Integrated Mentoring Pty Ltd v The Hills Shire Council & anor

The site and its locality

1. In these proceedings, the site comprises Lot 2 DP 996639 as described above.
2. Lot 2 contains a weatherboard dwelling with carport and a number of other detached sheds and structures. A 30m wide easement for overhead transmission lines traverses the site to the west of the existing dwelling. There are a number of trees and shrubs of a range of species and ages across the site.
3. The surrounding locality is principally low density residential development, characterised by a mixture of smaller detached single and double storey dwellings, dual occupancies and villa and town house developments. The site is zoned R2 Low Density Residential in The Hills Shire Local Environmental Plan 2012 (THLEP).
4. Immediately to the north of the site at 93-95 Baker Street (Lot 10 in DP1174850), the second respondent's property, is another large lot on which there are a single dwelling and a number of sheds. This site has development consent for a two storey, 33 bedroom boarding house with ground level parking.

The proposal

1. The applicant seeks consent for the following:

• Demolition of all existing structures;
• Installation of a new inter-allotment drainage system;
• Landscaping;
• Construction of a new access driveway;
• Torrens Title subdivision of Lot 2 into four residential lots, each approximately 1050m2 and 16.1 m wide by about 65m long; and
• Creation of rights of carriageways, easements for services, drainage easements, appropriate covenants and restrictions on the use of the land.

Council's issues

1. The council initially contended that development consent should be refused on the basis of the following issues (in bold):

• Insufficient lot width;
• Non-compliant access handle which does not allow for safe passing of vehicles;
• Inadequate building envelopes more typical of medium density development;
• Insufficient and poorly sited private open space;
• Access for waste collection vehicles;
• No evidence of owner's consent; and
• Insufficient evidence as to the site's contamination status.

1. During the first proceedings, the only issue pressed by council was the lack of owner's consent and the requirement to notify the amended plans to residents and Ausgrid. The merit issues had been resolved to council's satisfaction, including many of the matters raised by objectors.
2. Given the amended proposal, owners consent is no longer relevant and the council supports the approval of the proposed development subject to the conditions of consent agreed between the applicant and the council as first respondent. These conditions include a deferred commencement condition relating to works on adjoining land, being Lot 1 DP1180123. If this condition is not complied with within two years, the consent does not operate, no development can lawfully occur and no Construction Certificate can be issued.

The second respondent's issues - evidence, submissions, findings

1. The contentions originally raised by the second respondent are summarised as follows: 1. Jurisdiction of the Court* - the appeal was commenced contrary to the Act; deemed refusal period - the development is properly described as Integrated Development and therefore the deemed refusal period should have been 60 days, not 40 days. [* subsequently struck out in the Second Respondent's Statement of Facts and Contentions and then re-agitated.] 2. Notification* - the DA was not publicly exhibited in accordance with s 79A of the EPA Act or the Hills Development Control Plan 2012 (HDCP) - no signboard in front of the property and no letter of notification received by the adjoining property. 3. Owner's consent - no owners consent for proposed works on Lot 1 DP1180123 or Lot 10 DP1174850 [the second respondent's property]. 4. Access - the proposed access is inadequate and unsatisfactory; intensification of use and impacts on the legal right of the second respondent to use Lot 1 as an access way; narrow and dangerous for pedestrians; non-compliance with AS2890.1 or the relevant provisions of HDCP - too narrow/ too long; no passing bay. 5. Poor design and lot configuration - effective lot area, i.e. not constrained by the electricity easement results in an effective lot size below the 700m2 minimum in the Hills Local Environmental Plan and provisions of HDCP; adverse impacts on adjoining dwellings; massing of dwellings on eastern side of site; does not provide for the orderly future developments of the site; poor internal amenity. 6. Inadequate stormwater design - no plans or information to demonstrate that council's ESD objectives can be satisfied or that on-site detention of stormwater can be achieved. 7. Insufficient consent from concurrence authorities - Ausgrid 8. Not in the public interest
2. As the council does not oppose the development, the issues raised by the second respondent form the basis of this determination. For completeness, all of the issues raised by the second respondent are considered.

