Carbone v Camden Council

Land and Environment Court (NSW)|2015-05-19

Solicitors: Barclays Law Group (Applicant) Sparke Helmore (Respondent) File Number(s): 10922 of 2014

Introduction

This is an appeal against refusal by Camden Council of Development Application 487/2014 (DA) for a subdivision to create 4 residential lots and associated site works at 25 Elizabeth Macarthur Avenue, Camden South ("the site").
The proposed subdivision would create 4 Torrens title lots ranging in size from 600m² to 924m², with nominated building envelopes on three of the lots (proposed Lots 50, 51 and 52) and retention of an existing house on the fourth lot (Lot 53), relocation of an existing driveway, and associated works. Up to 2 trees would be required to be removed to facilitate the subdivision and potentially a further 6 trees to facilitate subsequent development of dwellings within the nominated building envelopes. A total of 23 trees would be retained.
The site is located on the south east corner of Elizabeth Macarthur Avenue and Bowman Avenue in an established residential area referred to as the Elizabeth Macarthur Estate which is in close proximity to two significant heritage items: Camden Park and Belgenny Farm. The site is identified as Lot 156 DP 31361 and has frontages of 36.12m to Elizabeth Macarthur Avenue and 54.4m to Bowman Avenue with an overall area approximating 2,879m². The site currently contains a single storey dwelling and carport (accessed from Bowman Avenue) as well as 26 mature trees.

Summary of the Position of the Parties

Mr Hale, Counsel for the Applicant, made three points which he considered key considerations for this appeal namely: 1. that the application is for subdivision only, not for subsequent development of dwellings on each of the new lots which would be the subject of separate approvals and would need to demonstrate compliance with CDCP objectives and controls. Notwithstanding this, the Council's grounds for refusal primarily related to the potential non-compliances and impacts of the future dwellings which may or may not be developed on the proposed lots in the manner envisaged by the Council; 2. related to issue 1, that the grounds for refusal essentially related to minor non-compliances with CDCP controls, which should be guiding controls only and which were unrelated to the subdivision itself. The building envelopes, which the Council required the Applicant to designate on the subdivision plan, were indicative only and the setbacks to Elizabeth Macarthur Avenue and Bowman Avenue of 12m and 9m respectively were those advised in writing by the Council to be appropriate. In any event, the requirement for envelopes of lot sizes above 450m² was neither prescribed by the Council's planning instruments nor definitive in terms of the final form of development that may occur on the subdivided lots were they to be created; and 3. Whilst the area had historically been developed at a low density with dwellings well setback on large (900m²+) landscaped lots, the Council's LEP by permitting minimum 600m² lot sizes in the area facilitated the form of infill development envisaged by the development. Such lot sizes would inevitably change, and were already changing, the character of the area. Development which met this CLEP minimum lot size standard could not be refused for minor CDCP non-compliances which by their nature had the effect of precluding subdivisions in the manner facilitated by the CLEP.
In contrast, Mr Drury for the Council argued in essence that: 1. notwithstanding the CLEP minimum lot size compliance, the lot size was a minimum and not a right and the merits of the subdivision still had to be considered in accordance with the objectives for the area and the CDCP controls; 2. The subdivision would facilitate the future development of three additional dwellings (four overall) where currently there was one, resulting in a development density out of character with the low density and relatively unique nature of the estate in which the development was proposed; 3. To ensure the development met the CDCP objectives for subdivision in established residential areas, the Council could reasonably require building envelopes to be nominated for lots greater than 450m² where there was a concern that development of any particular site could have adverse environmental impacts as was contended in this instance given the loss of trees and the landscaped context. In this regard, both the subdivision itself and future dwelling construction on the lots created would result in the loss of established trees and in future dwellings being closer to both streets than were generally prevailing in the immediate vicinity or permissible under the CDCP; 4. The Council had concerns about the amenity for future residents of dwellings existing and constructed once the subdivided lots were created; and 5. The Camden LGA was doing its 'fair share' of providing smaller lots for residential development in areas more appropriate to accommodate 600m² lots in terms of landscape and streetscape context.

