Vigor Master Pty Limited v Warringah Council

Land and Environment Court (NSW)|2005-01-28

CITATION : Vigor Master Pty Limited v Warringah Council [2005] NSWLEC 35

APPLICANT: Vigor Master Pty Limited PARTIES : RESPONDENT: Warringah Council

KEY ISSUES: Development Application :- Housing density - Road access - and Aboriginal heritage significance.

CASES CITED: Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145 - Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577

DATES OF HEARING: 27 and 28 January 2005 and 4 February 2005

APPLICANT: Mr Henry Yu in person with Mr Jian Zhong Liu, and Ms Xue Qin Wang. SOLICITORS: N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr N D Howie, solicitor SOLICITORS: Wilshire Webb

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11009 of 2004 - Vigor Master Pty Limited v Warringah Council

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Warringah Council (the council) of a development application to erect a new dwelling at Lot 1093, DP 752038, in Brooker Avenue, Beacon Hill, NSW 2100. It is proposed to erect the new dwelling on B2 (predominantly, one dwelling per 20ha-'non-urban') land, on the 'urban fringe' of Beacon Hill. 2 I visited the land in company with the parties on the morning of the hearing. On the site inspection Mr Humphrey a nearby resident gave evidence that related to vehicular access to the land. 3 I have concluded that the application should fail for reason that it would not maintain the likely desired future character of the B2 'non-urban' land and would be contrary to the objective of the planning instrument to maintain the natural features of the land. The land 4 The land is situated within the B2 Oxford Falls Valley Locality under Warringah Local Environmental Plan 2000 (WLEP 2000). 5 Nearby, to the north and west, are undeveloped allotments that formed with the subject land, as at 8 March 1974, an existing parcel of around 17ha. That parcel, abutting the subject land to the north, has a dwelling 'entitlement' that has been taken up, by that applicant when the council approved a dwelling on Lot 1091, DP 752038. There are dwellings to the south in Brooker Avenue, and to the east around the cul-de-sac head of Guardian Parade. These latter houses back onto the proposed vehicular access to the subject land. 6 The land is almost rectangular in shape, an area of 2.8128ha, with no public street frontage. It has a frontage of 105.05m to an unformed Crown road to the east, a northern boundary of 298.70m, a western side boundary of 119.1m and a southern boundary of 266.5m. The land slopes from north to south and west to east and over the building platform the cross-fall is about 2m. 7 Sandstone heath and Bloodwood/ Scribbly Gum Woodland predominates in the area. This vegetation community is said to be common and widespread in the Warringah Council area and well represented in Ku ring gai Chase and Garigal National Parks. 8 Some stands of trees provide habitat for threatened species of flora (Tetratheca glandulosa) or fauna (Red-crowned Toadlet, Giant Burrowing Frog, Heath Monitor, Regent Honeyeater and Southern Brown Bandicoot). 9 Other plants in the vegetation community include seven ROTAP species (Angophora crassifolia, Boronia serrulata, Eucalyptus luehmanniana, Gonocarpus salsoloides, Lomandra brevis, Platysace stephensonii and Rulingia hermannifolia) and five species not recorded in Kur-ring-gai Chase or Garigal National Parks (Hibbertia obtusifolia, Lindsaea dimorpha, Melaleuca nodosa, Tetraria capillaris and Tetrarrhena turfosa). 10 The land is undeveloped, vacant and provided with normal residential services. Relevant planning controls Warringah Local Environmental Plan 2000, (WLEP2000) 11 Under the provisions of the WLEP2000, which was gazetted 5 December 2000, the land is zoned for 'housing' as a Category 2 use and the proposal is permissible with consent. The land falls within the B2 - Oxford Falls Valley Locality. 12 The compendious WLEP2000 is in a form unlike traditional local environmental plans. It does not rely on zoning and zoning tables to define what development is allowable on land within the local government area. Locality Statements, as "…set out in an Appendix to this plan", are included to guide future development, [Note: Exhibit 7. Pages 134 - 576]. 13 Clause 3 of the WLEP2000 specifies that the purposes of the plan are: (a) … (b) to describe the desired characters of the localities that make up Warringah and relate the controls on development to the achievement of the desired characters of those places, and (c) to establish limits to the exercise of discretion with regard to the control of development, …