The Court's jurisdiction

1. The re-agitation of this contention and the production of Exhibit R10 resulted in the dismissal of matter 10276 of 2015 - see Integrated Mentoring Pty Ltd v The Hills Shire Council & anor [2015] NSWLEC 1428. Notwithstanding that determination and the effective removal of Lot 1 from the amended appeal, Ms Pearman for the second respondent presses her client's contention that because Lot 1 is referred to in the deferred commencement condition it is still part of the proposal and as the northern part of that Lot is mapped as Bushfire Prone Land - Vegetation Buffer it requires the concurrence of the Rural Fire Service and a bush fire safety authority in accordance with s 100B of the Rural Fires Act 1997. That is, as this development is integrated development the deemed refusal period should have been 60 days.
2. Ms Pearman also presses cl. 45(2)(a) State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) which requires the consent authority to give written notice to the electricity supply authority for the area in which the development is to be carried out, inviting comments about potential safety risks.
3. In response, Mr McKee tendered Exhibit J, a letter from the Rural Fire Service (RFS) dated 20 April 2015 written to council in response to a letter from the council to the RFS. It states [relevantly] Integrated Development for 2/9966396 1//1180123 89a & 91 Baker Street Carlingford I refer to your letter dated 20 February 2015 seeking general terms of approval for the above Integrated Development in accordance with Section 91 of the 'Environmental Planning and Assessment Act 1979'. This response is to be deemed a bush fire safety authority as required under section 100B of the 'Rural Fires Act 1997' and is issued without any specific conditions.
4. While Ausgrid, as the relevant electricity supply authority, had supplied 14 General Conditions Applying to Ausgrid Easements which were attached to councils' draft conditions of consent filed on 13 October 2015, following the adjournment of the hearing to allow re-notification of the amended plans, council sought Ausgrid's review of the amended plans in accordance with cl. 45 SEPP Infrastructure. Ausgrid's response on 26 November 2015 includes 18 General Conditions Applying to Ausgrid Easements and comments on the plans. The correspondence between the council and Ausgrid is found in Exhibit 5. The latest General Conditions Applying to Ausgrid Easements and the marked up plan are included in the applicant's and council's agreed amended draft conditions of consent. The conditions, directly or indirectly, focus on safety.
5. Whether the deemed refusal period was 60 days or not, the application was subsequently refused on 28 April 2015. I am satisfied that the proposal was referred to both the RFS and Ausgrid in a timely manner. Both authorities have provided the necessary advice as required by the relevant provisions of the legislation. The RFS imposes no specific conditions and the Ausgrid requirements are included in the draft conditions of consent. Given the findings in Integrated Mentoring Pty Ltd v The Hills Shire Council & anor [2015] NSWLEC 1428, to impose any further delay in these proceedings as a consequence of this contention would be counter to cl 56 of the Civil Procedure Act 2005 and the facilitation of the just, quick, and cheap resolution of the real issues in the proceedings. Therefore the real issues in this contention (and contention 7) have been satisfactorily addressed and will not be the basis of refusal of this proposal.

Notification

1. As discussed previously, the hearing was adjourned to allow the renotification of the amended plans and proposal. Exhibit 5 includes council's notification letter dated 28 October 2015. The letter clearly and concisely explains the progress of the matter, the changes in the proposal, the fact that the proceedings were adjourned for the purpose of renotification, together with an invitation to anyone who wished to raise any additional issues to attend the hearing, and council's process for making a submission. The exhibit contains the list of 56 addresses to which the notification letter was sent being the addresses of the owners of affected properties. Fourteen submissions were received including seven from owners or occupiers of the second respondent's property.
2. The owner of one of the properties to the east of the site attended the resumed hearing and gave evidence. He stated that as his property is a battle-axe block any dwelling constructed on proposed Lot 2 of the subdivision may overlook his small backyard. He told Ms Pearman that he did not receive the notification letter. When questioned by Mr McKee he stated that he had not collected his mail from his forwarding address.
3. While this contention was struck out of the Second Respondent's Amended Statement of Facts and Contentions, and despite a submission from Ms Pearman that the proposal may not have been advertised in a newspaper in accordance with the relevant provisions in Part A HDCP, I am satisfied that the owners of affected properties have been adequately notified. Given the responses from the RFS and Ausgrid, whether the notification period should have been longer, for the reasons given in [30] further delay or refusal on these grounds is not warranted.

