Land and Environment Court New South Wales

• Medium Neutral Citation: Lucas v Pittwater Council [2014] NSWLEC 1137
• Hearing dates: 12, 13 and 19 May 2014
• Decision date: 20 May 2014
• Jurisdiction: Class 1
• Before: Dixon C

Decision

Orders at [77]

• Catchwords: DEVELOPMENT APPEAL - Bus depot - Traffic impacts - Amenity
• Legislation Cited: Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Draft Pittwater Local Environmental Plan 2013; Pittwater Local Environmental Plan 1993; Pittwater 21 Development Control Plan
• Cases Cited: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279
• Category: Principal judgment
• Parties: Kevin and Ann Lucas (Applicants); Pittwater Council (Respondent)
• Representation: Mr M Staunton; With Mr B Woolf (Applicants); Mr A M Pickles; With Mr M Kirkwood (Respondent); Woolf Associates (Applicants); King and Wood Mallesons (Respondent)
• File Number(s): 10692 of 2013

Ex-Tempore Judgment

Introduction

1 COMMISSIONER: This is an appeal by the applicants, Kevin and Ann Lucas, under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act) against the refusal by the respondent Council, of a development application for the construction of a bus depot at 11 Wirreanda Road, Ingleside (the site).

2 The Council refused its consent to the development essentially for three reasons. The first is that the proposed use is inconsistent with the desired future character of the locality as defined in Pittwater Development Control Plan No 21 (DCP 21) and the future zoning of the site under the Draft Pittwater Local Environmental Plan 2013 (Draft LEP 2013). The second is that the development is excessive in site coverage and, the third reason is that the proposed use will generate unacceptable traffic impacts, particularly at the intersection of the local road network with Mona Vale Road.

3 I have some familiarity with the evolution of the application because I facilitated the conciliation conference held between the parties pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). During that conference, the applicants amended their application in an attempt to resolve the matters in dispute. Originally, they had sought consent to develop a bus depot with the capacity to park 95 buses over the entire length of the site. At the conference they agreed to reduce the size of the depot from 95 to 50 buses and to separate the parking bays in two areas within the top half of the site. The amended proposal locates 40 buses on the existing dressage ring in the centre of the site (away from the bushland and creek) and places the remaining 10 buses nearer the entry driveway. The parking bays are to be constructed from a permeable hardstand pavement, which is designed to absorb ground water and run off (Exhibit G).

4 The applicants also agreed during the conciliation to further restrict the hours of operation of the depot. The amended application proposes hours from 6.30am to 7.30pm Monday to Friday and 7am to 4pm Saturday. There is to be no operation of the depot on Sunday or public holidays.

5 Despite the above amendments the Council did not agree to a resolution of the appeal at the conciliation conference. Therefore, the conciliation was terminated and, at the request of the parties, I have been asked to determine the appeal based on the amended plans following a further hearing in accord with s 34(4)(b)(i) of the LEC Act.

6 At the further hearing the Court was assisted by the oral and written evidence of experts. It received town-planning evidence from Mr Chambers on behalf of the Council and Ms Shepherd gave evidence in respect of planning matters for the applicants. Mr Gross, the acoustic expert for the applicants, provided a written report that was not contradicted by any other expert. Traffic evidence was received from Mr Varga and Mr McLaren on behalf of the applicants and Mr Morse on behalf of the Council.

7 This judgment relates to the amended application. However, as is often the case, the proposal was further amended during the hearing. It now incorporates to the traffic expert's recommendations for road works and signage and acoustic measures proposed by Mr Gross and most of the Council's draft conditions. As a result of those amendments it is fair to say that the main issue in the hearing concerned the traffic impacts of the development on the local road network and its intersection with Mona Vale Road.

Background

8 The Council's statement of facts and contentions (Exhibit 1) sets out the background and statutory controls. It describes the site as lot 147 in DP 752046 located on the western side of Wirreanda Road between Kendron Road and the intersection of Wirreanda and Tumburra Street. It has an area of 3.44 ha and on average, a width of about 95 m.

9 The site contains a single storey fibro clad cottage with an iron roof in the southern corner of the site facing Wirreanda Road. There is also a large shed located at the centre of the street frontage. On the southern side of the shed is a concrete driveway, which is the only access to the development. In between the shed and the driveway is a small amenities block. To the north of the large shed is a two storey rendered brick dwelling with a free standing double garage and a separate driveway entry to Wirreanda Road.

