Cole v Sutherland Shire Council

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46 CASES CITED: Wehbe v Pittwater Council (2007) 156 LGERA 446 [2007] NSWLEC 827 Zhang v Canterbury City Council (2001) 115 LGERA 373

APPLICANT Mr A Pickles, barrister INSTRUCTED BY LEGAL REPRESENTATIVES: MCW Lawyers

RESPONDENT Ms J Amy, solicitor Sutherland Shire Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 COMMISSIONER: 183 Peninsular Road, Grays Point has an area of 1701 sq m and a width of 11.58 m. From its road frontage, it initially falls steeply toward the north and then, more gradually, to an inlet of Port Hacking to which it has a water frontage. A modest house is erected at the road frontage and a boat shed and metal garden shed are located at and in the vicinity, respectively, of the water frontage. The lower portion of the allotment has a number of substantial turpentine trees.

2 Mr and Ms Cole seek approval to subdivide the existing allotment into two separate allotments. The first of these, at the road frontage, would be 701 sq m in area. The lower, waterfront allotment would be 1000 sq m in area. Access to the smaller allotment would be via the present driveway and road verge crossing to the existing dwelling. Access to the proposed lower allotment would be via a right of carriageway over the road frontage allotment immediately to the east. This right of carriageway would be over an existing driveway which is proposed to be upgraded. The existing driveway not merely provides access to a dwelling on the road frontage allotment immediately to the east but also provides access to two further allotments down slope toward the same inlet of Port Hacking.

3 Sutherland Shire Local Environmental Plan 2000 contains two relevant development standards with which the proposed subdivision does not comply. The first of these relates to the minimum allotment size for road frontage allotments and the second relates to a minimum width requirement for both allotments. Similar (but not identical) provisions are contained in Sutherland Local Environmental Plan 2006. However, the effect of the 2006 provisions is, relevantly, identical with those in the 2000 LEP. The application is to be assessed against the provisions of the 2000 LEP but the result would be the same if it were assessed against those of the 2006 LEP.

4 The minimum allotment size for the road frontage allotment is contained in cl 37(2) of the 2000 LEP. This provision requires the road frontage allotment to have an area of 850 sq m. The lower allotment, without a road frontage, is required to have an area of 1000 sq m. It is clear, with a total available area of 1701 sq m, that both allotments cannot comply with these provisions.

5 The minimum lot width requirement is contained in cl 38(2) of the 2000 LEP. This requires that the minimum width for allotments in the 2(e2) Residential zone, within which this site is located, is 18 m. At a width of 11.58 m, neither proposed allotment can comply.

6 Objections pursuant to State Environmental Planning Policy 1 have been made to compliance with each of these development standards.

7 In addition to non-compliances with these two development standards, the Council has raised a variety of other merit issues concerning the proposal. As I have concluded that the SEPP 1 objection to compliance with the minimum lot width cannot be sustained, it is not necessary for me to consider and deal with these other issues or with the second SEPP 1 objection.

8 Five questions arise to be addressed when assessing a SEPP 1 objection. These questions were formulated by Lloyd J, in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46, in the following terms: First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded?

9 Although the approach to be taken to assessing a SEPP 1 objection is discussed in differing terms by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827, the effect of the two decisions is similar. For convenience, because it is the approach taken in the SEPP 1 objection objections prepared by Mr Martin, the town planner for the applicants, I have followed the Winten formulation in my consideration of the cl 38(2) SEPP 1 objection.

10 With respect to the first Winten question, it is agreed by Mr Martin and Ms Pinfold, the town planner for the Council, that the requirement for a minimum allotment frontage of 18 m set by cl 38(2) of the LEP is a development standard.

11 The next step, therefore, is to establish the underlying purpose of this standard. The zone objectives for the 2(e2) Residential zone are contained in the traditional development control table which forms part of cl 33 of the 2000 LEP. There is nothing specific in the objectives of the zone which is relevant to understanding the underlying purpose of this development standard.

12 However, the provisions of cl 38 of the 2000 LEP set the specific minimum allotment dimensions which apply in the various residential zones in the 2000 LEP. This clause contains two objectives. Curiously, on the copy of the 2000 LEP tendered in these proceedings, these objectives are numbered 1(a) and 1(c). There is no objective 1(b). The first of them is not relevant in the present instance but the second is specifically relevant and forms the basis for consideration of the present SEPP 1 objection. The relevant objective is in the following terms: (c) 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.