Access

1. This contention relates to the use of Lot 1 for access to the site. Lot 1 is a long and narrow block about 5m wide and 60.6m deep along which is an existing driveway. Although there is vehicular access to the second respondent's property from two points on Barker Street, the second respondent has a legal right of way along Lot 1 to and from the rear of her property.
2. In summary, the second respondent's concerns are that the intensification of the use of the driveway as a consequence of the proposed subdivision will result in the driveway not being a domestic driveway as defined in AS2890.1-2004; it will be unsafe for both drivers and pedestrians as the lot is too narrow to provide the requisite passing bay at the mid (30m) point (required because of its length).
3. This issue was addressed during for the early part of the proceedings. Apart from owner's consent, council had no concerns about the safety or technical aspects of the applicant's proposal, including the width of the driveway.
4. The second respondent and the applicant engaged traffic experts - Mr Craig McLaren for the second respondent and Mr Robert Varga for the applicant. The experts prepared a joint statement (Exhibit R6). Their initial report was prepared on the basis of a five lot subdivision. As a result of the early amendment to a four lot subdivision, inclusive of a preliminary design for Lot 1 prepared by Mr Varga, they amended their report - attached to Exhibit R6. The amended proposal included a mid-block 4.7m wide passing bay and two pedestrian refuges.
5. The experts agreed that four dwellings would generate a maximum of 3.4 vehicles per hour at peak periods and less at other times; this is a net increase of 2.55 vehicles per hour. If Lot 10 (the second respondent's property) is factored in, the cumulative peak traffic flow would be 4.25 vehicles per hour. They also agree that cl. 3.2.2 AS2890.1 allows for a merit assessment of the width requirements of low volume access driveways and connecting roadways; low volume being <30 vehicles per hour.
6. The differences between the experts go to whether strict numerical compliance is necessary. In essence Mr McLaren's evidence goes to the need for strict compliance in achieving a satisfactory safety outcome; Mr Varga's evidence is merit based.
7. As the appeal before the Court relates principally to the subdivision of Lot 2 which can only take place if the deferred commencement condition relating to Lot 1 is complied with, there is no need to make any merit assessment of the traffic engineers' evidence or of this issue. It is understood that any works on Lot 1 may need to be the subject of another development application.

