Universal Property Group v Blacktown City Council

Land and Environment Court (NSW)|2014-02-04|Before: Mr J

Judgment 1COMMISSIONER: The applicant appeals Blacktown City Council's deemed refusal of Development Application DA 13/1735 for the proposed construction of 11 dwellings and associated works in a medium density development on Lot E in DP 29979, otherwise known as 91 Newton Road, Blacktown. 2The appeal is made pursuant to s 97(1)(b) of the Environmental Planning and Assessment Act 1979 (the Act).

The proposal, site and locality 3The proposal is for 11 three to five bedroom townhouses, with garages, visitor parking spaces, landscaping, driveways, common open space and a single access point to and from Newton Road. 4The site is an irregular shape of 3952m2. There is a wide access handle off Newton Road and the site opens to a large rectangular block between residential properties to the south, east and west, and a community facility with open space to the north. The surrounding residential area is characterised primarily by older single storey fibro dwellings on large blocks with a mixture of newer single storey dwellings and townhouses. The nearest cross-streets are Meroo Street to the east and Walters Road to the west. 5There is single storey dwelling with associated outbuildings on 91 Newton Road. The remainder of the site is heavily to moderately vegetated with a mixture of native/ remnant trees and an overgrown garden of a range of exotic trees and shrubs. There are some open areas of grass and weeds of a mixture of species. 6The land slopes gently to the east to an overland flow path on the eastern portion of the site and along the eastern boundary. This flow path is part of the Heart Place trunk drainage system, which arises as a tributary of Breakfast Creek. The land is currently zoned for residential purposes and is mapped by council as comprising part low, part medium and part no flood risk precincts.

Issues and progress of the matter 7The council originally raised six contentions. During the period leading up to the first hearing, a number of contentions relating to visitor parking (Contention2), waste collection (Contention 3), and most building matters (Contention 6) have been agreed by the relevant experts as capable of being dealt with by way of conditions of consent (should the proposal be approved). 8The issues remaining between the parties are:

The proposed rezoning of the site and council's plan to construct a drainage basin and other drainage infrastructure on the site; land acquisition costs (Contention 1);
Unacceptable loss of trees (Contention 4);
Stormwater, drainage engineering and flooding issues including safety of escape routes (Contention 5); and
Architectural and building issues arising out of any changes to levels as a consequence of changes to drainage plans (remaining elements of Contention 6). 9The hearing commenced on site on 4 February 2014. A long-term local resident addressed the parties in regards to local flooding and drainage issues and potential privacy issues arising from the proposal. 10Observations were made on the adequacy of the original tree assessment report and the absence of an ecological assessment given the site could potentially support Cumberland Plain Woodland, a Critically Endangered Ecological Community. In anticipation of this, the applicant engaged an ecologist, Mr Dominic Fanning, to be present. 11During the course of the proceedings, it was determined that for a number of reasons, in particular the need for further flood modelling, the hearing be adjourned to a later date. 12The hearing resumed on 26 May 2014. The applicant tendered amended plans including site and architectural plans, landscape plans, and stormwater and drainage plans. New reports were prepared by Mr Guy Paroissien, arborist, Mr Dominic Fanning, ecologist, and Mr Robert Varga, traffic and parking engineer. The town planners, Mr Paul Grech for the applicant and Mr Glenn Apps for the council, and drainage engineers Dr Daniel Martens for the applicant and Mr Tony Merrilees for the council, prepared supplementary joint reports.

Refinement of the issues 13Mr Fanning's Statement of Evidence - Ecological Issues dated May 2014 concludes that the vegetation on the site is not Cumberland Plain Woodland, and even if it were, he states its isolation, size, and poor condition is such that its loss would not have a significant effect on the wider status of Cumberland Plain Woodland (in accordance with s 5A of the Act). He agrees with Mr Paroissien, that notwithstanding the impact of psyllids on the decline of Eucalyptus moluccana (Grey Box), the landscape plan should incorporate some of these trees. Mr Paroissien also recommends inclusion of a condition of consent requiring a revised landscape plan incorporating locally native trees and shrubs in order to provide suitable habit for small birds that feed on the psyllids. 14The parties agree that contention (4) on unacceptable tree loss has been resolved. The only outstanding issue is the imposition of a condition to give effect to Mr Paroissien's recommendation - this is discussed elsewhere in this judgment. 15The architectural and building issues remaining from contention (6) have been resolved through agreed condition 6.2.8. This requires amended architectural plans to meet all specified items. 16A number of particulars in contention (5) have generally been resolved through remodelling and or by appropriate conditions. These include 5(a)-5(f) general drainage matters; 5(g) flood model files; and 5(k) pedestrian access along the driveway during a 1:100 year flood. The latter, essential issue is to be resolved by elevating the driveway to reduce the velocity x depth product to 0.4m2. As this area is likely to be frequented by children he considers the risk to be too great. He relies on the Perrens Report that considers a 15-minute storm event is critical for a 100 year ARI flood event. In his view, this is a short time to enable safe egress. He maintains that the indicative design of the drainage basin decreases the velocity of water moving through it and allows for easy escape of anyone who may be using the area. 56Dr Martens disagrees with the 15-minute time frame and considers up to 90 minutes to be more realistic. He also states that it is unlikely that anyone would remain outside for more than a few minutes in any downpour of sufficient intensity to lead to flooding. 57When questioned by Mr Staunton, Mr Merrilees agreed that the open space in the recently approved development at 20-22 Meroo Street is similarly affected by potential flooding and the area is identified with council's 'standard floodway warning sign'.

