Conclusions
67Having considered the evidence, the submissions and undertaken a view, I am satisfied that this application demonstrates reasonable compliance with the zone objectives, the Part 4 development standards and has also satisfied the traffic contention to merit conditional consent.
68Insofar as the development application is for a four storey RFB within a recently zoned R4 Residential precinct, the only issue raised by council concerns the adequacy of information to assess whether existing the road system can cope with the cumulative effect of traffic in a bush fire event. Otherwise the merits of the application, particularly the urban design matters have been assessed in detail and considered by the Council and the JRPP as satisfactory for consent subject to the resolution of the traffic issue.
69In this case, the applicant has responded to the sole contention by way of Mr Darroch's planning assessment, whose findings have been utilised by Mr Hazell to model traffic movements within the precinct. This has also involved bush fire input from Mr Tucker, thereby providing more planning details. The submission of these details addresses the concern identified by the JRPP.
70The Mowbray Road Precinct is clearly defined in the planning controls and Mr Darroch has investigated the potential development yield. His methodology has involved a determination of the total area of the precinct (by title) being 139,072 sq m. If this land was unconstrained and capable of the maximum development at the permissible FRS of @ 2.1:1, the yield would be about 2700 dwellings. However, I accept from the evidence that there are real constraints that would preclude this maximum level of development.
71I am satisfied to rely on the evidence of Mr Darroch that realistically deductions should be made for areas constrained by topographic features, the APZ areas and unlikely redevelopment of some sites such as the existing RFB sites. This results in the available area for development being 78,250 sq m. As the subject site constraints and compliance with the other development standards results in an FSR of 1.5:1, if a general allowance of 1.6:1 was made, together with an efficiency allowance (i.e. reduction for lobbies, communal space etc), then there would be a yield of approximately 1064 (two bedroom) units, which decreases to 945 dwellings by allowing for the 119 dwellings to be demolished.
72I accept Mr Darroch's analysis that the development yields from the other 6 RFB's already lodged in the precinct is in the order of 1unit/51 sq m. Applying this to the developable area and ignoring bushfire constraints, then there could be a yield in the range of 1369 - 1676 dwellings, depending the actual yield.
73But as part of his verification process, Mr Darroch's compared his estimated dwelling density to the council nominated estimate of a "development yield of 2357 dwellings", as stated by Mr Bridgman. However this figure could not be reconciled by reference to the other development applications, where the potential yield is likely to be 1/51sq m, resulting in a maximum of 2167 dwellings, which would then be reduced according to the constraints applying.
74Considering that Mr Darroch presented the only expert planning evidence, I am satisfied that his approach in identifying and making allowances for the existing constraints on the land and resulting in a potential yield within the range of 945 -1500 dwellings is reasonable. The council's estimate of 2357 dwellings was not substantiated and I do not consider it reliable based on the detailed cross-examination of Mr Darroch. In this regard, I note there is a reasonable degree of consistency with the Urbanhorizon's estimation of a future population density in the order of 1200 - 1500 dwellings. However the applicant does not rely on those findings.
75Insofar as Mr Hazell undertook detailed traffic modelling for the precinct roads and intersections, there was no objection from Mr Bridgman to this methodology. Instead, there was agreement by the traffic experts that under various traffic scenarios, the outcome would be reasonable.
76The scenarios included modelling for the range of dwellings determined by Mr Darroch. Consideration was also given to the findings of Mr Tucker regarding the "late" evacuation in the last hour, whereby the figures of 23% and 50% were modelled. The council's figure of 2357 dwellings with 50% departure was also modelled, which resulted in all intersections performing satisfactorily except Mowbray Road and Kullah Parade. But I consider this outcome is most unlikely because the development density is over estimated.
77In the circumstances of the agreement by the traffic experts at para 44, I am satisfied to rely on it that the cumulative traffic issue in a bush fire emergency event has been adequately addressed.
78In reaching this conclusion I have considered the differing evidence before the Court on the possible reaction of residents to evacuating in a bush fire event. The only substantive evidence is that from the Royal Commission in the Victorian bushfires, which Mr Hazell and Mr Tucker considered reasonable to apply. Whilst I accept that there is a significant difference in context, I am nevertheless satisfied to rely on Mr Tucker's opinion concerning the rate of evacuation action because:
- The subject area including the primary fire source in Batten Reserve is well defined in an urban context, which is relatively small with a "low risk" category, and is reasonably accessible for bush fighting from the perimeter roads.
- The new dwellings will be built to the Australian Standard so as to be classified as "properly constructed dwelling" whereby most residents would be encouraged to remain in the building during a bush fire event.
- The new dwellings will be included in strata plans wherein conditions can be imposed for the preparation and communication of emergency planning procedures, including appointment of "fire wardens".
- There is the opportunity to update an appropriate Displan for this localised area.
79The alternative evidence is that of Dr Wotherspoon, who considers that residents are most likely to "wait and see" and then 100% will evacuate in the last 10 minutes before a fire front. Whilst no substantive basis was presented to support this opinion, the overall evidence indicates to me this would be most unlikely.