10 To the northwest of the two storey dwelling and adjacent to the northeastern side boundary is a stables building with a veranda and metal roof. There is a dam located toward the rear of the site and some pockets of eucalypts adjacent to the rear boundary and side boundaries. Otherwise, the site is vegetated with grass paddocks and a dirt dressage ring.

Locality

11 The site is located in a non-urban zone amongst a string of properties between Mona Vale Road and Garigal National Park and heavily vegetated land in natural reserves to the south and Kuringgai Chase National Park to the north. Wirreanda Creek lies just to the north of the site.

12 As my view of the site confirmed the surrounding land is used for a variety of rural uses including rural industries, a nursery, a quarry and market gardens. The adjoining land contains a residence and other residential accommodation.

13 Wirreanda Road is a dead end with a relatively narrow sealed carriageway, no kerb or gutters and no footpaths or street lights. The shoulders of the road are overgrown and vegetated; sight distances around the bends are limited by the overgrown vegetation. The current access to Wirreanda Road is via Tumburra Street and Mona Vale Road.

14 Tumburra Street is a relatively narrow rural road with no kerb and gutter. Mona Vale Road is classified by RMS as a state road. It carries one traffic lane in each direction at its intersection with Tumburra Street. This intersection currently has a seagull arrangement in Mona Vale Road to cater for right turn movements in and out of Tumburra Street. There is a deceleration lane in Mona Vale Road for the vehicles turning left into Tumburra Street.

Upgrade of Mona Vale Road

15 The Court has received evidence about an upgrade to Mona Vale Road in the near future. The evidence includes a report prepared in October 2012 by Roads and Maritime Services (RMS) that describes the upgrade options under consideration (Exhibit 8). The report states that one of the reasons for the road upgrade is to improve traffic travel times along Mona Vale Road (p18 Exhibit 8).

16 A copy of the strategic design plans for the upgrade between McCarrs Creek Road and Powder Works Road prepared by the RMS is before the Court (Exhibit M). The plans indicate that a four lane dual carriage road is to be constructed in Mona Vale Road between Terrey Hills and Ingleside. A grade separated overpass is proposed to Mona Vale Road at the intersection with Tumburra Street with on and off ramps, two new roundabouts proposed at Wirreanda Road to connect to the on and off ramps. The upgrade also includes an extension of Wirreanda Road the east of Tumburra Street to connect to Addison Road and the existing intersection of Addison Road and Mona Vale Road to be closed.

17 A 3 metre shared cycle and pedestrian path is proposed along the entire length of Wirreanda Road on its southern side. The likely commencement date for the upgrade, according to the applicant's traffic consultants, is 2018. The Council submitted that it had no information from RMS as to the likely scheduling of the works.

The statutory controls

18 The planning controls which apply to this site include the Pittwater Local Environmental Plan 1993, the Draft Pittwater Local Environmental Plan 2013 (Draft LEP 2013) and the Pittwater 21 Development Control Plan Amendment 9 D6.8 and A4.6 (DCP 21).

19 The DCP 21 is the relevant DCP under the current LEP 1993 and also the Draft LEP 2013.

20 It is agreed that the gazettal of Draft LEP 2013 is both certain and imminent and, accordingly, it must be given appropriate consideration in my assessment of the application under s 79C including the public interest: Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279 at paras 21 to 29 and 30. The Draft LEP 2013 zones the site as RU2 Rural Landscape. The zoning table prohibits the development of a bus depot on the site.

21 As stated the Council's case is that the development is inconsistent with the objectives of the zone and the desired future character for the Ingleside Locality Statement in cl A4.6 of the DCP. It contends that the development does not constitute permissible development (under the Draft LEP 2013) on large lots in the natural landscape setting integrated with the land form and landscapes or maintain low site coverage on the lot or represent a balance between maintaining land forms, landscapes and other features of the natural environment of the land.

22 The Council submits on the evidence that the development does not reasonably retain or enhance the locally native tree canopy and vegetation; it does not blend into the natural environment and enhance wildlife corridors.

23 For ease of reference I set a relevant part of the Ingleside Locality Statement from the DCP (p 220 of the Council's bundle Exhibit 2)

A4.6 INGLESIDE LOCALITY

Desired Character

The Ingleside Locality will remain a low-density area characterised by rural residential and other compatible land uses on large allotments in a natural landscaped setting. Dwellings will generally be located throughout the locality, subject to environmental and other constraints. The locality will continue to be serviced by existing community and recreational facilities.

