the owner of the land but his interest has been subsumed by the interests of the receivers through the consequences of financial transactions that need not detain me in these proceedings.
On 1 December 2008 the Director-General of the Department (the Department), as the Minister's delegate, declared under the now repealed s 75B(1) of the Environmental Planning and Assessment Act 1979 (the Act) that the development proposed would be a project to which pt 3 of the Act applied. The declaration was in the following terms: "Schedule 2 of the State Environmental Planning Policy Major Projects 2005, namely, cl 15 which states, 'Housing in Ku-Ring-Gai, development for the purpose of multi-unit housing, including related subdivision and demolition, including demolition of a heritage item, on sites within the area of Ku-Ring-Gai listed in sch 4 of the State Environmental Planning Policy Number 53, metropolitan residential development', and is thus declared to be a project to which pt 3A of the Environmental Planning and Assessment Act 1979 applies."
On the same date the Department sent a letter to Mr Neale informing him of that declaration and the application of pt 3A of the Act. There is then a considerable period of activity for a number of years that does not require detailed description. However, I recommence with the chronology when in April 2011 the Department wrote to Mr Neale requesting a preferred project report. Between that date and the date of the next activity relevant in this chronology, it would appear that the receivers and managers were appointed and took control of the site, although the precise date when that occurred is not a matter of import in these proceedings.
On 24 August 2011, the receivers and managers wrote to the Department to advise that they had now taken control of the site. On 30 November 2012, the Department received a preferred project report prepared for the now applicants. Between 23 January 2013 and 1 March 2013, this preferred project report was publicly exhibited and a wide range of submissions were received, including over 500 public submissions. One of the submissions that was lodged was one lodged by Ku-Ring-Gai Council (the Council) indicating its opposition to the project on a variety of grounds.
In about May 2013, a revised preferred project report was lodged. In about June 2013, the director-general caused an environmental assessment report to be prepared which recommended approval of the project subject to conditions. On 12 June 2013, the Department referred the project to the Planning Assessment Commission (the Commission) for determination as the Minister's delegate pursuant to delegation given on 14 September 2011. On 18 July, the Commission held a public meeting where there were 14 speakers on the project, including representatives of the Council.
On 30 July 2013, the Commission refused the project. On 22 August 2013, the applicants commenced class 1 proceedings in the Court appealing against the refusal of the project, that being the concept plan. On 28 October 2013, the applicants also commenced proceedings in the Court appealing against the Minister's refusal of a stage 1 project application. The stage 1 project application appeal is matter 10834 of 2013, a matter that has, until the commencement of these hearings, been travelling in parallel with these proceedings and it is a matter to which I will return later.
On 16 January 2014, the applicants were granted leave to file amended class 1 applications in both proceedings, including a further revised preferred project report dated December 2013. This revised project was the subject of further public exhibition. Between 31 January 2014 and 28 February 2014 there were 11 agency and group submissions received to this report as well as 575 individual submissions.
On 21 May 2014, I granted leave to the Council to be joined as a party to the proceedings pursuant to s 39A of the Land and Environment Court Act 1979 in proceedings Brett Stephen Lord and Marcus William Ayres v Minister for Planning and Infrastructure (2014) NSWLEC 1128. Following that joinder, a conciliation conference took place over a number of meetings between June and August 2014, following which the applicants were granted leave to file an amended Class 1 application in respect to the concept plan and that included a second further revised preferred project report. This was filed on 25 September.
This second report amends the concept plan application in the following major elements. First, it incorporates 3 Avon Road into the concept plan. Second, it reduces the number of residential flat buildings and confines them to three buildings on the northern and north-eastern end of the site. It retains and proposes the restoration of the heritage item at 1 Avon Road for common use of future residents of the residential flat buildings and it deletes any proposed residential flat buildings on the Beechworth Avenue (western) side of the site, but proposes subdivision into four residential allotments at that location with building footprints for single dwellings, and, I also note, limits on the gross floor area available for each of the dwellings to be erected on those sites.
This second project report was publicly exhibited between 29 September and 27 October 2014, resulting in two agency submissions and 490 individual submissions.
The matter that I am dealing with in this decision is confined to the matters relating to the concept plan subject to the proceedings in Matter No 10648 of 2013. The question of the future progression of Matter No 10834 of 2013 is a matter to which I will return given that, somewhat facetiously at the commencement of the hearings, I adjourned it until 30 June 2015, a date no longer appropriate given the decision I am now delivering.
As a consequence of the joinder of the Council in May 2014, the Council participated in the s 34 conciliation process presided over by me in both matters. This extensive conciliation process, which occurred between June and August 2014 as earlier noted, resulted in the significant further refinement of the concept to which I have referred.
During the course of the resident submissions in objection to the proposal there is one significant misconception presented by somebody who ought know better that was raised concerning the conciliation process. One of the objectors said in a letter, "In my view, the current proposal is a very curious outcome of a s 34 conciliation process. A conciliation conference is intended to facilitate an agreement between the developer and objectors."
That is simply a fundamental misstatement of the law, a misstatement that was made by someone who ought to have known better. I do not need to go into that matter in further detail.
The statutory framework within which this matter needs to be dealt arises from Part 3A of the Act. That Part has been repealed but Ms Duggan SC for the Minister took me through the continuation process under the transitional provisions in schedule 6A to the Act and the provisions in Part 1A, transition Part 3A projects in the Environmental Planning and Assessment Regulation 2000. I am satisfied, on the basis of her taking me through all of the relevant statutory provisions, that I do have a proper jurisdictional foundation to continue to hear and determine this matter and that the exclusion of local planning controls, as mandated by the requirements of the now repealed s 75R of the Act, have been properly effected.