Submissions 58Mr Lazarus for the council contends that a substantial portion of the site is immediately needed for a public purpose and that approving the development is contrary to the public interest in that it will substantially increase the cost of acquisition. He cites the discussions recorded in the minutes of the extraordinary council meeting held in regards to Draft BLEP 2013 and the proposed rezoning. Mr Lazarus argues these represent the latest and best strategic plans for the LGA, not only for growth, but also specifically for managing drainage. He considers the 5-year time period mentioned in item 2k supports the immediacy of the need. The absence of a new s 94 contributions plan is not important at this stage given the other means by which council may fund acquisitions. 59While nothing precludes council from exercising its powers of acquisition, Mr Lazarus submits it is self-evident that a development consent must affect the market value of the land and thus increase its price, and therefore cost to the community. He maintains that were the development to be approved, using either a 'comparable sales' approach or a 'hypothetical development' model in any subsequent valuation of the land, the approval will have increased the value by not an insignificant amount. Mr Lazarus contents that this is contrary to the public interest and s 79C(1)(e) of the Act. 60Mr Lazarus cites Jagot J in Hill v Blacktown City Council [2007] NSWLEC 401. This matter concerned the imposition of a condition of consent requiring the landowner to enter into a deed of release with the Department of Planning to prohibit any claim for compensation for works associated with the development consent to the extent where the works increase the value of the land above its present value. The land, the subject of the Hill appeal was subject to State Environmental Planning Policy (Sydney Growth Centres) 2006. At [46] Her Honour states in part: "...by reference to s 79C(1)(a)(i) or (e)....If the likely additional cost is a relevant consideration, then it is a potentially determinative consideration". Mr Lazarus maintains the general proposition was supported by Pain J in subsequent proceedings Hill v Blacktown City Council and the Minister Administering the EPA Act 1979, Pluijmers v Blacktown City Council and the Minister Administering the EPA Act 1979 [2008] NSWLEC 203. 61Mr Lazarus contends that the requirement to prepare a new LEP under the Standard Instrument, which commenced in 2006, has enabled the consideration of rezoning. This is something that has taken many years. He rejects Mr Staunton's assertions and maintains that Mr Merrilees was awaiting more certainty of any changes to zoning before preparing detailed designs and costings for the implementation of the Perrens report. He accepts that Mr Merrilees' plan is at best preliminary but argues it is consistent with the Perrens report and council's strategic views expressed in the December 2013 meeting. While Mr Merrilees' design relocates the proposed drainage basin to the southeast, the reasons for doing this were clearly articulated and would provide a better planning outcome. 62In regards to the Perrens report and therefore the basis for the detention basin, Mr Lazarus maintains that this is a detailed report, by a pre-eminent expert, which took many years and is therefore the only detailed analysis of feasible locations of drainage basins. In his view it would be unreasonable to require a new study. He maintains that this study was necessary because of the high incidence of local flooding and indeed, the report identifies the site as being a 'high hazard area'. Mr Lazarus argues that the report clearly demonstrates the benefits of having the three proposed basins operating in combination. Given the detail contained in it, Mr Lazarus contends the Court should place significant weight on the Perrens Report and the role of the site in enabling its implementation. 63Mr Staunton for the applicant argues that the proposed rezoning of the site from part RE1 and part R2 to all RE1 came about as part of a submission from an unrelated site in Flushcombe Road. The change was made internally without any consultation with land owners or approval from council. He maintains that council has had at least 10 years to acquire the land identified in the Perrens report, and thus there is no demonstrated urgency in constructing the detention basin. He submits that any urgency, including the production of plans, has come about because of these proceedings in response to internally raised questions about the status of any proposed drainage works on the site. Mr Staunton considers that item 2k in council's minutes prioritises growth areas and areas to be 'up-zoned' as a consequence, something not applicable to the site. 64Mr Staunton contends that the Hill cases related to a statutory scheme for a growth area and the need for concurrence, issues not relevant to this matter. He also submits that no valuation evidence has been called. In any event, he maintains it is agreed that council can acquire the land if it wants to. 65Mr Staunton submits that Dr Martens is also pre-eminent in his field and has conducted a more extensive and current review of alternative locations for detention basins than Mr Merrilees. He maintains that the relocation of the basin illustrates that its ultimate location is flexible and not fixed. 66In regards to the flood risk and potential impacts on adjoining land, Mr Lazarus adopts Mr Merrilees' more cautious approach to the blockage factor under the driveway as well as Mr Merrilees' concerns about the flood hazard on areas of common open space and that signage, by itself, is not an appropriate measure. In his submission, this is not a matter that can be conditioned and can only be resolved by relocating common open space away from hight hydraulic hazard areas. 67Mr Staunton maintains that the factors used in Dr Martens' modelling are consistent with the relevant guidelines and are more conservative than Dr Martens would ordinarily have applied given the nature of the surrounding catchment. He submits there is no qualitative assessment by council of the impacts of the minor increases in water levels on adjoining properties and equally no recognition of the substantial benefits and reductions achieved elsewhere on the site. In regards to the blockage factor for the driveway, this is something not raised by council in its contentions prepared in March and after the adjournment of the hearing. 68Mr Staunton contends there are many safeguards proposed in the conditions of consent including bars beneath the elevated sections of units 1-4 to prevent storage as well as Restrictions as to User and Positive Covenants for a range of measures that take account of the overland flow path, council's drainage easement and inspection and maintenance of elevated structures. He presses the appropriate use of warning signs as endorsed by council in a recent nearby development.

