COMMISSIONER: This is an appeal by the Applicant pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal by the Respondent of their development application DA/385/2023. The development application seeks consent for the subdivision of an existing lot into sixty-one Torrens title lots and associated works. The development is proposed at 77-91 Warnervale Road, Warnervale (Lot 72 DP7091) (site).
The appeal was subject to conciliation on 3 August 2023, in accordance with the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). As an agreement was not reached, the conciliation was terminated and the proceeding listed for hearing.
The development application was amended with the leave of the Court on 28 August 2023 to provide additional information relating to engineering matters, including in relation to the future roundabout at the intersection of Warnervale Road and Virginia Road.
[2]
Issues
Despite the amendment to the development application, the Respondent maintains that:
the proposed development does not represent orderly development due to the creation of split zoned lots, in circumstances where development for the purpose of dwelling houses is prohibited in part of those lots; and
the application, if approved, should be subject to a condition that requires certain land zoned RE1 Public Recreation under the Central Coast Local Environmental Plan 2022 (LEP 2022) to be held in two residue parcels, one north of the Proposed Road No. 2 and one to the south.
[3]
The site
The site has an area of approximately 5.2 hectares, bound by Warnervale Road and Virginia Road. The site is located within the Urban Release Area and is identified as "Warnervale South B" on the Urban Release Area Map in LEP 2022. The site is located in the following aerial map extract:
Figure 1 Aerial map of site (Source: www.nearmap.com, extracted in Ex 4)
The site directly adjoins Porters Creek Public School to the west and the Warnervale Community Centre to the north.
The site is zoned part R1 General Residential, part R2 Low Density Residential and part RE1 Public Recreation under LEP 2022. An extract of the Land Zoning Map is provided below:
Figure 2 Land Zoning Map (Source: LEP 2022, extracted in Ex 4)
[4]
The proposal
In detail, the development application seeks consent for the following:
Demolition of all existing structures;
Remediation of the site;
Sixty-one (61) Torrens title residential lots. Proposed lots 4-14 and 21 are considered split zoned lots containing both R1 General Residential and RE1 Public Recreation zoned land (split zoned lots);
50m wide environmental corridor located on Lot 62 which will be managed in accordance with the requirements of the Biodiversity Certification Order and the Biodiversity Certification Agreement (the Ministerial bio-certification);
Temporary sediment basin over Lot 21;
Local road construction within the site including 1.5m wide pedestrian pathways on one (1) side;
Widening of Warnervale Road, including 3.5m wide shared pathway on one (1) side;
Road widening to accommodate the potential future roundabout on the corner of Warnervale Road and Virginia Road;
Upgrades to Virginia Road including 2.5m wide shared pathway on one (1) side and upgrades to existing culverts;
Bulk earthworks including importing and stockpiling of fill;
Spreading of fill and benching of lots to create level building pads;
Provision of underground water, sewer, stormwater, electrical and communication servicing throughout;
Removal of vegetation;
Landscaping through provision of street trees and basin plantings; and
Creation of necessary easements.
The portion of the proposed subdivision that is referrable to the contentions is extracted below:
Figure 3 Portion of the proposed subdivision that is referrable to the contentions (Ex B)
The Respondent does not raise any concerns with the proposed subdivision of the portion of the site zoned R2 Low Density Residential or any of the remaining works for which consent is sought.
[5]
Preconditions to consent
Prior to considering the contentions raised by the Respondent in support of the refusal of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135 at [16]. Consideration of the preconditions relevant to the proposed development follows.
The development application is lodged with the consent of the owner of the land as required by s 23 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation).
The development application was notified by the Respondent from 28 April to 19 May 2023. No submissions were received.
The development application is integrated development as the site is identified on the Bushfire Prone Land Map as Vegetation Buffer. The development application was accompanied by a bushfire protection assessment report and was referred to the NSW Rural Fire Service (NSWRFS). The NSWRFS issued a Bushfire Safety Authority pursuant to s 100B of the Rural Fires Act 1997 on 14 March 2024. The annexed conditions of consent require compliance with the Bushfire Safety Authority.
The NSW Government Gazette included the Ministerial bio-certification of the site pursuant to s 8.2 of the Biodiversity Conservation Act 2016 (BC Act). That certification covers the portion of the site where subdivision under the development application is proposed. Under s 8.4(2) of the BC Act an assessment of the likely impact of the development on biodiversity under Pt 4 of the EPA Act is not required where the land is the subject of Ministerial bio-certification. Section 7.6 of the BC Act provides that the requirements of Pt 7 of the BC Act does not apply to land certified under Pt 8 of the BC Act.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires the consent authority to consider whether the site is contaminated before development consent can be granted. The development application is accompanied by a Detailed Site Investigation Report (DSI) and a Remediation Action Plan (RAP). Those reports conclude that:
That the site contains some contamination, including fill with building debris, hydrocarbons and minor building rubbish.
That site remediation and validation will be required to ensure the site is suitable for any residential use.
That such remediation is practicable and possible through the implementation of the RAP.
After considering the DSI, the RAP and the proposed conditions of consent, I can be satisfied that the requirement of cl 4.6 of SEPP RH is met.
The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is a relevant environmental planning instrument that applies to the site: s 4.15(1)(a)(i) of the EPA Act. However, the effect of the bio-certification discussed at (15) is that the provisions of SEPP BC do not apply.
The development application is accompanied by a Traffic Impact Assessment. The parties agree, and I accept, that that report establishes that applying s 2.122 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), whilst the development is subdivision, it does not fall within the definition of 'traffic generating development' and no referral to the NSW Roads and Traffic Authority is required. Further, referral under s 2.97 of SEPP TI is not required as the proposed development does not involve a likely increase in the total number of vehicles or the number of trucks using a level crossing as a result of the proposed development.
As noted at [7], the site is subject to three zones under LEP 2022. As required by cl 2.3(2) of LEP 2022, I have considered the objectives of the zone in determining the development application. Those objectives are:
Zone R1 General Residential
1 Objectives of zone
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To promote best practice in the design of multi dwelling housing and other similar types of development.
• To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.
Zone R2 Low Density Residential
1 Objectives of zone
• 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 encourage best practice in the design of low density residential development.
• To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.
• To maintain and enhance the residential amenity and character of the surrounding area.
Zone RE1 Public Recreation
1 Objectives of zone
• To enable land to be used for public open space or recreational purposes.
• To provide a range of recreational settings and activities and compatible land uses.
• To protect and enhance the natural environment for recreational purposes.
• To identify areas suitable for development for recreation and cultural purposes.
• To provide space for integrated stormwater treatment devices for flow and water quality management.
Pursuant to cl 2.6 of LEP 2022, subdivision is permitted with consent on the land.
The development application proposes demolition of the existing structures. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2022.
[6]
Experts
The following Town Planning experts gave evidence in the proceedings: David Waghorn (for the Applicant), Stephanie Van Dissel (for the Respondent). The experts prepared a joint report which was tendered in the proceedings. The experts were also called for cross-examination and oral evidence.
