Namul v The Hills Shire Council

The site and locality

1. The site for the proposed development is described as Lot 12 in DP1169214 and is known as Lot 12 York Road, Kellyville (the site).
2. The site is relatively regular in configuration with an area of 3.59ha and has legal frontage to York Road to the south and west and Alessandra Drive to the east. However, York Road to the south of the site is not a dedicated public road and is constructed over Lot 2, DP 502655. At the time of determining the application, the site did not have a legal right of carriageway over Lot 2, DP 502655.
3. The site is vacant and devoid of vegetation with perimeter security fencing. It has a fall in natural ground level from a central point on the southern boundary towards the north eastern and north western corners of approximately 9m.
4. The locality in the vicinity of the site comprises a mix of uses, predominantly residential, of a low density nature but including medium density and high density dwellings. Residential dwellings back or side onto the site to the north, west and east. The Kellyville Plaza shopping centre is located directly to the south along with two Sydney Water reservoir towers. The southern portion of York Road separates the shopping centre from the water towers and is currently used for delivery vehicles and cars accessing the shopping centre.

Background to the amended proposal

1. The refused application lodged in October 2015 proposed essentially the same development as was the subject of the appeal, but with a higher density, proposing initially 340 then 311 dwellings in three RFB's rather than the amended application which comprised 302 dwellings in six RFB's.
2. The original application was notified and 47 objections were lodged. Submissions raised a number of concerns including with the scale and density of the development relative to a previous approval for the site, traffic, height, overshadowing, and amenity impacts. Concerns were also raised at the interface with existing adjoining lower density residential development.
3. In May 2016 the application was refused by the JRPP and in June 2016 the appeal was filed with the Court.
4. The appeal was the subject of conciliation under section 34 of the Land and Environment Court Act 1979 in August 2016. Following termination of the conciliation conference, the Court granted Leave on October 11, 2016 for the applicant to rely on an amended application which arose from the conciliation and which addressed a number of contentions. The amended proposal included a reduction in the bulk and scale of the development and increased setbacks, additional privacy devices, and provision of additional information and modifications sought by the Council with regard to the child care centre. Updated documentation associated with the amended proposal was subsequently provided.
5. The amended proposal was notified and 8 objections were lodged in response.
6. The remaining contended issues were: the proposed development of the 'transition land' and overdevelopment in terms of the future density of the population of the development as a consequence. The Council also raised the fact that York Road south of the site was not a public road or on land owned by the applicant and sought dedication of the road extension of York Road and Alessandra Drive as part of the subdivision. These road and access issues had been resolved by the time of the hearing.
7. At the commencement of the hearing, and with the consent of the respondent, the Court granted Leave for the application to rely on further modifications to the proposal which solely entailed removal of minor height non-compliances across the development so that a clause 4.6 variation request was not required.

Resident Objections

1. The hearing commenced on site and the Court heard from four residents who raised specific concerns in terms of the application; three who reside in Hutchinson Avenue and one from Alessandra Drive, all being properties which adjoin the site to the east.
2. Issues raised included:

• the extent of community opposition to the development
• the proposal was substantially denser than an approved development of the site which was predominantly for 1-2 storey homes
• the high rise nature of development was inappropriate and out of character with the predominantly low density residential area
• height and scale
• view, visual and privacy impacts
• inadequate setbacks to boundaries
• trees too close to boundaries
• non-compliance with planning controls
• increased traffic and lack of parking in surrounding streets including inadequate capacity of York and Green Roads to accommodate the additional traffic generated
• impact on the temporary access road into Hutchinson Avenue and on Alessandra Drive
• traffic impacts with the opening and extension of Alessandra Drive and York Road.

