Ingham Planning Pty Limited v Penrith City Council

APPLICANT Mr N Hemmings QC SOLICITORS Allens Arthur Robinson LEGAL REPRESENTATIVES: RESPONDENT Mr J Ayling SC SOLICITORS Phillips Fox

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11526 of 2005 Ingham Planning Pty Limited v Penrith City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Penrith City Council (the council) of Development Application No. 02/1186 for the subdivision of land at 2075 - 2113 The Northern Road and 1 - 29 Bradley Street, Glenmore Park (the site). The site and surrounding area 2 The site is Lots 3-6 in DP 26658, Lot 3 in DP 1067073, Lot 101 in DP 597243, Lot 103 in DP 1050042, Lot 1 in DP 551558 and Lots 1 and 2 in DP 1067082. The site has an area of 24.1 ha and consists of a generally rectangular shape with a frontage of approximately 730 m to The Northern Road.

3 The site is located within a rural-residential and urban setting. The surrounding area is characterised by urban development to the west, rural-residential development to the north, a Department of Defence Air Force property being to the east and a disused quarry to the south and south west of the site.

The proposal 4 The proposal provides for the sub-division of 10 existing lots into 19 lots with lots ranging in size from 5844 sq m to 3.465 ha. A new road is proposed off Bradley Street to allow access to the new lots.

5 The development application was an integrated application with approvals required by the Department of Infrastructure, Planning and Natural Resources, the Roads and Traffic Authority (RTA) and the Rural Fire Service. There were no issues raised with the approval from these authorities. Relevant planning controls 6 The site is zoned part 2(r) Rural - Residential (1 Dwelling/Hectare) under Penrith Local Environmental Plan 1998 (LEP 1988); part Rural (a1) under Interim Development Order 93 and part 2(URBAN) under LEP 1988. The vast majority of the site falls within the 2(r) zone. Subdivision is permissible in this zone with council consent.

(i) to conserve the open semi-rural character of the M4 motorway, The Northern Road and Mulgoa Road frontages of Glenmore Park and (ii) to protect and promote a low density settlement pattern which: (A) recognises the importance of conserving the semi-rural land use pattern and the appearance of the approaches to the urban areas of the City of Penrith when viewed from major roads and adjoining and nearby area, (B) provides sufficient flexibility for dwelling siting and orientation of all allotments to minimise the visual impact of development and overcome noise constraints. 8 Under LEP 1988, consent must not be granted unless the Court is satisfied the development is consistent with the aims of the plan (cl 9(2)(i)), the objectives of the zone (cl 9(2)(ii)), the objectives of the development controls within the plan (cl 9(2)(iii)) and has considered the objectives of any development control plan applying to the land (cl 9(2)(b). 9 Clause 10(8) provides that subdivision provides that consent must not be granted for subdivision unless each lot has an area of 4000 square metres and the total number of lots will not exceed one for each hectare of land being subdivided (cl 10(8)(a)) and the "subdivision maintains the semi-rural character of the locality". There was no disagreement that the subdivision satisfies the numerical requirements in cl 10(8).

10 Penrith Glenmore Park Eastern Hamlets Development Control Plan (the DCP) applies. The relevant objectives in Pt 2.1 are:

To ensure that development is responsive to the special environmental qualities and landscape character of the site; To establish the importance of The Northern Road as an entry to Penrith and to develop a gateway precinct for this purpose; To preserve the open semi-rural character of The Northern Road gateway to Penrith;

11 The relevant objectives in Pt 3(1) Rural Residential are:

To preserve the scenic rural character of The Northern Road; To maintain the rural gateway to the Penrith urban area and To provide an attractive interface along the ridgeline between the rural residential and urban zones. The issues 12 The council filed a Statement of Issues containing seven issues. These can be grouped into the main issue of whether the proposed subdivision layout satisfies the LEP 1988 and the DCP requirements relating to the site being identified as a semi-rural gateway to the Penrith City. Stormwater runoff (Issue 6) and noise attenuation (Issue 7) are addressed as part of the discussion on the conditions. The evidence 13 The parties agreed to the appointment of Mr Michael Harrison as the Court-appointed expert. Mr Crosby Lorimar, a landscape architect provided additional evidence for the council and Mr Neil Ingham, a town planner, provided additional evidence for the applicant.

14 Mr Harrison and Mr Lorimar identified two important view corridors across the site. The first and most significant provided views to the Blue Mountains when travelling north towards the Penrith town centre. The second view corridor provides views across the site travelling in the opposite direction.

15 Mr Harrison stated that the pattern of subdivision was appropriate in addressing the objectives of the DCP, given the extensive front setbacks and low built-form required by the DCP. In his opinion, it is obvious that the proposed subdivision lots could not be mistaken for suburban development.

16 Mr Lorimar states that the proposed access road that runs parallel to The Northern Road dictates a linear form of development along this road. A different access arrangement would free up the area through the centre of the site and would permit a different and more dispersed dwelling arrangement. He states that the DCP requirements to achieve an open rural character ultimately determine the lot yield. This should be based on careful site analysis. What is permitted by way of numerical lot yield through the LEP 1988 does not override the qualitative DCP requirements. Findings 17 Without seeking to diminish the range of objectives within LEP 1988 and the DCP it would seem that the thrust of the objectives is to provide a subdivision that has a semi-rural character to provide a gateway to the City of Penrith. The achievement of the semi-rural character is to consider the natural features of the site and the wider area.