[7]
Is the development application orderly development?
The Respondent argues that the proposed development is not orderly development on the following basis.
The split zoned lots contain land which is zoned RE1 Public Recreation where dwelling houses are an innominate prohibited use. Approval of lots for future residential purposes that contain land where this use is prohibited is contrary to s 1.3(c) of the EPA Act which seeks to promote the orderly and economic use and development of land.
The Respondent accepts the submission of the Applicant that, applying Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) at [28], subdivision itself does not involve any use of land. However, the Respondent argues that the development application is framed on the basis of the future use of the site being residential. In making this submission, Mr Harker, counsel for the Respondent, makes reference to the Statement of Environmental Effects (SEE) and the development application form which both nominate the development sought as 'residential subdivision'.
That consistent with authority, it is appropriate to consider the future ultimate use of the land in deciding whether to approve a subdivision application, citing: Penrith Lakes Development Corporation v Penrith City Council [2015] NSWLEC 1329 at [89]; and Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2) (1967) 14 LGRA 209 at [224].
Mr Harker submits that it is relevant and necessary for the Court to consider the likely future residential use of the land and that such uses are prohibited in the RE1 Public Recreation zoned land. He argues that it is not orderly development to facilitate development that is prohibited, in this case residential: Sydney Project Group Pty Ltd v Cumberland Council [2017] NSWLEC 1500 at [37].
Mr Harker rejects the evidence of Ms Van Dissel that the future use of the RE1 Public Recreation portion of the proposed lots as a garden would be permissible as the use would be characterised as a 'recreation area'. Rather, Mr Harker argues that applying the approach to the characterisation of use detailed in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114 at [27] the use of a garden by a future resident forms part of the dwelling use which is a prohibited use in the RE1 Public Recreation zone. Mr Harker submits that:
"A recreation area is a 'place used for outdoor recreation that is normally open to the public'. The subject of the definition is 'a place'. It is that place which must be normally open to the public: see for example, Palm Beach Protection Group Inc v Northern Beaches Council [2020] NSWLEC 156, [131-133]. That will not occur where the RE1 [Public Recreation zone] land falls within individual lots."
(Applicant's written submissions, 4 March 2024)
In conclusion, Mr Harker argues that, whilst not proposed in this application, the intended use of the proposed subdivision is for the purpose of residential - a use prohibited in the RE1 Public Recreation zoned portion of the land.
In their joint report, the planning experts agree that subdivision is not a use and is permissible in all zones applicable to the land. Further, they agree that consent for subdivision does not imply any approval for subsequent use for any purpose: Wehbe at [28-29].
In relation to any potential future use of the site for residential dwellings, the planning experts note their agreement to the following three matters:
"…
(e). A development application relates to "land" and land is not limited to an entire lot but can include part of a lot. This is clear from ss 4.1, 4.2 and 4.3 and definition of "land" in s 1.4 of the Environmental Planning and Assessment Act 1979.
(f) A dwelling can be built on split zoned lots, upon a zone wherein that use is permissible but a dwelling is prohibited on the RE1 land. By extension, the ancillary aspects of a dwelling which require development consent or a complying development certificate are also prohibited.
(g) A dwelling can fit on the R1 zoned portion of the site in accordance with the LEP and DCP objectives and controls. DW agreed, with the exception of Lot 12, whereby the latest building envelope plans show a design still relying on the RE1 zoned land for private open space as required under the DCP; however, DW acknowledged that a design could be provided with open space area is in R1 zone for this lot."
(Exhibit 2)
The experts disagree about the extent that it is necessary or appropriate to consider the future use of the subdivided land in the assessment of the development application. Ms Van Dissel argues:
The approval of the subdivision does not facilitate a prohibited use on the portion of the split zone parcel zoned RE1 Public Recreation.
The development application provides an indicative building envelope plan which 'proves up' that if the proposed lots are, in the future, used for dwelling houses, the lots can accommodate development which complies with the development controls. Such documentation is consistent with the Court's planning principle in Parrott v Kiama Council [2004] NSWLEC 77 (Parrott).
The proposed application of a s 88B instrument is sufficient to alert any future purchaser of these lots that permitted uses are restricted in the portion of the split zone parcel zoned RE1 Public Recreation.
In the alternate, Mr Waghorn argues that the appropriate resolution to ensure the orderly and economic development of the portion of the split zone parcel zoned RE1 Public Recreation is for the land to be held englobo in a residue lot. He argues:
"…
b. It is clear that dwellings are prohibited in the RE1 zone as are its private open space and associated ancillary development such as swimming pool and fences. Therefore, this application is effectively seeking a subdivision for Lots 4-14 and 21 that facilitates a prohibited use on the RE1 land given the development application form clearly details "61 residential lots" amongst other works. A combination of future applications, indicative building envelopes and/or conditions of consent (at the very least) are required to resolve the issue. In my opinion, this is considered to be a sub-optimal outcome to the orderly economic use or development of land under s1.3 of the EPA Act or Dot Point 5 of the objectives under Part 5.25.2.2 of CCDCP 2022.
c. The Macquarie Dictionary defines "orderly" as "arranged or disposed in order, in regular sequence, or in a tidy manner". In my opinion, the ability to achieve the "orderly" development of land rests with the creation of residue lot(s) to separate the R1 and RE1 land for Lots 4-14 and 21. The residue lot(s) are considered "orderly" as it removes the future land use "conflict" that arises with RE1 land being on the same allotment as R1 land. More importantly, the excising of the RE1 land from lots 4-14 and 21 does not affect the delivery of dwellings in designated growth area, it simply changes the size of the allotment.
…"
(Exhibit 2)
In relation to the consideration of the future likely use of the subdivided lots, Mr Waghorn relies on the planning principle in Parrott to argue this is a relevant consideration. However, he accepts that the indicative building envelope plans demonstrate a dwelling can be accommodated on the portion of the split zoned lots R1 General Residential and that they demonstrate that any future use for dwelling houses does not rely on the RE1 zoned land to function.
Ultimately, in the joint report and his oral evidence, Mr Waghorn accepted that the Respondent's contention that the development application should be refused on the basis it is not orderly development is resolved by either the imposition of the s 88B instrument or the creation of two residue parcels. However, he argues that the imposition of a condition on the subdivision that required the portion of the split zone parcel zoned RE1 Public Recreation to be held in a residue lot is a more appropriate planning outcome.
Mr Farrell, counsel for the Applicant, submits that the Court would accept the Respondent's contention is not made out and that the development application represents appropriate orderly and economic development. His four main submissions are:
1. The development application, as amended, is for subdivision simpliciter as established by Wehbe. Following the completion of the subdivision proposed in the development application, the use of any of the 61 lots created will require development consent. The Applicant has demonstrated that the subdivided land is able to be utilised lawfully and efficiently.
