Celesteem Rouse Hill Development v Blacktown City Council

Land and Environment Court (NSW)|2020-02-19

Judgment

COMMISSIONER: This is an appeal lodged under s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal of Development Application DA-18-01705 (the application) for an attached housing subdivision (the subdivision) on land at Lot 312 in DP 208203, known as 54 Terry Road, Rouse Hill (the site).
The site has an area of 2.116 hectares and is situated on the western side of Terry Road. It contains an existing dwelling and ancillary rural structures. The site slopes to the east and is heavily vegetated in its western portion. Second Ponds Creek also traverses this western portion of the site.
Development of the site is required to be assessed under the provisions of State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP or the SEPP).
The provisions of the Blacktown Local Environmental Plan 2015 (the LEP) therefore do not apply. Development is however, also required to comply with the provisions of the Blacktown City Council Growth Centre Precincts Development Control Plan 2018 (the DCP).
Under the Growth Centres SEPP, the majority of the site, comprising the eastern portion fronting Terry Road, is zoned R3 - Medium Density Residential. The balance western portion, containing the adjacent vegetation and future recreational land west of the R3 zone, is zoned RE1 Public Recreation and, the creek corridor, SP2 Infrastructure (Local Drainage).
The surrounding land is in transition comprising a mix of semi-rural and recently subdivided land with dwellings and residential flat buildings (RFBs) under construction on Terry Road. Immediately to the north, at what is known as 44 Terry Road, is a newly constructed subdivision on R2 Low Density Residential zoned land. To the south is the recently constructed and elevated Sydney Metro line. The balance of the Sydney Metro land north of the line and immediately adjoining the site to the south is undeveloped and also zoned R3.

Relevant planning controls

The aims of the Area 20 Precinct Plan, at clause 1.2 of Appendix 6 of the Growth Centres SEPP, include: to make development controls that will ensure the creation of quality environments and good design outcomes; to protect and enhance environmentally sensitive areas; to provide for recreational opportunities; and to promote pedestrian and vehicle connectivity with adjoining Precincts and localities and within the Precinct.
Under the SEPP, the maximum permissible height for the site is 8.5m, notwithstanding higher development is permitted in the R3 zones elsewhere in the LEP, and that an 8.5m height limit also applies to the R2 zoned land to the north of the site.
The objectives of the R3 zone under the SEPP are: • To provide for the housing needs of the community within a medium density residential environment. • To provide a variety of housing types within a medium density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To support the well-being of the community by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a medium density residential environment.
Under the SEPP, the RE1 zoned land is required to be acquired and developed by the Council for public recreation and the SP2 zoned land for drainage.
The objectives of the RE1 zone under the SEPP are: • To enable land to be used for public open space or recreational purposes. • To provide a range of recreational settings and activities and compatible land uses. • To protect and enhance the natural environment for recreational purposes.
Within the RE1 land, the list of defined permissible uses includes "Environmental Protection Works", "Roads" and "Waterbodies (artificial)".
The parties agreed that the portion of Road 3 proposed on the RE1 zoned land could either be approved as a permissible use in the RE1 zone accordingly, or approved under the provisions of clause 5.3 of the Area 20 Precinct Plan, the relevant provisions being as follows: 5.3 Development near zone boundaries (1) The objective of this clause is to provide flexibility where the investigation of a site and its surroundings reveals that a use allowed on the other side of a zone boundary would enable a more logical and appropriate development of the site and be compatible with the planning objectives and land uses for the adjoining zone. (2) This clause applies to so much of any land that is within the relevant distance of a boundary between any 2 zones. The relevant distance is as follows - (a) - (b) -, (c) in any other case - 30 metres. (3) - (4) - (5) Despite the provisions of this Precinct Plan relating to the purposes for which development may be carried out, consent may be granted to development of land to which this clause applies for any purpose that may be carried out in the adjoining zone, but only if the consent authority is satisfied that - (a) the development is not inconsistent with the objectives for development in both zones, and (b) the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land. (6) - .
In terms of these provisions, the Road 3 reserve extends 4.5m into the RE1 zone from the R3 zone. It is therefore within 30m of it.
The DCP contains general controls for all Growth Centre Precincts, including controls of relevance to the design of the proposed roads, whilst the specific controls for development in the Area 20 Precinct are in Schedule Four.