Lot Size

It was agreed by both parties that all lots met and in fact exceeded the minimum CLEP lot size of 600m² if it was determined that Lot 50 was 'rectangular' in shape. Lot 50 is 639m² in area. The CDCP requires irregular lots to have a minimum area of 700m².
Mr Hale put to the Court that the provision for a larger lot sizes for lots that are not rectangular in shape is to preclude a lot which 'is so irregularly shaped so as to give rise to difficulties for residential development. It is not concerned with a lot in which one of the corners is not precisely 90 degrees'. Mr Hale conceded that none of the corners were in fact 90 degrees but argued that Lot 50 was broadly rectangular in shape and gave rise to no adverse impacts in terms of the development potential of the lot for residential development.
Mr Weston also argued that Lot 50 is of a' rectangular shape' and took the Court to examples within the Camden LGA and the locality where the Council had approved subdivisions with lots shaped similarly to Lot 50 and referred to these as 'rectangular lots'. Furthermore, in his view, the lot could be redesigned to be strictly rectangular and reduced to a minimum of 600m² but this would be an inferior outcome to a larger lot as was proposed which was only slightly irregular.
Mr Hardy argued that Lot 50 is not rectangular by definition and therefore must be categorised as an irregular shaped lot and the lot size therefore does not comply with the CDCP. The size, location and configuration of Lot 50 was such that developing the lot would be challenging if tree removal was to be minimised and amenity for future residents retained.
In considering this issue, the Court was cognisant of the pre-eminent position of the CLEP as the defining environmental planning instrument and the fact that it permits subdivision in this area to a minimum of 600m². In the estate in which the development is proposed, such a lot size is generally not in keeping with the traditional and majority lot sizes of the area and in order to be realised will invariably impact to some extent on existing landscaped settings and streetscapes. It is evident that this is already occurring in the area and, whilst the CLEP continues to permit 600m² lots and subdivisions are proposed which generally meet CDCP controls (except where to achieve them is counter to the CLEP's intent), such developments will continue to occur notwithstanding the understandable concerns of the local residents about the resultant changes to their area.
I am therefore satisfied that, at least on the issue of minimum lot size, the development complies with the CLEP and CDCP objectives and that Lot 50 can not reasonably be argued to be an irregularly shaped lot. There is sufficient precedent of the Council approving lots less than 700m² where the lots are not technically rectangular and Lot 50 meets the 'regularity' objective of the CDCP in that it is sufficiently dimensioned to readily facilitate a future dwelling which could be designed to retain the majority of trees on the lot and provide amenity for future residents. I do not therefore consider the size of any of the proposed lots to be grounds on which the application should be refused.

Lot Depth

It was agreed by the parties that all lots comply with the minimum CDCP lot depth requirement except Lot 50 which has a depth from the northern boundary of only 22.2m where the CDCP requirement is for a minimum depth of 27m.
Mr Weston argued that Lot 50 has a depth of 27m to the southern portion and therefore the control is met at this boundary. Furthermore, the width of the lot is 26m which exceeds the minimum CDCP width requirement of the lot at the building line and the lot size is adequate to provide satisfactory setbacks, maintain site features, and provide a usable building space and opportunities for landscaping. Compliance with the minimum depth could be achieved by partial demolition of the patio of the existing dwelling on Lot 53, however this is not considered by Mr Weston to be reasonable as, in his view, the objectives of the CDCP have been satisfied.
Mr Hardy stated that all other lots in the local area readily comply with the CDCP minimum lot depth requirement and the non-compliance with minimum lot depth would therefore be out of character with the prevailing settlement pattern. In addition, the non-compliance creates challenges with providing building setbacks and suitable building separation with adjacent development, which in turn creates challenges for the provision of acoustic and visual privacy. If the lot was developed in accordance with the nominated building envelope, the rear setback would only be 4m and it would be difficult to design a dwelling which would enable a vegetated rear yard. The parties disagreed on whether the rear yard would be readily visible from the adjoining streets.
Mr Hardy did accept that the subdivision could be redesigned so that Lot 50 met the CDCP control of a minimum lot depth whilst still achieving the minimum lot size but couldn't conclude if this would be a more desirable outcome.
The minimum lot depth CDCP compliance issue applies to Lot 50 only and is result of the desire to maximise the front setback to Bowman Street at 9m and to retain the existing dwelling on proposed Lot 53 which is at the rear of Lot 50, and provide a reasonable setback for that dwelling from proposed boundaries. The resultant lot configuration is such that it would promote the development of a dwelling on Lot 50 which is wide rather than deep in its presentation to Bowman Avenue. It is noted that this is the situation with the existing dwelling directly opposite proposed Lot 50 in Bowman Avenue (No. 9 Bowman Avenue) which, albeit it is a corner lot with its street frontage technically to Elizabeth Macarthur Avenue, in fact has a Bowman Avenue street address and presents as a wide dwelling to Bowman Avenue at only a minimum 3.6m setback from that street.
I am therefore satisfied that the non-compliance with the lot depth CDCP provision for Lot 50 is minor and that, as with my finding on the previous contention, there is sufficient area on Lot 50 to design and develop a future dwelling with adequate amenity for future residents of that dwelling. I therefore do not consider the depth of Lot 50 to be a reason to not allow the subdivision.

