George v Palerang Council

CASES CITED: BGP v Lake Macquarie City Council Zhang v Canterbury City Council [2001] NSWCA 167

DATES OF HEARING: 13 May 2009 and 15 May 2009

APPLICANT Mr O'Gorman-Hughes (barrister)

LEGAL REPRESENTATIVES: RESPONDENT Mr Bradbury (solicitor) SOLICITOR Minter Ellison

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11227 of 2008 Arthur George v Palerang Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1975 against Palerang Council's refusal of a development application for an amended proposal of six villa homes each containing three-bedrooms on an allotment of land known as 106 Gibraltar Street, Bungendore.

2 The subject lot is an L-shaped allotment of some 3,840 square metres. The terrain is very flat. The DA was lodged with the council and the applicant then sought an amendment to the plan that the Court granted leave to and the proposal was reduced from seven villa homes to six villa homes.

3 The issues in the proceedings have been narrowed from the first occasion when the Court met onsite with the parties. By way of background, this commenced as a s 34 conciliation conference and an extensive view of the surrounding area and the subject site was taken. The parties then resumed to the council chambers and there was discussion concerning the issues in the proceedings. As a result, a number of issues originally raised are no longer pressed by the council, in particular the fundamental issue of the capacity to service the land in terms of the water storage/ supply of the town for Bungendore.

4 The Court has the benefit of hearing expert evidence from council's Director of Planning and Environmental Services, Ms Louise Menday, and also the evidence from Mr Grayson, a consultant town planner, on behalf of the applicant. The experts conferred, prepared a joint report and provided advice to the Court in the form of concurrent evidence.

5 The respondent advised at the beginning of the proceedings when we resumed in Yass Court House the issues that were no longer pressed by the council. Issue one is no longer pressed. Issue two is pressed, that is the proposed development represents an overdevelopment of the site and would result in poor residential amenity for occupants of the development and a number of particulars were provided. Issue three ithe proposal is contrary to cl 21 of the LEP in terms of the existing character having regard to the existing density, landscape and nearby development. Issue four, the site is not suitable for the proposed development having regard to the distance of the site from the town centre.

6 The site is approximately 1.5 kilometres from the centre of Bungendore and, as such, it is not within the designated 400 metre area considered by the council as appropriate locations for medium density multi-unit development. Issues five, six, seven and eight are no longer pressed by the council. As such, the issues have a relatively narrow focus but ones that the council presses in terms of the proposed development not being in character with the area and the fact that it is not within the 400 metres.

7 I shall go briefly through the planning controls. The subject site is zoned 2(v), that is village, under the Yarralumla Local Environmental Plan 2002. The objectives of the 2(v) zone are: (a) To set aside areas in which a range of residential accommodation and urban facilities can be provided for the rural community. b) To recognise the natural and physical features of each village and prevent development in unsuitable areas such as flood prone land. c) To control village development so as to achieve the most efficient use of existing utility services such as water supply, sewerage, roads and streets. 8 The development control table is one that provides for development that can be carried out without consent, development requiring consent and prohibited development. For the 2(v) village zone, the residential development that is permissible includes dual occupancies, dwelling houses and residential flat buildings. It is noted that the village zone is a very broad zone and allows for many forms of development with consent.

9 The LEP also has a provision, cl 21 and there is no dispute that cl 21 applies to the subject proposal because strata title is also sought for the development. Clause 21 must be considered before consent is granted to subdivision in the village zone and consent must not be granted to a subdivision of land within 2(v) unless the consent authority is satisfied: a) That the subdivision is consistent with the character of the area in which it is proposed having regard to existing density, landscape and nearby development. b) That the subdivision does not take in unsuitable areas such as flood-prone land. c) That the development achieves the most efficient use of existing utility services. d) That where connection of a proposed allotment to sewer is not possible, onsite effluent disposal. Not relevant in the subject application. 10 The engineers provided a joint expert report to the Court, and the issues of stormwater and connection are no longer in issue in the proceedings and further details have been provided..

11 The LEP provides for a minimum allotment size of 450 square metres for a dwelling house. The development control plan that is relevant to the proceedings is the Yarralumla Development Control Plan 2(v) village and in this regard the council has provided the new DCP that was amended as of May 2009 and also the development control plan in operation at the time that the development application was submitted to the council.