Statutory controls

1. The site has a split zoning under the LEP. The majority of the site adjoining the southern and the majority of the western and eastern boundaries is zoned R4 High Density Residential. The balance adjoining the northern boundary is zoned R3 Medium Density Residential. A16m maximum height of buildings limit applies for the R4 zoned portion and 10m for the R3 zoned portion respectively. RFB's are permissible in the R4 zone but not in the R3 zone. The child care centre and other works associated with the development are permissible.
2. Approximately 3,578 m² is located in the 'transition land' being land zoned R3 but within 20m of the R4 zone.
3. Clause 5.3 Development near zone boundaries of the LEP applies to the transition land. The applicable provisions of Clause 5.3 read as follows: (1) The objective of this clause is to provide flexibility where the investigation of a site and its surroundings reveals that a use allowed on the other side of a zone boundary would enable a more logical and appropriate development of the site and be compatible with the planning objectives and land uses for the adjoining zone. (2) This clause applies to so much of any land that is within the relevant distance of a boundary between two zones. The relevant distance is 20 metres. (3) … (4) Despite the provisions of this Plan relating to the purposes for which development may be carried out, development consent may be granted to development of land to which this clause applies for any purpose that may be carried out in the adjoining zone, but only if the consent authority is satisfied that: (a) the development is not inconsistent with the objectives for development in both zones, and (b) the carrying out of the development is desirable due to compatible land use planning, infrastructure capacity and other planning principles relating to the efficient and timely development of land. (5) This clause does not prescribe a development standard that may be varied under this Plan.
4. The objectives of the R3 zone under the LEP are: To provide for the housing needs of the community within a medium density residential environment. To provide a variety of housing types within a medium density residential environment. To enable other land uses that provide facilities or services to meet the day to day needs of residents. To encourage medium density residential development in locations that are close to population centres and public transport routes.
5. The objectives of the R4 zone are the same as for the R3 zone except that the words 'medium density' are replaced with the words 'high density' throughout.

Development in the 'transition land'

1. As previously indicated, the key contended issue with the application was the applicability of clause 5.3 and the appropriateness of its utilisation in the manner proposed, namely to allow RFB development in the 'transition land' which would otherwise be prohibited in the R3 zone.
2. Specifically, the application proposed 'fingers' of RFB built form into the transition land with the balance of the R3 zoned portion of the land comprising landscaped open space. Therefore all of the permissible density across the entire site is proposed to be confined to the R4 zoned portion and the transition land with no built form development in the balance of the R3 zoned portion.
3. The applicant argued that this approach to developing the site provided a better outcome than R3 development for the extent of the R3 zoned portion of the site, and that the development met the intent of cl 5.3 because both of the zones and the transition land were in the one large site where an integrated approach to the overall built form and landscaped setting could be considered. Furthermore, although RFB components were contained within the transition land, the development in this location was at a reduced height commensurate with the R3 height limit, providing a transition in height and density from 5 storeys in the R4 zone to 3 storeys in the R3 transition land.
4. Expert planning advice was provided to the Court by Ms Brown for the applicant and Mr Young for the Council.
5. The experts agreed that cl 5.3 applied to the site and that the proposed development was permissible under the LEP on the R4 zoned land and, subject to satisfying the provisions of cl 5.3(4), the Court could grant consent to the proposed development, including the RFB components on that part of the site zoned R3 within 20m of the R4 zone boundary.
6. Rather than contain floor space ratio (FSR) controls, the DCP specifies maximum densities in each of the residential zones on the basis of the maximum number of persons per hectare (pph). The experts agreed that the DCP density control provides for a total population on the site of 553.4 persons if all of the R3 and R4 zoned land was developed in accordance with the permissible density for the respective zones but without assuming any density increase in the transition land. Based upon the number and type of apartments proposed, the development would yield a population of 579.6 persons.
7. However, the DCP provides that the density applicable to RFB's applies wherever RFB's are permissible (ie irrespective of the zoning). Therefore, the experts agreed that, should the Court consider the application satisfied cl 5.3, the density in the 20m transition land portion is 150-175 pph and the additional maximum permissible population of that land would be 28.6 persons which makes the maximum permissible density of the site overall 582 persons. On this basis the overall development would comply with the permissible density under the DCP.
8. What was not agreed was whether or not it was an appropriate application of cl 5.3 to allow extension of RFB development onto the transition land.