14 Part 2 of the Plan, entitled "Control of Development", provides in cl 7 that all development requires consent except exempt development identified in Sch 1 when carried out in accordance with the requirements of that schedule and development identified in Sch 2 when carried out in accordance with the requirements of that schedule. Under cl 10, prohibited development is, development identified as being prohibited within a Locality Statement. 15 The council is the consent authority under cl 11, except for certain types of remediation work. Clause 12 deals with what matters are considered before consent is granted, [Note: Exhibit 7 pp 9 and 10]. . This clause augments the heads of consideration of s 79C of the Environmental Planning and Assessment Act 1979. 16 A note at the end of cl 12 of the WLEP2000 reads: Before granting consent for development the consent authority must consider the matters set out under section 79C of the Act.

To assist with understanding: Category One development is development that is generally presumed to be consistent with the desired future character of the locality, Category Two development is development that may be consistent with the desired future character of the locality, and Category Three development is development that is generally presumed to be inconsistent with the desired future character of the locality. (Court's emphasis added.) 17 Clause 6(2) of the WLEP2000 provides that notes such as this are explanatory only. 18 Clause 14 of the WLEP2000 is entitled "How will the use of land be controlled?" It provides, in subclause (1), that: For the purposes of clause 12, development of land within a locality is classified by the relevant Locality Statement as being within one of three following categories: (a) Category One; (b) Category Two; (c) Category Three. 19 Clause 18 of the WLEP2000 is entitled "How will the built form of development be controlled?" It is in the following terms: (1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement. (2) Strict compliance with development standards, however, does not guarantee that the development is consistent with either the general principles of development control or the desired future character of the locality. 20 Clause 20 of WLEP2000 is entitled "Can development be approved if it does not comply with a development standard?" Subclause (1) provides that: Notwithstanding clause 12(2)(b), consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy. 21 Part 4 of the WLEP2000 contains the "General principles of development control". It deals with such matters as glare and reflection, noise, pollutants, hazardous uses, radiation emission levels, flood affected land, safety and security, signage, sloping land, access to sunlight, landscaped open space, private open space, building bulk, traffic access and parking. 22 As the phrase "development standards" is not defined in the WLEP2000, s 34(1) of the Environmental Planning and Assessment Act 1979 applies and "development standards" in the WLEP2000 has the same meaning as in the Act. Thus, a development standard the WLEP2000 as referred to in cll 12(2)(b) and 20 "…is a provision of an environmental planning instrument in relation to the carrying out of development, being a provision by or under which requirements are specified or standards are fixed in respect of any aspect of that development". 23 "Locality" is defined in the dictionary to the WLEP2000, to mean, "a discrete area of land (or water) listed as a locality in an Appendix to this plan and identified on the map". 24 The desired future character of Locality B2 - Oxford Falls Valley is, [Note Exhibit 7, p 181]: The present character of the Oxford Falls Valley locality will remain unchanged except in circumstances specifically addressed as follows. Future development will be limited to new houses conforming with the housing density standards set out below and low intensity, low impact uses. There will be no new development on ridgetops or in places that will disrupt the skyline when viewed from Narrabeen Lagoon and the Wakehurst Parkway. The natural landscape including landforms and vegetation will be protected and, where possible, enhanced. Buildings will be located and grouped in areas that will minimise disturbance of vegetation and landforms whether as a result of the buildings themselves or the associated works including access roads and services. Buildings, which are designed to blend with the colours and textures of the natural landscape, will be strongly encouraged. A dense bushland buffer will be retained or established along Forest Way and Wakehurst Parkway. Development in the locality will not create siltation or pollution of Narrabeen Lagoon. 