However, although the various elements have been repealed, the preservation for the purposes of these proceedings also keeps alive the element in s 75O(3) that I can have regard to, as a matter of discretion, local Council planning controls in my consideration of this project. The Council having made a submission about that at the conclusion of the proceedings, I will return to that at the end of this decision.
The remaining contentions between the parties were largely resolved during the course of the conciliation process and the various amendment steps that have been undertaken since the lodgement of a preferred project report.
There were limited and confined heritage and planning/urban design issues remaining between the parties at the commencement of the hearing. There were also extensive objections requiring to be considered.
Unusually for matters of this nature, there were two quite distinct and contradictory strands to those objections.
The first was objections made by Mr James and Mr Sydney Neale, who are persons who are either the proprietors of or have interests of some nature in properties at 1 Arilla Avenue and 12 Mayfield Avenue, that the project is too small and that their properties at those two locations should be incorporated into the development and its scope increased from the some 190-odd units currently envisaged to a development of some 500 units rather than that which is now contained in the concept plan.
There were, in the contrary strand, nearly 500 other objections made to the concept plan as presently proposed - all of which were objections that either proposed further modifications or suggested that the matters that were raised in the objections provided a basis for refusal of the proposal. I will deal with those in more detail later.
However, the matters that remained in contention between the parties were essentially able to be resolved during the course of the hearing.
It is appropriate that I deal with them by turning first to the heritage questions and, secondly, to the questions of planning and urban design. The heritage issues are pressed in these proceedings only by the Council, and they relate to the views available from a heritage property at 1202 Pacific Highway/1 Clydesdale Place, Pymble known as Colinroobie. Those views are views able to be enjoyed, to a limited extent, to the south and south-west from the upper level bedroom windows of that property. The views are important elements in the reason this property is acknowledged to have local heritage significance.
I heard evidence on the heritage issues jointly given by Mr Staas for the applicant and Mr Dignam for the Council. A joint heritage report of these experts was exhibit 13 in the proceedings. The originally expansive views that had been available in the past from Colinroobie had been substantially modified (by obliteration) by the resident flat building at 3 to 5 Clydesdale Place. All of the long view elements towards the south-east from Colinroobie were removed by this development. All relevant views in any direction were lost from the ground floor and the outside balcony as a consequence of that development.
View corridors to the south and south-west were retained to varying degrees from the bay or flat windows, depending on the bedroom involved, on the upper level bedrooms, there being five of them - one of which had a dressing room attached to it that had a window enjoying a view to the south and south-west. The only element of the proposed development that would result from the second preferred project report concept plan that would intrude into these existing view corridors was the upper element of Building 4.
Prior to the commencement of the hearings, the applicants had agreed to remove half of the uppermost level proposed for Building 4 in order to ameliorate the impact on the view corridor that remains from Colinroobie. The Council said that this was insufficient and that, as its opening position, the remainder of the top level of Building 4 and the level immediately below it should be removed in its entirety.
The outcome of the conference of the planners and urban designers that impacts on this issue was an agreement that 186 square metres of gross floor area in total needed to be removed from the overall scope of the development to render it acceptable. The remaining portion of the upper level of Building 4 was proposed to be 239 square metres of gross floor area.
Mr Staas and Mr Dignam agreed that if the area that was currently proposed to be retained on the top of Building 4 were to be removed, there would be a significant benefit in heritage terms of that removal. The position they reached was that if the uppermost level of Building 4 were removed in its entirety, that would resolve the Council's concerns about the impact on the heritage views from Colinroobie. I interpolate that Mr Dignam informed me that there was no objection made by the owners of Colinroobie to the proposed concept plan or anything concerning impact on views from the dwelling that they own.
The applicants have agreed to the removal of the remainder of the upper level of Building 4; that is, the removal of 239 square metres of gross floor area. They do so on two bases. The first is that the 186 square metres of gross floor area required to be removed for planning and urban design purposes simply goes but, second, that the surplusage (that is the difference between 239 square metres and 186 square metres - a difference of 53 square metres of gross floor area) can be transferred elsewhere within the site.
The planners and urban designers agreed that this is an appropriate course to follow subject only to the agreed requirement that the transfer of the 53 square metres of gross floor area should not add to the height of any building on the site. The applicants agreed to that proposition and the respondents accepted that it was also appropriate.
The Council accepted that that satisfied in its entirety the concerns that the Council had held about the impact of the proposed development on the views from the upper levels of Colinroobie.
There are two further heritage matters that were raised during the course of the resident objections which it is appropriate to deal with at this time as they were dealt with by the heritage experts. The first concerns the fact that the Council has in potential contemplation the creation of a heritage conservation area adjacent to and encompassing the site, and second, the possible impacts on the heritage values of Macquarie Cottage, a nominated heritage item located at 11 Avon Road.
It was Mr Dignam's oral evidence that there were two heritage conservation areas possibly under contemplation by the Council that were relevant. He described the process that had been undertaken in the past as follows:
First, the Council had commissioned a report by Mr Davies some time in the past to examine the northern half of the Municipality and make recommendations concerning possible heritage conservation areas that might be required. The outcome of Mr Davies' report was that there was no recommendation for heritage conservation area in the vicinity of the present site.
Subsequently, a second report was commissioned and prepared by Ms Jackson who recommended that there should be a heritage conservation area in the Avon Road precinct.
