Altisse Pty Limited v Lane Cove Council

Land and Environment Court (NSW)|2015-02-12

Solicitors: Applicant: Sattler & Associates Pty Ltd Respondent: Marsdens Law Group File Number(s): 10883 of 2014

Judgment

COMMISSIONER: The applicant appeals Lane Cove Council's refusal of Development Application DA 7/2014 for the demolition of an existing dwelling and construction of a dual occupancy and strata subdivision at Lot 21 DP 11204 or 1 Rothwell Crescent, Lane Cove (the site).
The applicant lodged the development application with the council in January 2014. Council subsequently refused the DA in April 2014. In July 2014, in accordance with s 82A of the Environmental Planning and Assessment Act 1979 (EPA Act), the applicant lodged an application seeking a review of council's determination. Amended plans were prepared. In November 2014 the council determined the s 82A application by confirming its original decision that the DA be refused.
The appeal to the Court is made pursuant to s 97 of the EPA Act.
The matter commenced as a mandatory conciliation conference under s 34AA of the Land and Environment Court Act 1979. Although some issues were agreed, as the parties could not reach full agreement, the conciliation was terminated and the matter proceeded to a hearing. The plans relied on by the applicant are the plans prepared for the s 82A review.

The site and its locality

The site is located on the north-eastern corner of Dorritt Street and Rothwell Crescent, Lane Cove. The site falls quite steeply from the Rothwell Crescent frontage to the rear of the site to the east along Dorritt Street.
The site has an area of 696.8m2. The rear of the site is heavily vegetated with a mixture of native and exotic species.
A dwelling house exists on the site, the vehicular entrance to which is located on Dorritt Street.
Surrounding development comprises a mixture of single and two storey dwellings. There is a two storey dwelling on the adjoining property to the north.

The issues

Council's Statement of Facts and Contentions lists the contentions council maintains should warrant refusal of the development.
Following the review of the amended plans and joint conferencing between the parties' planners, a number of contentions have been resolved or deemed capable of resolution through the imposition of appropriate conditions. The loss of an on-street parking space in Rothwell Crescent was considered not to be a determinative issue.
The remaining issues are:

Minimum lot size for the purpose of dual occupancy.
Minimum subdivision lot size.
Setbacks.
Wall and undercroft height.
Bulk and scale and over-development of the site.
Public interest.