Future development in the locality will be consistent with public infrastructure capacity and environmental constraints.

Future development will maintain a distinct height limit below the tree canopy, and reflect the predominant scale and setbacks of existing development, including generous spatial separation of the built form and low site coverage. Single storey buildings will be preferred where the site has little opportunity for canopy trees or is visually prominent. Contemporary buildings will utilise façade modulation and/or incorporate shade elements, such as pergolas, verandahs and the like. Building colours and materials will harmonise with the natural environment and not dominate it. Development on hillsides and in the vicinity of ridgetops will integrate with the natural landscape and topography.

Heritage items indicative of the early entrepreneurial and farming history of Ingleside, and the Baha'i House of Worship, will be conserved.

The indigenous tree canopy and vegetation will be retained and enhanced to assist development blending into the natural environment, and to enhance wildlife corridors.

The natural landscape, including rock outcrops, remnant bushland and natural watercourses, will be preserved.

Existing and new development will be made safe from natural hazards.

Vehicular, pedestrian and cycle access within and through the locality will be maintained and upgraded where appropriate. In addition, roads will manage local traffic needs and ensure the safety of people and fauna, facilitate co-location of services and utilities, achieve acceptable stormwater drainage and facilitate public transport.

Hazards, Natural Environment and Heritage

Hazards

The Ingleside Locality is affected by various hazards. Land affected in the Ingleside Locality is shown on the hazard maps held in the offices of Council.

Natural Environment

The Ingleside Locality includes vegetation areas, threatened species, or areas of natural environmental significance. Land affected in the Ingleside Locality is shown on the natural environment maps held in the offices of Council.

Heritage

The Ingleside Locality may include Heritage items and/or conservation areas. Land affected in the Ingleside Locality is shown on the Heritage Map

Local Objectors

24 Several local residents have lodged objection to the application including the adjoining owner, Ms Rowe. Some of them attended the commencement of the hearing onsite and addressed the Court about their concerns. Generally, they relate to increased traffic impacts, particularly at the intersection of the road network with Mona Vale Road, safety issues arising from the bus movements along narrow streets, noise and air pollution from the use of the site as a bus depot.

25 The Court walked the local roads from the site to Mona Vale intersection to better understand the objectors' concerns and the expert evidence about its capacity to take the extra traffic and the condition of the sealed road with its pot holes and sight lines compromised by the vegetation at the pinch points on the roads.

Noise

26 As noted, the issues about noise have been addressed by Mr Gross. His expert report is (Exhibit B). Subject to the incorporation of the measures outlined at p 4 of Exhibit B, Mr Gross is of the opinion that the bus depot will not generate unacceptable noise during its operation during the daytime. His recommendations include acoustic fence/mound, no reverse alarms on the buses or cars, operation of the depot in accordance with his suggested plan of management.

Finding - noise

27 The applicants have agreed to the imposition of conditions of consent, which incorporate Mr Gross' recommendations. Therefore, based on the uncontradicted evidence of Mr Gross, I do not believe that noise impacts from the development are a basis for a refusal of this application.

Traffic - safety

28 The traffic issues raised by the Council and the objectors in this appeal include pedestrian and vehicle safety along the local road network and, additional traffic delay particularly at the intersection of the local road network with Mona Vale Road.

29 Relevantly, the RMS raises no concern with the application in respect of pedestrian or vehicle safety or traffic delays in the event of an approval of this application. The RMS supports this application and invites the Council to attach conditions to the consent, which allow the development to integrate with the Mona Vale upgrade (at folio 229, Exhibit 2).

30 The parties' traffic experts also agree, subject to certain road works and signage, that the amended application does not generate any safety concerns for pedestrians or vehicles. The recommended road works (devised by the council's expert Mr Morse in consultation with the applicants' experts) are detailed in the Council's draft conditions D11, D12 and D13.They require a road widening to a width of 7 m on the bend in Wirreanda Road in the vicinity of the driveways serving 5, 7 to 9 Wirreanda Road: Condition D11 (b)

31 While the applicants' traffic experts were of the opinion that a width of 6m was appropriate and they offer slightly different versions of his draft conditions. I do not accept their draft conditions having had the opportunity to appreciate the condition of the road during the site view and after hearing the objectors concerns as expressed at the view and in their written submissions to the Council about pedestrian and vehicle safety. For those reasons I prefer the Council's version of conditions D11 and D12 requiring a 7m road width rather than the applicants' version which requires a 6 m road width.

