ORDER and MODIFICATION APPLICATION: non-compliance of development consent
deletion of undergrounding of utility services condition
village streetscape
Source
Original judgment source is linked above.
Catchwords
ORDER and MODIFICATION APPLICATION: non-compliance of development consentdeletion of undergrounding of utility services conditionvillage streetscape
Judgment (13 paragraphs)
[1]
Judgment
COMMISSIONER: This is an appeal against Order NOT0147/17 (the Order) that relates to non-compliance with condition B13 of Development Consent N0353/10/S96/3 (the Consent), issued on December 2011, by Northern Beaches Council (the Council) for Lot 2 DP 747319, known as 54 Kalang Road, Elanora Heights (hereafter the site).
In addition, and heard together with the appeal against the Order, is the deemed refusal by the Council of Modification Application, Mod2018/0114 (the MA) for the deletion of condition B13 in the Consent, made pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
The site is zoned B2 Local Centre, pursuant to the Pittwater Local Environmental Plan 2014 (PLEP 2014), and forms part of the Elanora Heights Village Centre, as defined in the Pittwater 21 Development Control Plan 2014 (P21DCP 2014).
The site is rectangular in shape with a total area of 1318 square meters (m2), with frontage of 28.6 m to Kalang Road and a 30 x 1.1 metre (m) battle-axe handle to Powderworks Road.
The electrical services, which extend across the full width of the site, include low voltage and 11,000 Kilowatts (Kv) voltage power lines, in addition to communication cables.
All electrical wires and telecommunication cables within the Elanora Heights Village Centre are currently located above ground, except adjacent to 69 Kalang Road, Elanora Heights, recently redeveloped with wires and cables 'undergrounded'.
Council have previously undertaken landscaping in the road reserve along Kalang Road, associated with planned redevelopment of the Village Centre as described in the Elanora Heights Village Centre Landscape Masterplan-North-Stage 2, P21DCP 2014 (the Masterplan).
The power poles located adjacent to the site, identified as TH11107 and TH11109, are on the northern and southern site boundary, respectively. In addition to supporting the power lines and communication cables, these poles support street lighting. TH1109 also provides street light cabling and power lines to TH1108, located in the public reserve at the pedestrian crossing, which then serves the opposite side of Kalang Road.
[2]
Background and issues
Development of the site was approved in the Consent with conditions for the demolition of existing structures and the construction of shop-top housing that comprises: six ground floor commercial shops; ten dwellings over two upper levels; and basement parking for 39 vehicles.
The Applicant on three separate occasions between 2012 and 2017 has submitted Modification Applications, pursuant to s 96 of the EP&A Act, including although not limited to, a request to delete condition B13 of the Consent. The deletion of condition B13 has been subsequently refused by Council for each MA submitted.
The appeal of the Order was commenced as a conciliation conference on 16 March 2018, pursuant to s34 the Land and Environment Court Act 1979 (Court Act), which was terminated, pursuant to s 34(4) as the contentions could not be resolved.
Subsequent to the termination of the s34 conciliation conference and prior to the hearing, the MA (Mod2018/0114) for the deletion of condition B13 of the Consent was submitted to Council, pursuant to s 4.55 of the EP&A Act. The MA was deemed refused by Council. An appeal for the MA, by request of the parties, was heard together with the appeal against the Order, as the issue in dispute, condition B13, is common ground.
Condition B13 of the Consent (N0353/10) is as follows:
All utility services including overhead power supply and communication cables located in the adjacent road verge & those to service the development are to be placed and/or relocated underground for the total frontage of the development site to any public road at the full cost to the developer.
Condition B13 seeks to ensure consistency with cl 2.16 of the P21DCP 2014 as follows:
C2.16 Undergrounding of Utility Services
Outcomes
Visual pollution by aerial cables is reduced (En, S)
Improved safety by removal of visual clutter (En, S)
Opportunities for street tree planting is enhanced (En)
Safety of building occupants is maintained and enhanced. (S)
Security of utility services is improved. (S)
Design and construction of undergrounding is funded by the developer. (Ec)
Controls
All existing and proposed utility services within the site are to be placed underground or encapsulated within the building.
All existing and proposed utility services to the site, or adjacent to the site within a public road reserve, are to be placed underground for the total frontage of the site to any public road.
Design and construction of the undergrounding of utility services is to be at full cost to the developer.
