FTD Pty Ltd and anor v Muswellbrook Shire Council [2011] NSWLEC 1061 | Case summary

Land and Environment Court (NSW)|2011-03-07|Before: Mr J

Judgment 1COMMISSIONER: This appeal comes before the Court for consent orders in relation to Development Application 191/2009 for a staged residential development consisting of 42 self-contained dwellings at Lot 321 DP 11131731, Fitzgerald Ave, Muswellbrook (the site). 2The residential development consists of an aged self-care housing facility comprising 21 single storey two-bedroom dwellings and a community hall and 14 three bedroom dwellings, 32 bedroom dwellings and a single 4 bedroom dwelling. The development is to be subdivided using a combination of Torrens, Community and Strata titles. The site has an area of 2.118 ha. 3The site is zoned R1 General Residential under Muswellbrook Local Environmental Plan 2009 (LEP 2009). State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (the SEPP) is also relevant for the aged self-care housing part of the proposed development. The surrounding land has the same zoning as the site. Development in the vicinity of the site consists of residential development to the east and west and St James Primary School to the south. A listed heritage item, Skellatar House, shares the southern and western boundaries with the site. 4In considering consent orders, the Courts Practice Note - Class 1 Development Appeals , para 36, provides, that: 36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary. 5In response to para 36, the council provided a bundle of documents that included the relevant planning controls, specialist reports that accompanied the development application, reports to the council on the development application, the Heritage Impact Statement (the HIS), a peer review report dated July 2010 by Mr Garry Stanley on the HIS and additional heritage assessments by Ms Elizabeth Evans and Ms Lillian Evans. Copies of the submissions provided to the council during the assessment process and after the resolution of the council that the matter be considered as consent orders were also included. 6The matters raised by objectors, including the owner of the adjoining Skellatar House, can be summarised as: the unacceptable impact on the heritage significance of Skellatar House, the unacceptable impact of traffic on local streets, the density of the proposed development, whether the proposed development complies with the SEPP, and disposal of stormwater.

Impact on the heritage significance of Skellatar House 7The HIS was prepared by Henly Cox and addresses the heritage provisions in cl 5.0 of LEP 2009 and s 15 of Muswellbrook Shire Development Control Plan (the DCP). The HIS states that the analysis, assessment conclusions are based on The Burra Charter 1999 Australia (ICOMOS) and the requirements and guidelines published by the NSW Heritage Office. The HIS concludes, "redevelopment will not significantly alter the cultural significance of the Heritage Item in the vicinity. However, the existing curtilage context will be altered by developing lot 321". To provide some mitigation of the potential impact on the curtilage context, the HIS recommends firstly, the retention of the view corridor between proposed dwellings 16 and 17 and secondly, the boundary treatment to consist of a 1.8 m high lapped and capped fence and strategically placed plantings. 8The council commissioned an independent heritage assessment of the HIS and other heritage reports (to be funded by the applicant). Mr Garry Stanley was appointed and provided a report, dated July 2010. The report concludes, in part, that: The setting of Skellatar House has changed with surrounding land use from a homestead in large rural landscape to a house in a garden setting in suburbia. The proposed development will complete this process. The impact of the surrounding development has been reduced by the fall of the land away from the house, and the low scale single storey development. The important view corridor to the north has already been compromised. 9The report agrees with the recommendations in the HIS plus additional recommendations that will enable the impact on Skellatar House to be minimised and appreciated in its new landscape concept. These are:

the retention of the view corridor between dwelling 16 and 17, including specific fencing details,
the provision of a boundary treatment fence consisting of 1.8 m high lapped and capped unpainted fencing and strategically placed groupings of indigenous tree plantings,
rural type fencing to the view corridor and the end of the cul-de-sac between units 38 and 39,
a landscape concept plan by a heritage landscape architect, and
retention of all mature trees. 10The concerns expressed by the residents over the potential impact on the heritage significance of Skellatar House can be summarised as:
unacceptable impact on the heritage significance of Skellatar House from firstly, the view to Skellatar House as the understanding of the house will be compromised as dwellings will now back on to the southern and western boundaries and deny views of the house and secondly, the views from Skellatar House will be compromised by the proximity of fences on the common boundary and dwellings,
inadequacies and omissions in the HIS, and
inappropriate fencing material. 11While the general thrust of the resident concerns was that inadequate regard has been given to the heritage significance of Skellatar House, I am satisfied that the relevant statutory heritage provisions have been complied with and that any objection has been properly taken into account. The HIS identifies the heritage significance of Skellatar House (p 14), the requirements of LEP 2009 (p 25) and the DCP (p 26) and the NSW Heritage Office criteria (p 18-20). I do not accept that it can be reasonably argued that if the expert heritage evidence does not fully embrace the heritage concerns of the residents, then any objection has not been properly taken into account. Like any subjective assessment, like minds may differ on an appropriate outcome, although the range of expert heritage evidence was substantially in support of the application but with additional measures to minimise the impact on Skellatar House. While there are likely to the numerous options for the development of the site, and some may have a lesser impact on Skellatar House (such as the previous approval for a residential subdivision) the question that has to be answered, in this case, is whether the subject proposal is acceptable and not whether another theoretical proposal is more acceptable. 12There was no dispute that the HIS and the Stanley report indicated that there would be an impact on Skellatar House but clearly that impact was not that significant that it warranted the refusal of the development application. Rather, the reports proposed methods to minimise the impact on the heritage significance of Skellatar House. With the benefit of a site inspection and an understanding of the reports, I agree with the conclusions of both reports and the supplementary recommendations in the Stanley report, including the type of boundary fencing. In my view, a masonry or masonry/timber fencing would be unnecessarily formal given the original rural context and setting of Skellatar House.