Building Envelopes

Before turning to the other matters of concern to the Council, it is relevant to consider Mr Hale's argument that the previously considered two contentions are the only contentions directly related to the actual subdivision the subject of the DA. In his view, the remaining contentions relate to concerns with the form of development that may arise from future development within the nominated building envelopes on the lots should they be created and are therefore not appropriate to be addressed in this appeal. Mr Drury was however, of the view that it is appropriate to consider the location and likely form of future development that creation of the lots would facilitate as it is inevitable that creating the lots will result in the development of three additional dwellings on the site and there will be limitations on their design and unavoidable consequences for the streetscape and the area as a result.
For the above reasons, if the application was to be approved by the Court, the Council sought a proposed condition of consent, namely condition 5.0 (10) (Exhibit 5), requiring that a Section 88B instrument be prepared which included, inter alia; easements for services; restricting future development on the lots to the nominated building envelopes shown on the DA plans; precluding fencing in front of the building setbacks; and stipulating particular structural design and construction details for any dwelling adjacent to Tree 5 (as designated on the DA plan) to protect that tree.
Mr Hale objected to the imposition of a condition requiring a section 88B Instrument and referenced a number of cases that have been dealt with by this Court on use of such instruments. His concern was that the instrument would have the effect of restricting the Council in considering future development applications for dwellings on the lots on the basis of the merits of the application.
Mr Drury stated that the Council has imposed similar s.88B conditions on other subdivisions and that such a condition was important to ensure that commitments by the Applicant to the Council and to the neighbours that the subdivision had been designed to minimise tree loss had to be 'carried through' to the future development of the created lots. Further that the future dwellings on the lots could be approved by a certifier as complying development without the need for a DA to be lodged with the Council. Therefore, without the s.88B restriction on Titles, there would be no ability for the Council to ensure the tree retention or street setbacks that the Applicant relied on to gain support to the subdivision. Mr Hardy also expressed these reservations.
On this issue, I accept that a condition requiring a section 88B instrument is not unreasonable or inappropriate in the circumstances and that it is an instrument able to be used for this purpose. As will be seen in following contentions, the Applicant relies significantly on the support of Council officers in advancing the case for approval of the subdivision notwithstanding some CDCP non-compliances and this support was clearly on the basis that future dwellings on the site would be confined to the building envelopes thus minimising tree loss and maximising front setbacks to the adjacent streets. The instrument does not preclude the Council from determining future DA's that may be received for dwellings on the lots on the basis of merit as Mr Hale contends but only specifies the envelope in which they must be located unless the instrument is removed or modified. The CDCP may always require building envelopes for lots under 450m² but it does not preclude building envelopes being also required to be designated for larger lots if they are considered necessary by the Council to demonstrate the CDCP objectives for the area in which the subdivision is proposed can be met. If Mr Hale's arguments are correct on this issue, the controls in many Council's DCP's requiring building envelopes to be designated for future dwelling locations on subdivision plans as a pre-requisite for gaining approval would have no effective means of enforcement given building envelopes are not works undertaken in carrying out subdivision per se. In my view therefore any approval for this subdivision should reasonably be conditioned to require future dwellings to be confined to the building envelopes nominated on the DA plans, unless those envelopes are subsequently modified with the agreement of the Council, or the section 88B instrument removed.

Tree Loss

The Camden DCP contains objectives and controls for landscape design which operate to require existing trees to be retained where they provides aesthetic values or contribute to the landscape character of the area. A total of 26 trees are located on the site and a further 5 are on adjoining sites and could potentially be impacted upon by construction works on the site.
Mr Hardy stated that the site currently provides numerous trees that contribute to the visual amenity and character of the local area. In his view, development of the site including within the proposed building envelopes could cause the removal of up to a total of 16 trees due to development being sited within the canopy and root zones of trees that were proposed to be retained. This would adversely impact upon the landscape character of the local areas and is not consistent with the requirements of the CDCP.
It was argued by the Applicant that the DA was not for the dwellings on the lots but only for the subdivision of the land with development of dwellings being the subject of future applications. The subdivision itself would result in the removal of only 1 tree which was required to accommodate the driveway relocation and possibly a second tree to accommodate lot boundary delineation. It was conceded by the Council's experts that it could not be confirmed whether other trees would need to be removed until approval was granted for future development of each of the created lots. However, it was generally conceded by the experts that, if development was undertaken within the nominated building envelopes, at least 8 additional trees would be lost. A total of 16 trees on the site would therefore remain.
The Applicant argued that the development had been designed to minimize tree loss and had been the subject of an Aborist's report to assist in the design process. This action was supported by Council's Director of Planning in her report to Council which states that, "The indicative building envelopes are suitably sited on the proposed lots to minimise the loss of the most significant trees on the site and are acceptable".
Of the 16 trees remaining, there are 11 trees within the front setbacks of Lots 50, 51 and 52 which will remain. The other 5 trees should be retained if dwellings are developed in accordance with the building envelopes as they are located in the proposed rear yard areas of Lots 50, 52 and 53. During construction of the development, the Applicant committed to install and maintain appropriate tree protection measures to overcome Mr Hardy's concern that up to 16 trees could be lost during construction if not protected. Protection proposed by the Applicant included fencing, mulching and irrigation in accordance with the Arborist's recommendations to retain these trees. These requirements are contained in a proposed condition of consent should the appeal be upheld.
The existing landscaped area will be enhanced by the introduction of landscaping to each of the proposed lots and, in Mr Weston's opinion, this and the retention of 16 of the existing trees will ensure the character of the local area is maintained.
The Court agrees that a feature of the site which is of value to the streetscape and the neighbours and is part of the character of the area is the number of mature trees the site contains. The existing dwelling on the site is well set back from both streets and largely screened by the trees. It is the case that the subdivision itself will only require the removal of one or at most two of these trees. It is because of the concern at the potential impact on the streetscape and on the character of the area associated with the loss of trees and the location of the dwellings constructed once the lots are created that the Council required building envelopes to be nominated. Council officers required these envelopes to be setback respectively 12m to Elizabeth Macarthur Avenue and 9m to Bowman Avenue primarily so that the setbacks are more respectful of prevailing deeper street setbacks in the area but which, as a consequence, means that the majority of trees on the site will be retained, and be in the front setbacks which will assist with screening existing and future dwellings on the site.
In my view, the loss of some trees is inevitable to facilitate any subdivision of the lot and the proposed subdivision, by requiring only 2 of the 26 trees to be removed, is an acceptable impact. I do accept however, the Council and neighbours concerns that the subdivision will create a right for dwellings to be constructed on the created lots in the future and that the construction of these dwelling will result inevitably in the loss of further trees. For this reason and given the unique treed characteristics of the site and the estate, I agree it is a reasonable requirement of the Council to confine future development on the lots to the nominated building envelopes, and to condition any approval to protect the remaining trees outside these envelopes to ensure overall that tree loss is minimised and confined to a maximum of 8 trees as is argued by the Applicant in support of the subdivision.
I now turn to the remaining contentions which directly relate to the building envelopes proposed.