The design, width and location of Road 3

The major issue between the parties was the proposed width and location of Road 3, being the western most proposed road within the subdivision. Road 3 is to intersect with Road 2 at the northern boundary of the site. Road 2 runs east-west, is known as Boolavogue Road, and is also to be upgraded as part of the subdivision works. Road 3 then joins, and becomes a continuation of, an existing road to the north of Road 2 known as Bella Parade. In the future, Road 3 will also link to a proposed future road to the south in the Sydney Metro land to form a continuous north-south perimeter road west of the residential development to the east of it.
The applicant had amended the design of Road 3 to accommodate an 18m wide road reserve as sought by the Council. This road reserve width is required for a road designated as a 'Medium-high density local road' at Figure 3-14 of the DCP, which comprises the typical section for such a road. The Council advised that it was the Department of Planning, not the Council, who had prepared the DCP and determined that local roads in the R3 zone should be designed with a width of 18m whilst a lesser width was permitted in the R2 zone. This included the R2 land adjoining the site to the north which had resulted in a lesser width being accepted by the Council for Bella Parade.
Within the proposed 18m road reserve, 11m is for the proposed road carriageway or pavement, 3.5m for a proposed eastern verge (with a roll kerb) adjacent to the residential development, and 3.5m for the western verge, which includes a barrier kerb, a 2.5m wide shared cycle and pedestrian path (the shared path), a retaining wall, and a pedestrian handrail.
Of the entire 18m width of proposed Road 3, 4.5m containing the western most kerb and verge (with the shared path and associated works) is proposed within the RE1 land. In addition, a disabled ramp and stairs are proposed to provide access from the shared path to the RE1 land. The path is required to be elevated given the difference in levels between the finished road and the RE1 land and to avoid disturbing a tree, known as Tree 48, which is situated within the ENV adjoining the southern-most portion of Road 3.
In essence, the applicant argued that the shared path would provide appropriate facilities in, and access to, the RE1 land in accordance with the intent of the Precinct DCP controls and the objectives of the RE1 zone, and that roads were a permissible use in the RE1 zone. Therefore, there should be acceptance that part of the road containing the shared path should be permitted on the RE1 land.
Alternatively, if the Council agreed to a reduced road reserve width of 13.5m, adopting the same 9m pavement width as exists in Bella Parade and deleting the shared path, then the applicant would redesign the road accordingly, and the 4.5m 'encroachment' within the RE1 land would not occur.
The Council argued that the proposed road was a subdivision road and should be wholly contained within the residentially zoned portion of the site accordingly, and be designed to have an appropriate interface with the RE1 land that did not include an elevated path which would be difficult to maintain. The Council therefore sought that Road 3 be maintained at an 18m width but relocated 4.5m to the east so as not to have any encroachment on the RE1 land.
The applicant argued this relocation would have adverse consequences for the subdivision design, with the loss of at least 2 if not 3 residential lots, and therefore dwellings. The Council argued that, if each of the proposed lots was reduced by some 7m², the existing dwelling yield and required minimum lot size could still be achieved.
However, such a redesign would require the relocation of proposed Roads 1 and 4. The Council accepted this would require a modification to the approved Indicative Layout Plan (ILP) for the Precinct.
The Council did not raise any specific concerns in terms of the permissibility of the proposed uses or the environmental impacts of Road 3 being in the RE1 land accepting that the subdivision had been designed, including in terms of uses in the RE1 land, to attempt as far as possible to preserve existing vegetation. The issue was the use of RE1 land for a subdivision road.
Both parties referenced controls in section 3.4.1 of the DCP including Control 10 as follows: "10. Where local roads are adjacent to public open space or drainage land, verge widths may be reduced to a minimum of 1m, subject to public utilities, bollards and fencing being adequately provided. Consideration of proposals for reduced verge widths will be solely at the discretion of Council and only where the finished road design levels match with existing levels of open space or drainage land and negate the need for any retaining wall or battering. Applications that propose reduced verge widths will be assessed by Council with consideration given to: • public access to the reserve • impact on existing vegetation and environmentally sensitive areas • public amenity • public safety • impact on ability to provide street tree planting. Where arterial roads are adjacent to public open space or drainage land, the urban border behind the kerb (verge) must be minimum width of 3.5m to accommodate footpath / shared path, utilities, signage, etc.(sic)"
Control 11 of the DCP requires that, unless otherwise provided for in the DCP, all streets are to be designed and constructed in accordance with the minimum requirements set out in Council's 'Engineering Guide for Development' (the Engineering Guide).
Section 3.2.1 of Schedule Four of the DCP contains objectives and controls for public transport and pedestrian and cycle networks in the Area 20 Precinct. In this regard, pedestrian and cycle links and routes are to generally be provided in accordance with Figure 3-3: Pedestrian and Cycle Network. For the site, Figure 3-3 shows a 'secondary shared route' along Boolavogue Road being the east-west road (Road 2) along the northern boundary of the site connecting Terry Road to Road 3.
Although initially disputed by the Council as to the form and location of a path shown in the western portion of the site, it was subsequently agreed that this path was designated in Figure 3-3 as a 'Recommended off road recreational shared pedestrian & bikeway'. It is located in the RE1 zoned land immediately adjacent to, being west of, the indicative location shown in Figure 3-3 for Road 3/Bella Parade.
The Council engineers also raised a concern with the intersection of Roads 2 and 3. The intersection is at a low point, or sag, and the issue is that the depth may be excessive and be a risk to vehicles traversing the roads and to the floor levels, or freeboard, of adjoining dwellings. It was, however, agreed that the intersection design could be resolved by conditions, including requiring calculations to be undertaken to confirm the depth of the flow.
The main issue remained however, the 'encroachment' of Road 3 into the RE1 land.