Assessment framework

The site is zoned R2 Low Density Residential under Lane Cove Local Environmental Plan 2009 (LCLEP). Dual occupancies are permitted with consent. The relevant objectives of the zone are: To provide for housing needs of the community within a low density residential environment. To retain, and where appropriate improve, the existing residential amenity of a detached single family dwelling area.
The following development standards are relevant (Part 4 LCLEP). Clause 4.1 Minimum subdivision lot size (1) The objectives of this clause are as follows: (a) To promote consistent subdivision and development patterns in zones. (2) This clause applies to a subdivision of any land shown on the Lot Size Map that requires development consent and that is carried out after the commencement of this Plan. (3) The size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum size shown on the Lot Size Map in relation to that land. (4) This clause does not apply in relation to the subdivision of individual lots in a strata plan or community title scheme. (4A) Despite subclause (3), the size of the lot for the purposes of a dual occupancy must not be less than: (a) for dual occupancy (attached) - 750 square metres, and (b) for dual occupancy (detached) - 900 square metres.
Clause 4.3(2) - Height of buildings map sets a maximum building height of 9.5m. The maximum floor space ratio for the site is 0.5:1 - cl. 4.4(2).
Clause 4.6 LCLEP establishes a mechanism for providing an appropriate degree of flexibility in applying certain development standards. Consideration must be given to a written request from an applicant demonstrating that compliance with a development standard is unreasonable or unnecessary in the circumstances, there are sufficient environmental planning grounds to justify contravention of the standard and the proposal is consistent with the objectives of the development standard and the zone objectives.
Part C.1 Dwelling Houses and Dual Occupancies - Lane Cove Development Control Plan 2010 (LCDCP) is relevant. The parties press the following provisions: 1.1 Objectives for Dwelling Houses and Dual Occupancies 1. Provide dwellings in landscaped lots 2. Ensure new dwellings and alterations and additions to existing dwellings are well designed and compatible with the surrounding context and enhance the streetscape within the area. 3. Achieve a reasonable level of amenity for both development sites and adjoining dwellings. 1.2 Streetscape [relevant objectives] 1. Achieve development of a scale and appearance which is in keeping with the predominant traditional or emerging street and neighbourhood character. 2. Ensure the existing landscape character of the area is maintained and enhanced. 3. Ensure the exiting topography of the site is reinforced by dwelling design. Provisions a) Developments on sites with two or more frontages should address both frontages to promote interaction and add diversity to the streetscape. b) All housing is to address the street and offer passive surveillance to the street. c) Attached dual occupancies should not have a symmetrical appearance when viewed from the street and are to be designed as one building structure, both physically and in appearance. 1.3 Setbacks 1.3.2 Side setbacks a) Side setbacks are to be a minimum of: i) 1.2 m for a single storey dwelling ii) 1.5 m for a two storey dwelling 1.7 Building Design [relevant objectives] 1. Ensure new dwellings and alterations and additions to existing dwellings reinforce the typical bulk and scale of existing dwellings within the street and area. 2. Not applicable 3. Ensure elevations to the street and public domain are well proportioned and designed.. 4. Minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of views and amenity. 1.7.1 Height a) The maximum wall height to the underside of eaves for any floor above ground level (existing) is 7.0 m to minimise the bulk and massing. b) The maximum height to the underside of undercroft areas above ground level (existing) is to be 1.0m. Refer to controls relating to cut and fill for additional requirements. c) Not applicable d) The maximum height for a pitched roof house is 9.5m above ground level (existing). e) A maximum of 2 storeys plus basement is permissible at any point above ground level (existing). No building will be permitted to have an appearance (in elevation) exceeding three storeys in height. 1.8 Amenity [objectives] 1. To provide reasonable solar access to habitable rooms and recreational areas of new and existing developments. 2. To provide reasonable acoustic and visual privacy for neighbouring properties. 3. Minimise overlooking between adjoining dwellings and their private open spaces. 1.8.2 Privacy - Visual and Acoustic a) Dwellings or additions be designed and orientated so0 that windows, balconies and decks are not situated directly opposite windows of the habitable rooms of any adjoining dwellings, unless privacy can be addressed. b) Not applicable c) Elevated decks, terraces or balconies greater than 1m above ground level (existing) to living areas are not to exceed a maximum depth of 3.0m. Deeper decks may be considered if privacy to adjoining properties is addressed. 1.8.3 Private open space a) Where possible all dwellings will have an area of private open space that receives northerly sun in winter. b) Where possible private open space is to be located directly accessible from a major living area within the dwelling and be on the same level as the living space or within 500 mm of the floor level. c) Private outdoor open space can include a garden, terrace, paved area, deck or courtyard. d) The minimum area of one area of private open space per dwelling is 24m2 with a minimum depth of 4m and a maximum gradient of 1:50.

The hearing and evidence

The hearing commenced on site. The Court and the parties heard from the owners of the adjoining property to the north and the site was inspected from their dwelling. Their concerns go to:

Non-compliance with the lot size for subdivision could set an unacceptable precedent leading to an undesirable change in the low density character of the area;
Impacts on privacy and acoustic amenity as a consequence of two areas of private open space to be used by the occupants of a total of 8 bedrooms and located within close proximity to their elevated deck.

The parties' planners, Mr Greg Boston for the applicant and Mr Neil Kennan for the respondent, prepared a joint report and gave oral evidence.
Council's arborist, Mr Peter Maish attended the view and confirmed that the contention regarding the potential impact of the driveway off Dorritt Avenue on a street tree was resolved by retaining the current access. He also confirmed the trees proposed to be removed.
The planners agree that:

The s 82A plans show that the proposed development complies with both the height and FSR development standards in LCLEP
In regards to the side setbacks and privacy, the only portions of the decks located within 1500mm of the side boundary are the landing, privacy screen and staircase of Unit 1. The planners agree that the issues of privacy and setbacks can be addressed by imposing a condition of consent requiring the erection of privacy screens.
The loss of one street parking space in Rothwell Crescent, in itself, is not a reason to refuse the proposal.
With respect to any undesirable precedent that may be set, each application must be assessed on its merits.