Findings 69Section 79C(1)(a)(ii) of the Act requires me to consider any proposed environmental planning instrument that has been the subject of public consultation and has been notified to the consent authority. Section 79C(1)(e) requires consideration of the public interest. 70The planners agree that Draft BLEP 2103 is neither imminent nor certain and is in a 'queue' with other draft instruments. Given the number of recommended amendments, there is also uncertainty as to whether the Draft LEP will need to be re-exhibited. Clearly, if it is re-exhibited, the time until gazettal will be lengthy. 71The public interest was not raised as a separate contention but underlies the council's first contention and submissions regarding council's need of the site for the construction of a drainage basin. Although I am satisfied of council's reasoning for the proposed re-zoning of at least part of the applicant's land, the minutes of the December 2013 meeting indicate there was considerable opposition from similarly potentially affected land owners across the LGA and there is more consultation to be undertaken. 72It is common ground that it is open for the council to seek to acquire the land. Section 54(1) of the Land Acquisition (Just Terms Compensation) Act 1991 (LA-JTC Act) states: (1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land. 73Possible acquisition is contemplated in the minutes of council's meeting of December 2013 as well as in the Perrens Report. 74In determining the amount of compensation, amongst other things, s 55(a) requires regard must be had to the market value of the land on the date of its acquisition. 75Section 56(1) states (relevantly): (1) In this Act: market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid)): (a) any increase or decrease in the value of land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and 76Item 2h in council's minutes reiterates this:... the value of the property and its improvements based on the underlying zoning and not the acquisition purpose.... 77While I agree in principle that the creation of public reserves and the management of stormwater are in the public interest, it is hard to ignore the proposition that if the council was intent on acquiring the site as a portion of the land identified 10 years ago as being necessary for a drainage basin, it has had ample opportunity to do so. I also note that apart from the applicant's property, the design of the proposed drainage basin would occupy all or part of 10 or 11 other lots, most of which contain dwellings and other structures. 78Council's minutes of the December 2013 meeting indicate there is a range of means by which council may fund land acquisition. While mention was made during the hearing of a '$20m funding source' and a new s 94 contributions plan, Resolution 13 (at [34]) indicates that the $20m fund is yet to be established and the new s 94 plan can't be made until the new LEP is made. It appears that any acquisition would require a circuitous financial pathway and is unlikely to be immediate or imminent. 79It is also hard to ignore the fact that none of the three potential drainage basins identified in the Perrens Report have been constructed. Apart from Mr Merrilees' preliminary design for the detention basin in question, no evidence was adduced that council has engaged in any further detailed preparatory work across this drainage system to further advance the implementation of the measures identified in the Perrens Report. Although I understand the rationale for relocating the basin to the corner of Newton Road and Meroo Street, I agree with the applicant that it demonstrates the location is somewhat flexible. On Dr Martens' evidence, there are other engineering options that would enable the construction of the basin in some form that would not require the whole of the applicant's site. That is, the use of the site for residential purposes does not preclude the construction of a drainage basin in some form. The planners agreed that should it be required, the eastern portion of the site, proposed as common open space, could be incorporated into future public open space should the basin be constructed. 80Therefore, I agree with Mr Staunton that there has been no demonstrated urgency in acquiring the land and that having purchased the land, his client has proceeded to apply for a development permissible with consent under the current zoning. 81For these reasons I find that the appeal cannot be dismissed on the basis of contention 1. 82Notwithstanding the considerable level of agreement between the drainage experts on most of the particulars raised in contention 5, the remaining areas of disagreement concern the possible impacts of increased flood levels on adjoining properties as a consequence of the proposal and criteria used in flood modelling. In addition, Mr Merrilees is also concerned about the safety of anyone who may be using the common open space in the event of a major flood. 83After careful consideration of the generally agreed without prejudice conditions of consent in Exhibit Q, and while I acknowledge there is an elevated risk to occupants of units 1-4 and to anyone using the common open space, I am satisfied that in the event of a 1 in 100 year flood event, the detailed drainage requirements specified in condition 6.2.3 and the associated amendments to the architectural plans detailed in condition 6.2.8 provide for the safe access, use and occupation of the site for residential purposes. These conditions include the need to provide flood warning signs in potentially affected areas of common and private open space and the development of a Flood Management Plan to be prepared and permanently affixed to each unit. Council has a standard flood warning sign and the uncontested evidence is that these have been approved for nearby developments. 84I am also satisfied that the proposal includes compliant areas of private open space so that the residents are not reliant on potentially flood affected common open space. I agree with Dr Martens that it is highly unlikely that anyone would remain outside in the weather conditions that would lead to a major flood event. 85Condition 10.6.12 requires a positive covenant that the openings under the driveway and Units 1-4 shall not be used for storage and that a report of inspections be provided to council on an annual basis. Given this condition, the proposed bars and lockable access under the driveway, and location of the driveway and its construction as an elevated driveway above a substantial width of concrete pavement, the propensity for blockage appears low and therefore Dr Martens' blockage factor of 15% does not seem unreasonable. 86While this site like many others in the vicinity is in a flood risk zone, I am satisfied to the extent required by s 79C that subject to the imposition of the proposed detailed conditions, consent can be granted to this development.

