Abramovich v Byron Shire Council [2012] NSWLEC 1149 | Case summary

Lots 1 and 2 - is the SEPP 1 objection well founded? The evidence 14Mr Steve Layman, an architect and town planner provided evidence for the council and Mr Chris Lonergan, a town planner provided evidence for the applicant. Mr Lonergan prepared the SEPP 1 objection that accompanied the development application. 15The SEPP 1 objection focussed on the breach of the development standard for Lot 2 because it was the more significant breach although I understand the SEPP 1 objection also addressed the small breach for Lot 1. 16The SEPP 1 objection states that strict compliance with the development standard is unnecessary an unreasonable because the proposal will:

not necessitate major site works,
not increase the planned density of the settlement, and
not affect the visual character of the area. 17As LEP 1998 does not provide specific objectives for the development standard Mr Layman adopts the following objectives:
to protect and enhance the scenic qualities of the zone by limiting the impact of the development (buildings, access roads and other external works).
to prohibit development within this zone that is likely to have a visually disruptive effect on the scenic quality and visual amenity of the zone, and
to minimise soil erosion from escarpment areas and prevent development in geologically hazardous zones. 18Mr Layman disagrees with Mr Lonergan and states that the SEPP 1 objection should be considered in conjunction with the adequacy of the residential land to which the 7(d) land is attached and collectively makes up Lot 2. In his opinion, the residential use of Lot 2 is deficient in area and in the width for a hatchet shaped lot in Suffolk Park and consequently the SEPP 1 objection is not well founded. Further support for this conclusion comes from the environmentally sensitive nature of the site where the flora and fauna should be carefully considered. 19If tested against the assumed objectives for the development standard, Mr Layman concludes that the SEPP 1 objection is not well founded. The assessment framework 20As stated in Wehbe v Pittwater Council [2007] 156 LGERA 446, the Court must be satisfied of three matters before it can uphold the SEPP 1 objection and then consider the merits of the application. The three matters are:
The Court must be satisfied that "the objection is well founded" (clause 7 of SEPP 1).
The Court must be of the opinion that "granting of consent to that development application is consistent with the aims of this Policy as set out in clause 3" (clause 7 of SEPP 1). The aims and objects of SEPP 1 set out in clause 3 are to provide "flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act". The last mentioned objects in s 5(a)(i) and (ii) of the Act are to encourage: (1) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment, (2) the promotion and coordination of the orderly and economic use of developed land."
The Court must be satisfied that a consideration of the matters in clause 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection: The matters in clause 8(a) and (b) are: (a) whether non-compliance with the development standard raises any matter of significance for State or regional environmental planning, and (b) the public benefit of maintaining the planning controls adopted by the environmental planning instrument". 21Wehbe identifies a number of ways of establishing that strict compliance with a development standard is unreasonable or unnecessary. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (Test 1). Test 1 was addressed by Mr Layman and Mr Lonergan. A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary (Test 2). A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable (Test 3). A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary in unreasonable (Test 41). A fifth way is to establish that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate that that zoning was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in that case would also be unreasonable or unnecessary (Test 5). Findings 22As I understand, the SEPP 1 objection seeks to show that compliance with the development standard is unreasonable and unnecessary by concluding that "the objectives of the development standard are achieved notwithstanding non-compliance with the standard" (or Test 1 in Wehbe). In the absence of any specific objectives for the development standard, I accept the objectives for the development standard suggested Mr Layman are appropriate as they draw their intent from the 7(d) zone objectives. 