Front Setbacks

The subject site is situated on the corner of Elizabeth Macarthur Avenue and Bowman Avenue. The creation of 4 lots on this corner will invariably result in the construction of at least 3 new dwellings which would all have setbacks to the respective streets that are less than the front setbacks of the majority of the existing dwellings in the existing Elizabeth Macarthur Estate. It was this issue of the close proximity of a number of new future dwellings to the two streets, as well as the potential tree loss arising as a consequence of the subdivision, that was arguably of most concern to the Council and the neighbours who objected to the DA.
The evidence on setbacks presented to the Court by the Planning experts assumed dwellings would be constructed within the nominated building envelopes for Lots 50 to 52 and that the existing house would be substantially retained on Lot 53. In this regard, the experts agreed that the CDCP requires all setbacks to be consistent with the prevailing setback established by existing adjacent development. Also that the prevailing setback is calculated as being the average distance of the setbacks of the nearest two dwelling houses having a boundary with the same primary road. It was also agreed that there is some planning merit in decreasing the required setback to Bowman Avenue in certain circumstances. The experts did not however agree on what the required setbacks should be other than agreeing that the existing house to be retained on Lot 53 met the minimum front setback requirement.
Clause 2 of section 2 - Residential Development of the CDCP provides, in part, specific detail for calculating setbacks as follows: "…all setbacks shall be consistent with the prevailing setback established by existing adjacent development. The prevailing setback is calculated as being the average distance of the setbacks of the nearest two dwelling houses having a boundary with the same primary road".
The CDCP defines how the different boundaries of corner lots (ie proposed Lot 51) are determined by noting: "In the case of (a) corner allotment, the primary street frontage is taken to be the boundary which is the shorter of both frontages. The rear setback is taken to be the opposite boundary to the primary frontage".
Mr Weston considers that, in calculating the prevailing setback it is important to note that the calculation is based on the average distance of the nearest two dwelling houses having a boundary with the same primary road. It was his contention that the boundary can be a side boundary, ie. it does not necessarily mean a front boundary to the primary road. The nearest dwelling can also be on the opposite rather than the same side of the street. Mr Weston provided a plan titled Existing Prevailing Setbacks Plan (Exhibit E) which showed the street setbacks of dwellings proximal to the site.
Mr Hardy did not accept that dwellings with a secondary street setback could be used to determine the prevailing setback required to the street. He argued that front and side setbacks provide different roles in the definition of local character and therefore to not appropriately distinguish between the two when determining the prevailing setback will not allow for achievement of the relevant CDCP objectives. In essence, the Council argued that, in establishing the 'prevailing setback', only front setbacks to primary streets, as defined by the CDCP should be used to determine the required front setbacks for the proposed lots.
In Mr Hardy's view, the front setback of residential development is the most visible element of the urban form and as such can have a significant impact upon the streetscape and character of an area than other controls. Accordingly, variations to the prevailing front setbacks have significant potential to adversely impact upon the character of local areas. In his view, the development proposes significant variations to the front setback requirements to both Elizabeth Macarthur Avenue and Bowman Avenue. Accordingly, the insertion of three new dwellings into the streetscape, with non-compliant front setbacks, will have a significantly adverse impact on the streetscape and prevailing settlement pattern of the local area.
For each of the three undeveloped proposed lots, the Planning experts argued front setback compliance for future dwellings (and therefore the building envelopes) as follows: 1. Lot 50 has frontage to Bowman Avenue only. In Mr Weston's view, the required setback to Bowman Avenue is calculated using the setbacks of 14 Bowman Avenue and 9 Bowman Avenue which are the two nearest dwellings to the proposed lot which have a boundary to Bowman Avenue. They are setback 11m and 3.6m respectively to Bowman Avenue. This sets the required front setback for Lot 50 to Bowman Avenue as 7.3m whereas a front setback of 9m to Bowman Avenue is provided therefore satisfying the CDCP requirement. Mr Hardy argued that the nearest two dwellings with a primary or front setback to Bowman Avenue are 10 Bowman Avenue (11m setback) and 8 Bowman Avenue (10m setback) meaning the development would require a front setback to Bowman Avenue of 10.5m to comply. The development only provides a front setback to Bowman Ave of 9m and therefore does not comply. 2. Lot 51 is on the corner of Elizabeth Macarthur Avenue and Bowman Avenue. Mr Weston considers that the front setback should be calculated from Bowman Avenue using the setbacks of No.'s 9 and 10 Bowman Avenue (3.6m and 11m respectively which provides a required setback of 7.3 metres compared to a provided setback to Bowman Avenue of 9m. On this argument, Lot 51's secondary street setback (or side boundary) is to Elizabeth Macarthur Avenue with that setback calculated using the secondary setbacks of 10 Bowman Avenue (6m) and 9 Bowman Avenue (14m) setbacks to Elizabeth Macarthur Avenue respectively to determine a required setback of 10m as opposed to a provided complying side setback to Elizabeth Macarthur Avenue of 12m. Mr Hardy argued that, using the CDCP determination of primary street determination for corner lots, Elizabeth Macarthur Avenue is the shorter frontage and therefore has to be the primary street in which the front setback for Lot 51 has to be calculated and setbacks to Bowman Avenue cannot be used to determine the prevailing front setback. Furthermore, Mr Hardy argued that the house to be retained on Lot 53 would represent one of the two adjacent dwellings as defined by the CDCP and therefore should be used to calculate the prevailing setback. Under this scenario, the nearest two dwellings with a primary frontage to Elizabeth Macarthur Avenue are 25 Elizabeth Macarthur Avenue (30m setback) and 9 Bowman Avenue (18m setback) therefore development would require a front setback of 24m to comply but only provides a 12m front setback to Elizabeth Macarthur Avenue and therefore a dwelling in the nominated building envelope for Lot 51 would not comply with the required CDCP front setback control. 3. Lot 52 - has frontage only to Elizabeth Macarthur Avenue. Mr Hardy did not specifically comment on the setback for Lot 52 but given the rationale for calculation other front setbacks he would use the setbacks of No. 9 Bowman Avenue and No. 27 Elizabeth Macarthur Avenue requiring a front setback of over 20m with only 12m proposed. Mr Weston calculated the setback using the setbacks of No. 10 Bowman Avenue (6m) and No. 27 Elizabeth Macarthur Avenue (22m) respectively as both have a boundary to Elizabeth Macarthur Avenue as the primary road, which provides a required front setback of 14m. Lot 52 provides a front setback of 12m but this 2 metre non-compliance is not considered a significant variation by Mr Weston given the diversity of existing setbacks in Elizabeth Macarthur Avenue and surrounding streets which vary from 5 metres to 21 metres. Furthermore, he argues that the objectives of the DCP are still met and he noted the Planning Director of the Council supported the variation in her report to Council on the DA for the following reasons: "The front setbacks on the southern side of Elizabeth Macarthur Avenue vary from 5 metres to 21 metres and the proposed setbacks of 12 metres will not be uncharacteristic of the surrounding area and will sympathetically integrate with the streetscape"; and "Significant trees are to be retained in the front setback area of the allotment which will conceal future dwellings" and "The building envelopes are capable to accommodating dwellings which will have minimal impact on neighbouring propositions (sic) with respect to privacy and overshadowing"; and "The objectives of the front setback controls are achieved despite the non-compliance".