Variations
Based on technical practicalities and advice from the energy supplier the merit for not proceeding with undergrounding of utility services will be considered for the following circumstances subject to achieving the outcomes of this control:
• electricity wires carrying 16,000 volts, 33,000 volts or more, and/or
• short lengths of overheads of two spans or less.
Council seeks enforcement of condition B13 on the grounds that retention of the existing overhead utility services (electrical wires and communication cables) within and adjacent to the site would result in:
unacceptable impacts on streetscape and internal amenity due to visual pollution, safety and bulk of development, and
the landscape outcome would be inconsistent with the desired future character of Elanora Heights Village Centre.
The Council relies on cl A4.5 of P21DCP 2014 to achieve character outcomes for the Elanora Heights Village Centre, and specifically Kalang Road as follows:
Desired Character of Elanora Heights Village Centre
Elanora Heights is a small village centre with great sense of community, making it one of the great places to live in the northern beaches.
Local residents enjoy an easy-going lifestyle while shopping, dining and socializing in the lively village centre shops and cafes open onto the footpaths. The new town square on the western verge, south of St Andrews Gate, offers great choices for "breaky" or a good cup of coffee on the weekends. It offers public art and informal play opportunities for kids, and the favourite sunny spot of both young and senior residents.
Elanora Heights is a relaxed, easy-going place that has adapted gracefully over time with its improved public domain, tree-lined main street and characteristic, low scale, 3-storey built form with colourful facades and high quality architecture.
The architecture reflects the village atmosphere and coastal location. Buildings abut each other along both sides of Kalang Road. Driveways do not interrupt the pedestrian verges. The deep balconies to the upper levels create a play of light and shade on the facades. The use of natural materials enhances the facades and streetscape. The lower scale edges of the buildings to the rear of the properties and St Andrews Gate create a gentle transition to the lower scale houses.
The community centre, its adjacent open space with tall trees, shade canopies and playground space are ideal for the locals to meet and attend community events.
Lush planting and shading devices along generous footpaths give plenty of shade to pedestrians. The landscaped verges have regular seating areas that do not interrupt the flow of pedestrians past the shop fronts.
The extensive street trees give Kalang Road a dappled, leafy character emphasised by the tree planted central median.
The street frontages of the new buildings are active with well designed, fine grain shop fronts and high quality signage under the colonnade on the western verge along Kalang Road or under the awnings along the eastern verge. Together with the landscape master plan and the built form they create a holistic vision and character for the village centre.
The design principles underpinning the desired character for Elanora Heights Village Centre are:
• To enhance and activate the existing character of Kalang Road;
• To create a high quality public domain environment;
• To encourage upgrades to existing properties and shops;
• To ensure development achieves design excellence;
• To create a strong sense of place as a small scale coastal village centre;
• To extend the village centre uses and activity to the southern block on Kalang Road;
• To ensure the whole length of the village centre is active and vibrant with increased visitation to the southern block;
• To ensure the village retains a low scale fine grain character;
• To maximize opportunities for cafes and restaurants;
• To announce arrival at the village centre through architectural and landscape markers;
• To improve visibility of the existing Community Centre and children's playground to Kalang Road and the rest of the village centre; and
• To encourage greater knowledge of Kywong Reserve.
[3]
The Order
On 25 August 2017, the Council issued for the site an Order to Hussar Pty Ltd, pursuant to s 9.34 (formerly 121B) of the EP&A Act 1979, that the site was 'non-compliant with the requirements of the Development Consent N0353/10/S96/3, in that utility services, including overhead power supply and communication cables located in the adjacent road verge, have not been placed underground in accordance with Condition B13'.
Schedule 1 of the Order requires compliance as follows:
Schedule 1
1. Enter into contracts with appropriately certified contractors, Ausgrid, Optus and any other relevant person, authority, or corporation, as necessary to carry out works to comply with Condition B13 of the Development Consent N0353/10/S96/3, as set out in italics below:
B13 Matters to be incorporated into the development and maintained over the life of the development:
All utility services including overhead power supply and communication cables located in the adjacent road verge & those to service the development are to be placed and/or relocated underground for the total frontage of the development site to any public road at the full cost to the developer.
2. Provide to Northern Beaches Council a copy of all executed contracts entered into pursuant to paragraph one(1) above, within sixty (60) days from the date of this letter.
3. Duly perform all obligations under each contract entered into pursuant paragraph one (1) above within one hundred and eighty (180) days from the date of this Order.