13 It is clear that a critical element here of the purposes for which the standard has been created is to ensure that there is sufficient width for the creation of a driveway giving access to serve a dwelling on or accessed via such an allotment.

14 In the present instance, for reasons of the steep gradients falling from Peninsular Road at the frontage of the site, it is clearly not practical to provide driveway access to Peninsular Road across the front allotment by a right of carriageway as such a right of carriageway would be significantly noncompliant with driveway gradients required by the relevant Australian Standard.

15 To avoid this, but still to permit functional access to the proposed rear allotment, the applicants have obtained the consent of the owners of the road frontage allotment immediately to the east to a right of carriageway over the existing driveway which serves that allotment and, by further rights of carriageway, serves the two allotments to the north of that road frontage allotment and the dwellings located upon them.

16 As part of this application, repairs and modifications are proposed to the driveway which is proposed to provide access, now, to four dwellings rather than to the three presently served by it. Separate pedestrian access is also proposed to be constructed as well as a passing bay, in the driveway, partially on the property to the east and partially on the proposed road frontage allotment on the site. The proposed passing bay is to allow safe passage of vehicles travelling on the driveway in conflicting directions.

17 As part of be applicants' material, Mr Martin provided a diagram which sets out the subdivision pattern in the vicinity together with the approximate location of the various driveways serving the dwellings within this precinct. A copy of that diagram is appended to this decision. I have marked that diagram with the additional marking in green showing the site and the proposed internal boundary between the road frontage and lower allotments. I have also marked, in red, the boundaries of the three allotments immediately to the east.

18 As can be seen from the plan of the property layout in the vicinity, the driveway which serves the three houses to the east of the site accesses Peninsular Road close to a bend in the road. This driveway curves across the slope on the front allotment as it reaches the road. It was clear from the inspection that vehicles from houses presently using the driveway need to drive off the made portion of the driveway when using it - particularly, as one of the owners of the adjacent properties using this driveway pointed out during the site inspection, when the vehicle using the driveway is towing a boat or some other trailer.

19 In addition, this driveway, is constructed across steep land, and bends to meet the road. This is necessary as the eastern allotments, although not to the same extent as the site, fall from Peninsular Road toward the inlet of Port Hacking to the north. Indeed, no driveway constructed along the western boundary of these eastern allotments directly accessing Peninsular Road would be acceptable as it would also contravene the relevant Australian Standard in a similar fashion to any driveway which might be contemplated for the site.

20 As can be seen from the surrounding development pattern on the plan, a variety of subdivisions have taken place in the past. The only allotment within the precinct of the site which has not been subdivided in some fashion is the allotment immediately to the west of the site - 185 Peninsular Road.

21 I need to consider whether, if I were to permit the subdivision of the site as proposed, the development potential of the un-subdivided allotment to the west would be significantly compromised or eliminated thus rendering that allotment an orphan site without development potential. I am satisfied that this is not the case. If I were to approve the present proposal, in a planning sense, creating a fourth access over the driveways serving the allotments two further to the west of the site would technically be possible in a similar to fashion to that which would arise if the present proposal were approved. Whether such a subdivision would be economically feasible is a different and irrelevant matter.

22 However, accepting that that site would not necessarily be left as an orphan is contingent on my approval of the concept of this site having an allotment served by a right of carriageway providing access to four residences rather than the three contemplated by the Council's Residential Subdivision Development Control Plan (as discussed in detail later).

23 Mr Martin, in his cl 38(2) SEPP 1 objection, said, with respect to the possibility of amalgamation with the allotment to the west, in part as follows [at 7.0(j)]: There is no potential amalgamation and the owners of 185 Peninsular Road do not wish to amalgamate at this stage and do not object to the application.

24 This statement contains two separate elements. The first is that amalgamation could never take place. The second is that the present owners of the allotment to the west do not wish amalgamation to take place. I accept that the second of those propositions is accurate and I reject the first of those propositions. There is no basis upon which such a proposition could be sustained.

25 If I reject the present proposal, amalgamation with the allotment to the west and further re-subdivision is technically feasible, subject to the driveway design and other considerations, in a fashion broadly consistent with the general subdivision pattern of the precinct and also broadly consistent with the subdivision pattern of the allotments immediately to the east of the site. Obviously, any such proposal would be subject to consideration of any planning issues which would arise in the assessment of any detailed proposal for such a consolidation and re-subdivision (including consideration of issues of access to Peninsular Road and driveway design). However, that is not a matter upon which it is appropriate for me to speculate - merely to note that it is, prima facie, technically possible for such a proposal to be developed.