In evidence, it was accepted by both experts that the applicable setbacks using the CDCP controls would depend on the timing of development of each of the created lots given that, as each lot developed or if adjoining lots were redeveloped, the applicable front setbacks would be varied and likely reduced over time. The Applicant noted by example that there was an appeal before the Court for the development of the adjoining property at No. 27 Elizabeth Macarthur Avenue which, if approved, would result in a substantially reduced setback to the existing 22m of the existing dwelling on that lot. Even if not approved it was evidence that redevelopment was occurring in the area which was resulting in reduced street setbacks over time.
The Court accepts Mr Weston's interpretation of CDCP control in determining the two nearest dwellings to be used to calculate the prevailing street setbacks for the purposes of determining the required front setback to the proposed lots; that is the dwellings can have either a primary or a secondary street setback as long as one of these setbacks is to the same primary road as that for which the setback is being calculated. The CDCP talks about having a boundary to the same primary street not having to necessarily have primary frontage to the primary street. Therefore if one or both of the nearest dwellings has any boundary with the same primary street, then its setback from that street is to be used as one of the two required setbacks for determining the required front setback for the applicable building envelope.
In terms of the front setbacks for the proposed building envelopes for each of the 3 undeveloped lots, the Court therefore finds that: 1. for Lot 50 - as I agree with Mr Weston's interpretation of which dwellings should be used to determine prevailing setbacks in calculating the required front setback, the required front setback would be 7.3m. By providing a 9m front setback, this building envelope complies with the CDCP front setback requirement. It is also relevant to note that this lot is directly opposite the dwelling at No. 9 Bowman Avenue which has only a minimum 3.6m setback to Bowman Avenue. Whilst this is argued by the Council to be a consequence of the fact that under the CDCP Elizabeth Macarthur Avenue is the front setback for this residence, the reality of the built form outcome on the site is that the dwelling has been developed across the lot to directly present to Bowman Avenue and has already established a built form reduced setback precedence for this section of Bowman Avenue. 2. for Lot 51 - this is the only proposed corner lot and I agree with Mr Hardy that the primary street for determining the required front setback under the CDCP is Elizabeth Macarthur Avenue. However, I do not accept that the dwelling on Lot 53 should necessarily be used as one of the adjoining dwellings for the purposes of determining prevailing street setbacks given it is at the rear of Lot 52 and only has battle axe frontage to the street. The setback of Lot 52, if developed prior to Lot 51, would be a relevant adjoining setback. I also agree with Mr Weston that the currently applicable closest dwellings sharing a boundary with the same primary street (Elizabeth Macarthur Avenue) are those on two of the opposite corners, namely No. 9 and No. 10 Bowman Avenue. This results in a required front setback to Elizabeth Macarthur Avenue of 10m. A setback of 12m is proposed thus meeting the CDCP requirement. Furthermore, whilst I agree with Mr Hardy's view that the front setback of residential development is generally the most visible element of the urban form and as such can have a significant impact upon the streetscape and character of an area, this is not necessarily the case for corner lots as is evident by the dwellings at No's 7, 9 and 10 Bowman Avenue, all of which adjoin the site on the opposite corners and all of which impact on one or either of Elizabeth Macarthur Avenue and Bowman Avenue by the reduced setback to one or both of these streets whether they are technically front or side setbacks. In this regard, if a dwelling was developed on Lot 51 in the designated building envelope, it would have a greater setback to Bowman Avenue than two of these adjoining existing dwellings and also a greater setback to Elizabeth Macarthur Avenue than two of these existing dwellings, indicating that the proposed setbacks for Lot 51 would not be inappropriate in context. 3. for Lot 52 - again the Court accepts Mr Weston's assertion that the nearest dwellings to a future dwelling on Lot 52 and which share a boundary with the same primary road (Elizabeth Macarthur Avenue) are No. 10 Bowman Avenue and No. 27 Elizabeth Macarthur Avenue resulting in a required setback of a future dwelling on Lot 52 at 14m under the CDCP controls. A setback of 12m is proposed thus not complying with the CDCP. However, as I have already determined that a 12m front setback for a future dwelling on the adjoining Lot 51 to Elizabeth Macarthur Avenue is appropriate, I also conclude that it is not inappropriate for such a setback to also apply to Lot 52 particularly given both Lots 51 and 52 directly front the side elevation of No 10 Bowman Avenue which is setback at its minimum only 6m from Elizabeth Macarthur Avenue. Furthermore, excluding the battleaxe access leg to Lot 53, Lot 52 adjoins a site fronting the same street on the same side which is the subject of an appeal before the Court for substantially reduced setbacks to that of the existing dwelling on the site (No. 27 Elizabeth Macarthur Avenue). Even if the current development proposal for that site does not eventuate it is likely that future development proposals will seek a significantly reduced front setback to that applying to the existing dwelling at No. 27. Finally, if Lot 51 were developed ahead of Lot 52 at a setback of 12m from Elizabeth Macarthur Avenue the revised required minimum front setback to Elizabeth Macarthur Avenue would be further reduced to only 9m although this would depend on the proximity and front setback of the development that existed at No. 27 at the time. On balance, for the reasons outlined above, the proposed non-compliance with the CDCP front setback of the building envelope on Lot 52 is considered to be minor and supportable as it will have no material impact on the streetscape given the development existing and proposed in the immediate vicinity.