The applicant's arguments

The land to the north is zoned R2 so the width of Bella Parade is less than the required width of Road 3, with a pavement width of only 9m. Mr Galasso, SC, counsel for the applicant, submitted that the road widths would therefore be inconsistent for what is intended to be a continuous north-south road and creating a tunnelling effect when travelling south to north.
Further, whilst the residential portion of the site is zoned R3, it will not be developed to the same (or maximum) density permitted in other R3 zoned areas where there is no 8.5m height limit, and RFBs are permissible up to 26m, which would generate significantly more traffic than is proposed here. The road width required by the Council was the same as is required within several zones where much higher densities and traffic volumes are likely, including the R5, B2 and B4 zones. The limit of development of the site to a height of 8.5m, effectively precluding RFBs and higher density development, should be a factor for consideration in varying the width required under the DCP.
Further, the applicant is being required to provide a path to nowhere as it terminates on the northern boundary, being not continued in the development to the north, and as the Council did not own the RE1 land and could therefore not construct a path to continue the path provided.
Mr Varga's evidence was that a narrower, 9m wide, pavement was supportable on traffic grounds. In this regard, he had undertaken a traffic assessment in October 2019 (Annexure 18 to the Expert Report, Exhibit 2) which identified that the projected future traffic volumes expected to use Road 3 justified a narrower width. His assessment used the traffic volumes coming from Boolavogue Road, being the collector road on the northern boundary of the site, based on known and assumed volumes from future development of the site and surrounding land.
Based on his assessment, less than 15 vehicles per hour would use Road 3 at peak times, being very low volumes that could safely be accommodated within 9m, that being the carriageway width of the road to the north (Bella Parade). Further, the encroachment of Road 3 into the RE1 land continues the same arrangements for this road that have already been approved on the sites to the north.
If the pavement width was reduced to 9m to match that of Bella Parade and the shared path removed, and that verge reduced to 1m as Control 10 allows, there would be no incursion into the RE1 land. However, there would still be a level difference between Road 3 and the RE1 land requiring retaining walls or batters. Bella Parade had such works in the RE1 land and itself partially encroached into the RE1 zone. Further, Road 3 still has to join Bella Parade within the RE1 zone and where there is a change in levels.
As Control 10 of the DCP supports a reduction in verge width adjacent to public open space, consideration could be given to reducing Road 3's width to less than 18m to minimise impacts on the RE1 land, without needing to relocate the road to the east. Further, Control 3 of section 3.4.1 of the DCP allows alternative street designs for local streets on a case-by-case basis if they preserve the functional objectives and requirements of the design standards.
Mr Galasso also cited the Court's decision in Trinvass Pty Ltd v Council of the City of Sydney [2015] NSWLEC 151 which references now s 4.15(3A)(b) of the EPA Act. This section requires that, if a DCP contains provisions which set standards with respect to an aspect of the development, and the application does not comply with those standards, the DCP is to be flexibly applied and allow reasonable alternative solutions that achieve the same objectives. Road 3 at a reduced reserve width would still meet the requirements for a local road, and the Court could flexibly apply the DCP standard accordingly, given the circumstances.
Mr Koebsh's evidence was that the road transition to Bella Parade requires retaining walls and a suspended footpath to achieve the grades the Council requires and would likely apply wherever the road was positioned. He also re-iterated that the Council had allowed retaining walls and batters in Bella Parade within the RE1 land.
Mr Mead's evidence was that the boundary between the R3 and RE1 zones does not appear to follow any strategic, natural or physical boundary and he had prepared an overlay, included within the Expert Report (Exhibit 4), which indicates that the road in the ILP encroaches into the RE1 zone in the position proposed for Road 3.
The applicant had also originally proposed a reserve width of 13.5m for Road 3 to match that of Bella Parade and confined to the R3 zone. However, the Council required the width to be increased to 18m. Accordingly, the western alignment of the 18m wide road was located to match the location supported in the ILP.
Mr Mead also argued that Road 3 provides a north-south shared pathway as envisaged within the RE1 land shown in Figure 3-3 of the Area 20 Precinct Plan in the DCP. The RE1 land will therefore be publicly accessible with Road 3 a public road within it providing public access to that land. The proposed path and access ramps will be funded by the applicant but publicly accessible enhancing the useability and connectivity between the R3 and RE1 land.
Further, Court decisions have stated that it should be assumed that uses are supported in zones where they are permissible subject to acceptable environmental impacts. The RE1 zone is not an environmental protection zone, rather a zone where some modification to landform and structures must be envisaged in order to accommodate the recreational use for which the land is zoned. Only a minor amount of the total RE1 zone is impacted and there will be no material loss of public open space. Rather, a small portion of it will be developed for uses which are envisaged to occur in the zone.
Mr Galasso queried what the interface with the RE1 land would be if the 18m road reserve was relocated wholly within the R3 land adjoining the RE1 boundary. If it was the retaining walls, batters and fence that exist the entire western length of the road to the north, including north of 44 Terry Road, that was not a desirable built form outcome nor would it provide the accessibility for the public to the RE1 land encouraged in the Precinct Plan. In contrast, the proposed ramp and stairs would provide equitable access for future users of the RE1 land. The alternative would be a continuation of the barrier fencing between the subdivisional road and the RE1 land as exists to the north.
Instead, the shared path in Road 3 could replace or form a component of the required path shown conceptually in RE1 land in Figure 3-3 of Schedule Four of the DCP whereas it would not be possible to provide a separate path as proposed in Figure 3-3 between the proposed road and the ENV. This was given the close proximity of the ENV to the zone boundary in the south western portion of the site. In this regard, Ms Spence had accepted that there were limited places that a shared path could go in the RE1 land in this portion of the site given the proximity of the ENV to the R3 zone.
Road 3 must be considered consistent with the objectives of the RE1 zone. It would enable the RE1 land to be used for public open space and recreational purposes in the future in a range of recreation settings whilst protecting and enhancing the natural environment by locating the path outside ENV.
Finally, roads are a discrete permissible use in the RE1 zone and there was nothing in the controls proscribing roads in the zone. The majority of the road in the RE1 zone contains the shared path, which is in the only location such a path could likely be provided in the RE1 portion of the site in the future. This is in terms of the intended network shown in the DCP and given the location of ENV in the south-western portion of the site.
There is additional benefit to the Council of not only having the shared path provided by the applicant within the RE1 land, but also having less RE1 land required to be acquired by the Council from the applicant in the future.
In summary, developments on at least 3 properties to the north of the site have retaining walls, reduced verge widths to the RE1 land, no shared paths and road components in the RE1 land. Yet the Council says that Control 10 of the DCP now does not support any of these features but requires an increased pavement width due to the zoning of the site, despite the fact that it will not be developed to a typical R3 density. Further, none of the developments to the north have provided any opportunity for pedestrian links to the RE1 land or for connection with the proposed path on the applicant's land.
Whilst the application proposes a minor encroachment into the RE1 zone, this is primarily for a use (a shared path) that is permissible and expected in that zone, and encouraged by the DCP to provide connectivity.
The associated structures, ramp, stairs and landscaping are designed to protect and enhance the natural environment whilst providing for recreational activities. Thus the objectives for the zone are met.
The Court was advised that the applicant would accept the Court's decision on which road width should be required, namely 18m or 13.5m, providing the road did not move east. Moving an 18m road reserve east to be clear of the RE1 land was not reasonable nor justified when the majority of the encroaching width was to provide a shared path that was a use appropriate for, and contemplated and permissible in, the RE1 zone.