12 By way of background; in its resolution for the May 2009 DCP when council adopted the amendments it resolved that this DCP be applied only to applications received subsequent to the date of the adoption of the DCP.

13 The DCPs are very similar in terms of the controls and Ms Menday provided a summary of the changes. In terms of the 15,000 square metre required for a medium density multi-unit development, this has been removed from the new DCP and similarly the 350 metres per dwelling unit has also been deleted as has the 60 persons per hectare. The new development control plan, however, does require a site analysis and refers to preferred and possible uses. There was a great deal of focus during the proceedings on the fact that the new DCP has a provision which restricts the residential development of multi-unit and medium density to an area 400 metres around the township.

14 The relevant controls that the Court must take into consideration, many of these were not issues during the proceedings but I must have a holistic regard to the provisions of the development control plan. The May 2009 DCP states that residential development objectives are to establish development standards to allow for a variety of dwelling types while maintaining and enhancing existing village character to define areas where multi-unit and medium density housing is appropriate and to establish design and density controls. In terms of subdivision, the objectives are to establish guidelines for the subdivision of existing allotments within the villages and to provide for a range of allotment sizes while maintaining and enhancing existing village character.

15 It should be noted that not all uses permissible in the village zone would be appropriate on all parts of the land covered by the DCP and all applications are considered on their merits. The DCP states 'mere compliance, with numerical standards does not guarantee consent and the council will have regard to the impact of the development on the locality and the requirements of the LEP and this DCP as well as residents' views'.

16 In terms of the land use provisions for residential, the objectives are once again similar: (a) To preserve and enhance residential amenity and character of the precinct and to provide a range of housing types. 17 The DCP includes a map to show residential and preferred land uses are dwelling houses. Other possible uses as described in the DCP are dual occupancies, multi-unit and medium density housing within the area indicated on figure 2. Figure 2 shows an area of approximately 400 metres around the town centre for the location of medium density development.

18 Part 4 of the DCP contains provisions for medium density and multi-unit. Medium density development means development that will result in the erection of a dwelling house on an allotment of land having an area of less than 650 metres square but not less than 450 and may include subdivision to include such an allotment. Multi-unit housing means development for the erection of more than two dwellings on an allotment and includes housing forms commonly known as residential flat buildings.

19 As I stated, council is desirous that medium density be located within walking distance of the commercial core of the town. The minimum street frontage is 25 metres for a medium density development. The proposal is 41 metres. Site coverage should not exceed 33%. The proposed development is 26.2%.

20 In terms of building form./building height / size and bulk…The external appearance generally should be in keeping with that of neighbouring properties and gun-barrel style development with internal access ways that serve more than two dwellings must not continue in a straight line for more than 30 metres. There are requirements for private open space of at least 50 square metres per unit. The proposal meets this for each of the units. In terms of subdivision, if a multi-unit housing development is to be subdivided, including strata subdivision, the subdivision requirements of the LEP must be met. That is cl 21 and 22.

21 Adaptable housing is a requirement in terms of the DCP for at least 50% of the dwelling units and the garbage store, suitably constructed garbage bin receptacle provided in all multi-unit housing developments to be positioned to afford ready access for both residents and garbage collectors. Landscape area provisions include that development should maintain significant existing trees as far as practicable and replacement planting should also be proposed. The DCP contains provisions in terms of building height of a maximum of 5.5. The proposed development is single storey and it satisfies that numeric requirement.

22 In terms of streetscape, the DCP has a specific provision at 10.9. The proposed building should sit comfortably within the existing streetscape of the village, the character and scale of residential and other development within the vicinity. Provisions for landscaping include the planting of native vegetation, especially that which is indigenous to the area is encouraged. Gardens requiring no water other than rainwater are strongly encouraged. For the planting of trees, there is a requirement that they should not be closer than 3 metres to a building. For rainwater tanks each unit of three bedrooms or more it is to provide for 22.5 kilolitres storage.

23 The above provisions of the May 2009 DCP as I stated, are similar to the July 2005 DCP. I note that council made a specific resolution that developments be considered in terms of the previous or as if the new DCP had not been made. The Court, in terms of authorities that were referred to it, has had regard to the new provisions of the development control plan and it is a matter for the decision-maker as to the weight that one would place on the new provisions of the development control plan. The development control plan is a DCP in terms of s 79C, it is not a planning instrument as such. The Court must have regard to any environmental planning instrument, any draft planning instrument and any development control plan under s79C. 24 The issue of compliance is not contested and, as stated in council's development control plan, it is simplistic to have regard to purely a numeric check list and that a merits consideration provides a more sophisticated assessment of developments.