2. To the extent that the consideration of the future uses of the split zoned lots is relevant, the Respondent, and Mr Waghorn, fail to consider broader permissible uses. Mr Farrell identifies that under LEP 2022 there are a number of common permissible uses in the R1 General Residential and RE1 Public Recreation zones. These include centre-based childcare, caravan parks, community facilities, emergency services facilities, information and education facilities and respite day care. He submits that if any of these uses occur on the land the issues raised by the Council do not arise. There is no obligation on any lot owner post subdivision to carry out development for residential purposes.
3. That to the extent future residential use of the subdivided lots is considered by the Court, the Applicant proposes:
"i. interim solution: the Applicant proposes a condition of consent (condition 1.2) which proposes that the RE1 portion of the Split Zoned Lots will be subject to a restrictive covenant, in favour of the Council, that the land cannot be used for residential purposes whilst ever it is zoned for public recreation. The northern zone boundary can be fenced and the RE1 land can be landscaped and hedged without any breach of the provisions of the Central Coast Local Environmental Plan 2022.
ii medium term solution: Section 3.21 of the EPA&A Act requires the Council to keep its local environmental plans under regular and periodic review. There is no reason why a Council or a landowner led rezoning application cannot proceed in the coming years, including during the period the subdivision works are being carried out."
(Applicant's written submissions 4 March 2023)
1. That the Council's proposal to hold the RE1 zoned portion of the split zoned lots in two residue lots is contrary to the orderly and economic use of land. Firstly, to do so serves no purpose in circumstances where the split zoned parcels are able to be utilised for uses that are permissible in both zones. Secondly, to do so will create practical difficulties if the land is rezoned in the future.
[8]
Appropriate conditions of consent
The experts disagree on the appropriate treatment of the portion of the split zoned parcels that is zoned RE1 Public Recreation.
As part of the development application, the Applicant proposes the implementation of the following restriction on the use of the split zoned parcels (s 88B instrument):
"For the time that the above mentioned lots are partly zoned RE 1 Public Recreation under the Central Coast Local Environmental Plan 2022 or relevant local environmental planning instrument, (1) no development for the purposes of dwelling house (including sheds or swimming pools) or other prohibited uses in the zone shall be undertaken on the RE1 zoned land on the lots so burdened; (2) the owner of the burdened lots shall fence the boundary of the land zoned RE1 Public Recreation with the land zoned R1 General Residential where that fence is not to encroach on the RE 1 zoned land, and (3) the owners of the burdened lots shall maintain the land zoned RE1 Public Recreation.
THE AUTHORITY empowered to release, vary, or modify the Restriction on the Use of Land numbered 1 in the plan is Central Coast Council."
(Exhibit C)
During the hearing, the Applicant confirmed it would not object to the imposition of a condition that required the completion of the fencing works imposed by the s 88B instrument prior to subdivision certificate.
The Applicant proposes the following condition:
"1.2 In relation to proposed lots 4-14 and 21, the Applicant must lodge with any application for subdivision certificate seeking to create these lots, the documents necessary to create a restrictive covenant over part of the lot zoned RE1, in favour of the Council, for the Council's approval. The relevant section 88B instrument is to provide that (1) development for residential purposes is prohibited on the part of the land zoned RE1 for any time that the land is zoned for public recreation (2) the owners of the burdened lots shall maintain the land zoned RE1 Public Recreation including fencing and hedging as required by Condition 1.3.
1.3 In relation to proposed lots 4-14 and 21, prior to obtaining a subdivision certificate, the Applicant is to erect a 1.2 metre open style fence along the boundary between RE1 zoned land and the R1 zoned land for lots 4-14 and 21 with gates for each of these lots to delineate the RE1 zoned land relative to the R1 zone land on each lot. The fence is to follow the blue dashed line in plan 190766-DA-005 prepared by ADW Johnson dated November 2022.
In addition, on lots 4-14 where zoned RE1 public recreation, the Applicant is to plant low rise hedges, of a variety and to the specifications and satisfaction of the Council's landscape officer along the lot boundaries running north south."
(Exhibit D)
Mr Harker submits that the appropriate approach to resolve the Respondents concerns with regard to the lack of orderly development by the imposition of the following condition on the consent:
"1.2 The proposed development is to be modified in accordance with section 4.17(1)(g) of the [EPA] Act as follows:
a) All RE1 zoned land (not part of Road No. 2) on Lots 4-14 (inclusive) and 21 is to be removed from those residential lots, and that RE1 zoned land is to be included in the two residue lots:
a. the first residue lot is to include the RE1 zoned land north of Road 2; and
b. the second residue lot is to include the RE1 zoned land south of Road 2.
b) 1.8m high timber fence(s) are to be erected along the boundary between the RE1 zoned land (not part of the proposed road network) for Lots 4-14 and 21 to delineate the RE1 zoned land relative to the R1 zoned land on each lot."
The effect of the proposed condition is to mandate the holding of the RE1 Public Recreation zone land within the subject site in two lots. In support of his submission Mr Harker relies on the evidence of Mr Waghorn, planning expert for the Respondent. Mr Waghorn's evidence can be summarised as follows:
1. That it is clear by reference to the documents supporting the development application, such as the SEE, that the intended future use of the land is residential. The creation of the two residue parcels proposed in the condition extracted at [45] has the effect of removing the future land use "conflict" that arises with RE1 land being on the same allotment as R1 land. The creation of the residue lots does not affect the delivery of dwellings in the growth area, just alters the size of the allotments.
2. The proposed s 88B restriction is not orderly, tidy or in a regular sequence and shifts the burden of responsibility from the Applicant to future landowners and/or Council.
3. The creation of residue lot(s) does not need to burden the Applicant as they have a number of options which include, but are not limited to:
1. Retain ownership of the residue lot(s) and undertake a planning proposal (or wait for Council to initiate a planning proposal in their LEP review) to rezone the RE1 land and then lodge a further application to incorporate the residue lot(s) into the existing R1 lots.
2. Sell the residue lot(s) to future owners to follow a similar path and lodge a planning proposal to change the RE1 zoning for the residue lot(s).
3. Dedicate the residue lot(s) to Council, free of charge, in accordance with the Warnervale District Contributions Plan to be used by members of the public in accordance with its RE1 zoning rather than privatised.
Mr Farrell's submissions in relation to the conditions proposed by the Respondent are summarised at [38].
[9]
Consideration
I accept the agreement of the experts and the submissions of Mr Farrell that the development application is for subdivision of land and does not approve any use of the land: Wehbe at [28]. Whilst the SEE may reference 'residential subdivision', such a use is not a defined term in either the EPA Act or LEP 2022. "Subdivision" is defined in the EPA Act at s 6.2 as the division of land after which is adapted for separate occupation, use or disposition. This separation of subdivision from use is consistent with Wehbe and cl 2.6 of LEP 2022.
A development application relates to 'land' that may, or may not, correspond to allotment boundaries: s 4.2(1) of the EPA Act. As long as the development proposed on the land (or part of the lot) is permissible in the zone mapped for that land, then the development is permissible. In this case, I am satisfied that the split zoned parcels are capable, if future consent is sought, of accommodating future residential dwellings within the portion of the lot zoned R1 Residential and in compliance with the relevant planning controls. I make this conclusion on the basis of the indicative building plans which form part of the development application and the agreed evidence of the planning experts.