Traffic - delay

32 The Court understands from the evidence that there are currently traffic delays along Mona Vale Road and as a consequence in the local road network which services this site. Despite that fact the parties and their respective traffic experts agree that after the completion of the proposed upgrade to Mona Vale Road these existing delays will be vastly improved if not removed.

33 In fact the Council accepts that after the Mona Vale Road upgrade there will be no unacceptable traffic problem generated by this development. This is because the Mona Vale Road upgrade project has interfaces with Wirreanda Road, Tumburra Street and Addison Road that overlap the length of the proposed development at 11 Wirreanda Road. For that reason the RMS supports regrading of the local road pavement with a final width of Wirreanda Road of 6m on the straights and 7m on the curves (plus shoulders) and recommends that any works (utilities, drainage, pavement, pathways or other) south of the existing Wirreanda Road shall only be undertaken with consultation with the RMS Mona Vale Road Project Development Manager (at paragraphs 2 and 3 of folio 229 in Exhibit 2).

34 The issue in this case is whether the existing road network (before the Mona vale Road upgrade) can accommodate the additional traffic load generated by this development without the upgrade. This requires an analysis of the existing capacity of the local road network and Mona Vale Road.

35 Not surprisingly the Court has received competing evidence about the existing road capacity of the route between Mona Vale Road and the development site. It is summarised in the experts' joint report (Exhibit 4).

36 The Council's traffic expert Mr Morse relies on a Sidra analysis of the Mona Vale Road/Tumburra Street. His modelling indicates that the Tumburra Street approach is operating with a level of service of F at present. This means that the lanes are working at near capacity.

37 He believes this is due to two factors affecting the ability of vehicles to exist from Tumburra Street: the theoretical capacity of a single lane is approximately 1,850 vehicles per hour. According to the ROAR Data surveys, Mona Vale Road is carrying 847 vehicles eastbound and 1,578 vehicles westbound during morning peak hour, and 1,721 vehicles eastbound and 1,029 vehicles westbound during evening peak hour.

38 In his assessment, this theoretical capacity of each lane indicates that vehicles would have difficulty entering into the flow of traffic. In short, the lanes are operating at near capacity, and as the intersection is isolated from traffic lights - vehicles tend to bunch up into groups and this create a platoon. On his analysis, the Gap acceptance is generally 5 seconds, but in this case the average Gap generated in the AM peak is 2.09 seconds, which is virtually at capacity. RMS recommends three-second Gap between vehicles. A bus needs an eightsecond Gap and to cater for the development in peak hour a bus would need to enter the traffic once every three minutes. He believes this is unacceptable.

39 Mr McLaren and Mr Varga do not believe that Mr Morse's Sidra analysis is accurate or should be relied upon in my assessment of the traffic impacts of the development. As Mr Morse concedes the intersection at Mona Vale Road is not capable of being modelled under Sidra. It must analyse the intersection in two stages and blend the results. He agrees the results therefore are volatile.

40 Mr Varga is of the opinion that the Sidra modelling undertaken is unrealistic and does not accurately reflect actual operating conditions. The Sidra model cannot take into account driver behaviour. In this case, driver behaviour is relevant because during peak times when traffic flow volumes approach high density conditions, it is usual for slow moving traffic to exhibit courtesy by allowing side street traffic into main roads for both left and right turning vehicles (p 3 to 4, Exhibit 4). His survey of the intersection confirmed that practice. In his assessment of his survey data, there are only modest delays to all turning movements at the intersection during peak periods and in his expert opinion that will not change as a consequence of the 5 to 15 vehicles per hour being added to individual movements by this development.

41 In Mr Varga's survey, he found delays at the intersection (Annexure RV2) to be 14.1 seconds to 33.65 seconds, which equates to a level of service B or C. This is compared to the Sidra model, which shows existing vehicle delay of 3 to 6 minutes for right turn out of Tumburra Street to Mona Vale Road. In his assessment, the projected additional traffic volumes are minimal, particularly when compared with existing peak hour traffic volumes of 2,400 vehicles per hour to 2,800 vehicles per hour on Mona Vale Road and it is, therefore, reasonable to conclude that the proposed development will not have any unacceptable traffic implications in terms of road network capacity or the operation of the intersection.