25 During the course of the proceedings, as I stated, the development has been amended to provide for six three-bedroom units as opposed to seven villas, and the configuration of the development is such that unit one is set back some 17 metres from the street alignment while unit number 6 on the eastern side of the driveway is set back commensurate with setbacks in the street of some 7 metres.

26 The Court in its assessment has considered council's new development control plan as a relevant matter as this provides for council's future direction and is the public interest that I take it into account. At the same the DCP in force as required by council in its resolution, that is the previous DCP time I must also have regard to. Clearly also the provisions of the Environmental Planning and Assessment Act 1975 s 79 and the provisions of the LEP are relevant matters.

27 Council is quite aware that the provision requiring multi-unit development within 400 metres of the town centre cannot act as a prohibition on multi-unit development outside of the 400 metre. It is curious that the DCP refers to preferred development and possible development and what inference is taken by other uses that are permissible in the 2(v) zone is unclear. Nonetheless, it is not a prohibition and I must assess this development application on its merits. I have not given determinative weight to the 400 metre provision and I have assessed that the application is one that is satisfactory and worthy of approval having regard to all the evidence to the Court including the site inspection.

28 At the end of the proceedings, the Court is conscious of the need to ensure that development not provide for a gun-barrel appearance from the street which is contained within council's DCP and was also raised by Ms Menday. As such, the experts were asked to have regard to the driveway in terms of accommodating a curve or a kink as Ms Menday described it, such that it would be at an angle from the front boundary line for a certain distance accommodated by the generous setback to the front dwelling on the western side.

29 Ms Menday is still of the opinion that this would not overcome her concerns in terms of the character of the area and that in her opinion the character is defined by the density, that is many larger lots, and also by the spacing or as she described it gaps between dwellings helps to determine the character. In her opinion, the views of the rural hills beyond the village zone are also important as are the clumps of canopy trees seen in traditional large allotments in the front and back-yards and also the informal landscaping as opposed to the more formal landscaping proposed in the development.

30 Mr Grayson, on the other hand, informed the Court that his views are that the two-storey dwellings on blocks that can be seen in the area would block views to the rural hills, this is not on the edge of the village zone, and that there is further land zoned for village purposes behind the subject land that would also be developed in the future for housing. As such it does not present as a zone interface. He is of the opinion that it satisfies council's requirements in terms of providing for greater housing choice and the density of the development is below the density permissible by council's controls or as envisaged by council's controls.

31 In terms of the configuration of lots within the street, I have carried out a further analysis in terms of Exhibit 17 that was provided to the Court on the size of allotments in the vicinity of the area or within the village of Bungendore. The subject site is approximately twice the width, forty-one metres of the blocks to the west of the subject site which go through to the corner. These blocks that adjoin to the west are in the vicinity of 1000 to 1200 square metres.

32 The Court notes that the allotment opposite the subject site is a large allotment of some 1800 square metres with a similar width to the subject site. There are also an assortment of allotment sizes within this block. There are 1700 square metre blocks and then further to the east there are a number of lots between 750 and 830 square metres. 33 In terms of the streetscape, I have also had regard to the aerial photograph. There was a coloured aerial photograph contained in council's assessment report which has assisted me in looking at the placement of dwellings or the siting of dwellings in the streetscape and whether in fact the proposed development would be out of character.

34 The width of the dwelling on the eastern side of the proposed development, that is the one closer to the street, has a street frontage and addresses the street a change contained in the submitted amended plans. As I stated, the dwelling to the west of the driveway is set back some seventeen metres.

35 When one looks at the aerial photographs which were also contained within the plans as well, one can see that there is not only a variety of dwelling types but a variety of the siting of dwellings on the sites. For example, the dwelling all but one to the west of the subject site is at a rather obscure angle. The other dwellings to the east of the subject site all have a relatively similar setback to the proposed dwelling on the subject site on the western side of the driveway. The dwelling house to the east of the subject site has a smaller setback than that proposed in the development application or similar to that proposed in the development application for unit number six.