Further, I accept the submission of Mr Farrell that these parcels are capable of accommodating a number of other uses that are permitted in both the R1 Residential zone and the RE1 Public Recreation zone. Given these two elements, I am satisfied that the proposed subdivision is both orderly and efficient because it delivers on the planning outcome of the designated urban release area and will produce allotments that are able to be utilised in a manner compliant with the relevant planning controls.
Noting the limited scope of remaining contentions between the parties and the satisfaction of the preconditions to consent, in my assessment the development application warrants approval on merit. There are no additional contentions raised in the proceedings or evidence that establishes grounds that would warrant the refusal of the application. The issue remaining for determination is the appropriate conditions of consent.
A consent authority has the power to impose conditions pursuant to s 4.7 of the EPA Act. I am persuaded that both conditions can be imposed. The condition proposed by the Respondent, extracted at [46], falls within s 4.17(1)(g) as 'it modifies the details of the development subject of the development application' by altering the proposed allotments. The condition proposed by the Applicant, extracted at [45] falls within s 4.17(1)(a) as it seeks to ensure future development is consistent with the provisions in LEP 2022, an environmental planning instrument under s 4.15(1) of the EPA Act.
For the following reasons, I prefer and impose on the consent the condition proposed by the Applicant:
1. The creation of residue lots containing the land zoned RE1 Public Recreation has the effect of holding this land 'together' until a future time. Implied in the Respondent's condition is that this land is required to be set aside either for future subdivision, a pending change in circumstances (for example, rezoning or development of adjoining parcels) or acquisition. In my view, such setting aside of this land is not warranted in the current proceedings.
2. Firstly, the Respondent has expressed no willingness to, either by condition of consent or other means, to accept or acquire ownership of the land zoned RE1 Public Recreation land. Whilst a condition seeking dedication or the like consistent with the relevant contributions plan may be authorised by s 4.17(1)(h) of the EPA Act, it has not been sought by the Council in these proceedings. During the proceedings Mr Harker did not seek to counter Mr Farrell's submissions in this regard.
3. Secondly, there are permissible uses under the current RE1 Public Recreation zone to which the land can be effectively and efficiently put. This was accepted by both experts in the proceedings.
4. Thirdly, I am not persuaded by Mr Waghorn's evidence that the residue parcels are necessary in this case to ameliorate land use conflict arising from the split zoned nature of the parcels. Firstly, there is no inherent conflict between the types of development permitted in the two zones which comprise the split zone parcels. Mr Waghorn does not particularise any specific conflicts that arise for management; I accept such a conflict may arise in a circumstance where a split zoned parcel comprised for example E4 General Industrial and R2 Low Density Residential where noise or other issues may require amelioration. But that is not the case in this proposed subdivision. I am satisfied that any potential conflict is appropriately managed by the proposed fencing and hedging works proposed by the Applicant in the RE 1 Public Recreation zone.
5. Having established the residue parcel is not warranted on grounds of future acquisition, or to manage land use conflicts, it is appropriate to consider if it should be set aside for some future subdivision. I am not persuaded the condition is warranted on these grounds either. Firstly, this is not a circumstance where a future subdivision will adjoin immediately adjacent the site boundaries where a residue may be warranted to transition site levels, road design or the like. Secondly, at the completion of the proposed subdivision, and the RE1 Public Recreation zoned land was held in two lots the form of the residue parcels as sought by the Respondent, it is unclear how those residue lots are ultimately regularised. If no further subdivision occurs, the residue lots will remain irregular in size and incongruent in form in the context of the subdivision as a whole. If the residue lots are subject of further subdivision, there is no evidence before the Court of how that may occur.
6. Finally, I am not persuaded by Mr Harker's submission that the creation of the residue parcels has the function of controlling any future residential development to the R1 General Residential portion of the split zoned lots, in effect stopping prohibited ancillary residential uses in the RE1 Public Recreation zoned land. In my view, this submission is insufficient to warrant the imposition of a condition to modify the development in circumstances where the s 88B restriction proposed by the Applicant and the zoning controls in LEP 2022 have the same effect.
In contrast, I am satisfied that the condition sought by the Applicant is sufficient to ensure that any concerns of the Respondent that future purchasers of the land are made aware of the uses permitted in the RE1 Public Recreation zone.
[10]
Orders
The Court orders that:
1. The appeal is upheld.
2. Development application DA/385/2023 (as amended on 28 August 2023) for subdivision (61 lots), environmental works and associated infrastructure and works at 77-91 Warnervale Road, Warnervale (Lot 72 DP 7091) is determined by the grant of consent subject to the conditions in Annexure A.
3. The exhibits are returned, exception for A, B and 4.
D M Dickson
Commissioner of the Court
Annexure A
[11]
Amendments
05 April 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule"), a typographical error in Condition 1.3 of Annexure A is corrected.
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: 05 April 2024
[12]
The site directly adjoins Porters Creek Public School to the west and the Warnervale Community Centre to the north.
The site is zoned part R1 General Residential, part R2 Low Density Residential and part RE1 Public Recreation under LEP 2022. An extract of the Land Zoning Map is provided below:
[13]
Figure 2 Land Zoning Map (Source: LEP 2022, extracted in Ex 4)
[14]
In detail, the development application seeks consent for the following:
Demolition of all existing structures;
Remediation of the site;
Sixty-one (61) Torrens title residential lots. Proposed lots 4-14 and 21 are considered split zoned lots containing both R1 General Residential and RE1 Public Recreation zoned land (split zoned lots);
50m wide environmental corridor located on Lot 62 which will be managed in accordance with the requirements of the Biodiversity Certification Order and the Biodiversity Certification Agreement (the Ministerial bio-certification);
Temporary sediment basin over Lot 21;
Local road construction within the site including 1.5m wide pedestrian pathways on one (1) side;
Widening of Warnervale Road, including 3.5m wide shared pathway on one (1) side;
Road widening to accommodate the potential future roundabout on the corner of Warnervale Road and Virginia Road;
Upgrades to Virginia Road including 2.5m wide shared pathway on one (1) side and upgrades to existing culverts;
Bulk earthworks including importing and stockpiling of fill;
Spreading of fill and benching of lots to create level building pads;
Provision of underground water, sewer, stormwater, electrical and communication servicing throughout;
Removal of vegetation;
Landscaping through provision of street trees and basin plantings; and
Creation of necessary easements.
The portion of the proposed subdivision that is referrable to the contentions is extracted below:
[15]
Figure 3 Portion of the proposed subdivision that is referrable to the contentions (Ex B)
[16]
The Respondent does not raise any concerns with the proposed subdivision of the portion of the site zoned R2 Low Density Residential or any of the remaining works for which consent is sought.
[17]
Prior to considering the contentions raised by the Respondent in support of the refusal of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v City of Parramatta Council[2020] NSWLEC 135 at [16]. Consideration of the preconditions relevant to the proposed development follows.
