It was submitted on behalf of the applicant that I am bound by the decision of the Nooramunga Holdings Pty Ltd v Gosford Shire Council [1988] NSWLEC 9 (2 March 1988) wherein Justice Stein stated :
However in order to succeed the applicant also needs to rely upon a SEPP 1 objection in relation to do with the requirement in clause 30AAA(2)(b) of the ordinance that no more than 10% of the allotments in the plan of the proposed subdivision have an area of less than 550 square metres. It is not disputed that this is a development standard to which the policy applies. In my opinion it is both unreasonable and unnecessary for a two lot subdivision to comply. The object of the provision is obviously directed to subdivisions larger than a division of land into two lots. Indeed in this case it appears impossible to comply. No environmental detriment is done by the non-compliance with the requirements. Further compliance tends to hinder the attainment of the objects …of the Act.
50 I note that his Honor accepted that in order for the applicant to succeed a SEPP 1 objection was relied upon and the judgment is in respect of a particular application that was before his Honour at that time and not a question of law.
51 SEPP 1 is clear in that its application is in respect of the circumstances of each case where an objection is made to vary the standard and the circumstances of the specific case must be assessed when determining whether the variation to the standard should be approved.
52 In Nooramunga his Honour had a specific development application for a two lot subdivision. The provisions of SEPP 1 provide in clause 3 "This Policy provides flexibity in the application of planning controls … in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary…". In the particular matter before his Honour he found the objection should be allowed.
53 During the proceedings the planning consultants were required to confer on the underlying objectives of the standard as contained in clause 30AAA(1)(b) of the GPSO. Mr Newbold and Mr Sneddon agreed that the purpose is not expressly stated and they also agree that the 2 (a) zone objective is a useful starting point. That is to " to make provision a for the orderly and economic development of suitable land for a variety of low density housing forms which are essentially domestic in scale and which have private gardens."
54 Mr Sneddon is of the opinion that the provision only has practical effect for subdivisions greater than 10 lots so as to prevent enclaves of smaller lots in larger subdivisions. He also stated that the zone objective (a) is relevant to the purpose.
55 Mr Newbold states that the underlying purpose is informed by clauses 10(3) and 10(4) of the GPSO and he is of the opinion it.relates to:
character of site and surroundings
amenity of surrounding properties
amenity of consequent residential development.
56 In my opinion the words in clause 30 AAA are clear and unambiguous and are not qualified to relate to either 'greenfields' subdivisions or subdivisions in excess of 10 lots. I have determined that the SEPP 1 objection submitted by the applicant is not well founded and the underlying purpose is not satisfied by this particular development for the following reasons.
57 In my assessment I am not satisfied that the proposed development satisfies objective (a) of the 2(a) zone. The proposal before the Court does not provide for private gardens for either the proposed dwellings or the adjoining properties that have common boundaries with the subject site. I am not satisfied that the standard is unreasonable or unnecessary in the circumstances of this particular case and in terms of clause 7 of the SEPP the objection is not well founded.
58 The applicant in my assessment has not persuaded me that the questions provided in the authority of the Chief Judge Preston J in Wehbe v Pittwater [2007] NSWLEC 827. are met.
59 The underlying purpose is relevant to the development application. I do not agree with Mr Sneddon that it does not apply to a two lot subdivision or has no practicable application. In his SEPP 1 objection he referred to a previous case and agreed that the underlying purpose is to "satisfy the zone objective and provide sufficient area for a house and curtilage consistent with the character of the area. In my assessment this cannot be achieved in my assessment by the application before me. Exhibit 8 demonstrates that the subdivision approvals in the area do not suggest the provision has been abandoned.
60 If I am wrong and the GPSO clause 30AAA is not relevant to the application presently before the Court in my merits assessment the proposed development application also fails under section 79C(1) of the Act. In particular 79C(1)(b) "the likely impact… on the built environment" and (c) "the suitability of the site for the development".
61 I must also make the development control plans that apply to the subject site a central and focal point for my consideration and assessment of the application. In this regard the application also fails in that the proposed dwellings significantly exceed the 4 m height guideline, presenting as three-storey buildings at an elevated level above adjoining properties and this combined with the location of the primary living areas and balconies in my assessment adversely impacts on adjoining properties and is not consistent with the desired character of the area.
62 While the proposal before the Court is for the subdivision of the land and the erection of dwelling houses, it would be open for the Court to approve the subdivision only. However, I am not satisfied that the size and configuration of the lots in their context is appropriate, with or without the proposed dwellings, because the proposed subdivision is not in character with the surrounding area and because of the amenity impacts on adjoining properties as it can not be demonstrated that dwelling houses and private open space areas can be accommodated without adverse impacts.
63 The proposed dwellings on lots 11 and 12 reinforce my determination that the subdivision fails because the dwelling houses with the main open space area with frontage to Clairvoux Road is out of character with the area and the built form of the two dwellings does not provide a satisfactory relationship with the adjoining properties in terms of overlooking and the juxtaposition in particular of dwelling No. 2 to No. 5 where the rear yard of No. 5 is overlooked by 2 and 3-storey components. Similarly for No. 17 Clairvoux Road dwelling No. 2 in its design and relationship creates similar problems.
64 It is not characteristic of the area for the primary open space for the dwellings to be located in the front setback area. Furthermore, the size of the open space area is not commensurate with the size of the dwellings that is three and four-bedroom dwellings on the proposed lots. Dwelling 1 is a part two and part three 3-storey building and dwelling 2 while a 2-storey dwelling I note that the sub-floor area and height is significant which will give the appearance of a 3-storey building and in the context this is out of character with the predominant residential character that exists in the area and the desired future character.
