Armytage & Ors v Sutherland Shire Council

Land and Environment Court (NSW)|2005-03-17|Before: Pain J, Mr P

CITATION : Armytage & Ors v Sutherland Shire Council [2005] NSWLEC 94

APPLICANTS: Murray Armytage Linda Armytage Adam Hodges PARTIES : Tammie Hodges

RESPONDENT: Sutherland Shire Council

Conveyancing Act 1919 Sch 8(1) Draft Sutherland Shire Local Environment Plan 2004 Environmental Planning and Assessment Act 1979 s 97 LEGISLATION CITED: Local Government Act 1993 s 458 State Environmental Planning Policy 1 Sutherland Shire Local Environment Plan 2000 Sutherland Shire Residential Subdivision Development Control Plan 2001

Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140; Zhang v Canterbury City Council (2001) 115 LGERA 373

11/02/2005 DATES OF HEARING: 14/02/2005 17/02/2005 18/02/2005

APPLICANTS: Mr P Rigg (solicitor) SOLICITORS: Deacons LEGAL REPRESENTATIVES: RESPONDENT: Mr R O'Gorman Hughes (solicitor) SOLICITORS: Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11272 of 2004 Murray Armytage & Ors v Sutherland Shire Council

JUDGMENT 1 Her Honour : This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the deemed (and subsequent actual) refusal by Sutherland Shire Council ("the Council") of Development Application No. 04/1260 to subdivide two existing allotments known as 7 and 9 Scarborough Street, Bundeena ("the site") into five residential allotments.

2 The site is zoned 2 (e1) Residential ("the zone") by the Sutherland Shire Local Environment Plan 2000 ("the LEP"). The subdivision is permissible in the zone. The site comprises Lots 4 and 5 in Deposited Plan 19689. The site is rectangular with a frontage to Scarborough Street of 33.78m and a depth of 103.63m. The site has a resulting area of approximately 3,500sq m. Each of the present allotments has a single residence erected upon it. 3 The site has a generally north-south orientation and slopes from Scarborough Street toward the north at a gradient of approximately 6 per cent. The site is located in a residential area comprising development of single detached dwellings.

4 The present application was lodged on 23 August 2004 and was subject to the normal notification processes. A number of objections were received from neighbours and other residents in the vicinity of the site.

5 The Council's Independent Hearing and Assessment Panel ("the assessment panel") considered the application on 24 November 2004. The assessment panel had submitted to it an assessment report prepared by Council's officers which had recommended approval of the proposal. The assessment panel made a similar recommendation. On 6 December 2004, the Council's Environment and Health Committee ("the committee") considered the assessment panel's recommendations and resolved to recommend to a meeting of the Council that the Council refuse the application. The reason given for this recommendation was that the proposal did not satisfy the minimum allotment size required by the LEP and one of the allotments did not comply in one respect with a minimum allotment dimension requirement of the LEP. On 13 December 2004, the Council adopted the committee's report and refused the application. The Planning Controls Sutherland Shire Local Environment Plan 2000 ("the LEP") 6 Three provisions of the LEP are relevant to the assessment of the present application. Clause 30 requires that the consent authority, " when assessing the impact of … development applications … must not grant consent unless it is satisfied that " a list of matters in the clause " have been adequately addressed by relevant documentation submitted to it ". In this instance, the relevant provisions in the list are:

(a) the impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views and privacy and (c) the cumulative impact of successive development on the general character of the neighbourhood

and (g) the location of the proposed development in relation to potential risks, including flooding, bush fire and other hazards

7 Clause 37 deals with minimum allotment sizes in residential zones. It contains objectives which are relevant in this appeal. These objectives are: 37 What minimum allotment sizes apply in residential zones? (1) The objectives of the minimum allotment size requirements are: (a) to achieve efficient use of residential land, having regard to the existing allotment sizes across each zone, the expectations of the community and the environmental capacity of the various zones, and (b) within the 2 (b) Residential and 2 (c) Residential zones, to reduce the instances of isolated parcels being left with reduced development potential, and (c) to complement the floorspace ratio requirements to ensure an appropriate number of dwellings per site having regard to the characteristics of the zone.

8 The table in this clause provides the minimum allotment sizes for the creation of new allotments in the zone. These are that standard allotments (being those with a street frontage, by necessary inference) have a minimum area of 550sq m and internal allotments have a minimum area of 700sq m. These provisions are subject to a number of exceptions not relevant to this case. The clause also provides that the area of an access corridor is not to be included when the size of any internal allotments is calculated.