4. An application is to be submitted to Northern Beaches under Section 138 of the Roads Act 1993 using "Application for Public Road Reserve Opening with Road Restoration Fees" Form UEA307 prior to the commencement of any works.
5. The works described by paragraph one (1) above are to be undertaken in accordance with Development Consent N0353/10/S96/3 and the Roads Act Approval issued by Northern Beaches Council.
6. The recipient of this Order is to maintain the works described in paragraph one (1) above, over the life of the development.
[4]
The Modification Application
On 12 March 2018, the Applicant, under the name of Andre Sekulic, as owner of the site and Hussar Pty Ltd, submitted to Council the MA for 'Deletion of Condition B13 of D/A N0353/10'.
[5]
Evidence
By agreement, the experts and evidence for both the appeals were heard concurrently.
The Applicant has relied on Mr Benjamin Harris and Mr Ray Fuggle for expert evidence in electrical and landscaping, respectively.
The Respondent has relied on Mr Dean Eislers and Ms Rebecca Englund for expert evidence in electrical and planning/landscaping, respectively.
[6]
The Evidence
No onsite inspection was undertaken for the hearing. In lieu of a site inspection, photographic evidence was provided on the condition of the site and the streetscape immediately surrounding the site, namely in Exhibits D, G, 5 and 11.
The parties agree that the site has been developed as a three storey building with shop-top housing on the ground floor, and residential housing on the levels above ground floor.
Also agreed, is the location of an access ramp extending from the elevated outdoor seating area with decking in the front setback, to a concrete footpath in the road reserve that extends to the curb. Within the outdoor seating area are small shrubs planted around the perimeter in planter boxes, which is bounded by a 'pool fence' style balustrade.
Due to an error in the contentions (Exhibit 1) raised by Council whereby the undergrounding of services between the site and power pole TH11109 not being referenced, as required in condition B13 and the Order, the parties agree that the Applicant should provide a revised scope of works including amended plans and costing for undergrounding of all required services.
[7]
Electrical
The electrical experts agree that:
extending between power poles TH11107 and TH11109 are low voltage power lines and communication cables visible from the first level of the development, and above this are 11,000 KV power lines visible at the second level of the development;
The power poles, TH11107 and TH11109, are in the appropriate location on the site boundary, and should remain to service street lighting requirements and provide power to properties either side of the site and across Kalang Road;
Cross bars on TH11107 and TH 11109 should remain;
The current span between TH11107 and TH11109 is 29 m and considered as 'one span';
The 'nominal longitudinal spacing' in urban areas is 35 m, as defined in Ausgrid Network Standard NS167, and that many factors affect the actual spacing of poles in a street, including impact to frontages and strain points. The spacing of power poles should consider the location of property boundaries and that the 'nominal longitudinal spacing' of 35 m is to prevent a 'picket fence' situation;
The exemption from undergrounding of services as a variation under cl 2.16 of the P21DCP 2014 provides for two situations, and that for the first situation, a variation for high voltage (16 Kv or 30 Kv) power lines is not relevant to the site. The consideration of an exception relates to the situation of 'short lengths of overheads';
Advice from Ausgrid (in Exhibit C) details the specifications required for undergrounding of electrical wires and does not specifically object to the proposed undergrounding works; and
Undergrounding of services (if required) must accommodate the existing access ramp and within the road reserve that is currently concreted.
The electrical experts disagreed on the applicability of the variation provision in cl 2.16 of the P21DCP 2014 regarding: what defines a 'short length' of span; and the relevance of two spans or less for consideration for the site.
Mr Eislers contends that the 'nominal longitudinal spacing' of a span should be considered in context and for this site, the distance of 29 m between TH11107 and TH11109 is reasonable, as it ensures the power poles are located on the boundaries of the site. He does not consider this span length as 'short', because the poles are where they should be, and that a nominal span of 35 m length is theoretical therefore application at the site would be contrary to achieving s 9.5.3 of NS167 for longitudinal positing considerations. He considers that the variation as posed in cl 2.16 of P21DCP 2014 for 'short lengths of two spans or less' is not relevant to this site.
Mr Eislers contends that to underground the wires/cables associated with the site is 'technically practical', safer for building occupants and the public, and will ensure a more secure service. To do so, would be consistent with Ausgrid's specifications, as provided in Exhibit C, and achieve the relevant key outcomes of cl 2.16 of the P21DCP 2014, namely safety and reduce visual pollution.