25 The B2 Oxford Falls Valley locality is identified in the WLEP2000 map and includes Sheets 20, 21, 25, 26, 30 and 31 on the map, with the land located on Sheet 31, [Note: Exhibit 10]. 26 Sheet 31 of the WLEP2000 shows the subject land, being Lot 1093, within the B2, one dwelling per 20ha-predominantly 'non-urban' zone separated by the zone boundary from the B8 and B1, existing urban areas. Mr Neustein, the Court-appointed town planning expert, was of the opinion that, "…its development potential is not defined by consistency with the urban residential area but, the "non-urban" zone." [Note: Exhibit 8 p 5]. 27 The B2 Oxford Falls Valley locality built-form controls applicable to the proposed development are housing density, building height; front building setback; rear and side building setback; landscaped open space, National Park setback. [Note: Clause 12(2)(b) & cl 18 of the WLEP2000] 28 Matters to be considered before consent is granted are outlined in cll 12(2)(b) and 12(3)(b) of the WLEP2000 and development is required to conform with the housing density standard of one dwelling per 20 ha of site area and is to be consistent with the Desired Future Character Statement for the B2 Oxford Falls Valley Locality. 29 An exception, is available to the maximum housing density standard of one dwelling per 20 ha under cl 12(3)(a) of the WLEP2000, if the land is an existing parcel of land, being all adjacent or adjoining land held in the same ownership on 8 March 1974 and having a combined area of not less than 2 ha. 30 The parties agreed prior to the hearing, that the subject land, being Lot 1093, was not alone, an 'existing parcel' of land on 8 March 1974 as defined in the WLEP2000 and therefore the housing density standard of cl 12(3)(a) cannot be varied under this exception. However, it forms part of an 'existing parcel' as defined, comprising Lots 1086, 1088, 1089, 1090, 1091, 1092 and 1093 with an area of some 17.0626m2 (say 17ha), [Note: Exhibit C, Fig 3]. 31 The WLEP2000 excludes from operation, State Environmental Planning Policy No 1 - Development Standards that aims to permit flexibility in the application of development standards. However, under the main environmental planning instrument for Warringah and Amendment No 12, that flexibility is built into the WLEP2000 and the applicant asked the Court to apply discretion and to grant approval of the application. 32 The parties agreed that the proposal would not be contrary to the general principles of development control in Part 4 of the WLEP2000, under cl 12(1)(a). Other matters to be taken into account in an assessment of the application include: Clause 52 - Development near park, bushland reserves and other public open spaces; Clause 54 - Provisions and location of utility services; Clause 56 - Retaining unique environmental features on site; Clause 58 - Protection of existing flora; Clause 59 - Koala habitat protection; Clause 60 - Watercourses and aquatic habitat; Clause 72 - Traffic access and safety; Clause 74 - Provision of Parking; Clause 76 - Management of stormwater; and Clause 78 - Erosion and sedimentation. WLEP2000, Amendment No 12, (Am12) 33 Am12 was gazetted 3 December 2004, and aims: (a) to remove the time limit on the life of the Warringah Local Environmental Plan 2000 and (b) to declare that a description in that plan of the desired future character of a locality does not prohibit any development, and (c) to provide that it is not necessary for development to comply strictly with any quantitative requirement (such as a requirement relating to area or height) in a general principle of development control contained in Part 4 of that plan. 34 Under cl 12(3)(b) of the WLEP2000 was amended by Am12. Thus, with the amendment shown in bold, cl 12, would read: 12. What matters are considered before consent is granted?