The development application was notified by the Respondent from 28 April to 19 May 2023. No submissions were received.
The development application is integrated development as the site is identified on the Bushfire Prone Land Map as Vegetation Buffer. The development application was accompanied by a bushfire protection assessment report and was referred to the NSW Rural Fire Service (NSWRFS). The NSWRFS issued a Bushfire Safety Authority pursuant to s 100B of the Rural Fires Act 1997 on 14 March 2024. The annexed conditions of consent require compliance with the Bushfire Safety Authority.
The NSW Government Gazette included the Ministerial bio-certification of the site pursuant to s 8.2 of the Biodiversity Conservation Act 2016 (BC Act). That certification covers the portion of the site where subdivision under the development application is proposed. Under s 8.4(2) of the BC Act an assessment of the likely impact of the development on biodiversity under Pt 4 of the EPA Act is not required where the land is the subject of Ministerial bio-certification. Section 7.6 of the BC Act provides that the requirements of Pt 7 of the BC Act does not apply to land certified under Pt 8 of the BC Act.
Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH) requires the consent authority to consider whether the site is contaminated before development consent can be granted. The development application is accompanied by a Detailed Site Investigation Report (DSI) and a Remediation Action Plan (RAP). Those reports conclude that:
That the site contains some contamination, including fill with building debris, hydrocarbons and minor building rubbish.
That site remediation and validation will be required to ensure the site is suitable for any residential use.
That such remediation is practicable and possible through the implementation of the RAP.
After considering the DSI, the RAP and the proposed conditions of consent, I can be satisfied that the requirement of cl 4.6 of SEPP RH is met.
The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC) is a relevant environmental planning instrument that applies to the site: s 4.15(1)(a)(i) of the EPA Act. However, the effect of the bio-certification discussed at (15) is that the provisions of SEPP BC do not apply.
The development application is accompanied by a Traffic Impact Assessment. The parties agree, and I accept, that that report establishes that applying s 2.122 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP TI), whilst the development is subdivision, it does not fall within the definition of 'traffic generating development' and no referral to the NSW Roads and Traffic Authority is required. Further, referral under s 2.97 of SEPP TI is not required as the proposed development does not involve a likely increase in the total number of vehicles or the number of trucks using a level crossing as a result of the proposed development.
As noted at [7], the site is subject to three zones under LEP 2022. As required by cl 2.3(2) of LEP 2022, I have considered the objectives of the zone in determining the development application. Those objectives are:
[18]
Zone R1 General Residential
1 Objectives of zone
• To provide for the housing needs of the community.
• To provide for a variety of housing types and densities.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
• To promote best practice in the design of multi dwelling housing and other similar types of development.
• To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.
Zone R2 Low Density Residential
1 Objectives of zone
• 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 encourage best practice in the design of low density residential development.
• To ensure that non-residential uses do not adversely affect residential amenity or place unreasonable demands on services.
• To maintain and enhance the residential amenity and character of the surrounding area.
Zone RE1 Public Recreation
1 Objectives of zone
• To enable land to be used for public open space or recreational purposes.
• To provide a range of recreational settings and activities and compatible land uses.
• To protect and enhance the natural environment for recreational purposes.
• To identify areas suitable for development for recreation and cultural purposes.
• To provide space for integrated stormwater treatment devices for flow and water quality management.
[19]
Pursuant to cl 2.6 of LEP 2022, subdivision is permitted with consent on the land.
The development application proposes demolition of the existing structures. Demolition is permitted with consent pursuant to cl 2.7 of LEP 2022.
Pursuant to cl 4.1 (Minimum lot size), the portion of the site that is zoned R2 Low Density Residential is mapped on the Lot Size Map as having a minimum lot size of 450m². The remainder of the site has no mapped minimum lot size. The proposed development is compliant with the minimum lot size standard.
The development application includes an Aboriginal Due Diligence Assessment of the site. That report concludes that the site does not contain any Aboriginal objects or places and as such the parties agree, and I accept, that the provisions of cl 5.10 (Heritage conservation) of LEP 2022.
The proposed development is within the Warnervale South (Part B) Urban Release Area and as such requires compliance with cl 6.1 (Concurrence of Planning Secretary - urban release areas). Concurrence was granted by the Planning Secretary on 23 September 2023 and a certificate of satisfactory arrangements has been tendered. The clause is satisfied.
Pursuant to cl 6.2 (Public utility infrastructure), before granting consent the consent authority must be satisfied that:
[20]
(a) public utility infrastructure that is essential for the proposed development is available, or
(b) adequate arrangements have been made to make that infrastructure available when it is required.
[21]
The parties agree, and I accept, that adequate arrangements have been made to make the required public utility infrastructure required for the development available when required. Such arrangements are also appropriately incorporated in the annexed conditions of consent. On a similar basis the parties agree, and I accept that, after considering the matters listed at cl 7.6 (Essential services) in LEP 2022 the provision is satisfied.
The relevant preconditions to consent are satisfied.
[22]
The following Town Planning experts gave evidence in the proceedings: David Waghorn (for the Applicant), Stephanie Van Dissel (for the Respondent). The experts prepared a joint report which was tendered in the proceedings. The experts were also called for cross-examination and oral evidence.
[23]
Is the development application orderly development?
[24]
The Respondent argues that the proposed development is not orderly development on the following basis.
The split zoned lots contain land which is zoned RE1 Public Recreation where dwelling houses are an innominate prohibited use. Approval of lots for future residential purposes that contain land where this use is prohibited is contrary to s 1.3(c) of the EPA Act which seeks to promote the orderly and economic use and development of land.
The Respondent accepts the submission of the Applicant that, applying Wehbe v Pittwater Council(2007) 156 LGERA 446; [2007] NSWLEC 827 (Wehbe) at [28], subdivision itself does not involve any use of land. However, the Respondent argues that the development application is framed on the basis of the future use of the site being residential. In making this submission, Mr Harker, counsel for the Respondent, makes reference to the Statement of Environmental Effects (SEE) and the development application form which both nominate the development sought as 'residential subdivision'.
That consistent with authority, it is appropriate to consider the future ultimate use of the land in deciding whether to approve a subdivision application, citing: Penrith Lakes Development Corporation v Penrith City Council[2015] NSWLEC 1329 at [89]; and Seraphina Bell Pty Ltd v Willoughby Municipal Council (No 2)(1967) 14 LGRA 209 at [224].
Mr Harker submits that it is relevant and necessary for the Court to consider the likely future residential use of the land and that such uses are prohibited in the RE1 Public Recreation zoned land. He argues that it is not orderly development to facilitate development that is prohibited, in this case residential: Sydney Project Group Pty Ltd v Cumberland Council[2017] NSWLEC 1500 at [37].
