Findings
46The changes made to the application during the hearing addressed the threshold issue of permissibility and therefore, the main issues that remain are whether the size of the allotments is appropriate for future residential development with satisfactory amenity, consistent with the planning controls and the whether the extent of excavation is appropriate. In addition, the issue of whether satisfactory arrangements have been made for the provision of water and sewer was the subject of legal submissions.
47The LEP and DCP must be the focus of the assessment of the application and in particular the objectives of the controls where there are no specific provisions that address community title development.
48The R1 zone is one of only two residential zones in the whole of the Muswellbrook local government area to which the LEP applies, the other being an R5 Large Lot Residential Zone. Accordingly, the zone permits a wide range of residential uses as follows: Attached dwellings; Bed and breakfast accommodation; Boarding houses; Dual occupancies; Dwelling houses; Group homes; Hostels; Multi dwelling housing; Residential flat buildings; Secondary dwellings; Semi-detached dwellings; Seniors housing and Shop top housing.
49In addition, a range of non-residential uses are also permitted with consent, consistent with the objectives of the zone. Those objectives particularly relevant to the application are the first two that provide for the housing needs of the community and for a variety of housing types and densities. The development standard for a minimum allotment size of 600sqm applies to all of the land zone R1 in the Muswellbrook town and accordingly, to achieve these objectives, there must be forms of development that are different to single dwelling houses on allotments of 600sqm. These can take the form of multi dwelling housing, residential flat buildings and the like or, in the case of this application, community title development. Because of clause 4.1(4), the 600sqm development standard does not apply to the subdivision of individual lots in a community title scheme. Accordingly, allotments can be smaller if the proposal merits consent.
50The DCP provides controls for subdivision and for residential development. When considered together, land can be subdivided into lots of size and shape consistent with the provisions of clause 5.5.6. The objectives of those controls are:
a) Lots have an appropriate area and dimensions for the siting and construction of a dwelling and ancillary out buildings, the provision of private out door space and convenient vehicle access and parking.
b) To provide usable areas, lot sizes are increased where sites are steep or contain significant landscape features including water courses and easements.
c) Lot sizes and dimensions enable dwellings to be sited to:
· Protect natural and cultural features;
· Acknowledge site constraints including soil erosion and bush fire risk; and
· Retain special features such as trees and views.
d) Lot sizes shall meet with the projected requirements of people with different housing needs and provide housing diversity and choice.
e) Lot sizes and configurations are to be varied to provide a mix of allotment types which create pleasant streetscapes and encourage a variety of housing types.
f) Lots are to be configured to account for significant natural landscape elements or utility constraints and be designed to minimise environmental impact.
51The DCP controls require lots with a minimum width of 18m at the building line however provision for consideration of a lesser dimension is made but only as part of an integrated housing development. The application does not propose the construction of dwellings so it is not an integrated housing development. Other controls require lots to be designed to allow the construction of a dwelling with a maximum cut or fill of 1 metre from the natural ground level and to be able to accommodate a building envelope of 200m2 with a minimum dimension of 10 metres.
52The lots have been designed to allow dwelling construction using slab on ground and therefore, minimal change to the benched site would be required at the time the dwelling was constructed. All earthworks would be undertaken during the subdivision stage.
53The site view provided evidence of how this control had been implemented to date and relied on stepped retaining walls to the sides of dwellings to achieve a level building platform. Despite the slope of individual sites, there was very little evidence of dwellings being constructed utilising pier and beam construction. The majority of sites were slab on ground. The retaining walls had either been constructed by the builder as part of the site works or in more recent stages, by the developer at subdivision stage. The majority of retaining walls were concrete blocks however the most recent stages, Stages 14 and 15 utilise log walls, some up to 3m in height. There is controversy between the parties whether the retaining walls were approved as part of the Construction Certificate issued by the council (Exhibit J). The validity of the certificate does not require my consideration.
54The applicant's indicative dwelling plans for the test precinct demonstrate that a dwelling, similar to those observed throughout the Estate during the site view, can be constructed on the proposed allotments. The difference that would be apparent is the separation between dwellings and the vertical rather than stepped retaining walls. These plans demonstrate that there is area available to accommodate a 200sqm footprint and reasonable and usable open space and that the lots are designed so that no additional cut or fill would be required to construct a dwelling house. Mr Robertshaw's evidence is that the dwellings can be designed to achieve acceptable external and internal amenity and Mr Kennan accepted that this could occur with proper planning.
