Planning and vegetation- submissions
88 Mr Pickles for the applicant contends that the starting point of the consideration of this proposal must be the zoning. He cites McClellan CJ in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at paras 115-118. Of relevance to his argument are the following excerpts:
115 The context in which the issues in this case must be resolved includes the history of the use of the land and the contribution which it now makes to the existing natural environment. Although zoned industrial, that zoning was imposed at a time when the community's understanding of the significance of some elements of the natural environment was not as mature as it now is….
116 Notwithstanding the fact that the ecological integrity of the site may be threatened if the major road reservation were utilised for its purpose, I am satisfied that this is not a significant matter in this case. The reservation was also imposed at a time when the ecological significance of the area was unlikely to have been given any, or at least any mature, consideration. It would be inappropriate to make a decision in the present case upon the assumption that the construction of the proposed road is inevitable.
117 In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor…, planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted….Part 3 of the EP&A Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.
118 In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
119 However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.
89 In the light of BGP Properties, Mr Pickles contends that the site is zoned Residential 2C and has been so zoned from at least 1985 when there was an awareness of environmental issues [116]. He accepts that the range of permissible uses is quite wide however, he contends that the specificity of the zoning is confined to 'residential' which therefore implies a more confined use of the land. He states that there is only one zone objective and that is "to provide for new residential areas with a range of housing types with provision for urban facilities to serve the local community". He asserts that this use prevails over the use of land as open space. He states that the "particular" use of the land as affordable housing is neutral [BGP 117]. Overall, the project is consistent with the zoning.
90 With respect to the history of the site, Mr Pickles contends that the site has been in council ownership since 1926. He argues that its use as operational land by the council for the dumping of waste demonstrates that the site was not valued for its environmental values [BGP 118]. He also contends that the actions of the elected council in selling the land indicate the intent of the council. He contends that the council was fully aware of the proposed scheme and the sale was not conducted in a vacuum of ignorance as to which land was to be sold and for what purpose.
91 With respect to the degree of consideration given by council to the ecological attributes of the site, Mr Pickles argues that the NBSP, dated 2006, was not prepared in isolation and was given mature consideration and that plan identifies the site as existing residential [BGP 116]. The NBSP states that the vegetation type on the site is the most common community in the area. Notwithstanding Biodiversity Recommendation 4, he places more weight on Recommendation 1 in that the site is in an urban area and is only connected to a limited extent to other areas of similar vegetation and roads separate these. Aerial photographs show a patch of similar vegetation to the east has been significantly reduced in the years between 1993 and 2006. The area to the north, which currently contains remnant vegetation, is identified in s 9.4.3 of the NBSP as a potential new living area. Mr Pickles considers there is no support in the document for Mr Paton's argument that the site should be preserved as public open space.
92 Regarding para 119 of BGP Mr Pickles asserts that the development provides an environmentally acceptable outcome and a viable project. He considers that this is achieved by retaining 43% of the site as a dedicated public reserve. He considers that the provision of affordable housing does not have to be commercially viable in the same way that a private development may need to be.
93 With respect to the weight to be given to DCP43, Mr Pickles cites Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 at para 85 where McClellan CJ considered "a provision of any relevant environmental planning instrument must be given determining weight". Section 79C(1)(a)(iii) requires the consideration of DCPs. However, Mr Pickles contends that DCP 43 does not comply with s74C91)(a) as DCP 43 does not refer to the SLEP. He also contends that where there are inconsistencies between DCP 43 and the SLEP, as in Figure 15 in DCP 43 showing the site as zoned 'active open space', the SLEP must prevail. Similarly, Figure 3 in DCP 43 does not show the site mapped for 'main vegetation' despite the referral to it in the text of that document. In that regard, if DCP 43 were to be given substantial weight it would undermine the planning process. However, notwithstanding the low weight to be given to DCP 43, Mr Pickles considers the proposal complies with the relevant parts of DCP 43 [given in para 35 of this judgment].
94 With respect to the zoning, Mr Staunton agrees that the use is permissible but not a guarantee that housing will be approved on the site. The form and layout of any development must be assessed on its merit and that s 79C of the EPA Act requires consideration of the suitability of the site for a particular development.
95 While he accepts that DCP 43 cannot rezone the land, he considers that the objects of DCP 43 should be given weight as it identifies what might be appropriate within certain areas within the zone and what constraints are important and need to be considered. In this instance the vegetation is a significant constraint. He contends that Figure 15 in DCP 43 does not show the site marked for medium density housing.
96 Mr Staunton considers DCPs 43, 71 and 100 as well as the NBSP call for the preservation of vegetation. He presses the point that the stand of vegetation is identified in DCP 43 as one of several important stands in the area of East Nowra which the DCP applies [see para 35 of this judgment].
97 Mr Staunton also argues that the private contractual arrangements between the council and the applicant cannot fetter the planning discretion. He cites Lloyd J in Gwandalan Summerland Point Action Group In v Minister for Planning [2009] NSWLEC 140 at paras 144-146. Essentially, regardless of any pre-existing commitment, there is an obligation on the decision-maker to consider any application on its merits. In this respect he states that the council accepts that it sold the land to the applicant on the basis that it would be used for affordable housing but that says nothing about whether affordable housing or its form is appropriate for the site. This is a matter for evaluation under s 79C of the EPA Act. He reiterates that the vegetation on the site is a key constraint.
98 Council's second contention is that the proposal is an overdevelopment of the site and is out of character. Mr Pickles asserts that the development only uses 57% of the site and that no standard has been advanced to support a lower density. He notes the lower than recommended dwelling yield. He contends that if not for the inclusion of one dual occupancy and one lot for integrated housing, the development would not be medium density.
99 With respect to the contention that the development is out of character, he argues that trees are not part of the character of Golden Grove as there are no trees on the road reserve and no substantial trees in any yards of the exiting properties. Trees are only a character of the site. He contends that if the Golden Grove character was mirrored on the northern side of the street than the same denuded character would result. He accepts that the trees on the site make a contribution to Greenwell Point Road and are more important in their contribution to public amenity. He considers that the general principle of the retention of vegetation reflected in DCP 43 and the NBSP is accommodated by the amendment of the application that is now before the Court.