Minimum lot size for dual occupancy/ minimum lot size for subdivision

Council contends that the application should be refused because the proposed development does not comply with cl. 4.1(4A) of LCLEP. An attached dual occupancy requires a lot size of 750m2 and the size of the lot is 696.8m2. In addition, the council contends that the cl. 4.6 variation request has not adequately demonstrated what it is required to address.
In addition, council's related second contention is that the application should be refused because the proposed Strata Title subdivision does not comply with cl. 4.1(3) LCLEP and is inconsistent with the objectives of cl. 4.1.
In Mr Boston's opinion, the lot size is adequate to accommodate the proposed dual occupancy which he says is of a size and layout consistent with the built form and development pattern established by adjoining and adjacent properties. He opines that the proposal responds to the site constraints and opportunities and is sensitive to the natural and built elements of the environment and does not alter the existing lot size or established subdivision pattern. In addition, Mr Boston states that the proposal will not give rise to any adverse residential amenity impacts in terms of views, privacy, solar access or visual amenity.
Mr Boston considers that the cl. 4.1 standard clearly anticipates subdivision and that the implicit objective of cl. 4.1(4A) is to ensure that the site is of an adequate size to accommodate a compliant dual occupancy development. In his opinion, in applying the Planning Principles in Project Venture Developments v Pittwater Council [2005] NSWLEC 191 and Veloshin v Randwick Council [2007] NSWLEC 428, it can be concluded that the proposal is compatible with its surroundings and this is not a case where the difference between compliance and non-compliance is a difference between good and bad design.
Under cross-examination from Mr Seton, Mr Boston agreed that while the development pattern is predominantly single dwellings on blocks of about 700m2 there are also relatively nearby examples of duplexes, all be they on larger lots; however unlike the side by side development in Gamma Road, this proposal addresses both frontages and is unlikely to be perceived by the general passer-by as a dual occupancy. In his view, the LEP anticipates a mix of development types within the zone and, being a corner block, the site is especially suitable for a dual occupancy. Mr Boston maintained his view that the proposal is not antipathetic to the existing development pattern in the area.
In the joint report, Mr Kennan states that in his opinion the underlying objective of the 750m2 minimum lot size for an attached dual occupancy development standard is "to promote consistent subdivision and development patterns in zones". He notes that the applicant has used the most commonly invoked method of establishing whether compliance with a development standard is unreasonable or unnecessary as discussed in Wehbe v Pittwater Council [2007] NSWLEC 827 in the cl. 4.6 variation request [that is compliance is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding the non-compliance].
Mr Kennan considers that given the shortfall of 53.2m2, the slope of the site and, up to 190m2 of the rear of the site being subject to the 100 year ARI flood, apart from the non-compliance, the site is significantly constrained. In his view the proposal does not achieve a better outcome and the primary objective of cl. 4.6 is not achieved. Mr Kennan also opines that the applicant has not demonstrated any planning reason to justify departure from the development standard.
In oral evidence, Mr Kennan maintained that the development pattern in the visual catchment is characterised as low density residential with predominantly single detached dwellings and that the development on Gamma Road is an anomaly. Under cross examination Mr Kennan agreed that if the issue of subdivision were to be set aside, the minimum lot size in the R2 zone is 550m2, dual occupancy is a permitted use, and any dual occupancy will create a different pattern.
When asked by Mr Staunton to consider the essential elements of the development pattern of the area and whether the proposal was consistent with them, Mr Kennan agreed with the proposition that: there is uniformity in the front setback; the rear setback maintains a green corridor; it is unusual to find a dual occupancy fronting only one street; it is unusual to find a detached dual occupancy on a battle-axe block; a dual occupancy on the site would endeavour to use the controls to face both streets; any building would be located close to the corner of Dorritt Street and Rothwell Crescent; and the development is therefore generally consistent with the development pattern. Mr Kennan maintained his opinion that the development would still be perceived as a dual occupancy and that allowing a subdivided dual occupancy on a lot of less than 750m2 is counter to the intent of the controls and would create an undesirable precedent.