The Council's arguments

Mr Drury, solicitor for the Council, advised that the Council accepted that the majority of the intrusion of Road 3 into the RE1 land comprised the shared path component. Further, that the public should not be excluded from the RE1 land in the future but should have access to it. The Council also understood why the path was elevated in its southern portion, and that this may be required irrespective of the road's final location, given the different levels between the finished road and the RE1 land, requiring either battering or retaining accordingly.
However, Mr Yee advised that DCP Control 10 was amended in 2016 to address some of the RE1 interface issues. It clarified the requirements of the control to those that exist today. Prior to that amendment, Control 10 was limited to the following: "10. Where local roads are adjacent to public open space or drainage land, verge widths may be reduced to a minimum of 1m, subject to public utilities, bollards and fencing being adequately provided."
In particular, he argued that this wording had led to poor design outcomes, such as existed with the RE1 interface with Bella Parade, and was changed accordingly to specify on what basis reduced verge widths adjoining RE1 land would be supported.
He further argued that the ILP for Precinct 20 showed the edge of Road 3 running along the RE1 boundary not within it. The full road formation at 18m should be outside the RE1 land accordingly, albeit he accepted that some encroachment of the reserve for the road to the north, containing batters and retaining walls, may have occurred in the RE1 land. The extent of such encroachments was not however, known.
Further, reducing verge widths to 1m using Control 10 is only permitted where the finished road would be level with the adjoining land and no battering or retaining walls are required. This is not the case for Road 3.
Whilst he did not dispute the traffic volumes predicted by Mr Varga, Mr Yee considered these irrelevant as the DCP requires the 18m reserve width, being the design width for a variety of development scenarios. The Council sought to achieve consistency in the road widths provided in the various zones. For this reason, the DCP widths were consistently applied and rarely varied even though the DCP allows variations. Further, what is proposed is a significantly increased density relative to that in the R2 zone.
Mr Merilees was concerned that the proposed alignment of Road 3 within the RE1 land results in the use of extensive retaining walls, rather than batters, as well as traffic barriers and pedestrian fencing. The suspended footpath over the road reserve (to protect Tree 48 and because works are precluded from the ENV area) would cause unacceptable maintenance costs and risks to the Council. This would be alleviated with relocation of the road outside of the RE1 land.
Further, the designs had not shown a suitable road transition to Bella Parade nor had they accounted for a required radius for the bend at a 60km/hr design speed.
Mr Yee elaborated on the concerns of the Council, being that the suspended footpath would create an undercroft area which would encourage anti-social behaviour as well as a road safety hazard requiring a traffic barrier to prevent vehicles travelling on the suspended footpath. These works would also affect the visual amenity and accessibility of the RE1 land.
The shared path the applicant is being asked to provide would not be a path to nowhere as it could link in with the east-west cycle shared path being provided on Road 2 (Boolavogue Road) and, in the future, connect with a similar path to the south and shared paths developed in the RE1 land.
Ms Spence accepted that there had been no detailed planning or design of uses within the RE1 zone. However, she argued that this work was in the process of being undertaken and the Council had a very clear understanding of what the land would accommodate including a corridor park, playground, cycleways and landscaping outside the ENV areas. She was critical that the infrastructure proposed as part of Road 3 was more akin to works in a civic plaza than a riparian corridor park in a suburban area.
Ms Spence was particularly concerned with the elevation of the path. Whilst accepting that it needed to be elevated to protect Tree 48 under the current design, she believed that a path could be designed around this constraint if the 4.5m encroachment of the road into the RE1 land did not exist and did not result in significant structures being developed close to ENV. The Council envisaged the public using level paths in a landscaped setting not adjacent to roads where safety for users could be compromised. Handrail, walls and steps also did not provide all ability access.
Further, providing the road in the RE1 zone would result in a loss of some 371.7m² of RE1 land to the community for the benefit of the applicant. The Council's Contributions Plan did not envisage a loss of public open space which could not be supported given the anticipated future demand for this space.
She also disagreed that there was no basis for the zone boundary, stating it was in response to the natural features by providing sufficient land to enable public access north-south along the edge of the RE1 land whilst avoiding the ENV. She also did not accept that the ILP showed roads encroaching into the RE1 zone. In any event it was an indicative plan only.
Ms Betts argued that a road in the RE1 zone for a residential subdivision did not meet the objectives of the RE1 zone nor was it a suitable use in the zone. Locating the road outside the RE1 zone would provide for more opportunity to protect and enhance the natural environment with a wider buffer to the ENV and would still allow for future access to the RE1 land.