Poor design and lot configuration

1. In essence, the second respondent's contention is that the area of each proposed allotment that is unconstrained by the transmission easement is too small to provide for a dwelling and private open space sufficient to ensure good amenity for the future occupants and or to not cause adverse amenity impacts on adjoining properties. Those adverse impacts are listed as solar access, privacy and sunlight. The second respondent also contends that the resulting development would have a character more typical of a medium density development rather than that of the current R2 Low Density Residential zoning. This contention was drafted on the originally proposed five lot subdivision.
2. The applicant and the second respondent both engaged town planners - for the applicant Mr Andrew Minto and for the second respondent Mr Brett Daintry. The experts prepared a joint report (exhibit R5) in which they discussed the second respondent's contentions regarding the original 5 lot subdivision. The experts agreed that the lot sizes complied with the requirements of THLEP however, the average lot widths of 12.95m did not comply with the 18m lot width specified in cl. 2.13.1(d) of HDCP.
3. Of the 5-lot subdivision, Mr Minto was satisfied that the resulting lots would be consistent with the existing character and would provide residents with appropriate levels of amenity. Mr Daintry argued that the lots were too narrow and too constrained by the easement to provide an appropriate level of amenity or private open space for future residents. Mr Daintry also raised a concern that the applicant had failed to consider whether the effective lot size could sustain both dual occupancy development, or a single dwelling house with a secondary dwelling, both of which are permitted in the zone. This last point was repeated in submissions by Ms Pearman.
4. The amended proposal creates four lots with their east/west boundaries joining the east/west boundaries of the adjoining properties in Jenkins Road to the east. The amended Plan of Subdivision shows each of the four lots having a total area of approximately 1050m2 inclusive of an area about 370m2 free of the easement and on which a dwelling could be sited. Sheet 1 of the Concept Engineering Plans shows an indicative building envelope of about 230m2 and a minimum area of indicative private open space of 140m2.
5. Mr Daintry, Mr Minto and Mr Josh Owen, council's planner, prepared a supplementary joint report on the amended proposal and plans (Exhibit R12). The experts agree that the application is now for a four lot subdivision of Lot 2 and does not include Lot 1. The planners agree that if legal, physically convenient and safe access to, and egress from, the site cannot be achieved they would not support the proposal. They note that THLEP does not contain the optional "Essential Services" clause from the Standard Instrument and therefore there is no statutory precondition that requires the provision of these services unless the development is in an urban release area, which it is not. However, in meeting the public interest requirement in s 79C(1)(e) of the EPA Act, the planners agree that development consent should not be granted unless the Court is satisfied that essential services are available or that adequate provisions have been made to make them available when required. They agreed that this could be the subject of a deferred commencement condition. Mr Owen notes that this is intrinsically connected to the subdivision proposal.
6. The experts agree that the lot widths and dimensions, dimensions of private open space and so on are compliant with the controls and or appropriate in the circumstances to allow sufficient area for the construction of a single dwelling house on each lot. The experts also agreed that Complying Development under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) could avoid further merit assessment and could be carried out. On secondary dwellings and dual occupancies: Mr Minto considers the likelihood of a single dwelling being approved on the site as complying development is high, the likelihood of a secondary dwelling on some or all of the lots is reasonable, and the likelihood of a dual occupancy is low to nil and in relation to complying development, it would only occur if it complied with the controls in the SEPP; Mr Owen opines that dual occupancy, whilst permissible, is unlikely to be supported [given the constraints of the site]; and Mr Daintry remains concerned that there is the potential for up to eight dwellings on the site thus creating a built form density more akin to medium density development which is prohibited in the zone.
7. At the conclusion of the first stage of the hearing, Ms Pearman argued that the appeal should be dismissed because of the cumulative effects of the numerous defects and uncertainties in the application. She pressed Mr Owen's statement in the planners' supplementary report that access to the site via Lot 1 is an intrinsic element of the proposal and on Mr McLaren's evidence that safe access and egress cannot be achieved especially if up to 8 dwellings are possible on the site. Ms Pearman cites Parrott v Kiama [2004] NSWLEC 77 in regards to the subdivision of constrained sites and relies on Mr Daintry's evidence to submit that the Court needs to be more than satisfied that essential services can be provided and that dwellings can be sited in a way that provides suitable amenity for future residents and adjoining properties. She contends that as the applicant has not modelled the effect of complying development the Court cannot be satisfied about the possible impact of built form on private open space etc., given the constrained site.
8. In reply, Mr McKee noted Mr Owen gave oral evidence to the effect that a condition of consent could be drafted requiring the provision of safe access and all essential services; however, notwithstanding that, he presses Mr Varga's evidence and proposed design that on its merits, and given the very low volume of traffic expected to be generated, any future driveway will be safe and accessible for both vehicles, including garbage trucks, and pedestrians. Mr McKee relies on the evidence of the planners and on Exhibit F that a complying dwelling with the requisite amount of private open space can be provided on each lot.
9. While 18m is the specified lot width in HDCP, and the proposed allotments are 16.1m wide, I note that the council does not raise any issues with this non-compliance. Council's Statement of Facts and Contentions notes that there are a number of properties surrounding the site that have lot widths of less than 18m - the vast majority being between 15m and 18m. The council states that the narrowness of the lots can be attributed to the fact that many of these parcels of land were created under superseded plans and ordinances that omitted controls pertaining to lot widths.
10. I accept the agreed position of the parties' experts that each lot is capable of accommodating a compliant dwelling. In addition, Exhibit F provides details of a proposed two storey house type for Lot 3 which illustrates that a compliant four bedroom dwelling with the required area of private open space could be readily accommodated on the unconstrained portion of the lot. In regards to character, and notwithstanding the non-compliance with the lot width control in HDCP, the amended proposal creates lot boundaries that are consistent with the boundaries of the adjoining properties facing Jenkins Road. In having regard to the zone objectives, I am satisfied that the proposal meets the relevant objectives by providing for the housing needs of the community in a low density residential environment and maintains the existing low density residential character of the area.
11. Any future dwelling may be the subject of a development application and any impacts on adjoining properties must be considered at that time or, in the alternative, it will have to comply with the relevant provisions of the Codes SEPP. There is no requirement that an application for subdivision for residential purposes should provide some assessment of every form of accommodation permitted in the zone.
12. The deferred commencement condition agreed by the applicant and the council addresses the concerns of the planners in regards to the provision of easements for essential services. The condition reinforces those concerns by requiring the procurement of easements, preparation of detailed plans and the granting of development consent for works within Lot 1 to service the development. The listed services are those identified by the planners in the supplementary joint report. Unless this condition is complied with within 2 years of the date of determination, the consent for the subdivision does not operate.
13. Therefore, I am satisfied to the extent required by a development application for a subdivision that this contention has been addressed and that it does not provide a basis for refusal of the proposal.