9 Clause 38 deals with minimum allotment dimensions in residential zones. These objectives are: 38 What minimum allotment dimensions apply in residential zones? (1) The objectives of the allotment dimension requirements are: (a) to require sufficient allotment widths and depth to enable some variations in design for development, and (b) to ensure sites have adequate widths and depth for the arrangement of sufficient side boundary setbacks, efficient driveways, sufficient landscaped areas and satisfactory building form that takes into account the uses made of adjoining properties. 10 The table contained in the clause provides that a minimum width of 15m is required for the creation of a new allotment in the zone. The clause also provides, relevantly, that a minimum allotment depth of 27m applies for the creation of a new allotment in all residential zones (subject to an exception not relevant in the present case). 11 There is nothing, in this clause, which excludes the width of a right of carriageway from the dimensions of an allotment burdened by it. Thus Lots 3 and 4 comply with the minimum width requirements in the LEP.

Residential Subdivision Development Control Plan 2001 12 The Residential Subdivision Development Control Plan 2001 ("the DCP") includes a provision restricting the number of allotments that can be served by a right of carriageway. This provision reads: 14.2 A right of carriageway will be permitted to service only two allotments over the road frontage allotment. 13 This provision does provide, in cl 14.6, an exception to the restriction on the number of allotments serviced by a right of carriageway. However, this exception does not apply to allotments in the zone applicable to the site.

Draft Sutherland Shire Local Environmental Plan 2004 14 The draft Sutherland Shire Local Environmental Plan 2004 ("the draft 2004 LEP") proposes that the site would be rezoned Environmental Housing (Environmentally Sensitive Land), a more restrictive zoning than currently applies to it.

15 It is proposed in cl 8.7 Subdivision and Allotment Size of the draft 2004 LEP that the minimum allotment sizes for street frontage allotments in the Environmental Housing (Environmentally Sensitive Land) zone will be 850sq m and for internal allotments will be 1000sq m. The draft 2004 LEP also provides that a minimum allotment width of 18m and a minimum allotment depth of 27m would be required.

16 If these allotment sizes are to be applied to the present application, it is clear that the proposed allotments would not comply with the minimum sizes to be prescribed for such subdivision.

The Issues 17 The Council filed a formal Statement of Issues containing a number of discrete elements. However, in summary, the issues can be treated as being: (i) Lots 3 and 4 do not satisfy the minimum area for internal allotments required by the LEP;

(ii) Lot 5 does not satisfy the dimensional requirements of the LEP;

(iii) the number of internal allotments served by the right of carriageway exceeds those permitted by the DCP;

(iv) the proposed allotments do not satisfy the size requirements of the draft 2004 LEP;

(v) the proposal is so inconsistent with the pattern of development in Bundeena as to be unacceptable; and

(vi) the amenity of neighbours could not be guaranteed to be preserved by siting of a dwelling on the internal allotments - particularly proposed Lot 5. In this regard, it is put that the Applicants have provided insufficient information to enable a proper assessment of this issue.

18 The objectors have also raised a variety of broader issues in addition to those set out above. 19 In my consideration of these issues, I have had the benefit of a report by Mr R Smyth, the Court-appointed town planning expert witness. I have also had the benefit of Commissioner Moore sitting with me in this matter. The Court attended a view of the site and surrounding area. The depth of Lot 5 20 At the conclusion of the hearing, the Applicants' solicitor foreshadowed an amendment to the proposed layout of the subdivision to increase the depth of Lot 5 by moving its southern boundary and, consequentially, the northern boundaries of Lots 3 and 4, three metres to the south. This would have necessitated an adjournment to enable the filing of amended plans and possibly further advertising of the proposal. As much of the argument had been heard, the Court proposed that it deal with four remaining issues as set out in par 24. 21 Accordingly, the issue of compliance of Lot 5 (issue at par 24(ii)) with the allotment depth standard contained in cl 38 of the LEP does not arise in this decision as it assumes that the amended plans have been filed. This was considered the most efficient means of dealing with the matter without requiring the parties to incur unnecessary expense.

22 The parties agreed that, if I were to find in favour of the Applicants on all of these issues and on the matters raised by the residents (and thus form the view that the proposed subdivision was worthy of approval), the Applicants would then prepare revised plans to give effect to the amended boundaries for Lots 3, 4 and 5 noted earlier.