Before granting consent of development that consent authority must be satisfied that the development is consistent with: (a) any relevant principles of development control in part four, and (b) any relevant State environmental planning policy described in schedule five (State policies).
Before granting consent for development, that consent authority must be satisfied that the development will comply with: (a) the relevant requirements made by Parts 2 and 3, and (b) development standards for the development set out in the localities statement for the locality in which the development will be carried out.
In addition, before granting consent the development classified as: (a) Category one, the consent authority must consider the desired future character described in the relevant localities statement, or (b) Category two or three, the consent authority must be satisfied that the development is consistent with the desired future character described in the relevant Locality Statement but nothing in a description of desired future character creates a prohibition on carrying out of development. The proposal and its history 35 Development application No 2004/0727 was lodged with the respondent council on 9 June 2004, to erect a new dwelling on the land. The parties agreed that the variation of the one dwelling per 20 ha housing density would be around 85%. 36 The proposal is described in plans prepared by Mr G Pickworth, architect for Vigor Master Pty Limited construction and be of single-storey and comprise three (3) bedrooms. A new driveway is proposed. The maximum height for a dwelling would be 6m, and the floor to ceiling height would be 2.7m. The floor space ratio, (FSR) is calculated by dividing the gross floor area of 307.79m2 by the site area of 28,128m2 giving 0.01:1. 37 The front setback would be 20m; the rear setback would be about 220m; the side setbacks would be around 10m. 38 The asset protection zones (APZs), including inner protection area (IPA) and outer protection area (OPA) comprising an area of some 3,948.72m2, would be as outlined within Section 4.2,2 in "Planning for Bushfire Protection 2001" and as follows: · North APZ: - 30m: (comprising IPA 20m & OPA 10m). · South APZ - 35m: (comprising IPA 25m & OPA 10m or to the property boundary). · East APZ - 35m: (comprising IPA 25m and OPA 10m or to the property boundary). · West APZ - 30m: comprising IPA 20m and OPA 10m. Access to comply with Section 4.3.1 and 4.3.2 "Planning for Bushfire Protection 2001". Notification 39 The application was notified to nearby owners and occupants on 17 September 2004 (Submissions closed 4 October 2004) and the council received nine submissions. 40 Concerns included: · Vehicular access and the possibility of creating through access in a north/ south direction. · Noise and erosion associated with the vehicular access. · Safety of people including school children using the access road.

The council's decision 41 When the appeal was filed the council had not made any decision concerning the application. Hence the appeal is on the basis of a deemed refusal. The hearing 42 The appeal was filed on 23 August 2004. 43 At the hearing the court heard evidence from the Court-appointed town-planning expert Mr M E Neustein, consultant town planner. 44 Mr R J Humphrey, resident of No 53 Brooker Avenue, Beacon Hill, gave evidence on behalf of the council on the site inspection. 45 On behalf of the applicant evidence was given by: · Mr C Hill, consultant town planner; and · Mr G Pickworth, architect for Vigor Master Pty Limited. 46 Mr M Wysman, Acting Section Leader, Major Application Assessment Team Planning and Assessment Services Warringah Council prepared the statement of basic facts. The issues 47 On 12 October 2004 the council filed a statement of issues: Housing Density

The proposed development does not conform with the housing density standard of one dwelling per 20ha of site area as set out in the B2 Oxford Falls Valley Locality Statement Built Form Controls and is not consistent with the Desired Future Character Statement for the B2 Oxford Falls Valley Locality. (Clause 12(2)(b) and Clause 12(3)(b) of Warringah Local Environmental Plan 2000 (WLEP).
The proposed development does not constitute an exception to the maximum housing density standard in that the subject land is not an existing parcel of land, being all adjacent or adjoining land held in the same ownership on 8 March 1974 and having a combined area of not les than 2 ha. The existing parcel of land as at 8 March 1974 that encompassed the subject land also contained Lot 1091 DP 752038. The erection of 1 dwelling on the existing parcel of land may be lawfully carried out in accordance with the housing density standard pursuant to Consent 4472DA granted on 12 February 2001 for a single dwelling on Lot 1091 DP 752038.
The proposed development contravenes the housing density standard by more than 10 per cent and the concurrence of the Director of Planning is required prior to consent being issued. The concurrence of the Director of Planning has not been obtained. Road Access
The development application does not provide information as to whether there is any feasible or adequate provision for access to the site given that the proposed development abuts an unformed Crown Road and there is no means proposed for access to the formed section of Brooker Avenue in Beacon Hill. Owner's Consent
The owners consent to the development application (as required by Clause 49 of the Environmental Planning and Assessment Regulation 2000) has not been provided in that the consent proposed does not in its terms relate to the subject development and the authority of one of the signatories to sign the consent on behalf of Jian Zhong Liu is not apparent. Aboriginal Heritage Significance
An archaeological survey of the site, including reference of the proposed development to the Metropolitan Aboriginal Land Council, is required. (Clause 80 & 83 of WLEP) Public Submissions
Whether the development application should be approved having regard to the weight and substance of the public submissions received by the respondent.