He agrees that a revised scope of works with costing is required to include the relevant works from the site to power pole (TH11109). He considers that there is opportunity to reduce or provide a more accurate cost estimate to better reflect the required works.
Mr Harris contends that there is merit in not proceeding with undergrounding of wires/cables, as the span between TH11107 and TH11109 is agreed as one span and is of 'short' length because it is less than the 35 m (nominal longitudinal spacing). It therefore satisfies the requirements for a variation of based on cl 2.16 of the P21DCP 2014.
Mr Harris agrees that it is 'technically practical' to underground the wires/cables and that the span length of 35 m in NS167 is not described in the P21DCP 2014. He agrees that NS167 relates predominantly to new power pole infrastructure rather than existing poles. He also agrees that the existing location of the power poles on the site boundaries is appropriate.
Mr Harris agrees that the location of the access ramp limits the location for the undergrounding of utility services close to the site boundary and will therefore be required to 'dog leg' around this infrastructure, should the undergrounding of utility services be required.
He agrees that had the undergrounding of these services been undertaken prior to Council's works or during the construction stage of the development, the costs involved in undergrounding of the services would have been significantly less.
[8]
Landscape and planning
The landscape experts agree:
A tree is considered to be greater than 4 m in height, as defined in the PLEP 2014;
A tree up to a height of 4.0 m could be located in the front setback of the site below and within close proximity to the existing overhead low voltage, to ensure sufficient clearance without the need for detrimental pruning;
There are currently no trees planted in the median strip of Kalang Road, contrary to the Masterplan;
The Applicant constructed the public access path adjacent to the site, as required in the Consent, and the Council subsequently infilled with concrete the area between this path and the curb of the road;
The outdoor seating area in the front setback of the site is the only location for appropriate plantings due to the as-built timber decks, retaining wall, concrete path and access ramp, which have lead to inconsistencies with the approved landscape plan in the Consent. These structures limit the provision of trees (Jacaranda and Northern Scribbly Gum);
A revised landscape plan is required to specify the appropriate plantings based on as-built condition of the site and consider the potential for growth located beneath overhead wires if they remain;
Street trees of 10 m height within and adjacent to the site are not possible on the site with the retention of the overhead wires and cables;
The P21DCP 2014 does not provide sufficient detail nor definition on the type or size of a 'Street Tree', resulting in contradiction as to the vision proposed for the redevelopment of the Village Centre; and
The provision of two Watergums in the road reserve adjacent to the site and five Crepe Myrtle in the front setback, could improve the current landscape outcome for the as-built condition of the site.
The landscape experts disagree on:
The requirement within the front setback of the site, the type and size of a 'Street Tree', as shown in the Masterplan.
The type and size of trees that should be planted in the front setback of the site, potential impact to overhead wires if they were to remain, and the potential result on tree viability from pruning to ensure safety; and
The effect on tree growth, particularly for a 10 m high tree due to existing infrastructure including water/sewer services, as shown in Exhibit G, in the front setback.
Ms Englund considers that a 'Street Tree', as shown in the Masterplan is of similar type and proportion as a 'Median Planting', which is identified as a Brushbox, able to grow up to 10 m in height. She identifies this type of tree as appropriate within the site, and would have the effect of 'softening' the three levels of building height. She contends that a Watergum and Crepe Myrtle would not provide sufficient screening and a taller tree such as Jacaranda or Scribbly Gum would have a better effect.
Therefore, Ms Englund contends that to have a tree/s of >4m height in the front setback of the site, the overhead wires must be undergrounded to ensure the trees can grow to their full potential and provide the benefit to the streetscape of the Village Centre.
Ms Englund is concerned that the infrastructure, such as sewer and water pipes beneath the outdoor space located in the front setback of the site could potentially constrain the growth of a tall (10 m height) tree, which requires a root zone of 3-4 m radius.
Mr Fuggle considers that the Masterplan does not envisage a 'Street Tree' on the site although, agrees a tree should be located in the road reserve adjacent to the site. He observes that the Masterplan provides for the planting of a hedge in the front setback of the site, and considers that Crepe Myrtle and Watergums would be suitable to provide softening of the bulk of the building.
He agrees that due to the as-built concrete pavement and access ramp adjacent to the site, a 'tall' tree of 10 m height would not be possible. Smaller trees such as Crepe Myrtle and Watergums would be appropriate which can be located beneath overhead wires and suitable in the front setback of the site as they grow to 4 m and can be pruned to ensure safety.