The temporary turning circles

The Council advised that turning circles are required for interim roads under the Engineering Guide and their provision was imposed as a standard condition of consent for such roads. Hammer heads were not acceptable.
The Council was concerned that an inadequate temporary truck turning circle was provided at the southern end of proposed Road 3, being not at the end of that road.
Further, whilst temporary turning circles for the other two temporarily 'dead end' roads, being proposed Roads 1 and 4, were in a satisfactory location adjoining the southern boundary, they were not necessarily to a satisfactory design.
The turning circles need to be designed at a physical capacity so that waste vehicles could turn and there was also no detail as to how this could be practically implemented having regard to the required barrier kerbs, footpaths, adjacent driveways and drainage paths. Some turning areas would be over suspended slabs and these raised a number of safety and design concerns that were unresolved.
Mr Varga argued that temporary turning circles had not been required elsewhere in the Blacktown Growth Centre area. He referenced various aerial photos taken in October 2019 and included as Annexure 21 to the Expert Report (Exhibit 2) which he said demonstrated this.
However, Mr Yee argued that the Council had imposed the requirement for temporary turning circles as conditions of past consents in the area, albeit a variety of designs had been constructed and not all of them had been adequate, maintained or retained. He claimed it was a safety issue with waste trucks needing to reverse down dead-end residential streets, and that this had been an issue for the Council in the past.
Mr Galasso submitted that this practice must be occurring in locations where turning circles were not in existence, and it was a waste of money to provide them for interim roads when the development of the land to the south was likely imminent and the works would then have to be taken out. Rather, drivers should be vigilant in using such roads which, in any event, were relatively short with limited adjacent dwellings.
Whilst it was agreed that a prohibition on development of the southern lots, as is discussed later, would provide an opportunity to increase the radius of the turning circles, the Council was concerned this would not facilitate the required full bulb. Detailed designs of what was proposed still needed to be prepared and reviewed.
During oral evidence, it was agreed that the location and design of the temporary turning circles, should the Court grant consent and require them, could be addressed by conditions of consent. These conditions were subsequently agreed in the conditions filed.