Stormwater

1. The second respondent contends that the applicant has not submitted any plans or information to demonstrate that council's ESD objectives can be satisfied or that future development of the site will be able to provide for the on-site detention of stormwater.
2. Amongst other things and relevant to Lot 2, the planning experts agreed that on-site detention and a water sensitive urban design are required to be adopted for any future development of each of the proposed allotments. They discussed possible options for the location of either one single or individual detention systems. They agreed that the sub-division plan must detail all inter-allotment drainage easements including the provision for any new-inter-allotment easement to drain water within the battle-axe handle (Lot 1).
3. Council raises no contentions in regards to stormwater. The conditions of consent agreed between the council and the applicant, require the procurement of easements for all essential services, including stormwater drainage, over Lot 1. Condition 15 (iv) requires an inter-allotment stormwater drainage system to be designed and constructed in accordance with the relevant design guidelines and specifications prior to the issue of a Construction Certificate. Other stormwater conditions are to be achieved before the release of a Subdivision Certificate.
4. The Proposed Plan of Subdivision shows the proposed drainage easements as do the Concept Engineering Plans that include Lot 1.
5. I am satisfied that the second respondent's contention has been adequately addressed.

The Public Interest

1. This issue was canvassed by the parties' planners in their first joint report. Mr Minto is of the opinion that the proposal is in the public interest because the site is very large and currently supports only a single dwelling; the proposal provides additional housing and therefore meets the objectives of the zone. In addition, he maintains that the proposal will have no adverse impacts on the streetscape or on adjoining properties. Mr Daintry, for the reasons given in respect of the effective lot sizes, the potential for secondary dwellings, and the constraint imposed by the transmission easement, considers the proposed development is not in the public interest.
2. In the supplementary report, the public interest is considered by the need to ensure safe access and the provision of essential services. In my view this is addressed by the deferred commencement condition.
3. To the extent that the public interest may be represented by the zone objectives and the aims of THLEP and for the reasons given in response to the other contentions raised by the second respondent, I find that the proposal is not counter to the public interest and should not be refused on this basis.