Consideration of the remaining issues 23 Four substantive issues remain as follows: (i) Lots 3 and 4 do not satisfy the minimum area for internal allotments required by the LEP; (ii) The number of internal allotments served by the right of carriageway exceeds those permitted by the DCP; (iii) The proposal is so inconsistent with the pattern of development in Bundeena as to be unacceptable; (vii) The proposed allotments do not satisfy the size requirements of the draft 2004 LEP; Issue 1: Compliance with minimum allotment sizes 24 Access to Lots 3, 4 and 5 is proposed to be by way of a right of carriageway created pursuant to the Conveyancing Act 1919 as defined in Sch 8(1) of that Act. The issue is whether Lots 3 and 4 comply with the minimum allotment size in the LEP. At issue is the application of cl 5 of the LEP which provides for the calculation of the site area as follows: Site area is the area of an allotment zoned so as to allow proposed development and includes any area of a right-of-carriageway burdening the allotment, but does not include the area of any access corridor.

25 Mr Smyth, the Court appointed town planning expert witness, has undertaken a calculation of the areas of each of the proposed five allotments. His table of calculations shows the following: Lot No. Minimum area standard Area with access corridor Area without access corridor 1 550 650 576 2 550 650 558 3 700 701 611 4 700 701 611 5 700 799 709

26 On his calculations, Lots 3 and 4 are both approximately 89sq m less than the required minimum area of 700sq m set pursuant to cl 37 of the LEP if the access corridor is excluded. This is a deficiency of a little over 12.5 per cent of the minimum area required for each allotment.

27 The Applicants submitted that the definition of "site area" in the LEP requires inclusion of any right of carriageway in the calculation of the site areas of Lots 1, 2, 3 and 4. They also submitted that, if the areas on each allotment of such right of carriageway are included in the area of those allotments, each of them complies with the site area requirements of the LEP.

28 In this regard, the Applicants further submitted that it is appropriate to have regard to the provisions of cl 11 of the DCP. This clause deals with Minimum Allotment Sizes and Shapes . In cl 11.3, there is a diagram which deals with the measurement of the area of an allotment. The diagram is reproduced below: 29 It is the Applicants' submission that, as the DCP was brought into being after the definition and requirements of the LEP were formulated and brought into effect, it is appropriate to have regard to and rely on these provisions to ascertain what was intended by the Council when considering such allotment area calculations. The DCP clearly suggests that the right of carriageway can be included in the calculation of site area.

30 On the other hand, the Council submitted that an access corridor can, in some circumstances, be an access handle as depicted in the diagram but also a right of carriageway. It suggested that the fact that the right of carriageway across Lots 3 and 4, which are internal allotments, services these lots and Lot 5 is a factor suggesting that the right of carriageway is part of an access corridor.

31 The Council submitted that there are some rights of carriageway, such as a turning circle, which may benefit more than one allotment but which do not comprise an access across the burdened allotment to another allotment. It further submitted that such non-thoroughfare rights of carriageway can be excluded but that, in circumstances such as the present application, the right of carriageway over Lots 3 and 4 forms part of an access corridor and is thus to be excluded from allotment size calculations. Finding on Issue 1 32 There is no definition of "access corridor" or "right of carriageway" in the dictionary of the LEP to assist in interpreting "site area" as defined in the LEP. If the right of carriageway is included in the site area for Lots 3 and 4 the LEP minimum allotment sizes will be met.

Should the DCP be applied? 33 The provisions of a DCP are to be considered as a fundamental element in, or a focal point to, considering a development application. Since development control plans have been subject to exhibition and community comment, the approach to them must be consistent with that prescribed by the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373 (see also discussion by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). Clause 11.3 is directly pertinent to this application and should be attributed significant weight.

34 I am satisfied in this instance that the DCP does provide an appropriate basis for me to understand what the Council intended in such circumstances. Despite the fact that the right of carriageway is not merely providing access to Lots 3 and 4 but also across them to Lot 5, the distinction drawn and intended to be drawn from the definition in the LEP (as amplified by the diagram in the DCP at cl 11.3) is one based on the nature of the title to the land by which access is obtained to the relevant internal allotments, not the use to which the right of carriageway is put. Where access to any internal allotment is provided by a portion of land which is part of the freehold title to that internal allotment, that portion of land is excluded from the calculation of the area of the allotment.