23The objectives are concerned with the protection of the scenic qualities of the area and also, the impact of any development on that scenic quality. In this case, the proposed development proposes the subdivision of land only, however I did not understand there to be any dispute between the parties that the subdivision contemplates the erection of dwellings on the proposed lots (excluding Lot 1). It was also agreed that the particular constraints of the site, including the Asset Protection Zones (APZ's), the drainage easement, natural watercourse, topography and vegetation, require further details on likely development on the site to be provided as part of the subdivision application; consistent with the approach in Parrott v Kiama [2004] NSWLEC 77. It follows, in my view, that in considering the SEPP 1 objection against the objectives relating to the scenic qualities of the area, it is also necessary to consider whether the proposed subdivision can reasonably provide for the intended form of development on Lot 2. The same consideration technically applies to Lot 1 but given the small encroachment into the 7(d) zone and that no dwelling is proposed on Lot 1, I did not understand any serious concern was raised by the council over the area of Lot 1 within the 7(d) zone. 24In considering Lot 2 and the proposed building envelope, I am satisfied that a dwelling would not unreasonably impact on scenic qualities of the area for a number reasons. First, the proposed building envelope is located entirely within the 2(a) zone. Second, some flexibility is available in dwelling location outside the designated the proposed building envelope within the 2(a) zone. Third, even though the hypothetical dwelling design was found to be problematic, and given the flexibility in the proposed building envelope, I am satisfied a dwelling could reasonably constructed on Lot 2. Fourth, the 7(d) zone does not prohibit the erection of a dwelling, if the 2(a) zoned land was ultimately found to not be able to contain the whole dwelling. 25I also accept that Test 2 in Wehbe is relevant given the dual zoning and boundaries of the site. This test states that a SEPP 1 objection may establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary. In this case, I am satisfied that strict compliance with the development standard is not relevant to the proposed subdivision for a number of reasons. First, the use of a lot for residential purposes, that is zoned both 2(a) and 7(d), has clearly been established with the creation of lots 269 to 278, directly north of the site and within the same deposited plan. In all lots, the 7(d) zoned land is considerably less than the 40 ha minimum and less than the 7(d) zoned land on Lot 2. Second, the dual zoning of the sites creates almost insurmountable problems in satisfying the 40 ha minimum lot size for the 7(d) zone. Given the boundaries of the site and adjoining property, there is clearly no opportunity to achieve an area remotely close to be 40 ha minimum lot size. I note that the land to the west is Public Reserve, notwithstanding the 7(d) zoning and the land to the south is zoned 7(d) and 1AH General Rural. No submissions were made by the council that greater satisfaction with the minimum lot size could be achieved through the amalgamation of adjoining properties. Third, the proposed building envelope is located totally within the 2(a) zone, and while abutting the 7(d) boundary, it is similar to other residentially developed properties to the north, including the adjoining property. 26For the reasons mentioned in the preceding paragraphs, I am satisfied that the SEPP 1 objection is consistent with the aims of SEPP 1. Also, strict compliance with the development standard, in this case, is unreasonable and unnecessary, does not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act and there is no public benefit in maintaining the planning controls adopted by the environmental planning instrument. Consequently, I find that the SEPP 1 objection is well founded

Lots 3 and 4 What is the appropriate lot size? 27Mr Layman and Mr Lonergan disagree on the categorisation of Lots 3 and 4. I did not understand the disagreement to relate to the primacy of the Suffolk Park requirements in DCP 2012 but only whether the lots should be categorised as "general lots" or "hatchet shaped lots", where the minimum lot sizes are 600 sq m and 900 sq m, respectively. 28DCP 2012 does not provide any definitions for the different lot shapes, however I prefer the conclusions of Mr Layman that the lots are best categorised as "hatchet shaped lots" rather than "general lots". Even though Lots 3 and 4 do not gain their access from a Right-of-Way, but over Lot 1, the effect is the same as if access was over a Right-of-Way. Support for this conclusion comes from cl 5.1 of DCP 2012 where the minimum allotment frontage for "general lots" is 18 m (at the building line) whereas "hatchet shaped lots" must have a minimum allotment frontage of only 3 m. In my view, and adopting practical approach, this clearly contemplates that "hatchet shaped lots" will have an access handle, of some form, rather than a lot with a direct frontage to a public street. 29Accepting that Lots 3 and 4 are categorised as "hatchet shaped lots", it does not follow that this is a reason that necessarily warrants the refusal the application, although it provides greater support for the council's contention that Lots 3 and 4 are of insufficient size to allow the construction of a reasonable dwelling. Can a dwelling be reasonably constructed Lot 3 and 4 - the evidence 30Mr Layman states that the subdivision does not establish that dwellings be reasonably constructed on Lots 3 and 4 because:

the building envelopes for Lots 3 and 4 do not satisfy the 15 m x 12 m dimensions in cl B.5 of DCP 2012,
