Universal Property Group Pty Ltd v Blacktown City Council - [2019] NSWLEC 1405 - NSWLEC 2019 case summary — Zoe

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Universal Property Group Pty Ltd v Blacktown City Council

[2019] NSWLEC 1405

Land and Environment Court (NSW)|2019-08-06

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-08-06

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

Judgment

COMMISSIONER: The Applicant lodged development application DA/18/01175 with Blacktown City Council on 5 July 2018. The development application seeks approval for the Torrens title subdivision of an existing seven approved lots into 51 residential lots with lot sizes ranging from 250m² to 450m². The application also seeks consent for civil and landscape works. The seven lots the subject of the application are proposed Lots 31-37 approved under an early development application on the subject land: DA/17/01148. The development is proposed at 116 Cudgegong Road, Rouse Hill.
The Applicant is appealing the deemed refusal of the application in accordance with the provisions of s 8.7 of the Environmental Planning and Assessment Act 1979 (the EPA Act). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act.
The application was subject to mandatory conciliation under s34 of the Land and Environment Court Act 1979 (LEC Act). Following the termination of the conference the Applicant sought and obtained leave to amend the application on 8 July 2019 and rely on updated and additional reports in support of the development application.
The application was further amended on 1 August 2019. The applicant was granted leave by the Court to rely on an amended building envelope plan for proposed Lots 94-109, amended landscape plans, waste management plan and an updated variation request in relation to the minimum lot size standard.
The Respondent maintains that the proposed development should be refused on the following grounds: 1. the proposed lots do not meet the minimum lot size standard applicable to the land. The Court would not be satisfied that the grounds relied on in the written variation request are sufficient to justify the variation; 2. that the lot size variation sought should be effected through an amendment to the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (Growth Centres SEPP) as a planning proposal under Part 3 of the EPA Act, rather than utilising cl. 4.6 of Appendix 6 of the Growth Centres SEPP; 3. the proposed development fails to adequately address its future relationship with the adjoining Rouse Hill Anglican College and fails to provide any methods of mitigating any potential or actual conflict with the schools use; and 4. the proposed development has an unreasonable visual impact.

[3]

Public Submissions

The development application was notified to adjoining and proximate landowners by Blacktown City Council.
A written submission was received from Ingham Planning Pty Ltd on behalf of the Anglican Schools Corporation, in relation to the adjoining Rouse Hill Anglican School. The objection makes the following comments in relation to the proposed development:

The Rouse Hill Anglican College anticipates the need for further expansion of the school into its land at Lot 14 DP 1120290 (37 Worcester Road) to provide for the needs of children throughout the North West sector. This land is adjacent to the proposed development.
The proposed subdivision ignores the planning intent behind the minimum lot size provisions of the Growth Centres SEPP.
The application is inconsistent with a planned amendment to the Growth Centres SEPP to prescribe maximum densities.
The written request to vary the minimum lot size is excessive in quantum and fails to demonstrate a better planning outcome.
The small lot residential subdivision of the land is inappropriate.
The proposed relocation of the internal road for the subdivision will create a four-way intersection with Cudgegong Road that will require future upgrade by Council.

At the commencement of the hearing two objectors addressed the Court and made the following submissions in objection to the proposed development:

the proximity of residential development, at the increased density proposed, will impact the future usage of the school ovals adjacent the subject site due to the likely complaints from future residents in relation to noise, lighting and use of the fields.
at the proposed lot size of between 280m² - 450m² the uses (residential and educational establishment) are incompatible as separation between the uses cannot be achieved within the new residential lots. In comparison, the 2,000m² lots required by the planning controls would allow a greater separation between the uses and would resolve their incompatibility.

[4]