Finding - traffic

42 Given the volatility of the Sidra modelling, I prefer the survey evidence and assessment of the traffic impacts by the applicant's traffic experts. All of the experts agree that the intersection of Mona Vale Road and Tumburra Street is safe for use by the bus fleet associated with the DA (p 7, Exhibit 4). All of the traffic experts agree that the existing intersection of Mona Vale Road and Tumburra Street is geometrically able to accommodate the movements of larger vehicles (p 7, Exhibit 4).

43 Mr Morse was initially concerned about the intersection of Tumburra Street and Wirreanda Road and the ability of the carriageway to accommodate regular bus movements. The fact is that currently large vehicles associated with the quarry and nurseries need to cross the centre line of the road due to the restricted width of each carriageway. Section 133 of the Road Rules 2008 allows such a movement. Despite that Mr Morse is of the opinion that the road in that restricted area should be widening.

44 Mr McLaren does not believe that this road widening is necessary and that s133 quite properly should be used to accommodate this movement by larger vehicles. Based on Mr McLaren's particular expertise with road safety, I prefer his evidence to that of Mr Morse on this issue. Although I agree with both experts that in respect of this area of the road and there is a need to trim the vegetation to improve sight lines and construct relevant advisory signage.

45 I accept the evidence of the applicants' traffic experts that it is commonplace for large vehicles to cross the centre of the road when undertaking turning movements. Eventually a large roundabout is proposed at this intersection capable of the accommodation semi-trailers as part of the RMS upgrade as detailed at p 11 of DA Traffic Report dated 4 April 2014.

46 For the above reasons, and subject to the draft conditions in Exhibit 5, I do not accept that the proposal should be refused on the basis of traffic impacts.

Town planning discussion

47 There is no dispute about the fact that a bus depot is a permissible land use in zone 1(a) (Non-urban "A") under the provisions of Pittwater Local Environmental Plan 1993. It is also agreed between the planners that the amended proposal has significantly reduced the size of the bus depot, the extent of the cut and fill on the site and tree loss. The amended proposal also confines the bus storage area to the central portion of the site in the area of the existing dressage area that is otherwise already clear of vegetation. The amended proposal also includes substantial additional tree planting around the primary bus parking areas, the access driveway and the site entry.

48 Despite these positive amendments to the proposal the Council maintains its objection to the development on the ground that the development has excessive site coverage and fails to satisfy the identified outcomes in cl D6.8 of DCP 21.

49 The Council's also maintains that the development remains inconsistent with the intended future zoning of the site (RU2 Rural Landscape, Draft LEP 2013) and its objectives including compatibility with the desired character of the locality under the DCP. The planners address these issues in their joint report (Exhibit 3) and their oral evidence to the Court.

50 Mr Chambers and Ms Shepherd agree that cl D6.8 of the DCP permits maximum site coverage of 400 m2 plus 4% of the site area (for the residential component) and 6% of the site area (for the non-residential component). This equates to 3,840 m2 or 11% of the site area. Site coverage is defined in Pt A of the DCP as:

...the part of the site on which buildings are situated (for the purposes of this definition, buildings includes garages, tennis courts, carports, swimming pools, laundries, drying yards, hard surface recreation areas, garbage collection and handling spaces, other appurtenant buildings and paved areas, such as driveways).

51 According to the Turnbull plan (Attachment 3 to Exhibit 3) the area shown as coloured green illustrates the extent of the proposed porous pavement surfaces and the dam. These areas are excluded from the total site area coverage under the Variations to the controls in cl D6.8 of the DCP.

52 Therefore, Attachment 3 shows a total site coverage of 9,943.65 m2 which is reduced to 4,717.45 m2 when the porous parking areas and driveways are excluded. This equates to a site area of 13%. The planners note in the joint report that the residential component of this site is not changed by the development proposed and that it is compliant with the DCP representing 3.6% of the site.

53 The non-residential component, excluding porous areas, equates to 10% of the site (p 4 of Exhibit 3). The maximum component under the DCP is 6%. The planners agreed that cl A1.10 of the DCP explains the structure of the development control in the DCP list the outcomes that the development control is seeking to achieve and that the variations outline the circumstances in which the Council may consider a variation to a control.