Scale, Density and Character of Development

Section C2 of Camden DCP provides the following relevant objectives for subdivision in established residential areas: "Lot size shall be adequate to provide setbacks, maintain site features and provide a useable building space and a pleasant living environment. Design lots with consideration to their orientation, slope and shape to maximise solar access for energy efficiency and healthy living environment. Create a sense of openness and to allow for solar access subject to house orientation".
Mr Weston argued that the subdivision met the CDCP objective of allowing for a range of housing and lot sizes. Furthermore, he considered that the character of the area is undergoing change as the large lots provide opportunity for subdivision with Council's minimum lot size of 600m². The Council has approved a two lot subdivision at 28 Elizabeth Macarthur Avenue and there is a proposal before the Courts for the adjoining property at 27 Elizabeth Macarthur Avenue to be developed for Seniors Living with a substantially reduced front setback to that which currently exists. He argued that the proposed lot sizes are comparable with other subdivided lots in Camden South approved under the provisions of the Camden LEP and the previous planning instrument Camden LEP 46 and provided a plan showing this (Exhibit D).
The proposed subdivision is for the creation of three additional lots on a corner site with two street frontages. Therefore, Mr Weston argued that the impact on the streetscape will be minimised with Lots 50 and 51 having driveway access onto Bowman Street, Lot 52 having frontage and access to Elizabeth Macarthur Avenue and Lot 53 accessed via a Right of Carriage Way off Elizabeth Macarthur Avenue. Mr Weston further noted that Council's Planning Director in her report to Council stated that "The proposed development is compliant with the minimum lot size requirement of the LEP and will create 3 additional lots will provide additional low density housing opportunities for the community. The proposed development is considered to be consistent with the existing character of the area which comprises a mix of lot sizes, widths, depths and orientations".
It was the Applicant's argument that the proposed scale and future built form of dwellings on the proposed lots will mirror the changing lot patterns and character of the local area with the proposed lot sizes providing adequate setbacks to maintain site features with the retention of 16 of the most significant existing trees on site. Furthermore the building envelopes for the three new lots will adequately accommodate the allowable site coverage and any future residential dwellings will provide appropriate fencing and landscaping in accordance with Council's development standards to provide both privacy and security.
However, Mr Hardy did not accept that the area is undergoing change stating that the other recent subdivisions identified in Exhibit D are generally well removed from the subject site with the only nearby subdivision at 28 Elizabeth Macarthur Ave a battle-axe subdivision which would therefore not result in a changed streetscape or local area character. The site is in an established residential area that remains characterised by detached single dwellings sited on large lots, with open front gardens and large, open, curtilages that accommodate mature trees providing vegetated foregrounds and backdrops to the built forms. He notes that the immediately adjacent lots have areas of at least 900m² and often well over 1000m² including lots with a frontage to Elizabeth Macarthur Avenue which are typically above 1000m². Furthermore, Mr Hardy argued, the development proposes four lots, all of which are less than the scale of adjacent development and two of which (Lots 50 and 52) are of scale that are considerably smaller than that of adjacent development, being approximately half the area of the prevailing lot size.
The Council contends that allowing 4 lots smaller than the established settlement pattern will adversely impact the character of the local area with the subsequent built form development of the three new lots disrupting the prevailing relationship between built forms and open spaces areas that define the settlement pattern or character of the local area. This analysis of the urban form is demonstrated graphically in an attachment to the Joint Expert Planning Report (Exhibit 3) which shows that the development will facilitate four dwellings located in close proximity to each other with relatively little building separation when compared to the prevailing settlement pattern.
In Mr Hardy's view, the scale and density of the development does not contribute to a sense of openness as required by the CDCP and the limited size and configuration of the lots does not allow for the retention of vegetation which is a significant natural feature of the site and also contribute to the local character. There is limited opportunity to provide pleasant living spaces given the proposed lot size and layout and proposed setbacks. Boundary fencing would likely be erected along the corner frontages having a significant adverse impact on the local character.
The Court accepts that, whilst there has been some other infill subdivision and development in the local area, the resultant lots are generally larger than 600m² and are predominately greater than 700-800m². Furthermore there are no other lots in close proximity to the site that have a minimum of 600m². However, there are dwellings which have been constructed on setbacks of less than those proposed for the building envelopes indicated for the subdivision in both Bowman Avenue and Elizabeth Macarthur Avenue immediately adjacent and in close proximity to the site. As has already been determined, the vast majority of trees on the site will not be removed but will be retained in front setback areas to assist in screening future dwellings. The dwelling to be retained on Lot 53 will be screened by future dwellings on the other 3 lots and only two lots are close to or at the minimum of 600m² with the other two lots being more typical of infill development occurring in the estate at 714m² and 924m² respectively.
It is not known what exact form the future dwellings on the created lots will take. Purchasers of the lots will be aware of the proximity of adjacent development. They may choose to maximise development resulting in two storey dwellings across all of the envelopes. Conversely however, one or more may choose single storey development or dwelling designs which retain trees within the envelopes that are assumed by this DA to be removed in the future. With proposed conditions of consent which will: restrict development to the nominated building envelopes which have setbacks to the streets which are generally greater than those of the existing dwellings opposite and which protect and supplement the existing trees outside the building envelopes and which are not required to be removed by the subdivision works, on balance there are not sufficient grounds to refuse this application on the basis of the scale, character or density of development.