Mr Fuggle observes that below the outdoor decking in the front setback of the site are services for water, gas and sewage, which he considers provide sufficient deep soil for trees to grow up to an appropriate height of 4 m and would not impede growth of trees.
With regards to planning Ms Englund provided the following evidence:
Maintenance of the overhead wires and cables on and adjacent to the site would not achieve the outcomes of cl 2.16 of the P21DCP 2014, although she acknowledged that not all outcomes would be achieved by undergrounding of the utility services. She considers that the main outcomes from undergrounding these services are reduction in visual pollution, both internally and externally to the site (as shown in photos in Exhibit 7), and improved safety;
There are situations where less than two spans and/or short length of span should be undergrounded, which would be based on the advice of the energy provider and technical practicalities; and
An alternative approach to improving visual pollution could be bundling of cables, although safety would not be enhanced by this approach.
[9]
Findings
I concur with the electrical experts that based on the advice provided from Ausgrid, in Exhibit C, the undergrounding of wires and cables adjacent to the site is 'technically feasible'. I acknowledge that Ausgrid have not provided a determinative position, however the detail provided in their correspondence of 29 January 29017 indicates that they hold no fundamental objection to the proposed works.
In my assessment, the as-built infrastructure on the site potentially places limitations on achieving sufficient landscaping opportunity to effectively soften the bulk and scale of the three level development on the site due to the outdoor area with services within and ramp.
I agree with Ms Englund that to achieve the Masterplan for the Village Centre, trees must be located on the site, within the front setback and need to be tall enough to reach a suitable height of 10 m. This therefore requires the wires and cables adjacent to the site, between poles TH11107 and TH 11109, and internally from the site building to TH11109, to be placed underground.
I also agree with Ms Englund that the retention of the overhead wires/cables reduces the (visual) amenity of the residents on the site and in the streetscape of the Village Centre, and therefore does not satisfy the design principles, as expressed in A 4.5 of the P21DCP 2014. I concur that the overhead wires/cables are visible from both within the development and in the streetscape, and do not enhance the character of the Village Centre.
I also agree that resident and public safety, together with utility safety would be improved through the removal of overhead wires/cables at and adjacent to the site.
For these reasons, I find that the retention of the overhead wires and cables across and within the site does not achieve the outcomes of cl 2.16 of the P21DCP 2014, and that undergrounding of the wires and cables will specifically achieve the relevant outcomes that relate to improving visual pollution and safety of utility services, and enhance opportunities for street landscaping.
The consideration for variation of cl 2.26 of the P21PDCP 2014 must consider 'technical practicalities and advice from the energy supplier the merit for not proceeding with undergrounding of utility services will be considered..'. The experts agree that the proposed works are 'technically feasible' and there is no contrary advice from the energy supplier, Ausgrid, that the proposed works are not appropriate.
I concur with the experts that consideration of a variation does not apply in the first situation established in cl 2.16 of the P21DCP 2014, which relates to high voltage wires.
The experts took some effort to explore whether the span of wires adjacent to the site is a 'short length' and therefore whether consideration of a variation to cl 2.16 of the P21DCP 2014 is appropriate.
I concur with the experts that the span between poles TH11107 and TH11109 is a 'single span'.
However, I acknowledge that Ausgrid's standard NS167 describes a 'nominal longitudinal spacing' for low voltage (LV) wires as 35 m and that it relates primarily to new infrastructure.
In my assessment of a variation based on 'short lengths of two spans or less', I focus my attention on the term 'nominal', which as defined in the Merriam-Webster Dictionary is relevantly as 'of, being, or relating to a designated or theoretical size that may vary from the actual'. Therefore, the 35 m dimension is based on a theoretical design (specified in clause 9.1 of NS167 as the width of two properties) which may be varied, such as for size of property frontage.
I agree with Mr Eislers that a span of less than this 'nominal longitudinal' specification is not necessarily considered a short length. I find that the span of 29 m between TH11107 and TH 11109 is the appropriate length, as it allows the power poles to be located on the site boundaries. Therefore, I find justification in varying the 'nominal longitudinal spacing' designated by Ausgrid standard NS167 due to the circumstance at the site, being a larger site.
I agree with Mr Eislers that the span of overhead wires between TH11107 and TH11109 is not a short length for the reasons provided above. I consider in this situation that a 'short length' would be a span requiring power poles to be sited within the property boundary.
