DEVELOPMENT APPLICATION: subdivision into two Torrens Title lots
minor alterations and addition to the existing dwelling identified as contributory to the heritage significance of the heritage conservation area
impact on the heritage significance of the heritage conservation area
Source
Original judgment source is linked above.
Catchwords
DEVELOPMENT APPLICATION: subdivision into two Torrens Title lotsminor alterations and addition to the existing dwelling identified as contributory to the heritage significance of the heritage conservation areaimpact on the heritage significance of the heritage conservation area
Judgment (8 paragraphs)
[1]
The applicant's written request to contravene the development standard
The first opinion of satisfaction required by cl 4.6(4)(a)(i) is that the applicant's written request seeking to justify the contravention of a development standard has adequately addressed the matters required to be demonstrated by cl 4.6(3) (see Initial Action [15]), as follows:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard
The applicant bears the onus to demonstrate that the matters in cl 4.6(3) have been adequately addressed by the written request in order to enable the Court, exercising the functions of the consent authority, to form the requisite opinion of satisfaction (Initial Action [25]).
The common ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by the Chief Judge in Wehbe v Pittwater Council (2007) 156 LGERA 446 [42]-[51] ("Wehbe") and repeated in Initial Action [17]-[21]. Although Wehbe concerned a SEPP 1 objection, the common ways to demonstrate that compliance with a development standard is unreasonable or unnecessary in Wehbe are equally applicable to cl 4.6 (Initial Action [16]):
1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;
2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;
3. underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;
4. the development standard has been abandoned by the council;
5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).
The five ways to demonstrate compliance is unreasonable or unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action [22]).
The applicant's written request justifies the contravention of the development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are met, notwithstanding the numerical non-compliance with the minimum width requirement of 18 metres along a line that is 12 metres from the street frontage of the lot. The applicant's written request states that the numerical non-compliance is minor as it is a numerically insignificant shortfall and as Lot B widens towards the rear of the site, the site is 18m wide along a line that is 14.3 metres from the street frontage of the lot.
The grounds relied on by the applicant in the written request under cl 4.6 must be "environmental planning grounds" by their nature, and environmental planning grounds is a phrase of wide generality (Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 [26]) as they refer to grounds that relate to the subject matter, scope and purpose of the EPA Act, including the objects of the Act (Initial Action [23]). The environmental planning grounds relied upon must be sufficient to justify contravening the development standard and the focus is on the aspect of the development that contravenes the development standard, not the development as a whole (Initial Action [24]). Therefore the environmental planning grounds advanced in the written request must justify the contravention of the development standard and not simply promote the benefits of carrying out the development as a whole (Initial Action [24]). The environmental ground relied on by the applicant in the written request is that the numerical non-compliance with the development standard is a result of the need to retain the existing dwelling house as it is identified as contributory to the heritage significance of the Pymble Heights CA.
The consent authority or the Court on appeal does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3), but only indirectly form the opinion of satisfaction that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) (Initial Action [25]).
I am satisfied, pursuant to cl 4.6(4)(a)(i), that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3). The applicant's written request defends the numerical non-compliance with the development standard as a justified response to the position of the existing dwelling and the need to retain the existing dwelling because it is identified as being contributory to the collective heritage significance of the Pymble Heights CA. I am satisfied that justifying the numerical non-compliance with the development standard on the basis that the configuration of Lot B has been determined by the position of the existing dwelling on the site can be properly described as an environmental planning ground within the meaning identified by his Honour in Initial Action [23].
[2]
Whether the proposal is in the public interest because it is consistent with the objectives of the contravened development standard and the zone
The second opinion of satisfaction required by cl 4.6(4)(a)(ii) of LEP 2015 is that the proposed development will be in the public interest because it is consistent with the objectives of the development standard that is contravened and the zone objectives. The consent authority must be satisfied that the development is in the public interest because it is consistent with these objectives, not simply that the development is in the public interest (Initial Action [27]). The consent authority must be directly satisfied about the matters in cl 4.6(4)(a)(ii) of LEP 2015 (Initial Action [26]).
I am not satisfied that the proposal is consistent with the following objectives of the minimum subdivision lot size development standard that is contravened: (a) to ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls; (b) to ensure that lot sizes and dimensions allow development to be sited to protect cultural features including heritage items, remnant vegetation, and provide for generous landscaping to support the amenity of adjoining properties and the desired character of the area; and (c) to ensure that subdivision of low density residential sites reflects and reinforces the predominant subdivision pattern of the area.
[3]
The proposed subdivision does not reflect and reinforce the predominant subdivision pattern of the area
The particular configuration of the site and the position of the existing dwelling on the site has dictated the location of the boundary between the proposed lots, so that the existing dwelling is located entirely on Lot A. Lot A has a frontage of 42.89m and Lot B has a frontage of 13.17m. The resulting configuration of Lot B, particularly its narrow frontage, is contrary to and uncharacteristic of the predominant subdivision pattern of the area, because the predominant site frontage in the area is generous, with an average frontage of 37.75m and the narrowest frontage of 18.29m at 21 Church Street (Ex 2, appendix G).
Although the site area of Lot B exceeds the minimum subdivision lot size, the bulk of the area is located at the rear, southern corner of the site. Lot B, when viewed from the public domain, will appear to be a narrow and small site squeezed between two grand period houses.