the hypothetical dwelling designs exceed the requirements in cl C2.7 of DCP 2012 that provides for a limit on excavation and fill of 1 m,
the hypothetical dwelling for Lot 4 breaches the Building Height Plane,
the hypothetical dwellings do not fit within the building envelopes,
any dwellings on Lots 3 and 4 will not be sympathetic to the character of the area, and
Lots 3 and 4 cannot accommodate a dwelling and ancillary buildings associated with the residential use of the lots. 31Mr Lonergan disagrees with Mr Layman and states that the building envelopes for Lots 3 and 4 are located on mostly cleared land. Further, the building envelopes and hypothetical dwelling designs indicate that future dwellings will not prejudice the residential amenity or environmental quality of the area and provide adequate bush fire safety. While Mr Lonergan acknowledges that the hypothetical design provided at the hearing contained a number of errors, he remains satisfied that reasonable dwellings can be located within the building envelopes shown on Lots 3 and 4. Mr Lonergan notes that the proposed building envelopes and hypothetical dwelling designs are to inform the decision maker that the development would not prejudice the proper future planning of the area. Approval is not being sought for any dwellings as part of this application 32Overall, Mr Lonergan is of the opinion that there is no reason why the subdivision should not be approved given that dwellings can be erected along Lots 3 and 4 that would not impact on the character of the area or the environmental qualities of the site. Can a dwelling be reasonably constructed Lot 3 and 4 -findings 33With the benefit of the site inspection and the surrounding area and an understanding of the proposed subdivision, I agree with the conclusions of Mr Layman that Lots 3 and 4 are unacceptable for a number of reasons. 34First, I am not satisfied that Mr Lonergan provided sufficient detail in the hypothetical house designs to satisfy me that a dwelling could reasonably be erected on Lot 2 or Lot 3. The dwelling designs tendered in the proceedings were clearly incorrect and the fundamental problems of the designs was accepted by Mr Lonergan. The need to provide additional information on the future use of proposed lots is addressed in Parrot where it states that "a subdivision application should provide constraints on future buildings when the proposed allotments are smaller than usual, or environmentally sensitive...". In my view, the proposed subdivision falls squarely within the circumstances identified in Parrot. 35Given the APZ's, the drainage easement, the natural watercourse, the steep topography and vegetation, there is a clear need for the applicant to clearly show that a dwelling could reasonably be erected within the building envelopes that would comply with DCP 2012 in relation to building form, and also the ability for vehicles to be accommodated on-site or to gain access to parking within the dwellings. Clause C4.2 provides that: Car parking including garages and carports, which are visible from the street must be integrated with a dwelling in terms of design and materials, and where possible must form part of the dwellings structure. 36I also note that notwithstanding the inaccuracy of the hypothetical house designs, the likely impact of any dwelling would significantly breach the 1 m cut and fill requirement in cl C2.7, although this, by itself may not automatically be a reason to refuse the application. 37Mr Layman's evidence raised sufficient concerns to seriously question whether a dwelling could reasonably be erected on either Lot 3 or 4 that would comply with DCP 2012. 38Second, and while I do not accept that it is necessary to comply with the exact dimensions of a building envelope in cl cl B.5, I do not accept that the proposed building envelopes are acceptable because of the previously identified constraints on the site. For lot 3, the minimum dimensions and area are not satisfied (12 m x 13 m instead of the minimum dimensions of 12 m x 15 m) and a complying building envelope of 12 m x 15 m for Lot 4 is only achieved by extending the APZ into Lot 1. The building envelope for Lot 1 would be significantly below the minimum dimensions if the APZ was required to be contained fully within Lot 1. 39Third, I do not accept that there is sufficient area on Lot 3 or 4 to satisfy the future needs of residents. Clause B.5 in the performance criteria for lot size states, in part, that: Lots are to be of sufficient area to allow or the siting of a dwelling and ancillary buildings including provisions for private open space, vehicle access and parking to permits solar access Lot sizes are required to enable dwellings and driveways to be sited to protect natural or cultural features, and respond to site constraints including topography, bush land, soil erosion, drainage and bushfire risk To provide usable areas, lots sizes must be increased where sites are steep or contain significant landscape features including watercourses and easements. 