Relevant Planning Controls

The subject site is identified as bushfire prone land and is integrated development under s 4.46 of the EPA Act. The application was referred to the Rural Fire Service NSW and a bushfire safety authority was provided on 12 October 2018.
The site is subject to the provisions of the Growth Centres SEPP. The relevant aims of the policy, at cl. 2, are: … (c) to provide for comprehensive planning for growth centres, (d) to enable the establishment of vibrant, sustainable and liveable neighbourhoods that provide for community well-being and high quality local amenity … (h) to protect and enhance land with natural and cultural heritage value. …
Pursuant to cl. 7 of the Growth Centres SEPP the controls that apply to the subject site are: Area 20 Precinct, North West Growth Centre and are in Appendix 6 of the instrument.
Clause 2.6 of Appendix 6 allows for the subdivision of land, but only with consent.
Pursuant to cl.2.3(1) the land is zoned R2 Low Density Residential and the consent authority must have regard to the zone objectives when determining a development application. The objectives of the R2 Low Density Residential zone are: - to provide for the housing needs of the community within a low density residential environment. - to enable other land uses that provide facilities or services to meet the day to day needs of residents. - to allow people to carry out a reasonable range of activities from their homes where such activities are not likely to adversely affect the living environment of neighbours. - to support the well-being of the community, by enabling educational, recreational, community, religious and other activities where compatible with the amenity of a low density residential environment.
The minimum lot size standard applicable to the land is at cl. 4.1 of Appendix 6. The objectives of the clause are: "(a) to ensure orderly and efficient use of land; (b) to ensure a minimum lot size sufficient for development; (c) to allow for a range of lot sizes that cater for a diversity of land uses and employment activities."
The applicable minimum lot size for the subject site is 2,000m². The Applicant seeks to vary this development standard pursuant to cl. 4.6 of Appendix 6 of Growth Centres SEPP.
It is agreed between the parties that the residential density provisions in cl. 4.1B do not apply to the subject site.
The application is subject to the provisions of Blacktown City Council Growth Centres Precincts Development Control Plan 2018 (DCP 2018).
Clause 2.2 of DCP 2018 notes that an Indicative Layout Plan (ILP) applies to each Precinct. The objectives cl. 2.2 are: "(a) to ensure that development in the Precinct occurs in a coordinated manner consistent with the North West Structure Plan and the Precincts Indicative Layout Plan…."
The Respondent argues that the development proposed by the Applicant is inconsistent with the ILP and the precinct planning vision.
The relevant controls under cl. 2.2 are: "(1) All development applications are to be generally in accordance with the Indicative Layout Plan. (2) When assessing development applications, Council will consider the extent to which the proposed development is consistent with the Indicative Layout Plan. (3) Any proposed variation to the general arrangement of the Indicative Layout Plan must be demonstrated by the Applicant, to the Council's satisfaction, to be consistent with the Precinct Planning Vision in the relevant Precinct schedule."
The precinct specific controls are contained in Schedule 4 of DCP 2018. Clause 2.1 of Schedule 4 states: "This schedule should be read in conjunction with, and in addition to, the main body of the DCP. In the event of an inconsistency between this schedule and the main body of this DCP, this schedule takes precedence." (Exhibit 3)
The precinct ILP is documented at Figure 2-1 which identifies the subject site as 'Very Low Density Residential'. Clause 2.1 contains the following Precinct Planning Vision (emphasis added): "2.1 The Area 20 Precinct - Precinct Planning vision The vision for Area 20 Precinct is to create a series of walkable residential neighbourhoods supported by local retail, employment, community, open space and recreational opportunities. The majority of housing will be in medium density forms, such as semi-detached and townhouses, though the Precinct will provide for a range of densities, dwelling types and affordability options including larger lots and standard detached houses, with apartments in close proximity to Rouse Hill Town Centre and its associated public transport opportunities. The proposed North West Rail Link and new rail station near Cudgegong Road will introduce opportunities for a village centre linked to the station with surrounding higher density residential development and mixed use areas adjacent to the village centre and station. This will offer local residents improved access to jobs and services within the Precinct. Detailed provisions for the Cudgegong Station Area will ensure that station, commuter car park and rail design is properly integrated with the surrounding land uses. The Precinct is closely associated with the nationally significant Rouse Hill House Estate and the adjacent Rouse Hill Regional Park. New development will incorporate ecological sustainability principles and measures to ensure that the important historic, environmental and visual sensitivities are recognised and protected for future generations. The public domain will respect and interpret the cultural heritage of the Precinct and its relationship to the rural past, as well as conserve significant stands of remnant vegetation, particularly along the Second Ponds Creek Corridor. This will preserve biodiversity and contribute to a strong woodland character."
Clause 3.2.2 Public Domain and Landscape Character has the following objectives relevant to the subject development application: "- to establish a public domain and urban character that respects and interprets the cultural heritage of farmland and historical context and linkages of the Precinct and the nationally significant Rouse Hill Estate. - to minimise the visual impact of development on Rouse Hill Estate and its landscape context through sympathetic architectural design and retention of existing woodland canopy trees in prominent locations (eg. the Northern Ridgeline) and additional native tree planting within subdivisions and along key road corridors. - to retain elements of existing rural landscape character at the interface with Rouse Hill Regional Park and to establish a visually appealing approach to Rouse Hill Estate as viewed from the historic Windsor Road travelling north-west."
Figure 3.4 of Schedule 4 identifies the subject site as part of the 'Northern Ridgeline'. Clause 3.2.2 has the following relevant controls for the Northern Ridgeline: "….. 8. The applicant must demonstrate that the location and siting of the dwelling and associated structures has taken into consideration minimising tree removal. If trees are required to be removed as part of a development, where possible replacement trees capable of achieving a similar size should be planted to replace them. 9. Plans submitted with the development application for subdivision are to establish the development footprint within each allotment and the mature trees to be retained and any other trees to be planted."
An indicated subdivision concept sketch for the Northern Ridgeline (within which the subject site is located) is detailed at Figure 3-8 of DCP 2018, extracted below.