With respect to council's second contention regarding the minimum subdivision lot size in cl. 4.1(3), the planners agree in their joint report that the interpretation of this clause is a matter for legal submissions and ultimately the Court but that the fundamental planning contention is whether the proposed attached dual occupancy is a suitable use of the site.
Mr Seton for the council contends that cl. 4.1 does apply to the proposal because 'subdivision' for the purpose of the EPA Act, as the parent instrument and therefore the LEP, includes strata subdivision (s. 4B(2)(b) EPA Act). He maintains that cl. 4.1does not say that it only applies to a subdivision otherwise cl. 4.1 (4A) would not make any sense. Mr Seton argues that by taking a literal and purposive approach to cl. 4.1(4A) it is clear that a minimum area of 750m2 is required for an attached dual occupancy. He maintains that this is the approach taken by the applicant's planner in preparing a cl. 4.6 request to vary this standard.
In regards to the cl. 4.6 variation request to vary the size of the lot for the purpose of an attached dual occupancy, Mr Seton submits that by failing to undertake a detailed analysis of the subdivision patterns of the area, the applicant has not demonstrated that compliance with the development standard is unreasonable or unnecessary. Mr Seton also argues that consistent with the finding in Wehbe v Pittwater Council [2007] NSWLEC 827 at [60], the applicant's reliance on compliance with other standards and controls in the LEP and DCP does not provide a basis for non-compliance with a different development standard.
Mr Seton contends that cl. 4.1(4) only applies if there is a pre-existing strata scheme and this is not the case. Therefore, the proposed subdivision will result in two lots substantially less than the minimum lot size for the zone. As the applicant has not prepared a cl. 4.6 variation request for the subdivision element of the development application, the Court has no jurisdiction to approve it.
Mr Staunton for the applicant submits that the Court has the power under s 80(4) of the EPA Act to grant development consent to all or part of the development application before it. In this respect, the application is effectively in two parts: consent for a dual occupancy, and secondly, consent for subdivision. If the Court is against the applicant on the subdivision, Mr Staunton maintains it is open for the Court to approve only the dual occupancy.
Mr Staunton contends that cl. 4.1 LCLEP is only engaged for the purpose of subdivision as stated in cl. 4.1(2). He argues that the proper construction of cl. 4.1(4) is that cl. 4.1 does not apply to individual lots in a strata plan and further, it does not require there to be a pre-exiting strata plan. He asserts that had it wanted to, council could have adopted cl. 4.1AA from the Standard Instrument - Principal Local Environmental Plan. Further, Mr Staunton contends that council is using cl. 4.1(4A) as a way of restricting dual occupancies when cl. 4.1 applies specifically to subdivision.
Notwithstanding that position, Mr Staunton maintains that should the Court accept that the 750m2 lot size applies, a cl.4.6 variation request is required. He contends that the lot is only 7% short of that figure and that for the reasons put to Mr Kennan (paragraph [29]) the proposal is consistent with the development pattern in the immediate area. Mr Staunton argues that the LEP and the DCP set the standards for the development pattern by setting height and FSR limits in certain areas, and in this case, a corner allotment will have a building on the corner and corner lots are the preferred sites for dual occupancies. He asserts that a strata subdivision of a building in a landscape setting will not change the appearance of the street or the subdivision pattern.
In regards to whether the proposal meets the objectives of the zone, Mr Staunton contends that by adopting the form, bulk and mass of a single dwelling in a zone that permits dual occupancy, the proposal achieves the zone objectives, in particular the objective which seeks the retention of the existing residential amenity of detached single family dwelling areas. He maintains there are sufficient environmental planning grounds to support the variation in the development standard and the proposal should be approved.
With respect to the council's second contention regarding cl. 4.1(3), Mr Staunton agrees that the proposed subdivision is 'subdivision' under s 4A of the EPA Act. However, he contends that if the applicant were to subdivide the land for any purpose other than a strata subdivision, cl. 4.1(3) LCLEP requires that the minimum lot size resulting from that subdivision would need to be at least 550m2 - being the minimum size shown on the Lot Size Map in the LEP. However, for the reasons already advanced, i.e. that cl. 4.1(4) states that cl. 4.1 does not apply to strata subdivision, Mr Staunton contends this has no effect.