Submissions on conditions and in conclusion

1. At the resumption of the hearing submissions were made regarding Amended Draft Conditions of Consent (Exhibit 4) prepared by the council and the Second Respondent's Response to the Amended Draft Conditions of Consent (Exhibit R13).
2. The second respondent proposes the following changes and additions to the conditions of consent: Deferred commencement condition - a period of one year and not two years after the date of determination for all elements to be complied with, plus detailed requirements for inter-allotment drainage, electrical services, telecommunications services, contamination assessment and remediation, survey, capacity of stormwater, Ausgrid requirements. General matters - amongst other things, strict compliance with council's 6m wide driveway specifications (6d). Prior to the issue of a construction certificate - new conditions - Security Bond Requirements, Security Bond amounts, Section 94 Contributions, Works on adjoining land, Inter-allotment stormwater drainage, Garbage bin area. Include references to owner's consent. Prior to work commencing on site - repeated insertion of requirement to obtain owner's consent in writing. Prior to issue of a subdivision certificate - new condition - Performance/Maintenance Security Bond; deletion of conditions relating to provision of electrical and telecommunications services (relocated as deferred commencement conditions); restriction of building platforms to the indicative building envelopes shown on the Concept Engineering Plans.
3. The applicant accepts council's version of the amended conditions of consent.
4. Ms Berglund contends that the council's conditions have been appropriately drafted. In council's view, the matters brought forward by the second respondent into the deferred commencement condition are an unnecessary duplication of matters more appropriately dealt with elsewhere, such as Construction Certificate stage, or are superfluous (for example, Ausgrid has already provided its requirements). With respect to the time frame, Ms Berglund submits that given the complexities of the current titles and the need to obtain owner's consent, council agrees that a period of 2 years for compliance is reasonable. Elsewhere, Ms Berglund maintains that many of the second respondent's proposed amendments should be relocated to their original position, are otherwise required by the EPA Act, are not pressed by council - such as the strict compliance with the 6m driveway width, or are redundant/ don't add value.
5. In regards to the suggestion that security bonds be required, Ms Berglund submits that these are not necessary in the circumstances and there would have to be a very strong case from a third party for such bonds to be required.
6. In conclusion, Ms Berglund stated that council supports the proposal subject to council's proposed conditions of consent. In response to the objectors and their concerns about the impacts of any future development on their properties, Ms Berglund noted that these are matters to be addressed at later stages.
7. Ms Pearman maintains her client's position that as the proposal is integrated development due process has not been followed and that a further adjournment is required in order to invite submissions from Ausgrid and or their distributor in regards to safety issues. Ms Pearman contends that the applicant's approach and the various amendments to the application and proposal amount to an abuse of process. She cites Brown ASC's findings in State Projects Pty Ltd v Hurstville City Council [2015] NSWLEC 1443 at [63]-[73] in support of her argument.
8. Mr McKee maintains that the proposal is not integrated development and there is no need for an additional 30 day notification period. In regards to State Projects, he submits that the matters are not comparable as the amendments in this matter were to rectify a jurisdictional issue and to correct an error in the survey in regards to the location of the easement; other changes were minor housekeeping.
9. With respect to the draft conditions of consent, I accept council's submissions and therefore the applicant's position that the council's version provides sufficient clarity and certainty for the proposed subdivision of Lot 2 to be approved in accordance with those conditions. I accept the council's argument that the complexities of Lots 1 and 2 being Qualified Titles (as shown in Exhibit B) may take some time to resolve and that a period of two years for compliance with the deferred commencement condition is reasonable in the circumstances. For the reasons given in [29] and [30], Ausgrid has provided its conditions and a further delay is unwarranted and unreasonable.

Conclusions and orders

1. I have considered the evidence and I have addressed each of the second respondent's contentions, including those previously struck out, in accordance with the requirements of s 79C of the EPA Act. In my view, none of those contentions warrant refusal of the proposal.
2. Therefore, the Orders of the Court are: 1. The appeal is upheld. 2. Development Application DA 981/2015/ZB, as amended during Court proceedings 10276 of 2015 and 10948 of 2015, for a Torrens Title subdivision of one lot into 4 lots, and associated works, on Lot 2 in DP have considered the 996639, 89A Baker Street, Carlingford, is approved subject to the conditions of consent in Annexure A. 3. All exhibits except H are returned.

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Judy Fakes Commissioner of the Court 10948 of 2015 Conditions Annexure A (868 KB, pdf)

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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. Decision last updated: 05 January 2016