[5]

Relevant Strategic Documents:

The first Precinct Plan for Area 20 was made in 2011. In 2016 the land directly opposite the subject site fronting Cudgegong Road was rezoned in. The effect of the rezoning was to remove the minimum lot size standard of 2,000m² on part of this land, amend the zoning of this portion to R3: Medium Density Residential, allocate the remaining land for a public park and rezone this land as RE1: Public Recreation. Extracts of the relevant zoning maps are included below: Zoning Extract from Growth Centres SEPP, Land Zoning Map LZN_009, in force from 21 Oct 2011 to 26 Jan 2012: NOT IMPLEMENTED: support for w:pict - without v:imagedata Zoning Extract from Growth Centres SEPP, Land Zoning Map LZN_009, in force: NOT IMPLEMENTED: support for w:pict - without v:imagedata
During this zoning review process no change was made to subject land which remains zoned R2: Low Density Residential.
The recently gazetted R3: Medium Density Residential zoned land, circled in the above extract, has a mapped residential density of 25 dwellings/ hectare (Growth Centres SEPP, Residential Density Map RDN_009).
The land directly to the south of the subject site is developed for a playing field as part of the Rouse Hill Anglican School. The land immediately to the northwest of the site has consent for use as a Place of Public Worship. As such, it is accepted by the parties that the subject site is the remaining land, likely to be used for residential purposes to which the mapped minimum lot size standard of 2,000m² will apply.
During the strategic Precinct planning processes for Area 20 and Riverstone East a number of studies were prepared for the Department of Planning and Environment. The following studies are relied on by the parties in these proceedings:

Area 20: Landscape and Visual Analysis including Rouse Hill Estate Curtilage, Conybeare Morrison 2010 (CM Report 2010)
North West Growth Centre: Area 20 Precinct Cultural Heritage Interpretation Strategy, GML Heritage 2010 (GML Report 2010)
Area 20 Precinct Public Domain and Landscape Strategy, LFA 2011 (LFA Report 2011)
Riverstone East Landscape and Visual Assessment, Cox and Place Design, 2014 (Cox Report 2014).

[7]

The variation to the minimum lot size standard:

The Applicant seeks to vary the minimum subdivision lot size standard at cl. 4.1 of Appendix 6 of the Growth Centres SEPP by utilising cl. 4.6 of that instrument.
The approach to be taken by the Court to applying cl. 4.6 is summarised by Preston CJ in RebelMH Neutral Bay Limited v North Sydney Council [2019] NSWCA 130 ('Rebel MH v North Sydney Council') at [22-24] as follows: "[22] The permissive power in cl 4.6(2) to grant consent to development that contravenes a development standard is subject to conditions that must be met before the power can be exercised. First, cl 4.6(3) requires the consent authority to consider a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating both of the matters in cl 4.6(3)(a) and (b), being: '(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard.' [23] Secondly, cl 4.6(4) requires the consent authority to be satisfied of both of the matters in cl 4.6(4)(a)(i) and (ii), being: '(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out' [24] Only if the consent authority meets these requirements in cl 4.6(3) and (4) will the power in cl 4.6(2) to grant consent to development that contravenes the development standard be enlivened."
The Applicant's written variation request details the extent of the variation sought as follows: Extent of variation "The proposal seeks to vary the minimum lot size applicable to the subject site by between 77.5% to 87.5% by seeking a minimum lot size ranging from 450m² to 250m². … The development plans also show building envelopes for proposed lots 74 and 102 to 106, which are each to have an area below 300m². The proposed residue lot is to have an area of 2,760m², and is to be used to site a temporary stormwater detention basin." (Exhibit 2)

[8]

Submissions

Mr Staunton, for the Applicant, argues that it in the Court considering the adequacy of the written request it is irrelevant to consider the extent of the breach. He argues that there is nothing in the drafting of cl. 4.6 which imposes a numerical or qualitative limitation on the exercise of the Courts discretion.
Mr Staunton submits that the underlying purpose of the standard, detailed by Mr Nash in the written request, is supported by a review of the strategic planning studies that informed the ILP, zonings and the development standards. He relies on the following:

the executive summary of the CM Report 2010 which he argues: "plainly makes clear that this whole study was about avoiding unacceptable impacts on the state-listed heritage house" (TCPT, 6 August 2019 p. (79) (40)). Further he argues that Figure 14 of the CM Report 2010 clearly delineates the subject site as below the 'major ridgeline'.
the CM Report 2010 focuses on views and vistas from Rouse Hill Estate and provides visual mitigation measures to address these elements. Mr Staunton concludes that this approach "specifically goes to the underlying purpose of the control being to avoid (visual) impact by having larger lots which are treed" (TCPT, 6 August 2019 p(79) (50)).
the GML Report 2010 which Staunton argues, when read with the CM Report 2010, makes clear that the rural character being sought to be maintained is not a broad or general rural character, but the rural character of the heritage item: Rouse Hill Estate.
the LFA Report 2011 at 1.4 "Public Domain Principles and Objectives" which has the following objective: "To minimise the visual impact of development on Rouse Hill House Estate and its landscape context … in prominent locations" Mr Staunton argues that the emphasis of the LFA Report 2011 on identifying and analysing view corridors that have potential to affect the outlook from Rouse Hill Estate confirms Mr Nash's assessment of the underlying purpose of the standard.
the conclusion of the LFA Report 2011 is the need for larger lots on the subject land to maintain vegetative cover to screen the view of future development from Rouse Hill Estate.