It was Mr Davies' opinion, Mr Dignam said, that the area did not reach what Mr Davies considered to be the threshold - that is that 50% of the buildings were either heritage items or contributory items in a heritage sense.
Mr Dignam understood that Ms Jackson applied a different test but he did not specify what it was.
It was Mr Staas' opinion that Mr Davies was correct that there were insufficient heritage items and contributory items, in that a proper assessment of the proposal would show that it did not satisfy Heritage Act thresholds for such a declaration.
Mr Dignam described the fact that the Council had not yet undertaken any detailed analysis of, let alone a determination about the dichotomy that is raised by these two conflicting reports in this vicinity. I do not have any basis upon which I could rationally reach a preferential conclusion concerning these and I do have the position that Mr Staas has expressed the concluded view that it does not meet the threshold for such an area whilst, on my understanding of his evidence, Mr Dignam was not prepared to express a view on that point.
As a consequence of that expert evidentiary position, I am in no way required, nor can I be satisfied that I ought be required, to have regard to the possibility - it being a mere possibility - that at some stage in the future the Council would declare a heritage conservation area in this location. It, therefore, does not stand as an impediment to the granting of approval of the concept plan.
The second matter that was raised of a detailed nature comprised the potential impact on the heritage item known as Macquarie Cottage at 1 Avon Road.
It was Mr Dignam's evidence that Building 1 had now been located further away and to the north than had originally been proposed; the separation between 11 Avon Road, particularly in the context, as I understood him, of the intervening dwellings was sufficient to mitigate any impacts on Macquarie Cottage of the proposed development; Building 3 was also at a reasonable and appropriate distance from Macquarie Cottage; and, in any event, although Macquarie Cottage may, in his opinion, meet the threshold test for state listing as a heritage item because it was a Hardy Wilson designed dwelling from circa 1916, it was not impacted in a fashion by the proposed development that would provide any basis for refusing or requiring further modification to the development.
Mr Staas concurred in these views (possibly with the exception of whether there might be a state threshold satisfaction as he did not express an opinion on it) but he was of the view that there was an adequate separation and that the interposing properties further moderated any potential impact.
I am satisfied that there is nothing concerning Macquarie Cottage that would require modification, let alone refusal, of the application on the basis of that evidence.
The planners and urban designers undertook an extensive combined joint conference and produced a joint expert statement that was Exhibit 3 in the proceedings. Those participating were Mr Kirkby, town planner on behalf of the applicants, Ms Morrish, urban designer on behalf of the applicants, Ms Francis, urban designer on behalf of the Minister, Mr Zanardo, urban designer on behalf of the Council, and Ms Gregory, town planner on behalf of the Council.
The general conclusion was set out in para 21 of the introductory remarks to their joint expert report. It was in the following terms: "We consider collectively that the current proposal is a major improvement over the previous design and could be approved subject to the matters raised and the contentions being addressed."
The matters that were raised in the contentions were in fact resolved during the course of the proceedings, including, in particular, by the combined heritage/planning outcome agreement about the removal of gross floor area from Building 4 and the ability to transfer the surplusage of that gross floor area (53 square metres, as earlier noted) elsewhere in the site without increasing the height of any building.
I undertook a visit to the site on 2 December and in conjunction with that, I heard objector evidence from those opposing the proposal in the Council chambers at Gordon. 11 objectors spoke on that occasion and notes of what was said to me were tendered and became exhibit 6. I had earlier received a bundle of material that included the statements from residents and a number of written submissions that were read at the Council chambers were added to that exhibit.
After concluding at the Council chambers, I then proceeded to the site - not entering the site but hearing further objector evidence at three locations given by four objectors on or in the vicinity of their own properties. Objectors speaking on behalf of the owners of 7 and 11 Avon Road gave evidence on 7 Avon Road. Objector evidence on behalf of the owners of 15 Avon Road was given on that site and similarly this occurred on 3 Arilla Avenue. The objections that were made by the residents of 7 and 15 Avon Road in my observations concerning vegetation during the course of the inspection of those properties in these proceedings have resulted in further refinements to provide protection to those properties as a result of approval of the concept plan. I will return to those matters later.
With respect to the evidence given on 7 Avon Road by the proprietors of 11 Avon Road, that is Macquarie Cottage, I have earlier discussed why their concerns of a heritage nature do not provide any basis for amendment to let alone refusal of the proposal.
The objections that were raised on behalf of the residents of 3 Arilla were concerned with the bulk and scale impact of their outlook up the valley towards the site together with matters relating to ecological issues, matters to which I will return. All of the original objections, some 500 in number, were provided to me on CD for my consideration in these proceedings as well as the additional supplementary written material to which I have made specific reference and which was incorporated in an exhibit.
I first turn to the objections of Mr James Neale. Mr Neale gave evidence in Court on his behalf and on behalf of his brother Mr Sydney Neale and others who have an interest in the properties that I have earlier noted. Their objections were to the scope of the development, in particular what they considered to be the inadequacy of its land area encompassed and the inadequacy of the intensity of the development. Prior to the conclusion of the proceedings, Mr Galasso SC appeared briefly and by leave and without objection of any of the parties to the proceedings made short submissions on behalf of Mr Neale as an appropriate procedural response to Mr Neale seeking to make an application at that stage to be joined as a party to the proceedings.
It is unnecessary under the circumstances for me to speculate what might have been thought to be the inevitable outcome of such an application had it been pressed at that stage of the proceedings.