Minimum lot size/ subdivision lot size

There are two primary elements of the development application that must be determined; firstly, should an attached dual occupancy be permitted on the site; and secondly, can a strata subdivision of the dual occupancy be approved. The difference between the parties is the extent to which cl. 4.1 LCLEP applies.
The objective of cl. 4.1 is to promote consistent subdivision and development patterns in zones (cl. 4.1(1)(a)). It applies to a subdivision of any land on the Lot Size Map that requires development consent (cl. 4.1(2)). It is agreed that 'subdivision' is that described in s. 4A of the EPA Act and includes strata subdivision. Clause 4.1(3) states that the size of any lot resulting from a subdivision of land to which this clause applies is not to be less than the minimum lot size shown on the Lot Size Map; in this case 550m2. However, cl. 4.4(4) states that this clause does not apply to the subdivision of lots in a strata plan or community title scheme. Further, cl. 4.1(4A)(a) says that despite cl. 4.1(3), the size of a lot for the purpose of an attached dual occupancy must not be less than 750m2. It would seem that the essence of cl. 4.1 is to set the minimum lot size, including the specific variations for dual occupancy developments, for each zone.
The planners are agreed that cl. 4.1(4A)(a) sets a development standard of a minimum lot size of 750m2 for the purpose of constructing an attached dual occupancy on the site. I agree with their position. The planners disagree as to whether the proposal promotes consistent subdivision and development patterns in the zone and whether the cl. 4.6 request to vary the standard is justified.
Before the matter can be determined on its merits, the starting point must be consideration of the written cl. 4.6 request to vary the minimum lot size for an attached dual occupancy in cl. 4.1(4A)(a) LCLEP. Unless subclauses 4.6(3) and 4.6(4) are satisfied, consent must not be granted for the proposed development.
Subclauses 4.6(3) and 4.6(4) state: (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and (b) the concurrence of the Director-General has been obtained.
It is agreed that the proposal falls short of the 750m2 minimum area by 53.2m2 or 7.1%. In accordance with cl. 4.6(3) Mr Boston for the applicant prepared a written request [Attachment 3 Exhibit 4] that seeks to justify the contravention of the development standard.
Clause 4.6 (4)(a) requires the Court to be satisfied that the applicant's written request has adequately addressed the matters to be demonstrated in cl. 4.6(3), that is: why compliance with the development standard is unreasonable or unnecessary in the circumstances, and that there are sufficient environmental planning grounds to justify contravening the standard. The Court must also be satisfied that the proposed development is in the public interest by being consistent with the objectives of the standard and the zone objectives. If the Court is not satisfied that the written request has adequately addressed these matters, consent must not be granted. Clause 4.6 provides a vehicle for allowing an appropriate level of flexibility in the application of development standards but it places a significant onus on the applicant to justify, in writing, why a deviation from a standard is justified.
I agree with Mr Seton that there is no analysis of the existing pattern of subdivision or development pattern within the locality in the applicant's written request. The only relevant paragraph in answer to cl. 4.6(3)(a) appears to be as follows [p. 3 Attachment 3, Exhibit 4]: This submission clearly demonstrates that the site is of adequate size and dimension to accommodate an attached dual occupancy development of the nature sort [sic] with the height, bulk, scale and footprint of the building being entirely consistent with the built form characteristics established by adjoining development and development generally within the site's visual catchment as depicted in Figure 1 over page.
The caption for Figure 1 reads: 'Aerial photo depicting established development patterns within proximity of the site'. There is no discussion of the various elements of the development pattern such as setbacks, siting of dwellings on the lots, building form and style, lot size and orientation, landscape, driveways and so on, nor any explanation as to how the proposal achieves this pattern.
The answer to cl. 4.6(3)(b) is very general in nature and in my opinion, does not adequately articulate the specific environmental planning grounds the applicant relies on. Nor does it detail how the proposal addresses these grounds in order to justify contravention of the development standard.
Similarly, the written request provides a brief and general response as to how the proposal is consistent with the objectives of the zone. While zone objectives are by necessity broad, in my view cl. 4.6 requires the applicant to explain in some detail how the proposed development meets any relevant objectives. In my opinion, the applicant has not done this.
Therefore I cannot be satisfied that the applicant's written request has adequately demonstrated that compliance with the development standard for the minimum lot size for an attached dual occupancy is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify contravention of the standard. Therefore I cannot be satisfied that the proposed development is in the public interest by being consistent with both the objectives of the development standard and the zone.
While a merit assessment of the proposal based on the site view and the oral evidence may have led to a different finding, as a consequence of cl. 4.6(4)(a) not being satisfied, consent cannot be granted. Section 39(6) of the Land and Environment Court Act 1979 enables the Court to exercise the power conferred by cl. 4.6 without the concurrence of the Director-General; therefore subclause 4.6(4)(b) is addressed. Therefore it is unnecessary to address the remaining issues including the proposed strata subdivision.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Development application DA 7/2014 for the demolition of an existing dwelling and the construction of a dual occupancy and strata subdivision at 1 Rothwell Crescent, Lane Cove is determined by refusal. 3. All exhibits except 1 and A are returned.

Judy Fakes Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 February 2015

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