Links Avenue Pty Ltd v Fairfield City Council

Texts Cited: Fairfield City Wide Development Control Plan 2024

Category: Principal judgment

Parties: Links Avenue Pty Ltd (Applicant)
Fairfield City Council (Respondent)

Representation: Counsel:
C Gough (Solicitor) (Applicant)
S Shneider (Solicitor) (Respondent)
Solicitors:
Storey & Gough (Applicant)
Houston Dearn O'Connor Lawyers (Respondent)

File Number(s): 2024/371634

Publication restriction: Nil

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. These proceedings arise following the Council’s refusal of the applicant’s DA No DA 99.1/2024 for the demolition of existing structures and erection of four dwellings and associated site works, together with the subdivision of land at 459 Cabramatta Road West, Cabramatta West, into four Torrens title lots.

2. The background facts and the statutory framework are set in the council's Amended Statement of Facts and Contentions filed on 1 November 2024.

3. At the hearing, the application was amended to address the Council's concerns in respect of stormwater disposal and vehicular access, landscaping and parking on the site. These amendments are reflected in the current plans and identified in Exhibits A, B, J, K and L.

4. An updated BASIX certificate has also been filed with the Court during the proceedings and it reflects the final design.

The Site

5. As the Statement of Facts and Contentions records, the site is irregular in shape and has a total land area of 1,274m2 and a width of 26 metres frontage to Cabramatta Road West, which is a Classified Road. The site is zoned R2 low density residential under the Fairfield Local Environmental Plan 2013 (LEP).

6. Development for the purpose of an attached dwelling or semidetached dwellings and subdivision is permissible with consent.

7. Relevantly, the site is also identified in "area 1" of the Lot size map under the LEP and thereby benefits from the 200m2 minimum subdivision lot size concession under cl 4.1C of the LEP.

8. It is accepted that the area of each proposed lot will be more than 200m2 and no more than one dwelling is proposed to be erected on each lot. Therefore, the application is compliant with cl 4.1C.

9. The Fairfield City Wide Development Control Plan 2024 (DCP) sets out the relevant controls for setbacks and private open space and the evidence is that the development is compliant in that regard. Importantly, it is consistent with the predominant subdivision pattern of the area. In that regard, it is to be noted that the front setbacks are necessarily deeper than the minimum 6 metre control under s 5C.2.3.1 in order to provide sufficient area for the manoeuvring of vehicles within the site. The layout of the dwellings and the resulting amenity, (including solar access, privacy, room size and private open space,) is also assessed to be satisfactory.

10. While the proposal offers landscaping with the planting of advanced trees in the frontage, as drawing DA13 of the architectural plans shows, the total landscaping area of the site falls short of the 50% control in s 5C.4.2(b).

11. The shortfall is generated by the necessity for vehicles to enter and exit the site in a forward direction in response to its location on a classified road. The swept paths provided during the hearing confirm that the depicted hardstand areas cannot be reduced any further due to the safety concerns raised by the classified road. In that circumstance, subject to the placement of “no parking signage” on the hardstand area as identified on the architectural plan, I am satisfied that the reduced landscaping across the frontage at 18.8% being a 36.9m2 shortfall is acceptable.

12. In that regard, I accept that the ability for vehicles to enter and leave the site in a forward direction is more important than enforcing strict compliance with the 50% landscaping requirements, and for the reasons expressed by Mr Nehme in the planning joint report (Ex 2). I also accept the expert assessment of the applicant's traffic consultant, as set out in the report by LanDev Engineering Consulting filed with the application (Tab 6, Ex C) which supports the current design, subject to the proposed conditions of consent (Ex 5).

13. The Council has received concurrence from Transport for NSW in accordance with s 138 of the Roads Act 1993 (NSW) for this DA, and I am satisfied that the requirements set out in the Transport for NSW's letter of 28 November 2023 which are incorporated in the proposed conditions of consent will be able to be achieved with the approval of this development. I am also satisfied, as required by cl 6.9 of the LEP that essential services are available for this development, or that adequate arrangements have been made with regard to cll 6.9(a), (b), (c), (d) and (e) of the LEP.

14. In respect to stormwater drainage at the site, I accept that an easement for drainage of water will need to be created over downstream properties in favour of lot DP1238191 before the consent is operative. To that end, a deferred commencement condition is proposed to be incorporated into the consent and I understand that the applicant is accepting of this condition.

15. In forming the requisite state of satisfaction under cl 6.9 of the LEP necessary to grant consent, I have had regard to the plans and documentation lodged with the original application in the Class 1 appeal, which identifies the likely location of the proposed easement and the efforts to date by the applicant to obtain relevant owners’ consent from downstream property owners. Albeit, I accept that some refinement of the plan for the location of the easement may be required in order to satisfy the deferred commencement conditions. Noting that the easement is not the subject of the present application, and Iunderstand that the matter is likely to proceed by way of a s 40 application.