35 Further, I am similarly satisfied that the concept of a right of carriageway as set out in the diagram in cl 11.3 of the DCP means that where the title to the land by which access is obtained to an internal allotment remains as part of an allotment standing between that internal allotment and the roadway, then that area of land is to be counted as part of the area of the allotment which incorporates the land used for access.

36 As a consequence, I have concluded that the right of carriageway servicing Lot 5 should have those portions of it which are within Lots 3 and 4 included within the site area of those two allotments. As a consequence, those allotments comply with the minimum site area requirements of the LEP. The Applicants are successful on this ground.

37 The Applicants lodged as part of the assessment process objections pursuant to SEPP 1 prepared by Mr D Crane, a consultant town planner. Given the foreshadowed amendment to the depth of Lot 5 and the conclusions which I have reached concerning the calculation of the allotment areas for Lots 3 and 4, the SEPP 1 objections are rendered unnecessary.

Issue 2: Number of internal allotments served by proposed access 38 The DCP includes, at cl 14.2, a provision restricting the number of internal allotments that can be served by a right of carriageway. This reads; 14.2 A right of carriageway will be permitted to service only two allotments over the road frontage allotment. 39 The diagram that is part of cl 14 of the DCP makes it clear that a right of carriageway across a road frontage allotment is expected to traverse and service one intermediate internal allotment whilst also servicing the third allotment being that furthest removed from the road.

40 In the present case, the Applicants submitted that, because the right of carriageway is across four allotments prior to reaching Lot 5, the sharing of the right of carriageway by three internal allotments did not constitute a significant departure from the restriction in cl 14.2 and, effectively, there was only a right of carriageway serving 1.5 allotments over each of the pairs of outer allotments.

41 The Council submitted, however, that the proposed subdivision did not satisfy cl 14.2 on the basis that the number of allotments the right of carriageway serviced was more than two internal allotments. The Council also expressed some concern in relation to the adequacy of on-site parking areas in accordance with cl 14.6 of the DCP. Having regard to this clause and the objectives in general of the DCP, the Council argued this was not an appropriate instance where the Court should consider relaxing the requirements of the DCP.

Finding on Issue 2 42 I firstly note that the DCP is a comprehensive code for the subdivision of land in the Sutherland Shire. Thus, I am of the view that both the individual clauses and the overall scheme should be accorded significant weight. This is consistent with the decision in Zhang . I consider that unless there are good planning reasons to depart from the provisions of the DCP, the code in the DCP, in all its aspects, should be applied. 43 Turning to cl 14, the specific objectives of the clause are supported by the various controls contained in it. The objectives of cl 14 are: Access to allotments from constructed and dedicated public roads in preference to a right-of-carriageway except: a. Where the terrain is unsuited to a road because of the scarring of the landform; b. Where the existing adjoining development prohibits the opening of a road.

44 In the present case, the first of the objectives is irrelevant. The second objective is the reason why the Applicants propose a right of carriageway for access. It is clear that the restriction in cl 14.2 is intended to address the issue that, in the absence of a road meeting relevant Australian Standards thus permitting two-way traffic, rights of carriageway are narrower and do not permit vehicles to pass each other. It is obvious that the Council considers that for the rights of carriageway to function effectively for the passage of pedestrians and vehicles to access properties served by them they should be subject to the restriction in cl 14.2. 45 The restrictions on the ability of a right of carriageway to service multiple allotments is, by necessary inference, acknowledged by the Applicants who seek to incorporate a passing bay, as part of the right of carriageway, at approximately its mid-point. By the incorporation of such a passing bay, the Applicants, again by necessary inference, seek to address the limitations on the carrying capacity in the present proposal.

46 In this case, the Applicants have had the advantage of the provisions of the DCP concerning calculation of site area. They have sought to address the inadequacy of access to an additional internal allotment by the creation of a passing bay in the right of carriageway. This passing bay, although to be appropriately counted as part of the area of each of Lots 3 and 4 as dealt with earlier, has the effect of imposing a further restriction on the area available for development on each of these lots. This reflects a poor design outcome for those allotments. 47 I am also satisfied that the restrictions on the number of internal allotments to be serviced by rights of carriageway is an integral and consistent component of the DCP's consideration of such methods of access to internal allotments. 48 I am not persuaded that the incorporation of a passing bay or the fact that the right of carriageway is partially over each of the two road frontage allotments ought to displace the desirability of consistency which would otherwise arise from following the integrated approach of the DCP. 49 For these reasons, I consider that the proposed subdivision does not satisfy cl 14(2) and is unacceptable. The Applicants are unsuccessful on this ground.