9. Mr Young advised that the Council had not previously contemplated this application of cl 5.3 although he did not disagree that it could be applied. It was whether or not it was appropriate in this instance. He accepted that there may be little purpose to cl 5.3 in allowing a land use to be permissible in the R3 zone which was permissible only in the adjacent zone, if that development was then restricted by the application of development standards and controls that would otherwise apply in the lower density zone. However, there would similarly be no point in cl 5.3 if it fully allowed what was in the R4 zone and therefore did not provide any transition to the R3 zoned land.
10. The applicant argued that the development in the transition land was transitional in that it adopted the height limits for the R3 zone, not for the R4 land, allowing a reduction in the height of the RFB components situated within the transition land.
11. There was much written evidence by the planning experts on the appropriate density calculation to apply and whether, if the maximum R3 permissible density was not sought on the R3 zoned portion of the land, that density could instead be transferred to the transition land or the R4 zoned portion of the site. The test was whether or not the requirements of cl 5.3 (4) could be met.
12. Ms Brown argued that the Court could be satisfied that the proposed development was not inconsistent with the objectives of development in both zones in that the proposed development demonstrated a site responsive design which provided for the housing needs of the community. A variety of ground and upper level apartments of different sizes, layouts and orientation were proposed. The site is an infill site which adjoins the Kellyville Plaza Shopping Centre and is in close proximity to residential neighbourhoods comprising low, medium and high density residential forms and a number of supporting recreational and educational uses as well as public transport.
13. Furthermore, the services and infrastructure reports and engineering plans that accompanied the application demonstrated that the development is or will be well serviced by the required infrastructure. Completion of the through roads would be undertaken by the applicant and ceded at no cost to the Council, and development would proceed in an orderly manner as it was over a large vacant site which was unusual in context.
14. Mr Young accepted that, providing the RFB components within the transition land reflected the R3 controls, the development was not inappropriate. He also accepted that, if the use was permissible, then the applicable density for that use should also be applied.
15. However, in Mr Young's view, the subdivision of land would normally proceed first followed by applications for development on the created lots but this had not occurred. As a result, the density applicable to the portion of R4 zoned land being utilised for roads and the child care centre was being 'transferred' to development on the balance of the site. If the child care centre, didn't proceed, a future application could seek to develop the child care centre lot at its permissible density.
16. Ms Brown advised that there was no requirement for subdivision to precede development and the application enabled the overall development, including lot and road creation and the subsequent uses and built form outcomes, to be considered concurrently. She argued that the child care centre was part of the application and any modification to development of the child care site would require a modification to the consent. Furthermore, as the site was being developed through a single application there was no reason why the density calculable for the entire site could not be located where it was most appropriate.
17. Nevertheless the applicant agreed to a condition requiring an Occupation Certificate to be issued for the child care centre prior to the issue of an Occupation Certificate for the 171st apartment in the development, to preclude additional apartments being occupied until the child care centre had been developed.
18. Ms Brown also pointed out to the Court that the Council had chosen to apply cl 5.3 to only certain zones which included the R3 and R4 zones and the applicant believed the application of the clause was appropriate given the dual zoning and context of the site. It would enable the applicant to determine the best overall built form outcome without being overly constrained by a zoning boundary which had not been determined on any strategic basis but only sought to provide appropriate integration with lower density neighbours, which had been achieved with the form of development proposed.
19. Ms Brown also noted that RFB's were permitted in the R3 zone in North Kellyville so this form of housing was not inconsistent in a medium density context.
20. The experts also agreed that, as the density controls are in the DCP rather than the LEP, they are only a guide and, under the provisions of section 79C(3A) of the Act, there is flexibility to vary the controls if the objectives of the control are achieved through an alternative solution. In this instance it relates to increasing the density through utilisation of the transition land for RFB's however, it removes any density over the balance of the R3 zoned portion of the land. As no amenity impacts arose as a result of the density distribution, and there were also no adverse impacts on adjoining streetscapes, the local area or adjoining dwellings, Mr Young accepted that any density non-compliances would, in any event, only be minor and not a ground for refusal.
21. The Council therefore accepted that the built form outcome with substantial landscaped setbacks to adjoining lower density residential development was appropriate for the site with the design of the six RFB's meeting the provisions of the Apartment Design Guide and SEPP65, and the controls of the R3 zone for the components in the transition land.
22. Mr Young also advised the Court that, albeit the applicant had chosen to undertake minor modifications to the design to achieve total compliance with the height controls in the LEP, he was not concerned with the minor height non compliances as had previously been proposed.
23. Ms Brown summarised the benefits of the development as reflected in the amended application as:

• providing a greater separation from residential neighbours through significant areas of communal open space of up to 34m in width to the north, and landscaped setbacks of over 15m to the east and west other than in the south west corner adjoining the water towers. The amount of landscaped open space provided was well in excess of Council requirements;
• proposing a form of RFB development which stepped down in height over the transition land, maximised landscaping and minimised overlooking and visual privacy impacts;
• providing RFB designs which met core planning controls as well as ADG and SEPP65 design requirements in terms of apartment size and layout, building separation, solar access and open space provision, as well as providing these developments in a landscaped setting
• enabling the proposed extension of Alessandra Drive and York Road to provide the missing links in the local road network and facilitate permeability. The Traffic Impact Analysis had indicated that the traffic generated would be acceptable for the local network; and
• providing a child care centre for use not only by residents of the development but by the broader community.

1. Mr McEwen, counsel for the applicant, in submissions advised that the applicant was cognisant of the fact that the site was surrounded on three sides by lower density residential dwellings. The development had been designed accordingly with the maximum density concentrated at the centre of the site and adjoining the water towers and away from the common boundaries with adjoining lower density residential properties. Furthermore, the child care centre adjoined the shopping centre.
2. Mr McEwen argued that clause 5.3 is available to the applicant and was appropriately used in this instance to design an integrated development across the site which utilised the transition land in an appropriate manner. Cl 5.3 has the objective of providing flexibility and, in his view, there would unlikely be a more logical or compatible application of the clause in terms of allowing an appropriately transitioned development of a large site. He stressed that the applicant was not seeking to maximise application of the R4 provisions for development in the transition land but only the ability to accommodate an extension of the use across zone boundaries, but with the R3 component of that use designed in accordance with the R3 controls.
3. In the applicant's view, the resultant outcome from utilisation of cl 5.3 was an efficient use of the land maximising the developable area for a concentration of density whilst enabling positioning of the communal open space where it is most able to provide a buffer to lower density adjoining dwellings whilst providing an amenity to future residents of the development in terms of outlook, solar access and useable recreational space.
4. Mr McEwen also argued that the alternative, of developing all of the R3 zoned land for medium density dwellings, would like likely result in far greater impacts on adjoining neighbours relative to the proposed development with generous setbacks provided to the RFBs to avoid overlooking, overshadowing or other amenity impacts. It also avoided the need for more roads to service medium density dwellings in the R3 zone and would coexist in harmony because the overall density would be as expected in the DCP. In his view, clause 5.3 had enabled good siting and design flexibility across the two zones and the ability to provide open space and significant areas of deep soil landscaping where it could best serve future and existing residents.
5. Furthermore, the site was close to 4ha affording a single opportunity to plan the whole of the site and cl 5.3 meant that the site's dual zoning was not an impediment to an appropriate built form outcome. The development would not be a precedent given the size and context of the site. There was adequate infrastructure capacity with completion of the development allowing the extension of the through roads and the removal of temporary roads and to allow the road network to function as it was intended.
6. The applicant argued that the Council had no concern with the R4 built form outcome or intent of clause 5.3 in providing flexibility where development adjoined another zone and this is exactly the use to which it has been put in this proposal. The ADG only requires 25% communal open space whereas over 50% is provided, there is solar compliance and there is no unreasonable overlooking with the public also benefitting from a permeable road system once the roads were completed.

Response to remaining issues raised by residents

1. In terms of the previous approval for the site, Mr Young advised the Court that the approval reflected a lower density zoning at the time which also had a different road network. Given the high density zoning of the majority of the site that exists now, its proximity to the shopping centre, and the size of the site to accommodate higher densities with minimal impacts on neighbours, the form and higher density of development now proposed was appropriate.
2. The application proposes that all of the RFB's and the child care centre will be accessed off the new sections of York Road or Alessandra Drive minimising impacts on existing streets and providing additional capacity for onstreet parking as well as substantial onsite visitor parking totalling over 200 spaces.
3. The planning experts agreed that the proposal as amended would not result in any overlooking or loss of privacy internal to the site nor to adjoining properties and that the substantial landscaped buffers to adjoining dwellings would minimise amenity impacts and provide a landscaped outlook for neighbours.