18 In determining what would be an appropriate subdivision pattern to satisfy the objectives, consideration must be given to the development standards in LEP 1988 as this represents the level of development or density anticipated for the site. The numerical requirements (in LEP 1988) and the objectives (in the DCP and LEP 1988) should be considered collectively with one not given preference over the other.

19 On this basis, I accept the conclusions of Mr Harrison for a number of reasons. While I agree with Mr Lorimar that the proposed access road largely dictates the subdivisions pattern I am not convinced that it is necessarily a negative aspect of the proposal. It would be clearly inappropriate to allow direct access to The Northern Road for safety reasons particularly considering the levels and speed of traffic at present and the potential upgrading of this road in the future. No further access to The Northern Road was also a requirement of the RTA. The access via Bradley Street is appropriate as the intersection has good sight distances and passing lanes when vehicles are turning at Bradley Street. I also see no great benefit in channelling traffic from the subdivision through the residential streets in Glenmore Park when a suitable intersection is available at Bradley Street and The Northern Road.

20 Mr Lorimar saw the linear layout along The Northern Road as being unacceptable and inconsistent with the semi-rural character of the area. I am not satisfied that this is a reasonable conclusion considering the LEP 1988 and the DCP requirements and I agree with Mr Harrison that the lot layout is not that unacceptable that it should lead to the refusal of the application. While there are always other options, the role of the Court is to determine whether the proposed development is acceptable and not whether a different proposal is more acceptable.

21 I do not find the proposed lots along The Northern Road unacceptable as Lots 1 to 4 are generally screened from The Northern Road by an existing embankment and vegetation. Lots 5 to 12 range between 6267 sq m and 1.115 ha and are considerably larger than the minimum requirement in LEP 1988 of 4000 sq m. In my view, this will allow generous setbacks to The Northern Road and setbacks between dwellings that reinforce the semi-rural character.

22 Further, a significant benefit of the proposed subdivision layout is that the higher levels of the site, below the escarpment, will have fewer dwellings and a more open appearance when viewed from both directions on The Northern Road.

23 Notwithstanding Mr Lorimar's evidence I am not convinced that the proposal needs to reduce the number of lots along The Northern Road. LEP 1988 and the DCP do not require that the identified view corridors should be largely free of dwellings but only that a semi-rural character is achieved and visual impact is minimised. I accept that the proposal achieves this objective through the subdivision layout and controls within the DCP.

24 In accordance with cl 9(2), I find that the proposed subdivision is consistent with the relevant aims of the plan, the relevant objectives of the zones and the relevant objectives of the development controls within the plan. I also find that after considering the relevant objectives of the DCP the proposed subdivision is acceptable. Conditions 25 The applicant objected to a number of the council's draft without prejudice conditions. The conditions in dispute are:

26 Condition 20. This condition addresses a number of different aspects of the proposal and imposes restrictions by way of a s 88(b) instrument on the title. The applicant generally opposed the requirements (with the exception of the nominated building platforms) as the different aspects of the proposal are properly addressed through the controls in the DCP.

27 I accept the applicant's submission that the restriction by way of a s 88(b) instrument can be deleted in relation to development on Lot 1 (condition 2(a)), building within the building platform (condition 20(c)); cut and fill (condition 20(e)); colours of buildings (condition 20(f)); noise report (condition 20(g)) and clothes drying facilities (condition 20(i)).

28 In my view, the other requirements in condition 20 are not adequately addressed in the DCP or are matters that have a significant impact on the maintenance of the semi-rural character of the area. Consequently the restrictions by way of a s 88(b) instrument that relate to dwellings facing The Northern Road, (condition 20(d)); fencing (condition 20(h)); setbacks (condition 20(j)) and prohibition of access to The Northern Road (condition 20(k)) should remain.

29 Condition 26(d). This condition relates to drainage works on The Northern Road frontage. The applicant seeks to amend this condition by including that the drainage works in The Northern Road frontage should be limited to works "in the vicinity of the proposed stormwater outlets". As I understand, the applicant's concerns relate to the potential for constructing drainage works along the entire frontage of The Northern Road. 30 In the absence of any drainage designs, I am not prepared to limit the drainage works although I note the submissions from the council that it is not their intention to seek construction of the complete Northern Road frontage. The condition should remain in the form proposed by the council for this reason.

31 Condition 33. This condition requires the provision of an on-site detention system for each lot. The applicant submits that this requirement is best left until the submission of an application for a dwelling on each lot. I agree with this submission and the condition can be amended to reflect the submission.

32 Condition 40. This condition requires the preparation of a salinity report. The applicant opposes that part of the condition requiring the recommendation of the report to be included as a Restriction as to User on the title. I agree with the applicant's submission that this condition is not appropriate for an s 88(b) instrument and delete that part of the condition.

33 Additional condition. In his assessment, Mr Harrison recommended that the building platform be located 15 m to the west for Lot 8 to enhance the view corridor to the Blue Mountains. This was shown on a plan marked Exhibit E. I accept that the amendment should be included and condition 1 should be amended to reflect Exhibit E. Orders 34 The orders of the Court are:

1. The appeal is upheld. 2 Development Application No. 02/1186 for the subdivision of land at 2075 - 2113 The Northern Road and 1 - 29 Bradley Street, Glenmore Park is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of Exhibits 4, 5, 7 and E.

      G T Brown
      Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.