Issue 3: Inconsistency with the development pattern in Bundeena 50 Mr Smyth, in his statement of evidence, considered the appropriateness of the proposed subdivision in the context of the present subdivision pattern in Bundeena. Three passages are relevant on this point. First, he said: Examination of the Map [the zoning map attached to the LEP] reveals that the proposal for the 5 allotments would be inconsistent with the subdivision pattern of the zone and wider locality. This is because of the force fitting of an extra allotment where one less than those proposed would "fit". This factor alone give rise to a detrimental impact on what could be described as the overall level of amenity residents could expect from the existing subdivision pattern.

He also said: The scale, amenity and general character of the area is generally set by the historical subdivision pattern that has guided the development and established the townscape of the locality, in terms of spaces between dwellings, access, lot sizes and landscape patterns. In the case of the subject land the subdivision pattern in the locality suggests that a 4 lot development would "fit" into the locality without strains on all round amenity that would occur by forcing a 5 lot subdivision into the subdivision pattern.

Finally he said: It would be possible to physically place the dwellings on each of the proposed allotments although great care would be required to ensure the neighbours' amenity was protected if this was indeed possible. 51 Consideration of Mr Smyth's evidence in this regard needs to be tempered by the fact that he reached these conclusions after concluding that Lots 3 and 4 did not comply with the minimum allotment size - a proposition I have rejected. 52 However, his criticisms were also based on the present pattern of subdivision and not merely on his belief that the minimum sizes were not met. He was asked, during his oral evidence, if the proposed amended layout would meet these concerns - being what he described as a major reservation. He indicated that the position was improved but the revised proposal was still not acceptable, as it required the imposition of a fifth allotment that was out of character with the prevailing subdivision pattern. 53 In response to Mr Smyth's criticisms, the Applicants submitted that the Bundeena subdivision pattern was changing. They instanced a subdivision of an original allotment on the south-eastern corner of the intersection of Scarborough Street and Bernie Street into two allotments of approximately 350sq m. This subdivision was seen during the course of the view. The Applicants also argued that this was not a criticism made at any of the stages during the Council's assessment or determination processes. 54 The Council essentially adopted Mr Smyth's evidence.

Finding on Issue 3 55 This issue raises the question of whether cl 30(a) and cl 30(c) of the LEP are satisfied by this proposal.

56 Mr Smyth was equivocal about whether the provisions of cl 30(a) of the LEP, requiring consideration of the impact of the proposed development on adjoining properties, open space and loss of sunlight, views and privacy, are likely to be able to be met. In his view, there was a paucity of information for the necessary assessment but he also accepted cl 30(a) may be able to be met. 57 Mr Smyth's principle basis for rejection of the pattern comes, I infer, from cl 30(c) of the LEP which reads: (c) the cumulative impact of successive development on the general character of the neighbourhood 58 The starting point for my consideration is the general subdivision pattern depicted for the zone in the relevant Zoning Map attached to the LEP. It shows that, in this area of Bundeena, there is no subdivision that would resemble that which is proposed by the Applicants. While there are a number of internal allotments in the vicinity of the proposal, meaning properties without street frontage, such internal allotments are comparatively rare in the zone. No other internal allotments are like this subdivision where the internal allotments are two deep rather than one. 59 A consideration of the subdivision pattern on the LEP map shows that the nature of the proposed development is alien to the general character of the neighbourhood. This is also clear from the observations of the Court on the view.

60 The Applicants' submission about the changing pattern of subdivision as demonstrated by the property at the intersection of Scarborough Street and Bernie Street does not assist me for two reasons. First, the Applicants did not give evidence of the timing of or controls applicable to this subdivision. Second, the two allotments created were both street frontages unlike the additional allotments proposed in the present application. 61 This proposal has not demonstrated that the provisions of cl 30(a) of the LEP can be met. There is potential for the placement of housing in this location to substantially reduce the amenity impacts on existing neighbours.