26 It therefore follows that, because the opportunity will continue to exist for consolidation and subdivision to be considered with the allotment to the west, I do not consider that strict compliance with the minimum allotment width size would prevent the orderly economic development of the site and thus be unreasonable or contrary to the objects in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979.

27 I now turn to the relevant provisions of the Council's Residential Subdivision Development Control Plan. The DCP contains a specific clause, cl 14, dealing with rights of carriageway. It is clear from the subdivision pattern of the precinct (and accepted by the Council) that the only viable form of access to a second, lower allotment on the site is by a right of carriageway providing access to Peninsular Road. As a consequence the provisions cl 14 of the DCP are necessarily engaged.

28 The relevant control in clause 14 of the DCP is (2) which is the following terms: A right-of-carriageway will be permitted to service only two allotments over the road frontage allotment;

29 This provision is also on diagrammatically reflected in the DCP in the following form:

30 It is clear that the present proposed arrangement utilising the driveway of the allotments to the east is contrary to this provision as the proposal will require access servicing three allotments in addition to the road frontage allotment rather than two as envisaged by the control.

31 As to the emphasis I should give to the DCP, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent. From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge. First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision making process but it is not in itself determinative.

32 There is no suggestion that, in the immediate vicinity or, indeed, generally, the Council has departed from requiring compliance with this provision of the DCP. There is nothing advanced in the applicants' SEPP 1 objection (apart from the practical functional necessity for such departure for access to be able to be effected to the lower allotment) that justifies non-compliance with this provision of the DCP. The absence of any planning basis for departure and lack of any evidence of any inconsistency by the Council causes me to conclude that I have no reason not to adhere to this requirement. For this reason the driveway arrangement is unacceptable.

33 However, I have also concluded that the use of the existing driveway to provide access to a fourth residence is unacceptable not merely because it is noncompliant with the DCP but because the addition of new vehicles above the numbers presently using this narrow driveway with access to the road near a bend in the road would be contrary to the objective contained in the 2000 LEP of an efficient driveway. Further, the necessity for incorporation of a passing bay, when none is now needed for compliance with the DCP, is an indicator of the inefficiency of the arrangement - particularly in terms where cl 14 of the DCP does not envisage that, in ordinary circumstances, passing bays would be required for an efficient driveway. As a result, I do not consider it unreasonable to require compliance with the minimum allotment width for the site if subdivision were to be permitted.

34 I note that the Council has also raised issues concerning the impact of driveway construction on the roots of a significant tree which is located in the vicinity of the point where the proposed new driveway departs from the existing driveway and enters onto the road frontage allotment proposed for the site.

35 Although there was considerable discussion about whether or not, on an arboricultural assessment basis, further construction in the critical root zone of this tree could be permitted without compromising the long term survival and vitality of this tree, such matters only arise because of the necessity for this driveway from the site to draw in the driveway on the east allotment to provide access to the proposed lower allotment.

36 As I have concluded that, for other reasons, the driveway arrangement is unacceptable, I do not need to conclude whether or not there would be unacceptable impacts on this significant tree. Although, if there were, it would merely add further to considering the proposed driveway access to be unacceptable.

37 As earlier discussed, I do not accept the assertion by Mr Martin that there is no potential for the site to amalgamate with the adjacent allotment to the west.

38 I am satisfied that by not acceding to departure from the minimum allotment width development standard I would not be leaving, for this allotment, a position where it will be left as an orphan and thus incapable of appropriate economic development consistent with the objectives of the Act, when the combined configuration of the two properties is considered in conjunction with the broad subdivision pattern of the precinct. It also therefore follows that I consider it is not necessary for development reasons to permit departure from this development standard.

39 In my assessment, I have borne in mind that the process established by the policy is both facultative and beneficial. This flavour cannot overcome the impediments to the SEPP 1 objection as set out above.

40 As a consequence, I have found that it is neither unreasonable, unnecessary nor contrary to the objectives of the Act to require compliance with the development standard, the objection to compliance with that standard cannot be well founded.

41 As a consequence, I am satisfied that the orders of the Court must be: 1. The objection pursuant to State Environmental Planning Policy 1 to compliance with the development standard for the minimum allotment width contained in clause 38(2) of Sutherland Shire Local Environmental Plan 2000 is not sustained; 2. The appeal is dismissed; 3. Development Application 06/1406 for subdivision of 183 Peninsular Road, Grays Point into two allotments is determined by the refusal of development consent; and 4. The exhibits are returned.

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