55Having regard to the evidence, I am satisfied that the objectives of the DCP controls are met, despite the minimum frontage control not being achieved for the majority of the lots. Whilst there will be considerable excavation of the steeper allotments, it is apparent that the economic use of the land will result in benching of the land at a future time if it is not undertaken at subdivision stage. The experts agree the community title subdivision has the advantage of regulating and monitoring the retaining walls and built form and I am satisfied that the draft community management plan will result in an acceptable urban design outcome if implemented in accordance with that plan.
56The contention that relates to the density of the development does not concern the lot yield nor the anticipated population density but rather the closeness of dwellings that would result from the lot width that are less than the 18m required by the DCP. I do not consider that the 18m width will guarantee that dwellings are separated from the neighbouring properties. Whilst it was evident that this has occurred to the north of the site where stepped retaining walls were used, there are instances where dwellings have been constructed to within 900mm of the boundary in accordance with the deemed to satisfy provisions of the Building Code of Australia. The council's LEP contemplates a range of housing types and therefore density of built form and the application is consistent with those provisions. I do not consider that the density of the development would be out of character with the locality. Area is available on each allotment for a dwelling footprint of 200sqm and therefore, the style of housing is most likely to be similar to that being constructed in earlier stages of the subdivision and is controlled through the CMS.
57The resultant built form is not likely to present any differently from that of the existing development when viewed from the New England Highway except for the likelihood that the dominant green fencing that is currently highly visible in Stage 13 may be less obvious once the proposed development is completed. This is because of the orientation of the proposed roads and the likely proximity of built form to the fencing. The landscaping proposed under the CMS will further ameliorate any massing so that the visual impact would be acceptable.
58Having regard to the objectives of the R1 zone and the planning controls, I am satisfied that the proposed community title subdivision is consistent with those objectives and provides a variety of housing types and densities.
59Consideration of the council's strategic planning documents and the adopted masterplan indicate that adequate provision is made for pedestrian and cycleways, consistent with those documents. I do not consider that it is necessary to provide for a bus loop within the development for the short period of time until the sites in the south-eastern portion are serviced by a bus route. The number of allotments is small and appropriate linkages are provided.
60The Masterplan (Exhibit 5) does not provide any road linkages to the sought through Stages 16-18 and accordingly, the additional linkage proposed by Mr Higgins does not accord to the adopted plan and is not required.
61The engineers' evidence is that, subject to the agreed conditions, appropriate arrangements can be made for the disposal of stormwater drainage, consistent with the objectives and controls contained in the DCP.
62Mr Seton, for the council, submits that the provisions of clause 7.4 are not met because the applicant has not entered into any arrangement with the council in relation to the provision of water or sewer services. Mr Staunton, for the applicant, submits that these services are available, have sufficient capacity and can be extended into the site. Mr Higgins' evidence is that the provision of these services can be conditioned and this is the usual practice of the council rather than formal agreements are entered into prior to consent being granted. In addition, the provision of the booster pumps and local high-pressure zone will address existing issues on adjoining land.
63Clause 7.5 of the LEP follows the Standard Instrument (Local Environmental Plans) Order 2006 and the clause prescribed in the Standard Instrument-Principal Local Environmental Plan. This clause relates to the provision of services to the site however is in a different form to that considered by the Court of Appeal in Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399. In that case, the Court was considered a clause that required satisfaction "that prior (emphasis added) adequate arrangements have been made for the provision of sewerage, drainage and water services to the land." The word prior is not included in the LEP clause.
64For these reasons and having regard to the evidence, I am satisfied that the necessary water and sewerage services are available to the site. The consent will authorise Stages 1A and 1B only and the services are available to the lots to be excised in that subdivision. Through the conditions agreed between the parties, arrangements will be entered into to extend those services to the individual allotments within the community title subdivision, in accordance with the council's standard practice, as part of the development application for Stage 2 works.
65Because of the extent of changes that arose from the amendments made to the application, agreed conditions were not available at the conclusion of the hearing and were filed on 15 July 2014. Those conditions reflect the agreed positions of the experts.