62 I consider the proposal warrants refusal under cl 30(c). Clearly successive developments such as this will have a significant negative cumulative impact on the general character of the neighbourhood. At present the Bundeena neighbourhood enjoys a high degree of amenity and privacy, in part as a result of the present pattern of subdivision. The overall subdivision pattern has not been altered in the manner proposed by the Applicants in the present instance.

63 I am satisfied that none of the material provided by the Applicants gives any cogent reason for permitting a development which is so out of character with the general character of the neighbourhood. For these reasons, I accept the evidence of Mr Smyth and conclude that the proposal should be rejected on this basis. The Applicants are unsuccessful on this ground.

Issue 4: Draft Sutherland Shire Local Environmental Plan 2004 64 It is clear that the allotments proposed would not satisfy the minimum site area provisions of the draft 2004 LEP for subdivisions in this zone, assuming these are gazetted and not amended. If the draft 2004 LEP is gazetted the minimum allotment size for this site would be 850sq m for street frontage allotments and 1000sq m for internal allotments. The draft 2004 LEP also provides that a minimum allotment width of 18m and a minimum allotment depth of 27m would be required. The weight (if any) to be given to the relevant provisions of the draft 2004 LEP depends on the extent to which the draft 2004 LEP can be regarded as imminent and certain in the assessment of this proposal.

65 During closing submissions, I was taken to a number of decisions of the Court (including one of my own) where decisions were made during 2004 as to what weight should be given to the draft 2004 LEP. It is clear from the evidence which is before me in this case that the status of this document is in a state of flux at the present time. As a consequence, I have concluded that it is not fruitful for me to undertake a comparative analysis of those earlier decisions - decisions which came to a variety of conclusions on the imminence and certainty of the draft 2004 LEP.

66 Under the circumstances, what is required is that I determine what weight, on the basis of material now available to me, should be given to the draft 2004 LEP. In determining this, I note that the Council made the quite proper concession that the gazettal of the draft 2004 LEP is not imminent . The issue which then arises for me to determine is the extent to which I can be satisfied that the relevant provisions of the draft 2004 LEP in relation to minimum lot size can be regarded as being certain .

67 It is clear that, following commentary from the Department of Infrastructure Natural Resources and Planning ("the Department") embodied in a letter of 4 June 2004, the Department has raised a number of matters that it wishes the Council to consider further.

68 It is also clear that, following the election of new representatives to the Council in March 2004, the Council and its staff have also embarked on a review process of the draft 2004 LEP. The Council's ESD Newsletter of 31 January 2005 ("the ESD Newsletter") makes it clear that the scope of this review, covering some 35 issues (including that of subdivision restrictions and allotment size restrictions), is more extensive than that which has been requested by the Department.

69 One of the 35 reports to be presented to the Council, from the list of matters nominated in the ESD Newsletter, is on Issue 15, Subdivision Standards and Minimum Allotment Sizes. A report on this topic was submitted to the Council for its consideration at a Council meeting on 29 November 2004. The report was dated 15 November 2004 and contained the recommendation to Council by the committee.

70 The committee had considered a staff recommendation that the proposed subdivision standards and minimum allotment sizes in the draft 2004 LEP be retained. The committee did not adopt this recommendation. The committee's recommendation to a meeting of the full Council was that consideration of the report be deferred for a briefing of all councillors, pending exemptions being granted by the Minister for Local Government pursuant to s 458 of the Local Government Act 1993 . This committee recommendation was adopted by a meeting of the Council on 29 November 2004 noted above.

71 This, as the Council correctly submitted, does not mean the Council has determined to reject the subdivision standards and minimum allotment sizes in the draft 2004 LEP. However, I am satisfied that the Council has, by adoption of the committee's recommendation, resolved, at least for the time being, not to endorse the subdivision and allotment size standards proposed in the draft 2004 LEP.

72 As a consequence, I am satisfied that the deferral does create an element of uncertainty as to whether or not the proposed draft 2004 LEP standards will be retained. As a further consequence, although I consider I should give some weight to the proposed draft 2004 LEP standards as they have not been expressly rejected (nor have they been questioned by the Department), I should properly discount the weight to be given to them in the circumstances of the Council's resolution of 29 November 2004.