Findings

1. The amended application was acceptable to the Council, including the form and design of the development, subject only to the appropriateness of applying clause 5.3 of the LEP.
2. In this regard, I agree with Mr Young that the clause was unlikely to have been included in the LEP to facilitate the form of development that this application proposes. However, I also agree with both planning experts that there is no legal impediment to applying the clause in the manner proposed, subject to the application meeting the requirements of the clause.
3. I accept Ms Brown's evidence that the site is relatively unique in both size and zoning configuration having both zones the subject of cl 5.3 contained on the site. The applicant has utilised the provisions of cl 5.3 to provide flexibility in designing an integrated development of the total site rather than developing two different forms of residential development over different parts of the site.
4. In applying a dual zoning to the site, the Council and potentially adjoining residents would have anticipated high density development confined to the R4 zoned portion and medium density development over the R3 portion. However, this does not preclude the application of cl 5.3 to achieve a different built form outcome across the site which still provides a transitioning in the scale and density of development between the R4 zone and the adjoining residential streets and properties in lower density zones.
5. Clause 5.3 has the objective of providing flexibility to permit the extension of uses across zone boundaries. In this instance, it will facilitate lower scale components of residential flat buildings predominantly located on the R4 zone in the transition land. The benefit of this form of development is that it achieves the same outcome in terms of a lower density and scale of development closest to existing low density development fronting the 3 surrounding residential streets but in a built form which enables all of the R3 zoned land, other than the transition land, to be set aside and developed for either communal open space or deep soil landscaping on large setbacks from existing adjacent dwellings.
6. I accept that this outcome satisfies objectives of both the R3 and R4 zones and of clause 5.3. On this basis the application, as amended, is approved.
7. I have come to this conclusion given that, whilst not the likely intended application of clause 5.3, the manner in which the clause has been utilised in this instance is not inappropriate. The core objective of the clause is achieved in terms of providing design flexibility in arguably a more logical and appropriate development of a large dually zoned infill site than might otherwise eventuate.
8. The development in the transition land is compatible with the planning objectives and land uses for the adjoining zone by enabling a holistic approach to the development of an entire site in which the delineation line between the two zones does not appear to be strategically determined nor serve any useful planning purpose other than to provide a transition in scale and density which is achieved in any event.
9. I also find that the development meets the requirements of cl 5.3 in that it has the required infrastructure capacity to enable efficient and timely development of the land in the manner proposed.
10. Appropriately, the applicant has not sought to apply the R4 development standards to the transition land but only the extension of a use into it which is permissible, in a form reflective of the transitory requirements of the location.
11. Having determined that the use of the transition land for RFB development is permissible, I have then considered the applicable design controls in terms of height and density that should reasonably apply in a less dense zone. This is in order to achieve the acceptable amenity outcomes provided in a lower order zoning. This has been achieved in the design whereby, although the form of dwellings provided may not have been as would be expected in the R3 zone, the maximum height of that zone is achieved in the proposed development along with substantially greater setbacks of the built form and provision of perimeter landscaping and open space. Arguably this is a better built form outcome than might otherwise eventuate were the R3 zoned land instead developed with traditional medium density housing.
12. I do not consider it unreasonable to 'transfer' the density generated by the site area zonings to the most appropriate location within the site if the overall density for the site is not exceeded, as is the case in this instance. The resultant built form occurs in the area of the site where higher densities are anticipated and amenity impacts can be minimised.
13. The intent of the DCP controls is that they are applied flexibly. Having regard to the relatively unique context and size of the site, and given the landscaped setting and amenity benefits that flow from the distribution of density as proposed, I believe it is appropriate to be flexible in application of the DCP controls accordingly. However, I also note that the DCP specifically provides that the density is tied to the use not the zoning and therefore it is appropriate to apply the RFB density figures to the transition land given RFB's are permissible on that land. Therefore the development does comply with the DCP numeric controls.
14. In terms of the issues raised by the residents I note that the majority of development of the site in it is in accordance with its R4 high density zoning in which RFB's could reasonably have been expected. Therefore, the visual and view impacts are also as may be reasonably expected given the height limitations of the LEP for both zones are complied with.
15. The design and location of the RFB's is such that no amenity issues arise for neighbours or between RFB's in terms of privacy, overlooking or solar access. This is as a result of the generous setbacks to adjoining low density residential development enabling additional tree planting and deep soil landscaping adjoining residential boundaries which I consider to be an outcome of particular benefit to neighbours, notwithstanding that the proximity of trees was raised as a concern by one resident.
16. In terms of the extension and connection of the two roads through the development, namely York Road and Alessandra Drive, these are in accordance with the DCP intent for development of the site and will provide increased permeability. Their construction will also provide frontage and access to all of the proposed RFB's and the child care centre in the development, removing any direct access impacts on adjoining streets.
17. The traffic associated with the development was found on expert written material submitted with the application to be acceptable and the road connections proposed will result in a traffic network and distribution that the Council anticipated would occur when the land was zoned for the form and density of development now proposed.
18. Provision of parking complies with DCP requirements and was determined by the Council to be adequate. The creation of the two connecting through streets will provide the opportunity for additional on street parking within the development site itself which will also provide in excess of 200 off street visitor bays. It will also allow the removal of temporary access roads and the creation and dedication of the southern portion of York Road.
19. Notwithstanding the objections of the residents I therefore consider the development overall to be appropriate for the site. With the imposition of the conditions as agreed by the parties during the hearing, I am satisfied that there are no remaining grounds to refuse the application and that the development is an appropriate response to the planning controls and the dual zoning of the site.

Orders

1. The orders of the Court are: 1. The appeal is upheld. 2. Development application No. 576/2016/JP for the subdivision of Lot 12 York Road, Kellyville into 3 lots and the development of these lots for six residential flat buildings and a child care centre is approved subject to the conditions set out in Annexure "A". 3. The exhibits, other than Exhibits 1, A, B and C, are returned.

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Jenny Smithson Commissioner- 197481.16 Smithson (C) (509 KB, pdf) 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: 23 December 2016