54 As stated the DCP contains a statement for each individual locality in the Pittwater local government. In this case the Ingleside locality statement at cl A4.6 of the DCP is relevant. The statement includes a desired future character section (which is reproduced at [23]). The locality statement is also referenced in the outcomes in cl D6.8 of the DCP which deals with site coverage.

55 Having regard to the desired character statement in the Ingleside Locality Statement in cl A4.6 of the DCP, the planners agree that the most visually and environmentally sensitive part of the site is the northern rear portion where no development/bus parking is proposed under the amended proposal.

56 They also agree that the proposal primarily involves an at grade, open bus storage area in the central part of the site with built earthworks to create the bus parking area involving a maximum height of fill of 440 mm and a maximum depth of cut of 850 mm, which is clearly below the tree canopy.

57 The existing and new native vegetation including canopy trees proposed by the application, according to both planners, will be integrated with the development primarily in the form of peripheral planting around the main central bus parking area, the access driveway and the site entry, an acoustic bund and fence is proposed adjacent to the adjoining residences.

58 Despite these measures, Mr Chambers told the Court that the development remains inconsistent with the desired future character of the locality as detailed in the Ingleside Locality Statement. He believes that the development will not preserve or enhance the rural and bushland character of the locality or contribute positively to the desired future character of the locality because it exceeds the site coverage control of 6% despite the generous variation of the porous pavement. In fact Mr Chambers is of the opinion that the existing gravel surface near the shed, which is to be used for vehicle manoeuvring, should also be sealed and this adds a further 2% to the site coverage.

59 In summary, Mr Chambers concludes that the intensity of the development with existing and new is inconsistent with the intent of the site coverage controls in the DCP because it equals 30% of the site (at p 5 of Exhibit 3). In short his evidence is that the development does not achieve the identified outcomes in the DCP.

60 Ms Shepherd takes a different view. Her evidence is that the proposed bus storage areas and pavement will not increase the existing site coverage. As the proposal does not involve built structures she is of the opinion that there will be no visual change to the character of the site. In her assessment the substantial landscaping proposed will assist to enhance the rural and bushland setting of the site; and thereby contribute positively to the desired future character of the locality.

61 In her assessment, the DCP provisions cannot justify a refusal of the permissible development given the features outlined by the evidence. With respect to the gravel area referred to by Mr Chambers, Ms Shepherd is of the opinion that the area could be surfaced with permeable pavers if required by the Court, although she did not believe this to be necessary.

62 Following my inspection of the locality and after a careful and focused consideration of the DCP provisions, including the Ingleside Locality Statement (at folio 219 - 221 of Exhibit 2), I accept Ms Shepherd's evidence that the proposed development does not change the existing character of the site in its locality. The Ingleside Locality Statement provides for a low density area consisting of rural, residential, agricultural, horticultural and other permissible development on large lots in a natural landscape setting integrated with the land form and landscape.

63 In my assessment of the evidence, this development, with no built structures and large porous areas of pavement and substantial landscaping, will present no visual change to the character but will enhance the rural and bushland setting of the site. It achieves the identified outcomes in cl D6.8 of the DCP including the desired future character of the locality under A4.6 of the DCP. Furthermore, it is entirely appropriate to use the Variations control in the DCP when calculating site coverage in this case given the nature of the development and its impacts as described by Ms Shepard. In my assessment of the evidence and the controls any minor breach is justified in the circumstances because the objectives and outcomes are still achieved.

64 As noted, the proposed development is prohibited under the Draft LEP 2013. However, it contains a savings provision, which would have had the effect of saving this application, if the LEP had been gazetted at the time of the hearing and the delivery of this judgment. As it happens it is a relevant consideration non-the less. The draft LEP 2013 places the site in the RU2 Rural Landscape zone, and in that zone, the following development is permissible: "... educational establishments, community facilities, industrial retail outlets, function centres, emergency service facilities, landscape material supplies, places of public worship, veterinary hospitals" to name a few.

65 According to the case law, I must have appropriate regard under s79C of the Act to the Draft LEP provisions in my assessment of the application, despite the savings provisions in 1.8A of the Draft LEP. Mr Chambers is of the opinion that the development is inconsistent with the objectives of the RU2 zone including it does not maintain the rural landscape character of the land or preserve or enhance the rural and bushland character of the locality (p 9, Exhibit 3).