48 The following emerged as the salient issues: · Housing density; · Road access; and · Aboriginal heritage significance. The evidence and findings Jurisdiction of the Court 49 The WLEP2000 contains two conditions precedent, which must be satisfied before the council or the Court on appeal, may consider the merits of the application: (1) For the Category Two housing development the council and the Court on appeal, could only obtain jurisdiction to determine the development application by the grant of development consent after it had satisfied itself that the development was consistent with the desired future character as described in the Oxford Falls Locality Statement: cl 12(3)(b). (2) Because the proposed development would breach the development standard of one dwelling per 20ha which applies to the land, the council or the Court on appeal, could only obtain jurisdiction to determine the development application by the grant of development consent for the Category Two housing development if: (a) the Council considered the desired future character described in the relevant Locality Statement; and (b) by operation of cl 20(1), provided that the resulting development was consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy.

50 As made clear by her Honour in Centro Properties Limited v Warringah Council & Anor [2003] NSWLEC 145, …for Category Two development, the [WLEP2000] expressly provides that the relevant state of satisfaction, which operates as the condition precedent, is that of the consent authority. … Minister for Immigration and Ethnic Affairs v Eshetu (1999) 162 ALR 577 considered that jurisdictional fact could include an opinion, in other words, a matter of satisfaction can be a jurisdictional fact. Clause 20, in contrast, does not require the consent authority to reach a relevant state of satisfaction, that is, form an opinion. The test in cl 20(1) is a wholly objective test. If development does not comply with one or more development standards then notwithstanding cl 12(2)(b) consent may be granted: …provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy. 51 The desired future character of the Locality B2 - Oxford Falls Valley is set out above in para 24 above. Housing density 52 Both parties agreed, prior to the hearing, at a meeting on 14 January 2005, that Lot 1093 was not an 'existing parcel' of land on 8 March 1974, as defined in the WLEP2000 and therefore the housing density standard cannot be varied in accordance with the exception in cl(a) under 'housing density'. I understand that this position was accepted by Mr Hill when he wrote that "…the subject land being Lot 1093, was part of an 'existing parcel' held in the same ownership as at that time," [Note: Exhibit C p 12]. 53 Under cl 12(3)(b) in regard to Category two housing development, such as that proposed, the consent authority and in this case the Court, "…must be satisfied that the development is consistent with the desired future character described in the relevant localities statement, but nothing in a description of desired future character creates a prohibition on carrying out of development." Both parties accepted that the thrust of this clause is that the Court has discretion to grant development consent. 54 The council on 12 February 2001, granted Consent 4472DA for a single dwelling on Lot 1091, DP 752038, and under the housing density provisions of the Oxford Falls Valley Locality Statement the dwelling 'entitlement' under cl(a) for an 'existing parcel' has been taken up, [Note Exhibit 7, p 183]. 55 Clause (b) does not apply, however, under cl (c), under the housing density provisions of the Oxford Falls Valley Locality Statement, [relevantly] [Note: Exhibit 7 p 184] The maximum housing density is 1 dwelling per 20 ha of site area (which does not include the area of any access corridor, whether such access corridor is to be created or is in existence at the time of application for development consent), except: …on land that adjoins a locality primarily used for urban purposes and on which a dwelling house is permissible… However, consent may be granted for development that will contravene these housing density standards but, if by more than 10 per cent, only with the concurrence of the Director. The matters, which shall be taken into consideration in deciding whether concurrence should be granted, are: (a) whether non-compliance with the development standard in issue raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by this plan. To measure housing density: · the site area is divided by the number of dwellings proposed on the site, including any existing dwellings which are to be retained, · the site is the allotment which existed on the day this plan came into effect, and · granny flats are not considered to be a dwelling and are limited to one per allotment. 