George v Palerang Council

JUDGMENT 1 SENIOR COMMISSIONER: 2 Modbury Street, Bungendore, is a vacant allotment of a little more than 14,400 square metres, located on the northern edge of the eastern element of Precinct 2 of the village. It is located on the corner of Turallo Terrace and Modbury Street and is generally regular in shape but has a slight extension giving it a minor L-shaped element in its south eastern corner. 2 The present proposal seeks development consent for the construction of 23 x three-bedroom single-storey detached dwellings to form a multi unit housing development that will be serviced, for vehicle access purposes, by a loop driveway with both entrances from Modbury Street. A number of dwellings, on the northern side of the allotment, will have their rear boundaries to an unmade portion of Turallo Terrace that runs between Modbury Street at the west and Mecca Lane towards the east. There is a made gravelled portion of Turallo Terrace that runs further to the north-west, along the boundaries of the houses to the west of Modbury Street. 3 There are a number of matters that I am asked to consider in these proceedings - including a number of disputes about construction of numerical controls and the like that arise out of the Development Control Plan and a number of matters of consistency or otherwise that are raised with respect to the provisions of the Yarrowlumla Local Environmental Plan 2002 (the LEP). 4 There are two development control plans that have been put before me that relate to development within the 2(v) village zone being the zone within which 2 Modbury Street is located. The first is Development Control Plan Yarrowlumla LEP 2002 2(v) Village Zone 2009 (the 2009 DCP). The 2009 DCP was adopted after this application was lodged with the council. The terms of the council's resolution that adopted that development control plan (at a council meeting held on either 7 or 14 May - not known with precision because the minutes of the council meeting refer to it being held on both dates without the page referring to which day resolutions were agreed), record a unanimous resolution of the council that the 2009 DCP would only be applied to applications received subsequent to the date of the adoption of the development control plan. 5 I am satisfied that I should pay heed to that and give, in effect, in these proceedings no weight to the 2009 DCP although Development Control Plan Yarrowlumla LEP 2002 2(v) Village Zone 2005 (the 2005 DCP) requires to be considered in a fashion consistent with the instruction given by the Court of Appeal in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 - consideration to which I will return later. 6 The first relevant provision of the LEP is that cl 16 requires that I must be satisfied that the carrying out of the proposed development is consistent with the objectives of the plan (that is the general objectives of the LEP) and the objectives of the zone within which the land is situated. 7 The objectives of the LEP that are relevant to this proposed development are contained in cl 3(b) being the objectives of the LEP for urban land; the specific one that is relevant and called up by this application is 3(b)(iii): "To provide flexibility in residential living styles and increased urban amenity for residents."