Mr Neale's objections essentially were these, as I understood them - first, the proposal should include 1 Arilla and 12 Mayfield; second, the resultant gross floor area able to be harvested if those two properties were incorporated should be transferred to the northern end of the aggregated site; third, there should be no single dwelling allotments at Beechworth; fourth, there should be a single or two large buildings constructed along the railway line; fifth, 1 Avon Road should not be retained (as it was Mr Neale's opinion that even if it had some heritage value in the past, it certainly did not have any at the present time); and, finally, 500 or so units was the appropriate development yield for the site.
Mr Neale gave written and oral lay opinion concerning all of these matters, and he also gave evidence about why he considered there would be potentially beneficial traffic impacts of permitting this development to be constructed.
The first thing it is appropriate to observe is that there is unanimity of expert opinion contra to Mr Neale's opinion as to the appropriateness of an intensity of development on the site.
Mr Neale suggested to me that there were five, what he described as, beneficiaries of development on the site. The first and principal beneficiaries were homeless people and young people. The second beneficiaries were the people of Ku-Ring-Gai by providing a better housing choice. The third beneficiaries were those property interests associated with him and his brother. The fourth was the beneficial creation of what he anticipated would be 1000 jobs by a construction project of the nature he envisaged being approved. Finally, there was a broader public benefit to be obtained by the utilisation of the infrastructure availability in the vicinity.
The properties at 4 and 8 Beechworth, which are intended to become four residential allotments for individual dwellings in these proceedings are owned by Mr Neale but subsumed in the receivership. It was his view that there was no basis warranted for having single dwellings and that that development potential that was being foregone as a consequence of that should be folded into the larger scale development that he envisaged along the railway line.
I observe, although it is not a matter that I need to have regard to in these proceedings, that Mr Neale is currently involved in litigation against the Department and against BankWest (as a result of the history of financial and planning matters involving the site) and it may well be that some of the matters that he seeks to agitate in these proceedings might properly be more appropriate to be advanced, whether successfully or not, in those collateral proceedings rather than in these ones.
I turn now to respond to Mr Neale's concerns: firstly, with respect to 1 Arilla and 12 Mayfield, I do not consider that they could in any sense be being left as "orphan sites" as they are adjacent sites as shown in the air photograph earlier reproduced in this judgment, and it would seem to me that, given the zoning in the vicinity, it could not be said that any reasonable development potential of those sites was being removed and that they would be left without any such potential.
I am therefore satisfied that there is no "amber light" basis to require deferral of determination of the present proposal in order to require the proponents to discuss with the Messrs Neale the possible inclusion of 1 Arilla and 12 Mayfield into the site.
In reaching this conclusion and my other conclusions concerning Mr Neale's objections, I have set aside any possible issues that might be raised by Mr Neale of personal financial benefit to himself or his relatives or anybody else who might have an interest in their properties - as it is not appropriate that I have regard to such matters, and they have not influenced my conclusion on them.
I do not consider that on the basis of what Mr Neale has submitted to me, particularly in light of the unanimity of view of the planning and urban design experts that the necessity to render any development on this site acceptable is to continue refining and modifying it in scale, that more than doubling it in scale is the appropriate way to respond in planning terms.
I am satisfied that, on the basis of what Mr Neale has put to me in contradistinction to that expert evidence, there is no basis upon which I should reject any aspect of the proposal or to suggest that there should be any modification to it.
One of the consistently pressed matters during the course of both the written and oral presentation from residents concerned the traffic impact of permitting a maximum of 250-odd vehicles, both resident and visitor, to be inserted into this precinct. That was a concern expressed both in general terms about traffic impacts in the Avon Road precinct and, particularly, concerning the morning peak exiting from the area via the Livingstone Avenue and Pacific Highway intersection.
To deal with this topic I need to go through the expert evidence on this point in some detail as the conclusion that there is no such significant impact is obviously, to the untutored eye, a counter intuitive proposition. The traffic objections were not only raised by the resident objectors but also raised by Pymble Ladies College and Evandale Golf Course.
There were four experts who have expressed opinions on the impact on this intersection. The first was a report prepared by Gennaoui Consulting Pty Ltd that was attached to the Part 3A initial concept application and the initial stage 1 application. It is contained in Exhibit A at tab 6, appendix 26. It is dated November 2009.
Mr Gennaoui was asked to comment on the traffic impact of a proposal for 350 units on the site, not the present 190-odd units. He analysed the operation of the two signalised intersections along the Pacific Highway that were impacted using the SIDRA intersection software. The two intersections that were analysed were Pacific Highway and Beechworth Road and Pacific Highway and Livingston Avenue.
The Pacific Highway and Beechworth Road intersection now no longer comes into play in these proceedings as there is not intended to be any exit to Beechworth Road (save from the four proposed individual dwellings at the western end of the site).
On his analysis at p 9 of his report Mr Gennaoui concluded that the level of service at the Pacific Highway and Livingstone Avenue intersection in the morning peak would fail and that would be unacceptable. All other aspects of the operation of other intersections at relevant times were either good or satisfactory.
A further traffic report was prepared by Varga Traffic Planning in December 2012. This report was based on a 297-unit development, some of which would have had a feed not to Avon Road but to Beechworth Road. At p 13 of that report, the analysis undertaken by Varga Traffic Planning, using the same software as utilised for Mr Gennaoui's report but with the lower level of development proposed for the site, reports that for the morning peak the Pacific Highway/Livingstone Road intersection will continue operate at a level of service B - that is acceptable - with increases in total average vehicle delays of less than two seconds per vehicle.
The result of all of his analysis is set out in a table at p 13 of his report but the element to which I have just referred is the critical one in terms of these proceedings. As part of the consideration of that proposal for that number of units, the Department commissioned Arup Partners to undertake a review of the Varga report.