The southern interface lots

There are 5 proposed lots which adjoin the common boundary with the Sydney Metro land to the south which need to be filled by up to 1.3m above the height of the Sydney Metro land as part of the subdivision. This fill will alter overland flow paths, and an appropriate drainage response is required accordingly. The 5 lots are known as proposed Lots 20, 26, 32, 38 and 43 (the southern lots).
The southern lots are therefore proposed to be retained, with overland drainage controlled by a swale or box channel at the rear of the lots pending development (ie. filling) of the Sydney Metro land. These works would impact development on the southern lots in the interim whilst they are required.
The Council sought that the southern lots not be subdivided but remain a residue lot pending development of the Sydney Metro land at which time the swale can be removed. The Council understood that Landcom had been appointed to progress the development of the Sydney Metro land which was therefore considered likely to occur in the foreseeable future.
If the 5 lots were subdivided and sold, the Council was concerned with having to deal with 5 separate owners to facilitate removal of the temporary works and refilling of the lots prior to their development with dwellings whilst piecemeal filling could have drainage impacts. The Council had experienced issues in the past in dealing with individual owners even where protected by legal instruments requiring them not to build. Mr Yee did accept that a solution may be to approve the subdivision but not allow release of the linen plan or subdivision certificate until after the land to the south was developed and the works removed.
The Council was also concerned with the discharge point from the temporary channel as the designs did not deal with the swale flows into the RE1 land, which will discharge below existing surface levels and could potentially impact ENV. This could be resolved with wider swales on proposed Lot 20.
It was agreed in oral evidence that these issues could be potentially resolved with more detailed design and appropriate conditions. However, under any scenario, the parties agreed that dwellings should not be constructed on the southern lots whilst the temporary drainage works exist. The Council's preferred position remained; that the southern lots be consolidated into a single lot linked by a vinculum across the roads until the adjoining site to the south is filled and the swale removed.
The applicant opposed this as it would require a further subdivision application to be made, arguing a better outcome would be appropriately worded conditions that allow the creation of the lots but preclude the development of the dwellings on them pending filling, to a matching level, of the Sydney Metro land and removal of the need for retention and drainage diversion.
Such a course of action would facilitate the orderly and economic development of the applicant's land, and the Sydney Metro land, being one of the objects of the EPA Act. Otherwise, the applicant is precluded from reasonably developing the site as the development timeframe of Sydney Metro is unknown.
Ultimately, the parties agreed to conditions addressing the drainage of the southern lots and permitting their subdivision as the last stage of the development, and not approving dwellings on them until the development to the south enables the removal of the temporary drainage works, should the Court grant consent on this basis.

The temporary detention basin with the RE1 land

The Council accepted that a temporary detention basin, meeting water quality objectives, was permissible in the RE1 zone and also that such a use had been approved and existed, with 2 basins in the adjoining development to the north. However, those basins were in the general vicinity of the proposed permanent regional retention facilities which will discharge into a nearby watercourse. Mr Merrilees indicated that it was for this reason that the Council had supported those basins in the RE1 land given the intent to expand the basins to the north so as to not impact on ENV to the south. That was different to the temporary basin proposed on the appeal site.
Whilst Mr Drury accepted that the temporary basin in the RE1 land was not a basis for refusal, given it was a permissible use in the zone, the Council's position was that the temporary basin should be relocated to proposed Lot 14 within the subdivision as it could be 4-5 years before regional drainage was provided in the area.
The Council's proposed conditions of consent require this relocation, with the design of a location on Lot 14, and the associated management regime, required to be resolved as a deferred commencement condition.
The applicant opposed all conditions requiring relocation of the basin.
Mr Galasso submitted that, notwithstanding the applicant had agreed to pay the required developer contributions and had entered into a Voluntary Planning Agreement for this, no detailed permanent regional drainage design had been undertaken or timeframe or locations given for these works. Accordingly, the temporary basin had to be provided. The RE1 land was still in the applicant's ownership and the basin had been redesigned to be clear of ENV. Once it was no longer required and owned by the Council, the Council could use the basin land for other appropriate RE1 uses.
Alternatively, the temporary basin could form part of a relocated location for the permanent basin linking with the existing temporary basins to the north.
Further, the temporary basin was, arguably, a permissible development, as a 'stormwater management system' that did not require consent if carried out on behalf of a public authority (in this case the Council) under clause 111 of Division 20 of State Environmental Planning Policy (Infrastructure) 2007 (the ISEPP). Consent is only required under the ISEPP if others construct the basin; clause 111A.
However, Mr Galasso advised that the applicant would accept relocation of the basin to proposed Lot 14 if the Court considered its location in the RE1 land to be unacceptable.