65 For the issue of slope I do not accept that the level of the land should be taken at the top of the retaining wall for the purpose of calculating slope. While I agree with the applicant's submission that a commonsense approach needs to be taken to calculating the slope but if the slope is to be factored in at the top of retaining walls this would not be consistent with the intent of the provision. Such an approach would encourage the random erection of retaining walls that would have the effect circumventing the slope analysis required to guide the allotment size factoring in slope.
66 The retaining wall is contained fully within the subject land and not erected on the boundary, albeit close to same. With a recalculation of the sections during the hearing using the ground level it became apparent that the lines 1, 3 and 4 as detailed above produce a slope greater than 15% (16.6% to 18.3%). As a cross check I have also considered the slope of the land, although not strictly in accordance with the method provided in the DCP that is perpendicular to the contours but nonetheless, on the boundary of Dover Road with the subject site. On this analysis the slope when taken from the top of the retaining wall is slightly greater than 15% and at the ground point of the retaining wall it is close to 18%.
67 At the end of the day irrespective of whether the slope exceeds or is less than 15% the plans for the dwelling houses demonstrate that the proposed lots would be constrained because of the inappropriate relationship of the front courtyard levels with the adjoining street boundary and the relationship of the proposed dwellings with Nos. 5 and 17 in terms of their height and siting of the two footprints on the subject land.
68 From Mr Sneddon's statement at Exhibit H, Annexure G, there is a map analysis of lot sizes within a 200 metre radius. From this it can be seen, as also observed Figure 1, the majority of lots are greater than 550 square metres. Where they are less than 550 square metres, Exhibit 8 shows a history of the smaller lots and this reveals that the smaller lots were generally created under SREP 12 for dual occupancy development except for the three on the eastern side of View Drive. And other smaller lots in View Drive are in a different zone, that is 2(F). It is apparent that the smaller lots were generally created under a different planning regime.
69 The slope of the site, while not severe or extreme is nonetheless a constraint that must be factored in and having genuine regard to the DCP this requires an increase allotment size. Similarly the DCP guidance for corner lots requires an additional 50 square metres to accommodate appropriate setbacks for the built form for consistency in the streetscape while providing a developable footprint area proportional to other lots. For sites with a slope of 15% or more 650 square metres is the guideline and in the circumstances of this case the objectives are not achieved by the allotment sizes proposed.
70 The slope and context of the subject land and its juxtaposition with other dwellings and sites does not favour lots in this location below the DCP guidelines if the overall character and urban design objectives articulated, not only in the character statement of DCP 159 amendment 1 cited above, but the objectives of specific provisions for example height and scale and in DCP 155 to provide adequate room for private open space and separation between buildings on separate lots to ensure privacy is retained. In my assessment the design of the dwellings proposed are not consistent with either the existing general character or desired character.
71 Furthermore, the emphasis in the applicants evidence and submissions to existing developments approved under previous controls and the more recent intrusive development, that Mr Sneddon agreed did not represent a satisfactory outcome, do not support approval of the application before me. The approval of this application is not justified on this basis and it could be a precedent and cumulatively this would serve to undermine the intent and direction of the current planning regime.
72 In my merits assessment of the proposed development I have had regard to all the evidence to the Court including that of the experts, both written and oral, the architectural and landscape plans and I have been informed by the site inspection. I have concluded the proposal does not warrant approval because the lots are not of a sufficient size to accommodate dwellings without creating adverse impacts on the streescape and adjoining properties by reducing the privacy and amenity of same by the erection of dwellings that present as 3-storeys because of significant sub floor areas. The objective of the zone for dwellings to be in scale and with private gardens is not satisfied in particular the design that relies on private open space within the front setback area is not consistent with the character of the area and would be an undesirable precedent.
73 My assessment concurs with council's officers report and I prefer Mr Newbolds evidence to that of Mr Sneddon's on this occasion. I agree with Mr Newbold's general analysis including his comments that:
- Non-compliant top storeys are indicative of excessively-tall exterior walls which contribute to inappropriately-scaled buildings.
- Due to elevation of the proposed dwellings above neighbouring properties, combined with the location and primary orientation of living areas, which are the inevitable consequences of proposed allotment sizes and dimensions.
- Due to limited allotment dimensions, the primary areas of sunlight private open space are provided as built-up terraces within the Clairvoux Road… retaining structures or walls which would not be consistent with the informal landscape character of sloping street setbacks with areas of open turf and trees.
- Also, the configuration of proposed allotments result in a significant departure from this street-block's established built-form pattern, with dwelling 2 located in an area that is traditionally occupied by backyards and as a consequence, overwhelming the backyard of No. 17 Dover Road.
74 My merits assessment confirms that the application is not worthy of approval even if I am wrong that the SEPP 1 objection should not be allowed because it is impossible to comply with the relevant standard in the GPSO for a two lot subdivision. As for all SEPP 1 objections the standard is capable of being satisfied for other applications less than 10 lots with a reduced area if it can be demonstrated that the underlying objectives of the standard can be satisfied.
75 Accordingly from my assessment above the formal orders of the Court are:
1. The appeal in respect of the property known as No. 3 Clairvoux Road, Wamberal is dismissed.
2. The State Environmental Planning Policy No. 1 objection to vary clause 30AAA of the Gosford Planning Scheme Ordinance is not allowed.
3. The development application submitted to Gosford City Council is determined by the refusal of consent.
4. The exhibits are returned to the parties.