Open Space and Visual and Acoustic Privacy

These issues relate to the potential impact of future dwellings on the created lots in terms of open space and visual and acoustic privacy. I agree with the Applicant that they are not matters that need to be or indeed can be resolved as part of this appeal which refers to the subdivision only and does not propose the construction or design of future development on the created lots. However, it is worth noting the issues raised by the parties in order to determine if the building envelopes proposed are sufficiently sized, configured and located to enable future dwellings to be constructed on them.
In terms of open space, the Planning experts agreed that the CDCP requires residential development to provide a high level of residential amenity through the provision of opportunities for outdoor recreation and relaxation with good solar access. Accordingly, each lot is required to provide a minimum of 20% of the site area as useable private open space. Furthermore, the CDCP requires that at least one principal living area of a dwelling must face predominantly north.
Mr Hardy stated that the CDCP requires useable POS to be provided behind the building line. Therefore POS areas located in front of the building line should not be used in calculations. On this basis, Lot 51 provides only 12.3% of useable private open space and Lot 52 only 13.3%, therefore failing to achieve the minimum 20% required by the CDCP. Furthermore, the Council was concerned that the configuration of the proposed building envelope and driveway for Lot 51 would compel a garage to be sited in the northern elevation. Therefore, a dwelling sited in the proposed envelope for Lot 51 would not be able to achieve the requirement that at least one principal living area of a dwelling must face predominantly north. Furthermore, the open space to Lot 52 is located to the south of the building envelope and will therefore experience significant overshadowing and will subsequently have poor amenity. Finally, the open space area for Lot 52 would be overlooked by the existing, elevated internal and external living areas on the adjacent Lot 53, which would further erode the amenity of the private open space on Lot 52, and two storey development on Lot 52 would also adversely impact upon solar access to the existing external living areas on Lot 53.
In Mr Weston's view, private open space is best located on the northern elevation of dwellings in order to achieve solar access between 9am and 3pm and Mr Weston argued that all of the proposed lots have building envelopes which provide in excess of 20% of the site areas as useable open space. He noted that the Council's Director of Planning in her report to Council on the DA stated that a "minimum of 20% of private open space on proposed Lot 53 is proposed. The indicative building envelopes on proposed Lots 50 to 52 are capable of accommodating dwellings which are compliant with this control".
In order to address other concerns of Council, Mr Weston stated that: 1. With regard to Lot 53 which contains the existing dwelling overlooking Lot 52 the concrete verandah could be screened to improve privacy and amenity to the POS of Lot 52 or the concrete verandah could be removed. This screen is required by a proposed condition of consent; 2. There would be partial overshadowing of the existing dwelling on Lot 53 if a two storey dwelling was constructed on Lot 52. However this would still allow for three (3) hours of solar access between 9am to 3pm on 21 June as required by the CDCP; and 3. The development of a dwelling on Lot 52 would be required to address solar access for Lots 52 and 53.
In terms of visual and acoustic privacy, the CDCP provides objectives and controls for visual and acoustic privacy which operate so as to locate outdoor living areas where they minimise sound transmission between dwellings and minimise direct overlooking of main living and private open space areas of adjacent dwellings.
Mr Hardy was concerned that the existing dwelling on Lot 53 has a front setback of less than 2m from the rear boundary of Lot 52. This dwelling is also raised above the natural ground level and both internal and external living areas at the north of this dwelling will therefore directly overlook the primary private open space and living areas of proposed Lot 52. Furthermore, Lot 53 provides a covered outdoor living area only 700mm from the private open space area of Lot 52. This represents a poor acoustic privacy outcome for Lot 50. Furthermore, there was a concern that the small footprints of the building envelopes to Lots 50, 51 and 52 will compel two storey buildings on those lots and that these two storey built forms will cause overlooking of adjacent private open space areas of Lots 52 and 53.