Consideration for a variation of cl 2.16 of P21DCP 2014 requires satisfaction of both elements of the circumstance, being: spans of less than two and overheads; and of short length. This is not satisfied for the overhead wires associated with the site.
Further to this, I find there is no social or environmental benefit to retaining the overhead wires/cables at or within the site. I consider this would not achieve any of the outcomes as required in cl 2.16 of the P21DCP 2014.
I make no economic assessment as to whether the cost to undertake the contested works is unduly prohibitive to the Applicant, except to say that the Applicant has provided a revised cost estimate for scope of works which their own expert has acknowledged that had the works been done during the construction phase of the development, the costs would likely be less.
I find that no further merit assessment is required to consider variation of the requirement to underground overhead wires.
I am satisfied that the proposed works are required to satisfy cl 2.16 of the P21DCP 2014 and are for the planning purpose. The undergrounding of wires will improve the amenity and safety of the Elanora Height Village Centre, consistent with the relevant Masterplan.
I am also satisfied that the requirement to underground the utility services at and adjacent to the site is reasonable and relates to the development at the site. There will be improvement in visual amenity from within the residential areas of the development.
The situation addressed at this site has similarity with that recently assessed site by Commissioner Morris in Gadallen Pty Limited v Pittwater Council [2013] NSWLEC 1241, whereby the undergrounding of overhead wires was considered as not unreasonable, and relevantly at [33] recognised that the works must be specific to the development, as follows:
[33] For the reasons detailed above condition B6 should be retained however, as agreed by the council, it is appropriate to clarify the extent of that works to exclude the undergrounding of that cable that crosses the roadway to the dwelling opposite the site to that detailed by the electrical experts on the plans attached to their expert report.
[10]
Should the Order for compliance with B13 of the consent be enforced?
Based on the explanation above, I find that compliance with the Order to comply with condition B13 of the Consent would satisfy the key relevant outcomes sought in cl 2.16 of the P21DCP 2014, and achieve the design principles for the Masterplan for the Elanora Heights Village Centre.
It therefore follows that condition B13 as specified in the Consent should be complied with, and works should be undertaken consistent with the amended electrical services plan and scope of work, dated 27 June 2018.
I find that Order NOT0147/17 relating to compliance with condition B13 of the Consent, pursuant to s 8.18(4)(e) of the Court Act, must be complied with as specified in the Order.
[11]
Should the Modification Application be supported?
Commissioner Dixon in Dragoneye Properties Pty Ltd v Northern Beaches [2016] NSWLEC 1555 considered a similar situation as posed in this appeal, and relevantly notes at [59] and [60] the following:
[59] Needless to say, cl C6.5 of the DCP sets a standard with respect to development and, while the Applicant invites the Court to adopt a flexible approach in the application of the cl C6.5 (with an emphasis on allowing reasonable alternative solutions that achieve the objects of those standards in accordance with s 79C (3A) (b) of the EPA Act), the section is not relevant because the Court is not dealing with a development application.
[60] Rather, in dealing with this modification application, the Court must take into consideration such of the matters referred to in s79C (1) as are of relevance to the development the subject of the modification: s 96(3). In that regard, I accept that cl C6.5 of the DCP is a central focus of my consideration under s 79C(1)(iii): Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226;172 LGERA 338; Zhang v Canterbury City Council (2001) 51 NSWLR 589;115 LGERA 373.
With regards to this MA, I consider consistency with cl 2.16 of the P21DCP 2014 is a key requirement for consideration, in addressing s 4.15 of the EP & A Act 1979.
4.15 Evaluation (cf previous s 79C)
(1) Matters for consideration--general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:
(a) the provisions of:
(i) any environmental planning instrument, and
(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and
(iii) any development control plan, and
(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and
(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),
that apply to the land to which the development application relates,
(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,
(c) the suitability of the site for the development,
(d) any submissions made in accordance with this Act or the regulations,
(e) the public interest.
(2) Compliance with non-discretionary development standards--development other than complying development If an environmental planning instrument or a regulation contains non-discretionary development standards and development, not being complying development, the subject of a development application complies with those standards, the consent authority:
(a) is not entitled to take those standards into further consideration in determining the development application, and
(b) must not refuse the application on the ground that the development does not comply with those standards, and
(c) must not impose a condition of consent that has the same, or substantially the same, effect as those standards but is more onerous than those standards,
and the discretion of the consent authority under this section and section 4.16 is limited accordingly.