Conditions 87As indicated above, following subsequent reports, joint conferencing and matters arising during the hearing, the parties have amended some conditions and agreed on most conditions. There are a number of conditions requiring determination by the Court. I have amended the marked up version of the conditions provided to the Court by the applicant on 26 May 2014. These conditions are included as Annexure A to this judgment. Agreed changes have been made to the numbering of some conditions. 88In regards to whether or not Eucalyptus moluccana should be part of the species mix, I accept the recommendation of Mr Paroissien and Mr Fanning that limited numbers of this species should be planted along with understorey plantings that include locally native shrubs and small trees that may provide habitat for the predators of psyllid insects. Therefore, the applicant's version of condition 4.3.1 is preferred. 89The main contest between the parties is whether the revised Drainage Plans (condition 6.2.3) and MUSIC modelling (condition 6.2.5) should be provided to the Principal Certifying Authority as requested by the applicant or to Council's Manager Asset Design Services as requested by council. 90Mr Staunton contends that the Certifier has a statutory obligation to ensure there is compliance with the conditions and to provide the final plans to the council. To that end, in his view, providing them to the council is an unnecessary additional step. Mr Lazarus supports Mr Merrilees' opinion that council has the expertise and has had a long involvement with the process and ought to have a continuing role. 91Given the flooding and drainage issues that naturally beset the Blacktown LGA, and the level of assessment to date which has given rise to the detailed conditions, I am satisfied that council should continue to have a role in assessing the necessary plans and models. Therefore, the council's version of these conditions is preferred, however, the words "but are not limited to" shown in council's original without prejudice conditions have been deleted. The issues are therefore limited to those specified in the conditions. 92The only remaining condition in contention is condition 6.2.4 requiring revised flood modelling to allow for a different roughness co-efficient and increased blockage factors under units 1-4, the driveway and fences. On the basis of the evidence adduced in court and the details required in condition 6.2.3 I propose to delete this condition.

Orders 93The Orders of the Court are: (1)The appeal is upheld. (2)Development application DA 13/1735 for the construction of a medium density housing development consisting of 11 dwellings and associated works including internal driveway, common open space and landscaping works on Lot E in DP 29979 being 91 Newton Road, Blacktown is approved subject to the conditions of consent in Annexure A. (3)All exhibits except 1, A, E, and Q are returned.

Judy Fakes Commissioner of the Court Annexure A 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: 11 June 2014

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Judgment (8 paragraphs)

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