Mr Weston acknowledged that the existing dwelling on Lot 53 would have a setback of only 2m to the rear boundary of Lot 52. As previously indicated, in order to provide privacy for the existing dwelling and the proposed dwelling on Lot 52, Mr Weston suggested a 1.8 metre high privacy screen could be installed on the verandah and this is proposed by way of a condition of consent. However, it remained the Applicant's primary contention that the future design of the proposed dwellings on each of the proposed lots would be subject to Council's controls regarding site cover, building heights, access, setbacks, solar access, acoustics, privacy, overlooking, private open space, balconies and deck locations and were not matters of relevance to the subdivision or which could be addressed in the absence of designing the dwellings. He also noted that Council's Director of Planning stated to Council that: "the building envelopes are capable of accommodating dwellings which will have minimal impact on neighbouring properties with respect to privacy and overlooking" and that "The setbacks of the existing dwelling on proposed Lot 53 from proposed Lot 52 is acceptable on its merits. There are not specific front setback controls for battleaxe lots prescribed by the DCP. The plan of subdivision shows that the steps of the existing dwelling on proposed lot 53 encroaching into proposed lot 52. The steps are proposed to be removed as part of this DA".
Whilst the Court accepts that the nominated building envelopes and the retention of the dwelling on Lot 53 reduces the amenity of the existing dwelling and presents some challenges for the design of future dwellings on the 3 proposed vacant lots, the building envelopes are not so small or poorly located that residences could not be reasonably designed to achieve an acceptable level of amenity for residents of Lot 53 or of the proposed dwellings on each of the other 3 lot. Purchasers of each of the 4 proposed lots will be aware of the location of the existing dwelling on Lot 53 and the boundaries of the other 3 lots and of the limitations in terms of dwelling and private open space locations created by the s88B instrument. This instrument precludes development outside the designated building envelopes and also precludes boundary fencing in front of the front building line to Bowman Avenue and Elizabeth Macarthur Avenue. It is not possible to determine impacts until the dwelling design for each lot is known and then they must be considered and assessed in the context of the adjoining dwellings that exist at the time.
In summary, I am satisfied that the building envelopes and lot sizes proposed, along with the proposed conditions of consent, are such that the proposed lots are capable of accommodating dwellings which could achieve the private open space and amenity objectives of the CDCP. Any more detailed analysis of what those dwellings may comprise in terms of design and amenity for future residents is not a relevant consideration for the appeal currently before the Court.

Resident Objections

In dealing with the contentions raised by the Council, I have largely dealt with the substantive issues of concern raised by neighbours which essentially relate to the impact on the character of the area and streetscape as well as the loss of trees. Unfortunately, whilst the CLEP permits subdivision to be a minimum of 600m², proposals for subdivision of larger lots in the estate such as the subject site are only likely to increase and the CDCP controls will continue to be tested and varied where they impede the ability to achieve the minimum lot size permitted by the CLEP. In the context of the immediately adjacent corner dwellings close to at least one if not both of the adjoining streets and the infill subdivision already occurring in the estate, I have determined that on the non-compliances with the CDCP controls are minor and can be supported and the tree loss is minimised and therefore acceptable. . On balance there are insufficient grounds to refuse the application given it meets and in fact exceeds the CLEP minimum lot sizes permitted in the area.
The only issues raised by the residents not otherwise addressed related to increased traffic and impact on street parking. In this regard only 4 lots are proposed which would result in at most 3 additional dwellings with at most 2 dwellings accessed from either of the adjoining streets. I consider the existing streets to be adequate to accommodate any additional traffic and parking demand generated by the 3 additional dwellings that the subdivision would facilitate, and note that the subdivision itself would not generate any additional traffic or parking demand post construction.

ORDERS 1. The appeal is upheld. 2. Development Application DA 487/2014 for subdivision of 4 residential lots and associated site works at 25 Elizabeth Macarthur Avenue, Camden South be approved subject to the conditions at Annexure A. 3. That the exhibits be returned other than Exhibits 1 and 5 and the Supplementary Index to Exhibit B.

Jenny Smithson ACTING COMMISSIONER OF THE COURT 10922 of 2014 Smithson (C) (60.2 KB, pdf) 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: 19 May 2015

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