Findings
50I must consider the application on the basis of the current planning controls and those controls permit the density of development as proposed. The council raises no objection to the design of the development and agrees that it is consistent with the aims and objectives of the LEP, the zone objectives and the DCP controls or, in the case of the DCP, where strict compliance is not achieved, that the variations are reasonable.
51I have regard to BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399 where, at paras 117-118, McClellan CJ says
117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
52The zoning must be the primary consideration in this case. The site is zoned for high density housing and therefore there is an expectation that it can be developed for that purposes provided the relevant planning controls are met. In this case the council agrees that all of the relevant LEP controls are satisfied and accordingly, great weight can be given to that fact.
53I have no evidence that the LEP was not properly made nor do I have evidence that the zoning of the land will change as a result of the recently announced review. The parties agreed that the review could result in a range of scenarios ranging from back zoning the precinct to increasing the density of residential development and could include maintaining the status quo.
54The council's contention in this case is focussed on the ultimate development densities within the precinct and the ability of residents to safely evacuate in the event of a bushfire. At the present time, there is no evidence that the road network is inadequate to cope with an evacuation should a fire occur. I heard evidence from residents who had lived in the area during the 1994 fire in Batten Reserve however, whilst delays were experienced and access by emergency vehicles was hampered at one intersection, I have no quantifiable evidence that any person choosing to leave the site will not be able to do so in a safe manner.
55The bushfire experts agree that the building is located so that it will not be impacted by flames and has been designed to withstand ember attack. They say that it would be safe to stay in the building in a fire and that this is different from the existing houses in the precinct, which would not be as safe.
56The application includes a draft bushfire emergency management plan for the site and that would be used to educate residents within the proposed development of the options available in a bushfire emergency. The plan encourages residents to stay inside the building with all doors and windows closed. Mr Swain accepted that the behaviour of people in an emergency can be irrational however is of the view that people can and will stay within the building. For this reason, I am satisfied that whilst the R4 zoning of the precinct has the potential to increase the number of residents living within the area, there would not be a need for all of those persons to evacuate in the event of a bushfire.
57In determining the application, I am bound by the provisions of s79C(b) of the Act, to consider the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. Mr Seton, for the council, argues that this extends to me considering the impacts of the development when the whole of the precinct is developed for high-density housing.
58I accept that s79C is not an exhaustive list of considerations when determining a development application and that it does not limit me in considering other matters which are relevant to the application. In Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321, Preston CJ says:
55..... the obligation on the Commissioner was to determine the particular development application before the Court. The task involved assessing the impacts of the development proposed on the environment existing at the time of determination of the application. As noted, no work to reconstruct Governor's Road had been carried out pursuant to the 1995 consent. Hence, the vegetation in Governor's Road remained untouched. Consideration of the impact of the roadworks proposed in the current development application before the Court required the Commissioner to consider the existing vegetation in Governor's Road and the impacts that carrying out the roadworks would have on this existing vegetation. This task was in fact undertaken by the Commissioner.
59Based on the evidence available to me, I am satisfied that the proposed development is consistent with the council's planning controls and will not have any adverse impacts on the natural or built environment or any adverse social and economic impacts on the locality. It is possible that, at some stage in the future, the density of development within the locality may reach a point when it is necessary to carry out works, particularly to roads within the precinct and perhaps to intersections and roads outside the precinct to ensure that a bushfire emergency can be satisfactorily addressed. I do not have any evidence as to if and when this threshold would be reached. I certainly do not have evidence that if consent is granted to the application, the road network is inadequate.
60It is apparent from the evidence available that it is desirable to carry out interim works as development occurs. Consideration to the implementation of No Stopping zones adjacent to high-density development as it occurs could be an interim measure that would allow for passing bays to be in place in those streets that are below the 8m width until those roads are widened. Limiting the restrictions to new developments would not impact on the amenity of existing residents or change their ability to park outside their property and would be an appropriate short term planning outcome. I note that the experts agree that the total parking demands for the proposed development are provided for on site.
61Mindarie Street is not one of the roads recommended to be widened in the Urbanhorizons report however, the experts agree that it would be desirable for the width of the carriageway to be increased over time. It is a matter for the council to determine the extent of works that will be required as redevelopment occurs and this is one matter that the recently announced review of the precinct should address. As the council has not prepared a s94 plan for the precinct, it is not possible to impose a condition of consent requiring payment of a contribution towards the cost of that roadwork however, it was agreed that a condition requiring payment of the costs of the work could be imposed. It was agreed during the hearing, that should the Court consent to the application, it would be appropriate to resolve the appropriate consent conditions to address this issue and the separate and distinct issue of waste management that was not agreed between the parties. This was because there were no experts available to discuss the conditions regarding waste management proposed by the council and it had not been a contention until the conditions were known. Other more general conditions have been agreed.
62Subject to compliance with the above conditions and the other conditions recommended by the RFS in relation to construction standards, the evidence available allows me to conclude that it would be safe to remain within the development in the event of a fire and therefore evacuation would not be necessary. In addition, I am satisfied that the application would satisfy the requirements of s79BA of the Act and that the existing road network is satisfactory to allow safe evacuation of the development in the event of a bushfire should residents choose to evacuate.
63It is apparent that the council will need to plan for the development of the precinct in accordance with it current zoning and ensure that similar interim measures to those suggested in this judgment for roadworks and widening are implemented as redevelopment occurs. The preparation of a s94 plan is one way to address the scope and extent of works ultimately required and provides for the payment of those works by persons carrying out the development that creates the demand for that infrastructure.