66 Ms Shepherd disagrees, and in her oral evidence to the Court, she explains that the development through landscaping and no built structures does not change the rural landscape character of the land; in fact it maintains it. She also explains that in her opinion, the development achieves the zone objectives by offering a compatible land use which has no physical impacts such as overshadowing etc. Rather, in her assessment it coexists with other development in the locality.

67 The rear portion of the site is to remain untouched and there is generous spatial separation of the built form. Existing and new native vegetation including a canopy of trees is proposed and is to be integrated with the development. The development will be equivalent with buses housed on the pavers to less than a single storey residential development in height.

68 Consistent with the Ingleside locality statement, she is of the opinion that the development achieves an appropriate balance "...between maintaining the landforms, landscapes and other features of the natural environment and the land". In her assessment, it is not inconsistent with the zone objectives. Other permitted development would have far greater visual and less harmonious effects on the locality.

69 After a consideration of the permissible uses of the site under the Draft LEP 2013 and the types of traffic impacts and built structures such permissible uses might generate, I am of the opinion that the proposed development for the reasons stated by Ms Shepherd is not antipathetic to the objectives of the RU2 zone under the Draft LEP and is compatible with the relevant Ingleside Locality statement in the DCP 21 which applies to the Draft LEP and LEP 1993.

Findings planning

70 In my assessment of the evidence against the relevant planning controls there is no planning basis to refuse the amended application subject to conditions.

Condition 19(b)(3)

71 This leads me to the last issue, the imposition of condition 19(b)(3) which the Council proposes and to which the applicant objects. I have read the written submissions provided by both parties by ecourt in relation to this condition. According to the Council, condition 19(b)(3) is responsive to the RMS' recommended conditions requiring all buildings to be designed and constructed to withstand the proposed impacts of a bush fire attack.

72 The Council submits that it referred the original development application to the New South Wales Rural Fire Service (RFS) for advice regarding development consent on bushfire prone land in accordance with s 79BA of the EP&A Act. The Council's letter to the RFS is dated 3 June 2013. The letter is in evidence at p 233 of the Council's bundle of documents.

73 On 19 June 2013, the RFS responded and its response is found (at folio 234 of Exhibit 2). The letter provides a number of recommended conditions. Under the subheading "Design and construction", the RFS recommends condition 19(b)(3) to be imposed with a stated intent to ensure that the buildings are designed and constructed to withstand the potential impacts of bushfire attack.

74 The conditions recommended by RFS are in accordance with cl (1)(a) of s 79BA of the EP&A Act in that they are "measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bush fire". The dwellings on the site are not being altered by the subject of this development application, however I accept that there is a potential increase in bushfire risk on the site by reason of the proposal against which the dwellings need to be protected. In particular, fuel and the vehicle storage may increase the risks to the dwellings.

75 In the circumstances, I believe I have the power to impose the condition under s 80A(1)(a) as it relates to a matter referred to in s 79C(1) of relevance to the development the subject of the consent as the potential increase in bushfire risk on the site by reason of the proposal is a likely impact of the development on the natural and built environment under s 79C(1)(b) of the Act.

Conclusion

76 Having considered the provisions of s 79C of the EP&A Act and addressed the evidence relevant to those matters identified in the section including the evidence of the experts and the objectors, the Court has decided that it is appropriate to approve the development sought by the applicants subject to the imposition of the Council's conditions in Exhibit 5, the version dated 16 May 2014 forwarded by ecourt to the Court as amended by my reasons for judgment.

77 Accordingly, the Court orders:

(1) The appeal is upheld.

(2) Development consent is granted for DA 140/13 in relation to a bus depot with 50 hardstand bus parking spaces in accordance with the plans prepared by Turnbull Planning International Pty Ltd in Exhibit A as amended by the conditions of consent in Exhibit 5; dated 16 May 2014 as amended by this judgment.

(3) The Exhibits are to be returned apart from Exhibits A, 1, 5 and 9 upon written publication of the judgment.

Susan Dixon

Commissioner of the Court

Amendments

15 July 2014 - Decision date amended from 19/5/14 to 20/5/14
Amended paragraphs: Coversheet

18 July 2014 - Mr Varga changed to Mr McLaren
Amended paragraphs: 44

Decision last updated: 18 July 2014