Findings

At the end of the hearing, the only significant issue remaining between the parties was the location of proposed Road 3 and, in particular, the 4.5m section proposed in the RE1 zoned land.
Given the circumstances, and based on the evidence, I consider that the location of Road 3 is neither a basis for refusal of the application nor inappropriate. The application is approved accordingly.
My reasons for this finding are as follows.
Whilst I accept that the road is being constructed for the purposes of serving dwellings in the adjacent subdivision, it is also a road that will provide future public access to RE1 land and the facilities envisaged for that land. It is therefore not unreasonable that a portion of the road, which predominantly comprises a shared use path being a use promoted in and serving the future use of the RE1 land, is accommodated on that land.
Further, the evidence suggested that the continuation of Road 3 in recent subdivisions to the north of the site, including batters, retaining walls and fences associated with that road, already encroach on the RE1 land. Whilst this may not be to the same extent as is proposed for Road 3, that existing road to the north (Bella Parade), does not provide any shared path or access to the RE1 land. To the contrary, fencing precludes such access.
It was also agreed that a suitable road transition from Road 3 to Bella Parade is required. Assuming a portion of Bella Parade, including its associated batters and retaining walls, is located in the RE1 land, this section of Road 3 would, by necessity, also have to be within the RE1 land.
I consider that Road 3, constructed in accordance with agreed conditions for the design of the intersection with Road 2 and the link to Bella Parade, will provide a reasonable degree of permeability and achieve the ILP vision for a continuous north-south road to the west of residential development and separating that development from the vast majority of the RE1 land.
Further, the shared path within Road 3 can likewise make a contribution to the future pedestrian and cycling connectively from north to south within the RE1 land linking to residential development to the east though a connection with the east-west path provided in Road 2.
Whilst I accept that the elevated design of the path may not be ideal, it is in response to an environmental constraint that exists in the RE1 land, being a constraint which could equally restrict the design of future paths and facilities in that portion of the RE1 zone. If the road was moved off the RE1 land, as the Council seeks, it would result in a shared path being provided, as the Council also seeks, adjoining RE1 land in which the Council envisages locating such a path in the future. There seems little logic in this outcome.
Put another way, there would seem little justification for requiring a shared path on the western side of Road 3 and a shared path in the adjacent RE1 land. What is proposed instead can serve the function of both.
The Council accepts that the alternative of permanently fencing the interface with the RE1 land along the perimeter of Road 3 is not a desirable outcome. Nor does it achieve the objectives of providing public access to the RE1 land, once that land is acquired by the Council.
Approval to the application as proposed will result in the road width specified by the DCP, albeit part of that width is accommodated on the RE1 land. This is an acceptable outcome given the dual function the road will perform of serving the subdivision now but enabling future public access to and within the RE1 land.
Further the ILP is, as the name suggests, indicative only, including in terms of road location, and the evidence was inconclusive as to whether or not Road 3 may in fact be, in part, within the RE1 zone in the ILP in any event.
I also accept Mr Mead's evidence that a redesign of the subdivision to move Road 3 east by 4.5m, to be out of the RE1 zone, would result in a loss of at least 2 lots and, therefore, 2 dwellings. The alternative suggested by Ms Betts of reducing all lot sizes to maintain the dwelling yield would result in a required relocation of proposed Roads 1 and 4 which, she accepted, would itself be inconsistent with the ILP and require modifications to it. If that change is supported by the Council, then similarly any relocation of Road 3 by 4.5m which results in a shared path within the RE1 land, is also a worthy basis to amend the ILP, were such an amendment demonstrated to be required.
Relocating Road 3 would also place it even further east of the Bella Parade alignment, which it is required to be a continuation of under the ILP, compounding the difficulty of an appropriately designed transition within the RE1 land, and further separating the path from future paths proposed within it.
Finally, the shared path component of Road 3 within the RE1 land is, in my view, consistent with the future indicative path network for this section of the RE1 land as shown in the DCP at Figure 3-3 of Schedule Four.
In approving the amended application, including the proposed width and location of Road 3, I have had regard to the objectives of the RE1 and the R3 zones, and consider the development to be consistent with those objectives.
Firstly, in terms of the applicable R3 zone objectives, the dwellings proposed in the subdivision will assist in providing for the housing needs of the community and the variety of housing sought within a medium density residential environment.
In this regard, I note that there were no design or density issues raised by the Council, in terms of the design of the dwellings, in the amended application. These dwellings all also comply with the height requirements for the site.
The development will also meet the objective of supporting the well-being of the community by enabling recreational and other activities which are compatible with the amenity of a medium density residential environment.
Secondly, in terms of the RE1 zone objectives, Road 3, and the shared path component of it in particular, will enable the RE1 land to be used in the future as public open space and for recreational purposes, and is a use compatible with providing for a range of recreational settings and activities. By locating the shared path and the road outside the ENV areas, and elevating the path, the environment is protected. By not requiring an alternative path elsewhere in the RE1 land in the vicinity, potentially closer to ENV, and by protecting Tree 48 in the path's design, the environment is also arguably enhanced, whilst pedestrian and cyclist access to the facilities envisaged in the RE1 zone is accommodated, even if the Council would prefer a different design for this access.
I also consider that the development meets the aims and relevant controls of the Area 20 Precinct Plan at clause 1.2 of Appendix 6 of the Growth Centres SEPP. These include ensuring the creation of quality environments and good design outcomes, to protect and enhance environmentally sensitive areas, to provide for recreational opportunities, and to promote pedestrian and vehicle connectivity with adjoining Precincts and localities and within the Precinct.
Under the Growth Centres SEPP, the RE1 zoned land is required to be acquired and developed by the Council for public recreation. It is the case that the Council will now not need to acquire that portion of the RE1 land on which the road and path will be constructed and dedicated as a public road. Nor will the Council incur the expense of constructing a shared pedestrian and cycle path in this location in the future.
In this regard, I agree with Mr Galasso that, in essence, the applicant is providing, in the western verge of Road 3, infrastructure on RE1 land at no cost to the Council, where the land and similar infrastructure is otherwise required to be acquired, funded and developed in the future by the Council.