Mr Staunton argues that the conclusion of the LFA Report 2011 was drawn on the basis that development of the subject land would have a visual impact on views from Rouse Hill Estate. He argues that on the agreed evidence of the planners, and the site visit, this conclusion is incorrect.
Further, Mr Staunton argues that it is apparent that to implement this objective of maintaining vegetative cover to screen the view of future development on the subject land from Rouse Hill Estate a large lot size of 2,000m² was implemented.
Given the above analysis of the strategic planning documents, and the underlying intent of the control, it is Mr Staunton's submission that the Court would adopt the grounds argued in the written request and uphold the requested variation to the minimum lot size standard.
In the alternative, Mr O'Gorman Hughes submits that the approach of the Applicant to seek the approval of the subject development utilising clause 4.6, and variations of the standard up to 87.5%, is not an orderly approach to development.
Further, Mr O'Gorman Hughes argues that the Applicant places undue emphasis on the underlying objective of the standard over the three stated objectives of cl. 4.1 of Appendix 6 of the Growth Centres SEPP.
Mr O'Gorman Hughes submits that a more fulsome reading of the strategic documents that informed the ILP and the planning controls support a broader range of objectives. He argues these include: protecting and enhancing ridgeline vegetation, and maintaining rural character in addition to the objective of ensuring new development in the precinct does not have an adverse visual impact on Rouse Hill Estate. He argues that the Applicant's view of the underlying objective is a too narrow reading of the strategic documents.
Consistent with the evidence of Mr Apps, Mr O'Gorman Hughes submits that for such a significant variation 'orderly' also includes following the process for the formal amendment of the development standard in the Growth Centres SEPP. He argues that such an approach is consistent with the process utilised by the Department of Planning and Environment in 2016 to the implementing changes to the land west of Cudgegong Road. He argues that consent for the proposed development through the use of cl. 4.6 would undermine the planning controls for the locality.
In response to the Applicant's submission that the subject site is not located on the ridgeline, Mr O'Gorman Hughes states: "So you can't say because a tree is not on the very highest point of the ridgeline that it's not on the ridgeline. We would say that a sensible reading of ridgeline would mean that it's the top of the ridge and the area surrounding it and if we're not sure whether it's on the ridgeline or not because it is not at the highest point, then we just have to look at the planning controls themselves, and at 272 there is a diagram in the DCP which defines the northern ridgeline area to include the subject site." (TCPT, 6 August 2019, p(96), (1)).
The diagram to which Mr O'Gorman Hughes refers is Figure 3.4 in Schedule 4 of DCP 2018.

[10]

Are the objectives of the standard met despite the non- compliance?

The minimum lot size standard objectives (cl. 4.1) are: "(a) to ensure orderly and efficient use of land; (b) to ensure a minimum lot size sufficient for development; (c) to allow for a range of lot sizes that cater for a diversity of land uses and employment activities…."
The written request argues these objectives are met despite the requested variation to the standard as follows: "Objective (a) - to ensure orderly and efficient use of land, The Site is within walking distance of the Cudgegong Road train station currently under construction and planned commercial centre (see Figures 9 and 10). Development of the Site for seven (7) 2000m2 lots would be an under-utilisation of the resources and infrastructure invested in the area, particularly given the rezoning of the adjacent land to the west of Cudgegong Road from large Jot subdivision under R2 zoning to medium density residential development and residue public reserve as part of the Riverstone East Priority Precinct Finalisation Report and the use of the large lot residential area to the south of the site for educational purposes. The smaller lots sizes as proposed would provide for the more orderly and efficient use of land and be consistent with the redefined development outcomes for Area 20 under the SEPP (Sydney Region Growth Centres) 2006, as amended in 2016. The proposed lot sizes are similar to those proposed on the eastern side of No.116 Cudgegong Road and logically transitions to the higher densities that would eventuate on the R3 zoned land to the west and south. The Site is separated from the R3 zoned land to the south by the recently constructed school playing fields also located within the same R2 zoning as the Site. An area of land zoned RE1 separates the R3 zoned land to the west from the site. Objective (b)- to ensure a minimum lot size sufficient for development, The primary constraint to the development of the Site with lots sizes as proposed, as would otherwise be expected within a R2 zone, was the intent to provide an increased opportunity for tree retention. That constraint has recently been removed, with approval. The lots sizes and widths conform with those required for standard housing as would otherwise apply in accordance with the GC DCP, being that required to support small lot housing. The primary controls require lots in an R2 zone with a typical 15 dwellings per hectare density to be a minimum 9m wide where front loaded and 300m2 with no building envelopes or with building envelopes where 225-300m2 (Blacktown GC DCP, pg34). The proposal conforms with these requirements, as demonstrated on Drawings No DA03/05-2 being the Building Envelope Plan. Objective (c) - to allow for a range of lot sizes that cater for a diversity of land uses and employment activities. The proposed lot sizes range from 280m2 to 450m2. Accordingly, the variation to the minimum subdivision lot size standard will not compromise the achievement of objectives of the standard." (Exhibit 2)
Further, in the joint planning report Mr Nash argues that the objectives are met on the following grounds:

the planning circumstances in which the subject site, and the surrounding lands were identified for large lot subdivision under the Precinct Plan have changed significantly from 2011 to 2016 "driven by the introduction of the North-West Metro and the location of the Tallawong Station on Cudgegong Road, about 800 metres south of the subject site" (Exhibit 2). In the 2016 rezoning the area identified for 2,000m² lots was reduced by 82%.
the development of the subject site for the approved seven lots (under DA/17/01148) would be an underutilisation of the resources and infrastructure invested in the area.
the proposed subdivision layout would be consistent with the approved subdivision at 43 Worcester Road.

The planning experts agree that: "the density of development arising from the proposed subdivision application will be consistent with the density of development approved for the adjoining site, known as 43 Worcester Road". (Exhibit 2)
In the alternative Mr Apps argues that the objectives (a) and (c) of the standard are not met. His reasoning is as follows: "To ensure orderly and efficient use of land. Whilst it is agreed that the land is well positioned in proximity to the new railway, there is more to orderly and efficient development than simply increasing densities in proximity to service infrastructure. Whilst it may be more efficient to do so, it does not follow that it is more orderly. One must consider the methodology that underpins the 2,000m² lot size when testing whether the development is orderly. In this case there is a visual impact that must be considered. … To allow a range of lot sizes that cater for a diversity of land uses and employment activities. It is not considered that this objective is met. The 2,000m² minimum allows for diversity in lot sizes by providing a lot product that is not otherwise anticipated in the precinct. The provision of lots between 280m² and 450m² contributes to neither a diversity of lot sizes in the precinct or over the site itself." (Exhibit 2)

[11]

Findings

Objective (a) of the minimum lot size development standard seeks to ensure the orderly and efficient use of land.
The Macquarie Dictionary defines these term as follows: orderly adjective 1. arranged or disposed in order, in regular sequence, or in a tidy manner. 2. observant of system or method, as persons, the mind, etc. 3. characterised by or observant of order, rule, or discipline: an orderly citizen. 4. charged with the communication or execution of orders. -adverb 5. according to established order or rule. 6. Obsolete methodically. -noun (plural orderlies) efficient adjective 1. effective in the use of energy or resources. 2. adequate in operation or performance; having and using the requisite knowledge, skill, and industry; competent; capable. 3. producing an effect, as a cause; causative. [Latin efficiens, present participle, accomplishing]-efficiently, adverb
Relevantly, Wehbe at [53] considered the (then) requirement for the consent authority to form the opinion that: "granting consent to the development application is consistent with the aim of SEPP 1 as set out in Clause 3 (one of which is the promotion and coordination of the orderly and economic use and development of land". Whilst this is no longer the test in considering a variation to a development standard under cl. 4.6, his Honour's comments at [52] of Wehbe are relevant to the current proceedings and the consideration of objective (a) of the minimum lot size standard. He states that in considering the aim of SEPP 1 it is relevant "to consider whether consent to the particular development application encourages what may be summarised as considered and planned development."
The zoning of land, as well as the designation of development standards such as minimum lot sizes, in an environmental planning instrument is achieved through Part 3 of the EPA Act. As noted in BGP Properties Pty Limited v Lake Macquarie City Council(2004) 138 LGERA 237 [2004] NSWLEC 399 at [117] a rezoning process, or the establishment of these controls, involves extensive public participation "directed towards determining the nature and intensity of development which may be appropriate on any site."
In considering these two judgements, the Macquarie Dictionary definition and the objective (a) of the standard I am satisfied that, in a planning context, 'orderly' is at least in part a reference to the delivery of the planned outcomes established by the planning controls. I say in part, because the development standards in the Growth Centres SEPP must be read in the context that the instrument has an inbuilt mechanism to vary those standards through cl. 4.6.
I accept the evidence of Mr Apps that in considering objective (a) of the standard orderly and efficient are more than "simply increasing densities in proximity to service infrastructure" (Exhibit 2). Further, these concepts or terms in objective (a) are directed to the use of the land, not as Mr Nash argues to the use of infrastructure or broader resources.
On a review of the historical version of the Growth Centres SEPP I do not accept Mr Nash's evidence that the planning circumstances for the subject site have changed significantly since the rezoning of the land in 2011. In actuality the zoning map of the Area 20 in 2011 nominates the land at the intersection of Cudgegong and Schofield Roads as "SP2: Railway" from this time.
I accept that in one view it may be seen as an underutilisation of the subject site to develop it as 2,000m² lots. However, I am not satisfied that the intent of objective (a) is the maximisation of the development yield of the land. In my view 'efficient' is not the same as maximisation. I am not persuaded by the Applicant's arguments to the contrary.
For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find the proposed development is inconsistent with objective (a) of the standard.
The Respondent also contends that the development fails to achieve objective (c) of the control, namely "to allow a range of lot sizes that cater for a diversity of land uses and employment activities."
It is the agreed evidence of the planners that the subject site is the remaining land in Precinct 20 to which the 2,000m² minimum lot size standard applies.
The existing consents for residential lots in the immediate vicinity of the site (R2: Low Density residential zoned land fronting Worcester Road) have approved lot sizes in the range of 252-500m², excluding the seven larger lots which are the subject of the current appeal.
Other residentially zoned land in the immediate vicinity of the site is zoned for medium density development. These sites are subject to a mapped dwelling density of 25 Dwellings/hectare. To achieve this density the average lot size delivered will be in the order of 400m².
With this factual context I prefer the evidence of Mr Apps and concur with his conclusion that the 2,000m² lot size that assists in achieving diversity in the Precinct that is not otherwise available. I am satisfied that the proposed provision of lots between 280m² and 450m² contributes to neither a diversity of lot sizes in the precinct or over the site itself.
For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find the proposed development is inconsistent with objective (c) of the standard.
I find that the Applicant has failed to establish that compliance with the standard is unreasonable or unnecessary on the basis that the objectives of the standard are achieved notwithstanding non‐compliance with the standard (Wehbe test 1).