That analysis is in Exhibit 2 at tab 20. The particular conclusion that is relevant is that which is contained in 2.4.3, impacts on local road network at folio 213 of Exhibit 2. The paragraphs relating to, by implication, Beechworth and Livingstone Roads, are in the following terms: It is important to recognise that given the concept plan is for a solely residential development, vehicle trips will be predominantly out of the site in the am peak hour and into the site in the pm peak hour. Therefore during the morning peak any queuing would occur within the site and not on Council roads as vehicles from the development give way to through traffic on Avon and Beechworth Roads. The peak hour for development traffic is forecast to occur between 5pm and 6pm will not coincide with the peak activity generated by PLC, which occurs between 3pm and 4pm. It is therefore concluded that the additional traffic generated from the concept plan will result in negligible impacts on the local road network. Avon Road will, particularly between 7.30am and 8.30am, experience a small increase in traffic. However, queuing will be largely confined to within the site boundary. Traffic conditions along Avon Road will continue to be dictated by PLC related traffic with congestion along this route dissipating significantly outside of school drop-off and pick-up hours.
It is my understanding of what is there written that, to the extent there will be frustrated commuters queuing as a result of this development, they will be doing so within the garage of the site and waiting to debouche onto Avon Road. They will not be adding significantly to the delay at Livingstone Road and the Pacific Highway.
After the Varga and Arup consideration, the Commission dealt with this issue in its determination of 13 July 2013. It did so in the following terms, at 6.3 traffic, parking and access: Residents are very concerned that the additional traffic and parking requirements generated by the proposed development will exacerbate the existing traffic and parking issues in the area, particularly during the morning peak and in emergency evacuation situations. The Commission members and staff visited the site and surrounding areas during morning peak hours on three different occasions to observe the traffic conditions. The Commission notes that a lot of the morning peak traffic relates to school drop-off. It is an issue typical to an area where a school is located. The current situation can be improved with an effective traffic management plan developed between the Council, the school and the community. As to the impact of the additional traffic that will be generated by the proposed development, the Commission considers the potential impact alone would not be fatal to the proposal based on the Commission's observation of traffic conditions during site visits, the RMS advice, the independent traffic review and the traffic studies noting the critical comments on the traffic studies/review.
The Commission's finding on this point was set out at 7.3: Existing traffic conditions in the area could be improved by a more effective and targeted traffic management plan. The estimated increase in traffic generated by the proposed development would impact on the existing road networks but not warrant refusal on this ground. There has been an agreement, as I understand it, that such a further traffic management plan will be developed.
The project was further refined after the refusal by the Commission and through the s 34 conciliation process. This resulted in the fourth traffic report being prepared by Traffix in September 2014. Mr Pindar, the author of the report, sets it out as addressing the second further revised preferred project report; that is, the document with which I am dealing in these proceedings.
He notes that as opposed to the original proposal of some 350 units dealt with by Mr Gennaoui, there are on the assessment he was undertaking about 198 units across three buildings plus four detached dwellings. He notes on p 10 that there would be 257 parking spaces, that being, as I understand it, the general vicinity, subject potentially to minor refinement, the upper limit of the number of parking spaces to be provided under the concept plan when implemented through the detailed development proposals for each of the buildings on the Avon Road side of the site.
At 6.3, Traffic Impact Assessment, on p 17 of Mr Pindar's report he says as follows: "The analysis above demonstrates that the latest development scheme is anticipated to generate 26 fewer peak hour trips during both the morning and evening peak hours compared with the original Part 3A concept plan proposal assessed in the Varga 2012 report. Having consideration for the separate accesses, the current scheme is anticipated to generate five fewer peak hour trips to/from Avon Road in 21 fewer trips to/from Beechworth Road. Accordingly the network performance findings of the Varga 2000 report are, as a minimum, representative of the likely traffic impacts of the current scheme. Therefore it is still concluded that the revised concept plan proposal will not have any unacceptable traffic implications in terms of the road network capacity and that there will not be any road improvements or intersection upgrade required to accommodate the projected traffic flow."
Finally, the proposal was referred to Roads and Maritime Services for consideration of what, if anything, might be the impact on the Pacific Highway. Roads and Maritime Services (the RMS) provided a reply in May 2013 which was tendered and became Exhibit N. Although this referred to the project as it was prior to the final refinements, given the commentary by Mr Pindar that there would be a minor reduction in vehicle movements, the conclusion expressed by the RMS, I am satisfied, remains valid. That letter says at .1: "It is noted that RMS's previous comments dated 8 March 2013 in relation to correct traffic modelling were not fully undertaken by the proponent. RMS has completed a desktop review of the traffic impacts of the development and advises that the impact of traffic from the proposal will have a minimal impact on the flow of traffic along Pacific Highway."
I have taken some time to set out in detail the stepping through of the decrease in size of the proposal and the consequence of change in analysis of traffic impacts arising from it, particularly the transition from Mr Gennaoui's "fail" of Livingstone Road/Pacific Highway to the final conclusion that it will remain at a satisfactory level of service. I have done so because it is necessary to provide a proper foundation for my conclusion that, on the basis of that expert evidence trail, there is no traffic basis upon which I could require modification of let alone refuse the proposal.
I now turn to other issues raised by the objectors.
There was, first, a concern about the change of nature in the area from its single residential dwelling typology and what was described as its "garden suburb" characteristic. The consequence of a Part 3A intervention and the declaration made by the Director-General to which I have earlier referred simply fundamentally changes the nature of that which is to occur in the subregion.