73 Given the element of uncertainty which attends the draft 2004 LEP, and given that I have concluded elsewhere that, when tested against the present subdivision pattern in Bundeena, the proposal is unacceptable, the draft 2004 LEP's provisions merely fortify this decision. 74 In addition, the Applicants submitted to me that the provisions of cl 21 of the draft 2004 LEP, the transitional or savings provision clause, should be regarded by me as preserving the rights of the Applicants to have the proposal considered exclusively pursuant to the provisions of the LEP. As I do not rely on the draft 2004 LEP as a basis upon which to refuse the application but merely use it for the more limited purpose noted above, I do not need to determine what the effect of cl 21 of the draft 2004 LEP might be.

Other matters raised by the residents 75 The residents raised three specific matters that are not otherwise canvassed by the Council in any detail. These are: (i) The impact of houses being erected on the site on the views to the north of houses on the south of Scarborough Street; (ii) The incremental additional demands on the access road to Bundeena and the increased safety risk of this, and (iii) The impact on neighbours of additional off-street parking demand.

76 With respect to the second point, some support was provided by the Council who suggested that the additional demand was contrary to the provisions of cl 30(g) of the LEP.

Views 77 With respect to views, it was Mr Smyth's evidence that the consequence of the slope of the land down to the north from Scarborough Street would mean that the height of the ridge line of two-storey elements of a dwelling on Lots 3 and 4 would not have any impact on views from the properties to the south of Scarborough Street. It was also his opinion that, if there were any potential impact on views by the two-storey element of a dwelling erected on Lot 5, being views which would otherwise be down the right of carriageway, that impact could be removed during the development application process for such dwelling by requiring the off-setting of the two-storey elements from that view corridor.

78 As I have concluded that the proposal is numerically compliant with the development standards contained within the LEP, I am satisfied that, adopting and applying the tests for merit assessment of view loss set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140, the impact on views, if any, would not be so unacceptable as to justify refusal of the application.

Road access 79 The residents also raised the issue of the nature of the road access through the Royal National Park to Bundeena and the incremental impact of additional houses on its capacity in an emergency such as a major bush fire.

80 This is a matter appropriate for me to consider in light of the terms of cl 30 of the LEP which requires me to be satisfied that a range of matters " have been adequately addressed by relevant documentation " in support of the application . The issue of road access is called up by cl 30(g) requiring information about " the location of the proposed development in relation to potential risks, including flooding, bush fire and other hazards " .

81 I am satisfied that the addition of a further household to Bundeena would add, very marginally, to the risks of the impact of fire on the local community. I have reached this conclusion from observation of the access road to Bundeena and the evidence of the residents concerning traffic pressures on it. 82 Commonsense suggests that, should the community be threatened by a bushfire, there would be considerable pressure on the only means of road egress from Bundeena. This pressure would be potentially exacerbated (depending on the hour of the day such an emergency situation arose) by the fact that the only alternative means of the public transport access, the ferry to Cronulla, ceases at 6.30 pm. However, I am satisfied that this minor adverse impact of the proposal would not be such as to warrant refusal. It does, however, marginally strengthen my view that the application is unacceptable.

Parking 83 There was anecdotal evidence on behalf of the residents concerning excessive parking on the street at the present time. No detailed parking survey or information was put into evidence. In the vicinity of the site, there are generous grass verges in the street. From the state of those verges observable during the view, it is likely that they are already used, to some significant extent, to supplement existing off-street parking. I am unable to assess whether the demand for visitor parking or from resident overflow from the site would constitute such an impact that the proposal is unacceptable.

Conclusion 84 I have concluded that the application should be rejected on two separate grounds. The first is that the DCP should be regarded as an integrated approach to assessment of subdivision proposals. The Applicants have availed themselves of the concessions concerning rights of carriageway in the calculation of allotment areas but are unable to satisfy another provision limiting the number of allotments to be served by such a right of carriageway. This latter failure is, in itself, fatal to the application. 85 In addition, the proposal is sufficiently out of character with the pattern of subdivision in the surrounding area that, for this reason alone, it also warrants refusal. 86 Although I have also dealt with two other matters consistent with these conclusions (the desired future subdivision pattern in the draft 2004 LEP and the marginal impact on emergency egress from Bundeena), I do not rely on either of these as a basis for refusal.

Orders 87 The Court makes the following orders: 1. The appeal is dismissed; 2. Development Application 04/1260 to subdivide two existing allotments at 7 and 9 Scarborough Street, Bundeena into five allotments is determined by the refusal of development consent; 3. The exhibits are returned.

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.

(2001) 115 LGERA 373

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Judgment (78 paragraphs)

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Cases Cited (3)