[13]

Findings

I am not persuaded that the underlying purpose of the standard is not relevant to the development, nor that compliance is unreasonable or unnecessary on the following grounds.
I accept the oral evidence, summarised at [76], of Mr Apps that the lot size standard has a purpose to achieve a landscaped character. This purpose in addition to the rationale articulated in the written request, namely: for tree retention and to provide visual screening when viewed from Rouse Hill House. I am satisfied this additional purpose is demonstrated by the following: 1. The CM Report 2010 which informed the development of the ILP. This report recognises the subject site sits below the top of the ridgeline, however documents the importance of ridgeline vegetation. At Section 4.0: Opportunities and constraints the report notes; "4.3.4 Visual Mitigation and the Indicative Layout Plan (ILP) The ILP(4) has been developed in consultation with a multi-disciplinary team to assist with reducing the visual impact of development on RHE. This Landscape and Visual Analysis report provides objectives to assist with further reducing the visual impact of development on the Estate. Further planning and subdivision designs are required to preserve stands of trees on property boundaries in sensitive areas as an ongoing process. Fully understanding the topographic form and landscape character will assist in developing a development plan (ILP) that is sensitive to the views from RHE. Other master planning responses include very low density development around the Major Ridgeline." (Exhibit 3) This approach is further demonstrated in the Landscape Strategy at Figure 7 of the CM Report 2010 which notes that on the subject site: "Existing tree corridor to be augmented". 1. The LFA Report 2011 affirms this approach. At both s 4.5 'Within Lots' and s 7.6: 'Conservation of Rural Landscape Character' the LFA Report 2011notes that "the retention of existing mature trees within larger individual lots located on the northern ridgeline, north-west of the Precinct to minimise visual impact on RHRP" as one of a suite of controls that assists in conserving and enhancing the rural character of the precinct (Exhibit D). 1. The large lot indicative layout plan, reproduced at paragraph [28], originates from the LFA Report 2011. 2. Further, whilst I accept Mr Staunton's submission that the Public Domain Principles and Objectives at 1.4 of the LFA Report 2011 are relevant, the objective he relies on equally demonstrates that any underlying purpose/objective includes: "the retention of existing woodland canopy trees in prominent locations (eg. the Northern Ridgeline) and additional native tree planting within subdivisions and along key road corridors." 1. I accept the submission of Mr O'Gorman Hughes that DCP 2018 at Figure 3.4 confirms that the subject site forms part of the northern ridgeline. 1. The Cox Report 2014 similarly documents a dual objective. The report documents its aim as identifying: "opportunities and constraints with regard to future development and possible mitigation measures or objectives to reduce the impact of said development on Rouse Hill House Estate (RHHE) and the prevailing rural character of the site" (Exhibit D). The Cox Report 2014 summarises the importance of protecting the ridgeline landscape as follows: "The most significant tracts of woodland vegetation are found along and surrounding the two major ridgeline (sic) that dissect the site. This tall woodland currently provides a visual buffer to the RHHE and helps define the rural character of the Estate. To ensure the rural context is retained the woodlands located along the ridge lines are recommended to be retained and where circumstances permit, further enhanced (Exhibit D)." The Cox Report 2014 concludes that the historic and rural characteristics of the Riverstone East Precinct (which includes the subject site) is one of four visually sensitive elements of the precinct. 1. the stated objective of cl. 3.2.2 of DCP 2018 (refer [26]) 2. Figure 3.4 of DCP 2018 which maps the subject site as part of the 'Northern Ridgeline'.
When these documents, and the applicable controls in DCP 2018, are read together, I am satisfied that the underlying purpose of the minimum lot size standard is more than effecting tree retention and ensuring development on the subject site is not visible from Rouse Hill Estate or Rouse Hill House. I am satisfied it extends to maintaining a rural context and a treed ridgeline by tree retention and space for replanting. Further, I am satisfied that the underlying purpose of the standard is relevant to the development proposed.
Even if the narrower underlying purpose advanced by Mr Nash is adopted I am not satisfied that the Applicant has adequately demonstrated why their analysis of the relationship of the subject site to Rouse Hill Estate and the potential for visual impact significantly differs from that of the previous strategic studies that informed the ILP and the Growth Centres SEPP.
I note the agreement of the experts that "views between Rouse Hill House and the subject land are obscured by the ridge that the water reservoir sits on top of" (Exhibit 2). However, their evidence does not address the impact of any clearing that will be required for the additional reservoirs anticipated on this land to service future growth and how this relates to the visibility of future development on the subject site.
Finally, I note that the Cox Report 2014 includes longitudinal sections through the northern ridgeline to Rouse Hill Estate and Rouse Hill House. These sections delineate the location of Rouse Hill House Estate at RL 70. The survey included with the Class 1 Application indicates the subject site has an existing RL varying from RL 62 to RL 73. The proposed development includes cut, fill and levelling works. The civil engineering plans show proposed finished ground levels to a maximum of RL 72.8. The level of the crest of the hill, the site of the existing reservoir, is shown in the Cox Report 2014 as between 70-75m.
With these levels in mind it is difficult to reconcile with the submission of Mr Staunton that the subject site is some 30m below the level of the water reservoir (TCPT, 6 August 2019 p(82), (30)).
With the absence of information or documented analysis demonstrating how the previous studies conclusions of a potential visual impact on the State Heritage listed items is erroneous or has been overtaken by intervening events I am not persuaded that the compliance with the standard is not necessary.
I find that the Applicant has failed to establish that compliance with the standard is unreasonable or unnecessary on the basis that the underlying objective or purpose of the standard is not relevant to the development so that compliance is unnecessary (Wehbe test 2).