56 The proposal to erect a dwelling on Lot 1093, the subject land, would contravene these housing density standards by more than 10 per cent, and the concurrence of the Director has not been obtained. However, both parties agreed that the Court under s 39(6) of the Land and Environment Court Act 1979 has power to assume that concurrence and exercise discretion. I accept that position. 57 Both parties agree that non-compliance with the development standard in issue would not raise any matter of significance for State or regional environmental planning, significance. I accept that position, however, I would need to be satisfied that the public benefit of maintaining the planning controls adopted by this plan would be served. 58 Mr Neustein stressed that in Appendix B of the WLEP2000 - Locality B2, Oxford Falls Valley, desired future character and built form housing density controls it is stated in part, "Future development will be limited to new houses conforming with the housing density standards set out below and low intensity, low impact uses." 59 Mr Neustein stated, [Note: Exhibit 8 p 5]: It seems to me that the applicant argues that the LEP is a facilitative control, applied over an area with no allotments meeting the density standards, and that the compliance of the proposal with the other components of the controls should entitle the application to be favourably considered. My reading of the locality statement is that it is a restrictive control, inviting lot amalgamation to meet a very low-density standard, as a way of severely limiting development on the fringe of the urban area in the locality. Some other forms of development are possible, some even with impact greater than the single dwelling proposed for the subject site. The applicant states (op cit) that the proposal will be "consistent with the existing residential character in the vicinity" . But it will not be consistent with the non-urban land also in the vicinity and of which it is now part. Map 31 of the LEP clearly draws the zone boundary to exclude the subject site from the existing urban area so that its development potential is not defined by consistency with the urban residential area but with the "non-urban" zone. However, in the end the proposal does not meet the desired future character for the locality, defined critically in density terms. No basis for the breach of that control is justified either by material put before me by the applicant or for any other reason that I may infer. Furthermore, having regard to the site's position on the fringe of an existing housing area, proximate to a low sandstone ridge, the proposal cannot be said to have "low impact". Whilst the proposed building takes up only a very small proportion of its site, its associated access and bush fire asset protection zones occupy a significant area between the existing urban fringe and the low sandstone cliff - an impact that is not low in the immediate locality, in my opinion. 60 The evidence of Mr Hill that "…the proposed use of the existing parcel of land is not 'antipathetic' to the desired future character statement from this locality" does not persuade me. In oral evidence Mr Hill's explained that he considered the land within the B2 zone was being held in reserve for future urban purposes and when considered in that context the proposed dwelling would be not antipathetic to the desired future character. However, until such time as the council rezones the land within the B2 zone, I must assume that the use is that of a predominantly 'non-urban' character and that "…[f]uture development will be limited to new houses conforming with the housing density standards set out below and low intensity, low impact uses." 61 I accept that the proposal would result in a very low density of development with a FSR on the subject land being Lot 1093 of 0.01:1, however, if the subject land were developed it would remove native vegetation over the area of the footprint of the proposed dwelling (307.79m2) and would require the creation of asset protection zones, (APZs) (3948.72m2) that would impact on vegetation and landforms. This would not result in maintaining unchanged the present character of the Oxford Falls Valley locality. There are no exceptional circumstances that arise that would persuade me that this part of the B2 zone should be built upon. Thus I would refuse the application. 62 Thus if the existing parcel, which includes Lot 1093, the subject land, were to remain in its present state, the urban fringe would not be further eroded by unplanned residential development. 