36 In terms of the size of the villas proposed, these will not be out of character with what one sees in the streetscape and the streetscape is made up as stated of an eclectic mix of dwellings built over many years and in various condition. The streetscape can also be seen to have some vegetation and trees. The land was originally cleared for no doubt pastoral purposes originally and there have been plantings of cypress. There are also some eucalypts. It is proposed that two of the trees within the front setback areas be retained in the proposal, that is the eucalypt on the eastern side of the site and the cypress on the western side of the frontage. 37 The landscape plan does provide for a number of replacement plantings, however, the replacement plantings would not appear to be entirely consistent with council's development control plan in terms of encouraging indigenous native species, in particular eucalypts. It is noted that there is a large eucalypt proposed at the rear of the site near the visitor car parking spaces and that will provide for a canopy tree in the backyard as well as other plantings. It is noted, however, along the frontage, apart from the eucalypt that is currently existing which is some nine metres in height, that there is an absence of other native plantings and the landscape plans should be amended, especially with the reconfiguration of the driveway to provide for an angled entrance to the development. This provides an opportunity for a significant eucalypt towards what was the middle of the driveway area previously.

38 The Court has the opportunity and, like many applications that come before the Court, there is fine tuning of development applications. The general form, that is the built form of the development, is not one that would be out of character with the area. Yes, it will appear as being different in terms of the area, but that is not the test. It is consistent and it would be in harmony with the character of the area when one views it from the streetscape.

39 I have considered the provisions of the LEP including the specific clause that the Court was taken to, which is 21 for subdivision, wherein consent cannot be granted unless the consent authority is satisfied that the subdivision is consistent with the character of the area … having regard to the existing density landscape and nearby development.

40 I am satisfied the proposed development will sit comfortably in terms of the existing character of the area and its presentation to the public domain, that is the street. The subdivision is not an unsuitable area of floodplain as such and in terms of objective (c) the development achieves the most efficient use of existing utility services, roads and streets and the subject site is one that is serviced and therefore suitable in terms of objective (d).

41 In terms of the existing density, the proposed development will represent a density that is more dense but it is still a relatively low density for a medium density development or a multi-unit development. Each lot is greater than 450 square metres which is the subdivision size for a separate allotment of land for residential development under the LEP.

42 For landscape quality and nearby development I am satisfied there are no adverse impacts on adjoining developments in terms of privacy, overshadowing, overlooking or any other such impacts. In terms of the landscape quality, I am satisfied that with an amendment to the landscape plan to provide for some more appropriate species in places, in particular eucalypts, that the proposal is one that will sit comfortably in the streetscape and will be consistent with the character of the area when viewed from the public domain.

43 I notice that the subdivision size, as I stated, whilst the lots in the area, are all larger than the proposed lots, nonetheless many are narrow in terms of their configuration and in terms of the rhythm of the street the proposed development in this portion will not be out of character and it warrants approval and satisfies the terms of clause 21 of the LEP.

44 Council raised clause 22; the allotment size requirements that apply to subdivision in the village zone, where it is intended to be used for the purpose of a dwelling only if the allotment has an area of 450 square metres and is sewered and the proposed development is satisfactory in terms of clause 22. 45 The Court has had regard to the various authorities referred. In terms of BGP v Lake Macquarie City Council, the judgment of the previous Chief Judge of this Court, McClellan CJ, the reference being [2004] NSWLEC 399, it is noted that the Chief Judge stated that in most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in the acceptable environmental impacts and in my assessment the proposed development is acceptable in this regard.

46 In BGP his Honour also states that there will be cases, because of the history of the zoning which may have been imposed many years ago, there is a need to evaluate the prospective development having regard to contemporary standards and it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project. I have had regard to the fact that this is general village area zoning and I do appreciate it permits a large number of uses with consent and there are no sub zones in terms of residential development. At the same time, the test in this case is that on the merits of the application in it is not out of character or an aberration and in my assessment is worthy of approval.

47 The issue also of draft plans and policies was referred to the Court in the judgment of Terrace Towers. I have had regard to the new DCP and its provisions. I have also in my assessment in terms of the weight that I have given to the new DCP, it is not an instrument, a planning instrument as such and I also must have regard to council's resolution which states that development applications submitted prior to its adoption shall not be considered under the previous DCP. 48 I am satisfied that the approval of this development will not be a precedent in terms of council's newly adopted DCP because clearly the provisions of the previous DCP must be taken into consideration. As such, I have not given the 400 metre radius determinative weight in this application and it could not be seen as a precedent because as the application was submitted prior to the adoption of the new DCP.