[14]

Is the underlying objective or purpose of the standard thwarted if compliance is required, so that compliance is unreasonable?

The Applicant's written request argues that on the basis that the underlying purpose of the standard was to "provide for greater opportunity for tree retention within any future residential development in order to provide visual screening when viewed from Rouse Hill House" it is reasonable to assume that it was orderly and efficient to have a 2,000m² lot size. The written request argues that this is because the allotments would be of sufficient size to accommodate a building footprint whilst also allowing for tree retention (Exhibit 2). Importantly the request argues that this underlying purpose can no longer be achieved as the site has been cleared of vegetation.
The written request concludes that the third test is met as follows: "…given the land on the subject site and the adjoining land to the south (Rouse Hill Anglican School) have been cleared of all vegetation it is considered that the underlying objectives or purpose of the standard cannot be achieved and therefore to comply with the standard would defeat or thwart the objective of ensuring orderly and efficient use of land." (Exhibit 2)
In the joint planning report Mr Nash further argues that the grounds that the underlying objective would be thwarted if compliance is required as follows: "… - the removal of R2 zoned land west of Cudgegong Road results in the subject site and the adjoining land at 43 Worcester Road being the only lands within the R2 zone capable of residential development given that R2 land to the south and east is occupied for educational purposes and 122 Cudgegong Road is currently subject to a development application before Blacktown City Council for a place of public worship; and - the removal of the 2000m2 minimum lot size west of Cudgegong Road representing 82% of the area originally identified in 2011 means the only R2 land remaining for the potential of large lot subdivision is the subject site (7 lots) and 122 Cudgegong Road, which is smaller than the subject site. - In real terms, the large lot standard (2000m2) only now applies to the subject site, and will in effect be isolated with medium density housing to the west and south and the R2 approved subdivision on the adjoining land at 43 Worcester Road to the east. In the circumstances, it is reasonable to conclude that the lot size standard has been virtually abandoned." (Exhibit 2)
In the alternative, Mr Apps relies on the decision of the Department of Planning and Environment in 2016, in relation to the land west of Cudgegong Road (refer [29]), to assert that the standard has not been abandoned, but rather specifically retained for the subject site. He argues: "GA accepts that the 2,000m² minimum lot size was removed from the land west of Cudgegong Road after August 2016. At the same time, the zoning of the land to the west of Cudgegong Road was changed to provide a public reserve to preserve bushland in that location. It was available to the Department to rethink the 2,000m² affectation over the subject land at the same time, however it did not. It cannot be said that the standard has been abandoned when it has been specifically retained for this site and the adjoining sites to the north and south." (Exhibit 2)

[18]

Are there sufficient environmental planning grounds to justify contravening the development standard?