63 If the council, were in the future to change the zoning, to allow urban use of the B2 zoned land, at a higher density than under the present planning controls, other considerations would apply. That is a matter for another place and time. 64 I am also persuaded by the evidence of Mr Neustein that there would be a public benefit in maintaining the planning controls adopted by this plan under the B2 zone a predominantly 'non-urban' area. Road access 65 Mr Howie, for the council, conceded that Issue 4 concerning road access had been satisfactorily addressed by the parties prior to the hearing and this issue would not preclude the issuing of a deferred commencement consent. Such a consent that would require prior separate approval of road works on adjoining land in the council's ownership. He explained that the council is prepared to acknowledge that vehicular access to the subject land would be feasible. Plans showing that vehicular access were provided to the residents on the site inspection and were generally accepted. 66 I am satisfied that were consent granted for the residential use of the subject land, that satisfactory road access could be provided. Aboriginal heritage significance 67 In regard to Issue 6, dealing with aboriginal archaeological aspects, Mr Howie explained that this matter would not be determinative and appropriate conditions for consent could be derived. He referred to a letter dated 18 October 2004, [Note: Exhibit 6 First letter] from the Metropolitan Local Aboriginal Land Council, (MLALC) to the effect and having regard to an Aboriginal site survey carried out in 1999, "…no further Aboriginal heritage assessment need be undertaken." 68 However, Mr D Watts, Aboriginal Heritage Manager of the council, was concerned that the assurance given by the MLALC might be inadequate. He asked the council to assess the potential impact of development on Aboriginal cultural heritage on Lots 1090, 1091, 1092 and 1093. By letter dated 21 December 2004, the council wrote to the MLALC asking for a response to the concerns of Mr Watts. Since then the applicant has indicated that it had further consulted the MLALC and an Aboriginal cultural study would be undertaken. Due to communications problem, the applicant had not been able to obtain that study prior to the hearing and that it is scheduled for 8 February 2005. 69 His Honour McClellan CJ confirmed that all other reports are to be filed by 25 January 2005 and the matter of the Aboriginal cultural study would be left to the commissioner to decide whether or not it would be necessary in order to assess the application on its merits. 70 I have concluded that as the application fails on its merits the Aboriginal cultural study would be unnecessary at this stage. Other matters 71 Mr Hill supported approval of the proposal on the subject land, being Lot 1093, for among other reasons, that the proposed dwelling would be remote from the site of the approved dwelling on Lot 1091 to the north. 72 I accept that the proposal would be remote from that approved dwelling and would not be within the same visual catchment. However, the desired future character statement suggests that new buildings should be located and grouped in areas that would minimise disturbance of vegetation and landforms. The proposal would increase the disturbance of vegetation and landform in a fresh part of the B2 zone. As may be seen on the plan prepared by the applicant in Exhibit M, the proposed new dwelling on Lot 1093 would directly impact on 307.79m2 of land in the area of the proposed footprint and a further 3,948.72m2 of land for the APZ both within Lot 1093. There could be expected to be additional disturbance due to the widening of the access road and the need to provide services to the land. 73 I am satisfied the disturbance of vegetation and landforms likely to be occasioned by the proposal would be antipathetic to the desired future character of the locality. 74 Also Mr Hill supported the application, in part for reason that there would be a public benefit in the promotion of orderly and economic use of land. The facts suggest the opposite would be true. As submitted by Mr Howie, the public benefit would be best served by maintaining unchanged, except in circumstances specifically addressed, the present character of the Oxford Falls Valley locality. I am satisfied that there would be public benefit of maintaining the planning controls adopted in the WLEP2000. 75 The application fails for reason that it would not maintain the likely desired future character of the predominantly one house per 20 ha-'non-urban' land and would be contrary to the objective of the planning instrument to minimise disturbance of on vegetation and landforms. For the above reasons, the appeal is dismissed. Orders 76 My orders are:

The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

Development application No 2004/0727 lodged with the respondent council on 9 June 2004, to erect a new dwelling at Lot 1093, DP 752038, in Brooker Avenue, Beacon Hill, NSW 2100, is refused consent.

The exhibits with the exception of Exhibits A, B, 1, 2, 3, 4 and 5 are returned.

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Decision date

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Judgment (18 paragraphs)

Parties

Cases Cited (2)

Cited By (2)