Mr Harker rejects the evidence of Ms Van Dissel that the future use of the RE1 Public Recreation portion of the proposed lots as a garden would be permissible as the use would be characterised as a 'recreation area'. Rather, Mr Harker argues that applying the approach to the characterisation of use detailed in Chamwell Pty Ltd v Strathfield Council[2007] NSWLEC 114 at [27] the use of a garden by a future resident forms part of the dwelling use which is a prohibited use in the RE1 Public Recreation zone. Mr Harker submits that:
[25]
"A recreation area is a 'place used for outdoor recreation that is normally open to the public'. The subject of the definition is 'a place'. It is that place which must be normally open to the public: see for example, Palm Beach Protection Group Inc v Northern Beaches Council[2020] NSWLEC 156, [131-133]. That will not occur where the RE1 [Public Recreation zone] land falls within individual lots."
[26]
In conclusion, Mr Harker argues that, whilst not proposed in this application, the intended use of the proposed subdivision is for the purpose of residential - a use prohibited in the RE1 Public Recreation zoned portion of the land.
In their joint report, the planning experts agree that subdivision is not a use and is permissible in all zones applicable to the land. Further, they agree that consent for subdivision does not imply any approval for subsequent use for any purpose: Wehbe at [28-29].
In relation to any potential future use of the site for residential dwellings, the planning experts note their agreement to the following three matters:
[27]
"...
(e). A development application relates to "land" and land is not limited to an entire lot but can include part of a lot. This is clear from ss 4.1, 4.2 and 4.3 and definition of "land" in s 1.4 of the Environmental Planning and Assessment Act 1979.
(f) A dwelling can be built on split zoned lots, upon a zone wherein that use is permissible but a dwelling is prohibited on the RE1 land. By extension, the ancillary aspects of a dwelling which require development consent or a complying development certificate are also prohibited.
(g) A dwelling can fit on the R1 zoned portion of the site in accordance with the LEP and DCP objectives and controls. DW agreed, with the exception of Lot 12, whereby the latest building envelope plans show a design still relying on the RE1 zoned land for private open space as required under the DCP; however, DW acknowledged that a design could be provided with open space area is in R1 zone for this lot."
(Exhibit 2)
[28]
The experts disagree about the extent that it is necessary or appropriate to consider the future use of the subdivided land in the assessment of the development application. Ms Van Dissel argues:
The approval of the subdivision does not facilitate a prohibited use on the portion of the split zone parcel zoned RE1 Public Recreation.
The development application provides an indicative building envelope plan which 'proves up' that if the proposed lots are, in the future, used for dwelling houses, the lots can accommodate development which complies with the development controls. Such documentation is consistent with the Court's planning principle in Parrott v Kiama Council[2004] NSWLEC 77 (Parrott).
The proposed application of a s 88B instrument is sufficient to alert any future purchaser of these lots that permitted uses are restricted in the portion of the split zone parcel zoned RE1 Public Recreation.
In the alternate, Mr Waghorn argues that the appropriate resolution to ensure the orderly and economic development of the portion of the split zone parcel zoned RE1 Public Recreation is for the land to be held englobo in a residue lot. He argues:
[29]
"...
b. It is clear that dwellings are prohibited in the RE1 zone as are its private open space and associated ancillary development such as swimming pool and fences. Therefore, this application is effectively seeking a subdivision for Lots 4-14 and 21 that facilitates a prohibited use on the RE1 land given the development application form clearly details "61 residential lots" amongst other works. A combination of future applications, indicative building envelopes and/or conditions of consent (at the very least) are required to resolve the issue. In my opinion, this is considered to be a sub-optimal outcome to the orderly economic use or development of land under s1.3 of the EPA Act or Dot Point 5 of the objectives under Part 5.25.2.2 of CCDCP 2022.
c. The Macquarie Dictionary defines "orderly" as "arranged or disposed in order, in regular sequence, or in a tidy manner". In my opinion, the ability to achieve the "orderly" development of land rests with the creation of residue lot(s) to separate the R1 and RE1 land for Lots 4-14 and 21. The residue lot(s) are considered "orderly" as it removes the future land use "conflict" that arises with RE1 land being on the same allotment as R1 land. More importantly, the excising of the RE1 land from lots 4-14 and 21 does not affect the delivery of dwellings in designated growth area, it simply changes the size of the allotment.
..."
(Exhibit 2)
[30]
In relation to the consideration of the future likely use of the subdivided lots, Mr Waghorn relies on the planning principle in Parrott to argue this is a relevant consideration. However, he accepts that the indicative building envelope plans demonstrate a dwelling can be accommodated on the portion of the split zoned lots R1 General Residential and that they demonstrate that any future use for dwelling houses does not rely on the RE1 zoned land to function.
Ultimately, in the joint report and his oral evidence, Mr Waghorn accepted that the Respondent's contention that the development application should be refused on the basis it is not orderly development is resolved by either the imposition of the s 88B instrument or the creation of two residue parcels. However, he argues that the imposition of a condition on the subdivision that required the portion of the split zone parcel zoned RE1 Public Recreation to be held in a residue lot is a more appropriate planning outcome.
Mr Farrell, counsel for the Applicant, submits that the Court would accept the Respondent's contention is not made out and that the development application represents appropriate orderly and economic development. His four main submissions are:
[31]
(1) The development application, as amended, is for subdivision simpliciter as established by Wehbe. Following the completion of the subdivision proposed in the development application, the use of any of the 61 lots created will require development consent. The Applicant has demonstrated that the subdivided land is able to be utilised lawfully and efficiently.
(2) To the extent that the consideration of the future uses of the split zoned lots is relevant, the Respondent, and Mr Waghorn, fail to consider broader permissible uses. Mr Farrell identifies that under LEP 2022 there are a number of common permissible uses in the R1 General Residential and RE1 Public Recreation zones. These include centre-based childcare, caravan parks, community facilities, emergency services facilities, information and education facilities and respite day care. He submits that if any of these uses occur on the land the issues raised by the Council do not arise. There is no obligation on any lot owner post subdivision to carry out development for residential purposes.
(3) That to the extent future residential use of the subdivided lots is considered by the Court, the Applicant proposes:
[32]
"i. interim solution: the Applicant proposes a condition of consent (condition 1.2) which proposes that the RE1 portion of the Split Zoned Lots will be subject to a restrictive covenant, in favour of the Council, that the land cannot be used for residential purposes whilst ever it is zoned for public recreation. The northern zone boundary can be fenced and the RE1 land can be landscaped and hedged without any breach of the provisions of the Central Coast Local Environmental Plan 2022.
ii medium term solution: Section 3.21 of the EPA&A Act requires the Council to keep its local environmental plans under regular and periodic review. There is no reason why a Council or a landowner led rezoning application cannot proceed in the coming years, including during the period the subdivision works are being carried out."
(Applicant's written submissions 4 March 2023)
[33]
(4) That the Council's proposal to hold the RE1 zoned portion of the split zoned lots in two residue lots is contrary to the orderly and economic use of land. Firstly, to do so serves no purpose in circumstances where the split zoned parcels are able to be utilised for uses that are permissible in both zones. Secondly, to do so will create practical difficulties if the land is rezoned in the future.