8 I propose to deal with the matter on the basis that the assumption I make to test the second element of that objective is done in light of the assumption that the proposal is entirely consistent with the first limb of that objective in all issues contained in the LEP and the 2005 DCP that are relevant to that proposition. I do so because, in my view, taking the applicant's case at its highest with respect to those matters, the applicant's case must necessarily fail on the basis of amenity - that is the inadequate and inappropriate overall amenity of the development that is proposed. 9 During the course of the evidence in response to an exploration of the matters that are contained in the council's statement of contentions relating to the internal amenity within the development, particularly with respect to design and residential amenity for the dwellings within it, the two experts who gave evidence, Mr Grayson for the applicant and Mr Fletcher for the respondent, agreed that it would be possible to have a development that yielded a development potential similar to that contained in the application but to do so in a fashion that ensured that the both the living areas and private open spaces of all the proposed dwellings would be oriented generally to the north and would thus achieve significantly improved amenity and solar access compared to that which is proposed. 10 In the present proposal, a number of proposed dwellings, on proposed Lots 12, 13, 14, 21, 22 and 23, will have as their private open spaces to the south of the dwellings - no matter how characterised (whether as private open space, as proposed by the applicant, or as service areas as put by Mr Hemmings, barrister for the council). These will still have extremely limited elements of solar access during winter. 11 The dwellings at those proposed allotments, together with dwellings proposed for proposed Lots 16, 17 and 18, will not have direct connections from the living areas within the dwellings to the private open space at the rear (although the three more recently nominated allotments will have significantly better solar access during winter due to the south facing nature of the dwellings and thus the northern orientation of the private open spaces). 12 For the proposed dwellings that are proposed for proposed Lots 1, 2, 3, 4, 16, 17 and 18, the predominant orientation of the internal living areas, setting aside their kitchen areas and having prime regard to the living rooms and the dining areas will have orientations to the south and south-west. 13 This outcome is contrary to the proposition adopted by the experts that it would be possible to design a development of similar yield that would have those living areas and the private open space areas generally oriented in a fashion consistent with the dwellings presently proposed for proposed Lots 5, 6, 7, 8, 19 and 20, together with the dwelling on proposed Lot 15 (this dwelling would have private open space to the north, at least in portion, and living areas oriented in that fashion). 14 Although to design such a development would require access from Turallo Terrace and Mr O'Gorman Hughes, barrister for the applicant, puts the proposition to me that access from Modbury Street would be consistent with the third of the zone objectives of the 2(v) village zone - that is achieving the most efficient use of existing roads and streets, I am satisfied that achieving this level of density, if it be capable of being achieved in this area of Precinct 2, is not something that should permit the sacrifice of reasonable residential amenity for a significant number of dwellings in the development simply on the basis of the efficiency of use of the surrounding streets. 15 In addition, during the course of the evidence today, I drew attention to the evidence given on site by Mr Dunstone who himself drew attention to the concerns of his neighbours who would have significant headlight impact on their dwellings from both driveways proposed in the development. 16 Mr O'Gorman Hughes put the proposition to me, not unreasonably in my view, that if that were a basis in itself for refusal of the proposal, his client should be afforded the opportunity of redesigning the proposal consistent with what I have described as the amber light approach adopted by the Court in such matters in seeking the best community outcome for such development proposals. 17 I agree that if that were the sole amenity defect it would be appropriate to express a concern and give the applicant the opportunity to address that matter, although I do note that - as Mr Hemmings took me to - the supplementary statement of evidence of Mr Grayson dated 25 May 2010 was intended to address the objection raised by the objectors and that it made no mention of the objection raised by Mr Lloyd and Mr Walton who are the residents of 9 Modbury Street who, in a letter of 27 February 2010 expressly said the internal road is directly opposite existing residence resulting in car headlights shining into bedrooms and living rooms being an unacceptable impact on existing neighbouring properties. 18 However, the requirement for improvement in amenity is not only contained in the objective to which I have referred, but it is also contained in the 2005 DCP at a number of locations being: o at 1.6(a) in the fourth dot point, "To maintain and provide for greater residential amenity in the community"; and o in the objectives for multi unit housing, "To ensure that an appropriate standard of amenity and environment is maintained for the occupants of individual buildings and those adjacent". 19 It is my view that on no consideration of the amenity issue can the applicant succeed on these tests with respect to these dwellings including the impact on the neighbours opposite. 20 However, for completeness, I should turn to the provisions of cl 21 of the LEP that deal with the matters to be dealt with when considering whether to grant subdivision within the zone 2(v) village zone under the LEP. I set aside, for the purposes of this discussion, the question of area calculation and the like. I accept Mr O'Gorman Hughes' submission that, in this regard, I should consider that consistency requires, at its highest, compatibility and I accept that, with respect to existing density, it would be reasonable to assume that compatibility or consistency permits an increase in density compared to that which presently exists in the nearby area. 21 For the purposes of this discussion, I also adopt, taking the applicant's position again at its highest, the area identified by Mr Grayson as being the area for the purposes of cl 21(a) of the LEP, that being, effectively, the dwellings fronting Gibraltar Street between Duralla Street and Mecca Lane and the area of Modbury Street to the north of the Gibraltar Street. 22 I drove that area at the request of the parties after the site inspection. It was clear to me that, in general terms, that development had single houses on single allotments that, again in general terms, fronted or broadly fronted the street to which their allotments were oriented. That, in my view, cannot be said of this proposal but is an element that is capable of being provided - consistently with the evidence given by Mr Grayson and Mr Fletcher - if there were to be access from Turallo Terrace (if it were to be constructed to the east of Modbury Street). 23 I am also satisfied that, despite Mr Fletcher's criticism of the landscaping, the landscaping that would be proposed in a more dense development on this site, as is the case with the present proposed development, could make a positive contribution to the landscape due to the entire absence of vegetation (above about ankle high) on the present site. 24 The major defect, in my view, with respect to compliance with cl 21 of the LEP is consistency with nearby development and the absence of having dwellings present themselves to Modbury Street. If the issues associated with the dwelling at 9 Modbury Street, being adversely impacted by headlights from both elements of the driveway, were to be addressed by reorienting the driveway so as to create a greater gunbarrel effect for the dwellings within the site, no matter how it was landscaped that, in my view, would only exacerbate the failure to comply with consistency with the nearby development pattern. 25 In this regard, I note that the decision of Brown C and Pearson C in GHD Pty Limited v Palerang Council [2009] NSWLEC 1342 refused a development proposal for the northern side of Turallo Terrace including that area in the vicinity of the site. It did so in a fashion that indicated that there were many substantial hurdles that would require to be overcome if that site were to be developed for residential purposes, primarily because of flooding issues. 26 Those issues do not confront the construction of the element of Turallo Terrace, itself - that element being an unmade street generally at grade with the site. There is no reason why a further development could not be proposed that was accessed from Turallo Terrace and which had dwellings present themselves (appropriately and consistent with nearby development fronting Modbury Street) on the site at perhaps some greater density than would be the case if it were developed in the same fashion as that in the surrounding area. That, however, is a matter that would need to await a development application that incorporated good urban design and appropriate residential amenity for those who were to live in it. 27 The consequence of all the foregoing is that the orders of the Court are: 1. The appeal is dismissed; 2. Development application DEV.2007.0248 is determined by the refusal of the development consent; and 3. The exhibits, other than Exhibits 4 and G, are returned.

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Judgment (11 paragraphs)

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Cases Cited (3)

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