This in a location where there are limited feasible options to locate a shared path as envisaged in the DCP between residential development and the ENV. As I have already indicated, it would make no sense to require a shared path as part of Road 3 now and for the Council to duplicate such a path in the adjoining RE1 land in the future.
As an alternative, the applicant offered to not provide the path at all, thus enabling a reduction in the width of Road 3 to 13.5m to reflect the design and width of Bella Parade. This would enable the road to be confined to the R3 zone, other than where it joined Bella Parade, and for the Council to determine a location for the shared path in the RE1 land in the future.
In this regard, the DCP allows road designs and widths to be varied generally, whilst Control 10 in section 3.4.1 enables verge widths to be reduced to 1m for local roads, such as Road 3, which are adjacent to public open space. However, consideration of proposals for reduced verge widths require that finished road design levels match with existing levels of the open space land, thus negating the need for any retaining walls or battering, which is not the case in this instance.
Therefore, although a reduced width arguably meets the matters for consideration in allowing a reduction in verge width (namely; in providing for public access to the open space, not impacting on existing vegetation and environmentally sensitive areas, providing public amenity and for public safety, and not necessarily impacting on the ability to provide street tree planting), this is only supported where levels match, which is not the case in this application.
Further, I accept that the Council is applying the 18m road width specified by the DCP for local roads on R3 zoned land which is consistently applied. Therefore, notwithstanding the flexibility available in the DCP itself and at s 4.15(3A) of the EPA Act to vary the width on the basis of low projected traffic volumes and the limitations on the form of development permitted on the site even with an R3 zoning, the applicant has not sought a reduction in width in the application. Nor has the Council supported this.
Given the application proposes to construct Road 3 at the width and to the design required by the DCP, I do not see a basis to reduce that width and thus remove the opportunity to provide the shared path.
In summary, in terms of Road 3, the Precinct Plan and DCP clearly envisage embellishment of the RE1 land with a range of recreational facilities and with cycle and pedestrian paths. The shared path in the RE1 land comprising the western portion of Road 3 can contribute to that network and avoid the need for duplicating the path elsewhere in the RE1 zone on more environmentally sensitive land.
The Council also accepted that, in the future, the path would likely be extended through the RE1 zone to the north to the future permanent regional basin. If that is the case, there is no reasonable argument why one aspect of such a network should have to be located outside the RE1 boundary simply because it comprises part of the subdivisional road serving an adjoining residential development. Rather, it provides opportunities for pedestrians and cyclists to access the RE1 land in the future that the continuation of the same road to the north does not provide. The location and width of Road 3 to include this path is supported accordingly and all conditions of consent requiring its relocation from the RE1 zoned land are removed accordingly.
Dealing with the other contended matters, I accept the applicant's submissions that the agreed conditions adequately and reasonably address the treatment of the 5 southern interface lots. Whilst the lots can be created, there is no approval for the dwellings proposed for these lots so they cannot be developed with dwellings whilst the temporary drainage works are required and the Sydney Metro land remains undeveloped. However, a further development application is not required to subdivide them as would be required if they remain as a residue lot. On balance, given the conditions proposed, I do not consider it necessary to require the 5 southern lots to remain as a residue lot pending the development of the Sydney Metro lots. Instead, the agreed conditions restricting the development of these lots, should I not require they remain a residue lot, are imposed.
I do, however, consider it reasonable and appropriate for the subdivision works to include temporary turning circles for the 'dead end' subdivisional roads until these roads are continued to the south.
These works may be temporary and, I accept, will be required to be removed in the future. However, it is not known how long they will be required for. In the interim, I accept the Council's evidence that, without provision of these works, unnecessary safety issues arise. Waste trucks, indeed any trucks, should not be reversing down residential roads if this can be avoided, irrespective of the length of the roads and even if this may occur in older subdivisions in the area. It is not adequate, as the applicant claims, that drivers should just be more vigilant in using such roads.
In any event, given the prohibition on dwellings being developed on the southern lots, this may reduce the impost of providing the turning circles albeit I accept that there will be some cost of doing these works for the applicant which may only be in place for a brief period of time.
This is a consequence however, of developing the site ahead of adjacent development to the south. What is proposed are standard conditions for interim incomplete subdivisional roads. Whether different conditions on earlier subdivisions have required lesser works, have not been enforced, or have not been policed in terms of the works being retained or maintained over time, there are no extenuating circumstances which justify not imposing the conditions in an endeavour to achieve safe road designs. The conditions sought by the Council requiring the turning circles, and the appropriate design of them, are imposed accordingly, noting they were agreed by the applicant should I require the turning circles to be provided.
Finally, it was agreed that the temporary detention basin land is a specifically defined permissible use in the RE1 zone. There is no environmental reason why the basin cannot be constructed in the location proposed and it is therefore also not a basis to refuse the application.
Further, when the regional drainage is constructed, and assuming that the basin is therefore no longer required, once the Council acquires the RE1 land, development can occur within or adjacent to the location of the basin to extend the shared path or remove the retaining walls and undertake adjustments as required to this shared path along Road 3 which will, by then, be a public road providing direct public access to public open space.
The proposed conditions associated with the construction of this basin, agreed by the parties should I not require its relocation to Lot 14, are imposed accordingly, and any conditions referencing the basin's relocation removed.

Orders

The orders of the Court are: 1. Leave is granted to amend the application. 2. The applicant is to pay the respondent's costs thrown away as a result of the amendments pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 as agreed or assessed. 3. The appeal is upheld. 4. Development Application DA-18-01705, for demolition of existing structures, subdivision, and construction of attached dwellings, with associated works, is approved subject to the conditions in Annexure 'A'. 5. The exhibits are returned with the exception of Exhibits A, D and R.

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: 24 March 2020

At a glance

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Judgment (11 paragraphs)

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