40Lots 3 and 4 provide little unencumbered land outside the building envelopes. The southern setback of lots 3 and 4 and the eastern setback of Lot 4 consists of an APZ and while this area may be used for informal recreation purposes, there is no opportunity for ancillary buildings normally associated with the residential use of the lots. The only other remaining outside the building envelope for Lots 3 and 4 is the northern setback to the internal access road and given the lots orientation and a proximity to the access road, the northern setback is likely to be used for pedestrian and/or vehicular access to any dwellings on the lots. 41Consistent with cl B.5, I accept that the lots do not have sufficient area to allow the siting of a dwelling and ancillary buildings considering given the highly constrained nature of Lots 3 and 4. 42Fourth, I do not accept that a dwelling on lots 3 or 4 within the building envelope will satisfy that part of cl B.5 that states Lots must enable the construction of built form which his sympathetic to the established character of the area. 43Mr Layman and Mr Lonergan differed on what they considered to be "the established character of the area". Mr Layman relied on the northern side of Corkwood Crescent. In his opinion, this area has a distinct character when compared to the opposite side of Corkwood Crescent and the rest of Suffolk Park. This character is made up of large houses on large blocks of land positioned above the street because of the topography, which rises from the street. Mr Lonergan on the other hand, considers that the appropriate area for determining the question character is the Suffolk Park area in general, including the opposite side of Corkwood Crescent. This character provides a range of housing types and form, including modest single storey residential dwellings. 44With the benefit of the site view, I agree with Mr Layman's assessment of the established character of the area. There is a clear distinction between the northern side and southern side Corkwood Crescent, largely because of the topography and the lot sizes. The northern side includes 2(a) zoned land and 7(d) zoned land. The lots appear larger than the lots on the southern side of Corkwood Crescent where dwellings are largely located below street level and of a more modest nature compared to the dwellings on the opposite side of Corkwood Crescent. These dwellings are clearly larger and more prominent in the streetscape because of the desire to capture distant ocean views. As Lots 3 and 4 shares similar topographic features to the land on the northern side of Corkwood Crescent, I am satisfied that this is the appropriate area on which to determine the question of character. 45On this basis, and if residential dwellings could be located on Lots 3 and 4 and within the defined building envelopes (of which there is considerable doubt), I can comfortably conclude that the built form would not be sympathetic to the established character of the area largely because of the massing of the dwellings on Lots 3 and 4 brought about by the constraints on the site that include the APZ, the existing easement and drainage channel. 46Fifth, I did not accept that adequate consideration was given to the impact on the Red-fruited kurrajong located within Lot 1 but within the APZ for Lot 4 (see Attachment 1). The Red-fruited kurrajong is described in the applicants ecological report as the only tree on the site as "Significant species to be protected", although it is not a species listed under the Threatened Species Conservation Act 1995. As I understand, the ecological assessment did not take into account the effect of the APZ on the Red-fruited kurrajong as the plan, the applicant is seeking approval for (Option 2), is a variation on the original plan subdivision plan (Option 1). ´ The Option 1 plan provided a smaller building envelope and consequently an APZ that was located fully within Lot 4 and as such the Red-fruited kurrajong was unaffected by any activities on Lot 4. 47I note the concerns expressed in the council's internal File Note dated 23 September 2010 (Tab 18, Exhibit 3) that relevantly states in relation to the Red-fruited kurrajong: .... maintaining the specimen in good deal is included as a key performance indicator in the VMP. The specimen could be at risk if the area is continuing disturbed through grass cutting and ground clearing activities required to comply with the APZ. 48In summary, the concerns over the ability to construct dwellings of Lots 3 and 4, the inadequate building envelopes, the inability to provide sufficient area for ancillary uses and buildings normally associated with a residential dwelling, the unsympathetic built form on the character of the area (if dwellings could be constructed) and the potential impact on the Red-fruited kurrajong can lead to no other conclusion than the unsuitability of proposed Lots 3 and 4. The inadequacy of the lots is largely brought about by the constraints imposed by the APZ, the drainage easement, the natural watercourse, the steep topography and existing natural vegetation and the applicants desire to create lots that does not seek to address the requirements in cl 5.1 Chapter 9 that specifies a minimum area of 900 sq m. 49I can comfortably conclude that the development application should be refused for the reasons set out in the preceding paragraphs.

Abramovich v Byron Shire Council

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