Impact of traffic on local streets 13A Traffic Impact Statement accompanied the development application. The report provided a review of existing conditions for vehicular traffic, pedestrian and cycling movements in relation to existing local road network and an assessment of the impact of the proposed development on the local road network. The report concluded that the proposed development will result in a low number of additional daily traffic movements (2% of local network) including the morning and afternoon peak periods and consequently it is unlikely that the existing regime of the Fitzgerald Avenue local network will be adversely affected by the proposed development. 14Further support for this conclusion comes from the operation and management of the seniors living component of the development where it is proposed to utilise bus transport for residents. Overall, the review of the traffic impacts of the proposed development indicates there is ample capacity within the local road network to accept the additional traffic movements from the proposed development. 15In the absence of any other expert evidence to refute the conclusions in the Traffic Impact Statement, I accept its conclusions. Consequently, I am satisfied that the issue of traffic impact from the proposed development has been satisfactorily addressed and that any objection has been properly taken into account. The density of the proposed development 16LEP 2009 provides that the minimum subdivision lot sizes within cl 4.1 do not apply to the subdivision of individual lots in a strata plan or community titles scheme (cl 4.1(4)). It was also accepted that the proposed dwellings satisfies the 8.5 m height requirement (cl 4.3) and the maximum floor space ratio (FSR) of 0.5:1. Clause 50(b) of the SEPP provides that a consent authority must not refuse consent to a development application if the FSR of the development is 0.5:1 or less. 17Given that there are no minimum lot size requirements for strata title and community title schemes, a finding of excessive density for the residential component is not supportable. I accept that the form of development, in terms of height and FSR must be seen as appropriate given compliance with the LEP 2009 requirements. For the aged housing component of the development, the housing has an FSR of less than 0.5:1 therefore there is no power to refuse consent on the basis of density and scale. 18I am satisfied that that relevant statutory provisions have been complied with and that any objection has been properly taken into account.

Compliance with the SEPP 19The concerns in relation to compliance with the SEPP relate to accessibility, including the steepness of the site and the ability to access health facilities. An Accessibility Report accompanied the development application and addresses the requirements of the SEPP. Clause 26 provides requirements for the location and access to facilities. These requirements are proposed to be addressed through the provision of a bus service that will frequent the site and provide access to facilities identified in cl 26. A condition requiring the provision of a bus service has been prepared by the council accepted by the applicant as an appropriate means of accessing local facilities. 20The Accessibility Report also addresses the question of internal access ways, walkways and ramps and their appropriate gradients. The site has a grade of less than 1:10 and all dwellings have wheelchair access in accordance with AS 1428:1 to an adjoining public road. A similar standard of access is also provided to the community hall. Internal pathways are linked to the community transport pickup point. The report concludes that compliance is achieved with the requirements of AS 1428:1. 21I am satisfied that that relevant statutory provisions in the SEPP have been complied with and that any objection has been properly taken into account.

Stormwater 22The disposal of stormwater from the site has been addressed through the provision of a condition to the satisfaction of both parties.

Orders 23As there are no reasons why the consent order should not be made, the orders of the Court, by consent, are:

The appeal is upheld.
Development Application 191/2009 for a proposed residential development comprising of 42 self contained dwellings, 1 community hall and subdivision of Lot 321 DP 1131731 is approved subject to the conditions in Annexure A.
Each party is to bear its own costs.
The exhibits are returned with the exception of exhibits B and C. G T Brown Commissioner of the Court

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: 16 March 2011

FTD Pty Ltd and anor v Muswellbrook Shire Council

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