(3) If an environmental planning instrument or a regulation contains non-discretionary development standards and development the subject of a development application does not comply with those standards:
(a) subsection (2) does not apply and the discretion of the consent authority under this section and section 4.16 is not limited as referred to in that subsection, and
(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.
Note : The application of non-discretionary development standards to complying development is dealt with in section 4.28 (3) and (4).
(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:
(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards--is not to require more onerous standards with respect to that aspect of the development, and
(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards--is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and
(c) may consider those provisions only in connection with the assessment of that development application.
In my assessment above, I am satisfied that the requirements of s 4.15, namely consistency with relevant planning instruments and environmental/economic impacts are addressed by the undergrounding of the utility services, which also specifically achieve cl 2.16 of the P21DCP 2014.
With regards to public interest, I concur with Ms Englund that it is in the public's interest to have the overhead wires/cables adjacent to and within the site placed underground to improve visual amenity/safety both within and external to the development, which also supports the implementation of the Masterplan with trees of appropriate height (10 m) within the front setback. To reduce visual pollution and permit trees to grow to appropriate height, the landscape experts agree that wires in their current location must be removed.
I consider that the Masterplan has been developed and is a reflection of the intended public interest, and the requirement for tall trees of at least 10 m on the site is consistent.
The appeal against refusal of Modification Application Mod2018/0114 is refused, on the grounds that undergrounding of the wires and cables within and adjacent to the site is reasonable, it is technically feasible and not contrary to advice from Ausgrid. Additionally, the proposed works are consistent to achieve the outcomes of cl 2.16 of the P21DCP 2014, and in the public interest. There is no environmental or economic impact from the proposed undergrounding of the utility services.
[12]
Orders
Consequently, the orders of the Court are as follows:
In proceedings No 2017/288107
1. The appeal is dismissed.
2. The Exhibits, except Exhibits 1 and B are returned.
In proceedings No 2018/168273
1. The appeal is dismissed.
2. Modification Application, Mod2018/0114, relating to deletion of condition B13 of the Development Consent for Lot 2 DP 747319, known as 54 Kalang Road, Elanora Heights is refused.
3. The Exhibits, except Exhibits 1 and B are returned.
…………………….
Sarah Bish
Commissioner of the Court
[13]
Amendments
14 August 2018 - Pursuant to UCPR r 36.17, the slip rule, amend orders of 1 August 2018 so that:
the name "Eisler(s)" is replaced with the name "Harris" at [29], [40], [41] and [42];
the name "Harris" is replaced with the name "Eislers" at [30], [37], [38], [65] and [66]; and
the name of the Act at [2] has been corrected.
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Decision last updated: 14 August 2018
The Applicant however contends that the requirement to underground the electrical wires and communication cables within and adjacent to the site is:
• overly onerous,
• unreasonable due to the estimated high cost of works, and
• there would be little benefit to achieve streetscape and character of the Village Centre.
The Applicant therefore contends that non-compliance with condition B13 of the Consent (outlined in the Order) and the requested deletion of condition B13 in the MA does not result in inconsistency with the relevant controls of the P21DCP 2014.
The Applicant considers that there is provision in cl 2.16 of the P21DCP 2014 allowing exemption of the undergrounding of utility services for sites with 'short lengths of overheads of two spans or less'. In support, the Applicant refers to the relevant energy providers standard for definition of a span between power poles 'Ausgrid Network Standard NS167 Positioning of Poles and Lighting Columns, Amendment No. 1, dated 19 June 2015'.
The Applicant withdraws its previous objection of the Councils contentions being considered 'open and uncertain in its scope' and 'would expose the Applicant to intolerable financial burden'. The Applicant also withdraws its contention that 'compliance without any form of contribution from the adjoining property owners at 50 Kalang Road and 174 Powderworks Road would represent a substantial financial burden with is intolerable and excessive'.
The parties agree that the appeal for both matters, relates to the overhead electrical wires and communication cables, including: external to the site between poles TH 11107 and TH11109, located in the adjacent road reserve; and internal to the site, from the building on the site to power pole TH11109.
The parties also agree that the removal of power poles are not in contention (and therefore should remain in current position), and the cross bars that provide support for above ground utility services extending beyond the site should also be retained.
Leave is granted to rely on amended draft conditions of consent of 27 June 2018.
Leave is also granted to rely on amended electrical services plan with scope of work, dated 27 June 2018.