Mr McDonald cited 31 King Edward Street, Pymble as an example of a nearby narrow allotment within the Pymble Heights CA. 31 King Edward Street has a site frontage of 15m on an allotment that is a re-subdivision of the original subdivision. The proposed Lot B is significantly different in configuration and character to 31 King Edward Street. 31 King Edward Street is a corner allotment with the garage located at the rear of the property and accessed from Church Street. In contrast, the proposed Lot B, which has an even narrower frontage than 31 King Edward Street, has to accommodate the driveway access across the frontage as there is no alternative access. Driveway access across the frontage of Lot B is constrained by two mature trees, the Himalayan Cedar (Tree 21) and the Chinese Hackberry (Tree 22). The narrow street frontage of Lot B will be dominated by the driveway crossover, as it will occupy a significant proportion of the frontage when viewed from the public domain. This would be an uncharacteristic feature within the Pymble Heights CA and the subdivision pattern in the area.
The front façade of 31 King Edward Street aligns with its neighbour and the design of the Federation styled dwelling orientates to the corner and to both street elevations, giving it a strong presence in the streetscape, which makes a significant contribution to the character of the Pymble Heights CA. A future dwelling on Lot B, in contrast, will be, according to the Proposed Building Zone nominated by the proposal, setback significantly behind the existing contributory dwelling on the site and the heritage item at 10 Church Street, so that the dwelling's siting bears little relationship to its built context. For these reasons, the frontage dimension of 31 King Edward Street cannot be used to justify the narrow frontage of Lot B.
[4]
The proposed subdivision does not ensure that lot sizes and dimensions are able to accommodate development consistent with relevant development controls
The configuration of Lot B with a narrow frontage fanning out to a wide rear boundary is a significant constraint to the future development of the allotment and to achieving a development consistent with relevant development controls. Lot B is further constrained by its proximity to both the adjoining heritage item at 10 Church Street, the TPZs of the Camphor Laurel and Liquidambar and the existing dwelling on the site identified as contributory to the heritage significance of the Pymble Heights CA.
The Proposed Building Zone nominated by the proposal is positioned well back from the front façade and verandah of the existing dwelling on the site and it is uncharacteristically narrow when compared to the presentation of dwellings to Church Street within the Pymble Heights CA.
The proposed subdivision is not consistent with the objective of ensuring that lot sizes and dimensions are able to accommodate development consistent with relevant development controls because the design of a future dwelling on Lot B will not meet the relevant objectives of 4A.2, 19D.2, 19E.3 and 19F.1 of the KDCP.
[5]
The proposed subdivision does not ensure that lot sizes and dimensions allow development to be sited to protect cultural features including heritage items, remnant vegetation, and provide for generous landscaping to support the amenity of adjoining properties and the desired character of the area
The proposed configuration of the subdivision compromises the curtilage and setting of the existing dwelling on the site identified as contributory to the heritage significance of the Pymble Heights CA. The position and proportions of a future dwelling on the Proposed Building Zone would create a distracting anomaly in the streetscape and it would not respect the established pattern of built elements in the streetscape and the Pymble Heights CA.
The extremely narrow side setback of the existing dwelling of between 0.85 and 1.7m created by the proposed position of the shared side boundary is contrary to the controls and the objectives for side setbacks in the KDCP, which would require a side setback of 2.67m for the existing dwelling. The side setback proposed for the existing dwelling from the shared boundary fails to maintain the generous landscaped settings to dwellings typical of the streetscape; it fails to ensure that the amenity of the existing dwelling will be maintained or enhance and it fails to provide for meaningful soft landscaping in the side setback. The proposed side setback to the existing dwelling would appear abrupt, mean and uncharacteristic when viewed from the public domain and for this reason the position of the shared boundary does not provide an adequate curtilage to the contributory building.
The siting of the future dwelling on Lot B will not be consistent with the established pattern of built elements in the Pymble Heights CA, because the Proposed Building Zone results in a future dwelling that is unusually narrow so that the front elevation is dominated by the garage opening, and is positioned on the site so that it would appear, as described by Ms Higgins, to be squeezed between the contributory building and the heritage item, disturbing the rhythm of the streetscape. The gap between the future dwelling on Lot B and the existing contributory dwelling of approximately 3m is uncharacteristic in the Pymble Heights CA, because the properties within the Pymble Heights CA generally have generous distances and landscaping between dwellings and it is this feature that contributes to the grand scale of the Pymble Heights CA.
[6]
Conclusion
As the second precondition in cl 4.6(4) of LEP 2015 is not satisfied because the proposal is not consistent with the objectives of the contravened development standard, there is no power to grant consent to the proposal.
[7]
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. Development Application No. 0092/18 for the subdivision of the property into two lots and minor alterations and additions to the existing dwelling is refused.
3. The exhibits, other than Exhibits 1 and A, are returned.
Susan O'Neill
Commissioner of the Court
[8]
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: 14 March 2019
Parties
Applicant/Plaintiff:
Chen
Respondent/Defendant:
Ku-ring-gai Municipal Council
Cases Cited (3)
Issues
The Council's contentions can be summarised as:
The proposal will adversely affect the heritage values of the Pymble Heights Conservation Area.
The location of the existing dwelling in relation to the southern boundary of Lot A is inconsistent with the setback controls and will result in adverse impacts on the internal landscape amenity of the site and streetscape.
The proposed building zone on Lot A will have adverse impacts on the landscape amenity of the streetscape.
The proposal fails to meet the minimum 18m allotment width requirement and the written request seeking to justify the contravention of the development standard is not well founded and will not achieve a better outcome for and from the development. The proposal is not consistent with the development controls, contrary to the objectives for the development standard.
The Statement of Facts and Contentions (Ex 1) particularises Contention 5 (regarding the minimum 18m allotment width requirement), at (c), as, "The variation to the standard is not well founded and will not achieve a better outcome for and from the development, as an objective of cl 4.6 for the reasons stated in these contentions". Clause 4.6 of Ku-ring-gai Local Environmental Plan 2015 (LEP 2015) does not directly or indirectly establish this test (see Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 [88] ("Initial Action")).