The Act is not requiring me, nor does it permit me, effectively to make a determination of a right of appeal against the Part 3A declaration. What I am obliged to do is to undertake an assessment on the merits of the proposal that is embodied in the concept plan (subject to the submissions, to which I will return later, that the Council has made concerning the local planning instruments, the provisions of which remain a matter for discretionary consideration as a consequence of the preservation of the repealed s 75J(3) for the purposes of these proceedings). The change in character is not a matter, subject to the observations made by the Council and my response to them, for consideration in these proceedings.
Second, the changes in the application, as it has been refined over a considerable period of time, now result in fewer buildings; a stepping up of the buildings from lower heights where they have a residential interface to higher buildings towards the northern boundary abutting the railway line, particularly incorporating but not confined to the modification to Building 4 for heritage impact reasons which means that the project, as I am now dealing with it, affords significantly greater respect, in a contextual sense, to the neighbouring single level residential development - single residential development which is in any event, as I understand it, within an area that is anticipated by its present zoning under the Council's planning instrument to go through transition over future years.
The position that applies here is analogous to that which is discussed in the planning principle in Seaside Developments Pty Ltd v Wyong Shire Council (2004) NSWLEC 117 at para 25, which Bly C said, setting out a planning principle adopted by the Commissioners of the Court: "As a matter of principle, a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone."
Although the interface is created here by virtue of the Part 3A intervention, that intervention has the effect of creating a de facto R4 High Density Residential zone on the site and the development, I am satisfied, respects that notional zone interface to which I have had regard.
I should here observe that, in Doolan v Strathfield Municipal Council (2014) NSWLEC 1212, Brown C set out at para 70 that the Commissioners of the Court had considered, through the collegiate system used within the Court for the consideration of planning principles, the continuing relevance of two of those planning principles - one of which was that in Seaside Property Developments to which I have referred. He recorded that the Commissioners have concluded that the principles in Seaside Property remain relevant to the extent that they deal with developments at zone boundary interfaces but no longer remain relevant in relation to the comments about location of private open space. A "News" item providing information on that is to be published on the Court's web site in the near future.
The third objector matter concerns natural environment, ecological Blue Gum High Forest issues and the matter raised by a resident in Arilla Avenue concerning impact on local fauna. There is unanimous expert agreement in the material provided to me - there not being any need for oral evidence on this point - that all of these matters are appropriately addressed within the concept plan and are able to be accommodated in detailed conditions of consent that will later be imposed during the individual development application process.
To the extent that some matters relating to protection of the Blue Gum High Forest and protection of the public interest in that Blue Gum High Forest, further refinements arose during the hearings of these proceedings and I will return to those improvements later. There is, however, no reason why I should require modification to, let alone refuse, the project on that basis.
The next matter is the question of overshadowing. It is clear that the overshadowing that is of concern was expressed to be of 11 and 15 and of 7 Avon Road. With respect to the first two of those properties, the shadow diagrams demonstrate that there is no overshadowing of those properties at any time after 10 am in the morning on the winter solstice and that, for 7 Avon Road, it will get the minimum solar access that is required by relevant planning controls in generally accepted principles on the winter solstice of 21 June. There is no overshadowing basis upon which the proposal could be refused.
The next issue was the view of bulk, particularly up or across the valley towards the proposed development. First, it is necessary to observe that a change in bulk in presentation upslope is a necessary consequence of the change of the character that flows from the Part 3A declaration; that is, there will necessarily be a change in the view upslope from the downhill residences.
I accept that it is different in scale. However, the expert evidence of the planners and urban designers is that it is acceptable, and my consideration of their evidence and my examination of the plans showing the degree of separation from those buildings for the adjacent residences, when coupled with landscaping protections of which I will make reference later, renders that this is an acceptable impact.
I turn to privacy. Concerns were raised specifically by one resident about privacy on the bedrooms of her family's dwelling. There were other concerns expressed throughout the objections of a similar nature. The separations that are proposed between these residential flat building and adjacent single level or two-storey residences, without taking into account the fact that the single-storey/double-storey residence area is itself likely to (and anticipated by the Council to be likely to) undergo transition in the future have been adequately compliant and significantly more than minimum separation distances that would be required for privacy purposes.
There is no doubt in my mind that the separation distances are compliant with what might be any reasonable requirement for that purpose.
I turn to Building 1 along Avon Road and its potential impact on 7 Avon Road. There are some refinements to this that have arisen during the hearing process that may provide some amelioration of the concerns that have been expressed by the residents of this property, and they have been accepted by the applicant as appropriate to be dealt with at the detailed design stage for Building 1.
I turn to Building 1 in its streetscape context. The height and setback of Building 1 have been refined - both in a north-south and east-west fashion - during the ongoing refinement of the proposal. The consequence of this has been the moving of form up the site towards the railway line resulting in the movement of form away from 7 Avon Road - that resulting in a stepping of the building as it goes up the slope.
It is on this point that I should observe that the test that I am obliged to impose and address and then answer in proceedings such as these is the acceptability of the proposal. It is not my role to make a declaration as to whether or not a particular concept or design has achieved design Nirvana. Building 1 is acceptable in its streetscape context. The increased setback and the shifting of development on it, both set back along the side of Building 1 and across Building 1, is acceptable.
However I note in this context, because it is in my view particularly relevant in this context, that what I am dealing with here are concepts and envelopes rather than detailed design of the building - in that each of the buildings will need to be the subject of a further separate detailed development application and that the residents will have the opportunity to be further heard on matters of detailed design at each of those development application stages.