[34]
Further, Mr Farrell notes that the Respondent no longer presses the contention that approval of the development application was not in the public interest. As such he argues that it is unclear how the objects of the EPA Act, in particular (c) "to promote the orderly and economic use and development of land", are relevant. He submits the objects of the EPA Act are not independent statutory provisions and arise either as part of the consideration of the public interest or to assist in statutory interpretation. Neither apply in this instance.
Finally, Mr Farrell addresses the matter of the Council's position on the potential of a public function for the RE1 Public Recreation land. He states:
[35]
"... in relation to the Warnervale District Contributions Plan:
[36]
(a) it is clear that the RE1 land is surplus land that is no longer required for drainage and water quality, that function now being taken up by the infrastructure in the road;
(b) the Respondent has indicated that the site has no open space role or function of the intent of public recreation.
(c) the Respondent has not sought the dedication of the land to it in the conditions of consent. Based on previous communications with the Respondent, this is because the Respondent does not want the cost of maintaining the land."
[37]
Mr Harker confirms that the Council does not seek the dedication of the portion of the site zoned RE1 Public Recreation.
[38]
The experts disagree on the appropriate treatment of the portion of the split zoned parcels that is zoned RE1 Public Recreation.
As part of the development application, the Applicant proposes the implementation of the following restriction on the use of the split zoned parcels (s 88B instrument):
[39]
"For the time that the above mentioned lots are partly zoned RE 1 Public Recreation under the Central Coast Local Environmental Plan 2022 or relevant local environmental planning instrument, (1) no development for the purposes of dwelling house (including sheds or swimming pools) or other prohibited uses in the zone shall be undertaken on the RE1 zoned land on the lots so burdened; (2) the owner of the burdened lots shall fence the boundary of the land zoned RE1 Public Recreation with the land zoned R1 General Residential where that fence is not to encroach on the RE 1 zoned land, and (3) the owners of the burdened lots shall maintain the land zoned RE1 Public Recreation.
THE AUTHORITY empowered to release, vary, or modify the Restriction on the Use of Land numbered 1 in the plan is Central Coast Council."
(Exhibit C)
[40]
During the hearing, the Applicant confirmed it would not object to the imposition of a condition that required the completion of the fencing works imposed by the s 88B instrument prior to subdivision certificate.
The Applicant proposes the following condition:
[41]
"1.2 In relation to proposed lots 4-14 and 21, the Applicant must lodge with any application for subdivision certificate seeking to create these lots, the documents necessary to create a restrictive covenant over part of the lot zoned RE1, in favour of the Council, for the Council's approval. The relevant section 88B instrument is to provide that (1) development for residential purposes is prohibited on the part of the land zoned RE1 for any time that the land is zoned for public recreation (2) the owners of the burdened lots shall maintain the land zoned RE1 Public Recreation including fencing and hedging as required by Condition 1.3.
1.3 In relation to proposed lots 4-14 and 21, prior to obtaining a subdivision certificate, the Applicant is to erect a 1.2 metre open style fence along the boundary between RE1 zoned land and the R1 zoned land for lots 4-14 and 21 with gates for each of these lots to delineate the RE1 zoned land relative to the R1 zone land on each lot. The fence is to follow the blue dashed line in plan 190766-DA-005 prepared by ADW Johnson dated November 2022.
In addition, on lots 4-14 where zoned RE1 public recreation, the Applicant is to plant low rise hedges, of a variety and to the specifications and satisfaction of the Council's landscape officer along the lot boundaries running north south."
(Exhibit D)
[42]
Mr Harker submits that the appropriate approach to resolve the Respondents concerns with regard to the lack of orderly development by the imposition of the following condition on the consent:
[43]
"1.2 The proposed development is to be modified in accordance with section 4.17(1)(g) of the [EPA] Act as follows:
a) All RE1 zoned land (not part of Road No. 2) on Lots 4-14 (inclusive) and 21 is to be removed from those residential lots, and that RE1 zoned land is to be included in the two residue lots:
[44]
a. the first residue lot is to include the RE1 zoned land north of Road 2; and
b. the second residue lot is to include the RE1 zoned land south of Road 2.
[45]
b) 1.8m high timber fence(s) are to be erected along the boundary between the RE1 zoned land (not part of the proposed road network) for Lots 4-14 and 21 to delineate the RE1 zoned land relative to the R1 zoned land on each lot."
[46]
The effect of the proposed condition is to mandate the holding of the RE1 Public Recreation zone land within the subject site in two lots. In support of his submission Mr Harker relies on the evidence of Mr Waghorn, planning expert for the Respondent. Mr Waghorn's evidence can be summarised as follows:
[47]
(1) That it is clear by reference to the documents supporting the development application, such as the SEE, that the intended future use of the land is residential. The creation of the two residue parcels proposed in the condition extracted at [45] has the effect of removing the future land use "conflict" that arises with RE1 land being on the same allotment as R1 land. The creation of the residue lots does not affect the delivery of dwellings in the growth area, just alters the size of the allotments.
(2) The proposed s 88B restriction is not orderly, tidy or in a regular sequence and shifts the burden of responsibility from the Applicant to future landowners and/or Council.
(3) The creation of residue lot(s) does not need to burden the Applicant as they have a number of options which include, but are not limited to:
(a) Retain ownership of the residue lot(s) and undertake a planning proposal (or wait for Council to initiate a planning proposal in their LEP review) to rezone the RE1 land and then lodge a further application to incorporate the residue lot(s) into the existing R1 lots.
(b) Sell the residue lot(s) to future owners to follow a similar path and lodge a planning proposal to change the RE1 zoning for the residue lot(s).
(c) Dedicate the residue lot(s) to Council, free of charge, in accordance with the Warnervale District Contributions Plan to be used by members of the public in accordance with its RE1 zoning rather than privatised.
[48]
Mr Farrell's submissions in relation to the conditions proposed by the Respondent are summarised at [38].
[49]
I accept the agreement of the experts and the submissions of Mr Farrell that the development application is for subdivision of land and does not approve any use of the land: Wehbe at [28]. Whilst the SEE may reference 'residential subdivision', such a use is not a defined term in either the EPA Act or LEP 2022. "Subdivision" is defined in the EPA Act at s 6.2 as the division of land after which is adapted for separate occupation, use or disposition. This separation of subdivision from use is consistent with Wehbe and cl 2.6 of LEP 2022.
A development application relates to 'land' that may, or may not, correspond to allotment boundaries: s 4.2(1) of the EPA Act. As long as the development proposed on the land (or part of the lot) is permissible in the zone mapped for that land, then the development is permissible. In this case, I am satisfied that the split zoned parcels are capable, if future consent is sought, of accommodating future residential dwellings within the portion of the lot zoned R1 Residential and in compliance with the relevant planning controls. I make this conclusion on the basis of the indicative building plans which form part of the development application and the agreed evidence of the planning experts.
Further, I accept the submission of Mr Farrell that these parcels are capable of accommodating a number of other uses that are permitted in both the R1 Residential zone and the RE1 Public Recreation zone. Given these two elements, I am satisfied that the proposed subdivision is both orderly and efficient because it delivers on the planning outcome of the designated urban release area and will produce allotments that are able to be utilised in a manner compliant with the relevant planning controls.