80In this scenario, the residents would presumably try to leave in their vehicles from the basement garage onto Gordon Crescent. But this could be directly into any fire front from Batten Reserve and the street is most likely to be filled with smoke with low visibility, which would make vehicle movement extremely hazardous. I do not accept that this 100% of residents in this situation would choose to drive in this fire event during the 'last minutes'. I note that the development contains internal site access whereby pedestrians could leave by foot to Mowbray Road. This procedure could be included in the site emergency plan. Therefore I do not rely on Dr Wotherspoon's opinion.
81As noted previously, this matter attracted considerable public interest both in the form of written and oral objections. In considering these objections I note that a universal concern is that the R4 Residential zoning is inappropriate and that a decision on the application should be deferred until the DPI enquiry into the planning issues is determined. However, the Fact Sheet acknowledges the existing development applications and states that they should be considered on the basis of the current controls. I have followed that path.
82In addition to this, Ms Duggan's submissions refer to the findings in BGP Properties Pty Limited v Lake Macquarie City Council [2004] NSWLEC 399; 138 LGERA 237 where McClellan CJ said:
[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 (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). 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.
83Following this authority, I considerate appropriate to determine the application on the basis of the current zoning. I note that had the DPI wanted to suspend consideration of development applications, other courses of action were available. I therefore consider the Enquiry is a neutral factor in the determination of this application
84Insofar as some objections were lodged regarding the merits of various design aspects of development, council did not raise this as an issue. Instead the submissions for council were that it and the JRPP had considered a detailed planning assessment report resulting it being satisfied that the urban design considerations, including Part 4 development standard compliance, were acceptable subject to conditions.
85In this regard, I particularly note the following reference in Part A of the DCP in section 1.4:
Nevertheless Council will assess development applications on a merit - based, flexible basis, taking into account factors including the realistic redevelopment potential/timeframe of other sites in the vicinity. A priority will be the achievement of the floor space in the LEP, notwithstanding the DCP's provisions and controls.
86Accordingly, I do not consider there was any compelling evidence submitted that would result in the refusal of the application on urban design grounds.
87The objectors expressed genuine concerns about impacts on Batten Reserve, which is an attractive bushland maintained by the community. But it is clear from the evidence that the approval of this development does not necessitate any direct works in the reserve. Even though Urbanhorizons made some suggestions about possible fire risk measures, these were discretionary and not essential in any consent. Having considered the RFS response, I am satisfied that the approval of the application does not require imposition of conditions requiring works in Batten Reserve. Under these circumstances there should be no direct impacts on the flora and fauna in the reserve.
88Insofar as other objections were made about adequacy of infrastructure such the size of the trunk sewer in the reserve and stormwater discharges, this was not raised as an issue and there was no expert evidence presented to the Court that confirmed the speculation. Presumably the usual procedure of compliance with Sydney Water requirements addresses this. Therefore I do not consider this concern would result in the refusal of the application. It is however likely that the DPI enquiry would consider options for any expansion or upgrading of essential infrastructure to compliment the zoning.
89A number of concerns were expressed about the capacity of the road system to cope in a bush fire event and I have considered these in conjunction with the aforementioned expert evidence. Other concerns were expressed about the capacity of the road system due to the increase in density, however I am satisfied to rely on the evidence of the traffic experts that there should be a satisfactory level of service.
90Draft conditions were submitted in accordance with the Court's procedures with the applicant substantially agreeing to them. However, considering the differing views expressed about the road widths, it seems to me that a cautious approach is appropriate in the circumstances of this case. Accordingly I consider that endeavours should be undertaken to achieve a minimum carriageway width of 8 m, particularly on perimeter road Gordon Crescent, which borders Batten Reserve, so as to comply with PBP. It is apparent that there are options for the existing carriageway to be widened by. 0.7 m either on the northern or the southern side adjacent to the reserve, although this option involves undesirable environmental impacts.
91The efficiency and safety of this local road system also depends on some existing parking restrictions adjacent to the reserve. Considering the uncertainty expressed about the extent of these restrictions, I consider it desirable for the parties to make further submissions about the most appropriate options for widening the road carriageway to 8m, so that reasonable conditions can be imposed.
92The acceptability of this proposal is dependent on the approval of an effective emergency ( Displan ) for this precinct. In response to the disparate opinions on possible evacuations, I think it a priority for the emergency planning process to be instituted as soon as possible and in the circumstances, it could be reasonable for the developers to contribute towards the preparation this precinct emergency plan. The parties are invite to make submissions in this regard.
93In the ultimate, this proposed development complies with the current R4 zoning to permit consent, it has been subject to thorough detailed planning assessment from which no urban planning issues were raised by the parties. Accordingly, the applicant has responded to the cumulative traffic issue by way of the planning and traffic analysis, which I am satisfied follows current practice and can be relied upon. Council provided no alternate expert evidence that in my opinion would warrant setting aside the applicant's traffic study.
94Insofar as there were considerable public interest matters raised, I do not consider they should be given such weight so as to refuse the applicant, particularly considering its overall compliance with the planning controls. Another aspect of balancing the various public interest considerations is that the approval of this complying development will likely create additional housing in this attractive and convenient high amenity location.