I turn to the question of amenity for the residents of the buildings proposed on the site.
The agreement between the experts is that, to the extent that they have some concerns, particularly about ventilation, access and the like, those are capable of resolution and it is appropriate to defer resolution of them to the detailed design stage. I see no reason to depart from that view.
Next, I turn to infrastructure adequacy, and a call that was made by one of the residents for a moratorium on further development until the adequacy of infrastructure - in particular as I understood it, the inability of Pymble Public School to absorb further pupils - should result in a moratorium on further development in the area including development on this site. That issue, in my view, is a question of public policy, not an issue that arises as relevant in these proceedings.
In any event, even if there were to be some reason to have some consideration of it relating to development on this site, that in effect was shut out, in my view, by the Director-General's declaration under Part 3A to which I have earlier referred. That declaration has the effect of stating, on a statutory basis, that the site is suitable and appropriate for the general style of development envisaged to flow from this Part 3A declaration.
The final objector issue that I wish to turn to is the question of emergency access and egress. It was discussed earlier, specifically in the context of my stepping through the various elements of the traffic impact reporting, and I am satisfied that on the basis of that expert analysis it is not a matter warranting modification of, let alone refusal of, the application.
I now turn to matters of refinement that have arisen during the course of the hearing.
First, I turn to the question of visual impact on the properties at 7 and 15 Avon Road. During the course of the site inspection, I observed and drew attention to the fact that, in the vegetation on the site immediately adjacent to these two properties, there appeared to be substantial elements of both Broad and Narrow-leafed Privet trees.
That vegetation, although not declared a weed, is regarded as a noxious plant (as a general social descriptor) and is desirable to be removed, it having not only highly invasive properties - a Macquarie University study in the 1970s (I recollect from a past life) showed seedling densities of up to 600 seedlings per square metre - but also has quite insidious impacts during pollen time on asthmatics. The vegetation management plan and rehabilitation proposals for the site envisage the removal of the privet infestations on the site.
During the course of my observation, I asked Mr McEwen, senior counsel for the applicant, to have material brought put me that would deal with the impact of the removal of those privet trees on the outlook from 7 and 15 Avon Road and whether the need to remove the privets, which on the photo montages that were in evidence appeared to provide a significant deal of the landscape screening of Buildings 1 and 3 from those locations, could be brought forward to ensure that, as the vegetation removal occurred, planting for landscape screening purposes was provided.
As a result of that, Schedule 3, clause 25 of the proposed orders deals with the staging of the vegetation management plan and landscaping works in order to ensure that there is an early planting of screen trees at the relevant location and that the removal of privets is undertaken early in the process with that planting so that there is the maximum opportunity for re-establishment of beneficial vegetation at that location.
I heard evidence from Mr Shepherd on behalf of the applicant on that point and it was his expert evidence (he being a landscape architect involved and his conclusion being concurred in by the vegetation experts in the proceedings) that the nature of the microclimate and soils in the area provided a highly beneficial opportunity for early and vigorous re-establishment of vegetation to assist in that process.
The second change that I should observe related, as I earlier mentioned might arise, at the more detailed stage concerning the driveway to Building 1 and its impact on 7 Avon Road. At Schedule 3 clause 26, the applicant agreed to consider whether the access driveway could be relocated further to the north or be made perpendicular to Avon Road with a view to reducing the impacts on 7 Avon Road. In addition to that, to be provided for in the final version of that clause, there is to be an undertaking to examine whether the mechanical door to the garaging can be set back away from the front facade of the building to provide acoustic shielding for 7 Avon Road if the driveway is unable to be relocated.
The next matters relate to the conservation of the Blue Gum High Forest. I suggested that it might be desirable, in response to the concerns expressed by the residents, first that there be a public positive covenant in favour of the Council with respect to protection of the Blue Gum High Forest. The applicant has agreed to such a public positive covenant in perpetuity and that is provided for in clause 5 of Schedule 3. I expressed concern that it was desirable to have appropriate provisions about the establishment of a fund and the guaranteeing of sufficient money for the ongoing maintenance of the Blue Gum High Forest area and the implementation of the vegetation management plan. That is now provided for in Schedule 3, clause 3.
Finally, although there was in the conditions a requirement for monitoring, maintenance and reporting for the conservation area and the landscape master plan, vegetation management plan and the like, there was no specific requirement as to who was to be the recipient of those reports. The applicant has agreed to a requirement that such reports have to be provided at the intervals set out in Schedule 3, clause 4 to the Council and the Council has accepted that it is the appropriate recipient of such reports.
I have earlier described the dominant outcome of the heritage evidence, being the removal of the entirety of the top proposed level to Building 4, as resolving the Colinroobie issues. This arose in part out of the submissions from the public about heritage matters but also in part about the scope of the development. The effect of this, as I have earlier indicated, is the removal of 239 square metres of gross floor area from Building 4 at the uppermost level with the ability of 53 square metres of that gross floor area to be regarded as surplus and available to be redistributed across the site provided - an important proviso in the question of context and protection of number 7 Avon Road and the outlook from 15 Avon Road towards Building 3 - that that reallocation of 53 square metres of gross floor area cannot be used for the purposes of increasing the height of any of the proposed buildings.