The Applicant's written request must adequately demonstrate that there are sufficient "environmental planning grounds" that justify the requested variation (cl 4.6(3)(b)). In Initial Action, at [24] Preston CJ observes that there are two ways in which the request must be sufficient. Firstly; "the environmental planning grounds advanced in the written request must be sufficient to justify contravening the development standard", and secondly: "the written request must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard so as to enable the consent authority to be satisfied under cl 4.6(4)(a)(i) that the written request has adequately addressed this matter (citations omitted)."
In considering the Applicant's case in support of the variation, the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action at [24]). Therefore, the environmental planning grounds must be more than the benefits of carrying out the development as a whole: see Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15].
In the written request the Applicant argues that there are sufficient environmental planning grounds to justify the variation on the following grounds: "The proposal does not give rise to any material amenity impacts, will facilitate an appropriate density of housing given the proximity of the site to a metro station and future commercial precinct and will be compatible with the existing and planned character of the area, The proposal will be consistent with the following object of the EP&A Act at s1.3: (c) to promote the orderly and economic use and development of land." (Exhibit 2)
Mr Apps argues these grounds are insufficient given the significant nature of the departure from the prescribed lot standard. Further, he argues that the variation is more appropriately considered through a request to formally amend the North West Growth Centres Lot Size Map through an amendment to Growth Centres SEPP. He argues that this amendment should be effected through a planning proposal under Part 3 of the EPA Act.
Further, Mr Apps disagrees that the development does not give rise to material impacts, citing the adverse visual impact. Mr Apps relies on the controls at s 3.2.2 Public Domain and Landscape Character in DCP 2018 which he argues seek to retain and replace tree cover and landscaping. He argues that the purpose of the controls is to ensure that development on the ridgeline is not visually intrusive and development allows for replacement planting. It is Mr Apps assessment that the proposed lot sizes do not provide sufficient area for a dwelling and tree planting and landscaping to screen the development.
In the joint planning report Mr Nash argues that the proposed subdivision provides for boundary and street tree planting, both of which will "provide a positive contribution to the landscape character of the new urban setting, consistent with the controls under 3.2.2 of Schedule 4" (Exhibit 2).
Further, in his oral evidence Mr Nash argued that the landscape outcomes of the development are more certain in the subject development application as the planting would be required as part of the approval. In contrast he argues there is limited certainty as to the landscape outcomes arising from private plantings within larger lots such as those approved under the current consent for the site.

[19]

Findings

Pursuant to cl. 4.6(4) (a)(i) the consent authority on appeal must not grant consent for development that contravenes a development standard unless it is satisfied that, the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3). One of those matters is cl 4.6(3)(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
In Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSW LEC 61 at [80] his Honour states the following in relation to this test: "To recognise that a consent authority might need to form its own view about whether the matters in cl 4.6(3) have been achieved, in order to discharge its responsibility to determine whether it is satisfied that the applicant's written request has adequately addressed the matter required to be demonstrated by cl 4.6(3), is not to apply the wrong test. The test remains that set by the terms of cl 4.6(4)(a)(i). It simply recognises that application of that test might involve the consent authority forming its own view about the matters in cl 4.6(3). I read Basten JA's remarks in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [21]-[23] as making a similar point."
When looked at collectively I am not satisfied that the environmental planning grounds advanced by the Applicant in the written request are sufficient grounds to justify the variation contravening the development standard. My reasoning is detailed in the following.
Whilst the lot size variation does not give rise to any amenity impacts, given the scale of variation, I am not persuaded that an absence of impacts as detailed in the written request is sufficient to justify the variation sought.
On a site the size of the subject site such an outcome ought to be able to be achieved, the written request does not detail how this environmental planning ground is linked to the variation itself.
I disagree with the evidence of Mr Nash that the variation to the lot size standard will facilitate an appropriate density of housing that will be compatible with the existing and planned character of the area.
Clause 3.2.2 of DCP 2018 and the Precinct Planning Vision both detail specific intent for the northern ridgeline. In my view that intent is for larger lots in proximity to the rail and with the capacity for retention or replacement of trees to a height similar to those present at the time of the drafting planning controls.
Finally, I am not persuaded that the requested variation will promote the achievement of the object 1.3(c) of the EPA Act. Given my discussion at [62] I am satisfied that 'orderly' is at least in part a reference to the delivery of the planned outcomes established by the planning controls.
This is consistent with the decision of McClellan CJ in BGP Properties Pty Limited v Lake Macquarie City Council, at [117] which emphasises the importance to the integrity of the planning process of giving appropriate weight to the zoning of a site. Relevantly the zoning and development standards applicable to the subject site are of recent origin.
Further, this approach is consistent with the decision of Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, 441 which concludes that SEPP 1 (as it was then) should not be used as a "means to effect general planning changes throughout a municipality such as are contemplated by the plan-making procedures set out in Pt III of the Environmental Planning and Assessment Act".
In my view the lot size variation sought is a material change the density of development proposed. The variation in effect brings the density of development proposed on the subject site to that of the adjoining R3 Medium Density Development where the mapped density of 25 dwellings/ hectare applies (refer paragraph [70]). I accept the evidence of Mr Apps that such an amendment should be effected through a planning proposal under Part 3 of the EPA Act.
As a result of the preceding I am not persuaded that the environmental planning grounds proffered in the written request individually or collectively are sufficient.
As a result of the preceding, I am not able to reach the state of satisfaction required by cl. 4.6(4)(a)(i), namely that the Applicant's written request has adequately addressed cl. 4.6(3)(b). As a result I have no power to grant consent to the application.

Universal Property Group Pty Ltd v Blacktown City Council

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Cases Cited (10)