16. Finally, I wish to make clear that the subdivision of the site and the erection of two dual occupancy dwellings is staged by the Council's conditions. This will ensure that the development does not fall foul of the definition of "dwelling house" under the LEP. By staging subdivision into four lots, the proposal will not be caught by the definition of "multi dwelling housing". The development also complies with the following controls:

State Environmental Planning Policy (Biodiversity and Conservation) (2021)

17. Chapter 6 applies as the site is within the Georges River Catchment area.

18. In relation to s 6.6(1) considerations, the applicant’s expert’s position is that:

19. Subject to the installation and maintenance of sediment controls during building works, the development will have a neutral effect on the quality of water entering a waterway.

20. The development will not have an adverse impact on water flow in a natural waterbody.

21. There will be no discernible increase to stormwater runoff that would adversely affect downstream land.

22. The development does incorporate on-site stormwater retention, infiltration or reuse.

23. The development will have no impact on the level and quality of the water table.

24. Cumulative environmental impacts from the development on the regulated catchment are negligible.

25. The development makes adequate provision to protect the quality and quantity of groundwater.

26. In relation to s 6.6(2) criteria, the applicant’s expert is satisfied that:

27. The effect on the quality of water entering a natural waterbody will be as close as possible to neutral.

28. The development has negligible and satisfactory water flow impacts for a natural waterbody.

29. In relation to s 6.7(1) considerations, the applicant’s expert’s position is that:

30. To the extent of any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation, the impact is minor and not determinative of the application.

31. The development does not involve the clearing of riparian vegetation.

32. The development will not involve sedimentation of a natural waterbody or erosion of land abutting a natural waterway.

33. The development will not have an adverse impact on wetlands.

34. The development will not impact aquatic ecology and therefore does not require safeguards and rehabilitation measures.

35. The development does not adjoin a natural waterbody.

36. In relation to s 6.7(2) criteria, the applicant’s expert is satisfied that:

37. Any direct, indirect or cumulative adverse impact on terrestrial, aquatic or migratory animals or vegetation will be kept to the minimum necessary for the carrying out of the development.

38. The development will not have a direct, indirect or cumulative adverse impact on aquatic reserves.

39. No approval or permit is required under the Water Management Act 2000 (NSW) or the Fisheries Management Act 1994 (NSW).

40. The land does not abut a natural waterbody.

41. There will be no adverse impact on wetlands.

42. In relation to s 6.8(1) considerations, the applicant’s expert’s position is that the development will have no impact on periodic flooding that benefits wetlands and other riverine ecosystems. In relation to s 6.8(2) criteria, the parties’ position is that the development:

43. Will not result in the release of pollutants in the event of a flood.

44. Will not have an adverse impact on the natural recession of floodwaters into wetlands and other riverine ecosystems.

45. In relation to s 6.9(1) considerations, the applicant’s expert’s position is that:

46. The development will have no impact on recreational land uses in the Georges River catchment.

47. The development has no impact on public access to and around foreshores.

48. In relation to s 6.9(2) criteria, the applicant’s expert is satisfied that:

49. The development has no impact on public access to and from natural waterbodies for recreational purposes.

50. The development does not involve new or existing points of public access to natural waterbodies.

51. The land does not form part of a foreshore of a natural waterbody.

52. In relation to s 6.10, the expert’s position is that the development will not have an adverse environmental impact for adjacent and downstream local government areas.

53. In relation to s 6.11, the land is not within 100m, of a natural waterbody.

54. The site is not within a riverine scenic area (s 6.12), a Hawkesbury-Nepean conservation area sub-catchment (s 6.13) or the Georges River Drinking Water Catchment (s 6.60) and does not involve temporary use of land (s 6.14).

State Environmental Planning Policy (Resilience and Hazards) 2021

28. Section 4.6 nominates matters that must be considered before a development application is determined. By reference to s 4.6(4):

29. The land is not within an investigation area;

30. The land does not contain and is not previously known to have contained development for a purpose referred to in Table 1 to the contaminated land planning guidelines; and

31. To the applicant’s knowledge, no use identified in Table 1 has occurred on the site.

32. Having regard to the above, s 4.6(2) does not oblige the provision of a report specifying the findings of a preliminary investigation of the land carried out in accordance with the contaminated land planning guidelines. Notwithstanding, s 4.6(1) provides that a consent authority must not consent to the carrying out of a development unless:

33. It has considered whether the land is contaminated, and

34. If the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be, after remediation) for the purpose for which the development is proposed to be carried out, and

35. If the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

36. Due to the historical use of the land for residential purposes, the applicant is satisfied that it is highly unlikely that the land is contaminated, and that the land is suitable for the proposed development.

37. For those reasons, I make the following orders:

38. The appeal is upheld.

39. Development consent is granted, DA99.1/2024 for Torrens title subdivision into four lots and construction of two semidetached dwelling developments on land known as Lot 1 DP1238191, at 459 Cabramatta Road West, Cabramatta West subject to the conditions in Annexure A (Ex 5).

40. The exhibits are returned except for exhibits A, C, D, H, J, K and L.

S Dixon

Senior Commissioner of the Court

24.371634 Annexure A

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