I finally turn to the position of the Council as set out in the Second Respondent's outline of submissions at the conclusion of the hearing. It is appropriate for this purpose for me to read a deal of those into this decision. Mr Hutton of counsel who appeared for the Council said this (commencing at para 3): "The site is located in the Ku-Ring-Gai Local Government area between Avon Road and Beechworth Road at Pymble and thus subject to the Ku-Ring-Gai Local Environmental Plan (Local Town Centres) 2012; KLEP. Residential flat buildings are prohibited in each of the applicable zones under the KLEP. The PAC in refusing the concept plan approval referred to the KLEP and Council's role in relation to it, particularly the significant and extensive planning studies undertaken by the Council to inform the KLEP. The PAC specifically found that Council has undertaken extensive strategic precinct planning in consultation with the community and relevant public agencies." The Council was joined in these proceedings over the opposition of the applicant on 22 May 2014: Brett Stephen Lord and Marcus William Ayres v Minister for Planning and Infrastructure (2014) NSWLEC 1128. The concept plan application has been substantially revised since the Council's joinder. The revisions include retaining the heritage item at 1 Avon Road with associated heritage curtilage, deleting Building 5 adjacent to detached dwellings and heritage item at 6 Beechworth Road and replacing them with four subdivided lots for dwelling houses consistent with the low density zoning and desired future character of the area, purchasing and including 3 Avon Road in the development so as to address issues fragmentation, site isolation and privacy impacts and allowing the building mass to be located further to the north-east away from the lower density dwellings to the south in Avon Road and Arilla Road, reduction in dwellings from 273 units to 187 units plus four subdivided lots for four dwelling houses representing a 30% reduction in overall dwelling numbers, improved pedestrian and vehicular access to the sites. Council considers the revisions to be beneficial. They go some way towards meeting a number of the concerns held by the Council and voiced by local resident objectors. As a result of the revisions to the concept plan application and in light of the fact that under pt 3A of the KLEP it is only a matter to which the Council may have regard - ss 75O(3) and 75R - it is not in itself determinative. Council is not in a position to raise any contentions that would warrant refusal of the application as opposed to the imposition of further conditions. However, Council should not thereby be taken to suggest that it agrees with or supports the development. Council reiterates and continues to be of the view that the treatment of the project as a transitional pt 3A project is inappropriate and a planning outcome that the Council regards as disappointing. The KLEP which was prepared after extensive strategic precinct planning in consultation with the community and relevant public agencies is the most appropriate planning instrument for development in the Ku-ring-gai LGA. Were it not for the project's status as a transitional pt 3A project, the proposed development would not be permissible under the KLEP. The proposed development of high density apartment buildings up to nine storeys adjoining low density housing is not consistent with the aims of the KLEP or Council's views as to the appropriate level of development for the area. Council reiterates that if it were the consent authority, development approval would be refused.
I have earlier referred to the declaration that was made by the Director-General of the Department on 1 December 2008 as delegate for the Minister declaring under s 75B(1) of the Act that the development was to be a project to which Part 3 of the Act applied. I have earlier set out in full the terms of that declaration and it is unnecessary to repeat it.
However, I am satisfied that the declaration under Part 3A has been made with the express intention not only to set aside the Council as the consent authority but also to exclude the local planning controls from my consideration.
Although the provisions of s 75O(3) or 75J(3) would permit me to have regard to those controls, I am satisfied that the nature of the declaration is such that it was expressly intended to act as a shut-out, as it were, given the nature of the proposed effectively R4 High Density Residential zoning proposed for this site, to have regard to the conflict with the Council's zoning controls that envisage development of an entirely differing form.
Whilst I understand the strength with which the Council and the local community object to the Part 3A declaration, such a declaration made at the time - that was in December 2008 - involved a significant policy decision by the then government and not a merit decision that involves the subtlety of interaction between the local planning controls and a Part 3A project declaration.
It is therefore not appropriate, in my view, in these proceedings to have any particular regard to the controls that would otherwise have applied. I acknowledge that the Council, the Department and the applicants have effected significant modification to this proposal during the course of the conciliation process - modifications that are in, my view, in their entirety beneficial for and responsive to Council and community concerns, as Mr Hutton observed in his submissions.
However, to the extent that they are in conflict with the local controls, I am satisfied that that is not a matter that warrants further intervention for the reasons that I have outlined as necessarily flowing from the Director-General's declaration.
I was provided with a draft settled form of orders to permit to give effect to my determination that the appeal should be upheld. That draft form of orders is Exhibit 7 in the proceedings. Those documents, particularly the Schedules attached thereto, require some modest revision in light of the discussions that took place during the final stages. In order to permit that to occur and to ensure that the Court remains in control of the proceedings, I propose to set the matter down for a further mention before me on the basis that if the documents are provided to me electronically (in a Word 1997 - 2003 format) as finally revised, I will make orders in chambers dated as for the receipt of those documents and vacate the mention.
In order to provide social stimulus to the parties to do that expeditiously, the matter is set down for mention at 4.45pm on 24 December. The orders will incorporate that the following exhibits will be returned - Exhibits H, J, K, L, M, N, 2, 3, 4, 5, 6, 13, 14 and 15.
Finally it is appropriate in my view that I return in these proceedings to deal with the further progression of Matter No 10834 of 2013. The conciliation conference in that process was stood over to 4.15 on 30 June 2015. It is now appropriate to bring forward further consideration of how that appeal might proceed and, indeed, the extent to which the revisions to the project might now require a new application to be made for the Stage 1 development.
The parties are therefore to directed to provide by eCourt by 4.45pm on 24 December (but I would encourage it being earlier) a suitable date for a further continuation for procedural purposes only of the s 34 conciliation conference before me at a time convenient to the parties in the week commencing 23 February 2015.
The matter is adjourned until 24 December. Tim Moore Senior Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 January 2015

Brett Stephen Lord and Marcus William Ayres v The Minister for Planning and Infrastructure

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