Noting the limited scope of remaining contentions between the parties and the satisfaction of the preconditions to consent, in my assessment the development application warrants approval on merit. There are no additional contentions raised in the proceedings or evidence that establishes grounds that would warrant the refusal of the application. The issue remaining for determination is the appropriate conditions of consent.
A consent authority has the power to impose conditions pursuant to s 4.7 of the EPA Act. I am persuaded that both conditions can be imposed. The condition proposed by the Respondent, extracted at [46], falls within s 4.17(1)(g) as 'it modifies the details of the development subject of the development application' by altering the proposed allotments. The condition proposed by the Applicant, extracted at [45] falls within s 4.17(1)(a) as it seeks to ensure future development is consistent with the provisions in LEP 2022, an environmental planning instrument under s 4.15(1) of the EPA Act.
For the following reasons, I prefer and impose on the consent the condition proposed by the Applicant:
[50]
(1) The creation of residue lots containing the land zoned RE1 Public Recreation has the effect of holding this land 'together' until a future time. Implied in the Respondent's condition is that this land is required to be set aside either for future subdivision, a pending change in circumstances (for example, rezoning or development of adjoining parcels) or acquisition. In my view, such setting aside of this land is not warranted in the current proceedings.
(2) Firstly, the Respondent has expressed no willingness to, either by condition of consent or other means, to accept or acquire ownership of the land zoned RE1 Public Recreation land. Whilst a condition seeking dedication or the like consistent with the relevant contributions plan may be authorised by s 4.17(1)(h) of the EPA Act, it has not been sought by the Council in these proceedings. During the proceedings Mr Harker did not seek to counter Mr Farrell's submissions in this regard.
(3) Secondly, there are permissible uses under the current RE1 Public Recreation zone to which the land can be effectively and efficiently put. This was accepted by both experts in the proceedings.
(4) Thirdly, I am not persuaded by Mr Waghorn's evidence that the residue parcels are necessary in this case to ameliorate land use conflict arising from the split zoned nature of the parcels. Firstly, there is no inherent conflict between the types of development permitted in the two zones which comprise the split zone parcels. Mr Waghorn does not particularise any specific conflicts that arise for management; I accept such a conflict may arise in a circumstance where a split zoned parcel comprised for example E4 General Industrial and R2 Low Density Residential where noise or other issues may require amelioration. But that is not the case in this proposed subdivision. I am satisfied that any potential conflict is appropriately managed by the proposed fencing and hedging works proposed by the Applicant in the RE 1 Public Recreation zone.
(5) Having established the residue parcel is not warranted on grounds of future acquisition, or to manage land use conflicts, it is appropriate to consider if it should be set aside for some future subdivision. I am not persuaded the condition is warranted on these grounds either. Firstly, this is not a circumstance where a future subdivision will adjoin immediately adjacent the site boundaries where a residue may be warranted to transition site levels, road design or the like. Secondly, at the completion of the proposed subdivision, and the RE1 Public Recreation zoned land was held in two lots the form of the residue parcels as sought by the Respondent, it is unclear how those residue lots are ultimately regularised. If no further subdivision occurs, the residue lots will remain irregular in size and incongruent in form in the context of the subdivision as a whole. If the residue lots are subject of further subdivision, there is no evidence before the Court of how that may occur.
(6) Finally, I am not persuaded by Mr Harker's submission that the creation of the residue parcels has the function of controlling any future residential development to the R1 General Residential portion of the split zoned lots, in effect stopping prohibited ancillary residential uses in the RE1 Public Recreation zoned land. In my view, this submission is insufficient to warrant the imposition of a condition to modify the development in circumstances where the s 88B restriction proposed by the Applicant and the zoning controls in LEP 2022 have the same effect.
[51]
In contrast, I am satisfied that the condition sought by the Applicant is sufficient to ensure that any concerns of the Respondent that future purchasers of the land are made aware of the uses permitted in the RE1 Public Recreation zone.
[52]
(1) The appeal is upheld.
(2) Development application DA/385/2023 (as amended on 28 August 2023) for subdivision (61 lots), environmental works and associated infrastructure and works at 77-91 Warnervale Road, Warnervale (Lot 72 DP 7091) is determined by the grant of consent subject to the conditions in Annexure A.
(3) The exhibits are returned, exception for A, B and 4.
05 April 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule"), a typographical error in Condition 1.3 of Annexure A is corrected.
Pursuant to cl 4.1 (Minimum lot size), the portion of the site that is zoned R2 Low Density Residential is mapped on the Lot Size Map as having a minimum lot size of 450m². The remainder of the site has no mapped minimum lot size. The proposed development is compliant with the minimum lot size standard.
The development application includes an Aboriginal Due Diligence Assessment of the site. That report concludes that the site does not contain any Aboriginal objects or places and as such the parties agree, and I accept, that the provisions of cl 5.10 (Heritage conservation) of LEP 2022.
The proposed development is within the Warnervale South (Part B) Urban Release Area and as such requires compliance with cl 6.1 (Concurrence of Planning Secretary - urban release areas). Concurrence was granted by the Planning Secretary on 23 September 2023 and a certificate of satisfactory arrangements has been tendered. The clause is satisfied.
Pursuant to cl 6.2 (Public utility infrastructure), before granting consent the consent authority must be satisfied that:
(a) public utility infrastructure that is essential for the proposed development is available, or
(b) adequate arrangements have been made to make that infrastructure available when it is required.
The parties agree, and I accept, that adequate arrangements have been made to make the required public utility infrastructure required for the development available when required. Such arrangements are also appropriately incorporated in the annexed conditions of consent. On a similar basis the parties agree, and I accept that, after considering the matters listed at cl 7.6 (Essential services) in LEP 2022 the provision is satisfied.
The relevant preconditions to consent are satisfied.
Further, Mr Farrell notes that the Respondent no longer presses the contention that approval of the development application was not in the public interest. As such he argues that it is unclear how the objects of the EPA Act, in particular (c) "to promote the orderly and economic use and development of land", are relevant. He submits the objects of the EPA Act are not independent statutory provisions and arise either as part of the consideration of the public interest or to assist in statutory interpretation. Neither apply in this instance.
Finally, Mr Farrell addresses the matter of the Council's position on the potential of a public function for the RE1 Public Recreation land. He states:
"… in relation to the Warnervale District Contributions Plan:
(a) it is clear that the RE1 land is surplus land that is no longer required for drainage and water quality, that function now being taken up by the infrastructure in the road;
(b) the Respondent has indicated that the site has no open space role or function of the intent of public recreation.
(c) the Respondent has not sought the dedication of the land to it in the conditions of consent. Based on previous communications with the Respondent, this is because the Respondent does not want the cost of maintaining the land."
(Applicant's written submissions 4 March 2023)
Mr Harker confirms that the Council does not seek the dedication of the portion of the site zoned RE1 Public Recreation.