49 By way of comment and it is by way of comment only, clearly for greater certainty in the planning process if council is desirous of increasing densities around the town centre within 400 metres, then it would be appropriate for council to amend the LEP to make it quite clear to future applicants as to where medium density and multi-unit development is permissible within the town. I say this by way of comment only, but clearly this would provide for certainty in the planning process.

50 Clearly, where there are sub-zones, then there is a greater opportunity to provide for a clustering of development around the town centre and if council wishes to pursue this, which is a desirable urban design objective, then it is urged to do so through an amendment to its LEP as such.

51 There has been consideration given to ESD and for the development to be constructed in a way that is sustainable with water tanks et cetera. Clearly, such water tanks should be used for the maintenance of the common areas in terms of the new landscaping. There should also be a condition attached which requires replacement plantings of canopy trees. Clearly the number of Agapanthus etc is more of a personal choice and can be accommodated but development should provide the space and opportunity for replacement or new canopy trees such as eucalypts. Clearly in this area exotic and deciduous trees are also a feature and this is consistent with the established character of the area. 52 The sheets in 26 and 27 of the set of plans, as I stated, show the adjoining dwellings in terms of their placements on the sites and it can be seen from this sheet that the proposed villa development will not be inconsistent with the size of dwellings found in the locality, in particular presentation to the streetscape. All villas will be a single-storey. The building setbacks also comply with council's provisions. Sheet 27 shows a street elevation and it is noted that villa 1 will be set back some 17 metres and there is the opportunity for substantial plantings in front of this dwelling which will add to the amenity of the streetscape and the character of the area. 53 I have had regard to the authority of Zhang v Canterbury City Council [2001] NSWCA 167 in terms of providing a central focus to the DCP and I have carefully assessed the proposal against the DCP provisions, recognising that DCPs are discretionary and not mandatory.

54 The Court therefore, in its overall assessment, requires an amended landscape plan which will show the location of rain tanks as well as the reconfigured driveway, which also should be shown on an amended architectural plan. With respect to the car parking spaces, the visitor car parking spaces in the front set-back area are not a good urban design outcome in my assessment, despite this being a generous set-back, As such an additional car parking space, that is to increase the rear visitor parking spaces from two to three, is to be provided in an amended plan. This must be provided having regard to the need to provide sufficient space for the 18-metre canopy eucalypt at the rear to the west of the parking spaces. 55 The Court also requires an amended landscape plan, amended architectural plan to show the driveway rain tanks to be submitted to the council for comment. It would also seem appropriate and consistent with the Development Control Plan that a garbage receptacle area be provided. Given the 17 metre set-back, this could be landscaped and provided within that area as well. 56 Therefore, on the receipt of the amended plans, the Court is prepared to issue formal orders and the landscape plan should also provide for a greater number of endemic shrubs and trees and, as I said, canopy eucalypts consistent with the council's Development Control Plan provisions. I recognise that the landscape plan may have been prepared by a qualified landscape architect but, nonetheless, it must have regard to the provisions of council's DCP in this regard.

57 Before I go onto the formal orders I will say at this point, as I understand it there is provision to attach a condition such that the body corporate be responsible for the common areas of landscaping and to ensure that there be replacement canopy trees in the event that one may die with a similar species and that should be also considered in the conditions that are finalised.

58 The amended plans are to be filed and served and submitted to the council for comment within 7 days to 5th June 2009 together with the amended conditions. The landscaping conditions are to include one for replacement plantings which is a relative standard one these days in terms of ensuring that the trees reach a size that they are then covered by the TPO to ensure that they are replaced until they reach such size. 59 Accordingly, the formal orders of the Court on the receipt of the above information will be: 1. The appeal in respect of the property known as 106 Gibraltar Street, Bungendore, is upheld. 2. The development application submitted to Palerang Council and as amended is approved subject to the conditions as contained in annexure A, (annexure A being the amended conditions). 3. The exhibits, except for 16, G, J and M are returned to the parties.

      J S Murrell
      Commissioner of the Court
      ljr

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.